Central Administrative Tribunal - Delhi
Amar Singh Chauhan vs Govt. Of Nctd on 7 May, 2024
1 O.A. No.1088/2021
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1088 of 2021
Orders reserved on : 10.04.2024
Orders pronounced on : 07.04.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Amar Singh Chauhan
S/o Chhidda Singh
R/o A-68, West Block,
Friends Enclave, Mundka,
New Delhi-41
Age 50 years
Group 'C'
Head Constable (Exe.) in Delhi Police
...Applicant
(By Advocate: Shri Sachin Chauhan)
VERSUS
1. Govt. of NCT of Delhi
Through the Chief Secretary,
Govt. Of NCTD,
A-Wing, 5th Floor,
Delhi Secretariat,
New Delhi-110113.
2. The Commission of Police,
Police Headquarters,
Jai Singh Road,
New Delhi.
3. The Joint Commissioner of Police,
Central Range,
PHQ, Delhi
2 OA No.1088/2021
Through its the Commissioner of Police,
Jai Singh Road,
New Delhi
4. The Deputy Commissioner of Police,
North District, Delhi
Through its the Commissioner of Police,
Jai Singh Road,
New Delhi
...Respondents
(By Advocate: Shri Amit Yadav with Shri Amit Anand)
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
In the instant OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following reliefs:-
"8.1 To set aside order dated 26th July 2019 whereby the extreme punishment of dismissal from service is inflicted upon the applicant and order dated 6.4.2021 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents to reinstate the applicant back in service with all consequential benefits including seniority & promotion and pay & allowance.
And/or Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant."3 OA No.1088/2021
2. Pursuant to notice, the respondents have filed their reply opposing the claim of the applicant and prayed for dismissal of the OA. The applicant has filed his rejoinder denying the contents of the counter reply and reiterating the claim as in the OA.
3. The facts in brief leading to the present case are that the applicant was appointed as a Constable in Delhi Police in the year 1991 and thereafter he was promoted to the post of Head Constable. Applicant while working as such, was involved in a criminal case, being FIR No.268/2019 and 23rd July 2019 under Section 376 of Indian Penal Code (in short 'IPC') and 6 of Prevention of Corruption Act (in short 'POC Act') and the applicant was arrested on 4.8.2019 and was placed under suspension on 24.7.2019 and thereafter vide impugned order dated 26.7.2019 (Annexure A-1), the applicant was dismissed from service by invoking the provisions of Article 311(2)(b) of the Constitution of India. The pandemic in India was declared and country went in a lock down on 24.3.2020. The applicant was in judicial custody till 4.7.2020 and was released on interim bail on 5.7.2020. The relevant portion 4 OA No.1088/2021 of the said order of the disciplinary authority dated 26.7.2019 reads as under:-
An information has been received from Addl. Dy. Commissioner of Police, Outer District, Delhi that a case vide FIR No. 268/19 dated 23.07.2019 u/s 376 IPC & 6 POCSO Act has been registered at Police Station Mundka, Delhi, The statement of victim was recorded in which she revealed that she has been working as a maid in the house of Smt, Neelam w/o Mr, Amar Singh Chauhan r/o A-68, Friends Enclave, Mundka, Delhi since 01.07.2019. On 23.07.2019 at about 09.30 AM, when she was working in the kitchen, Mr. Amar Singh Chauhan took her to the bedroom and made physical relations with her forcibly. During the course of investigation it was revealed that the alleged Mr. Amar Singh Chauhan is working in Delhi Police and is posted in North District against Constabulary No. 2187/N. PIS No. 28912275. He is presently deployed in Tis Hazari Courts Security. The above mentioned HC Amar Singh Chauhan is wanted in the above mentioned case and is still not joining the investigation.
A preliminary enquiry into the matter was got conducted through ACP/PG Cell, North District which reveals that the allegations leveled against HC (SGD) (Exe.) Amar Singh Chauhan, No. 2187/N (PS No. 2891227S) are substantiated and there is prima facie sufficient evidence against him for taking requisite disciplinary action against him.
HC (SGD) (Exe.) Amar Singh Chauhan, No. 2187/N (PIS No. 28912275) was placed under suspension vide DD No. 10 THC dated 24.07.2019. The dastardly act of the Head Constable has put the entire police force to shame, especially when such a force is responsible for the safety and security of women. The social of fabric would be disturbed, if the custodian of a law becomes law breaker. The criminal conduct of the Head Constable has also shaken the faith of women as well as whole society at large about the credibility of the police force. This criminal and shameful act of the Head Constable is not only reprehensible, but it has also tarnished the image of the entire police force in the eyes of citizens of Delhi and the country as well. This grave and heinous act of the Head Constable is not only a sin but it has also shocked other Sincere and dedicated personnel of the force. The misconduct of the Head Constable is 5 OA No.1088/2021 shameful, abominable and disgusting. This deplorable act of moral turpitude necessitates the sternest of disciplinary action against the individual.
The act and conduct of Head Constable (SGD) (Exe.) Amar Singh Chauhan, No. 2187/N (PIS No.28912275) prima facie warrants his immediate dismissal from service as such a person can not be allowed to remain in the organization any more as he has committed a criminal offence and the allegations are of a very serious nature. Under such circumstances holding a proper detailed enquiry is not feasible as it will discourage the victim from deposing against him. If the defaulter is allowed to continue in the police force, it would be detrimental to public interest and further tarnish the image of the police force in the society.
Taking into account overall circumstances of the case committed by the Head Constable (SGD) (Exe.) Amar Singh Chauhan, No. 2187/N (PIS No.289 12275), I have no option except to dismiss him from the police force with immediate effect as his further retention in the police force would be detrimental to the public interest. The actions of the individual are highly unbecoming of a police officer. Such misconduct cannot be tolerated in any disciplined organization like police whose basic duty is to protect the life of citizen in the society. The misconduct is of such grave nature that it warrants an exemplary punishment of dismissal, in order to send a strong message so as to prevent the recurrence of such unprofessional and unacceptable behavior of moral turpitude, which makes him completely unfit for police service.
Therefore, I, Nupur Prasad, Deputy Commissioner of Police, North District, Delhi being a competent authority hereby dismiss Head Constable (SGD) (Exe.) Amar Singh Chauhan, No.2187/N (PIS No.289 12275) from the Delhi Police under Article 311 (2) (b) of the Constitution of India with immediate effect.
....... ...... ...... ....."
4. Aggrieved by the aforesaid impugned order dated 26.7.2019, the applicant made an appeal on 7.9.2020 and when the same was not decided by the appellate authority 6 OA No.1088/2021 even after lapse of five months, the applicant has approached this Tribunal through OA 347/2021 and this Tribunal disposed of the same vide Order dated 15.2.2021 with a direction to the respondents to consider the aforesaid appeal dated 7.9.2020 and to pass a reasoned and speaking order within a stipulated time. The said appeal was rejected by the appellate authority vide order dated 6.4.2021 (Annexure A-2) on the ground of limitation.
Hence, the applicant has filed this OA for redressal of his grievances.
4. We have heard learned counsels for the parties and have perused the pleadings available on record as well as the Order/judgments relied upon by the learned counsels for the parties.
5. At the time of hearing, Shri Chauhan, learned counsel for the applicant has argued that impugned order passed by the disciplinary and appellate authorities are being passed without application of mind, as the disciplinary authority in utter violation of principles of natural justice and laid down departmental rules and procedure, under the garb of provisions of Article 311(2)(b) of the Constitution of India without subjecting him to the 7 OA No.1088/2021 departmental inquiry straight away dismissed the applicant from service.
5.1 Learned counsel for the applicant has also submitted that admittedly a preliminary enquiry was conducted through ACP/PG Cell/North District and thereafter within two days of registration of the aforesaid FIR dated 23.7.2019, the order of dismissal from service dated 26.7.2019 was passed by the disciplinary authority, although the applicant was in judicial custody and the applicant preferred by the applicant was rejected by the appellate authority vide the impugned order not on merit but on the ground that no sufficient reasons have been adduced by the applicant therein, however, the appellate authority failed to consider the fact that the applicant was in judicial custody and only after release on bail, he could have preferred the same. Further it is a fact that due to covid pandemic, the Apex Court has excluded the period of limitation from 15.3.2020 and prior to 15.3.2020, the applicant was in judicial custody. Learned counsel for the applicant has further submitted that the appellate authority kept the said appeal of the applicant pending for almost eight months and that too only after the direction 8 OA No.1088/2021 of this Tribunal in the earlier OA, the appellate authority has passed the aforesaid order on his appeal. 5.2 Learned counsel for the applicant has further submitted that the disciplinary and appellate authorities did not even make the slightest possible effort to initiate a departmental enquiry as only after initiating a departmental inquiry or finding sufficient materials and reasons, an authority can come to the conclusion that departmental enquiry is not reasonably practicable. However, in the present case, only acting on the presumption and surmises, the respondents came to the conclusion that departmental inquiry is not practicable and such conclusion/order of the respondents are not sustainable in the eyes of law.
5.3 Learned counsel for the applicant has also submitted that the disciplinary authority has failed to apply its mind that the power under Article 311(2)(b) of the Constitution of India has to be exercised with a pre-condition. The pre- condition is that a D.E. is not reasonably practical and to conclude that the disciplinary authority has to record reason(s) and the reasoning in the case in hand is based on the assumption that the applicant has committed the 9 OA No.1088/2021 alleged crime without there being a conclusive verdict of the learned court in trial of the aforesaid case FIR, the authority on the presumption that the alleged offence has been committed by the applicant so there is no need to conduct the departmental enquiry is a reason which cannot stand to the scrutiny of law for invoking the power under the provisions of Article 311(2)(b) of the Constitution of India and that the so called reasons recorded in the impugned order are mentioned only to avoid the disciplinary inquiry.
5.4 Learned counsel for the applicant has emphasised that the disciplinary authority in the impugned order recorded that in a preliminary enquiry itself it is being clearly established that the allegations against the applicant are proved but again the same cannot be a ground to invoke the provisions of Article 311 (2)(b) and that the copy of the said preliminary inquiry has not been supplied to the applicant nor the applicant has been made part of the said preliminary inquiry. However, on the contrary law is that if a preliminary inquiry is possible then the D.E. is also possible and in such cases provisions 10 OA No.1088/2021 of Article 311(2)(b) of the Constitution of India are not required to be invoked.
5.5 Learned counsel has drawn our attention of circular dated 11.09.2007 issued by the respondents, relevant portion of which reads as under:-
"Only in cases where Disciplinary Authority is personally satisfied on the basis of material available on file that the case is of such a nature that it is not practicable to hold an enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in view the specific circumstances of the case it is not possible that PWs will depose against the defaulter and disciplinary authority has no option but to resort to Article 311 (2) (b) should such an action be taken. Prior to such an order, a PE has to be conducted and it is essential to bring on record all such facts. It has also been decided that before passing an order under Art. 311 (2) (b) of the Constitution, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.)"
On the strength of the above, he has contended that there is no concurrence of Spl. Commissioner of Police as per the requirement of the aforesaid circular and thus the present impugned orders are passed in violation of the aforesaid circular and the same are bad in law being passed without jurisdiction and competence by the authorities.
11 OA No.1088/20215.6 Learned counsel for the applicant has submitted that once a criminal trial against the applicant is possible and the complainant can depose before the learned trial court without any fear then on the same charge in D.E., deposition of complainant and/or witnesses is possible. 5.7 Learned counsel has further argued that the present case is a case of no evidence and no misconduct, but on the contrary mere on suspicion and surmises, the allegations against the applicant are concluded to be proved and further to avoid the disciplinary proceedings, a short cut method has been adopted by invoking the provisions of Article 311 (2) (b) of the Constitution of India. Further the appellate authority without applying its mind to the ground taken in the appeal rejected the same only on the ground of limitation and as such the aforesaid orders of the disciplinary and appellate authorities are not sustainable in the eyes of law. In support of his arguments, the learned counsel for the applicant has placed reliance on the decisions of the Hon'ble High Courts as well as of this Tribunal in the following cases:- 12 OA No.1088/2021
(i) Mahavir Singh and another vs. Union of India and others, in WP(C) No.7086/2000, decided on 2.6.2009 by the Hon'ble Delhi High Court;
(ii) Lokendra Pal Singh vs. State of UP and others, in WPC No.25018/2018, decided on 30.8.2019 by the Hon'ble High Court of Allahabad;
(iii) Ajayvir Gulia vs. GNCTD and others in OA No.2791/2003, decided on 20.5.2004 by this Tribunal;
(iv) Ct. Sumit Sharma vs. GNCTD and others in OA No.1383/2020, along with other connected OAs, decided on 10.2.2022 by this Tribunal; and
(v) Neeraj Kumar vs. Commissioner of Police and another, in OA No.2097/2019, decided on 1.11.2019 by this Tribunal;
5.8 Learned counsel for the applicant has further argued that in the facts and circumstances of the present case, the satisfaction of the disciplinary authority is not based on any cogent reason as the reasoning of the disciplinary authority in the impugned order that "Under such circumstances holding a proper detailed enquiry is not feasible as it will discourage the victim from deposing against him", is not sustainable in the eyes of law as the applicant being a Constable, i.e., holding a lower post in the respondent's department. Therefore, the impugned order passed by the 13 OA No.1088/2021 disciplinary authority is in utter violation of principles of natural justice and laid down departmental rules and procedure on the subject.
5.9 Learned counsel for the applicant has emphasised that the extreme punishment of dismissal from service has been imposed upon the applicant by invoking the provisions of the Article 311 (2) (b) of the Constitution of India and further the appellate authority has rejected the appeal of the applicant without considering the specific submissions and pleas raised in the statutory appeal but only on the ground that the same is barred by limitation that too without keeping in mind that for the said period, the delay has been condoned by the Hon'ble Supreme Court and as such the impugned orders are wrong, illegal, and arbitrary. Both the authorities have not applied their mind as there is a pre-condition for invoking the provisions of Article 311 (2) (b) of the Constitution of India, is a finding to the effect that enquiry is not reasonably practical and to conclude that the disciplinary authority has to record reason(s) in this regard. However, the reasons recorded in the impugned order dated 26.7.2019, 14 OA No.1088/2021 as mentioned above, are based on the surmises and conjectures.
5.10 Learned counsel for the applicant has also submitted that the case of the applicant is squarely covered by the aforesaid decisions of the Hon'ble High Courts as well as of this Tribunal, as referred to above. 5.11 Learned counsel for the applicant has placed reliance and produced a copy of order/judgment of this Tribunal in OA No.14/2018, titled Sant Ram vs. Commissioner of Police and others, which was decided by This Tribunal on 6.2.2024 in which very recently similar issue as involved in the instant case has been considered by this Tribunal in most of the above referred Orders/Judgments, including the Order/Judgment in the case of Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others, has been considered. Stating that the similar contentions as raised in the present case had already been dealt with by this Tribunal in the aforesaid Order/Judgment dated 6.2.2024 in the case of Sant Ram (supra), he has drawn our attention to the grounds taken for passing the aforesaid impugned order(s), relevant portion of which has already quoted above. Learned counsel for the applicant has 15 OA No.1088/2021 submitted that on the same terms as given the case of Sant Ram (supra), the present OA may be decided. 5.12 Lastly, learned counsel for the applicant has produced a copy of the order/judgment dated 22.3.2023 passed by the learned Trial Court (Tis Hazari Courts, Delhi) in the said case FIR 268/2019 (SC No.76/2019), titled State vs. Amar Singh Chauhan, vide which the learned Trial Court held that 'the prosecution has miserably failed to prove its case against the accused persons beyond reasonable doubt' and 'Consequently, the accused Amar Singh Chauhan s/o Chidda Singh is acquitted of offence u/s 75 of Juvenile Justice (Care & Protection of Children) Act and Section 6 of POSCO Act or in alternative for offence u/s 375 IPC.' and reiterated that the impugned orders are liable to be quashed by this Tribunal, as if the Trial in the said case FIR was possible, there was no reason for the respondents to conclude that a regular D.E. was not possible.
6. Per contra, Shri Yadav, learned counsel for the respondents with the assistance of the counter reply, has submitted that a preliminary inquiry into the alleged offence was conducted through ACP/PG Cell North 16 OA No.1088/2021 District which reveals that the allegations levelled against the applicant are substantiated and there is prima facie sufficient evidence against him for taking requisite disciplinary action against him and accordingly, the applicant was placed under suspension vide order dated 24.7.2019 and has also referred to the contents of the impugned order passed by the disciplinary authority to state that the action was rightly taken and the same after following the due process of law by invoking the provisions of Article 311(2)(b) of the Constitution of India as the offence committed by the applicant is of a grave nature. So far as contention that approval of the Spl. Commissioner of Police was not obtained before issuing the dismissal order is concerned, the same is not correct that prerequisite approval of the competent authority was obtained before issuance of the said dismissal order as the same is in accordance with the standing orders and instructions on the subject and there is no violation whatsoever. The judgments cited by the applicant are not applicable to the facts of this case. Further the appellate authority rightly rejected the applicant on the ground of limitation as there is no bar or restriction in the judicial custody that the applicant could not make any 17 OA No.1088/2021 correspondence with the disciplinary authority with regard to his appeal.
6.1 Learned counsel for the respondents has reiterated that having regard to the gravity of the offence alleged against the applicant, the disciplinary authority has rightly dismissed the applicant from the service by invoking the provisions of Article 311(2)(b) of the Constitution of India vide impugned order dated 26.7.2019 and also the appeal of the applicant was rightly rejected by the appellate authority. He has placed on record a bunch of the following judgments in support of the claim of the respondents:-
(i) Union of India and others vs. Tulsiram Patel, reported in AIR 1985 1416;
(ii) Ved Mitter Gill vs. Administrative Chandigarh Appeal, reported in AIR 2015 SC 1796;
(iii) Chandigarh Administration and others vs. Gurdit Singh, Civil Appeal No.2498/1997, decided on 27.3.1997 by the Hon'ble Apex Court;
(iv) Union of India vs. Balbir Singh, reported in AIR 1998 SC 2043;
(v) Ct Mukesh Kumar Yadav vs. GNCT of Delhi and others in WP(C) No.6005/2017, decided on 20.9.2017 by the Hon'ble Delhi High Court;18 OA No.1088/2021
(vi) Manohar Lal vs. Commissioner of Police in WP(C) No.1309/2023, decided on 2.2.2023 by the Hon'ble Delhi High Court;
(vii) Sri. Vikas Verma and others vs. Union of India and others, in W.A. No.5651 of 2017 (S-DIC), decided on 15.6.2022 by the Hon'ble High Court of Karnataka at Bengaluru;
(viii) Union of India and others vs. Pintu Kumar, in MAT No.349/2019, decided on 26.9.2019 by the Hon'ble High Court of Calcutta;
(ix) J.N. Jha vs. Kendriya Vidyalaya Sangathan and others, reported in MANU/CA/0231/2006, decided by this Tribunal; and
(x) Bharat Mehta vs. Union of India and others, in OA No.635/2002, decided on 5.11.2004 by the Ahmedabad Bench of this Tribunal.
7. Before adverting to the case in hand, we record that it is not disputed that besides others, the aforesaid judgments at Sr. No.(i), (ii), (iii) & (v) of para 6.1 hereinabove and the aforesaid judgments relied upon by the respondents were considered by this Tribunal in the case of Ct. Sumit Sharma (supra). Further the judgments in the case of Ct. Sumit Sharma (supra), various judgments of Hon'ble Apex Court and also of the Hon'ble High Court in the case of Manohar Lal (supra) and Sri. Vikas Verma (supra), were again considered by 19 OA No.1088/2021 this Tribunal in the case of Sant Ram (supra), paras 11 to 14 of which reads as under:-
"11. After considering the relevant material on the subject, including circulars dated 28.12.1993 and 11.9.2007, and the case law, this Tribunal has considered the similar issue while deciding a batch of cases, OA No.1383/2020 and others, titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others, etc., vide common Order/Judgment dated 10.2.2022, of which paras 31, 32 and 45 to 47 read as under:-
"31. It is not that the issue of invoking the provisions of Article 311(2)(b) of the Constitution of India came for consideration before the Hon'ble Apex Court in the aforesaid cases or any other cases before other Court(s) and/or Tribunal(s) only but the same had attracted the attention of the respondents themselves as well and the respondents have themselves emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) of the Constitution of India lightly but only in those cases where it is not reasonably practicable to hold the inquiry. The same is evident from the circular dated 21.12.1993 (Annexure A/10 to OA 467/2020) of the respondents, which reads as under:-
"The Police Officers involved in the case of rape or dacoity or any such heinous offence have been dismissed straightway under Article 311(2)(b) despite the fact that criminal cases have been registered. Such dismissals without holding D.Es are illegal because in such cases D.E. can be conveniently held.20 OA No.1088/2021
It is, once again emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) lightly but only in those cases where it is not reasonably practicable to hold the enquiry. Whenever the disciplinary authority comes to the conclusion that it is not reasonably practicable to hold an enquiry he must record at length cogent and legally tenable reasons for coming to such conclusion. In the absence of valid reasons, duly reduced in writing, no such order of dismissal etc. with resort to Article 311(2)(b) can be sustainable in law."
32. The issue regarding application of the provisions of Article 311(2)(b) of the Constitution of India came before the Hon'ble Apex Court in various cases and the law stands settled by the Apex Court in the Constitution Bench decision in Tulsiram Patel (supra), the similar issue came before the Hon'ble Apex Court, the Hon'ble High Court(s) and the Tribunal(s) in many cases thereafter and after considering the issue at length, this Tribunal had made observation as in para 20 of the Order/Judgment dated 5.6.2007 in the case of Suresh Kumar (supra), noted in paragraph 16 hereinabove. The issue of termination/dismissal of the services of various employees attracted the attention of the respondents themselves. The respondents, after considering the provisions of Article 311(2)(b) of the Constitution of India and the judgment of the Hon'ble Apex Court in the case of Tulsiram Patel (supra) and the Order(s)/Judgment(s) passed by this Tribunal have issued another circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the 21 OA No.1088/2021 said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not practicable to hold an inquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and the disciplinary authority has no option but to resort to Article 311(2)(b) of the Constitution of India. The said circular dated 11.9.2007 reads as under:-
"CIRCULAR No. /2007 An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases and only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry.
Though some cases are still pending in the Hon'ble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2) (b) on assumptions and conjectures. No speaking orders were passed based on and supported by material/facts on record for dispensing with prior enquiry. Orders for dismissal were passed arbitrarily violating Article 22 OA No.1088/2021 311 and the principles of natural justice.
Henceforth, it has been decided that whenever any Disciplinary Authority intends to invoke Article 311 (2) (b) of the Constitution of India, he must keep in mind the judgment in the case of UOI v. Tulsi Ram Patel, AIR 1985 SC 1416. Only in cases where Disciplinary Authority is personally satisfied on the basis of material available on file that the case is of such a nature that it is not practicable to hold an enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in view of specific circumstances of the case it is not possible that PWs will depose against the defaulter and disciplinary authority has no option but to resort to Article 311 (2) (b) should such an action be taken. Prior to such an order, a PE has to be conducted and it is essential to bring on record all such facts. It has also been decided that before passing on order under Article 311 (2) (b) of the Constitution of India, Disciplinary Authority has to take prior concurrence of Spl.
CP/Admn.
This has the approval of C.P., Delhi.
Sd/-
(S.N. SRIVASTAVA) JT. COMMISSIONER OF POLICCE:
HDQRS,: DELHI""
"45. In the cases in hand, it is evident that in most of the cases preliminary inquiry had admittedly been done and regular enquiry had been dispensed with on the ground of possibility of witnesses 23 OA No.1088/2021 likely to be unduly harassed or pressurized by the delinquent(s). In all the case FIRs, chargesheet had been filed, list of witnesses had been filed, a few witnesses had been examined or after tiral the accused(s) had been acquitted. In a few cases, the reason for dispensing with the enquiry had been given that the material had come on record to prove the criminal acts of the applicants. The reason had been also of threat to discipline, integrity and morality of the entire police force. On perusal of the impugned orders, it is evident that either the authorities have passed the orders of dispensing with the enquiry on jumping to the conclusion that delinquency or guilt of the applicants as alleged in the case FIRs stood proved even without regular enquiry in the departmental proceedings or trial in the concerned learned court(s). In most of the cases, conclusion about delinquency and commission of the offence(s) by the applicant(s) had been arrived merely on the basis of the preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made to summon the witness(es) to lead the evidence against the applicant(s) or anything was found 24 OA No.1088/2021 that on regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) to lead evidence against the applicant(s). Rather the respondents have themselves filed the final challan(s) with a list of witness(es) before the concerned learned Court(s) and in a few cases, the accused(s) had been acquitted as well. In a few cases, witnesses have been examined before the concerned learned Court(s). Moreover, co- delinquent in the cases of Neeraj Kumar (supra) and Ramesh Kumar (supra), the similar impugned orders have been set aside by the Tribunal and the orders of the Tribunal have also attained finality.
46. It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.25 OA No.1088/2021
47. It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service.
However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove."
12. A catena of cases of the Orders/Judgments of the Hon'ble Supreme Court, Hon'ble High Court of Delhi and of this Tribunal on the issue as involved in the present case were also considered by the Division Bench (consisting one of us) while deciding the case of Ct. Sumit Sharma (supra).
13. Having regard to the above, we have carefully perused the impugned order(s), we find that nothing has been recorded in the impugned order(s) or shown to us that the applicant had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). From the impugned orders, it is also evident that neither any effort was made by the respondents to conduct an enquiry, nor there is any evidence that despite their best efforts, the respondents would not have been able to produce the witness(es) to lead evidence against the applicant. Further nothing is brought on record that witness(es) has/have been threatened by the applicant or they were too scared of the applicant to come forward in the regular enquiry proceedings. It is also found that the disciplinary authority while passing the impugned order has very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant, as no reason at all has been recorded in regard to the finding that the applicant is guilty of committing grave misconduct and was involved in the aforesaid offence. Even in such 26 OA No.1088/2021 cases, Section 11 of the Act ibid provides that inquiry into the alleged complaint has to be initiated against the applicant in accordance with the rules on the subject before arriving at any final conclusion in the matter.
14. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are not only in violation of the settled law but also of the respondents' own circular dated 11.9.2007. The reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, including in one referred to hereinabove."
8. So far as decision in the case of Pintu Kumar (supra) is concerned, in this case, the Hon'ble High Court of Calcutta has observed that the judgment of the learned trial court was based on technical grounds and the records revealed that DNA of the accused tallied with the DNA found on the underwear of the victim, her vaginal swabs, and one bed-sheet, pillow cover and one handkerchief which were recovered from the scene of Crime in Room No.201 of New Delhi Railway Station and further that the writ petitioner did not challenge the application of the special procedures provided under the Rule 161(99) and (iii) of the RPF Rules, 1987 before the Appellate Authority or the authority exercising powers of 27 OA No.1088/2021 revision, it was not appropriate at such a belated stage to set aside the order passed by the disciplinary authority. We, therefore, hold that the reasons so assigned by the Commanding Officer in the order dated 21st September, 2012, being passed on scrutiny and assessment of nine witnesses and twelve documents were sufficient for arriving at a conclusion for invoking the special procedures and the learned Single Judge ignored the same and arrived at his finding. However, the facts of the instance case are entirely different and as such the same does not help the respondents. Further in the case of J.N. Jha (supra), the coordinate Bench of this Tribunal gave a concrete finding in the following paras:-
"21. We have in the perspective of the present case and facts and circumstances perused not only the statements of the girl students but also found made both in the discreet enquiry as well as in the PE. Consistently the students without any influence or motive complained against applicant as to his indecent behaviour with them which tends not only to outrage their modesty but also unbecoming of a guru.
22. Insofar as the pre-condition of compliance, i.e., the pre-requisite of resort to Article 81(B) is concerned, on a PE with an opportunity to applicant of participation and furnishing of each and every material relied upon, the aforesaid has been discharged with in consonance with the dicta in Avinash Nagra as well as Babban Prasad Yadav cases (supra). In the memorandum issued to applicant charges, facts in support, enquiry report 28 OA No.1088/2021 etc. having been furnished the DA recorded reasons as to non-practicability of the enquiry for dispensing with it, which ensures the safety and security of the girl students and their humiliation at the hands of applicant on cross-examination. Accordingly, these grounds are not only apt in the circumstances but in consonance with the law declared. The contention put-forth that the written statement has not been considered, which was submitted by applicant in reply to show cause, we find that scores of certification of other boy students as well as girls as to innocence of applicant have been highlighted is the only defence which is an after thought as the statements of girl students cannot be doubted in any manner and loose its credibility. We do not find any motive as to deposition of these witnesses against applicant. Applicant is neither holding a prime position in politics nor is he such an important person that to oust him from service a conspiracy would have to be entered into and statements are fabricated.
23. In Hindu Society a girl with whom any sexual misbehavior had taken place with our samaskara a daughter would hesitate to describe the indecent misbehavior even to her mother. But once such misbehavior is reported and supported with proof by young girls would not only be credible but also its veracity cannot be doubted in any manner. The gestures and the lewd remarks made by applicant has kept him out of the ambit of definition of guru and rather by his acts he has proved himself to be an animal and a creature beyond the orderly society instead of teaching virtues of yoga and its importance in the guise of asanas he has misused his position as a teacher and acceded his jurisdiction by his depraved mind to attempt to molest the girl students and to arrive at a sadistic sexual pleasure out of it by his remarks, gestures with a view to feel their skin, certainly deserves no leniency. It is a famous saying that God helps those who help themselves, once a person by his immoral deeds as a guru has shown his weakness and has conducted himself of unbecoming of a teacher he has betrayed the faith deposed in the institution and the status of a teacher and tarnished the image of KVS, the institution which has progressed towards excellence. It is also a famous saying that 29 OA No.1088/2021 one dirty fish pollutes the entire pond, such a teacher does not deserve any sympathy and has to be fished out having polluted the stream of KVS and even if there is any discrepancy in the matter of following rules when principles of natural justice in its strict sense are not applicable in dispensation of enquiry in such circumstances the concept of any prejudice would have to be ruled out.
24. We do not find any false implication of applicant or any plot to frame him in the allegations. He has been held guilty of what he had actually committed, which is in accordance with rules.
25. The appellate order need not be a speaking order when the order passed by the DA is reasoned. However, by considering the contentions raised by applicant in his appeal the appellate order indicates application of mind and being reasoned is perfectly illegal."
9. However, factual position in the instant case is not comparable and, therefore, the same does not support the stand of the respondents. Further reliance placed by the respondents in the case of Bharat Mehta (supra), the coordinate Bench of this Tribunal had observed as under:-
"30. We note that the following conditions have to be satisfied for exercise of the power (1) Holding of a summary enquiry (2) Finding that employee was guilty of moral turpitude (3) Satisfaction of director that charged officer was prima facie guilty (4) Satisfaction of Director that it was not possible to hold the enquiry & (5) Recording of reasons in writing.
31. We find from the orders of Appellate Authority that a preliminary enquiry was held in which statements of victim girl, her father, fellow students was recorded and the education officer came to the 30 OA No.1088/2021 conclusion that the applicant was prima facie guilty. With this the Commissioner KVS has concurred.
32. Commissioner KVS has further held that it will not be proper to hold the enquiry. The applicant in his appeal has raised the question that the victim girl in any case will be appearing as a police witness. This aspect is not specifically commented in the Appellate Authority's order. But we note that another girl student had suddenly appeared at the time of incident & she was examined. Another girl student had come forward to complaint of similar harassment in the past. Thus their interest had also to be safeguarded.
33. We accordingly find to fault with the orders terminating the services and the order of Appellate Authority upholding the same."
However, in the present case having regard to the factual matrix, it can be inferred that the said decision in the case of Bharat Mehta (supra) is not applicable.
10. In view of the above, we are of the view that similar issue as in the present case had been considered by this Tribunal in the case of Sant Ram (supra) which was decided by this Tribunal keeping in view not only the decision in Ct. Sumit Sharma (supra) of this Tribunal but various other binding precedents on the issue.
11. We have carefully perused the impugned order(s), we find that nothing has been recorded in the impugned order(s) or shown to us that the applicant had ever threatened or harassed any of the witness(es) and/or the 31 OA No.1088/2021 prospective witness(es). From the impugned orders, it is evidently clear that neither any effort was made by the respondents to conduct the enquiry nor there is any evidence that despite their best efforts, the respondents would not have been able to produce the witness(es) to lead evidence against the applicant as it is evident that the said FIR was registered on 23.7.2019 and the impugned dismissal order was passed on 26.7.2019, i.e., only after three days of lodging of the said FIR. Further nothing is brought on record that witness(es) has/have been threatened by the applicant or the witnesses were too scared of the applicant to come forward in the regular enquiry proceedings. It is also found that the disciplinary authority while passing the impugned order has very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant. Further a possibility that witness(es) may not come forward to depose against the applicant is also not based on any support. Moreover, the applicant has faced the trial in the case FIR in which witnesses were produced and the applicant stands acquitted.
32 OA No.1088/2021
12. Having regard to the above, we are of the view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circular dated 11.9.2007. The reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Court(s) and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove.
13. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 26.7.2019 (Annexure A-1) and dated 6.4.2021 (Annexure A-2) passed by the disciplinary and appellate authorities respectively are set aside;
(ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject;
(iii) The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order; and 33 OA No.1088/2021
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
14. However, in the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/