Central Administrative Tribunal - Delhi
Dharambir Singh vs Comm. Of Police on 3 February, 2026
1
Item No. 29 O.A. NO. 3647/2016
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 3647/2016
Dated this the 3rd day of February, 2026
Hon'ble Mr. R N Singh, Member (J)
Hon'ble Mr. B. Anand, Member (A)
Sh. Dharambir Singh (Aged about 48 years)
Ex. Const. (Exe.)
PIS No. 28902235
S/o Sh. Attar Singh,
R./o Vill. Shyorompura P.O. Biroli,
P.S. Anupshahar,
Distt. Bulandshahar, (U.P.)
.....Applicant
(Advocate: Mr. Sourabh Ahuja)
Versus
1. Delhi Police Through Commissioner of Police Police Head Quarter,
I.P.Estate, I.T.O. New Delhi-110001
2. Special Commissioner of Police Provisioning & Logistics New Delhi
3. Deputy Commissioner of Police Provisioning & Logistics New
Delhi
...Respondents
(Advocate: Mr. Dhananjay Rana)
C=IN, CN=
Kanika Kaushik,
L=North Delhi,
O=CENTRAL
ADMINISTRATI
VE TRIBUNAL
PRINCIPAL
BENCH, OU=
Court Master, ST=
Delhi, E=
kkanika576@
gmail.com,
postalCode=
110085,
serialNumber=
7546e314840a2a5
Kanika Kaushik
74a896d3e13a6e5
8605fc57bbb5479
81e0bca1c17ae63
95df, street=
2
Item No. 29 O.A. NO. 3647/2016
O R D E R (ORAL)
Hon'ble Mr. R. N. Singh, Member (J) In the present O.A., filed under Section 19 of the Administrative Tribunal Act, 1985, the applicant has prayed for the following reliefs:-
"a) Set aside the dismissal order N0.320-430/HAP(P-II)/P&L, dated 19.02.2015,
b) passed by disciplinary authority i.e. D.C.P. Provisioning & Logistic, Delhi; Set aside the order of Appellant Authority· vide order N0.68/P-Sec. (Appeal)/SPL.C.P./P&L, dated 19.04.2016;
c) Direct the respondents to reinstate the applicant benefits. with all consequential
d) Any other order/direction, which this Hon'ble Court may deem fit and proper, in the interest of justice."
2. The claim of the applicant has been contested by the respondents by filing a counter-reply, wherein they have prayed for dismissal of the O.A. with cost.
3. The applicant has filed a rejoinder, reiterating his claim and the grounds pleaded in support thereof.
4. Earlier, the O.A. was allowed by this Tribunal vide order/judgment dated 20.07.2022, setting aside the impugned orders passed by the disciplinary authority and the appellateC=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 3 Item No. 29 O.A. NO. 3647/2016 authority and with liberty to the respondents to initiate a disciplinary proceeding against the applicant in accordance with law. The said order of the Tribunal was challenged by the respondents before the Hon'ble High Court of Delhi by way of Writ Petition (Civil) No. 15073/2022. The said writ petition was allowed by the Hon'ble High Court vide order/judgment dated 20.03.2024. The Hon'ble High Court set aside the Tribunal's order/judgment dated 20.07.2022 and remanded the O.A. to this Tribunal for fresh adjudication on merits. While remanding the matter back to this Tribunal, the Hon'ble High Court also expected this Tribunal to deal with the reasons furnished by the petitioners for dispensing with the departmental inquiry. Thus, the O.A. has come before this Tribunal for fresh adjudication on the basis of merit.
5. We have heard the learned counsels for the parties and have also gone through the pleadings available on record and various judgments referred to and relied upon by the learned counsels with their assistance. C=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 4 Item No. 29 O.A. NO. 3647/2016
6. Undisputed facts are that the applicant, while working as Constable (Executive), was on one day's CL for 19.08.2013, with permission to avail prefix and suffix of 17th-18th.08.2013 and 20.08.2013 being gazetted holiday, and was due to be back on duty on 21.08.2013, but he did not resume his duty on that date and was marked absent on 24.08.2013. An absentee notice dated 03.09.2013 was also issued to him, which was delivered at his residence. The official who was deputed to deliver the said notice reported that the applicant was not found at his residence in spite of his repeated efforts.
Accordingly, he had to serve the said notice upon the applicant's father. Even thereafter, he made efforts to find the applicant, but he could not find him. It is also reported by him that he gave in writing that, due to a quarrel with neighbors, his son's name has been mentioned in one case FIR dated 23.08.2012, being FIR No. 194/2013 u/s 147/148/149/323/504/302 IPC and 3(2) 5 SC/ST Act, at PS Anoopshahar, District Bulandshahar (UttarPradesh) lodged atC=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 5 Item No. 29 O.A. NO. 3647/2016 the behest of the villagers of the applicant. On inquiry, it was found that the applicant was named as one of the accused in the said case FIR. Subsequently, the SHO, Police Station Anoopshahar, vide his report No. Nil dated 28.05.2014, has intimated that the applicant is an accused in the said case FIR.
The said report was received in the office of the respondents on 25.06.2014, and it has been intimated vide further report dated 22.07.2014, received on 11.08.2014, that there is sufficient evidence of involvement of the applicant in the said case.
7. In para 7 of the counter reply, the respondents have categorically recorded that "Since he was found fully involved in the said criminal case, the constable was placed under suspension vide order dated 25.08.2014". In order to initiate departmental inquiry against the applicant under the relevant rules of Delhi Police (Punishment and Appeal) Rules, 1980 (hereinafter referred to as "the Rules"), an order was endorsed dated 09.09.2014 to the S.P., Bulandshahar. It was reported that a non-bailable warrant was issued against the applicant from theC=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 6 Item No. 29 O.A. NO. 3647/2016 Court of Chief Judicial Magistrate, Bulandshahar and the constable was required to be produced before the learned Court by 28.09.2014, and the required documents could not be supplied as the case was under investigation. Despite issuance of non-bailable warrants, the applicant could not be arrested.
Further, the Senior Superintendent of Police, Dehat, Bulandshahar, vide his office report 16.12.2014 has forwarded the report dated 15.12.2014 stating that there was sufficient evidence for involvement of the applicant herein in the said case and that a non-bailable warrant against him was issued from the learned Court and also proceedings under Sections 82 and 83 CRPC is under process.
8. In this background, the respondents passed the impugned disciplinary order dated 19.02.2015. The reasons for dismissing the applicant from service vide the impugned order dated 19.02.2015 are apparent from the order itself. Accordingly, the relevant portion of the said impugned order is reproduced as under:- C=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 7 Item No. 29 O.A. NO. 3647/2016 "On the basis of above said reports, opinion from L.A. to C.P., Delhi was obtained and in compliance to circular issued from PHQ into the matter vide No. 5545- 645/P.Cell/Vig. dated 11.9.2007, the matter was forwarded to Spl.C.P./Admn.. Delhi for seeking her concurrence for taking necessary action against Ct. Dharamvir Singh. 626/L under article 311(2) (b) of Constitution of India and the same has been approved by the Spl.C.P./Admn.
The repeated reports received from SSP/Bulandsahar SHO/Bulandsahar prove that Ct. Dharamvir Singh, 626/L (28902235) is an accused in above case FIR No. 194/2013 dated 23.08.2013 u/s 147/148/149/323/504/302 IPC and 3(2) 5 SC/ST Act, PS Anoopshahar, District Bulandshahar (Uttar Pradesh) and there are sufficient evidence against the Ct. which prove his involvement in the said case But at this stage, the authority concerned of Anoopsahar, Bulandsahar are unable to provide documents being confidential and before arrest of the Ct. Since sufficient evidence is existing, hence, no P.E. was conducted. The involvement of Ct. Dharamvir Singh. 626/L in above mentioned criminal case shows that he committed the gravest act of misconduct and also shows his criminal propensity and complicity. The facts and circumstances of the case are such that despite issuance of N.B.W. the Ct. has not been arrested and evading his arrest and it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulter constable as there is reasonable belief that no witness/complainant would come forward to depose against him in case a departmental enquiry is initiated against him. The further retention of the Ct. in Police service is not warranted in the public interest. The police department is constituted to serve the people, preserve their rights and peace. The society expects the policemen to protect citizen from criminals and crimes. This kind of crime by a public servant is a scourge that has to be dealt with heavy hands and his continuation in service in the department is hazardous and highly dangerous to the society. Therefore, I. Sharat Kumar Sinha, IPS. Deputy Commissioner of Police. Prov. & Logistics, Delhi hereby dismiss Constable (Exe) Dharamvir Singh, No.626/L (PIS No. 28902235) from service with Immediate effect under article 311(2) (b) of Constitution of India. His suspension period from 25.08.2014 to the date of issue of this order is treated as period "not spent on duty for all intents and purposes."
9. Aggrieved by the aforesaid, the applicant preferred a representation/appeal, which has been rejected by the C=IN, CN= appellate authority vide impugned order dated 19.04.2016. Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 8 Item No. 29 O.A. NO. 3647/2016
10. In such impugned order, after incorporating the background of the case, the appellate authority has precisely reproduced the grounds pleaded by the applicant and thereafter his findings which are as under:-
"The appellant Ex-constable(Exe.) Dharamvir Singh has filed an appeal against the said order vide his letter dated 18.05.2015, wherein the appellant has submitted as under:
That the applicant has been falsely implicated in the FIR No. No.194/2013 dated 23.08.2013 u/s 147/148/149/323/504/302 IPC and 3(2) 5 SC/ST Act, PS Anoopshahar, District Bulandshahar (Uttar Pradesh) and he has been dismissed while the investigation in the abovesaid case was underway.
While concluding the investigation, the IO has found him and one another alleged person Ghanender Singh innocent and did not submit chargesheet against them.
He further prayed that the applicant be reinstated in service and provided with full benefits including salary, allowances, promotion/seniority, provident fund & insurance etc. In order to verify the above submissions of the appellant SSP, Bulandsahar was requested vide this office Letter No. 1501-02/HAP/P&L dated 22.06.2015 to provide information on the abovesaid aspect. In response to the said request, SSP, Bulandsahar forwarded the report of DSP, R.P. Singh vide his Letter No. A- 1241/2015 dated 27.07.2015 by hand to this office through SI(Exe.) Dharamvir Singh, No. 1013-D intimating that the appellant has not been found involved in the abovesaid case.
Further, to examine under what circumstances the appellant was found involved in the said criminal case and now his name does not figure in the chargesheet, I called the Dy. SP, Himanshu Gaurav, who was posted Dy. SP incharge of Police Station Anoopshahar where case was registered and initial investigation was conducted, who informed that the appellant was very much present in the village at the relevant time, and was involved in the murder. However, he managed medical documents suggesting him to be on medical rest and further on the basis of affidavit submitted by some villagers during the course of investigation, hisC=IN, CN= Kanika Kaushik, name has not been included in the chargesheet. L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 9 Item No. 29 O.A. NO. 3647/2016 The applicant was heard on 29.09.2015 when the appellant made following submissions:
That his name has not been mentioned in the chargesheet submitted after the investigation was completed.
That his name does not figure in the list of accused persons referred for trial. Findings :
I have carefully gone through the records of the case including reports of local police, the appeal and the submissions made by the appellant. I have also heard the appellant in person in the Orderly Room. I do not agree with the submissions of the appellant for the following reasons. The initial Investigating Officer/Circle Officer of the case (PS Anoopshahar) vide their reports, had reported that sufficient evidence are available against the appellant Ex-constable (Exe.) Dharamvir Singh. For the purpose of investigation including custodial interrogation and arrest, IO had obtained NBW against the appellant from the Court concerned and initiated proceedings under section 82/83 CrPC with the orders of the concerned. But, now, he has been saved in the case by accepting affidavits of villagers in his defense which is nothing but a device to win over the witnesses and reflects adversely on the conduct of the IO/local police. Further, it is seen that the appellant Ex-constable (Exe.) Dharamvir Singh has managed false medical documents suggesting him to be on medical rest. The appellant never joined the investigation so much so that the Investigating Officer obtained Non Bailable Warrant from Court, which also led to initiation of proceedings order section 82 & 83 of the Criminal Procedure Code. Furthermore, he did not inform/appear before the Disciplinary Authority i.e. DCP/P&L to prove his innocence and remained unauthorisedly absent from duties. Keeping in view the facts and circumstances of the case I am of the firm view that it is not reasonably practicable to hold the enquiry against the appellant Ex- constable(Exe.) Dharamvir Singh, No. 626/L as there is a reasonable belief that no witness would come forward to depose against the appellant in case a departmental enquiry is initiated. I, therefore, do not find any reason to interfere with the order passed by the Disciplinary Authority."
11. Undisputed facts are also that, after investigation into the said case FIR, the concerned police authority did not name the applicant as accused/co-accused in the said case FIR. The reasons recorded by the disciplinary authority for invoking itsC=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 10 Item No. 29 O.A. NO. 3647/2016 jurisdiction under Article 311(2)(b) of the Constitution of India are as follows:
(i) repeated reports from SSP Bulandshahr and SHO Bulandshahr prove that the applicant is an accused in the said case FIR and there is sufficient evidence against him which prove his involvement in the said case. However, at that stage, the authority concerned at PS Anoopshahar was unable to provide documents being confidential and before arrest of the applicant .Since sufficient evidence is existing, no DE was conducted.
(ii) The involvement of the applicant in the above mentioned case shows that he committed the gravest act of misconduct and also shows his criminal propensity and complicity.
(iii) Despite issuance of NBWs, the applicant has not been arrested and he has been evading his arrest and it C=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 11 Item No. 29 O.A. NO. 3647/2016 could not be practically possible to conduct a regular departmental inquiry against him.
(iv) no witness/complainant would come forward to depose against him in case a departmental enquiry is initiated against him; and
(v) In view of the aforesaid, further retention of the applicant in the Delhi Police Service is not warranted.
12. Similarly, on bare perusal of the impugned appellate order, it is apparent that the appellate authority has recorded its findings for rejecting the applicant's statutory appeal for the reasons as under:-
(i) Sufficient evidence is available against the applicant.
(ii) The applicant has been saved in the said case FIR by accepting affidavits of villagers in his defence which is nothing but a devise to win over the witnesses and reflects adversely on the conduct of the IO and the local police.
C=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 12 Item No. 29 O.A. NO. 3647/2016
(iii) The applicant has managed to produce a false medical document suggesting him to be on medical rest. The applicant never joined the investigation which led to issuance of NBWs and intiations of proceedings under Sections 82 and 83 of Criminal Procedure Code
(iv) He did not appear before the disciplinary authority to prove his innocence and remained unauthorisedly absent from duty.
(v) There is reasonable evidence that no witness would come forward to depose against the applicant in case a departmental enquiry is initiated.
13. In the aforesaid background, the appellate authority came to a firm view that it is not reasonably practicable to hold a departmental inquiry against the applicant.
14. From the reasons recorded by the disciplinary authority and the appellate authority it is evident that no attempt was made to initiate departmental proceedings by C=IN, CN= the respondents and the applicant was held guilty merely on Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 13 Item No. 29 O.A. NO. 3647/2016 the basis of allegations in the FIR, ignoring the fact that he was not named in the challan filed before the learned Trial Court. There is also nothing on record to show that respondents conducted any inquiry before arriving at the conclusion that the affidavits, if any, filed by him before the IO in the said case FIR were false or the same were obtained by the villagers and/or by anybody under any kind of coercion or undue influence.
15. There is also nothing on record to suggest any basis available to the respondents to conclude adversely and/or holding the applicant guilty of the alleged offences and/or against local police in the matter and probably they were not even competent to do so.
16. Thus, what transpires from the reasons recorded by the respondents in the orders impugned in the present OA for dispensing a regular departmental inquiry against the applicant is that the applicant's name was involved in a criminal case C=IN, CN= wherein allegations of serious offences were made coupled Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 14 Item No. 29 O.A. NO. 3647/2016 with the fact that non-bailable warrant was issued against the applicant and a proceeding under Section 82 and 83 CRPC was also initiated against him while the said case FIR was pending investigation. However, the respondents have miserably failed to appreciate that the applicant had gone out of station on sanctioned leave and only during inquiry he could have proved his bona fide absence beyond the sanctioned leave period.
Thus, the reason for respondents to pass the impugned order of dismissal of the applicant is nothing but involvement of the name of the applicant in a case FIR containing serious allegations against him and others. It is also not in dispute that the said case FIR was investigated by the concerned police. The name of the applicant was dropped from the accused, co-
accused persons, and challan was filed before the learned trial court for framing of the charges and further trial, etc. Nothing is on record to suggest that the applicant has acted in any manner to adversely affect the departmental inquiry, if any, initiated against him, and/or the respondents were not in position toC=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 15 Item No. 29 O.A. NO. 3647/2016 initiate a departmental proceeding against him. More so in view of the fact that an investigation in the said case FIR was made and concluded by filing a challan before the learned Trial Court, dropping the name of the applicant from the case FIR. There is nothing on record to suggest that witnesses who could have been the witnesses in the said criminal case could have been the witnesses in the departmental inquiry, if any, for the same set of allegations as were there against the applicant initially in the said case FIR also.
17. Now, the issue arises in the aforesaid facts and circumstances, as to whether the respondents have rightly invoked their jurisdiction under Article 311(2)(b) of the Constitution of India or not?
18. Learned counsel for the applicant has argued that in view of the judgment of a coordinate Bench of this Tribunal, consisting one of us (Hon'ble Mr. R.N.Singh) dated 10.02.2022 in OA No. 1383/2020 and a batch of O.As titled Ct. Sumit C=IN, CN= Sharma vs. GNCTD and Ors., the impugned orders are not Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 16 Item No. 29 O.A. NO. 3647/2016 sustainable in law. He has argued that in the said case, original applicants were involved in criminal cases with allegations of very grave charges against them and this Tribunal after detailed consideration of the provisions of Article 311(2)(b) and various judgments of the Hon'ble Apex Court starting from Union of India & Anr. etc versus Tulsiram Patel etc., reported in 1985 (3) SCC 398 and various judgments of the Hon'ble High Court of Delhi has allowed the O.As.
19. He has further placed reliance on an order judgment of the coordinate bench of this tribunal in OA No. 4693/2018 titled Jagbir Singh v. Commissioner of Police and he submits that this Tribunal, after considering various judgments of this Tribunal and also the circulars issued by the respondents from time to time on the subject, has allowed this O.A. and in view of the ratio of the judgment, the present O.A. deserves to be allowed.
Learned counsel for the applicant has also argued that simply for the reason that the applicant has been working as a constable, the respondents have wrongly concluded that theC=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 17 Item No. 29 O.A. NO. 3647/2016 applicant was in an influential position and he could have stalled a just and fair inquiry. He has argued that the Hon'ble Apex Court in the case of Union of India and others vs. Ram Bahadur Yadav, reported in (2022) 1 SCC 389, has held that merely for the reason that the government employee has been working as Head Constable during the relevant point of time, he cannot be held to be in a powerful position. In the present case, admittedly, the applicant has been working only as a constable.
20. On the other hand, learned counsel for the respondents has vehemently opposed the claim of the applicant. He has argued that in view of the law laid down by the Honorable Apex Court in Tulsiram Patel (supra) and the fact that the applicant who has not been available for investigation into the criminal case and or for reporting for his duty under the respondents, no useful purpose would have been served ordering a regular departmental inquiry against him. He submits that the applicant might have been dropped from the array of accused persons in the said case. However, the fact remains that allegations wereC=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 18 Item No. 29 O.A. NO. 3647/2016 that he has unauthorizedly remained absent from the duty and his name was found in the said case FIR involving grave allegations and other co-accused persons. He submits that in such facts and circumstances, the competent authority amongst the respondents has reasons to be satisfied for not initiating a regular departmental inquiry against the applicant. He submits that in view of the law laid down by the Hon'ble Apex Court in Tulsiram Patel (supra) it is always for the competent disciplinary and appellate authority to take a decision as to whether in the facts and circumstances a regular departmental inquiry is possible or not and it is not for the courts and tribunals to take a decision in this regard. He further adds that the decision in this regard taken by the competent disciplinary and appellate authority by using their discretion with due diligence should not be interfered into.
21. In rejoinder, Mr. Ahuja, learned counsel for the applicant, has argued that even if the applicant was not available to receive the notices of the respondents and the respondentsC=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 19 Item No. 29 O.A. NO. 3647/2016 were having necessary material to initiate proceedings against him, the respondents could have in fact, within their jurisdiction, under Rule 18 of the rules, which provides for an ex parte departmental proceedings, initiated proceedings which the respondents have chosen not to adopt for the reasons best known to them.
22. We have considered the submissions made by the learned counsels for the parties. As noted above, the reasons for dispensing with a regular departmental inquiry over passing an order for dismissal have been recorded herein above. The Articles 311 and 311(2)(b) of the Constitution of India have been considered by the Hon'ble Apex Court in various cases including in the case of Tulsiram Patel (supra) and such judgment of the Hon'ble Apex Court has been considered and even subsequent judgments have been considered by this Tribunal while passing the common order judgment dated 10th February 2022 in Ct. Sumit Sharma (Supra).
Paras 27 to 29, paras 34 to 35, 38 and 45 of the same read as under:-
"27. Article 311 of the Constitution of India reads as under:-
C=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 20 Item No. 29 O.A. NO. 3647/2016 "Article 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.--(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply:--
(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."
28. In the Constitution Bench decision of the Hon'ble Apex Court in the case of Union of India & Anr. etc. v. Tulsiram Patel etc. (supra), the scope of provisions of Article 311 of the Constitution of India was considered in detailed and in paragraph 130 thereof is reproduced as hereunder:- "130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary 'practicable' means C=IN, CN= Kanika Kaushik, "Capable of being put into practice, carried out in action, effected, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 21 Item No. 29 O.A. NO. 3647/2016 accomplished, or done; feasible". Webster's Third New International Dictionary defines the word 'practicable' inter alia as meaning "possible to practice or perform : capable of being put into practice, done or accomplished : feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word 'reasonably' as "in a reasonable manner : to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A 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 government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311 (3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India and others, (1984) 3 S.C.R. 302, is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial C=IN, CN= Kanika Kaushik, Superintendent, Northern Railway, Varanasi. The Senior Commercial L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 22 Item No. 29 O.A. NO. 3647/2016 Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge Vof the matter."
29. The issue of invoking the provisions of Article 311(2)(b) of the Constitution of India also came before the Hon'ble Supreme Court in the case of Jaswant Singh v. State of Punjab & Ors. (supra) and the Hon'ble Supreme Court ruled in paragraph 5 as under:-
"5. The impugned order of April 7, 1981 itself contains the reasons for dispensing with the inquiry contemplated by Article 311(2) of the Constitution. Paragraph 3 of the said order, which we have extracted earlier, gives two reasons in support of the satisfaction that it was not reasonably practicable to hold a departmental enquiry against the appellant. These are (i) the appellant has thrown threats that he with the help of other police employees will not allow holding of any departmental enquiry against him and (ii) he and his associates will not hesitate to cause physical injury to the witnesses as well as the enquiry officer. Now as stated earlier after the two revision applications were allowed on October 13, 1980, the appellant had rejoined service as Head Constable on March 5, 1981 but he was immediately placed under suspension. Thereafter, two show cause notices dated April 4, 1981 were issued against him calling upon him to reply thereto within 10 days after the receipt thereof. Before the service of these notices the incident of alleged attempt to commit suicide took place on the morning of April 6, 1981 at about 11.00 a.m. In that incident the appellant sustained an injury on his right arm with a knife. He was, therefore, hospitalised and while he was in hospital the two show cause notices were served on him at about 10.00 p.m. on April 6, 1981. Before the appellant could reply to the said show cause notices respondent 3 passed the impugned order on C=IN, CN= Kanika Kaushik, the very next day i.e. April 7, 1981. Now the earlier departmental L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 23 Item No. 29 O.A. NO. 3647/2016 enquiries were duly conducted against the appellant and there is no allegation that the department had found any difficulty in examining witnesses in the said inquiries. After the revision applications were allowed the show cause notices were issued and 10 days time was given to the appellant to put in his replies thereto. We, therefore, enquired from the learned counsel for the respondents to point out what impelled respondent 3 to take a decision that it was necessary to forthwith terminate the services of the appellant without holding an inquiry as required by Article 311(2). The learned counsel for the respondents could only point out clause (iv)(a) of sub-para 29(A) of the counter which reads as under:
"The order dated April 7, 1981 was passed as the petitioner's activities were objectionable. He was instigating his fellow police officials to cause indiscipline, show insubordination and exhibit disloyalty, spreading discontentment and hatred, etc. and his retention in service was adjudged harmful."
This is no more than a mere reproduction of paragraph 3 of the impugned order. Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3 thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on the respondents to disclose to the court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent 3 in the impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at page 270 of Tulsiram case (1985 (3) SCC 398 : 1985 SCC(L&S) 672 :
1985 (S2) SCR 131) : (SCC p. 504, para 130) "A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrary or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the department's case against the government servant is weak and must fail." * The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter filed by respondent 3 it is contended that the appellant, C=IN, CN= Kanika Kaushik, instead of replying to the show cause notices, instigated his fellow L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 24 Item No. 29 O.A. NO. 3647/2016 police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental inquiry was held against him. No particulars are given. Besides it is difficult to understand how he could have given threats, etc. when he was in hospital. It is not shown on what material respondent 3 came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. This allegation is based on his alleged activities at Jullundur on April 3, 1981 reported by SHO/GRP, Jullundur. That report is not forthcoming. It is no one's contention that the said SHO was threatened. Respondent 3's counter also does not reveal if he had verified the correctness of the information. To put it tersely the subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with of the inquiry envisaged by Article 311(2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be sustained."
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34. Legality of dismissal of a constable under the respondents by invoking the provisions of Article 311(2)(b) of the Constitution of India again came for consideration before the coordinate Bench of this Tribunal in OA No.4324/2017, titled Nitesh Kumar vs. Govt. of NCT of Delhi and others, decided on 05.03.2019, as noted above, the applicant therein in the said case has been the co-accused/co-
delinquent in the said FIR No.120/2017 in which the applicant - Constable Sumit Sharma in the aforesaid OA 1383/2020 was also involved. Needless to mention here that this Tribunal considered the Constitutional Bench decision of the Hon'ble Supreme Court in the case of Tulsiram Patel (supra), and various other decisions of the Hon'ble Apex court in Jaswant Singh (supra), Chief Security Officer and Others Vs. Singasan Rabi Das (supra), Union Territory, Chandigarh and Others Vs. Mohinder Singh (supra), Southern Railway Officers Association & Another. v. Union of India and Others (supra) and also Ved Mitter Gill (supra) and after considering the pleadings on records and arguments advanced by the learned counsels for the parties, the coordinate Bench of this Tribunal vide its Order/Judgment dated 05.03.2019 in the said case held in paras 20 and 21 as under:-
"20. A conspectus of the aforesaid decisions discloses that an order C=IN, CN= passed invoking Article 311(2)(b), just by reciting the language of the Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 25 Item No. 29 O.A. NO. 3647/2016 same, verbatim, cannot made it valid, unless sufficient/cogent reasons and circumstances satisfying the requirements of the said Article were prevailing at the relevant time. Similarly, every order passed by invoking Article 311(2)(b), cannot become invalid on the ground of violation of principles of natural justice. What is required is the existence of valid reasons and circumstances for dispensing with the inquiry before invoking Article 311(2)(b).
21. In one line of cases, after satisfying, in the facts of the said cases, it is not reasonably practicable to hold an inquiry, the orders under Article 311(2)(b) were upheld. Similarly, in another line of cases, noticing that the requirements of Article 311(2)(b) for dispensing with the inquiry, in the circumstances of the said cases were not satisfied, the orders were set aside."
35. Similarly dismissal of an employee working under the respondents by invoking the provisions of Article 311(2)(b) of the Constitution of India came for consideration before the coordinate Bench of this Tribunal in OA No.2097/2019, titled Neeraj Kumar (supra), this Tribunal after considering the facts, various judgments of the Hon'ble Apex Court and Hon'ble High Court of Delhi, held in paras 14 to 16 thereof as under:-
"14. In the instant case, the applicant was placed under suspension vide order dated 31.07.2018 due to his involvement in a criminal case and lodging of a FIR against him. Subsequently, preliminary enquiry was ordered. In the preliminary enquiry it was recommended that exemplary punishment should be given. It was also indicted that there is a possibility that no witness would come forward in view of the influential position held by the delinquent and, therefore, it would not be reasonably appropriate to conduct regular DE. The DA noted the observations and dispensed with the enquiry and ordered dismissal of the applicant under Article 311 (2) (b) of the Constitution of India. The AA considered the appeal of the applicant and dismissed the same. In none of the orders, there is any mention of details of raid conducted by the CBI and any recovery of cash during this raid has also not been mentioned in the preliminary enquiry report. The apprehension that the applicant may influence the witnesses, due to which it was decided to dispense with the DE are merely based on surmise and conjectures. The criminal proceedings are pending in the Court wherein also witnesses would be produced and cross examined. The apprehension of the witnesses turning hostile in the DE is not tenable as no such instance had come to the notice or specifically mentioned during the preliminary enquiry.
15. Article 311 provides for protection to a public servant from indiscriminate actions by the employer. Any punishment can be C=IN, CN= Kanika Kaushik, imposed only after conducting inquiry. That cannot be dispensed L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 26 Item No. 29 O.A. NO. 3647/2016 with indiscriminately. It is only in rare cases such as where security of State is involved, that recourse can be taken to Article 311(2)(b) of the Constitution. In this case, the preliminary inquiry itself has virtually declared that the applicant is guilty of grave misconduct. At the same time, regular inquiry is dispensed with. The whole exercise is not only opposed to the law laid down by the Hon'ble Supreme Court, but also is a contradiction in terms.
16. In view of the Hon'ble Apex Court's judgments, the DE can be dispensed with only on the grounds which are robust, clear and substantial. We do not find any such ground or fact which has been brought on record. We are not commenting on acts and omissions alleged against the applicant. It is only about the denial of reasonable opportunity for presenting his case to the applicant in a DE and denial of natural justice."
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38. The issue of legality of dismissal of a Constable by resorting to the provisions of Article 311(2)(b) of the Constitution of India came for consideration before this Tribunal in OA 1876/1996, titled Ex. Constable Mahabir Singh and another vs. Union of India and others, and the same was considered and dismissed by this Tribunal vide Order/Judgment dated 24.4.2000. In the said case, the applicants were working as Constables in Delhi Police. It was alleged that they had raped one alleged (prosecutrix) and has also assaulted her husband. This information was passed on to the Disciplinary Authority of the applicants in the said OA. The Disciplinary Authority visited the site where the offence was alleged to have been committed. He was accompanied by the SHO, some other police officials, MLA and the complainant. The said OA was dismissed by the Division Bench of this Tribunal. When the same was challenged before the Hon'ble High Court of Delhi in WP(C) No.7068/2000, titled Ex. Constable Mahabir Singh and another vs. Union of India and others, the Hon'ble High Court vide Order/Judgment dated 2.9.2009 allowed the said Writ Petition and quashed the Tribunal's Order/Judgment dated 24.4.2000 as well as the orders passed by the Disciplinary Authority dispensing with the departmental inquiry, paras 13 to 17 thereof read as under:-
"13. To what extent can the court interfere with the opinion formed by the Disciplinary Authority that it is not reasonably practicable to hold a disciplinary enquiry? This question is required to be answered in the light of Article 311 (3) of the Constitution which places the seal of finality on the decision of the Disciplinary Authority whether or not it is reasonably practicable C=IN, CN= to hold an inquiry. This question is also to be answered in the light of Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 27 Item No. 29 O.A. NO. 3647/2016 the decision of the Constitution Bench in Union of India and another v. Tulsiram Patel and others, (1985) 3 SCC 398. 14. The Supreme Court observed in Tulsiram Patel that whether it is reasonably practicable to hold an enquiry is a matter of assessment to be made by the Disciplinary Authority. This is because the Disciplinary Authority is generally on the spot and knows what is happening. The Supreme Court also observed that finality given to the decision of the Disciplinary Authority is not binding upon the Court so far as its power of judicial review is concerned. In an appropriate case the Court may strike down the order dispensing with the enquiry as also the order imposing penalty.
15. On the scope of interference by the Court, the Supreme Court held that interference is permissible on grounds well established in law in the exercise of the power of judicial review in matters where administrative discretion is exercised. For example, interference is permissible when clause (b) of the second proviso to Article 311(2) of the Constitution has not been properly applied, as also in a case when there is a charge of mala fides. Similarly, the Court can examine the relevancy of the reasons given by the Disciplinary Authority for holding that it is not reasonably practicable to hold an enquiry. However, the Court will not sit in judgment like a Court of first appeal over the relevancy of the reasons. The Court may also judge the reasonableness of the decision in the light of the then prevailing situation rather than in the cool and detached atmosphere of the court room, removed in time from the actual situation. In a case where two views are possible, the Court will decline to interfere.
16. Considering the law laid down by the Supreme Court, we have gone through the reasons given by the Disciplinary Authority of the Petitioners to conclude that it is not reasonably practicable to hold a disciplinary enquiry. On a perusal thereof, it appears to us that what weighed with the Disciplinary Authority was the seriousness of the alleged crime; that the Petitioners were caught "red handed"; that the Petitioners were implicated in the preliminary enquiry; and that despite all this the Petitioners might be let off if the prosecutrix and her husband turn hostile. It appears that on a cumulative assessment and to prevent a "not guilty" decision of the enquiry officer, in the event of the prosecutrix and her husband turning hostile, that apparently prompted the Disciplinary Authority to take precipitate action.
17. We say this because the Disciplinary Authority has stated in the order dated 30th November, 1994 that the Petitioners may so terrorize the prosecutrix and her husband who may not be able to C=IN, CN= withstand the brutal force of the "two highly undesirable police Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 28 Item No. 29 O.A. NO. 3647/2016 personnel". This clearly suggests that the application of mind by the Disciplinary Authority was to the ultimate outcome of the disciplinary enquiry and not to the reasonable practicability of holding a disciplinary enquiry. In other words, it appears from a reading of the order dated 30th November, 1994 that it might have been possible to hold a departmental enquiry, but the Petitioners may not be found guilty in that enquiry because of their ability to terrorize the prosecutrix and her husband who were the only witnesses to the alleged offence. In our opinion, the application of mind by the Disciplinary Authority was not to the reasonable practicability of holding an enquiry, but to the result of the enquiry. Therefore, the reason given for dispensing with the inquiry was neither relevant nor germane to the issue."
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45. In the cases in hand, it is evident that in most of the cases preliminary inquiry had admittedly been done and regular enquiry had been dispensed with on the ground of possibility of witnesses likely to be unduly harassed or pressurized by the delinquent(s). In all the case FIRs, chargesheet had been filed, list of witnesses had been filed, a few witnesses had been examined or after tiral the accused(s) had been acquitted. In a few cases, the reason for dispensing with the enquiry had been given that the material had come on record to prove the criminal acts of the applicants. The reason had been also of threat to discipline, integrity and morality of the entire police force. On perusal of the impugned orders, it is evident that either the authorities have passed the orders of dispensing with the enquiry on jumping to the conclusion that delinquency or guilt of the applicants as alleged in the case FIRs stood proved even without regular enquiry in the departmental proceedings or trial in the concerned learned court(s). In most of the cases, conclusion about delinquency and commission of the offence(s) by the applicant(s) had been arrived merely on the basis of the preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made to summon the witness(es) to lead the C=IN, CN= Kanika Kaushik, evidence against the applicant(s) or anything was found that on L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 29 Item No. 29 O.A. NO. 3647/2016 regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) to lead evidence against the applicant(s). Rather the respondents have themselves filed the final challan(s) with a list of witness(es) before the concerned learned Court(s) and in a few cases, the accused(s) had been acquitted as well. In a few cases, witnesses have been examined before the concerned learned Court(s). Moreover, co-delinquent in the cases of Neeraj Kumar (supra) and Ramesh Kumar (supra), the similar impugned orders have been set aside by the Tribunal and the orders of the Tribunal have also attained finality."
23. In Jagbir Singh (Supra), an order passed by invoking the provisions of Article 311(2)(b) of the Constitution was under
challenge. This tribunal, after considering the judgment of the Hon'ble High Court in various cases, has allowed the OA, paras 42 to 44 of the same read as under:-
"42. In the 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 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 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 C=IN, CN= that it was not reasonably practicable to hold an enquiry against Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 30 Item No. 29 O.A. NO. 3647/2016 the respondent. The petitioners have sought to dispense with 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, 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."
43. In the 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:- C=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 31 Item No. 29 O.A. NO. 3647/2016 "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." In the Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, the 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.
44. In the Hon'ble High Court of Delhi dated 23.04.2024 in W.P. (C) No. 5562/2024, CAV 181 /2024 CM Appl. 22929/2024 in the case of Commissioner of Police and Ors. Vs. Sant Ram, Hon'ble High Court of Delhi 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 C=IN, CN= were further of the view that a prolonged enquiry would cause Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 32 Item No. 29 O.A. NO. 3647/2016 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 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 C=IN, CN= Kanika Kaushik, the impugned order, the learned Tribunal, while setting aside the L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 33 Item No. 29 O.A. NO. 3647/2016 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"
24. The Hon'ble Apex Court in Ram Bahadur (Supra) has ruled in para 16 and 17 as under:-
"16. The respondent was only a Head Constable during the relevant point of time and he was not in powerful position, so as to say that he would have influenced or threatened the witnesses, had the inquiry was conducted. The very fact that they have conducted confidential inquiry, falsifies the stand of the appellants that it was not reasonably practicable to hold an inquiry. The words 'not reasonably practicable' as used in the Rule, are to be understood in a manner that in a given situation, ordinary and prudent man should come to conclusion that in such circumstances, it is not practicable. In the present case, there appears no valid reason to dispense with inquiry and to invoke Rule 161 of the Rules. We are in agreement with the view taken by the High Court. In the case of Sahadeo Singh & Others v. Union of India & Others1, this Court has held that in the facts and circumstances of the said case, it was not reasonably practicable to hold a fair inquiry, as such, it was held to be justifiable on the facts of the case. Whether it is practicable or not to hold an inquiry, is a matter to be considered with reference to the facts of each case and nature of charge, etc.
17. In the judgment in the case of Tarsem Singh v. State of Punjab & Others, this Court has categorically held that when the Authority is of the opinion that it is not reasonably practicable to hold inquiry, such finding shall be recorded on the subjective satisfaction by the authority, and same must be based on the objective criteria. In the aforesaid case, it is further held that reasons for dispensing with the inquiry must be supported by material."
25. In view of the aforesaid binding precedents, we are of the considered view that the reasons recorded by the respondents for dispensing with a regular inquiry, if any, against the C=IN, CN= Kanika Kaushik, L=North Delhi, O=CENTRAL ADMINISTRATI VE TRIBUNAL PRINCIPAL BENCH, OU= Court Master, ST= Delhi, E= kkanika576@ gmail.com, postalCode= 110085, serialNumber= 7546e314840a2a5 Kanika Kaushik 74a896d3e13a6e5 8605fc57bbb5479 81e0bca1c17ae63 95df, street= 34 Item No. 29 O.A. NO. 3647/2016 applicant in the orders impugned in the present OA are not sustainable in law.
26. Accordingly, the OA deserves to be allowed and the same is allowed with the following orders:-
(i) The impugned orders dated 19.02.2015 and 19.04.2016 are set aside.
(ii) Applicant shall be entitled for all consequential benefits including reinstatement from the date of his dismissal, etc.
(iii) The aforesaid directions shall be complied with within a period of 8 weeks from the date of receipt of a copy of this order.
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
27. However there shall be no order as to costs.
(B.Anand) (R.N. Singh)
Member (A) Member (J)
kk/
C=IN, CN=
Kanika Kaushik,
L=North Delhi,
O=CENTRAL
ADMINISTRATI
VE TRIBUNAL
PRINCIPAL
BENCH, OU=
Court Master, ST=
Delhi, E=
kkanika576@
gmail.com,
postalCode=
110085,
serialNumber=
7546e314840a2a5
Kanika Kaushik
74a896d3e13a6e5
8605fc57bbb5479
81e0bca1c17ae63
95df, street=