Central Administrative Tribunal - Delhi
Jatin Kumar vs Gnctd on 16 August, 2023
1 O.A. No.610/2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.610 of 2023
Orders reserved on : 08.08.2023
Orders pronounced on : 16.08.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Constable (Exe.) Jatin Kumar
(PIS No. 28092422), Belt No. 1807/N
S/o Sh. Amarjeet Singh,
R/o M-3, Type-I, New Police Line,
Kingsway Camp, P.S.: Mukherjee Nagar, Delhi-110009.
Aged about 37 years
Last Posting at : P.S. :- Timarpur, Delhi
...Applicant
(By Advocate: Shri Sourabh Ahuja)
VERSUS
1. GNCT of Delhi
Through Chief Secretary,
Delhi Secretariat, Players Building,
I.P. Estate, New Delhi-2.
2. Joint Commissioner of Police (Delhi Police)
Central Range, Delhi
Through Commissioner of Police (Delhi Police)
Jai Singh Road near Bangla Sahib gurudwara, Delhi
3. Additional Deputy Commissioner of Police,
North District, Delhi.
Through Commissioner of Police (Delhi Police)
Jai Singh Road near Bangla Sahib gurudwara,
Delhi
...Respondents
(By Advocate: Shri Amit Yadav)
2 O.A. No.610/2023
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 prayed for the following reliefs:-
"(a) Declare and hold the action of the respondents in invoking Article 311 (2) (b) of the Constitution of India qua the applicant is illegal, arbitrary and whimsical. And
(b) Quash and set aside Orders dated 27.07.2021 and 13.01.2023, whereby the Applicant was dismissed from service by invoking Article 311 (2) (b) of the Constitution of India and his suspension period from (22.05.2021 to 27.07.2021) was treated as period not spent on duty for all intents and purposes. And
(c) Direct the respondents to reinstate the Applicant back in service and accord all the consequential benefits arising there from viz.
back wages, Pay and allowances, Promotion/Seniority, fixation of pay, along with interest @ 18% p.a. on the arrears etc. And
(d) Direct the respondents to treat the suspension period of the applicant (22.05.2021 to 27.07.2021 as period spent on duty for all intents and purposes with all consequential benefits etc. And
(e) Award cost in favour of the Applicant and against the respondents. And/or
(f) Pass any further order, which this Hon'ble Tribunal may deem fit, just equitable in the facts and circumstances of the case."3 O.A. No.610/2023
2. Brief facts of the case are that the applicant, who was appointed as Constable (Exe.) in Delhi Police in the year 2009, was alleged to be involved in case FIR no.296/2021 registered under Sections 393/34 of IPC at Police Station Wazirabad on 21.5.2021, on the allegation that on 21.5.2021 one Shri Ashok Kumar s/o Shri Ram Chander Gupta, R/o House No.89, Gali No.3/2, Jharoda Part-II, Delhi came to PS Wazirabad and informed that on 12.5.2021 at about 9.40 PM, when he along with his brother was coming to his home in his Duster Car from his shop and reached at CC Road, opposite ground No.08, Sant Nirankari Mandal, Hardev Nagar Delhi, one Accent car overtook his car and they forcibly stopped him. Two boys who were on a motorcycle came from left side and started knocking his car. When his brother opened the window of the car, they tried to rob his bag containing Rs.Two Lacs. Two boys, who were in Accent car also came to him and threatened him to hand over the bag otherwise they will kill him. When he tried to stop his car, two more boys came there on a blue Scooty and they tried to stop his car. In the meantime, one Police Constable who was in police uniform came there. On seeing the police, all of them ran away from the spot.
4 O.A. No.610/20232.1 During the course of investigation, the applicant along with other persons were arrested and on the basis of further investigation, the applicant was placed under suspension w.e.f. 22.5.2021. A preliminary inquiry was also ordered into the matter under Rule 15(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 vide order dated 12.6.2021 and on the basis of preliminary enquiry report, it was concluded that the applicant had involved himself in above heinous crime and during investigation, the Section 393 of IPC was replaced with Section 395/120-B of IPC, which is a grave offence and serious misconduct on the part of the applicant. On the basis of the facts surfaced during the preliminary enquiry, it has been observed that the facts and circumstances of the case are so serious that it will not be reasonably practicable to conduct a regular departmental enquiry against the applicant, as there is a reasonable belief that the witnesses may not come forward to depose against him owing to his influential position and that it also calls for great courage to depose against desperate police personnel who can use his official position to influence the statement/deposition of the witnesses. It is also highly probable that during the entire process of departmental 5 O.A. No.610/2023 proceedings, the complainant and witnesses would be put under constant of threat to their person and property from the defaulter. Under these circumstances, the disciplinary authority was personally satisfied that conducting a regular D.E. against the applicant is not practicably possible and accordingly the disciplinary authority concluded that the applicant, being a public servant and serving in a disciplined force with certain powers in order to maintain law and order with utmost honestly, has betrayed his duty and responsibility, which has not only cast a stigma on himself but on the respondents' department and the same cannot be tolerated under any circumstances as he deliberately involved himself in a company of robbers and committed the crime and that if exemplary punishment is not awarded to such police personnel, it will encourage other members of the force to follow suit and flout disciplinary norms. After completing the preliminary inquiry, in compliance of circular issued by the PHQ in the matter dated 11.9.2007 and 18.4.2018, the said inquiry report was forwarded to the competent authority seeking his concurrence to dismiss the applicant by invoking the provisions of Article 311(2)(b) of the Constitution of India, which was approved by the 6 O.A. No.610/2023 competent authority. Keeping in view the sensitivity of the matter, the disciplinary authority vide impugned order dated 27.7.2021 (Annexure A-1) dismissed the applicant with immediate effect by invoking the provisions of Article 311(2)(b) of the Constitution of India. Aggrieved by the aforesaid order of the disciplinary authority, the applicant has submitted his appeal to the appellate authority on 25.8.2021.
2.2 In the meantime, the learned Trial Court vide order/judgment dated 7.6.2022, acquitted the applicant and other co-accused on the ground that there is not even an iota of evidence to establish that the accused persons conspired to commit the offence of dacoity and pursuant to the said conspiracy, attempted to committed to commit robbery as the prosecution has failed to discharge its onus of proving its case beyond any reasonable doubt. Thus, the accused persons are entitled to benefit of doubt. 2.3 However, the appellate authority has rejected the appeal of the applicant vide impugned order dated 13.1.2023 (Annexure A/2). Hence, this OA. 7 O.A. No.610/2023
3. Pursuant to notice, the respondents have filed their counter reply opposing the claim of the applicant. Applicant has also filed his rejoinder in which besides reiterating his contentions as mentioned in the OA has refuted the averments of the counter reply filed by the respondents.
4. During the course of hearing, Shri Ahuja, learned counsel for the applicant has submitted that the impugned orders are passed in violation of the respondents' own circular dated 21.12.1993 (Annexure A/11), which specifically provides 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 sustained in law.", as on perusal of the impugned orders passed by the disciplinary and appellate authority, it is evident that the same are not 8 O.A. No.610/2023 based on any legally tenable reasons rather the same are based on surmises and conjectures as only seriousness and gravity of the alleged charges have been taken into consideration by the respondents for invoking the provisions of Article 311(2)(b) of the Constitution of India. Learned counsel for the applicant has further submitted that when a preliminary enquiry can be held then the decision to not hold the regular departmental enquiry having regard to the gravity of the charges levelled against the applicant in the said criminal case cannot be countenanced in the eyes of law. In support of his contention, learned counsel for the applicant has placed reliance on the decision of this Tribunal in the case of Tarsem Singh vs. State of Punjab and ors., reported in (2006) 13 SCC 581.
4.1 Shri Ahuja, learned counsel for the applicant has further submitted that the respondents while inflicting the penalty of dismissal from service upon the applicant have relied upon a preliminary enquiry report, a copy of which has not been supplied to the applicant, meaning thereby, the reliance has been placed on an extraneous material which vitiate the impugned orders. In support of this 9 O.A. No.610/2023 contention, reliance has been placed on the decision of the Hon'ble High Court of Allahabad in Lokender Pal Singh vs. State of U.P. (Writ No.2508/2018, decided on 30.8.2019, wherein it has been held that non-supply of preliminary enquiry report to the delinquent official resulted in violation of principles of natural justice and as such the procedure adopted while passing the impugned orders is illegal and arbitrary.
4.2 Learned counsel has further submitted that the applicant was falsely implicated in the aforesaid criminal case and there is no involvement of the applicant in any illegal activities and dispensation of departmental inquiry has caused a serious miscarriage of justice in absence of any judicial pronouncement of established guilt. In support of this contention, learned counsel for the applicant has drawn our attention to the order/judgment passed by the learned Trial Court in the said criminal case, which is at pages 84 to 95 of the paperbook. 4.3 Learned counsel for the applicant has also submitted that while dispensing with the regular departmental enquiry, the respondents had taken into consideration the gravity of the charge levelled against the applicant, which 10 O.A. No.610/2023 is not permissible in law as held by the Hon'ble Jammu and Kashmir High Court in the case of Moqbool vs. State of J&K (WP No.1386/1993) decided on 24.7.1997, wherein it has been held that the gravity and seriousness of the charge do not furnish basis for doing away with the constitutional guarantee of enquiry for removing the delinquent from service.
4.4 Learned counsel for the applicant has further submitted that the observation of the respondents in the impugned orders that it is highly probable that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant threat to their person and property by the applicant, is based on surmises and conjecture, as there is nothing on record which suggests that the applicant directly/ indirectly had ever threatened or harassed any of the witness(es) and/or the prospective witness(es) and therefore, the impugned orders are not sustainable in the eyes of law. Moreover, the disciplinary authority did not even make the slightest possible effort to initiate a departmental enquiry against the applicant. In support of this contention, learned counsel has placed reliance of the 11 O.A. No.610/2023 decision of the Hon'ble Supreme Court in the case of Satyavir Singh vs. Union of India, reported in (1985) 4 SCC 252, wherein it has been held that the inquiry cannot be lightly dispensed with on the ipsi dixit of the disciplinary authority and can be only when it is not reasonably practicable to proceed with the disciplinary inquiry. On mere presumptions and surmises as done by the disciplinary authority would not be compliance of the extant rules on the subject. Learned counsel has also submitted that the Hon'ble Apex Court in the case of Jaswant Singh vs. State of Punjab, reported in 1991 (1) SCC 362 in which the Apex Court has held that where the subjective satisfaction for dispensing with the inquiry was not supported by an independent material, dismissal without holding the inquiry would be illegal. 4.5 Lastly learned counsel for the applicant has submitted that the case of the applicant is squarely covered by a catena of decisions of this Tribunal on the issue involved in the present case, some of which are as under:-
I. Kirpal Singh vs. Commissioner of Police and others in OA No.2592/2014 and a batch, 12 O.A. No.610/2023 decided vide common Order/Judgment dated 13.4.2018, which has been upheld by the Hon'ble High Court of Delhi vide Order/Judgment dated 16.5.2019 in Writ Petition (C) No.11694/2018;
II. Ashwani Kumar and others vs. Commissioner of Police and others in OA No.217/2016 decided on 7.10.2016, which has been upheld by the Hon'ble High Court of Delhi vide Order/Judgment dated 11.12.2019;
III. Idreesh Khan vs. Commissioner of Police and others in OA No.2488/2019 decided on 18.10.2022; and IV. Sanjay Kumar vs. Govt. of NCTD and others in OA No.1909/2018 decided on 28.4.2023; V. Ex. Ct. Naeem Khan vs. Govt. of NCT of Delhi and others, decided on 21.4.2023.
5. Per contra, Shri Yadav, learned counsel for the respondents with the assistance of the counter reply has submitted that the preliminary enquiry conducted into the matter revealed that the act and conduct of the applicant warranted his dismissal from service as he had indulged himself in such an abominable act which has tarnished the image of Delhi Police and such person cannot be allowed to remain in the department anymore. Learned 13 O.A. No.610/2023 counsel has also submitted that although the complainant did not identify him during the course of judicial TIP proceedings, however, there were material evidences in the shape of CDR & CAF of mobile phone of the applicant and co-accused revealing their presence at the spot of occurrence at the time of offence and other supportive testimonies, including disclosure statement of the applicant clearly reflects his desperate character and as such there is no violation of any law laid down by the Hon'ble Courts. Learned counsel for the respondents has further submitted that after obtaining the approval of the competent authority, the disciplinary authority rightly dismissed the applicant by invoking the provisions of Article 311(2) (b) of the Constitution of India and the appeal was also rightly rejected by the appellate authority, as the applicant was acquitted from the said criminal case by the learned Trial court on the basis of benefits of doubt and the applicant was not honorably acquitted. Further the facts of the cases relied upon by the applicant, as quoted above, are entirely different from the facts of the present case and therefore, the same are not relevant in the present case.
14 O.A. No.610/20235.1 Learned counsel for the respondents has further submitted that as per Rule 15(3) of the Rules ibid, the preliminary enquiry shall not form part of the formal departmental record and as such the suspected police officer may or may not be present at the time of preliminary enquiry/fact finding enquiry. Hence, there is no violation of principle of natural justice by the respondents in the present case and the penalty awarded to the applicant is neither illegal nor arbitrary, in fact, the same is based on gravity of misconduct of the applicant. The judgment of the Hon'ble High Court of Allahabad in the case of Lokender Pal Singh (supra) does not attract in the instant case. Learned counsel for the respondents has further submitted that the impugned orders are not based on surmises or conjecture but the same are based on gravity of misconduct and official position of the applicant.
5.2 Learned counsel for the respondents has also submitted that learned Trial court has acquitted the applicant on the ground that the witnesses turned hostile in the criminal case. Learned counsel has emphasized that the scrutiny of evidence in a criminal case by 15 O.A. No.610/2023 judiciary is different in nature than the assessment of facts done to find suitability of a person to service as a Police Officer, who is vested with a wide range of powers under various laws. If such a person is reinstated, such persons can very easily misuse and abuse his position for the personal gain and not in the interest of public, which shall tend to erode the faith in Police Department and as such the disciplinary authority was satisfied that the act and grave misconduct of the applicant attracts the provisions of Article 311(2)(b) of the Constitution of India. 5.3 Learned counsel for the respondents has also made emphasis on the observations ini the disciplinary authority's order that if a departmental enquiry is initiated against the police official to establish his criminal bent, the witnesses and/or complainant will not co-operate and make contradictory statements and further it also required great courage to depose against such desperate Police Officer, who may use his all possible influence to hamper proceedings. The possibility of victim being pressurized and threatened also cannot be ruled out. Learned counsel for the respondents has placed reliance on the decision of the Hon'ble High Court of Delhi in WP(C) No.1309/2023, 16 O.A. No.610/2023 titled Manohar Lal vs. Commissioner of Police, decided on 2.2.2023 in support of the claim of the respondents.
6. In rebuttal, Shri Ahuja, learned counsel for the applicant while reiterating his above submissions has submitted that the applicant being a Constable and lowest in the rank cannot be said to be in a position to influence or threaten the witness if the regular department enquiry is conducted against him rather it is admitted fact that complainant and witness(es) were examined by the learned Trial Court while deciding the said criminal case and as such it is not acceptable that they would not have come forward in the departmental enquiry due to influence or threat of the applicant. In support of this contention, learned counsel for the applicant has placed reliance on the decision of the Hon'ble Supreme Court in the case of Union of India and others vs. Ram Bahadur Yadav, reported in (2022) 1 SCC 389. Shri Ahuja, learned counsel for the applicant has also submitted that judgment relied of the Hon'ble High Court of Delhi in the case of Manohar Lal (supra) relied upon by the learned counsel for the respondents has been considered by this Tribunal in the case of Sanjay Kumar (supra).
17 O.A. No.610/2023
7. We have considered the submissions made by the learned counsels for the parties and have carefully perused the pleadings on record as well as the judgments relied upon by them.
8. Having regard to the factual matrix of the case in hand, we are of the considered view that the issue as involved in the present case has already been decided by a Division Bench of this Tribunal, consisting of one of us, namely, Shri R.N. Singh, Member (J), by a common order/judgment dated 10.2.2022 in OA No.1383/2020 and a batch, in the case of Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others, paras 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 18 O.A. No.610/2023 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 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.19 O.A. No.610/2023
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 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."20 O.A. No.610/2023
9. The said judgment of the Hon'ble High Court of Delhi dated 2.2.2023 in the case of Manohar Lal (supra) has been considered by this Tribunal while passing the Order/Judgment in the case of Sanjay Kumar (supra), the relevant paras of the same read as under:-
"14. We have also gone through the judgment dated 2.2.2023 of the Hon'ble High Court of Delhi in the case of Manohar Lal (supra). In the said case, challenge was made to the order dated 29.11.2022 passed by this Tribunal in OA No.744/2020, whereby the Tribunal dismissed the said OA filed by the petitioner challenging the action of the respondents in dismissing him from service under Article 311(2)(b) of the Constitution of India. In para 15 of the judgment dated 2.2.2023, the Hon'ble High Court has recorded the reasons for dismissing the said Writ Petition. Para 15 of the judgment of the Hon'ble High Court of 2.2.2023 reads as under:-
"15. We are of the view that the learned Tribunal is justified in dismissing the petition for the reasons stated as under:
(i) The charges against the petitioner are of very serious nature.
(ii) The allegations which had already been reproduced above is that the petitioner, who was holding the position of constable along with two Sub-Inspectors posted in the Special Cell of Delhi Police forcibly entered into a godown by breaking open the room where sandalwood logs were kept and loaded approx. 1355 Kg. of sandalwood logs into a tempo and took away the SIM card from the mobile phone of Guard Maniram.21 O.A. No.610/2023
(iii) That apart during the preliminary inquiry it transpired that the complainant / witness of the case was severely traumatised by this egregious act of criminals, especially the police personnel involved therein due to their close association with hardened criminals.
(iv) A charge sheet has been filed against the petitioner in connection with FIR No.390/2017 registered at PS Bhalswa Dairy, showing a prima facie case against the petitioner.
(v) In the appeal filed by the petitioner, he has not denied that he is not involved in the alleged offence.
(vi) Insofar as the plea of the learned counsel for the petitioner that there is another witness, i.e. the nephew of the guard namely Mohit is concerned, we note that the FIR records that the guard Maniram and his nephew Mohit were cooking food when he heard a knock at the door, pursuant to which Maniram opened the door to see a person in a police uniform.
Further, it records that at 06:45 A.M. on the next day when the contractor had reached the premises, the guard's nephew Mohit arrived and stated that he had slept on the terrace of another godown, on being scared of the men who had come wearing police uniform. Suffice to state, the nephew of the guard being a child of 11 years upon being scared of the men in police uniform, had left the godown and went to the terrace of another godown. If that is indeed the case, it is not known as to how much weight his deposition may carry. That apart, there may arise an apprehension that the charged persons including the petitioner being police officer who are well versed in criminal proceedings, may try to 22 O.A. No.610/2023 intimidate or influence this witness as well, more so, when he is a minor."
15. However, 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) and further there is no evidence or document to indicate that any effort was made by the respondents to summon the witness(es) to lead the evidence. It is also not the case of the respondents that resorting to regular enquiry, the relation with foreign countries was likely to be adversely affected. From the impugned orders, it is evidently clear that neither any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their best efforts, the respondents had not been able to produce the witness(es) to lead evidence against the applicant and further nothing is brought on record that witness(es) has/have been threatened by the applicant or they are 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 and there being a possibility that witness(es) may not come forward to depose against the applicant. Further the respondents have not been able to show any documentary evidence that any approval had been taken by the disciplinary authority from the competent authority for invoking the provisions of Article 311 (2) (b) of the Constitution of India in the instant case. This fact has also not been considered by the Appellate Authority while passing the impugned order.
16. In view of the aforesaid, the reliance placed by the respondents on the decision of the Hon'ble High Court of Delhi in Manohar Lal (supra) is of no help to them, as in the said case during the preliminary inquiry, the complainant/witness of the case was severely traumatised by the egregious act of criminals, especially the police personnel 23 O.A. No.610/2023 involved therein due to their close association with hardened criminals and in the appeal filed by the petitioner therein, he has not denied that he is not involved in the alleged offence of robbery-cum- burglary, which is not the case in hand."
10. The Hon'ble Supreme Court in the case of Ram Bahadur Yadav (supra) in paras 16 and 17 observed as under:-
"16. The respondent was only a Head Constable during the relevant point of time and he was not in powerful position, so as to say that he would have influenced or threatened the witnesses, had the inquiry was conducted. The very fact that they have conducted confidential inquiry, falsifies the stand of the appellants that it was not reasonably practicable to hold an inquiry. The words "not reasonably practicable" as used in the Rule, are to be understood in a manner that in a given situation, ordinary and prudent man should come to conclusion that in such circumstances, it is not practicable. In the present case, there appears no valid reason to dispense with inquiry and to invoke Rule 161 of the Rules. We are in agreement with the view taken by the High Court. In the case of Sahadeo Singh v. Union of India, (2003) 9 SCC (L&S) 1010, this Court has held that in the facts and circumstances of the said case, it was not reasonably practicable to hold a fair inquiry, as such, it was held to be justifiable on the facts of the case. Whether it is practicable or not to hold an inquiry, is a matter to be considered with reference to the facts of each case and nature of charge, etc.
17. In the judgment in the case of Tarsem Singh v. State of Punjab, (2006) 13 SCC 581, this Court has categorically held that when the Authority is of the opinion that it is not reasonably 24 O.A. No.610/2023 practicable to hold inquiry, such finding shall be recorded on the subjective satisfaction by the authority, and same must be based on the objective criteria. In the aforesaid case, it is further held that reasons for dispensing with the inquiry must be supported by material."
11. Keeping in view the above, we have perused the impugned orders, 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) and further there is no evidence or document to indicate that in view of the facts and circumstances of the case, any efforts was made by them to summon the witness(es) to lead the evidence. From the impugned orders, it is evidently clear that neither any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their best efforts, the respondents had not been able to produce the witness(es) to lead evidence against the applicant and 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 25 O.A. No.610/2023 casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant and there is a possibility that witness(es) may not come forward to depose against the applicant despite the facts that the relevant witnesses had participated in the criminal trail initiated pursuant to the said FIR case. Besides, even before the conclusion of trail, the respondents have reached to the conclusion of applicant to have committed the grave offence and misconduct.
12. Having regard to the above, we find that such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid instructions/ dated 21.12.1993. 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 are referred to herein above.
13. In the above facts and circumstances of the present case, we are of the considered view that this case is squarely covered by decision of this Tribunal in common Order/Judgment dated 10.2.2022 in Sumit Sharma 26 O.A. No.610/2023 (supra) and a catena of similar cases were decided by this Tribunal on the basis of the decision of this Tribunal in Sumit Sharma. Therefore, the present OA deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 27.07.2021 (Annexure A/1) and dated 13.01.2013 (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
(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/