Central Administrative Tribunal - Delhi
Bhim Singh Bairwa vs Delhi Police on 1 October, 2024
1
OA No. 1361/2024
Item No. 14/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1361/2024
Reserved on: - 02.09.2024
Pronounced on: - 01.10.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Bhim Singh Bairwa
Aged about 34 years
Ex-HC (Ex.) Delhi Police
PIS No. 29102260
S/o Sh. Ram Sahai Bairwa
Pocket-10, Sector-20,
Rohini, Delhi-110086 ... Applicant
(By Advocate: Mr. Anil Singal)
Versus
1. Delhi Police
Through Commissioner of Police,
New PHQ, Jai Singh Road,
New Delhi-110002.
2. Joint CP (Western Range)
Through Commissioner of Police,
New PHQ, Jai Singh Road,
New Delhi-1100002.
3. DCP (Outer Distt.)
DCP Office Complex,
Pushpanjali Encalve,
Delhi-110034 ... Respondents
(By Advocate:Ms. Nidhi Rai)
2
OA No. 1361/2024
Item No. 14/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant, in para 8 of the OA has prayed for the following reliefs: -
"1. To quash and set aside Order of dismissal dt. 24.8.2023 and Appellate Order dt. 13.3.2024
2. To direct the respondents to reinstate the applicant into service with all consequential benefits including promotion/seniority and arrears of pay since the applicant is not able to get job despite his best efforts and is unemployed.
3. To award costs in favour of the applicant and pass any order or orders which this Hon'ble Tribunal may deem just and equitable in the facts & circumstances of the case."
2. Pursuant to notice, the respondents have filed their counter affidavit opposing the claim of the applicant and have prayed for dismissal of the present Original Application. The applicant has also filed his rejoinder denying the contention of the counter affidavit and reiterated his claim in the OA.
3. The brief facts of the present case are that the applicant was working as Head Constable in Delhi Police. The applicant states that he was wrongly and illegally arrested having voluntarily surrendered in case FIR No. RC0032023A0027 dated 11.07.2023 u/s 7 PC Act & 120-B IPC PS CBI Anti-Corruption Branch, Delhi in which they claim that one Akshacy Kumar, HC (Exe.) was caught red handed while accepting bribe on 12.07.2023. 3 OA No. 1361/2024 Item No. 14/C-II
4. The applicant states that vide order dated 24.08.2023 (Annexure-A1), the applicant was illegally dismissed from service under Article 311 (2) (b) of the Constitution of India by dispensing away with the inquiry on the same allegation on the basis of which FIR was registered by the CBI and that had nothing to do with the applicant. The applicant further states that he submitted an appeal against the order of dismissal of the disciplinary authority with a number of contentions raised before the Appellate Authority. However, the appellate authority rejected the appeal vide order dated 13.03.2024 (Annexure-A/2). The applicant contends that the reasons recorded by the Disciplinary Authority to dispense away with the departmental enquiry are vague and totally unsustainable in the eyes of law. The applicant further states that the Disciplinary Authority has nowhere pointed out any evidence to conclude that holding of Departmental inquiry is not reasonably practical. The applicant contends that the order passed by the respondents is based on „Extraneous Grounds‟ that has nothing to do with the exercise of power under Article 311 (2)
(b). Therefore, as per the pleadings available on record, the impugned order is liable to be set aside and quashed. The applicant submits that there is no material with the Disciplinary Authority which could show that the witnesses were threatened by the applicant in form of any complaint by the witnesses regarding threatening notes/calls by the applicant. The applicant further contends that the Disciplinary Authority presumed the applicant 4 OA No. 1361/2024 Item No. 14/C-II guilty of charges leveled against him in criminal case to be true. It is submitted by the applicant in the pleadings filed by him that the decision taken by the Disciplinary Authority is merely based on suspicions, surmises and presumption, therefore, the order of punishment is legally not sustainable and is liable to be set aside/quashed.
5. The applicant further states that even if the Disciplinary Authority did not feel to conduct regular Departmental Enquiry, the Appellate Authority ought to have considered whether there is possibility of holding Disciplinary Enquiry at the time of deciding the present appeal as per the judgment of Hon‟ble Apex Court in Tulsi Ram Patel's case. The applicant submits that there is no reason explained by the respondents that when the same witnesses can appear before the Court to depose against the applicant, as to why, they will not appear in the Departmental Enquiry against the applicant when they have very well appeared and made statements during preliminary enquiry.
6. The applicant contends that he was falsely implicated in criminal case and the same is proved from the fact that the respondents themselves claiming that the applicant managed to escape from the spot when HC Akshacy was caught red-handed while taking bribe. The applicant submits that this proves the complete falsehood of the Department. He further submits that what kind of CBI and their team is that the applicant could escape 5 OA No. 1361/2024 Item No. 14/C-II and they could do nothing to prevent theescape of the applicant. The applicant further claims that the order of dismissal dispensing away with the enquiry is in violation of Rule 17 (b) of Delhi Police (Punishment & Appeal) Rules, 1980 which categorically provides that the procedure laid down with regard to the conduct of departmental enquiry can be dispense away with if Police Officer charged with misconduct refuses or fails to attend the enquiry without reasonable excuse or has absconded or has deserted or cannot be found without inordinate delay and no other ground, which is not the position/grounds taken by the Disciplinary Authority for dispensing away with the enquiry. Therefore, the order of dismissal dispensing away with enquiry being in violation of aforesaid rule, is liable to be set- aside/quashed. The applicant by referring to circular dated 08.11.1993 and re-issued on 31.12.1998 submits that the powers under Article 311 (2) (b) is not to be used as a short-cut and if the Police Officers involved in the cases of rape or dacoity or any other such heinous offence are dismissed straightway under Article 311 (2) (b) despite the fact that criminal cases had been registered, such dismissals without holding Departmental Enquiry are illegal because in such cases departmental enquiry can be conveniently held. The applicant contends that the dispensing away with the enquiry is illegal and is liable to be set aside/quashed. 6 OA No. 1361/2024 Item No. 14/C-II
7. The applicant states that he made an appeal dated 14.09.2023 (Annexure-A/3) against the order of punishment of dismissal from service, which was rejected by the Appellate Authority on 13.03.2024 (Annexure-A/2). The order passed by the Appellate Authority is absolutely non-speaking and mechanical in nature. It does not deal with any of the submissions raised within the body of statutory appeal.
8. The applicant has mentioned case laws but the same have not been considered by the appellate authority. He states that the Appellate Authority has proceeded on the premise of gravity of misconduct and presumption that the allegation against the applicant stands proved. The Appellate Authority has totally missed out the pre-requisite as per Article 311 (2) (b) of the Constitution of India for invoking the power under the said article, therefore, the order of Appellate Authority is bad in law. The applicant submits that the Appellate Authority has blindly supported the reasons put forth by the Disciplinary Authority for dispensing away with the departmental enquiry. The reasons recorded for dispensing away with departmental enquiry are based in suspicion and surmises.
9. In the present Original Application, the applicant has raised the grounds that the reasons recorded by Disciplinary Authority to dispense away with the departmental enquiry are based on suspicion and surmises. There is no occasion for the Disciplinary 7 OA No. 1361/2024 Item No. 14/C-II Authority to record that in the present case, departmental enquiry is not reasonably practicable.
10. The applicant contends that once the preliminary enquiry is possible then even a departmental enquiry is also possible thus the reasoning recorded by the Disciplinary Authority for dispensing away the departmental enquiry is bad in law. The applicant further states that the order of Appellate Authority is absolutely non-speaking and mechanical in nature and repeats the same illegality as committed by Disciplinary Authority. The Appellate Authority also moves on suspicion and surmises and fails to apply his mind on the specific submissions made by the applicant within the body of statutory appeal and law relied in statutory appeal.
11. The applicant also states that the Disciplinary Authority did not even make the slightest possible effort to initiate a departmental enquiry as only after initiation of departmental enquiry, Disciplinary Authority can come to the conclusion that departmental enquiry is not reasonably practicable, without doing so the said authority is only acting on the presumption and surmises.Since no order to initiate departmental enquiry was made by the department, hence, it is wrong to say that in the present case, departmental enquiry is not reasonably practicable.
12. The applicant submits that the authorities failed to consider that no substantial material has been collected in the preliminary 8 OA No. 1361/2024 Item No. 14/C-II enquiry to come to a conclusion that witness will be discouraged to appear in departmental enquiry.The respondents have totally ignored the provision of Rule 15 (3) and Rule 16 (3) of Delhi Police (Punishment & Appeal) Rules, 1980 wherein it clearly envisages that "previously recorded statement of witnesses can also be brought on record in case of non-availability of witnesses so in order to record a reason for dispensing away with the departmental enquiry". The respondents, in this case,have also violated the instructions and guidelines provided in DoP&T OM dated 11.11.1985 and 04.04.1985.
13. Learned counsel for the applicant has placed reliance on the judgment in the following cases:-
i. The order passed by the Principal Bench of this Tribunal on 13.12.2023 in OA No.1019/2023 in the case of Dushyant Kumar vs. Govt. of NCT of Delhi & Ors., The judgment dated 19.02.2024 of the Hon'ble High Court of Delhi in W.P. (C) No. 2407/2024 in Govt. of NCT of Delhi and Ors. Vs. Dushyant Kumar; and ii. The Hon‟ble High Court of Delhi in WP(C) No. 11276/2024 and CM Appl. No.46705/2024, CM Appl. No. 46706/2024 in the matter of The Commissioner of Police & Ors.
vs. OM Prakash & Anr.
iii. The recent matter decided on 14.08.2024 by the Hon‟ble High Court of Delhi in W.P. (C) No. 11276/2024 and CM 9 OA No. 1361/2024 Item No. 14/C-II Appl. 46705/2024. CM Appl. 46706/2024 in the matter of The Commissioner of Police & Ors. vs OM Prakash & anr.,
14. Feeling aggrieved by the aforesaid act of the respondents, the applicant approached this Tribunal by way of the present OA.
15. The applicant states that in the FIR lodged against him, a criminal trial will take place in the court of law. He states that if trial is possible then departmental enquiry is also possible. He states that the Disciplinary Authority has recorded in the disciplinary order that there is no reasonable belief of authority that witness may not come forward to depose against the applicant. The said belief of Disciplinary Authority is based on suspicion and surmises. There is no attempt to initiate departmental enquiry and nothing has been brought on record, subsequently to allege that the applicant has made any attempt to influence the witness and thus with this presumption, the present impugned order is being passed. He states that once the order of Disciplinary Authority is passed on assumption as if the allegations made against the applicant already stand proved that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being bad in law.
16. Counter reply has been filed by the respondents on 13.05.2024 wherein it is stated that the applicant [Bhim Singh Bairwa, HC (Exe.)] while posted in PS Mangol Puri on 12.07.2023, a raid was 10 OA No. 1361/2024 Item No. 14/C-II conducted by CBI/ACB, New Delhi and Akshacy Kumar, HC (Exe.) was arrested red handed accepting the bribe. The respondents submit that the applicant managed to escape from the spot. Due to involvement and being arrested in the said case, both the HCs were placed under deemed suspension w.e.f. 12.07.2023 i.e. date of arrest/ raid vide order dated 17.07.2023.
17. The respondents further submit that on 10.07.2023, complainant Sh. Arun Gupta R/o K-390, Mangol Puri, Delhi had filed a complaint in CBI/ACB, New Delhi with the allegation that on 07.07.2023, Delhi Police official i.e. the applicant threatened him that if the E-rickshaws are not charged inside his shop, he would take away the E-rickshaw charging point with the help of Shri Sumit of MCD. The respondents contend that the applicant demanded Rs. 50,000/- as bribe from the complainant for allowing the parking and charging of E-rickshaws in front of his shop. It is further stated in the counter reply that the applicant told that if he fulfills his demand of bribe amount, neither he nor the MCD will create any issue and he can continue his business smoothly. Accordingly, an FIR No. RC0032023A0027 dated 11.07.2023 u/s 7 PC Act & 120B IPC, PS CBI Anti-Corruption Branch, Delhi was registered.
18. The respondents further submit that in this regard, a Preliminary Enquiry was got conducted through ACP/PG Cell, Outer District in which it is revealed that Akshacy Kumar, HC 11 OA No. 1361/2024 Item No. 14/C-II (Exe.) was arrested during raid conducted by the CBI/ACB on 12.07.2023, while the applicant managed to escape from the spot. It is further contended by the respondents that both the HCs were demanding and Akshacy Kumar, HC (Exe.) accepted the bribe from the complainant.
19. During the enquiry, statement of complainant Arun Gupta was also recorded, in which he has asserted that the complaint given by him to CBI/ACB is his statement. The respondents submit that statement of Anil Gupta (brother of Arun Gupta) was also recorded and he also corroborated the statement of his brother Arun Gupta. The respondents further submit that the statement of Chitha Munshi of PS Mangol Puri, HC Samunder was also recorded.
20. The respondents further submit that the shameful act committed by the applicant not only tarnished the image of the Delhi Police and brought disgrace to the organization but also demoralized other police personnel. It is further admitted by the respondents that after completing the preliminary enquiry and completing all formalities into the matter, taking into consideration the facts and circumstances, the matter was referred to Special CP/L&O/Division (Zone-II) for seeking necessary concurrence to dismiss the applicant under Article 311 (2) (b) of the Constitution of India in compliance of circulars dated 11.09.2007 and 18.04.2018 issued by PHQ into the matter. 12 OA No. 1361/2024 Item No. 14/C-II
21. The respondents state that during enquiry it is established that on the basis of available collected evidences and the facts surfaced during preliminary enquiry, the quantum of culpability and misconduct on the part of the applicant found to be grossly grave in nature and allegation of demanding and taking bribe is proved.
22. The applicant has filed rejoinder on 30.07.2024 to the reply filed by the respondents and he has reiterated the averments made by him in his pleadings to claim his innocence in this matter. In the rejoinder, it has been stated that contents of counter reply/affidavit are wrong.
20. We have heard learned counsels for the parties and have perused the pleadings available on record.
21. The learned counsel for the respondents pleaded that the respondents have given detailed justification of invocation of the Article 311 (2) (b) of the Constitution of India in their Disciplinary order and Appellate order. They repeatedly stated that further continuation of the applicant in disciplined force like Delhi Police which is responsible for protecting the society and citizens of the country from immoral and disrespectable activities will rudely shake the faith of the citizens in Delhi Police Force. The applicant has acted in a manner which is highly unbecoming of a Police Officer. Therefore, keeping in view the position in the matter, respondents have resorted to invocation of Article 311 (2) (b) of 13 OA No. 1361/2024 Item No. 14/C-II the Constitution of India and dismissed the applicant from the government service.
22. The Disciplinary Authority while issuing punishment order dated 24.08.2023 (Annexure-A/1) has invoked the provisions of Article 311 (2) (b) of the Constitution of India and dismissed the applicant from service. For facility of reference, the relevant portion of the disciplinary order is as follows:-
"In this regard, a Preliminary Enquiry has been got conducted through ACP/PG Cell, Outer District in which it is revealed that HC (Exe.) Akshacy Kumar was arrested during raid conducted by the CBI/ACB on 12.07.2023. While, HC (Exe.) Bhim Singh Bairwa managed to escape from the spot. The duo HCs were demanding and accepting bribe from the complainant. HC (Exe.) Bhim Singh Bairwa has been marked absent by SHO Mangol Puri vide DD No. 146A on 11/07/2023 at 23:47 PM.
During the course of enquiry, statement of complainant Arun Gupt was recorded. He has asserted that the complaint given by him to CBI/ACB is his statement. In his complaint to the CBI/ACB he had alleged that he has shops No. 30, 60, LSC Market, K-Block Mangol Puri and has E-Rickshaws charging points in the shops. E- Rickshaws used to park outside his said shops and they get their batteries charged from the charging points of his shops. He has further alleged that he was threatened by beat officer, HC (Exe.) Bhim Singh Bairwa to either get these E-Rickshaws stationed inside his shops or otherwise he would picked them up with the help of MCD official Sumit. HC (Exe.) Bhim Singh Bairwa demanded a bribe of 50,000/- from him so that he could be allowed by HC Bhim to carry on his charging work of E- Rickshaws.
The statement of one other witness, to the CBI raid, namely Anil Gupta (brother of Arun Gupta) was also recorded. He also corroborated the statement of his brother Arun Gupta.14 OA No. 1361/2024
Item No. 14/C-II Further, the statement of Chitha Munshi of PS Mangol Puri HC Samunder, No. 2145/OD PIS No.28071174 was also recorded. The copy of Chitha of 11/07/2023 was taken on record. As per Chitha details, HC (Exe.) Bhim Singh, No. 2075/OD & HC (Exe.) Akshacy, No. 829/OD are posted in beat No. 7 of PS Mangol Puri since May 2023 and March 2023 respectively. The above stated shop of the complainant of Arun Gupta comes under beat No. 7 of PS Mangol Puri. It is further revealed by the Chitha Munshi that on 11.07.2023, the two HCs were present in beat No. 7 along with other beat staff i.e. Ct. Anil, No. 1624/OD and Ct Hitesh, No. 1667/OD to perform Law & Order duty in the beat area.
It is also revealed that HC Akshacy was caught by the CBI/ACB team on 11.07.2023 while accepting the bribe. However, HC Bhim managed to escape from the spot. HC (Exe.) Akshacy was caught and taken into CBI custody and produced before the designated court on 12.07.2023, by the CBI/ACB and has been sent to Judicial custody for 14 days.
HC (Exe.) Bhim Singh Bairwa, No. 2075/OD (PIS No. 29102260) has reported in District Line on 10.08.2023 vide DD No. 35, 10.08.2023, District Line.
During enquiry it is established that on the basis of available collectedevidences and the facts surfaced during PE, the quantum of culpability and misconduct on the part of above said Head Constables found to be grossly grave in nature and allegation of demanding and taking bribe is proved.
The involvement of HC (Exe.) Bhim Singh Bairwa, No. 2075/OD (PIS No. 29102260) in such a shameful, corrupt activity has eroded the faith of common people in Police force and their continuance in the force is likely to cause further irreparable loss to the functioning and credibility of the Delhi Police. They did not perform their duty in professional manner within the legal periphery. They have indulged themselves in the most abominable act of demanding and accepting bribeis not expected from an official of a uniformed force. This requires a prompt and instant punitive action. It has been observed that the facts and circumstances of the case were so serious that it will not be reasonably practicable to conduct a regular Departmental Enquiry against HC (Exe.) Bhim Singh Bairwa, No. 2075/OD (PIS No. 29102260), as there is a reasonable belief that 15 OA No. 1361/2024 Item No. 14/C-II the defaulter who may use their job to influence the statements/deposition of witnesses during Departmental Enquiry. I am personally satisfied that conducting a regular Departmental Enquiry against them will take a considerable long period and it is not practicably possible.Further, an extended departmental enquiry would only cause more traumas to the victims.
It is clear instance of law enforcers turning into law breakers. Hence, itis a case where an exemplary punishment needs to be awarded to the defaulters, so that it proves to be an eye opener to the others.
Further, the shameful act committed by HC (Exe.) Bhim Singh Bairwa, No. 2075/OD (PIS No. 29102260) has not only tarnished the image and brought disgrace to the organization but also demoralized other police personnel. Therefore, 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.Therefore, 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 necessary to dismiss HC (Exe.) Bhim Singh Bairwa, No. 2075/OD (PIS No. 29102260) from service as he is completely unfit for police service.
After completing the preliminary enquiry and taking into considerationthe overall facts and circumstances, the matter was referred to Special C.P. L & O/Division (Zone-II) for seeking necessary concurrence to dismiss HC (Exe.) Bhim Singh Bairwa, No. 2075/OD (PIS No. 29102260) under article 311 (2) (b) of the Constitution of India in compliance of circular issued from PHQ into the matter vide No. 5545-645/P. Cell/Vig., dated 11.09.2007 and 2513-2612/P. Cell (P. Misc.)/Vig. dated 18.04.2018. The competent authority accorded his concurrence in the present case.
Therefore, I, Harendra Singh, Dy. Commissioner of Police, OuterDistrict, Delhi, hereby order to dismiss defaulter, HC (Exe.) Bhim Singh Bairwa, No.2075/OD (PIS No. 29102260) from service with immediate effect under the provisions of Article 311 (2) (B) of Constitution of India. His suspension period from 12.07.2023 to the date of issue of this order is also decided as period "not spent on duty" for all intents and purposes and the same will not be regularized in any manner."16 OA No. 1361/2024
Item No. 14/C-II
23.The applicant has also filed an appeal against the punishment order which was decided by the Appellate Authority on 13.03.2024 (Annexure-A/2). For facility of reference, it would be appropriate to quote the relevant portion of the appellate order, the same reads as under:-
"I have carefully gone through the appeal, the impugned order and material available on record. I have also heard him in O.R. as per principles of natural justice. The appellant pleaded that being the sole bread earner of his family, the source of income was only the service of the appellant, but due to dismissal of the appellant, great financial and other hardships are being faced by him and his family. He further pleaded that he was wrongly and illegally arrested having voluntarily surrendered in case FIR No.RC0032023A0027 dated 11.07.2023 u/s 7 PC Act & 120-B IPC PS CBI Anti-Corruption Branch, Delhi in which he claim that one HC (Ex.) Akshacy Kumar was caught red handed while accepting bribe on 12.07.2023. The appellant was illegally dismissed from service under Article 311 (2) (b) dispensing with the enquiry on the same allegations on the basis of which alleged criminal case FIR was registered by CBI that had nothing to do with the appellant.
The appellant has further pleaded that the disciplinary authority decided to dispense with the enquiry for the sole reason that the department's case against the applicant is very weak and will fail. The department will be unable to conclusively establish the false allegations against the applicant. That is why in the order of punishment there is no mention of any evidence as to how and why holding of DE is not reasonably practicable rather the powers under Article 311(2) (b) has been invoked as a short cut method to punish the applicant treating the allegations mentioned in the FIR as true. Further, there is no evidence as to how and why the holding of departmental enquiry is not practicable that is condition precedent to invoke Article 311(2) (b). Therefore, the order passed by the disciplinary authority clearly show that this is colourable exercise of power.17 OA No. 1361/2024
Item No. 14/C-II He has further pleaded that the applicant was falsely implicated in criminal case that isproved from the fact that the disciplinary authority has claimed that the applicant managed to escape from the spot when HC Akshacy was caught red-handed while taking bribe. This proves the complete falsehood of the department. What kind of CBI and their team is that the applicant could escape and they could do nothing for preventing the escape of the applicant. There is need to take disciplinary action against such CBI Team and its members for their negligence in case their alleged false story regarding escape of the applicant is believed to be true. Therefore, there is no question of upholding dismissal from service under Article 311 (2) (b) in appeal.
The pleas advanced by the appellant in these points are devoid of force as there issufficient evidence adduced during preliminary enquiry, that both the HCs were demanding bribe. Hence, in this regard, a case FIR No. RC0032023A0027 u/s 7 PoC Act & 120-B IPC, PS CBI Anti-Corruption Branch, Delhi was registered on 11.07.2023 by CBI. HC (Exe.) Akshacy Kumar, No.829/OD was arrested while accepting the bribe during raid conducted by the CBI/ACB on 12.07.2023, while, the appellant had managed to escape from the spot, hence he was marked absent by SHO/Mangol Puri vide DD No.146-A on 11.07.2023 at 23:47 PM. Both the HCs were demanding and accepting bribe from the complainant. Further, during the course of enquiry, statement of complainant Arun Gupta was recorded in which he had alleged that he has shops No. 30, 60, LSC Market, K-Block Mangol Puri and has e- rickshaws charging points in the shops.E-rickshaws used to parked outside his said shops and they get their batteries charged from the charging points of his shops. He was threatened by Beat Officer, HC Bhim Singh Bairwa (the appellant) to either get these e- rickshaws stationed inside his shops or otherwise he would picked them up with the help of MCD official Sumit. The appellant demanded a bribe of Rs. 50,000/- from him so that he could be allowed by the appellant to carry on his charging work of e-Rickshaws. The statement of one other witness, to the CBI raid, namely Anil Gupta (brother of Arun Gupta was also recorded, who also corroborated the statement of his brother Arun Gupta.18 OA No. 1361/2024
Item No. 14/C-II The appellant had been found involved in a grave offence and serious professional misconduct by indulging himself in corrupt practices which is not expected from the personnel of a uniformed force. The shameful act committed by him has not only tarnished the image and brought disgrace to the organization/department, but also demoralized other police officers/staff.Hence, it was an apt case where exemplary punishment was to be awarded to the appellant.
Through the facts surfaced during the preliminary enquiry, it was observed that themisconduct was so serious that it would not be reasonably practicable to conduct a regular departmental enquiry against HC (Exe.) Bhim Singh Bairwa, No. 2075/OD as there was a reasonable belief that the witnesses might not come forward to depose against him owing to his influential position being member of Delhi Police. It also calls for great courage to depose against a desperate person and the task becomes more acute and difficult where the police personnel could use his profession and position to influence the statement/deposition of the witnesses. It is also highly probable that during the entire process of departmental proceedings, the complainant and witnesses might be put under constant fear of threat to their person and property by the appellant, hence decision of invoking of Article 311 (2) (b) Constitution of India was taken by the disciplinary authority in this matter, which is justified and well reasoned. In such scenario, it becomes undesirable to retain such a tainted person on the rolls of a disciplined force. As pleaded by the appellant referring other similar cases has no weight as, each and every case has its own merits and circumstances.
His previous clean record does not absolve him from his instant grave misconduct. No new circumstances have since emerged so far to differ with the Disciplinary Authority. There is, as such, no ground to interfere with the punishment order.
I agree with the findings of the disciplinary authority in his order and, as such, Ifind no merit in the appeal. The appeal filed by the appellant against the punishment order is hereby rejected."
24. The Disciplinary Authority and the Appellate Authority have come to the decision on the presumption that alleged offence has 19 OA No. 1361/2024 Item No. 14/C-II been committed by the applicant, so there is no need to conduct the departmental enquiry, these reasons cannot stand to the scrutiny of law for invoking the power under provision of Article 311 (2) (b) of the Constitution of India. It needs to be tested whether the reasons recorded in the impugned order for imposition of Article 311 (2) (b) of the Constitution of India are justifiable or the provisions of above mentioned Article of the Constitution of India are invoked only to avoid the disciplinary enquiry and get rid of the applicant in convenient manner. The Disciplinary Authority did not mention the reasonable grounds even when Preliminary Enquiry was ordered against the applicant. It could be seen from the appellate order that Appellate Authority had rejected the appeal in a mechanical manner without addressing specific submissions of the applicant and merely on presumptions that the allegation against the applicant is presumed to be proved and the witness might not have come forward to depose against the applicant. The Appellate Authority is simply assuming that the allegations against the applicant stands proved and this justification is good enough to invoke the Article 311 (2) (b) of the Constitution of India and dismiss the applicant. The Appellate Authority did not explore, in the present case, that majority of the witnesses are official witnesses.If preliminary enquiry is possible, then the departmental enquiry is also possible. Similarly, if the trial is possible then the departmental enquiry is also possible. However, both disciplinary 20 OA No. 1361/2024 Item No. 14/C-II authority and appellate authority did not make any efforts to conduct departmental enquiry and resorted to invocation of provision of Article 311 (2) (b) of the Constitution of India to impose the penalty of dismissal. This could be construed as strong bias of respondents towards the applicant and their disdain approach to uphold Rule of Law. The respondents being senior police officer holding high position are required to run the administrative decision making lawfully. Earlier also while deciding other matters we have pointed out that a serious course correction is needed in the respondent Department while handling such cases and it is for their betterment if they take effective steps in that direction. We need not further ponder upon this point and leave it here.
25. In the recent matter decided on 14.08.2024 by the Hon‟ble High Court of Delhi in W.P. (C) No.11276/2024 and CM Appl. 46705/2024. CM Appl. 46706/2024 in the matter of The Commissioner of Police & Ors. vs OM Prakash &anr., wherein the Commissioner of Police has been directed by the Hon‟ble High Court of Delhi to look into the matters where Article 311 (2) (b) of the Constitution of India has been invoked by the police authorities and police personnel have been removed from the service. Only on presumptions and assumptions without any material, coming to the conclusion or that it was not reasonably practicable to conduct regular departmental enquiry as witness 21 OA No. 1361/2024 Item No. 14/C-II might not come forward to decide the case and Appellate Authority depose against a police officer respondents have rejected the appeal which could be construed as bad in law.
26. It is apparent that the Disciplinary Authority has assumed as if the allegations made in criminal case (FIR) already stand proved and thus with this presumptions, the present impugned order has been issued. Once the order of Disciplinary Authority is based on assumption as if the allegations made against the applicant already stand proved that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being bad in law and being based on assumptions, suspicion and surmises. Further, the Disciplinary Authority is assuming that the offence has been committed by the applicant and under this assumption, the present order of Disciplinary Authority is being passed invoking Article 311 (2) (b) of the Constitution of India. There are circulars, judgment of judicial forums which clearly states that if the allegations are grave then more opportunity should be provided to the delinquent official to put forward his defense. The applicant has not been subjected to a departmental enquiry and merely on assumptions the disciplinary authority adopting a short cut and has invoked the power under Article 311 (2) (b) of the Constitution of India. The reasoning recorded by Disciplinary Authority is based on suspicion and surmises. There is no occasion for the disciplinary authority to 22 OA No. 1361/2024 Item No. 14/C-II record that in the present case departmental enquiry is not reasonably practicable. The usage of expression like "as there is a reasonable belief" itself shows that the reasoning is based on suspicion and surmises. The reasoning recorded by Disciplinary Authority for dispensing away the departmental enquiry has been dealt by this Tribunal in various OAs qua the same department i.e. Delhi Police. It is observed that most of witnesses are official witness in criminal case; once the criminal trial and preliminary enquiry are possible, then departmental enquiry is also possible. There is no material in the hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in departmental enquiry. There is no clear and robust evidence in front of respondent authority that the applicant has made any attempt to influence any witness thus making the order of disciplinary authority as bad in law.
27. The applicant is Head Constable in Delhi Police. It is a lower rank among the subordinate officer, thus, it is absolutely wrong to record that applicant is in any position to influence or threaten any witness. There is no admissible material or evidence before the authorities to conclude that any witness is threatened or intimidating or will not depose in departmental enquiry and thus reason recorded for dispensing the Departmental Enquiry under Article 311 (2) (b) of the Constitution of India are not tenable. As 23 OA No. 1361/2024 Item No. 14/C-II stated above, the applicant is only Head Constable in Delhi Police, if as per the allegations, the case of the department is so good on merit then come what may the applicant should be given a chance to put forward his defense in disciplinary enquiry. The preliminary enquiry was conducted by the respondents in order to construe that the allegations are true against the applicant that too at the back of the applicant. This fact clearly shows that Article 311 (2) (b) of the Constitution of India has been adopted as a convenient method in the present case. There is no material in hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in the Departmental Enquiry. The impugned order is passed with the presumption that the allegations are proved against the applicant. In such a situation, Article 311(2) (b) of the Constitution of India cannot be invoked on the same as it amounts to abuse of process of law.
28. In the public interest and even as per Rule of law, it was incumbent upon the respondent authorities not to put to use Article 311 (2) (b) of the Constitution of India in present case and to give opportunity to the applicant to put forward his defence in the departmental enquiry. The gravity of misconduct alleged in the present case cannot be a ground to invoke the power under Article 311 (2) (b) of the Constitution of India. The applicant as per rule of law must be given opportunity to put forward his 24 OA No. 1361/2024 Item No. 14/C-II defence in regular Departmental Enquiry until and unless the same is not reasonably practical. The reasons recorded in present impugned order to dispensing away with the Departmental Enquiry are just not tenable in the eyes of law. Article 311 (2) (b) of the Constitution of India has been used as a short cut method. Admittedly in the present case a Preliminary Enquiry was conducted through ACP/PG Cell/Outer District, the order of dismissal from service was passed by Disciplinary Authority, if preliminary enquiry is possible then disciplinary enquiry is also possible. This Tribunal in various judgments has allowed many petitions in respect of Article 311 (2) (b) of the Constitution of India, the same ground that if PE is possible then DE is also possible.
29. The reasoning to dispense away with the departmental enquiry cannot be based on suspicion and surmises and probability. Once the Disciplinary Authority records that there is a probability that complainant and witness are put on constant fear and threat as a reason to dispense away with departmental enquiry, the onus to establish that such situation prevails is based on the efforts made by them to conduct departmental enquiry and imminent failure to hold the said departmental enquiry due to such actions of the applicant. Therefore, on the one hand taking no action to conduct disciplinary enquiry and while on the other citing the imaginary reasons of giving threat to witnesses etc., are 25 OA No. 1361/2024 Item No. 14/C-II the reasoning based on mere probability, suspicion and surmises and cannot be attached any credence. No material is placed before the authority to come to the conclusions that Departmental Enquiry is not possible and invocation of Article 311 (2) (b) of the Constitution of India is the only solution available to the respondents.
30. It is also observed that the power under Article 311 (2) (b) of the Constitution of India has been invoked subsequent to a preliminary enquiry. The object of conducting the preliminary enquiry for invoking the power under Article 311 (2) (b) of the Constitution of India is being laid down in circular dated 11.09.2007. The reason for dispensing away with the departmental enquiry are on suspicion and surmises. No such material even through preliminary enquiry was conducted is being placed before any of the authorities on the basis of which the conclusion would be drawn that the departmental enquiry is not practicable or even remotely supports the vague reasons recorded to dispense with the departmental enquiry. The cases in which preliminary enquiry is being conducted but in absolute violation of circular dated 11.09.2007 and straightaway the Disciplinary Authority passed an order under Article 311 (2) (b) of the Constitution of India is in violation of circular dated 11.9.2007 which was framed by department in pursuance of judgment of 26 OA No. 1361/2024 Item No. 14/C-II Hon'ble Tribunal in case of Suresh Kumar Vs. GNCTD in O.A. No. 2500/2006.
31. The Appellate Authority records that Preliminary Enquiry into the matter was conducted by ACP/PG Cell/Outer District. The facts and circumstance of the case were such that it was not reasonably practicable to conduct a regular departmental enquiry, cannot be a ground to invoke the Article 311 (2) (b) of the Constitution of India. The copy of preliminary enquiry report is not supplied to the applicant nor the applicant has been part of the preliminary enquiry but on the contrary the law is that Preliminary Enquiry is possible then even the departmental enquiry is also possible and in such cases the Article 311 (2) (b)of the Constitution of India is not invoked. The applicant is placing its reliance on the judgment of Hon'ble Tribunal decided on 23.04.2018 whereby the Hon'ble Tribunal after relying the judgment of Tarsem Singh, Hon'ble Apex Court whereby the Hon'ble Tribunal clearly stating "29. In Tarsem Singh's case Apex Court while allowing the appeals categorically observed " if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the applicant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice'. Accordingly, in the facts of the present OAs, we hold the issue in favour of the applicant. 30. In the circumstances and for the aforesaid reasons, all the OAs are allowed and the impugned orders are set aside with all consequential 27 OA No. 1361/2024 Item No. 14/C-II benefits. Since the applicant was under suspension as on the date of passing of the impugned orders, they would thus remain under suspension and the respondents shall take an appropriate decision regarding revocation or continuation of the same. The respondents shall proceed against the applicant departmentally, as per rules and the treatment of suspension period shall be dependent on the same. No costs. "
32. In the present case, when a Preliminary Enquiry is possible then even a Departmental Enquiry is also possible and thus the reasoning recorded by the Disciplinary Authority for dispensing away with the Departmental Enquiry is bad in law. As also stated above, the disciplinary authority did not even make the slightest possible effort to initiate a departmental inquiry as only after initiating a departmental inquiry a disciplinary authority can come to the conclusion that departmental inquiry is not reasonably practicable. Without making any efforts and only acting on the presumption and surmises, the disciplinary authority on its own, came to the conclusion that departmental inquiry is not practicable. No order for initiating the Departmental Enquiry was made by the department thus it is wrong to say that the present Departmental Enquiry is not reasonably practicable.
33. The disciplinary authority is not able 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 if a disciplinary enquiry is not reasonably practical and to arrive at 28 OA No. 1361/2024 Item No. 14/C-II such conclusions, the Disciplinary Authority has to record reasons. The present reasoning is based on the assumption that the applicant has committed the alleged crime and thus departmental enquiry is not required. The Disciplinary Authority on the presumption that the act committed by the applicant is so grave that it is practically not feasible to conduct enquiry, hence, came to conclusion that there is no need to conduct the departmental enquiry the scrutiny of law for invoking the power under Article 311 (2) (b) of the Constitution of India. The law on the subject is that graver are the allegation then more opportunity should be provided to the delinquent official to submit the defence. The gravity of the charge will never be an imminent factor in deciding whether power under Art 311 (2) (b) of the Constitution of India is to be invoked or not.
34. The present case is a case of absolute misuse of power vested in the Disciplinary Authority under Article 311 (2) (b) of Constitution of India and hence bad in law. The reasons recorded by the authorities to dispense away with the departmental enquiry do not withstand the scrutiny of law. The so called reasons recorded by the authorities in the impugned order to invoke the power under the Article 311 (2) (b) of the Constitution of India as being mentioned are only to avoid the departmental enquiry. It is a well settled law that without conducting any departmental enquiry, if the finding of guilt against the applicant has been 29 OA No. 1361/2024 Item No. 14/C-II arrived on to, the same act is enough to vitiate the order of the disciplinary authority. There is a finding of guilt against the applicant without conducting the Departmental Enquiry and further not even giving the opportunity to the applicant to put forward his defence and the same is enough to vitiate the order of the disciplinary authority. The authorities failed to consider that no substantial material has been collected to come on to a conclusion that witness will be discouraged to appear in a D.E. Thus the order of the authorities establishes non-application of mind, bias, arbitrariness and to adopt a short cut method of dismissing the applicant by invoking the power under Article 311 (2) (b) of the Constitution of India only keeping in mind the gravity of the allegations.
35. The applicant preferred an appeal dated 14.09.2023 (Annexure-A/3) against the punishment order of dismissal dated 24.08.2023 (Annexure-A/1). The Appellate Authority rejected the appeal on 13.03.2024 (Annexure-A/2) by an absolutely non-
speaking and mechanical order. The Appellate Authority failed to apply its mind that the law quoted by the applicant in the statutory appeal clearly establishes that the reasons recorded for dispensing with the DE are not legally tenable in the eyes of law. The present case is not a case for invoking the power under Article 311 (2) (b) of the Constitution of India. The Hon'ble Apex court has laid down clearly that the gravity of the charge will not be a 30 OA No. 1361/2024 Item No. 14/C-II tilting factor in deciding whether a Departmental Enquiry is a reasonably practicable or not. The graver the charge the opportunity to defend him should be more.
36. The applicant has placed reliance on the order dated 13.12.2023 passed by this Tribunal in the case of Dushyant Kumar Vs. Govt. of NCT of Delhi & Ors. The relevant portion of the same is reproduced below:-
"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 31 OA No. 1361/2024 Item No. 14/C-II 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."
37. The order of this Tribunal was challenged in the Hon‟ble High Court of Delhi in W.P. (C) 2407/2024 in the matter of Govt. of Delhi and Ors. Vs. Dushyant Kumar, The Hon‟ble High of Delhi dismissed the Writ Petition being meritless. The relevant portion of the said judgment is as under:-
"14. In the light of the aforesaid, we have no hesitation in concurring with the Tribunal that the petitioners' decision to dispense with the enquiry was wholly unsustainable. The petitioners appear to have proceeded on an erroneous presumption that merely because a criminal case has been registered against the respondent, he was to be treated as guilty of the misconduct. No doubt, the respondent is a police officer, whose misconduct can never be condoned, but 32 OA No. 1361/2024 Item No. 14/C-II this would not imply that the principles of natural justice should be given a complete go by. As noted hereinabove, the petitioners have not given any valid reason for dispensing with the enquiry except for repeatedly stating that the respondent is guilty of serious misconduct. This course of action, in our view, is completely impermissible.
15. Before we conclude, we may also consider the decision in Ajit Kumar Nag (supra) relied upon by the petitioners. We, however, find that instead of forwarding the case of the petitioners, the said decision supports the case of the respondent. It would, therefore, be apposite to refer to paragraph no.44 of the said decision, which reads as under:-
"44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre- decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Even before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge [(1723) 1 Str 557:93 ER 698] .) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated:" „To do a great right‟ after all, it is permissible sometimes „to do a little wrong‟." [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India [(1990) 1 SCC 613] (Bhopal Gas Disaster), SCC p. 705, para 124.] While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic 33 OA No. 1361/2024 Item No. 14/C-II rather than doctrinaire, functional rather than formal and practical rather than "precedential"."
16. We are, therefore, of the considered view that the petitioners have not only ignored the decisions of the Apex Court laying down the parameters for applicability of Article 311(2)(b) of Constitution of India, but have also ignored their own circulars dated 21.12.1993 and 11.09.2007. We, therefore, find no infirmity with the impugned order.
17. The writ petition being meritless is, accordingly, dismissed with all pending applications."
38. In the order dated 16.04.2024 passed in OA Nos. 542/2023 & 591/2023 in the case of Deepak vs. Govt. of NCT of Delhi & Ors by this Tribunal. The Tribunal held as under:-
"20. In the present case, as apparent from the reasons recorded by the respondents in the impugned order, it is apparent that the respondents have arrived at the conclusion for dispensing with the regular inquiry due to the involvement of the applicants in a grave and serious case. The respondents have jumped to the conclusion that on account of serious allegations, the applicants have become ineligible to be continued in police force. There is no finding that the 24 applicants and/or anybody on their behalf have at any point of time even attempted to influence or coerce any of the witness. Even there is no finding that the applicants in the captioned OAs who are very junior officers under the respondents were in a position to influence the witnesses who are generally senior officials working in the Government of India and particularly in CBI. It is also nowhere recorded by the respondents as to how if not only preliminary inquiry was found possible, but also the criminal trial is possible in the said case FIR with the support of more than nineteen witnesses and at no point of time the prosecution has even felt that those witnesses are not likely to turn up and regular inquiry was not possible in the matter. It is undisputed that regular inquiry is a Rule whereas dispensing with the same is only an exception. Though the respondents have recorded that if regular inquiry is initiated, the same is liable to take a long time, however, no reason has been given for the same and it is apparent that 34 OA No. 1361/2024 Item No. 14/C-II such reasoning and finding is based on surmises and conjectures.
21. In view of the aforesaid, we find that the impugned orders are not sustainable in the eyes of law. Accordingly, the OAs are allowed with the following order(s) :- (i) impugned orders dated 10.08.2022 and 25.01.2023 are set aside. The applicants shall be reinstated in service forthwith. (ii) the applicants shall be entitled for all consequential benefits in accordance with relevant rules and instructions on the subject. (iii) the aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of a copy of this order. (iv) the respondents shall be at liberty to initiate disciplinary proceedings against the applicants if they are so advised, of course in accordance with rules and instructions on the subject.
22. However, in the facts and circumstances of the case, there shall be no order as to costs."
39. In Writ Petition (C) No. 1258/2023 & CM App. No.4759/2023 in the case of Commissioner of Police Delhi Police & Ors. Vs. Manjeet; The Hon‟ble High Court of Delhi vide its judgement dated 22.04.2024 has held asunder: -
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was that due to seriousness of the offence alleged to have been committed by him it would not be reasonably practicable to conduct a regular departmental enquiry. It also emerges that on the basis of the allegations levelled against the respondent in the FIR coupled with the findings of the preliminary enquiry, the petitioners presumed that the respondent was guilty of a serious offence and therefore deserve to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. The petitioners have sought to dispense with 35 OA No. 1361/2024 Item No. 14/C-II the enquiry in such a casual manner and that too only on the basis of a perceived notion that the respondent being a police personnel, an enquiry against him was likely to be difficult on account of his influence. This course of action is clearly violative of Article 311(2)
(b) of the Constitution of India.
10. We have also considered the decision in Dushyant Kumar (Supra) and find that in the said case, this Court had rejected a similar challenge by the petitioners to the Tribunal's quashing of a dismissal order passed after dispensing with the enquiry. In fact, this Court after considering the circulars dated 21.12.1993 and 11.09.2007 issued by the petitioners themselves, observed that despite there being a requirement to record cogent reasons to dispense with the enquiry, the petitioners were passing cryptic orders dispensing with the enquiry in the most mechanical manner.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, with an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry. Furthermore, it is not as if the respondent has been let off without any departmental action being taken against him, as the learned Tribunal has already granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all applications.
13. Before we conclude, we are constrained to observe that in a large number of petitions filed by the Commissioner of Police which are coming up before this Court, we are finding termination orders are being passed by the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, 36 OA No. 1361/2024 Item No. 14/C-II direct that a copy of this order be placed before the Commissioner, Delhi Police to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons."
40. In other Writ Petition (C) No.4201/2024 on 20.03.2024 in case of Commissioner of Police and Anr. Vs. Jagmal Singh. The Hon‟ble High Court of Delhi has held as under:-
"10. From a perusal of the aforesaid, we find that the petitioners have proceeded to dispense with the enquiry against the respondent only because of the grave nature of allegations levelled against him and have simply observed that since the respondent had lowered the image of the police department and goodwill of a uniformed organisation, an exemplary punishment of dismissal ought to be imposed upon him so as to send a clear message to undesirable persons and to prevent reoccurrence of such crimes. In the light of the aforesaid, we find absolutely no reason to differ with the conclusion arrived at by the learned Tribunal that the dismissal order passed by the petitioners did not contain any justifiable reason whatsoever for dispensing with the enquiry. What clearly emerges is that the petitioners have proceeded on the premise that such police officers, who are charged with serious misconduct, should be immediately dismissed from service. This approach, in our view to dispense with an enquiry, would not meet the parameters laid down under Article 311(2) (b) of the Constitution of India.
11. At the cost of repetition, we may reiterate that merely because the respondent was a police personnel, would not entitle the petitioners to give a complete go- bye to the requirement of holding a departmental enquiry against him without recording any justifiable reasons as to why departmental enquiry could not be held against him.
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition, being meritless, is along with accompanying application, dismissed."
41. In the Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, the 37 OA No. 1361/2024 Item No. 14/C-II Hon‟ble Supreme Court vide its judgment on 10.07.2024 has dismissed the said SLP and the judgment of Hon‟ble Court of Delhi attained finality.
42. In another matter, the Hon‟ble High Court of Delhi in W.P. (C) No. 5562/2024, CAV 181 /2024 CM Appl. 22929/2024 vide its judgment dated 23.04.2024 in the case of Commissioner of Police and Ors. Vs. Sant Ram, the Hon‟ble High Court of Delhi in paras9 to 12 has held as under:-
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was their presumption that the respondent would threaten or intimidate the complainant and other witnesses. The petitioners were further of the view that a prolonged enquiry would cause more trauma to the complainant. It is also evident from the dismissal order that the petitioners had, on the basis of the evidence led in the preliminary enquiry, already made up their mind that the respondent was guilty of serious misconduct and had lowered the image of the police force in the eyes of the public.
10. In our considered view, even though the charges against the respondent are very serious and the interest of the complainant deserves to be protected, it does not imply that the principles of natural justice as also the provisions of section 11 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 should be given a complete go by on the basis of mere presumptions. Only because the respondent is a police personnel, would in our view, not be a ground either to presume that the witnesses will not come forward to depose against him in a regular enquiry or to hold him guilty without conducting the statutorily prescribed departmental enquiry and that too in a matter like the present where the complainant and the witnesses are also police personnel. In fact, what emerges is that on 38 OA No. 1361/2024 Item No. 14/C-II the basis of the report of the preliminary enquiry itself, the petitioners presumed that the respondent was guilty of serious misconduct and therefore deserved to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. This course of action, in our considered opinion, was clearly violative of Article 311(2)(b) of the Constitution of India.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, dispense with the requirement of an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry and had also been admitted by him. We therefore have no hesitation in agreeing with the learned Tribunal that the petitioners have dispensed with the enquiry only on the basis of a perceived notion that the respondent being a police personnel, would threaten the witnesses and holding of an enquiry would cause trauma to the complainant. Furthermore, we find that it is not as if the respondent has been let off without any departmental action being taken against him. As is evident from the impugned order, the learned Tribunal, while setting aside the dismissal order, has granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all accompanying applications.
43. In pursuance to the order of this Tribunal in OA No. 14/2018 titled as Sant Ram vs. Commissioner of Police and the judgment of the Hon'ble High Court of Delhi in W.P. (C) 5562/2024, CAV 181/2024 CM Appl. No.22929/2024, the 39 OA No. 1361/2024 Item No. 14/C-II respondents reinstated the services of the applicant Shri Sant Ram in that case. The order dated 26.07.2024 is reproduced as under:-
"In pursuance of judgment dated 06.02.2024 passed by the Principal Bench of Hon'ble Mr. R.N. Singh, Member (J) & Hon'ble Mr. Sanjeeva Kumar, Member (A), Central Administrative Tribunal, New Delhi in 0.A. No.14/2018 titled Sant Ram Vs. Commissioner of Police, Delhi & Ors. and judgment dated 23.04.2024 passed by the Hon'ble Ms. Justice Rekha Palli & Hon'ble Mr. Justice Saurabh Banerjee, High Court Delhi in W.P.(C) No.5562/2024, CAV 181/2024, CM Appl.22929/2024 -
Stay, CM Appl. 22930/2024 - Ex./LLOD titled Commissioner of Police & Ors. Vs. Sant Ram as well as opinion of Ms. Aishwarya Bhati, Ld. Addl. Solicitor General of India that "this is not a fit case for filing of SLP", the order of the disciplinary authority passed vide No.1833-1900/HAP/PTC (P-II) dated 01.08.2017 vide which Const. (Exe.) Sant Ram, No.324PTC (PIS No.28060573) was dismissed from the Delhi Police force under Article311(2(b) of Constitution of India deciding his suspension period as period not spent on duty and the order passed by the Appellate Authority vide No.106-66/SO/Jt.C.P/Trg, dated 03.11.2017 rejecting his appeal, are set aside. Accordingly, Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) is hereby re- instated in service from dismissal with immediate effect without prejudice to the further departmental action to be taken against him in accordance with the law. He is deemed to be under suspension from the date of his dismissal as he had already been placed under suspension vide D.D.No.29-A/PTC/JK dated 22.07.2017 and formal issued vide order No.1738-70/HAP/PTC (DA-II) dated 26.07.2017. His dismissal/suspension period will be decided later on.
Let Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) be informed accordingly.
40OA No. 1361/2024 Item No. 14/C-II
44. In other judgment of the Hon‟ble High Court of Delhi in Writ Petition (C) No.1258/2023 & CM Appl. No. 4759/2023 in case of Commissioner of Police, Delhi vs. Manjeet, the following circular was issued by the Office of Commissioner of Police as under:-
"No. 174/C/HC/24 5110-60 DA-III/Court Cell/PHQ dated 13.05.2024 To The Deputy Commissioner of Police, All District including Units, New Delhi.
Sub: W.P. (C) No. 1258/2023 & CM Appl. No. 4759/2023 in the matter of Commissioner of Police, Delhi vs. Manjeet.
Memo Enclosed please find here with a copy of letter No. 10264/W/DHC/ Writs/D-9/2023 dated 26.04.2024 received from the Registrar General, Delhi High Court alongwith copy of the order dated 22.04.2024 wherein the Hon'ble has observed that " in large number of petitions filed by the Commissioner of Police which are coming up before the this Court, we are finding termination orders are being passed b y the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner of Police, Delhi to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons.
It is, therefore, requested that the aforementioned directions of the Hon'ble High Court of Delhi shall be taken into consideration before passing termination 41 OA No. 1361/2024 Item No. 14/C-II orders by dispensing with the departmental enquiries in future.
This issues with the approval of Commissioner of Police, Delhi.
(Hareesh H.P) Deputy Commissioner of Police Legal Division/ PHQ, Delhi"
Relying upon the circular issued on 11.09.2002, a similar order was passed by the respondents in the OA No. 1088/2021 as under:-
"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 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 42 OA No. 1361/2024 Item No. 14/C-II 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 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. The Hon‟ble High Court of Delhi in WP(C )No. 11276/2024 and CM Appl. No.46705/2024, CM Appl. No. 43 OA No. 1361/2024 Item No. 14/C-II 46706/2024 in the matter of The Commissioner of Police & Ors. vs. Om Prakash & Anr. decided on 14.08.2024 has taken a serious cognizance of the order passed by the Disciplinary Authority resorting to invocation of Article 311 (2) (b) of the Constitution of India. For facility of reference, the relevant portion of above-mentioned judgment is as follow:-
"20. Accordingly, finding no error in the impugned order passed by the learned Tribunal, the present petition is dismissed.
21. Before parting with this matter, we hereby direct the Commission of Police Delhi to personally look into such matters and take proper decision so that Courts/Tribunals are not burdened with a case where departmental inquiries can be initiated. We hereby make it clear that if such like petitions are filed in future wherein dismissal or suspension orders are passed without holding any enquiry without any plausible reasoning, certainly heavy cost will be imposed and that too, will be recovered from the Officer, who takes such type of unwarranted decision.
22. A copy of this order be transmitted to the Commissioner of Delhi Police for information and compliance."
46. 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 circulars dated 11.09.2007 and 13.05.2024. The reasons given by the respondents for dispensing away 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.
44OA No. 1361/2024 Item No. 14/C-II
47. In view of the aforesaid facts and circumstances in 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 24.08.2023 (Annexure-A/1) of the Disciplinary Authority and dated 13.03.2024 (Annexure-A/2) of the Appellate Authority, are set aside;
(ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and instructions 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.
(v) No order to cost. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/neetu/