Central Administrative Tribunal - Delhi
Dushyant Kumar vs Gnctd on 13 December, 2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1019 of 2023
Orders reserved on : 04.12.2023
Orders pronounced on : 13.12.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Dushyant Kumar,
Age 52 year
S/o Sh. Gopeshwer Dayal,
R/o - VPO - Tajpur,
District - Bulandseher, UP 203411.
Group : 'C'
...Applicant
(By Advocate: Shri Sachin Chauhan)
VERSUS
1. Govt. of NCTD
Through the Chief Secretary,
Govt. of NCTD,
A-Wing, 5th Floor, Delhi Secretariat,
New Delhi-110003.
2. The Commissioner of Police,
Delhi Police,
Jai Singh Road,
New Delhi-110001.
3. The Joint Commissioner of Police,
Armed Police-I, Delhi.
4. The Deputy Commissioner of Police,
5th BN, DAP, Delhi.
...Respondents
(By Advocate: Shri Amit Yadav)
2 OA No.1019/2023
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
By filing the instant OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-
"8.1 To quash and set aside the order dated 03.10.2022 whereby the extreme punishment i.e. dismissal from service is being imposed upon the applicant and order dated 10.3.2023 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."
2. Pursuant to notice, the respondents have filed their reply opposing the claim of the applicant. The applicant has filed rejoinder refuting the contents of the counter reply and reiterating the averments made in the OA.
3. We have heard the learned counsels for the parties and with their assistance we have perused the pleadings 3 OA No.1019/2023 available on record as well as the judgments relied upon by the learned counsel for the parties.
4. The brief history behind the impugned orders and reasons therefor are apparent from the impugned order passed by the disciplinary authority itself and therefore, the relevant paras of the same are reproduced below:-
"01.09.2022, RI/5thBn has intimated that ASI(Exe) Dushyant Kumar No.4066/DAP, PIS No. 28911063 posted in NDMC guard from 5TH Bn DAP has been arrested in Case FIR No. RC0032022A0055 u/s 120B IPC r/w sec.07 PC Act PS CBI, ACB, New Delhi.
For his involvement in the case, ASI (Exe) Dushyant Kumar, No. 4066/DAP, PIS No. 28911063 has been placed under suspension vide order No. 6543-6643/HAP/P-I/5th Bn. DAP dated 01.09.2022 from the date of his arrest in the case.
According to the contents of FIR, on the complaint of one Sh. Vinod Kumar Sapra S/o Late Shri Kishan Lal Sapra R/o C--6/96 Sector-5 Rohini Delhi -110085, it is revealed that he(Complainant) was working as 'Khabri' of ACP Sh. Brij Pal for 5-6 years when, ACP Sh. Brij Pal was working as Sub-Inspector and Inspector in Delhi Police in different Police Stations of Delhi. However, he (complainant) left this work 14-15 years ago. At present ACP Sh. Brij Pal is posted at Narcotics Department in Bawana, New Delhi. He (Complainant) stopped the work of Khabri to ACP Sh. Brij Pal Singh due to non-payment of money for the information provided by him (Complainant). Since last 9 months, when ACP Sh. Brij Pal was working as Inspector at Bawana Police Station, New Delhi (In Narcotics Division), he is demanding Rs.50 Lakhs for not implicating his (Complainant) wife Smt. Mamta Sapra in various cases.4 OA No.1019/2023
On 23.08.2022, one ASI (Exe) Dushyant Kumar, No. 4066/DAP, PIS No. 28911063 who was earlier working under ACP Brij Pal, contacted the wife of the complainant over whatsapp call from his mobile number 9899072635 and informed her (wife of complainant) that ACP Brij Pal is ready to negotiate the amount in his (ASI (Exe) Dushyant Kumar, No. 4066/DAP, PIS No. 28911063) presence and if she does not agree the terms of ACP Sh. Brij Pal, she will be implicated in criminal case. Based on the complaint, a verification of allegation was undertaken on 29.08.2022 & 30.08.2022 and it was revealed from verifications that Brii Pal, ACP of Delhi Police posted at Bawana Police Station in Narcotics Department has demanded Rs.15 Lakh in the presence of ASI(Exe) Dushyant Kumar, No. 4066/DAP PIS No. 28911063 of Delhi Police and also directed the complainant to hand over the bribe amount to ASI (Exe) Dushyant Kumar, No. 4066/DAP, PIS No.28911063. The Complaint and Verifications prima facie disclose commission of offence punishable u/s 120B of IPC r/w Sec.7 of PC Act, 1988 (as amended in 2018) oh the part of Brij Pal, ACP of Delhi Police posted at Bawana Police Station in Narcotics Department and ASI(Exe) Dushyant Kumar No. 4066/DAP, PIS No. 28911063 of Delhi Police posted at 5" Bn. DAP.
ASI (Exe) Dushyant Kumar No. 4066/DAP. PIS No. 28911063 has been arrested by ACB, CBI on 01.09.2022 under prevention of corruption ACT for demanding Rs. 15 lacs from the complainant in connivance with ACP Brij Pal and the bribe amount of Rs 7,89,000 recovered from ASI (Exe) Dushyant Kumar No. 4066/DAP, PIS No. 28911063 The above act on the part of ASI (Exe) Dushyant Kumar, No. 4066/DAP, PIS No. 2891 1063 shows that he is involved in demanding and accepting of the bribe amount of Rs 7,89,000 and his criminal attitude has tarnished the image of Delhi Police and his action amounts to gross misconduct and highly unbecoming of a police officer.
5 OA No.1019/2023
Further on perusal of his entire service record it is revealed that previously he has been punished on 02 different occasions as under:-
1 DE initiated vide order No. 2502-
17/HAP/C&R, Delhi dated 17.12.2002 has been finalized and awarded him a Censure vide order No. 1797-1815/HAP/ C&R, Delhi dated 27.08.2003 for his negligence in duty. 2 SCN issued to him vide order No. 7699- 770/HAP/P-III/West dated 15.07.2019 has been finalized and awarded him a Censure vide order No. 3987-88/HAP(P-II)/5th Bn.DAP, Delhi dated 21.10.2019.
The above criminal attitude of ASI(Exe) Dushyant Kumar, No. 4066/DAP, PIS No. 28911063 has tarnished the image of Delhi Police and his action amounts to gross misconduct and highly unbecoming of a police officer.
Taking into account the totality of facts and circumstances of the above mentioned misconduct, it is very clear that the delinquents committed the grave misconduct which cannot be tolerated in any disciplined organization like the police force whose basic duty is to protect the life and liberty of citizen in the society. He indulged himself in a most abominable act which is not expected from a uniformed police person. The shameful act committed by him has not only tarnished the image of the police force but has also brought disgrace to the organization. He demoralized the moral of other police officers/staff. It is a clear instance of a law enforcer turning into the law breaker and has thereby projected a very shabby image of Delhi police in the eyes of the general public which shall tend to erode the faith in police department. It is an apt case where an exemplary punishment needs to be awarded to the defaulter so that a strong message should go among the other police personnel. In order to deter other members of the force from contemplating such conduct, this act should be dealt with heavy hand & be awarded exemplary punishment. When a police officer who is supposed to uphold the law himself resorts to 6 OA No.1019/2023 lawlessness and commit a serious misconduct and tarnish the image of Police Department, it causes a major blow to the confidence of citizens in the police. Such conduct will cause a lot of damage to the goodwill of the organization and will shaken the confidence of the public in the police force The defaulter ASI(Exe) attracts the provision of Article 311 (2) (b) of Constitution of India and makes him completely unfit for police service.
In order to send a clear message to such undesirable elements in the police force and to maintain discipline as well as to prevent recurrence of such incidents, it has become absolutely imperative to dismiss the defaulter ASI(Exe). as he is completely unfit for police service. His further retention in the department after his involvement/ arrest in above mention case is absolutely detrimental to public interest. He is completely a burden on the Govt. exchequer.
Therefore, I SHRI KISHAN MEENA, Deputy Commissioner of Police, 5 Bn. DAP, Delhi do hereby order to dismiss defaulter ASI (Exe) Dushyant Kumar, No. 4066/DAP, PIS No. 28911063 from the force with immediate effect under Article 311(2)(b) of Constitution of India. His suspension period from 01/09/2022 to date of issue of this order is also been decided as 'period not spent on duty for all intents and purposes." 4.1 Aggrieved by the said impugned order of the disciplinary authority, the applicant has preferred his appeal dated 7.11.2022 (Annexure A/3). However, the same was rejected by the appellate authority vide impugned order dated 10.3.2023. Hence, the present OA.
5. During the course of hearing Shri Chauhan, learned counsel for the applicant has argued that the impugned 7 OA No.1019/2023 orders are bad in law, as no reasons has been recorded by the disciplinary authority for concluding the departmental enquiry is not reasonably practicable and therefore, the impugned order dated 3.10.2022 passed by the disciplinary authority dismissing the applicant by invoking the power under Article 311(2)(b) of the Constitution of India is not sustainable in the eyes of law. In support of his such contention, reliance has been placed on common Order/Judgment dated 10.2.2022 of this Tribunal in OA No.1383/2020 and batch, titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others etc. etc. He has further submitted that the impugned orders are in violation of the ratio laid down by this Tribunal in the case of Ct. Sumit Sharma (supra), as the reasons recorded by the disciplinary authority to dispense with the departmental enquiry are not sustainable in the eyes of law. Shri Chauhan has also argued that the disciplinary authority has assumed as if the allegations made in the criminal case (FIR) already stands proved. Although there are Circulars and catena of judgments including the above one, which clearly demonstrate that if the allegations are grave then more opportunity should be provided to delinquent official(s) to put forward his defence, however, 8 OA No.1019/2023 the applicant has not been subjected to a departmental proceedings and merely on assumptions, the disciplinary authority as a short cut method has invoked the power under Article 311 (2)(b) of the Constitution of India. 5.1 Shri Chauhan, learned counsel, has further argued that the applicant is holding the post of Assistant Sub- Inspector, which is a lower rank among the subordinate officer and thus it is absolutely wrong to record that the applicant is on any influential position and that there is no evidence before the authorities to conclude that the witness(es) is/are threatened or intimidated or will not depose in departmental enquiry. Moreover, most of witnesses are official witnesses and that too of CBI. Although preliminary enquiry was conducted in the matter that too at the back of the applicant, however, even the report of PE was never served upon the applicant. He has further argued that once the criminal trial is possible then the DE is also possible, as such the impugned orders are not tenable in the eyes of law.
5.2 Shri Chauhan, learned counsel for the applicant, has also submitted that the impugned order passed by the disciplinary authority is bad in law as the same is in 9 OA No.1019/2023 violation of Rule 16 (xi) of the Delhi Police (Punishment & Appeal) Rules, 1980, which provides that if it is considered necessary to award a service punishment to the defaulting officer by taking into consideration his previous bad record, in which case the previous bad record shall form the basis of a definite charge against him and he shall be given opportunity to defend himself as required by rules, as the previous bad record of the applicant had been taken into consideration by the disciplinary authority while passing the impugned order.
5.3 Shri Chauhan, learned counsel also submitted that besides the aforesaid grounds other grounds were taken by the applicant in his appeal, but the same was rejected by the appellate authority arbitrarily without delving upon the said grounds and therefore, the appellate authority's order is non-speaking and unreasoned and hence, the OA is tenable in law.
5.4 Lastly, Shri Chauhan, learned counsel has submitted that this case is squarely covered by a catena of Order/Judgments of this Tribunal, including the one in Ct. Sumit Sharma's case (supra).
10 OA No.1019/2023
6. Shri Yadav, learned counsel for the respondents by referring to the counter reply and the impugned disciplinary authority's order, has submitted that on a plain reading of the contents of the order passed by the disciplinary authority (reproduced hereinabove), it is evident that the CBI officials had verified the complaint and conducted a preliminary enquiry into the matter which led to registration of the case and in apprehending the applicant red handed while accepting bribe money of Rs.7,89,000/- and the disciplinary authority after satisfying himself had proceeded in the matter to invoke the provisions of Article 311 (2)(b) of the Constitution of India after following the due procedure of the rules and regulation governing the matter, dismissed the applicant from service which is fair, just and commensurate with the misconduct committed by the applicant. Special SP/AP also accorded his concurrence to invoke the Article 311 (2)(b) of the Constitution of India after evaluating all aspects of the matter.
6.1 Shri Yadav, learned counsel, has submitted that the appeal of the applicant was duly considered by the 11 OA No.1019/2023 appellate authority and the applicant was also heard in person and rejected the same being devoid of merit. 6.2 In support of the claim of the respondents, Shri Yadav, learned counsel has placed reliance on the following judgments:-
1. Ved Mitter Gill vs. Union Territory Administration, Chandigarh and others in Civil Appeal No.3195/2015, decided on 26.3.2015 by the Hon'ble Apex Court;
2. Ikramuddin Ahmed Boarh vs. Superintendent of Police Darang & others, reported in 1988 AIR 2245; and
3. Chandigarh Administration & others vs. Ex.
S.I. Gurdit Singh, reported in (1997) 10 SCC
430.
However, at the same time, he fairly conceded that the aforementioned judgments have been considered by this Tribunal while deciding the case of Ct. Sumit Sharma (supra).
7. After considering the relevant material on the subject, including circulars dated 28.12.1998 and 11.9.2007, and the case law, this Tribunal has considered the similar issue while deciding a batch of cases, OA 12 OA No.1019/2023 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.
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 13 OA No.1019/2023 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 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 14 OA No.1019/2023 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 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 15 OA No.1019/2023 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 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.16 OA No.1019/2023
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.
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 17 OA No.1019/2023 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."
8. 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).
9. 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 them 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 18 OA No.1019/2023 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 this regard and the applicant is guilty of committing grave misconduct and was involved in the aforesaid offences.
10. 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 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 Courts and followed by this Tribunal in a catena of cases, including in one referred to hereinabove.
11. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA is squarely covered by the common 19 OA No.1019/2023 Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and hence, the same is partly allowed with the following directions:-
(i) Orders dated 03.10.2022 (Annexure A/1) and dated 10.3.2023 (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 directions 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.
12. However, in the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/