Central Administrative Tribunal - Delhi
Rishi Pal vs Comm. Of Police on 21 November, 2017
1 OA 1293/14
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.1293 OF 2014
New Delhi, this the 21st day of November, 2017
CORAM:
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
AND
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
.............
ASI Rishi Pal Singh,
Aged 55 years,
No.2536/N (PIS No.28790148),
S/o Sh.Sardar Singh,
R/o B-14, Police Colony,
Bhajan Pura, Delhi ......... Applicant
(By Advocate: Mr.Sachin Chauhan)
Vs.
1. Govt. of NCTD,
through Commissioner of Police,
Delhi Police,
Police Headquarters, I.P.Estate,
New Delhi.
2. The Joint Commissioner of Police,
Central Range, Delhi,
Through Commissioner of Police,
Delhi Police,
Police Headquarters, I.P.Estate,
New Delhi.
3. The Deputy Commissioner of Police,
North District, Delhi,
Through Commissioner of Police,
Delhi Police,
Police Headquarters, I.P.Estate,
New Delhi. ........... Respondents
(By Advocate: Ms.Avinash Ahlawat)
.............
Page 1 of 45
2 OA 1293/14
ORDER
Per RAJ VIR SHARMA, MEMBER(J):
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
"i) To set aside the impugned order dated 02.04.2013 whereby the extreme punishment i.e. dismissal from service is being imposed upon the applicant and order dated 02.07.2014 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents to reinstate the applicant in service with all consequential benefits including seniority and promotion and pay and allowances.
ii) Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant."
2. Resisting the O.A., the respondents have filed a counter reply.
The applicant has also filed a rejoinder reply thereto.
3. We have carefully perused the records and have heard Mr.Sachin Chauhan, the learned counsel appearing for the applicant, and Ms.Avinash Ahlawat, the learned counsel appearing for the respondents.
4. The impugned order dated 2.4.2013 passed by the Deputy Commissioner of Police, North District, Delhi, as Disciplinary Authority, dismissing the applicant from service with immediate effect, reads thus:
ORDER It is alleged that on 21/03/2013, at about 4.30 PM, ASI Rishi Pal Singh No.2536/N with the help of his associates namely 1) Rahul s/o Prem Sagar r/o Mandir Wali Gali, Sector- 4, R.K.Puram, New Delhi, 2) Hussain Mubarak s/o Rashid r/o G-12/249, Sangam Vihar, New Delhi, and 3) Ramesh Kumar s/o Chhote Lal r/o C/294, Chirag Delhi, New Delhi, who were seated in Innova Car bearing registration No.BR-01-BF-1333, stopped one Swift Car bearing registration No.UP-80-CF-5023, Page 2 of 45 3 OA 1293/14 near gate No.4, Millennium Depot, IP Estate on the pretext of checking. ASI Rishi Pal Singh No.2536/N de-boarded one Ram Babu, driver of the car and Rajesh, who were seated in the car along with his friend Charchil and Gauri Shankar Aggarwal s/o Shri Mahesh Chand Aggarwal r/o 84 Vasant Vihar, Kamla Nagar, Agra, UP from the said Swift Car. Both of them were compelled to sit in the Innova Car. At that time ASI Rishi Pal Singh No.2536/N was in proper police uniform. One of the associates of ASI Rishi Pal Singh No.2536/N sat on the driver seat whereas ASI Rishi Pal Singh No.2536/N sat on the rear seat of the car. They drove around Delhi for sometime. ASI Rishi Pal Singh No.2536/N told that he has information about them that they are bad elements. He further told that they are to be taken to the Office of the SP for verification. Thereafter, on the way, ASI Rishi Pal Singh No.2536/N asked about their belongings. On this, Gauri Shankar Aggarwal informed that bricks of silver and cash Rs.2 lakhs are in his bag. ASI Rishi Pal Singh No.2536/N had taken the said Rs.2 lakh and 04 silver bricks weighing about 5 Kg and driving licence of the complainant. Meanwhile, Innova Car reached at some isolated place near ISBT Underpass. The complainant and his cousin Charchil were taken out of the Innova Car and compelled to stand near a wall. In the meantime ASI Rishi Pal Singh No.2536/N and his associates fled away from there in their Innova Car along with extorted money and silver bricks. Accordingly, a case vide FIR No.114 dated 22.3.2013 u/s 384/34IPC was registered at P.S.Sunlight Colony.
During investigation of the case, on 1.4.2013, ASI Rishi Pal Singh No.2536/N was arrested in the said case. It was come to notice that ASI Rishi Pal Singh, No.2536/N use to take half part of extorted money and valuables. Rupees 20,000/- was recovered from the possession of ASI Rishi Pal Sigh No.2536/N. On 2.4.2013, he was produced before Hon'ble Court and one day police remand was obtained for the recovery of silver bricks and remaining extorted money. During investigation of the case, it has also come to notice that ASI Rishi Pal Singh No.2536/N was not authorized by anyone to conduct checking in the area of PS Sunlight Colony. On that day, he was posted at PS Subzi Mandi. He left the area of PS Subzi Mandi without making any departure entry. Further, he had not even disclosed any information in this regard to either his colleagues or his Supervisory Officers. Further, on his return, he had not lodged any information about the seizure of Rs.2 lakh cash and 04 silver bricks.
When the undersigned came to know about the incident of extortion, ASI Rishi Pal Singh, No.2536/N was called in Page 3 of 45 4 OA 1293/14 O.R. on 1.4.2013 and he was heard. He was asked to explain his defence, if any. But despite the opportunity given, he failed to do so.
This clearly shows that the conduct of ASI Rishi Pal Singh No.2536/N (PIS No.28790148) is of a notorious person of superlative degree and his continuance in the force is likely to cause further irreparable loss to the functioning and credibility of Delhi Police. He has acted in a manner highly unbecoming of a police officer. If he is allowed to continue in police force after this act of serious misconduct, it would be detrimental to public interest at large. The facts and circumstances of the case are such that it would not be practicable to conduct a regular departmental enquiry against the defaulter ASI, as there is reasonable belief that the witnesses may not come forward to depose against him. It is a common experience that due to terrorizing and intimidating, the witnesses and the complainant do not come forward to depose against the delinquent in the investigation/enquiry and this kind of intimidation is a common tactic adopted by the unscrupulous and criminal bent of mind police personnel. It also calls for great courage and minimize the scope to depose against the persons where the delinquent is a police official who may use his job to influence the statement/deposition of the witnesses.
In the backdrop of the position explained in the foregoing contents in this Order, it is crystal clear that the ASI is a public servant of indiscipline and there is every possibility of his influencing as well as intimidating the witnesses in the criminal case registered in this regard and also in case of enquiry initiated against him. It is under these given set of compelling circumstances, the rules under article 311(2)(b) of Constitution of India have been invoked in this case for the sake of justice. ASI Rishi Pal Singh No.2536/N has become a liability to the department and should not be allowed to continue in Police Department and needs to be dismissed. It would be both in public interest as well as for the establishment of rule of law, which is expected by public at large.
Keeping in view the overall facts and circumstances of the case, I, Sindhu Pillai, IPS, Deputy Commissioner of Police, North Distt. do hereby dismiss the defaulter ASI Rishi Pal Singh No.2536/N from the force with immediate effect.
He will deposit all government belongings in his possession, i.e., Identity Card, CGHS Card, clothing articles etc. with the respective Stores/Branches of North Distt., Delhi. He is in possession of Govt. Accommodation i.e. B-14, Police Colony, Bhajan Pura, Delhi. His description is as under:-Page 4 of 45 5 OA 1293/14
1 Rank, Name & ASI Rishi Pal Singh No.2536/N No. 1 Rank, Name & ASI Rishi Pal Singh No.2536 No. 2 PIS No. 28790148 3 Father's Name Shri Sardar Singh 4 Caste Jat 5 Date of birth 20/01/1959 6 Date of 15/05/1979 enlistment 7 Height 5'7"
8 Present B-14, Police Colony Bhajan Pura, Delhi Address 9 Permanent Village Chhijarsi, Post Office Galand, Police Station address Pilukhwa, Distt. Ghaziabad, Uttar Pradesh A copy of this Order may be given to ASI Rishi Pal Singh No.2536/ N (PIS 28790148) free of cost. He can file an appeal against this Order to the Joint Commissioner of Police, Centra Range, Delhi within 30 days from the date of receipt of this Order on a non-judicial stamp paper worth Re.00.75 paise by enclosing a copy of this Order, if he so desires."
5. The relevant portion of the appeal made by the applicant against the above order of the Disciplinary Authority on 29.4.2013 reads thus:
"Sir, That I, ASI Rishi Pal Singh No.2536/N, PIS No.28790148 am preferring the said appeal against the order of DCP North Distt. terminating me from my service vide order No.1681-1780/HAP(P-1)/North Distt. dated Delhi, the 02.04.2013.
The aforesaid order is not only ill-conceived and bad in law but also smacks of mala fide and prejudice against me.
That Para 3 of page 1 of the said order allege that an opportunity was given to me seeking my explanation but I Page 5 of 45 6 OA 1293/14 failed to avail of. I was indeed called in O.R. on 01.04.2013 and I asked for time to submit my defence in writing and the same was acceded to by the higher authorities. However, I am shocked to receive the aforesaid order which is dated one day after I was alled in O.R. which was 02.04.2013.
That the undue haste with which this whole process of terminating me has taken place is clearly visible from the fact that my termination has been ordered under Article 311(2)(b) of Constitution of India.
The Article 311(2)(b) of the Constitution is invoked in the rarest of rare circumstances, where there is a compelling set of reasons to show that it is not possible to conduct an enquiry in accordance the rules of natural justice which is the law of land.
That the rules of natural justice dictates that no person can be acted upon in an adverse manner unilaterally without affording him a fair and reasonable opportunity to defend himself against the allegations levelled against him. If this basic tenet of natural justice is not met, then there will be no rule of law in the country and the country will be governed by the whims and fancies of individuals.
The said compelling circumstances which has been mentioned in the said terminating order for not affording me an opportunity as envisaged under the principles of natural justice, is that "the witnesses may not come forward to depose against me."
That aforementioned order is indicative of the following points:
1. That there no witnesses available who would be ready to falsely depose against me.
2. One individual of my rank and status cannot be expected to exercise such terror and intimidation which the whole department of Delhi Police cannot counter.
3. That most importantly it is worthwhile to note that I am in judicial custody since 01.04.2013. As such, if the enquiry were to be conducted in accordance with principles of natural justice, how could I be in a position of exercising any pressure, whatsoever, upon witnesses while being in custody?
That even after arresting me and sending me behind the bars, the department is not satisfied and using the plea of intimidating the witnesses to deny my rights as envisaged under the principal of natural justice. The said order clearly smacks the fear of the authorities that if I were to be given the opportunity to place my side of the story before the authorities the truth will be unearthed. Needless to say that in my entire Page 6 of 45 7 OA 1293/14 carrier approx 34 years with the Delhi Police, I have never been accused of any criminal breach of trust.
That in the light of aforesaid facts pointing to the gross illegality and unconstitutionality of the order seeking my termination it is humbly prayed that
(a) Aforesaid order of DCP,, North District, Delhi order No.1681-1780/HAP(P-1)/North Distt. dated Delhi, the 02.04.2013 may be set aside.
(b) I may be reinstated and deemed to be in continuous service.
(c) That I may be given a fresh opportunity to defend myself and clear my fair name on the basis of substantially corroborated documents and records. For this I shall forever remain thankful, obliged and grateful."
6. The other impugned order dated 2.7.2014 passed by the Joint Commissioner of Police, Central Range, Delhi, as Appellate Authority, rejecting the applicant's appeal against order dated 2.4.2013(ibid), reads thus:
ORDER This is an appeal filed by Ex.ASI Rishi Pal, No.2536/N (PIS No.28790148)(hereinafter called the appellant) against the punishment of Dismissal under article 311(2)(b) of Constitution of India awarded by DCP/North District, Delhi vide order No.1681-780/HAP/(P-1)/North, dated 02.04.2013.
The Brief facts of the case are that on 21/03/2013, at about 4.30 PM, ASI Rishi Pal Singh No.2536/N (here-in-after called the appellant) with the help of his associates namely 1) Rahul s/o Prem Sagar r/o Mandir Wali Gali, Sector-4, R.K.Puram, New Delhi, 2) Hussain Mubarak s/o Rashid r/o G- 12/249, Sangam Vihar, New Delhi, and 3) Ramesh Kumar s/o Chhote Lal r/o C/294, Chirag Delhi, New Delhi, who were seated in Innova Car bearing registration No.BR-01-BF-1333, stopped one Swift Car bearing registration No.UP-80-CF-5023, near gate No.4, Millennium Depot, IP Estate on the pretext of checking. ASI Rishi Pal Singh No.2536/N de-boarded one Ram Babu, driver of the car and Rajesh, who were seated in the car along with his friend Charchil and Gauri Shankar Aggarwal s/o Shri Mahesh Chand Aggarwal r/o 84 Vasant Vihar, Kamla Nagar, Agra, UP from the said Swift Car. Both of them were Page 7 of 45 8 OA 1293/14 compelled to sit in the Innova Car. At that time ASI Rishi Pal Singh No.2536/N was in proper police uniform. One of the associates of ASI Rishi Pal Singh No.2536/N sat on the driver seat whereas ASI Rishi Pal Singh No.2536/N sat on the rear seat of the car. They drove around Delhi for sometime. ASI Rishi Pal Singh No.2536/N told that he has information about them that they are bad elements. He further told that they are to be taken to the Office of the SP for verification. Thereafter, on the way, ASI Rishi Pal Singh No.2536/N asked about their belongings. On this, Gauri Shankar Aggarwal informed that bricks of silver and cash Rs.2 lakhs are in his bag. ASI Rishi Pal Singh No.2536/N had taken the said Rs.2 lakh and 04 silver bricks weighing about 5 Kg and driving licence of the complainant. Meanwhile, Innova Car reached at some isolated place near ISBT Underpass. The complainant and his cousin Charchil were taken out of the Innova Car and compelled to stand near a wall. In the meantime ASI Rishi Pal Singh No.2536/N and his associates fled away from there in their Innova Car along with extorted money and silver bricks. Accordingly, a case vide FIR No.114 dated 22.3.2013 u/s 384/34IPC was registered at P.S.Sunlight Colony.
During investigation of the case, on 1.4.2013, ASI Rishi Pal Singh No.2536/N was arrested in the said case. It came to notice that ASI Rishi Pal Singh, No.2536/N use to take half part of extorted money and valuables. Rupees 20,000/- was recovered from his possession. During investigation of the case, it also came to notice that the appellant was not authorized by anyone to conduct checking in the area of PS Sunlight Colony. On that day, he was posted at PS Subzi Mandi. He left the area of PS Subzi Mandi without making any departure entry, and without iforming either his colleagues or his Supervisory Officers. Further, on his return, he had not lodged any information about the seizure of Rs.2 lakh cash and 04 silver bricks. When DCP/North came to know about the incident of extortion, ASI Rishi Pal Singh, No.2536/N was called in OR on 01.04.13 and he was heard. He was asked to explain his defence, if any. But despite the opportunity given, he failed to do so.
This clearly shows that the conduct of the appellant is of a notorious person of superlative degree and his continuance in the force is likely to cause further irreparable loss to the functioning and credibility of Delhi Police. He has acted in a manner highly unbecoming of a police officer. If he is allowed to continue in police force after this act of serious misconduct, it would be detrimental to public interest at large. The facts and circumstances of the case are such that it would not be Page 8 of 45 9 OA 1293/14 practicable to conduct a regular departmental enquiry against the defaulter ASI, as there is reasonable belief that the witnesses may not come forward to depose against him. It is a common experience that due to terrorizing and intimidating, the witnesses and the complainant do not come forward to depose against the delinquent in the investigation/enquiry and this kind of intimidation is a common tactic adopted by the unscrupulous and criminal bent of mind police personnel. It also calls for great courage and minimize the scope to depose against the persons where the delinquent is a police official who may use his job to influence the statement/deposition of the witnesses. After considering the fact and listening him in OR, the disciplinary authority awarded the punishment appealed against. Aggrieved by this dismissal from service, the appellant has filed the present appeal.
I have heard the appellant in person. He has reiterated his written pleas. I have gone through the records and carefully examined the pleas put forth by the appellant. The appellant's contention mainly is that he was falsely implicated in case FIR No.114, dated 22.03.13 and that punishment has been awarded to him without conducting any regular D.E. On scrutiny of records and the charge sheet prepared in this case, it is revealed that the disciplinary authority while recording his decision to dismiss him from service, has given ample reason for not holding the regular departmental enquiry, which are sound and I agree with the disciplinary authority.
Corruption eats into the vitals of the society. When the protectors of law turn into predators with impunity, the situation becomes critical and it is for the Disciplinary Authority to weed out such elements from a disciplined force like Delhi Police without delay. The facts of this case disclose that continuance of the appellant in Delhi Police, in light of his extreme misconduct, was highly dangerous for the morale of the society at large and the hapless victims of this case in particular. Awarding him a lesser punishment would have been a travesty of justice. An unsuspecting citizen approaches a policeman with much hope, but incidents like this tend to erode the faith of society in the law enforcement agencies. The Disciplinary Authority has passed a speaking order delineating reasons for not conducting an enquiry. In this case, the very fact that the appellant had refused TIP invokes more than a reasonable presumption of guilt against him. That the Ld. Court has taken cognizance against him has also incriminating value. In a situation where the appellant & his accomplices have put the victims of their perpetration in such harrowing circumstances, we cannot expect the victims to depose freely Page 9 of 45 10 OA 1293/14 against the appellant without fearing for their safety. All these facts substantiate that the conclusion of the disciplinary authority that it was not reasonably practicable to hold a regular departmental enquiry against the appellant, was fully justified. Thus, having considered the materials available on record and overall facts & circumstances of the case including the gravity of misconduct, I find no ground to interfere with the orders of the disciplinary authority and hence, hereby, reject the appeal of Ex.ASI Rishi Pal, No.2536/N(PIS No.28790148).
The appellant be informed accordingly."
(Emphasis supplied)
7. Assailing the above orders passed by the Disciplinary Authority and Appellate Authority, the applicant has mainly urged that the action of the Disciplinary Authority is in utter violation of the principles of natural justice. The Disciplinary Authority did not make the slightest effort to initiate a departmental enquiry and came to an unreasonable conclusion that departmental enquiry is not practicable. The Disciplinary Authority has merely acted on surmises to come to the conclusion that departmental enquiry is not possible. The Disciplinary Authority has dispensed with the departmental enquiry without recording sufficient reasons for holding that it would not be reasonably practicable to hold a departmental enquiry. The reasons recorded by the Disciplinary Authority for dispensing with the departmental enquiry are vague and flimsy. There was absolutely no material on record placed before the Disciplinary Authority that the witnesses or the complainant had been terrorized by the applicant. The order passed by the Appellate Authority is a non-speaking one because it does not deal with the submissions and pleas raised by the applicant in his appeal. If it is possible to hold a criminal trial, then it would be possible to hold a Page 10 of 45 11 OA 1293/14 departmental enquiry also as the same witnesses would appear in both the criminal trial as well as in the departmental enquiry.
8. Besides reiterating more or less the same contentions as raised in the O.A., Mr.Sachin Chauhan, the learned counsel appearing for the applicant submitted that the order of dismissal from service passed by the Disciplinary Authority under Article 311 (2)(b) of the Constitution of India and the order passed by the Appellate Authority upholding the Disciplinary Authority's order are illegal, arbitrary and violative of Article 311(2)(b) itself, and that the reasons mentioned by the Disciplinary Authority for dispensing with the inquiry are baseless and do not satisfy the mandatory requirements of Article 311(2)(b).
9. In support of the case of the applicant, Mr.Sachin Chauhan, the learned counsel appearing for the applicant, placed reliance on the decision of the Hon'ble Supreme Court in Tarsem Singh Vs. State of Punjab and others, (2006) 13 SCC 581, and decisions of the coordinate Benches/Full Bench of the Tribunal in Head Constable Subodh Kumar and another Vs. Govt. of NCTD and others, OA No.2136 of 2007(decided on 3.4.2008);
Constable (Dvr) Mahi Pal Vs. Govt. of NCTD and others, OA No.97 of 2007; Inspector Puran Singh Vs. Govt. of NCTD and another, OA No.1641 of 2007 (decided on 15.4.2009); A.K.Jain, etc. Vs. Govt. of NCT of Delhi, etc. OA No.2546 of 2006 and other connected OAs; and Rajbir Singh, etc. Vs. Commissioner of Police, etc., OA Nos.4246, 3897 and 4284 of 2014 (decided on 4.1.2017).
Page 11 of 45 12 OA 1293/149.1 In Tarsem Singh Vs. State of Punjab and others (supra), the Hon'ble Supreme Court has held that subjective satisfaction of authority for dispensing with departmental enquiry must be based on objective criteria.
The short facts of the case are that Tarsem Singh, a police constable, was charge-sheeted for commission of misconduct, viz., outraging modesty of a woman by entering her house along with his accomplices, having carnal intercourse against the law of nature with a migrant labourer by stuffing cloth in his month and causing threats of dire consequences to anyone deposing against him in an inquiry/ investigation. The concerned authority, on being satisfied that the constable could win over aggrieved people as well as witnesses from giving evidence by threatening or other means, dispensed with the formal departmental proceeding. Report of the preliminary enquiry conducted by the DSP was also taken into consideration to hold that regular departmental enquiry need not be held. While invalidating the orders, the Hon'ble Supreme Court relied upon the following observations made in its earlier decision in Union of India v Tulsiram Patel [(1985) 3 SCC 398]:
"Although Clause (3) of that article makes the decision of the disciplinary authority in this behalf final, such finality can certainly be tested in a court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry."
9.2 In Head Constable Subodh Kumar and another Vs. Govt. of NCTD and others (supra), the coordinate Bench of the Tribunal, after considering the facts and circumstances of the case, and referring to various decisions of the Hon'ble Supreme Court and of High Courts, quashed the Page 12 of 45 13 OA 1293/14 order passed by the Disciplinary Authority under Article 311(2)(b) of the Constitution of India and the order passed by the Appellate Authority, with the following findings:
"........It is clear from a reading of these reasons that these are based only on conjectures and surmises because nowhere in the order of the disciplinary authority it is mentioned that any of the witnesses or the complainant have actually been intimated or threatened by the Applicant not to depose against him. No material whatsoever exists, as far as the present case is concerned, to infer that the complainant who complained against the Applicant or any of the witnesses who would be called in the departmental enquiry have been terrorized to the extent that they would not appear before the enquiry officer. It is extremely disconcerting that an order having such major consequences for a person should be passed so lightly without any application of mind. The Applicants had preferred an appeal and their representation runs ito 13 pages, in which several important points of facts as well as law have been raised. However, the appellate authority has not considered all the points and some of the points which have been considered have been dealt with most facetiously. Since the only opportunity for the Applicants for presenting their side of the case is only before the appellate authority, the appellate authority should have considered their representations with appropriate gravitas, as observed by the Honourable Supreme Court in Ram Chander (cited supra). The Respondents have not even followed the circular issued by their own Department, which has been quoted above in extenso."
9.3 In Constable (Dvr) Mahi Pal Vs. Govt. of NCTD and others (supra), the applicant was a Constable (Driver) in Delhi Police at the time of the incident for which the order of dismissal was passed against him. The allegations against the applicant were that the applicant unauthorizedly took the Van of Delhi Police. He gave lift to a woman and tried to outrage her modesty in the vehicle in a drunken state. The said vehicle also met with an accident. As a result, the applicant was detained by the local police. Two Page 13 of 45 14 OA 1293/14 FIRs, one under Sections 279 and 337 IPC, and the other under Sections 354 and 506 IPC were registered against him. The applicant, on medical examination, was also found smelling of alcohol. The Disciplinary Authority passed an order under Article 311(2)(b) of the Constitution of India dismissing the applicant from service. The Appellate Authority upheld the order of dismissal from service. After referring to the decisions of the Hon'ble Supreme Court and considering the facts and circumstances of the case, the Tribunal observed that the impugned orders were totally unsustainable inasmuch as from the available evidence, no reasonable person would come to the conclusion drawn by the Disciplinary Authority and Appellate Authority.
9.4 In Inspector Puran Singh Vs. Govt. of NCTD and another (supra), the applicant was an Inspector in Delhi Police. He was alleged to be working as hand in glove with Mr.Abdul Karim Telgi, who operated as leader of a gang of fake stamps makers during 1999-2001.The Disciplinary Authority came to a conclusion that in view of the peculiar facts of the case, holding of an inquiry was not practicable. The witnesses were victimized by the applicant. They were tormented and instilled with fear that they would be implicated in other cases. Investigation revealed about the applicant moving about with armed staff obtaining signatures from witnesses including fabrication of documents. Thus, there were sufficient circumstances for holding that the applicant deserved to be dismissed from service.
Accordingly, order was passed by the Disciplinary Authority under Article Page 14 of 45 15 OA 1293/14 311(2)(b) of the Constitution of India dismissing the applicant from service.
The Appellate Authority upheld the order of the Disciplinary Authority.
After referring to the decisions of the Hon'ble Supreme Court in Union of India and anr. Vs. Tulsiram Patel, (1985 (2) SLR 576) and Tarsem Singh Vs. State of Punjab & ors, 2008(2) SCC (L&S) 140, and considering the facts and circumstances of the case, the coordinate Bench of the Tribunal declined to sustain the conclusion arrived at by the departmental authorities that it was not practicably possible to hold the inquiry against the applicant after issuing him a formal charge sheet. Accordingly, the Tribunal quashed the orders passed by the Disciplinary Authority and Appellate Authority.
9.5 In A.K.Jain, etc. Vs. Govt. of NCT of Delhi, etc. (supra), on a reference being made to it, the Full Bench of the Tribunal mainly decided the question as to whether the view taken by the Division Bench of the Tribunal in OA No.2884 of 2005 (decided on 13.4.2006) could be sustained in law or the view taken by another Division Bench allowing OA No.778/2006(decided on 24.11.2006) could be sustained in law. Both OA No.2884 of 2005 and OA No.778 of 2006 were filed by the applicants who were reportedly involved in the sting operation conducted by the news channel Aaj Tak in Tihar Jail showing them as accepting bribe. The Division Bench of the Tribunal dismissed OA No.2884 of 2005 along with other connected O.As, vide order dated 13.4.2006. In OA No.778 of 2006, another Division Bench held the precedent of the coordinate Bench as sub silentio and did not, thus, choose to refer the matter to larger Bench. Accordingly, Page 15 of 45 16 OA 1293/14 the Division Bench allowed O.A.No.778 of 2006 by quashing the impugned order passed by the Disciplinary Authority under Article 311(2)(b) of the Constitution of India and the order passed by the Appellate Authority rejecting the applicant's appeal. After referring to the decisions of the Hon'ble Supreme Court and considering the facts and circumstances of the case, the Full Bench of the Tribunal approved the view taken by the Division Bench in OA No.778 of 2006 and overruled the view taken by the other Division Bench in OA No.2884 of 2005 and connected O.As. Accordingly, the Full Bench allowed the O.As. and quashed the orders passed by the Disciplinary Authority and Appellate Authority which were impugned in the said O.As.
9.6 In Rajbir Singh, etc. Vs. Commissioner of Police, etc. (supra), the coordinate Bench of the Tribunal, after considering the facts and circumstances of the case in the light of the decision of the Hon'ble Supreme Court in Tulsiram Patel (supra) and other subsequent decisions of the Hon'ble Apex Court, quashed the orders passed by the Disciplinary Authority under Article 311(2)(b) of the Constitution of India and the orders passed by the Appellate Authority upholding the orders of the Disciplinary Authority. In paragraph 30 of the order, the coordinate Bench observed thus:
"30. On application of the guiding principles, as envisaged by the Hon'ble Apex Court in its Constitution Bench decision in Tulsiram Patel (supra), as followed in all the subsequent decisions, to the facts of the present case, where it was not alleged that the applicants are terror in the area or intimidated any of the persons involved with the allegations or any industrial unrest was foreseen or conducting of inquiry will prejudice the security of the nation or no witness was involved Page 16 of 45 17 OA 1293/14 in view of the nature of the allegation, as were the circumstances, in some of the decisions referred to above and where invocation of Clause (b) to Artic le 311(2) was upheld , we are of the considered view that the mandatory requirements under Article 311(2) for dispensing with the inquiry before dismissing the applicants from service were either existing or contended to be existing. Existence of grave charges or misusing of official position or agreeing to accept illegal gratification or suspicion of certain other facts cannot only be the sufficient reasons for dispensing with the inquiry. Incidents of terror, intimidation, industrial unrest and prejudice to the security of the nation are some of the prerequisites for dispensing with an enquiry before dismissing an employee under Article 311(2)(b) of the Constitution of India. In the present case, none of those conditions were fulfilled. Hence, there was no justification for dispensing with the inquiry."
10. Per contra, Ms.Avinash Ahlawat, the learned counsel appearing for the respondents referred to the counter reply and submitted that the notoriety of the applicant was so grave that the Disciplinary Authority and Appellate Authority considered all pros and cons before coming to the conclusions as arrived at. The muscle power employed and the sinister manner in which the applicant along with his associates operated had instilled fear in the complainant and others and no material evidence would have been possible to be gathered in case departmental enquiry was to be held. At the same time, his presence could not have been tolerated. The cumulative circumstance available against the applicant, therefore, justified summary action in the form of the order passed by the Disciplinary Authority under Article 311(2)(b) of the Constitution of India, and the orders passed by the Disciplinary Authority and Appellate Authority can by no stretch of imagination be characterized as arbitrary and illegal. Sufficient Page 17 of 45 18 OA 1293/14 reasons have been assigned by the Disciplinary Authority in support of the conclusion arrived by him for dispensing with the inquiry. The Appellate Authority has also assigned sufficient reasons in support of his conclusion for upholding the Disciplinary Authority's order and for rejecting the applicant's appeal. Thus, the impugned orders cannot be said to have been passed by the Disciplinary Authority and Appellate Authority without applying their mind to the facts and circumstances of the case. In support of her contentions, Ms.Avinash Ahlawat placed reliance on the decisions of the Hon'ble Supreme Court in Union Territory, Chandigarh and others Vs. Mohinder Singh, (1997) 3 SCC 68; Chandigarh Administration and others Vs. Ex.S.I.Gurdit Singh, (1997) 10 SCC 430; and Ved Mitter Gill Vs. Union Territory Administration and others,(2015)2 SCC (L&S) 602 = (2015)3 SLR 739.
10.1 In Union Territory, Chandigarh and others Vs. Mohinder Singh (supra), the respondent, an SI of Police was dismissed from service by the Disciplinary Authority. The Disciplinary Authority dispensed with the enquiry invoking proviso (b) to clause (2) of Article 311 of the Constitution of India and made the order of dismissal. The appeal was dismissed by the Appellate Authority. The Tribunal found that the ground upon which the Disciplinary Authority dispensed with the enquiry was not sustainable in law. Accordingly, the Tribunal quashed the order of dismissal and the appellate order and directed the Administration to reinstate the respondent Page 18 of 45 19 OA 1293/14 with all attendant benefits. Allowing the Civil Appeal and setting aside the Tribunal's order, the Hon'ble Apex Court held thus:
"6. Clause (3) of Article 311, it may be noticed, declares that where a question arises whether it is reasonably practicable to hold an inquiry as contemplated by clause (2), the decision of the authority empowered to dismiss such person shall be final on that question. The Tribunal has not referred to clause (3) at all in its order. We are not suggesting that because of clause (3), the Court or the Tribunal should completely shut its eyes. Nor are we suggesting that in every case the Court should blindly accept the recital in terms of the said proviso contained in the order of dismissal. Be that as it may, without going into the question of extent and scope of judicial review in such a matter, we may look to the facts of this case. The Superintendent of Police, Intelligence, has reported that the respondent "is a terror in the area" and, more important, in his very presence, the respondent "intimidated the complainant Shri Ranjit Singh who appeared to be visibly terrified of this Sub-Inspector". It is also reported that the other persons who were arrested with Ranjit Singh, and who were present there, immediately left his office terrified by the threats held out by the respondent. In such a situation - and keeping in view that all this was happening in the year 1991, in the State of Punjab - the Senior Superintendent of Police cannot be said to be not justified in holding that it is not reasonably practicable to hold an inquiry against the respondent."
10.2 In Chandigarh Administration and others Vs. Ex.S.I.Gurdit Singh (supra), the respondent was an SI of Police. A complaint was made against him by one Smt. Meenakshi, wife of Shri Nishan Singh, alleging that the respondent had demanded bribe from her for releasing the gold ornaments of her husband and other articles which were retained by him at the Police Station before releasing her husband and her driver who were detained in police custody. On receipt of the said complaint, a trap was laid in the presence of two witnesses and the respondent, who was in police uniform, was caught red-handed at the residence of the complainant while demanding and accepting Rs.2000 from the complainant for the release of Page 19 of 45 20 OA 1293/14 the articles. A criminal case under Section 7 of the Prevention of Corruption Act, 1988 was registered against him and the same was entrusted to the CBI for investigation. In the meanwhile, a preliminary enquiry was conducted by the Deputy Superintendent of Police, East, Chandigarh, and after considering the report of the said preliminary enquiry, the Senior Superintendent of Police passed the order whereby the respondent was dismissed from service. In the said order, the Senior Superintendent of Police stated that after considering all the facts and circumstances of the case, he was satisfied under sub-clause (b) of proviso to sub-section (2) of Article 311 of the Constitution of India that it was not reasonably practicable to hold an enquiry against the respondent for the reason that the witnesses could not come forward freely to depose against him in the departmental enquiry on account of fear to their life and property. The Tribunal allowed the O.A. and quashed the order of dismissal on the view that the Senior Superintendent of Police was in error in dispensing with the enquiry on the ground that it was not reasonably practicable to hold an enquiry. The Tribunal observed that when the respondents felt that the witnesses could appear to depose against the applicant in the criminal case, it could not be believed that the witnesses would not appear to depose against the applicant in the regular departmental proceedings if it is held. In the preliminary enquiry witnesses did appear to depose against the applicant. Hence, it could not be presumed that the witnesses would not have appeared, had a regular departmental proceedings been held by the respondents. Merely mentioning Page 20 of 45 21 OA 1293/14 that the applicant tried to terrify the witnesses so that they might not come forward to depose against him in a regular enquiry does not justify the mandate laid down under Article 311(2)(b) of the Constitution of India.
Following its decision in Union Territory, Chandigarh and others Vs. Mohinder Singh (supra), the Hon'ble Apex Court allowed the appeal and set aside the Tribunal's order.
10.3 In Ved Mitter Gill v. Union Territory Administration, Chandigarh & Others, (2015) 8 SCC 86, while the appellant was holding the charge of the post of Deputy Superintendent of Police, Model Jail, Burial, Chandigarh, four under-trials, three of whom were facing trial for the assassination of a former Chief Minister of Punjab Shri Beant Singh and one was being tried for the charge of murder, escaped from the jail, by digging an underground tunnel. Resultantly, an FIR was registered at the Police Station against the appellant and others. The appellant and others were detained in custody. The Adviser to the Administrator, Union Territory, Chandigarh, by an order dated 01.03.2004, having invoked Article 311(2)(b) of the Constitution of India, dismissed the appellant from service. The relevant paragraph of the said order reads as under:
"7. And whereas the above conduct of the said Shri Gill establishes that he was directly involved in the conspiracy to help the above-mentioned under trials to escape from the Model Jail, Chandigarh. It has also come to light during investigation that three of the escaped under trials had linkage with the Babbar Khalsa International, a known and a dreaded terrorist organization, which is involved in anti-national and anti-State activities. The said Shri V.M. Gill is a senior, permanent and non-transferable official of the Model Jail, Chandigarh and Page 21 of 45 22 OA 1293/14 junior jail officials, who are witnesses in the above case are not likely to come forward to depose against him if disciplinary proceedings are initiated so long as he remains in service, for fear of earning his wrath in future. Further, due to the involvement of the escaped under-trials, with the Babbar Khalsa International, a known and dreaded terrorist organization, no witness is likely to come forward to depose against him in the disciplinary proceedings, if initiated, due to fear of life. Independence assessment also is that three of the escaped under trials are likely, inter alia, to pose a danger to the lives of the people. In these circumstances I am satisfied that the holding of an inquiry as contemplated by Article 311 (2)
(b) of the Constitution of India and the Punjab Civil Services (Punishment and Appeal) Rules, 1970 as made applicable to the employees of Union Territory, Chandigarh, is not reasonably practicable;"
The appellant's appeal against the order of dismissal from service was rejected by the Administrator, Union Territory, Chandigarh. Similar orders of dismissal from service were passed by the Advisor to the Administrator against other persons who were involved in the incident, and the Administrator also rejected their appeals. The O.As filed by the appellant and others were dismissed by the Tribunal through a common order.
Dismissing the appeal and other connected cases, the Hon'ble Supreme Court observed and held thus:
"13. Out of the submission advanced by the learned counsel for the appellant/petitioners, the contention which could have been of some significance was, that the reasons mentioned in the impugned order of dismissal from service, were a mechanical repetition of grounds routinely and casually expressed without application of mind, in such like orders. And in that view of the matter, the contention, that the satisfaction recorded by the disciplinary authority does not constitute a valid satisfaction in the eyes of law. It was in the instant context, that the learned counsel invited our attention to some judgments rendered by this Court. First of all, reliance was placed on Tarsem Singh v. State of Punjab, (2006) 13 SCC Page 22 of 45 23 OA 1293/14
581. Our pointed attention was invited to the following observations recorded therein:
"10. It is now a well-settled principle of law that a constitutional right conferred upon a delinquent cannot be dispensed with lightly or arbitrarily or out of ulterior motive or merely in order to avoid the holding of an enquiry. The learned counsel appearing on behalf of the appellant has taken us through certain documents for the purpose of showing that ultimately the police on investigation did not find any case against the appellant in respect of the purported FIR lodged against him under Section 377 IPC. However, it may not be necessary for us to go into the said question.
11. We have noticed hereinbefore that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of dismissal was passed, inter alia, on the ground that there was no need for a regular departmental enquiry relying on or on the basis of a preliminary enquiry. However, if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the appellant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice. The appellate authority, as notice hereinbefore, in its order dated 24-6-1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefor was available on record. It is further evident that the appellate authority also misdirected himself in passing the said order insofar as he failed to take Page 23 of 45 24 OA 1293/14 into consideration the relevant facts and based his decision on irrelevant factors.
12. Even the Inspector General of Police in passing his order dated 26-11-1999, despite having been asked by the High Court to pass a speaking order, did not assign sufficient or cogent reason. He, like the appellate authority, also proceeded on the basis that the appellant was guilty of commission of offences which are grave and heinous in nature and bring a bad name to the police force of the State on the whole. None of the authorities mentioned hereinbefore proceeded on the relevant material for the purpose of arriving at the conclusion that in the facts and circumstances of the case sufficient cause existed for dispensing with the formal enquiry. This aspect of the matter has been considered by this Court in Jaswant Singh v. State of Punjab, (1991) 1 SCC 362, wherein relying upon the judgment of the Constitution Bench of this Court, inter alia, in Union of India v. Tulsiram Patel, (1985) 3 SCC 398, it was held: (Jaswant Singh case (supra), SCC p. 368, para 4) "Although Clause (3) of that article makes the decision of the disciplinary authority in this behalf final such finality can certainly be tested in a court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry."
13. In that case also like the present one, the attention of the Court was not drawn to any material existing on the date of passing of the impugned order in support of the allegations contained in the order dispensing with the departmental enquiry."
(emphasis is ours) Learned counsel thereupon placed reliance on State of Punjab v. Harbhajan Singh, (2007) 15 SCC 217. They invited our attention to the following observation recorded therein:
Page 24 of 45 25 OA 1293/14"3. Learned counsel then contended that no departmental enquiry could be held against the respondent in view of his involvement with terrorists. In the suit, the State did not place any material to establish that any case was made out for dispensation of a regular departmental enquiry as required under clause (2) to Article 311 of the Constitution of India. The question is now covered by a recent decision of this Court in Tarsem Singh v. State of Punjab, (2006) 13 SCC 581, wherein this Court has opined that if no material is brought to the notice of the Court on the date of passing of the impugned order in support of the allegations contained therein as to why it was impractical to hold a regular disciplinary proceeding, the order of termination would not be sustainable."
(emphasis is ours)
14. In order to fully clarify the legal position on the issue in hand, learned counsel for the Chandigarh Administration, invited our attention to the decision rendered in Southern Railway Officers Association v. Union of India, (2009) 9 SCC 24. In the above cited judgment, this Court having placed reliance on Union of India v.
Tulsiram Patel, (1985) 3 SCC 398, Satyavir Singh v. Union of India, (1985) 4 SCC 252, Kuldip Singh v. State of Punjab, (1996) 10 SCC 659, Union of India v. R. Reddappa, (1993) 4 SCC 269 and Indian Railway Construction Co.
Ltd. v. Ajay Kumar, (2003) 4 SCC 579, recorded its conclusions as under:
"26. The law laid down by this Court being clear and explicit, the question which would arise for our consideration is whether in then prevailing situation, what a reasonable man taking a reasonable view would have done.Page 25 of 45 26 OA 1293/14
27. The High Court in its judgment opined:
(i) That the statement of the disciplinary authority that "I am convinced that it is not reasonably practicable to hold an inquiry" is against the dicta laid down by this Court in Union of India vs. Tulsiram Patel, (1985) 3 SCC 398.
(ii) In the absence of any reason, much less recorded, as has been mandated under the Rule, to show that it was not reasonably practicable to hold a disciplinary inquiry, we are of the opinion that the discretionary power was exercised for extraneous purpose to dismiss the delinquents and that the same is arbitrary and perverse since no reasonable person could form such an opinion on the given material and thus the impugned orders of dismissal are hit by malice also. The alleged incident and the impugned orders of dismissal were all dated 31-1-2004 which shows the haste in which the disciplinary authority has acted.
(iii) While invoking the stringent extraordinary provisions like Rule 14(ii), principles of natural justice require every care to be taken by the authorities concerned. Any haste in invoking such stringent provisions, without even complying with the mandatory requirements of the provision, would make such decision of the disciplinary authority illegal, being an abuse of power conferred upon it.
(iv) It can very well be held that the impugned orders of dismissal suffer from want of materials and in the absence of any material to substantiate the mere oral stand of the Page 26 of 45 27 OA 1293/14 Department that holding an inquiry was not reasonably practicable, without offering any reasons, much less in writing, as mandated by law, the impugned orders of dismissal are liable to be quashed.
(v) In the case in hand, since the authorities have invoked the extraordinary power under Rule 14(ii) dispensing with the inquiry, and further since the alleged incident was held to be not proved by the criminal court, after thorough trial, the appellate and revisional authorities ought to have considered the said aspect of acquittal while imposing the punishment. Therefore, we are of the view that the fact of acquittal is a circumstance to be considered while awarding punishment in this case. We with respect are unable to agree therewith.
28. The disciplinary authority in its order dated 31-1-2004 categorically stated:
(i) That the delinquent employees attempted to cause bodily harm to Shri S.M. Krishnan;
created an ugly scene which brought a bad name to the Railways; officers who tried to protect Shri S.M. Krishnan were badly abused; Shri S.M. Krishnan and his family were threatened to be killed if he goes to Chennai; it was a pre-planned attempt as a handwritten poster was displayed in the workshop as well as at the railway station wherein it was stated that Shri S.M. Krishnan will die on 31-1-2004 and his cremation will be done at 1430 hours when Train No. 6128 leaves the railway station.
(ii) That all of them have conspired and assaulted Shri S.M. Krishnan as a result whereof he could not undertake the journey and had to go by road with escort.
Page 27 of 45 28 OA 1293/14(iii) The formality of holding a disciplinary proceeding was dispensed with stating:
"You along with other associates threatened, intimidated and terrorized all the officers. The atmosphere of violence, general indiscipline and insubordination is prevailing. In view of this situation I am convinced that it is not reasonably practicable to hold an enquiry."
29. It was concluded:
"I, therefore, in exercise of the powers conferred upon me under Rule 14(ii) of the Railway Servants (Discipline & Appeal) Rules, 1968, hereby dismiss you from railway service with effect from 31-1-2004 (A/N). You are required to hand over the railway property in your custody. You are also required to vacate the railway quarters, if in occupation, within one month from the date on which a copy of this notice is delivered. You are hereby advised that under Rules 18 and 19 of the Railway Servants (Discipline & Appeal) Rules, 1968, you may prefer an appeal against these orders to CWM/GOC provided that:
(i) The appeal is preferred within a period of 45 days from the date on which a copy of this notice is delivered.
(ii) The appeal is to be preferred in your own name and presented to the authority to whom the appeal lies and does not contain any disrespectful and improper language."
30. An order of a disciplinary authority in a case of this nature, as laid down by this Court in Tulsiram's case (supra), must be judged by a court exercising power of judicial review by placing himself in his armchair. The disciplinary authority was a man at the spot. He acted on the basis of a report made to him. He also knew about Page 28 of 45 29 OA 1293/14 the written poster having been displayed. The atmosphere which was prevailing in the workshop must be known to him. Not only the disciplinary authority but also the appellate authority, having regard to the materials brought on record, arrived at the said finding.
xxx xxx xxx
33. While thus considering as to whether there had been enough material before the disciplinary authority for the purpose of arriving at its satisfaction that it was not reasonably practicable to hold departmental proceedings, the appellate authority, in our opinion, was entitled to consider the situation prevailing from the confidential reports submitted by other employees. They were not relied upon for the purpose of proving misconduct but for the purpose that in the situation which was prevailing, whether it was reasonably practicable to hold an enquiry. There is no dispute that the protection accorded to an employee by reason of the constitutional provision of mandate of recording of reasons is of great significance. Such reasons, in our opinion, in the instant case, have been recorded.
xxx xxx xxx
35. So far as the finding of the High Court that the orders of dismissal suffer from want of material is concerned, the orders of the disciplinary authority themselves disclose existence of sufficient materials. Before the statutory authorities, the incident was not denied. Lodging of the first report was also not denied. The fact that one of the delinquent officials was arrested on the same day was not denied. Arrest of others after a period of two weeks also stood admitted. Display of handwritten poster both at the workshop and at the railway station had also not been denied.
36. We do not find that before the High Court the delinquent employees brought on record any material that the grounds stated in the orders of dismissal were wholly non-existent. No mala fides on the part of the disciplinary authority was attributed. It is not the case of the delinquent Page 29 of 45 30 OA 1293/14 employees that the disciplinary authority in passing the said order took into consideration any irrelevant fact not germane therefor or failed to take into consideration any relevant fact."
(emphasis is ours)
15. Before delving into the pointed issues canvassed at the hands of the learned counsel representing appellant/petitioners, it is necessary for us to notice the parameters laid down by this Court for invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India. Insofar as the instant aspect of the matter is concerned, the norms stipulated by this Court for the above purpose, require the satisfaction of three ingredients. Firstly, that the conduct of the delinquent employee should be such as would justify one of the three punishments, namely, dismissal, removal or reduction in rank. Secondly, the satisfaction of the competent authority, that it is not reasonably practicable to hold an inquiry, as contemplated under Article 311(2) of the Constitution of India. And thirdly, the competent authority must record the reasons of the above satisfaction in writing.
16. On the issue whether it is reasonably practicable to hold an inquiry as contemplated under Article 311(2) of the Constitution of India is concerned, this Court elaborately expressed the required norms, in Union of India v. Tulsiram Patel (supra), as under:
"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 "Capable of being put into practice, carried out in action, effected, 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 Page 30 of 45 31 OA 1293/14 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 members 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 Page 31 of 45 32 OA 1293/14 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, (1984) 2 SCC 578, is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial 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 accusor, the chief witness and also the judge of the matter.
131. It was submitted that where a delinquent government servant so terrorizes the disciplinary authority that neither that officer nor any other officer stationed at that place is willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry. This submission itself shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that the administrative work carried out by senior officers should be paralysed because a delinquent government servant either by himself or along with or through others makes the holding of an inquiry not reasonably practicable.Page 32 of 45 33 OA 1293/14
132. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word 'inquiry' in that clause includes part of an inquiry. It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311(2)."
(emphasis is ours)
17. Insofar as the requirement of reasons reflecting the reasonable practicability, of holding an inquiry in writing is concerned, this Court in the case of Union of India v. Tulsiram Patel(supra) held as under:
"133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following Page 33 of 45 34 OA 1293/14 thereupon would both be void and unconstitutional.
134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause
(b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry.
This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances.
135. It was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the concerned government servant to enable him to challenge the validity of the reasons in a departmental appeal or before a court of law and that failure to communicate the reasons would invalidate the order. This contention too cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the government servant. As clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able Page 34 of 45 35 OA 1293/14 to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would, however, be better for the disciplinary authority to communicate to the government servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the government servant to approach the High Court under Article 226 or, in a fit case, this Court under Article 32. If the reasons are not communicated to the government servant and the matter comes to the court, the court can direct the reasons to be produced, and furnished to the government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non-production of the written reasons."
(emphasis is ours)
18. Whilst examining the requirements, pertaining to the applicability of clause (b) to the second proviso under Article 311(2) of the Constitution of India is concerned, it would also be proper to notice the observations of this Court in Union of India v. Tulsiram Patel (supra), wherein it was held as under:
"138. Where a government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in Page 35 of 45 36 OA 1293/14 the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court- room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere."
(emphasis is ours)
19. Reference may also be made to the decision in Kuldip Singh v. State of Punjab, (1996) 10 SCC 659, wherein this Court recorded the following observations:
"3. On appeal, the appellate authority found that the appellant did have links with the terrorists and was mixed up with them and he was supplying secret information of the police department to terrorists which was creating hindrance in the smooth functioning of the police department. The appellate authority also found that it was impossible to conduct an enquiry against the appellant because nobody would come forward to depose against such "militant police official". The appellate authority also referred to the fact that the appellant was interrogated in a case, FIR No. 219 of 1990, and that during interrogation he admitted that he was having links with Major Singh Shahid Page 36 of 45 37 OA 1293/14 and Sital Singh Jakhar and was working for them. It further stated in its order that the appellant was preparing to murder some senior police officers while taking advantage of his position.
xxx xxx xxx
8. Proviso (b) to Article 311(2) says that the enquiry contemplated by clause (2) need not be held "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 enquiry".
Clause (3) of Article 311 expressly provides that "If, in respect of any such person as aforesaid, the question arises whether it is reasonably practicable to hold such enquiry 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". These provisions have been the subject-matter of consideration by a Constitution Bench of this Court in Union of India v. Tulsi Ram Patel, (1985) 3 SCC 398. It would be appropriate to notice a few relevant holdings in the said judgment: (SCR pp. 205-74: SCC pp. 454- 507, paras 62-138) "...before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the government servant concerned is such as justifies the penalty of dismissal, removal or reduction in rank.
Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an enquiry.
* * * 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 government Page 37 of 45 38 OA 1293/14 servant concerned is or is not a party to bringing about such an atmosphere. ... 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. ... 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....
* * * Where a government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. ... In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. ... In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal."
(emphasis is ours)
20. We shall now advert to the impugned order to determine, whether the three parameters laid down for the valid invocation of clause (b) to the second proviso under Article 311(2) of the Constitution of India, were made out. The first ingredient, which is a prerequisite to the sustainable application of the above clause (b) is, that the delinquency alleged should be such as would justify, any one of the three punishments, namely, dismissal, Page 38 of 45 39 OA 1293/14 removal or reduction in rank. We have already extracted hereinabove the order dated 1.3.2004, whereby, the appellant-Ved Mitter Gill was dismissed from service, with immediate effect. Its perusal reveals, that the punishment was based on reasons (recorded in the impugned order) divided into different compartments. The first is contained in the first paragraph, which deals with the duties and responsibilities vested with Ved Mitter Gill, as Deputy Superintendent, Model Jail, Burail, Chandigarh. The second component deals with the escape of four under-trials from Model Jail, Burail, Chandigarh. Three of the under-trials, who had escaped, were involved in the assassination of Shri Beant Singh, a former Chief Minister of State of Punjab. The instant paragraph also records, the factum that the said three under-trials were having links with Babbar Khalsa International, a terrorist organization. The fourth under- trial was being tried separately, for the offence of murder. The third component of the impugned order, relates to the material taken into consideration to evaluate the lapses committed by the appellant/petitioners, as would reveal their involvement with reference to the alleged delinquency, justifying the punishment of dismissal from service.
21. We shall now advert to the factual position emerging from the above. A reference was first of all made to the duties and responsibilities assigned to the appellant - Ved Mitter Gill. Having detailed the express duties assigned to him in paragraph 11 above, we have concluded therefrom, that the responsibility of all the jail inmates (safe custody of all prisoners) rested on his shoulders, and the petitioners herein, who assisted him in the same. The appellant - Ved Mitter Gill was required to satisfy himself once in every twenty-four hours, about the safe custody of the prisoners. He was also duty-bound to visit every barrack, ward, cell and compartment every twenty-four hours. He was to be present every morning and evening, when the prisioners were taken out of the sleeping wards or cells or other compartments, and then, restored to the same. He was to make a daily report by day-break and by night, that all the prisoners were present, and in safe custody. He was also required to report forthwith, any unusual occurrence. He was required at least once a week to inspect clothing, beddings, as well as, other articles, by thoroughly checking all places frequented by prisoners. And to make Page 39 of 45 40 OA 1293/14 a report, if he discovered any prohibited article, during the checking. The petitioners were associated with the appellant and assisted him in discharging his aforementioned duties. Had the appellant - Ved Mitter Gill, and the petitioners, performed their duties diligently, there could not have been any possibility, of the escape under reference. It cannot be overlooked, that the escape was made good, by digging the escape tunnel, which measured ninety-four feet in length (with diagonal dimensions of 21" x 21"). Six separate reasons have been expressed, by the competent authority in arriving at its conclusion. We have extracted the impugned order dated 1.3.2004, in its entirety, hereinabove. It fully establishes the inferences recorded by us. The determination by the competent authority, when viewed dispassionately with reference to the duties assigned to Ved Mitter Gill, leaves no room for any doubt, that the competent authority was justified in concluding, that the four prisoners referred to above could never have escaped, if the appellant - Ved Mitter Gill, and the petitioners, had diligently discharged the duties assigned to them. Having so concluded, about the responsibility and blameworthiness of the appellant/petitioners, there can be no doubt that the punishment of dismissal from service, was fully justified, as their delinquency had resulted in the escape of four dreaded prisoners.
22. The second ingredient which needs to be met, for a valid exercise of clause (b) to the second proviso under Article 311(2) of the Constitution of India, is the satisfaction of the competent authority, that it was not reasonably practicable, to hold a regular departmental enquiry, against the employees concerned. On the question whether it was reasonably practicable to hold an inquiry, the competent authority has recorded its conclusion in the paragraphs, preceding the one depicting the involvement of the appellant/petitioners. Amongst the reasons indicated, it has been recorded, that Ved Mitter Gill being a senior, permanent and non-transferable officer of Model Jail, Burail, Chandigarh, his junior jail officers, who alone would have been witnesses in such departmental proceedings, were not likely to come forward to depose against him, for fear of earning his wrath in future. The links of the escaped under-trial prisoners, with the Babbar Khalsa International, a known and dreaded terrorist organization were also clearly expressed in the impugned order, as one of the reasons, Page 40 of 45 41 OA 1293/14 for it being impracticable, to hold an inquiry against the appellant/petitioners. It is a matter of common knowledge, and it would be proper to take judicial notice of the fact, that a large number of terrorists came to be acquitted during the period in question, on account of the fact, that witnesses did not appear to depose against them on account of fear, or alternatively, the witnesses who appeared before the concerned courts, for recording their deposition, turned hostile, for the same reason. The situation presented in the factual narration noticed in the impugned order, clearly achieves the benchmark, for the satisfaction at the hands of the competent authority, that it would not have been reasonably practicable, to hold a departmental proceeding against the appellant /petitioners, in terms of the mandate contained under Article 311(2) of the Constitution of India.
23. The third essential ingredient, for a valid application of clause (b) to the second proviso under Article 311(2) of the Constitution of India, is that, the competent authority must record, the reasons of the above satisfaction in writing. In the present case, there is no serious dispute on this issue, because the reasons for the satisfaction have been recorded by the competent authority in the impugned order (dated 1.3.2004) itself.
24. For the reasons recorded above, we are satisfied, that all the parameters laid down by this Court, for a valid/legal application of clause (b) to the second proviso under Article 311(2) of the Constitution of India, were duly complied with.
xxx xxx
27. Insofar as the holding of a trial, and the appearance of witnesses therein is concerned, yet again, the analogy invoked by the learned counsel representing the appellant/petitioners, is wholly misconceived. Whilst in a criminal prosecution proof is strict, and must be based on cogent and acceptable evidence. In a criminal case, there is no alternative but to establish guilt of an accused, based on acceptable evidence. The evidence is to be produced before the Court, trying the criminal case. There is no way the same can be exempted, as in the case of a departmental proceeding. Insofar as the present controversy is concerned, there is a constitutional provision creating an exception. Clause (b) of the second proviso to Article 311(2) of the Constitution of India, is Page 41 of 45 42 OA 1293/14 the exception in question, which authorizes the course adopted by the respondents. The reasons for dispensing with the departmental enquiry, cannot be dependent upon the holding or not holding of criminal proceedings, against the appellant/petitioners. Once the parameters stipulated in clause (b) of the second proviso to Article 311(2) of the Constitution of India are satisfied, the submissions advanced at the hands of the learned counsel for the appellant/petitioners, would not arise."
11. After having given our thoughtful consideration to the rival contentions in the light of the latest decision of the Hon'ble Supreme Court in Ved Mitter Gill Vs. Union Territory Administration, Chandigarh & others (supra), we have found no substance in any of the contentions of the applicant.
12. A careful perusal of the foregoing decisions makes it clear that three ingredients are prerequisite to the sustainable application of clause (b) to the second proviso under Article 311(2) of the Constitution of India. They are: (1) the delinquency alleged should be such as would justify any one of the three punishments, viz., dismissal, removal, or reduction in rank; (2) the satisfaction of the competent authority that it was not reasonably practicable to hold a regular departmental enquiry; and (3) the competent authority must record the reasons of the above satisfaction in writing.
13. In paragraph 4 of this order, we have extracted the impugned order dated 2.4.2013 passed by the Deputy Commissioner of Police, North District, Delhi, as Disciplinary Authority, dismissing the applicant from service with immediate effect, by invoking Article 311(2)(b) of the Constitution of India. The determination by the said authority, when viewed Page 42 of 45 43 OA 1293/14 dispassionately with reference to accusations made against the applicant, leaves no room for any doubt that the said authority was justified in concluding that the delinquency alleged against the applicant would substantiate the punishment of dismissal from service. The Disciplinary Authority has found that the conduct of the applicant is of a notorious person of superlative degree and his continuance in the force is likely to cause further irreparable loss to the functioning and credibility of Delhi Police.
The applicant has acted in a manner highly unbecoming of a police officer.
If he is allowed to continue in police force after this act of serious misconduct, it would be detrimental to public interest at large. The facts and circumstances of the case are such that it would not be practicable to conduct a regular departmental enquiry against the applicant, as there is reasonable belief that the witnesses may not come forward to depose against him. It is a common experience that due to terrorizing and intimidating, the witnesses and the complainant do not come forward to depose against the delinquent in the investigation/enquiry and this kind of intimidation is a common tactic adopted by the unscrupulous and criminal bent of mind police personnel. It also calls for great courage and minimize the scope to depose against the persons where the delinquent is a police official who may use his job to influence the statement/deposition of the witnesses. The applicant is a public servant of indiscipline and there is every possibility of his influencing as well as intimidating the witnesses in the criminal case registered in this regard and also in case of enquiry initiated against him. The applicant has Page 43 of 45 44 OA 1293/14 become a liability to the department and should not be allowed to continue in Police Department and needs to be dismissed. It would be both in public interest as well as for the establishment of rule of law, which is expected by public at large. While agreeing with the Disciplinary Authority, the Joint Commissioner of Police, Central Range, Delhi (Appellate Authority) has rejected the applicant's appeal, vide impugned order dated 2.7.2014, which has been extracted by us in paragraph 6 of this order. It has also been observed by the Appellate Authority that corruption eats into the vitals of the society. When the protectors of law turn into predators with impunity, the situation becomes critical and it is for the Disciplinary Authority to weed out such elements from a disciplined force, like Delhi Police, without delay. The facts of the case disclose that continuance of the appellant in Delhi Police, in light of his extreme misconduct, is highly dangerous for the morale of the society at large and the hapless victims of the case in particular. Awarding him a lesser punishment would have been a travesty of justice. An unsuspecting citizen approaches a policeman with much hope, but incident like the one at hand tends to erode the faith of society in the law enforcement agencies. The very fact that the appellant had refused TIP has raised a more than a reasonable presumption of guilt against him. The fact that the learned court has taken cognizance against him has also incriminating value. In a situation where the applicant and his accomplices have put the victims of their perpetration in such harrowing circumstances, the victims cannot be expected to depose freely against the appellant without fearing for their Page 44 of 45 45 OA 1293/14 safety. After going through the orders passed by the Disciplinary Authority and Appellate Authority, we have no hesitation in holding that all the three ingredients prerequisite for invocation of Article 311(2)(b) of the Constitution of India are met in the instant case. Therefore, we find no scope to interfere with the impugned orders.
14. Resultantly, the O.A., being devoid of merit, is dismissed. No costs.
(NAVIN TANDON) (RAJ VIR SHARMA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
AN
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