Central Administrative Tribunal - Delhi
Ex. Ct. Mukesh Kumar vs Gnct Of Delhi on 19 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. NO. 1476/2008 New Delhi this the 19th day of February, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N. D. Dayal, Member (A) Ex. Ct. Mukesh Kumar, (2659/E, PIS no.28911082) s/o Sh. Babu Ram r/o Vill & PO Nann, PS Hafizpur, Ghaziabad (UP). Applicant. (By Advocate Shri Saurabh Ahuja) ) Versus 1. GNCT of Delhi, Through Chief Secretary, Delhi Secretariat, Near ITO, New Delhi. 2. Commissioner of Police (Delhi Police), Police Headquarters, IP Estate, MSO Building, New Delhi. 3. Additional Commissioner of Police, PCR & Communication, Delhi, Through Commissioner of Police (Delhi Police), Police Head Quarters, IP Estate, MSO Building, New Delhi. 4. Additional Commissioner of Police, Operations, Delhi, Through Commissioner of Police (Delhi Police), Police Headquarters, IP Estate, MSO Building, New Delhi. 5. Deputy Commissioner of Police, Police Control Room, Delhi Through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. Respondents. (By Advocate Shri Ram Kanwar) O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (J).
On 18.07.2006 by Annexure-I order, the Deputy Commissioner of Police, Delhi had dismissed the applicant from service, in exercise of powers under Article 311 (2) (b) of the Constitution of India. An appeal filed stands rejected on 04.04.2007 by Annexure-2. A further revision petition filed by him also had been disposed of by Annexure-3. These orders are under challenge. The issue is whether the orders as above summarily dismissing him from service would have been sustainable. The recital in the orders show that the applicant had committed rape on a 11 year old girl and thereafter had murdered her (on 30.06.2006). An FIR had been registered against the police constable, who had surrendered before the police and he had been sent to judicial custody. The order had been passed while he was in judicial custody.
2. The Deputy Commissioner was of the opinion that the act on the part of the constable amounted to gravest misconduct involving moral turpitude and an act unbecoming of a member of a disciplined force. His conduct resulted in erosion of faith of common people in the police force and his continuance in the police force was not in the public interest. As reasons for taking steps under Article 311 (2) (b), it had been observed as following:
In the circumstances of the case, the possibility of the victim being unduly pressurized and threatened during the departmental proceeding cannot be ruled out. It is probable that in a regular DE, the defaulter will overawe the witnesses who out of fear may not depose against him. This is one of those glaring official grave misconduct which erode the faith of public in the criminal judicial system.
The overall circumstances, according to officer, necessitated action as above. Substantially, the reasons have been upheld by the appellate authority.
3. Mr. Ahuja appearing on behalf of the applicant submits that the two circumstances, as presented appear to be relevant. One is that the reasons given for not holding inquiry are not reasons sufficient enough to dispense with an inquiry. Under Article 311 of the Constitution, protection is given to a Government servant, whereby before dismissing or reducing him, an opportunity to defend himself requires to be given. Only in exceptional cases, it is expected not to follow the procedure. When the applicant is in judicial custody, there cannot be any proposition that he could interfere with the course of an inquiry or intimidate the witnesses who might be examined in support of the allegations. Therefore, the decision is irrational and only by way of an experiment, the powers under Article 311 (2) (b) have been employed. Secondly, after a trial, he has been acquitted by the Additional Sessions Judge, Ghaziabad in Sessions Case 1605 of 2005 (2006) (Annexure-4). It has attained finality and necessarily the Administration is obliged to re-examine his case and come up with appropriate orders.
4. A counter reply has been filed by the respondents, and the principal submission is that the competent authority had considered all the facts and circumstances of the case and bonafide came to the conclusion that it was not practicable to hold a regular departmental inquiry. After the acquittal by the Sessions Judge, although the applicant had filed a revision appeal, since it was not maintainable, it has been rejected. There was nothing irregular about it. If at all, a representation to the disciplinary authority to examine his case under the relevant rules, would have been maintainable in the normal course but he had not cared to make such a representation.
5. On a consideration of the facts presented, we are not prepared to accept the contention that the circumstances were such as disabling the authorities to hold a formal domestic inquiry, in respect of allegations, as coming within the provision of misconducts as per the service rules. It is also not possible to concur with the plea of respondents, that there was likelihood of harassment of witnesses. Even the order refers to such contingencies as possibility alone. The reason for such a conclusion is not forthcoming. A civil servant is entitled to the right of a formal inquiry to be held when there are allegations levelled against him. Only in exceptional circumstances, law permits a short cut to be employed. On the facts presented before us, we are unable to accept the submissions that this was an exceptional case.
6. A copy of the judgment of the Sessions Judge has been made available. The Sessions Judge had occasion to observe that no prosecution witnesses had supported the prosecution case by statement on oath. In case of an acquittal, we, of course, notice the service rules as applicable to the applicant, might pose restrictions in holding departmental inquiry, but that is no reason for us, not to set aside the order presently under attack. If rules permit, the respondents may take appropriate action as permissible by the rules as are relevant for appropriate departmental action. The conduct of the applicant may be viewed as lapses, which are actionable, of course on the basis of materials that might be available, and the criminal offences perhaps may require to be eschewed. We leave it at that.
7. With such liberty reserved, we quash the impugned orders. We further direct that all through the period concerned, and for a further period of two months from today, the applicant should be deemed as having been placed under suspension. Before the expiry of two months, the respondents may in writing inform the applicant about the decision whether or not departmental proceedings are contemplated against him. It should be within their discretion also to keep him under suspension thereafter, if circumstances require. If no decision as above is communicated to him by the above date, applicant will be deemed as having been put back to service without any disability. The period of suspension should thereafter be regularized, as envisaged under rules. With these directions, the O.A. stands allowed. We make no order as to costs.
(N. D. Dayal) ( M. Ramachandran) Member (A) Vice Chairman (J) SRD