Central Administrative Tribunal - Delhi
Bharat Singh vs Comm. Of Police on 15 July, 2022
1 O.A. No.3700/2016
Central Administrative Tribunal
Principal Bench,, New Delhi
O.A. No.3700
3700 of 2016
M.A.No. 1505 of 2022
Orders reserved on : 07.07.2022
Orders pronounced on : 15.7.2022
.2022
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Shri Tarun Shridhar
Shridhar, Member (A)
Bharat Singh age : 33 years
Ex. Constable (Executive)
Delhi Police
R/o F--11,
11, Jatav Basti, Mahipal Pur Village,
New Delhi.
...Applicant
(through Advocate Shri Sachin Chauhan
Chauhan)
Versus
1. Government of NCT of Delhi
(Through Lt. Governor of Delhi)
Raj Niwas, Raj Niwas Marg,
Delhi
Delhi-110054.
2. Commissioner of Police,
Delhi Police, Police Headquarters,
I.T.O., New Delhi.
3. Joint Commissioner of Police
(Eastern Range)
Delhi Police, Police Headquarters,
I.T.O., New Delhi.
4. Deputy Commissioner of Police,
Delhi Police, East District, Delhi.
... Respondents
(through Advocate Shri Sameer Sharma
Sharma)
2 O.A. No.3700/2016
ORDER
Hon'ble Mr. R.N. Singh, Member (J) :
In the instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the Order dated 21.10.2015 (Annexure A-1) passed by the Disciplinary Authority dismissing him from service by invoking their power under Article 311(2)(b) of the Constitution of India and also the order dated 6.4.2016 (Annexure A/2) passed by the Appellate Authority rejecting his appeal preferred against the aforesaid order of the Disciplinary Authority. The applicant has prayed for setting aside of the impugned order(s) passed by the Disciplinary and Appellate Authorities and has also prayed for his reinstatement in service from the date from which he has been dismissed, i.e., 10.9.2015.
2. Brief facts leading to filing of the instant OA are that the applicant was appointed/enrolled as a Constable (Executive) in Delhi Police on 7.4.2009. While posted at PS Mayur VIhar as a Beat Officer in the area of Radhu Place Jhuggis, a complaint dated 16.9.2015 was lodged against the applicant by one Mohd. Aslam, who is known 3 O.A. No.3700/2016 criminal and BC of the area stating therein that the applicant had asked him to arrange a party on the ground that Mohd. Aslam had purchased a new bike and the applicant took said Mohd. Aslam on his bike from East Guru Angad Nagar bus stop, where he was standing, to park near CBSE building and both consumed liquor in the park. Some altercation took place between them and the applicant took out his pistol. Mohd. Aslam, in order to save himself, caught the hand of the applicant and because of this reason, a shot which was fired by the applicant went in air and while running from the spot, the applicant fired second bullet which hit in the left leg of Mohd. Aslam. On the basis of above said false and frivolous allegations, FIR No.0966/2015 under Section 326 IPC & 25/27/59 of Arms Act was registered against the applicant and he was arrested on 18.9.2015 and sent to the judicial custody. Later on, the offence under Section 307 IPC was also added. Vide Order dated 22.9.2015, the applicant was placed under suspension w.e.f. 18.9.2015. After holding a preliminary enquiry, the Disciplinary Authority vide impugned order dated 21.10.2015 dismissed the applicant from service by resorting and using the extra-ordinary jurisdiction under Article 4 O.A. No.3700/2016 311(2)(b) of the Constitution of India. On 21.11.2015, the applicant was granted bail. Appeal dated 19.11.2015 preferred by the applicant against the aforesaid order of the Disciplinary Authority was rejected by the Appellate Authority vide order dated 6.4.2016. Hence, this OA.
3. Pursuant to the notice, the respondents have filed their counter reply. The applicant has filed his rejoinder.
4. During the hearing, at the outset, Shri Chauhan, learned counsel for the applicant has submitted that the instant case is squarely covered by the common Order/Judgment dated 10.2.2022 passed in the case of Ct. Sumit Sharm vs. Govt. of NCT of Delhi and others in OA 1383/2020 and a batch of cases, which was implemented by the respondents vide order dated 29.3.2022. To support his contention that the similar contentions had already been dealt with by this Tribunal in the aforesaid common Order/Judgment dated 10.2.2022, he has drawn our attention to the grounds taken for passing the aforesaid impugned order(s) will be evident from the impugned disciplinary authority's order itself wherein it is recorded that a preliminary enquiry into the matter has been got conducted which reveal that 5 O.A. No.3700/2016 injured Mohd. Aslam, who is a B.C. of Preet Vihar and involved in seven criminal cases was known to the applicant. He was arrested in case FIR no.966/15 dated 17.9.2015 under Section 326/307 IPC & 25/27/54/59 Arms Act, PS Madhu Vihar on 18.9.2015 and he is still running in judicial custody and the EO further concluded following facts in the preliminary enquiry report:-
(i) The applicant has committed the heinous crime intentionally and with malafide intention to achieve the illegal target by unlawful means.
(ii) The acts of the applicant show his desperate conduct, criminal tendency and unlawful attitude towards his official duties which is highly abhorrent on the part of a member of disciplined force.
(iii) The primary duty of every police official is to protect the life and property of the citizen of the country but the misconduct of the applicant has ot only tarnished the image of Delhi Police but also badly shattered the faith of common man in Police Force.
(iv) The criminal and shameful act on the part of the applicant has eroded the faith of ordinary person in Delhi Police which is likely to cause an irreparable loss to the functioning and credibility of Delhi Police.
(v) It would not be reasonably practicable to conduct a regular departmental enquiry against the applicant in view of threat, inducement, and intimidation, affiliation with active and desperate criminals. The witnesses will not come forward to depose against the applicant during departmental enquiry due to the fear of their life and property.
(vi) The misconduct of the applicant shows his criminal tendency, desperate criminal attitude and deserves for exemplary punishment.6 O.A. No.3700/2016
(vii) The misconduct, criminal involvements in heinous criminal case of the applicant and his involvement with active and desperate criminals of the area established that he is not a fit person for the disciplined force. Moreover his services are no more required in Delhi Police and needs to be dismissed in the interest of public at large and further to save the image and dignity of Delhi Police.
4.1 Counsel for the applicant has argued that disciplinary and appellate authorities have not correctly applied their mind to the facts of the case and has ignored various contradictions and discrepancies in the statement of alleged injured as well as inherent improbability in the alleged version of incident. He has further submitted that Govt. of India as well as the respondents themselves through its various circulars provide that the disciplinary authority should not take resort of Article 311(2)(b) of the Constitution of India lightly and should take action only in rarest of rare case where it is not reasonably practicable to hold departmental enquiry and that a Govt. servant is entitled to have an opportunity to defend himself when there are allegations against him and only in exceptional circumstances law permits the department to dispense with the enquiry and other legal formalities, which is not case of the applicant.
7 O.A. No.3700/20164.2 Learned counsel for the applicant has further submitted that the disciplinary and appellate authorities have totally ignored the fact that the said Mohd. Aslam, who is known BC of the area and involved in about seven criminal cases, out of vindictiveness and vengeance, has falsely implicated the applicant in above case. 4.3 Learned counsel for the applicant has further argued that the disciplinary and appellate authorities have ignored the circular dated 21.12.1993, which categorically stipulated that dismissal of the Police Officers involved in the cases of Rape and Dacoity and any such heinous offences by resorting to the provisions of Article 311(2)(b) of the Constitution of India is illegal and such dismissal without conducting departmental enquiry is illegal because in such cases departmental enquiry can be conveniently held.
4.4 Lastly, learned counsel for the applicant has submitted that the learned Court of Naveen Gupta, Addl. Sessions Judge -05, Shahdara District, Karkardooma Courts, Delhi vide judgment dated 17.12.2021 acquitted the applicant as the learned Trial Court held that the prosecution has failed to prove the guilt of accused 8 O.A. No.3700/2016 (applicant) beyond reasonable doubt, a copy of which is placed on record by the learned counsel for the applicant as Annexure-2 of MA 1505/2022.
5. Per contra, learned counsel for the respondents with the assistance of the counter reply, has submitted that on the aforesaid grounds, 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 and that too, after holding a preliminary inquiry in the matter in the interest of justice and the appeal of the applicant was rightly rejected by the appellate authority.
6. On our query to the learned counsel for the respondents that as to why the instant case be not decided on the basis of the common Order/Judgment passed by this Tribunal (authored by one of us, namely Shri R.N. Singh, Member (J)), while deciding a batch of cases titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi (supra) as the similar kind of grounds, as taken by the Disciplinary Authority for invoking the provisions of Article 311(2)(b) of the Constitution of India in the case of the 9 O.A. No.3700/2016 applicant, have already been dealt with by this Tribunal, para 45 to 48 of which read as under:-
"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 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 10 O.A. No.3700/2016 to summon the witness(es) to lead the evidence against the applicant(s) or anything was found 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.
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 11 O.A. No.3700/2016 taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove.
48. In view of the aforesaid, we are of the considered view that the aforesaid OAs deserve to be partly allowed and the same are partly allowed with the following directions:-
(i) Order(s) passed by the disciplinary and appellate authorities in the aforesaid OAs are set aside with all consequential benefits to the applicants in accordance with the relevant rules and law on the subject; and
(ii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant(s) in accordance with the law."
and that the aforesaid Common Order/Judgment has attained finality as the respondents therein have implemented the same by passing the order dated 29.3.2022, a copy of which is placed on record by the learned counsel for the applicant, the learned counsel for the respondents has not been able to give any cogent reason.
7. Having regard to the aforesaid facts and circumstances of the present case, we are of the considered view that this case is squarely covered by the common Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the 12 O.A. No.3700/2016 present OA deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 21.10.2015 (Annexure A-1) and dated 06.04.2016 (Annexure A-2) passed by the disciplinary and appellate authorities respectively are set aside with all consequential benefits to the applicant in accordance with the relevant rules and law on the subject;
(ii) The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order; and
(iii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
8. However, in the facts and circumstances, there shall be no order as to costs.
9. Pending MA 1505/2022 shall stand disposed of accordingly.
(Tarun Shridhar) (R.N. Singh) Member (A) Member (J) /ravi/