Central Administrative Tribunal - Delhi
Ex -Constable (Driver) Satyawan ... vs Government Of N.C.T.D on 26 May, 2010
Central Administrative Tribunal
Principal Bench
OA No.2837 of 2009
New Delhi, this the 26th day of May, 2010
Honble Justice Mr. V. K. Bali, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
Ex -Constable (Driver) Satyawan Vashist
S/o Shri Narain Singh
R/O Plot No. 30, Shiv Enclave,
Diachaun Road
Delhi. Applicant
(By Advocate: Shri Sachin Chauhan)
Versus
1. Government of N.C.T.D.
Through Commissioner of Police,
Police Headquarters, I P Estate
New Delhi.
2. The Addl. Commissioner of Police,
Police Headquarters, I P Estate,
N.S.O. Building
New Delhi.
3. The Dy Commissioner of Police, (Security)
Police Headquarters, I P Estate,
N.S.O. Building
New Delhi. ..Respondents
(By Advocate: Mrs Renu George)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) :
By this OA, Ex-Constable (Driver) Satyawan Vashist, the Applicant herein, assailed (i) the order dated 26.4.2006 (Annexure-A1) passed by the Disciplinary Authority whereby he was dismissed from service under Article 311(2)(b) of the Constitution of India; (ii) the order dated 7.11.2008 (Annexure-A2) by which the Appellate Authority has rejected his appeal; and (iii) the letter dated 14.9.2009 (Annexure-A3) issued by the Respondent Deputy Commissioner of Police (Security) in which the Applicant was informed that the DCP has no power to review the dismissal order. Consequently, the Applicant has approached this Tribunal with the prayer to set aside the said three orders and to direct the Respondents to reinstate the Applicant in service with all consequential benefits.
2. We may state the brief facts that led the Applicant to approach this Tribunal. The Applicant while working in Security Wing of Delhi Police was involved in a case with the FIR No.65 dated 26.04.2008 u/s 354/363 IPC, PS, Tughlak Road, New Delhi for the reasons that on the night of intervening 25/26.04.2008, one minor girl child by name Rani, daughter of Shri Ram Dayal, resident of Village Dhawakar, Post Mao, PS, Lachura, DIstt. Jhansi (UP) was sleeping with her parents (both father and mother working as Labourers in a newly under construction Mess and Dinning Hall at E-Block, Security Lines, New Delhi). At about 1:00 am, the Applicant is alleged to have picked up the said minor girl child and outraged her modesty. When she screamed, her parents woke up and the Applicant fled away from the spot inside E-Block premises. The Applicant was promptly located and identified. The Disciplinary Authority after assessing the circumstances of the case and misconduct committed by the Applicant arrived at a conclusion that holding an enquiry would not be practicable as it involved a minor girl child. On the same day the order of dismissal was issued under Article 311 (2) (b) of the Constitution of India. The Applicant preferred an appeal against the said order, which was rejected by the Appellate Authority vide order No.353-355/Appeal Cell/Addl.CP/Sec., dated 07.11.2008 (Annexure-A2). The Criminal case registered against the Applicant was decided by the Trial Court vide judgment dated 20.01.2009 acquitting the Applicant. The copy of judgment dated 20.01.2009 is at Annexure A-6. Consequent upon his acquittal in the Criminal Case by the Trial Court, the Applicant approached the authorities for the review of orders passed by the Disciplinary and Appellate Authorities. The Applicant was informed vide letter dated 14.9.2009 that no powers to review their own orders are vested in the Disciplinary Authority, therefore, the Applicant may approach the competent forum for redressal of his grievance. Hence, the Applicant is before this Tribunal.
3. Shri Sachin Chauhan, learned Counsel for the Applicant contended that the Respondent Disciplinary Authority dispensed with the departmental enquiry and the concerned authority did not make slightest efforts to initiate the enquiry and only on the basis of suspicion, presumptions and surmises dismissed the Applicant by invoking Article 311(2)(b). Thus, he submits, the Applicant has been deprived of the opportunity to defend himself to prove his innocence. Such an action, Shri Chauhan terms, is violation of the principle of natural justice and the protection given under Article 311 of the Constitution. Further, his contention was that if four witnesses including the minor girl child Rani could tender evidence in the criminal case, to say that an enquiry would not be reasonably practicable as that involved a minor girl child, the Disciplinary Authoritys decision was based on his presumptive approach to the case. Thus, the reasons advanced by the Disciplinary Authority and even the Appellate Authority to dispense with the departmental enquiry were vague and flimsy, as the witnesses were not put to notice. Relying on the Honble Apex Court judgment in the case of Union of India Versus Tulsi Ram Patel [AIR 1985 SC 1416], Shri Chauhan submitted that the Disciplinary Authority ought to have recorded the reasons in writing to dispense with the departmental enquiry. Further, he placed his reliance on the judgment of Honble Apex Court in Satyavir Singh Versus Union of India [1986 SCC (L&S) 1] to say that the enquiry could not have been lightly dispensed with on the ipsi dixit of the Disciplinary Authority, as nothing was placed before him at the time of passing the order of Applicants dismissal, to arrive at the conclusion that the departmental enquiry was not reasonably practicable. Shri Chauhan further placed his reliance on the orders of this Tribunal in the case of HC Suresh Kumar Versus Government of NCTD (OA No.2500/2006 decided on 5.6.2007). It was a case of non application of mind on the part of both Disciplinary and Appellate Authorities. He also submitted that the Respondents violated their own circular issued in the light of the judgment in HC Suresh Kumar Case (supra) which envisaged that the power under Article 311 (2) (b) would be exercised by the Disciplinary Authority only after getting the prior approval of the Special Commissioner of Police; and such a permission was not taken in the present case. Another contention advanced by the Counsel for the Applicant was that the Applicant was acquitted in the Trial Court and as his innocence was proved in the criminal case, the Applicant should have been reinstated into service forthwith. Shri Sachin Chauhan, therefore, argued that as the present case was a case of no misconduct and no evidence, the OA should be allowed with all consequential benefits.
4. On the other hand, Mrs. Renu George, learned Counsel representing the Respondents vehemently opposed Shri Chauhans contentions. She submitted that the alleged crime of outraging the modesty of a 9 year old minor girl child being a grave crime, the Applicant deserved the dismissal under Article 311 (2) (b). She contends that the Disciplinary Authority has mentioned the reasons for dispensing with the departmental enquiry in his order. Referring to the acquittal of the Applicant in the criminal case, she submits that Respondents would examine the same under Rule 12 of Delhi Police (Punishment and Appeal) Rule 1980 in case the Applicant was ordered to be reinstated in service. She also highlighted that the Applicant got acquitted as the star prosecution witnesses disowned their deposition made during the investigation.
5. Having heard the rival contentions, we also perused the pleadings. Issue involved in this OA is in narrow compass. The Applicant was dismissed from service under Article 311 (2) (b) by dispensing with the departmental enquiry as the same was not reasonably practicable but, on the other hand, in the criminal case based on the same set of alleged action, 4 witnesses could be examined and the Applicant was acquitted in the Trial Court. In this backdrop, whether Applicants dismissal is legally sustainable?
6. Before we delve into the analysis of the facts on the issue, we would like to scan through the settled position in law in respect of dismissal of employees under Article 311 (2) (b). In a catena of judgments, the Honble Supreme Court has held that in order to justify an order of dismissal/removal/reduction in rank under Article 311(2)(b), the authority empowered to do so must record reasons in writing. Such an order must unambiguously show that, for good, convincing and sufficient reasons, it was not reasonably practicable to hold the departmental enquiry, as the Article 311 (2) basically grants a reasonable opportunity to be provided to the delinquent to defend himself and establish his innocence. It has also been held that judicial review would be permissible in matters where administrative discretion is exercised and the court can put itself in the place of the Disciplinary Authority [Union of India & Anr. etc. v. Tulsi Ram Patel etc., 1985 (3) SCC 398; Satyavir Singh & Ors. etc. v. Union of India & Ors., 1985 (4) SCC 252; Chief Security Officer & Ors. v. Singasan Rabi Das, 1991 (1) SCC 729; Jaswant Singh v. State of Punjab & Ors., 1991 (1) SCC 362; Union of India & Ors. v. R. Reddapa & Anr., 1993 (4) SCC 269; Kuldip Singh v. State of Punjab & Ors., 1996 (10) SCC 659; and Sudesh Kumar v. State of Haryana & Ors., 2005 (11) SCC 525].
7. Relying on the ratio of these judgments of the Apex court, this Tribunal has, time and again, quashed the orders of the respondents dispensing with the departmental enquiry in terms of Article 311 (2)(b) [Jagdish v. Union of India & Ors., [2003 (2) [(CAT (PB)-Full Bench)] ATJ 5]; Ex. Constable Gopal Lal Meena v. Union of India & Ors., in OA No. 2305/2006, decided on 14.05.2007; SI Anandi Parsad v. Govt. of N.C.T.D. & Ors., in OA No. 1903/2006 decided on 23.02.2007; Ex. Constable Radhey Shayam v. Union of India & Ors., in OA No. 1066/2001, decided on 14.12.2001; Ex. Constable Vinod Kumar v. Union of India & Ors., in OA No. 731/1997 decided on 02.12.1997; Head Constable Suresh Kumar Versus Government of NCTD and Others in OA No.2500/2006 decided on 5.6.2007]. Some of these orders, when challenged in the Honble High Court, have been upheld.
8. Further, we may look at the scenario from another point of view that is what may be the possible reasons when and where the competent authority may find the same as not reasonably practicable to hold the enquiry. In the case of Satyavir Singh and Others versus Union of India and Others (supra) the Honble Supreme Court provides some such scenario and has observed as follows:
(59) It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry. Illustrative cases would be-
(a) where a civil servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so, or
(b) where the civil servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held, or
(c) where an atmosphere of violence or of general indiscipline and insubordination prevails, it being immaterial whether the concerned civil servant is or is not a party to bringing about such a situation. In all these cases, it must be remembered that numbers coerce and terrify while an individual may not.
(60) The disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the civil servant is weak and must fail. We may note that none of the above ingredients or circumstances in which it would not to reasonably practicable to hold a departmental disciplinary enquiry, are present or have been pleaded in the OA before us.
9. The Full Bench of this Tribunal in the context of ratio of various judgments of the Apex Court aforementioned, recorded the following final order in the case of Jagdish versus Union of India & Ors. (supra):
11. Though the Supreme Court has already drawn the conclusion in the case of Satyavir Singh (supra), for the purpose of the present controversy, we can conveniently draw the following conclusions:
judicial review would be permissible against the orders that are passed by the concerned authorities under Article 311(2)(b) of the Constitution dispensing with the departmental enquiry;
the language used in the order is not the conclusive factor. The Tribunal would be competent to go into the details; and it varies with the facts and circumstances of each case as to whether the order would be justified or not.
10. Further, in the case of Ex-Constable Radhey Shyam versus Union of India and Others. (supra), coordinate Bench of this Tribunal has observed thus:
7. Furthermore, the action of the disciplinary authority is also not in consonance with the Government of Indias instructions issued in OM No. 11012/1185/Estt(A) dated 11.11.1985, where in certain circumstances have been described, where the disciplinary authority can resort to Article 311 (2)(b) for dispensing with the enquiry. None of these conditions exist in the present case. It appears that the disciplinary authority on its ipsi dixit resorted to the provisions without application of mind. Once the witnesses are cited in the criminal trial and their statements are recorded under Section 161 of the CrPC their presence would have been easily secured in the disciplinary proceedings. Apart from it, as per the provisions of Rule 16(3) of the Delhi Police (Punishment & Appeal ) Rules, 1980, in the event the witnesses are not available, their earlier statements can be made admissible for the purpose of treating it as a piece of evidence.
x x x
9. In view of their own circular of 8.11.1993 where the Commissioner of Police has decided that where the police officials have been involved in cases of Rape or Dacoity or any such heinous offences should not be dismissed straight away and where there is a grave question of law and fact and criminal proceedings are instituted a departmental enquiry can be conveniently held and would not be straightaway dispensed with. The disciplinary authority has not applied his mind to their own instructions and passed the order without any justified reasons.
11. Further, Honble Supreme Court in the matter of Union of India & Anr. etc. v. Tulsi Ram Patel etc., 1985 (3) SCC 398 has clearly held that the authority must record its reasons in writing while dispensing with departmental enquiry. Honble Supreme Court in the matter of Satyavir Singh & Ors. etc. v. Union of India & Ors., 1985 (4) SCC 252, has held that disciplinary enquiry cannot be lightly dispensed with on ipsi dixit of the Disciplinary Authority and can be done only when it is not reasonably practicable to proceed with it. Recording of presumption and surmises would not be a sufficient compliance of the constitutional provisions.
12. We may refer to the judgement of Honble Delhi High Court in case of R.K. Mishra v. G.M., N. Railway, [1977 Lab.IC 643] to note what connotation the word practicable in the context of the present case under Article 311 (2) (b) means? We take the extract of following observations in the R. K. Mishra case :-
The word `practicable in the context of the disciplinary rule would imply some `physical or legal impediment to the holding of inquiry, such as a situation may arise where it is not reasonably practicable to secure the attendance of delinquent or the persons who are to conduct the inquiry or those who are to give evidence. The mere anxiety to take drastic or swift action, however expedient from the point of view of administration, could not be said to have rendered the holding of an enquiry impracticable.
13. On facts, unless there was material to show that the Applicant had terrorized or intimidated the witnesses, inquiry could not be dispensed with [Shyamlender B. Kanji Lal v. Union of India, 1989 (7) SLR (CAT-CAL) 288].
14. Against the setting of the ratio laid down in the judgments cited above, if we look at the facts of the present case, we find that the Disciplinary Authority has recorded the following :-
I am of the considered view that holding an enquiry will not be practicable as it involves a minor girl child. The witnesses can be threatened or inducement offered to thwart the enquiry process. Such a person who has proved to be curse for a minor girl child who is hardly 09 years of age is capable of threatening, terrorizing or intimidating the witnesses who will come forward to depose against him during the enquiry. In order to send a clear message to such an undesirable person and to maintain discipline as well as to prevent the recurrence of such an incident, it has become very necessary to remove the Constable (Driver) from service. Hence, I dispense with the need for conducting a Departmental Enquiry. Keeping in view the gravity of misdemeanor committed by the Constable (Driver), he does not deserve to be retained in public service and he is hereby dismissed from the Delhi Police with immediate effect under Rule 311 (2) (b) of the Constitution of India. The Appellate Authority while deciding Applicants appeal passed the following orders:-
So far his contention that if the appellant had committed the crime as per FIR, he would have been dealt with departmentally also being in service, he has been dismissed under article 311 (2) (b) of Constitution of India is totally wrong since no where the applicants involvement is there in the said FIR as per the written statement, is not admitted. As already mentioned in the dismissal order that holding an enquiry will not be practicable as it involved a minor girl child. The witnesses can be threatened or inducement offered to thwart the enquiry process. Such a person who has proved to be curse for a minor girl child who is hardly 09 years of age is capable of threatening, terrorizing or intimidating the witnesses who will come forward to depose against him during the enquiry. As regards his plea that the said girl Rani has not named the appellant in any where in her written statement as accused or has identified him for the said incident is not tenable. As per the statement given by the victim at the time of incident, it is clear that the appellant was the person who picked up the said minor girl child and outraged her modesty. He was promptly located and identified.
The misconduct of the appellant is extremely irresponsible, most abhorrent and serious in nature. If the policemen who is charged with the sacred responsibility of upholding the rule of law himself indulges in such acts of heinous crime and lawlessness, the faith of the common man in governments authorities is shattered. Such acts of police misdemeanor produce highly deleterious impact on the organization. Such misconduct directly erodes the very basic police functioning. The Disciplinary Authority after assessing/considering over all facts and circumstances of the case awarded the punishment of dismissal from service which is reasonable, justified and commensurate with the gravity of misconduct committed by him.
In view of the above discussion and facts of the case, I do not find any reason to interfere with the orders of the Disciplinary Authority and appeal submitted by Ex.Const. Satyawan No.9185/DAP, 3185/Sec. is hereby rejected.
15. We find from the above two orders that the Respondents have made no effort at all to hold an enquiry as the dismissal order came on the very day of the incident and on their ipsi dixit they have come to the conclusion that it is not reasonably practicable to conduct the disciplinary enquiry. As a matter of fact, the alleged incident took place at about 1.00 am on 26.4.2008 and the order of dismissal was passed on the same day i.e. 26.4. 2008 while dispensing with an enquiry under Article 311(2)(b). The FIR was registered also on the same day. Under these circumstances, the reasons given by the respondents in support of their claim that it is not reasonably practicable to hold the enquiry as the incident involved a minor child is in our considered view non application of mind and not taking efforts to proceed against the Applicant through a normal enquiry besides we find the reasons are based on conjectures and surmises.
16. We may advert to the criminal case framed against the Applicant for the same set of charges. In the Court of Metropolitan Magistrate Delhi the Criminal Prosecution of the Applicant was instituted on 8.8.2008 under Section 363 and 364 of IPC in 278/2 which was decided on 20.1.2009 in which the Applicant (accused in the case) was acquitted. The prosecution examined 4 witnesses (PW1-Ajeet Singh Sub Inspector of Police; PW2- Ram Dayal father of the minor child Rani; PW3-Smt. Bhagwati-mother of the minor Child Rani; and PW4-Rani the complainant in the case. The relevant part of the order in the said criminal case against the Applicant is extracted below :-
6. On appreciation of evidences, the material witness in the present case is PW4. PW4 Rani deposed that she could not say whether police had recorded her statement or not. The person who took her with him was very healthy and tall. The accused had caught hold of her hand and when she shouted, he ran away. Police had taken her thumb impression on blank paper forcibly. She did not know anything further. She admitted that once she had come to the court and given her statement before the Magistrate. Her statement u/s 164 Cr. P.C. is Ex.PW4/A. She was cross examined by Ld. APP as she was stated to be resiling from her previous statement and during cross examination statement Ex.PW4/B was read over to her which she denied having made so before the police. She denied the suggestion that accused ran away after outraging her modesty towards the barrack. She further denied the suggestion that her parents told about the incident to Security Guards who were on duty. She denied the suggestion that she had been won over by the accused that is why she was deliberately not admitting the contents of the statement Ex.PW4/B. Thus PW4 was declared hostile and even during cross-examination by the learned APP she denied that the accused had tried to outrage her modesty and only stated about holding her hand. The other witnesses have not identified the accused and were hostile on the actual incident and identification of accused.
7. As such the prosecution has failed to produce anything incriminating on record to link the accused with the alleged offence or to prove the guilt of the accused beyond reasonable doubt. Accordingly, the accused is acquitted for the offence under Section 363/354 IPC. His bail bond cancelled. Surety discharged. File be consigned to record room.
17. From the above it is clear that the facts and circumstances of the present case before us and of the case of Jagdish v. Union of India & Ors. (supra) are similar. The reasons recorded by the respondents for dispensing with the departmental enquiry are also similar. As a matter of fact, in the case before us, it is not the contention of the respondents that witnesses in the criminal case have already turned hostile. The order of dismissal was passed barely 5 days after the FIR was registered. There is, therefore, no reason for us to come to a different conclusion or give a different verdict.
18. We also note that the present case is covered on all fours of the order of this Tribunal in the case of Constable Suresh Kumar Versus Government of NCTD and Others [OA No.2500/2006 decided on 5.6.2007] wherein one of us (Honble Mr. Justice V. K. Bali, Chairman) decided the case by quashing and setting aside the orders of dismissal from service and reinstating the Applicant therein to service and the Respondents were granted liberty to hold departmental enquiry, if so advised.
19. When the facts are on the side of the Applicant, can it be stated that the ingredients of Article 311(2)(b) of the Constitution would be satisfied by the reasoning given in the order of dismissal? In our considered opinion, the answer would be in the negative. The serious nature of the alleged offence is not the tilting factor in support of the Respondents. The Disciplinary Authority had recorded the reasons but once the reasons are checked, and on verification it was found that the complainant minor girl child Rani and her father and mother appeared before the Trial Court on the same set of charges, to say that departmental enquiry would not be reasonably practicable, did not convince us. It is not a case where the enquiry was not practicable. Merely because the complainant is a minor girl child is not a ground to conclude that the departmental enquiry is not practicable. Consequently, the impugned orders, in the peculiar circumstances, cannot be legally sustained because it was practicable to hold the enquiry more so when there is little for us to conclude that there is no other material to state otherwise.
20. Taking the totality of facts and circumstances of the case into consideration, we are of the considered view that the reasons assigned by the respondents for coming to the conclusion that it was not reasonably practicable to hold a departmental enquiry are not at all satisfactory. It is settled proposition of law that Article 311(2) is primarily about granting a reasonable opportunity of hearing to a delinquent to defend himself in order to establish his innocence. Hence, dispensing with such an enquiry is an exception, and such exception has to be resorted to only in rare cases. The main intention of the Article 311(2) of the Constitution has been violated in the current case. In the catena of judgments, as referred to above, it is legally settled position that in order to justify an order of dismissal/removal/reduction in rank under Article 311(2)(b), the Disciplinary Authority must record reasons in writing to show that for good, sufficient and convincing reasons, it would not be justifiably practicable to hold the departmental enquiry. The reasons recorded by the Disciplinary Authority in dispensing the departmental enquiry are not convincing and are not acceptable in the eyes of law. Hence, we are of the opinion that the Respondents orders are liable to be quashed and set aside.
21. After the Applicant was acquitted of the criminal charge in the Trial Court, he presented a letter dated 14.09.2008 to the Deputy Commissioner of Police (Security) which was rejected. Section 12 of the Delhi Police (Punishment & Appeal) Rules 1980 mandates that when a Police Officer has been tried and acquitted by a Criminal Court, he should not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not unless; (a) the criminal charge has failed on technical grounds, or (b) in the opinion of the Court or on the Deputy Commissioner of Police the prosecution witnesses have been won over; or (c) the court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or (d) the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or (e) additional evidence for departmental proceedings is available. We have come to the conclusion in the previous paragraphs that the dismissal of the Applicant under Article 311 (2)(b) is unjustified and illegal on the ground that departmental proceedings could have been initiated against him, as in the criminal case 4 prosecution witnesses could be examined. Once the Applicant is reinstated into service due to our orders, the Section 12 of the Delhi Police (Punishment & Appeal) Rules, 1980 would be operational. When the Applicant submitted his representation to the Deputy Commissioner of Police after his acquittal, the DCP should have examined the case as per law. On the other hand, in a technical way, his application was disposed of without submitting the same with a proper analysis to the competent authority to take a decision. Therefore, we are of the considered opinion that the Applicant has not received justice in the hands of the Deputy Commissioner of Police (Security) in getting his grievances redressed. Thus, we are of the opinion that the Respondent No.3s letter dated 14.09.2009 must be quashed.
22. For the above discussed reasons, the Applicant succeeds and the Original Application is allowed in terms of our following orders: 1(i) the order passed by the Disciplinary Authority dated 26.4.2006 (Annexure-A1) whereby he was dismissed from service under Article 311(2)(b) of the Constitution of India; (ii) the order dated 7.11.2008 (Annexure-A2) by which the Appellate Authority has rejected his appeal and (iii) the letter dated 14.9.2009 (Annexure-A3) issued by the Respondent Deputy Commissioner of Police (Security) are quashed and set aside; (2) consequently the Respondents are directed to reinstate the Applicant to his service which he was holding at the time he was dismissed from service; and (3) liberty is granted to the Respondents to initiate departmental proceedings if so advised and if so permissible. There is no order as to costs.
(Dr. Ramesh Chandra Panda) (V.K. Bali)
Member (A) Chairman
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