Central Administrative Tribunal - Delhi
Neeraj Kumar vs Comm. Of Police on 27 April, 2023
1
OA No.1038 of 2017
Court No.2 (item No.18)
Central Administrative Tribunal
Principal Bench
OA No.1038/2017
Reserved on: 14.03.2023
Pronouncement on: 27 .04. 2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Dr.Chhabilendra Roul, Member (A)
Neeraj Kumar, Age-31 Years, Group-C
Post Constable,
S/o Late Sh. Dharam Singh,
R/o Village-Paprawat,
P.O.&.P.S. -Najafgarh,
District -South -West,
New Delhi-110043. -Applicant.
(Through Advocate: Sh. Sachin Chauhan)
Versus
1. Govt. of NCTD
Through the Chief Secretary
Govt. of NCTD,
A-Wing, 5th Floor,
Delhi Secretariat, New Delhi-110113.
2. The Commissioner of Police
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
3. The Special Commissioner of Police,
New Delhi Range,
Through Commissioner of Police, Delhi Police,
Police Headquarters, I.P. Estate, New Delhi.
4. The Addl. Dy. Commissioner of Police,
New Delhi District,
Through Commissioner of Police, Delhi Police,
Police Headquarters, I.P. Estate,
New Delhi. -Respondents
(Through Advocate: Mr. Puneet Rathi for
Ms.Rashmi Chopra)
2
OA No.1038 of 2017
Court No.2 (item No.18)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
1. The present Original Application is filed by the applicant against order dated 8.4.2016 whereby the respondent has dismissed the applicant from government service invoking Article 311(2) (b) of the Constitution of India and order dated 26.8.2016 whereby the statutory appeal of the applicant has been rejected .
2. Brief facts of the case are that the applicant was appointed as a constable in Delhi Police in the year 2008. A case FIR No 115 /13 dated 21.4.2013 u/s 302/201, P.S. Chhawla was registered against applicant. The allegations in the FIR was that the applicant had murdered his old parents in a nearby plot neighboring House No. 276, near Pilla Johar Paprawat Village. He admitted to the crime to the Investigating Officer. The applicant, Constable (Exe) No. 511/ND (PIS 28080373) was arrested in connection with this FIR on 21.4.2013.
3. The Respondents placed the applicant under suspension with effect from 21.4.2013. The applicant 3 OA No.1038 of 2017 Court No.2 (item No.18) was in judicial custody at the time of filing this OA.
Charge Sheet has already been filed and Court of Additional Sessions Judge-I, Dwaraka has taken cognizance of the offence in this case. A preliminary investigation was got conducted through ACP/PG Cell/NDD vide order No. 3006/HAP/NDD(D-I) dated22.5.2014. The Disciplinary Authority among the respondents (The Addl. Deputy Commissioner of Police, D-I) vide order dated 2.4.2016 reasoned that the conduct on the part of the constable was of grave in nature and concluded that his further retention in police service would be disastrous for the force and the authorities wanted to send a message to the other police officials regarding such behaviour unbecoming of a police official. The order dated 2.4.1016 specifically states:-
"Under these circumstances, I am of the view that Constable (Exe) Neeraj Kumar No.511/ND has brought had name to the entire police official in such a dastardly act would destroy the faith of the people in the law enforcement system and no witness will come forward for any enquiry. The involvement of the Constable in such criminal act is not only undesirable, but it also amounts to serious misconduct and indiscipline, totally unbecoming of a police officer. It is under these given set of compelling circumstances the rules under Article 311(2) (b) of Constitution (Exe). Neeraj Kumar No. 511/ND should not be allowed to continue in police service and needs to be dismissed immediately without following the 4 OA No.1038 of 2017 Court No.2 (item No.18) procedure of regular Departmental Proceedings, although purpose of the fact finding is really not needed as the contents of case FIR No. 115 dated 21.04.13 u/s 302/201 IPC, PS Chhawla, Delhi, his disclosure statement and the Preliminary Enquiry conducted into the matter has proved his involvement in this case."
4. The applicant preferred a statutory appeal against the said order and the appellate authority vide his order datedc26.8.2016 agreed with reasoning and the observations of the DA and rejected the appeal. Being aggrieved, the applicant has come to this Tribunal seeking for the following relief(s):-
(i) To set aside the impugned order dated 08.04.2016 whereby the extreme punishment i.e. dismissal from service is being imposed and order dated 26.08.2016 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.
Or/and
ii) Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant.
4(A). On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
5OA No.1038 of 2017 Court No.2 (item No.18)
5. The applicant in his OA and the learned counsel for the applicant during the arguments have taken the following grounds seeking the aforementioned reliefs:-
(i) The Disciplinary Authority's order is bad in law as the reasons recorded by him to dispense with the Disciplinary Proccedings are based on suspicion and surmises, the reasons are vague, arbitrary and thus are bad in law. The DA has stated that he had reasonable belief that it would be impracticable to conduct regular departmental proceedings. He has, without basis, has concluded that "it is highly unlikely that any one will depose against such reckless killer in the DE proceedings because they all belong to the same village." The reasoning is based on the assumption that the allegations against the applicant in the criminal case stand proved. There is no evidence record that the applicant could intimidate the witnesses. Moreover, the trial is on the verge of conclusion and every witness whether official or private have come forward and have freely deposed in the trail. The impugned order was passed when it was clear that the deposition of witnesses in the trial court was going on.6 OA No.1038 of 2017
Court No.2 (item No.18)
(ii) The allegations that the applicant was involved in a heinous crime of murdering his parents and this was extremely alarming and most abhorrent point to the gravity of the criminal offence in respect of the said FIR. However, gravity of the charge was not a titling factor while invoking Article 311(2) (b).
(iii) The Disciplinary Authority and Appellate Authority have arbitrarily concluded that the criminal case will take a long time to complete. By the time the impugned orders were issued nearly three years since the date of the FIR have elapsed. In the trial, 14 witnesses have already deposed and hence, the assumption that the criminal proceedings will take a long time is pure surmise that supported by the facts.
(iv) The reasoning that the Police authorities need to deal with a heavy hand cannot deprive the applicant of a proper disciplinary enquiry, giving him the opportunity to defend himself.
6. The learned counsel cited the order dated 10.02.2022 of this Tribunal in OA no. 1383/2020 & 7 OA No.1038 of 2017 Court No.2 (item No.18) other connected OAs in case of Sumit Sharma vs Govt of Delhi &ors wherein the non-application of mind by the DA while mechanically invoking Article 311(2) (b) of Constitution of India has been not appreciated and the applicants therein were reinstated in service. Particularly this Tribunal in the said OA held that:
"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 72 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 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 evidence against the applicant(s) or anything was found that on regular enquiry or by summoning the witness(es) the 73 O.A. No.1383/2020 with 8 OA No.1038 of 2017 Court No.2 (item No.18) OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 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.
46. It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law 74 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove."
7. The counsel for the applicant further averred that the Disciplinary and the Appellate Authority while invoking Article 311(2) (b) had assumed as if the 9 OA No.1038 of 2017 Court No.2 (item No.18) allegations made in the criminal case already stand proved and based on such presumption the impugned order is passed. He further averred that when a Preliminary Enquiry was possible and when the criminal proceedings are possible, it is presumptuous to state that it is not practicable to hold disciplinary proceedings. The counsel for the applicant cited the following orders by this tribunal to buttress his argument that the Disciplinary and Appellate Authorities should have not invoked Article 311(2) (b) in a routine manner:
(i) Chief security Officer &ors vs Singhasan Rabi Das AIR 1991 SC 10431515
(ii) Sudesh Kumar vs State of Haryana , 2005 Vol XI SCC 525
(iii) Satyavit Singh vs Union of India 1986 SCC (L&S) 1
(iv) Jagdish vs Union of India , OA No. 1515 /2001 decided on 7.2.2003
(v) Neeraj Kumar vs Delhi police , OA no.2097/2019 decided on 1.11.2019
(vi) Insp Jaswinder Singh vs Delhi Police , OA no.2867/2019 decided on 16.10.2020
(vii) Insp Dharmender Singh vs Delhi Police , OA no.702/2019, decided on 7.1.2021
(viii) Kripal singh &ors Vs Delhi Police , OA No. 1912/2015 , decided on 11.3.2021
(ix) Tara Dutt vs Delhi vs Delhi police, OA No. 1114/2018 , decided on 17.6.2021
(x) Vikash vs GNCTD , OA no. 1102/2015 decided on 2.11.2017 In Neeraj Kumar (supra ) case it was held that :10 OA No.1038 of 2017
Court No.2 (item No.18) "15. Article 311 provides for protection to a public servant from indiscriminate actions by the employer. Any punishment can be imposed only after conducting inquiry. That cannot be dispensed 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 12 OA No. 2097/2019 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."
8. The counsel for the applicant further averred that the Delhi Police following the judgment of the Apex Court in Union of India vs Tulsi Ram Patel &ors , Air 1985 SC 1416 wherein the Vigilance wing had issued guidelines vide circular No. 5545- 645/P.Cell/Vig/P.Misc dated 11.9.2007 and Circular no. 2513-2612/P.Cell (P.Misc)/Vig Dated 18.4.2018 11 OA No.1038 of 2017 Court No.2 (item No.18) delineating the condition precedent for invoking Article 311(2) (b) in the following manner:-
"Henceforth, it has been decided that whenever any Disciplinary Authority intends to invoke Article 311 (2)(b) of the Constitution of India, he must keep in mind the judgment in the case of UOl v. Tulsi Ram Patel, AIR 1985 SC 1416. Only in cases where Disciplinary Authority is personally satisfied on the basis of material available on file that the case is of such a nature that it is not practicable to hold an enquiry in view of threat, inducement, intimidation, affiliation with Criminals etc. and keeping in view the specific circumstances of the case it is not possible that PWs will depose against the defaulter and disciplinary authority has no Option but to resort to Article 311 (2) (b) should such an action be taken. Prior to such an order, a PE has to be conducted and it is 'essential to bring on record all such facts. It has also been decided that before passing an order under. Article 311 (2) (b) of the Constitution, Disciplinary Authority has to take prior conclusion of Spl./Admn."
9. The counsel for the applicant stated that there was no concurrence of the special commissioner of Delhi Police in the instant case. The order of the Appellate authority is also non-speaking and mechanical in nature. The Appellate Authority has moved on the premise of gravity of misconduct and the presumption that the allegation against the appellant stands proved. In view of this, he averred that, the 12 OA No.1038 of 2017 Court No.2 (item No.18) Hon'ble supreme Court in the matter of Satyajit Singh vs Union of India ( supra) held that the enquiry cannot be lightly dispensed with on the ipsi dixit of the disciplinary authority and can be only when it is not reasonable practicable to proceed with departmental inquiry. Here the Disciplinary Authority as well as Appellate Authority have failed to furnish any reasonable substantiated matter on record to come to conclusion that no departmental proceedings was reasonably practicable in the instant case. In view of this, he averred that the impugned order dated 23.4.2020 and the order dated 24.6.2021 of the Appellate Authority is bad in law and hence should be set aside.
10. The learned counsel for the respondent relied on the counter affidavit filed by the respondents. He averred that the facts and circumstances brought out in the preliminary enquiry showed the immoral behaviourthe applicant. From his disclosure statement, it was evident that the applicant had committed a heinous crime of murdering his parents, which was extremely alarming, most abhorrent and required to be death with a heavy hand. When a policeman charged with the sacred responsibility of 13 OA No.1038 of 2017 Court No.2 (item No.18) upholding the rule of law himself indulges in such act of heinous crime and lawlessness, the faith of common man in Government's Authority gets shattered. The Delhi Police wanted to send a clear message to such undesirable elements in the police force and to maintain discipline, the Disciplinary Authority thought it appropriate that the applicant deserved an exemplary punishment without following the procedure of regular departmental enquiry. The misconduct on the part of the applicant was so grave that further retention of the applicant in the police force would have been disastrous. Leniency in the instant case would have sent a wrong signal to other police officials who are performing their duties with honesty and sincerity. Moreover, the applicant was in judicial custody and it would have taken pretty long time to conclude disciplinary proceedings. Hence, the invoking of Article 311(2)(b) was justified in the instant case.
12. The counsel for the respondents further cited the judgment of the Delhi High Court in Manohar Lal Vs Commissioner of Police in W.P. ( C) 1309/2023 & CM Appl. 4945/3023 wherein held in a lesser instant of crime of robbery -cum-docaity the invocation of Article 311 (2) (b) was upheld. It was held that the 14 OA No.1038 of 2017 Court No.2 (item No.18) nature of the crime and the circumstances and characteristics of the probable witnesses would determine the satisfaction of the Disciplinary Authority that no enquiry is practicable. It was held:-
"17. Further, we find that the reasons provided by the Disciplinary Authority, Appellate Authority and the Tribunal in arriving at the conclusion that it would not be reasonably practicable to conduct a regular departmental enquiry in the present matter and as such Article 311(2)b) of the Constitution of India needs to be invoked, are satisfactory. The petitioner being a police officer accused of serious criminal offences including robbery-cum-burglary, the Disciplinary Authority was justified in holding that there is a reasonable possibility that he may directly or indirectly prejudice any departmental proceedings by threatening, intimidating or inducing the complainant/witness (es) or even tamper with vital evidence. In fact, it is stated that the preliminary enquiry report reveals that the complainant/witness was severely traumatized by the incident. In these circumstances, the Disciplinary Authority had rightly come to the conclusion that it would not be reasonably practicable to conduct a regular departmental enquiry."
13. We have gone through the records of the case thoroughly and heard the arguments by both the counsels carefully. The Apex court in Union of India vs Tulsi Ram Patel &ors , Air 1985 SC 1416 has clearly held that invoking of Article 311 (2) (b) in a routine manner is bad in law. The apex Court in this case held that:
15OA No.1038 of 2017
Court No.2 (item No.18) "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 given 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."16 OA No.1038 of 2017
Court No.2 (item No.18)
14. Based on this judgment, the Delhi Police issued Circulars vide their Vigilance wing cautioning against invoking Article 311(2) (b) indiscriminately. As it is clear from the 2007 circular of Delhi Police only when Disciplinary authority is satisfied on the basis of material available on file that the case is such that it is not practicable to hold a Departmental Enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in the special circumstances of the case it is not possible that witnesses will not depose against the delinquent official, then only Article 311(2)(b) may be invoked.
15. Perusal of the records of the instant case does not provide reasonable ground to hold an a priori view that the applicant, accused of murdering his parents may use threat, inducement, and intimidation to the probable witnesses, who belong to the same village. The Preliminary Enquiry conducted by ACP PG Cell was submitted by the respondents after being spoken on 17.4.2023. Perusal of the Preliminary Enquiry by ACP Anand Prakash dated 5.1.2015 does not show any indication that the probable witnesses in any proposed 17 OA No.1038 of 2017 Court No.2 (item No.18) disciplinary case would be intimated by the applicant. The Preliminary Enquiry mentions the heinous nature of offence and the fact that the Judicial Court framed the charges against the applicant. Moreover, the counsel for the applicant has stated the Trial Court proceedings are undergoing smoothly and many witnesses have deposed against the applicant. Though the applicant is out of jail on bail, there is no reported threat or intimidation by the applicant to any of the witnesses in the criminal case. Hence, there was no apparent reason that a proper disciplinary proceedings could not have been held. The other reason that disciplinary proceedings would have taken a longer time does not obviate the need to follow due procedure of law and principles of natural justice. The Preliminary Enquiry dt. 5.1.2015 of ACP Shri Anand Prakash specifically states:
"For assessing the quantum of default, it goes without saying that Const. Neeraj Kumar 511 /ND is a member of discipline0d force who had been put to all kind of basic training and being a person conversant with law and also required to enforce law, given the reason/ notice in the charge sheet, he was supposed to have recourse to the protection of the Law/ Public Authorities, but the investigations concluded against him leading to the filing of charge sheet and the prima facie appreciation of evidence and material on record by the trail court leading to framing of formal charge against him and his wife leads to 18 OA No.1038 of 2017 Court No.2 (item No.18) the reason to believe that he inflicted more harm than was necessary to inflict for the purpose of defense of his own / self esteem and it was not a situation that he ought not to be master of his mind so it was a malice aforethought and the retaliation had no reasonable relationship and the act was not that of a reasonable man as reasonable man would have been provided to loose his self control and was an act of superlative degree done voluntarily. The submissions in the findings are meant for disciplinary purposes against Constable Neeraj Kumar No. 511/NDD only and noneelse."
16. From the allegations in the FIR and the subsequent charges framed during judicial proceedings, the DA and the Appellate Authority held the view that the conduct of the applicant was unbecoming of a police official and they wanted to impose exemplary punishment to the applicant so that the rest of the police force would take note. From this it is clear that the DA and the AA have concluded that the allegations against the appellant stood already proved. Grave misconduct is not a contingent condition for invoking Article 311(2) (b). As it has been held by the Apex Court in Tulsi Ram case(supra) and several orders of this Tribunal cited by the counsel for the applicant, what is most important factor in invoking article 311(2) (b) is the reasonable satisfaction based 19 OA No.1038 of 2017 Court No.2 (item No.18) on material facts that it is impracticable to hold Disciplinary Proceedings. In the instant case, there was no material on record to show that it not practicable to hold departmental proceedings. The impugned order just repeated "ad verbatim the phrase "facts and circumstances of the case are such that it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulter constable as there is reasonable belief that the defaulter will influence the statements/ deposition of witnesses during DE proceedings and it will take a considerable long period."
It is mechanical quote from the various judgments /orders of the Apex court and this tribunal. However, this statement is not backed by facts and circumstances of impracticability of holding departmental enquiry because the applicant was using any threat, inducement, intimidation to the probable witnesses. Because there was an FIR against the applicant for his alleged involvement in a criminal act, it cannot lead to reasonable presumption that the appellant would use threat/ inducement/intimidation/allurement to influence the probable witnesses in case a departmental enquiry is 20 OA No.1038 of 2017 Court No.2 (item No.18) held. The alleged misconduct is not proved as yet and such misconduct is supposed to be proved in a departmental enquiry. Furthermore, misconduct is not a contingent condition for invoking Article 311(2) (b) of the Constitution of India. In view of the this the impugned orders are based in law and hence are liable to set aside.
17. In view of the above, facts and circumstances and for the reasons recorded hereinabove, the present OA is partly allowed with the following directions:-
(i) Order(s) passed by the disciplinary and appellate authorities (impugned orders in this OA) are set aside with all consequential benefits to the applicant in accordance with the relevant rules and law on the subject; and
(ii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
There shall be no order as to costs.
All pending MAs are also disposed of accordingly.
(Dr. Chhabilendra Roul) (R. N. Singh)
Member (A) Member (J)
/mk /