Central Administrative Tribunal - Delhi
Amit Kumar Yadav vs Gnctd on 6 September, 2024
1
OA No. 1412/2023
Item No. 36/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1412/2023
Reserved on: - 06.08.2024
Pronounced on: - 06.09.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Amit Kumar Yadav
Age-33 years
S/o Sh. Bali Kumar Yadav
R/o- H.No. 105, Badwali Ki Dhani,
VPO- Tijara, Distt. Alwar, Rajasthan-301411
Group „C‟
Ex. Constable in Delhi Police ... Applicant
(By Advocate: Mr. Sachin Chauhan with Ms Ridhi Dua, Mr.
Abhimanyu Baliyan and Mr. Himanshu Raghav)
Versus
1. Govt. of NCT of Delhi
Through the Chief Secretary,
Govt. of NCTD, A-Wing, 5th Floor,
Delhi Secretariat, New Delhi-110113
2. The Commissioner of Police
Police Headquarters, Jai Singh Road
New Delhi.-110001
3. The Joint Commissioner of Police,
Central Range, New Delhi
Through its The Commissioner of Police
Jai Singh Road
New Delhi.-110001
4. The Deputy Commissioner of Police
Central District, New Delhi
Through its The Commissioner of Police
Jai Singh Road
New Delhi-110001 ... Respondents
(By Advocate: Mr. Anil Kumar Mishra)
2
OA No. 1412/2023
Item No. 36/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant has prayed for the following reliefs: -
"8.1 To set aside order dated 19.11.2021 whereby the extreme punishment of dismissal from service is inflicted upon the applicant and order dated 27.2.2023 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents to reinstate the applicant back in service with all consequential benefits including seniority & promotion and pay & allowance.
And/or Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant."
2. Pursuant to notice, the respondents have filed their counter affidavit opposing the claim of the applicant and have prayed for dismissal of the present Original Application. The applicant has also filed his rejoinder denying the contention of the counter affidavit and reiterated his claim in the OA.
3. The brief facts of the present case are that the applicant was appointed as Constable in Delhi Police on 08.01.2010. The applicant claims that he has unblemished service record. The applicant claims that he is sole bread earner of his family which consists of his wife and two children (son is of 7 years old and daughter is of 5 years of age). He states that he was implicated in false FIR No. 461/2021 U/s 364-A, 392/397/412/34 of IPC 3 OA No. 1412/2023 Item No. 36/C-II registered at PS Paharganj, Delhi on 19.11.2021. The applicant states that the applicant was arrested on 19.11.2021 and he was placed under suspension on 19.11.2021 vide an order dated 19.11.2021. He states that in the criminal case, trial is undergoing and private witnesses are being examined. The applicant further states that the disciplinary authority issued an order dated 19.11.2021 and dismissed him from service by invoking the power under Article 311 (2) (b) of the Constitution of India that too without conducting a departmental enquiry. The Disciplinary Authority has admitted in the above-mentioned disciplinary order that a preliminary enquiry is being conducted by ACP/Pahar Ganj, Delhi in the matter, however, preliminary enquiry report was never supplied to the applicant till date.
4. The applicant states that the reasons recorded by the Disciplinary Authority to dispense away with the departmental enquiry are vague, evasive and false. The sole objective is to adopt a short cut method to avoid departmental enquiry and invoke the powers under Article 311 (2) (b) of the Constitution of India causing great prejudice to the applicant and further establishing the absolute abuse of process of law. He contends that the Disciplinary Authority has assumed as if the allegations made in criminal case (FIR) already stands proved and thus with these presumptions, the present impugned order is being passed. He imputes that once the order of Disciplinary Authority is based on 4 OA No. 1412/2023 Item No. 36/C-II assumption as if the allegations made against the applicant already stand proved that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being based on assumptions, suspicion and surmises.
5. The applicant states that the Disciplinary Authority has mentioned that concurrence of the Spl. C.P., Admn. has been taken in pursuance to the conditions laid down in the Circular dated 11.09.2007 before taking a decision to invoke the provision of Article 311 (2) (b) of the Constitution of India. The conditions mentioned in the above mentioned circular read as follows: -
"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 Art. 311 (2) (b) of the Constitution, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.)."
6. The applicant states that there is no concurrence of Spl. Commissioner of Police as per the requirement of the aforesaid circular and thus the present impugned order is being passed in violation of circular dated 11.09.2007 and thus the present order is bad in law being passed without jurisdiction and competence by 5 OA No. 1412/2023 Item No. 36/C-II the authorities. He further states that reliance has been placed on preliminary enquiry conducted by ACP/Paharganj, Delhi. The report along with relevant papers were forwarded to Spl. C.P./Zone-1 for seeking his concurrence to dismiss the applicant under Article 311 (2) (b) of the Constitution of India and the same has been approved by the competent authority is subjected to strict proof. Copy of concurrence and preliminary enquiry report were never supplied to the applicant. The appeal of the applicant was rejected vide appellate order dated 27.02.2023. The applicant contends that order of Appellate Authority is absolutely non- speaking and mechanical in nature. It fails to consider specific submission of the applicant relating to invoke the power under Article 311 (2) (b) of the Constitution of India.
7. The applicant has referred to mention case laws but the same has not been considered by the appellate authority. The Appellate Authority has moved on premises of gravity of misconduct and presumption that the allegation against the applicant stands proved. The Appellate Authority has totally missed out the prerequisite as per Article 311 (2) (b) of the Constitution of India for invoking the power under the said article, therefore, the order of Appellate Authority is bad in law. He contends that the Appellate Authority has blindly supported the reasons put forth by the Disciplinary Authority for dispensing away with the 6 OA No. 1412/2023 Item No. 36/C-II departmental enquiry. The reasons recorded for dispensing away with departmental enquiry are based in suspicion and surmises.
8. In the present Original Application, the applicant has raised the following grounds: -
(i) The applicant states that the reasons recorded by Disciplinary Authority to dispense away with the departmental enquiry are based on suspicion and surmises.
(ii) There is no occasion for the Disciplinary Authority to record that in the present case, departmental enquiry is not reasonably practicable.
(iii) Following reasons have been recorded by the Disciplinary Authority to dispense away with the departmental enquiry: -
"It has been observed that the facts and circumstances of the case are so serious that it will not be reasonably practicable to conduct a regular departmental enquiry against the defaulter, as there is a reasonable belief that the witnesses may not come forward to depose against him owing to his influential position. It also calls for great courage to depose against the desperate police personnel could use his job to influence the statement/deposition of the witnesses. It is also highly probable that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant fear of threat to their persons and property from the defaulter and his associates. Under these circumstances."
9. The applicant contends that once the preliminary enquiry is possible then a departmental enquiry is also possible. He further states that in the present case even the trial will take place and 7 OA No. 1412/2023 Item No. 36/C-II even the same would be prolonged and just because of the fact that departmental enquiry is going to take 4-5 months, it cannot be a justified ground, tenable in the eyes of law while invoking the power under Article 311 (2) (b) of the Constitution of India.
10. The applicant further states that it is not in the public interest and even as per rule of law to use the provision of Article 311 (2)
(b) of the Constitution of India, it was incumbent upon the authorities not to use Article 311 (2) (b) of the Constitution of India in the present case and to give opportunity to the applicant to put forward his defense in the departmental enquiry. The gravity of misconduct alleged in the criminal case cannot be ground to invoke the power under Article 311 (2) (b) of the Constitution of India. The applicant as per rule of law must be given opportunity to put forward his defence in regular departmental enquiry until and unless the departmental enquiry is not reasonably practicable. The reasons recorded in present impugned order to dispense away with the departmental enquiry are not tenable in the eyes of law and Article 311 (2) (b) of the Constitution of India is being used as a short cut method to dismiss the applicant.
11. The applicant states that the Disciplinary Authority has assumed as if the allegations made in criminal case already stands proved and thus with these presumptions, the present impugned order is being passed. He mentions that once the order of 8 OA No. 1412/2023 Item No. 36/C-II Disciplinary Authority is based on assumption as if the allegations made against the applicant already stand proved that too on the basis of preliminary enquiry and FIR, the same act is enough to vitiate the order of Disciplinary Authority as being bad in law and based on assumptions, suspicion and surmises.
12. The applicant further states that the order of Appellate Authority is absolutely non-speaking and mechanical in nature and repeats the same illegality as committed by Disciplinary Authority. The Appellate Authority also moves on suspicion and surmises and fails to apply his mind on the specific submissions made by the applicant within the body of statutory appeal and law relied in statutory appeal.
13. He further states that in case of a person being in judicial custody then also he is subjected to a departmental enquiry. A departmental enquiry can go along with a trial in relation to the same charge subject to few objections. The reasons recorded for dispensing away with departmental enquiry are again based on assumption, pre-determine mind and contrary to the current position of law and laid down departmental rules and procedures.
14. Learned counsel for the applicant is placing reliance on the latest judgment of the Hon‟ble Tribunal qua the same respondent on the use of Article 311 (2) (b)of the Constitution of India i.e. OA No. 2097/2019 in the case of Neeraj Kumar Vs. Delhi Police decided on 01.11.2019, OA No. 2867/2019 in the case of Ins. 9 OA No. 1412/2023 Item No. 36/C-II Jasmohinder Singh decided on 16.10.2020, OA No. 702/2019 in the case of Ins. Dharmender Singh Dangi decided on 07.01.2021, OA No. 1912/2015 titled Kripal Singh Vs. Govt. of NCTD & Ors. decided on 11.03.2021 and OA No. 1114/2015 in the case of Tara Dutt Vs. GNCT of Delhi & Ors. decided on 17.06.2021 and connected OAs No. 1383/2020, 3508/2018, 4021/2016,. 3027/2018, 2777/2019, 3267/2019, 467/2020 and 34/2021 titled Sumit Sharma Vs. Govt. of NCT of Delhi & Ors. decided on 10.02.2022. Hence, the present O.A.
15. The applicant states that in the FIR lodged against him, a criminal trial will take place in the court of law. He states that if trial is possible then departmental enquiry is also possible. He states that the Disciplinary Authority has recorded in the disciplinary order that there is no reasonable belief of authority that witness may not come forward to depose against the applicant. The said belief of Disciplinary Authority is based on suspicion and surmises. There is no attempt to initiate a departmental enquiry and nothing has been brought on record, subsequently to the allegation that the applicant has made any attempt to influence the witness and thus with this presumption, the present impugned order is being passed. He states that once the order of Disciplinary Authority is passed on assumption as if the allegations made against the applicant already stand proved 10 OA No. 1412/2023 Item No. 36/C-II that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being bad in law.
16. Counter reply has been filed by the respondents on 22.08.2023 wherein they have mentioned that FIR No. 461/21 U/s 364-A/392/397/412/34 IPC was registered at Police Station Paharganj Central District, Delhi against the applicant i.e. Const. Amit Kumar Yadav PIS No. 28104693, by the complainant Sandeep Kumar Malviya R/o 35/15, Railway Colony, Kishanganj, Delhi alleged that three persons came to his office, i.e. E-2/6, Moti Bhawan, Jhandewalan Delhi and forcibly took away his employee/cousin namely Ghanshayam @ Bittoo S/o Mohan Lal, R/o L-344, Dayanand Colony, Kishanganj, Delhi and took away mobile phones of his 03 employees. Later on, they called through mobile no. of Ghanshyam @ Bittoo to mobile no. of his employee namely Shailender and demanded Rs. 5 lakhs as ransom to release Bittoo and also threatened to shoot him.
17. The respondents further state that during the investigation, 03 persons namely Pradeep Kumar Pradhan S/o Rajinder Pradhan @ Lakhan Singh Pradhan, R/o R2-5B, Gali No.-30, Palam Colony, Delhi (Sub Inspector in Delhi Police, Belt No, D-5950, PIS No, 16140323, posted at Janakpuri Special Cell), Amit Kumar Yadav S/o Bali Kr. Yadav, R/o VPO- Tijara, Distt. Alwar, Rajasthan (Constable in Delhi Police No. 1271/C, PIS No. 28104693 posted in Distt. Line, Central Distt.) and Tejvinder Singh S/o Satbir, R/o 11 OA No. 1412/2023 Item No. 36/C-II House No. 11/A, Gopal Nagar, Nazafgarh (Dismissed Const. of Delhi Police) were arrested and the victim Ghanshaym @ Bittoo got released from their captivity. During the course of investigation, 03 mobile phones belonging to employee of complainant and a licensed revolver along with 06 cartridges were also recovered from their possession. Accordingly, Section 392/397/412/34 IPC were also added in the case.
18. The applicant reported in District Line/Central Distt. Vide DD No. 14 dated 20.08.2021 on his transfer from Special Cell vide PHQ‟s order dated 16.08.2021. Due to involvement/arrest in the above said case, the applicant was placed under suspension w.e.f. the date of his arrest i.e. 19.11.2021. The respondents mention that in view of the facts and circumstances, it would not be reasonably practicable to hold a regular departmental enquiry against the applicant in view of threat, inducement, intimidation, affiliation with criminal etc. The respondents were holding the view that the applicant has brought bad name to the department and his conduct is completely unbecoming of an officer. They state that it is shameful and abominable act of moral turpitude. They further state that the applicant has violated all norms of ethics and morality of indulging himself into such type of crime kidnapping/abduction for abduction for ransom, robbery with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of dacoity. It is further stated 12 OA No. 1412/2023 Item No. 36/C-II that it is not desirable to have such man uniformed in service. They state that due to gravity of mis-conduct of applicant, he deserves to be dismissed from force under Article 311 (2) (b) of the Constitution of India.
18. The respondents further state that the involvement of the applicant in such type of crime creates a humiliating appearance of Delhi Police Personnel before the public and brings down the morale of other officials of Delhi Police. The respondents also state that the facts and circumstances of the case are so serious that it will not be reasonably practicable to conduct a regular departmental enquiry against the applicant as there is a reasonable belief that the witnesses may not come forward to depose against him owing to his influential position. They state that it calls for great courage to depose against the desperate police personnel and the task becomes more acute and difficult where the police personnel could use his job to influence the statement/deposition of the witnesses. It is highly probable that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant fear of threat to their persons and property from the applicant and his associates. Under these circumstances, the respondents have come to the conclusion that the departmental enquiry is not practically possible against the applicant. They state that the applicant is a Constable and being a public servant serving in 13 OA No. 1412/2023 Item No. 36/C-II disciplinary force with certain powers in order to maintain law and order with utmost honesty has betrayed his duty and responsibility. He has not only cast a stigma on himself but also to the esteem of the department and cannot be tolerated under any circumstances. The respondents state that the applicant deliberately indulged himself in the company of criminals. If exemplary punishment is not awarded to such police personnel, it will encourage other members of the force to follow suit and flout disciplinary norms. They further state that the report of the preliminary enquiry conducted by ACP/Paharganj, Delhi along with all the relevant papers were forwarded to Spl. C.P./Zone-I, Delhi for seeking his concurrence to dismiss the defaulter under Article 311 (2) (b) of the Constitution of India and the same has been approved by the competent authority.
19. They further stated that it is a clear instance of a law enforcer turning into the law breaker and has thereby projected a very bad image of Delhi Police in the eyes of general public which shall tend to erode the faith of public in police department. The applicant has violated all norms of ethics and morality by indulging himself into such type of crime i.e. kidnapping/abduction for ransom, robbery with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of a dacoity. Keeping these aspects in view the provisions of Article of 311 (2) (b) were invocated as the applicant is completely unfit for police service. 14 OA No. 1412/2023 Item No. 36/C-II His further retention in the department after his involvement/arrest in the above mentioned case is absolutely detrimental to public interest. The applicant preferred an appeal against the punishment order dated 19.11.2021, which was not considered by the Appellate Authority and the appellate order was issued on 27.02.2023. The appellate order was delivered to the brother of the applicant on 15.04.2023 as the applicant was under
judicial custody. A copy of the appellate order was also sent to Superintendent of Tihar Jail, Delhi where the applicant was kept in judicial custody. While submitting para-wise comments, the respondents in their counter reply have denied the claim of the innocence by the applicant and have given their view on the points raised by the applicant herein.
20. The applicant has filed rejoinder and he has reiterated the averments made by him in his pleadings to claim his innocence in this matter.
21. We have heard learned counsels for the parties and have perused the pleadings available on record. Learned counsel for the applicant has placed reliance on the judgment in the cases i.e. the order passed by the Principal Bench of this Tribunal on 13.12.2023 in OA No.1019/2023 in the case of Dushyant Kumar vs. Govt. of NCT of Delhi & Ors., The judgment dated 19.02.2024 of the Hon'ble High Court of Delhi in W.P.( C) No. 2407/2024 in Govt. of NCT of Delhi and Ors. 15 OA No. 1412/2023 Item No. 36/C-II Vs. Dushyant Kumar; The order passed by the Principal Bench of this Tribunal on 16.04.2024 in OA No.542/2023 in the case of Deepak vs. Govt. of NCT of Delhi& Ors; The judgment dated 22.04.2024 of the Hon‟ble High Court of Delhi in W.P.( C) No. 1258/2023 in Commissioner of Police Delhi Police & Ors. Vs. Manjeet; & judgment dated 20.03.2024 in W.P.( C) No. 4201/2024 in Commissioner of Police & anrs. Vs. Jagmal Singh and also the judgment dated 20.03.2024 of the Apex Court in Petition for Special Leave to appeal (C) No.11681/2024 in case of Commissioner of Police & anr. Vs. Jagmal Singh; the judgment dated 23.04.2024 passed by the Hon'ble High Court of Delhi in W.P.(C) No. 5562/2024, CAV 181/2024, CM Appl. No. 22929/2024 in the case of Commissioner of Police vs. Sant Ram; and the circular dated 13.5.2024 issued by the Delhi Commissioner of Police, Legal Division dated PHQ Delhi are relevant in this case as well.
22. The learned counsel for the respondents pleaded that the respondents have given detailed justification of invocation of the Article 311 (2) (b) of the Constitution of India in their Disciplinary order and Appellate order. They repeatedly stated that further continuation of the applicant in disciplined force like Delhi Police which is responsible for protecting the society and citizens of the country from immoral and disrespectable activities, will rudely 16 OA No. 1412/2023 Item No. 36/C-II shake the faith of the citizens in Delhi Police Force. The applicant has acted highly unbecoming of Police Officer. Therefore, keeping in view the position in the matter, respondents have resorted to invocation of Article 311 (2) (b) of the Constitution of India and dismissed the applicant from the government service.
23. The Disciplinary Authority while issuing punishment order dated 19.11.2021 (Annexure-A/1) has invocated the provisions of Article 311 (2) (b) of the Constitution of India and dismissed the applicant from service. For facility of reference, the relevant portion of the disciplinary order is as follows:-
"The facts are that on 19/11/2021 an FIR No. 461/21 u/s 364-A/392/397/412/34 IPC has been registered at PS Paharganj wherein complainant Sandeep Kumar Malviya tio 35/15, Railway Colony, Kishangani, Delhi, alleged that 03 persons came to his office i.e. -216, Moti Bhawan, Jhandewalan, Delhi and forcibly took away his employee/cousin namely Ghanshyam @ Bittoo s/o Mohan Lal r/o L-344, Dayanand Colony, Kishanganj, Delhi and took away mobile phones of 03 of their other employees. Later on, they called through mabile No. of Ghanshyam @ Bittoo to mobile No. of his employee namely Shailender and demanded Rs.5 Lakh as ransom to release Bittoo and also threatened to shoot him.
During the investigation, 03 persons namely Pradeep Kumar Pradhan s/o Rajinder Pradhan @Lakhan Singh Pradhan r/o R2-5B, Gali No.-30, Palam Colony, Delhi (Sub Inspector in Delhi Police, Belt No.D-5950, PIS No. 16140323, posted at Janakpuri Special Cell), Amit Kumar Yadav s/o Bali Kr. Yadav r/o VPO- Tijara, Distt. Alwar, Rajasthan (Constable in Delhi Police No. 1271/C, PIS No. 28104693 posted in Distt. Line, Central Distt.) and Tejvinder Singh s/o Satbir r/o House No. 11/A, Gopal Nagar, Najafgarh (Dismissed Const. of Delhi Police) were arrested and the victim Ghanshyam @ Bittoo got released from their captivity. During the course of investigation, 03 mobile phones belonging to 17 OA No. 1412/2023 Item No. 36/C-II employee of complainant and a licensed personal revolver along with 06 cartridges were also recovered from their possession. Accordingly, Sec. 392/397/412/34 IPC also added in instant case.
Ct. Amit Kumar Yadav, Belt No. 1271/C (PIS No.28104693) reported in District Line/Central Distt. vide DD No. 14 dated 20.08.2021 on his transfer from Special Cell vide PHQ's order No.F.XIVI(4)98/2021/11429-11509/P.Br. (AC-I)/PHQ, dated 16.08.2021 and both the delinquents are known to each other. Due to involvement/arrest in the above said case, Ct. Amit Kumar Yadav, Belt No. 1271/C (PIS No. 28104693) is deemed to have been placed under suspension with effect from the date of his arrest i.e. 19.11.2021 and still under suspension.
In view of the facts and circumstances narrated above, it would not be reasonably practicable to hold a regular departmental enquiry against Ct. Amit Kumar Yadav, Belt No. 1271/C (PIS No.28104693) at this stage in view of threat, inducement, intimidation, affiliation with criminals etc Ct. Amit Kumar Yadav, Belt No. 1271/C (PIS No.28104693) has brought bad name for the department. His conduct is completely unbecoming of an officer is shameful and abominable act of moral turpitude. He has violated all norms of ethics ard morality of indulging himself into such type of crime kidnapping/abduction for ransom, robbery with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of a dacoity. It is not desirable to have such man in uniformed service. The gravity of the misconduct of Ct. Amit Kumar Yadav, Belt No. 1271/C (PIS No.28104693) deserves to be dismissed from force under Article 311(2)(b) of Constitution of India on this count.
The above act of the defaulter Ct. Amit Kumar Yadav, Belt No. 1271/C is unbecoming of police personnel. His involvement in such type of crime creates a humiliating appearance of Delhi Police Personnel before the public. Further, down the morale of other officials of Delhi Police, their families as well as youngsters who did hard work to get a government job.
Through the facts surfaced, it has been observed that the facts and circumstances of the case are so serious that it will not be reasonably practicable to conduct a regular departmental enquiry against the defaulter, as there is a reasonable belief that the witnesses may not 18 OA No. 1412/2023 Item No. 36/C-II come forward to depose against him owing to his influential position. It also calls for great courage to depose against the desperate police personnel and the task becomes more acute and difficult where the police personnel could use his job to influence the statement/deposition of the witnesses. It is also highly probable that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant fear of threat to their persons and property from the defaulter and his associates. Under these circumstances, I am personally satisfied that conducting a regular DE against the defaulter is not practicably possible.
The defaulter, being a public servant, serving in a disciplinary force, with certain powers in order to maintain law and order with utmost honesty has betrayed his duty and responsibility. He has not only cast a stigma on himself but also to the esteem of the department and cannot be tolerated under any circumstances. He deliberately indulged himself in the company of criminals. If exemplary punishment is not awarded to such police personnel, it will encourage other members of the force to follow suit and flout disciplinary norms. After obtaining the fact findings from ACP/Pahar Ganj, the report along with all the relevant papers were forwarded to Spl. C.P/Zone-l, Delhi for seeking his concurrence to dismiss the defaulter under Article 311 (2)(b) of the Constitution of India and the same has been approved by the competent authority.
Taking into account the totality of facts and circumstances of above mentioned case, it is amply clear that the defaulter committed one of the gravest acts of misconduct which cannot be tolerated in any disciplined organization like police whose basic duty is to protect the life and liberty of citizens in the society. He indulged himself in such an abominable act of moral turpitude which is not expected from a personnel of a uniformed force. The shameful act committed by him has not only tarnished the image of the police force and brought disgrace to the organization but has also demoralized other police officers/staff. It is a clear instance of a law enforcer turning into the law breaker and has thereby projected a very bad image of Delhi Police in the eyes of the general public which shall tend to erode the faith in police department. He has violated all norms of ethics and morality of indulging himself 19 OA No. 1412/2023 Item No. 36/C-II into such type of crime kidnapping/abduction for ransom, robbery with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of a dacoity. Therefore, the undersigned is satisfied that the act and grave misconduct of defaulter Ct. Amit Kumar Yadav, Belt No. 1271/C attracts the provisions of Article 311 (2) (b) of the Constitution of India and makes him completely unfit for police service.
Therefore, in order to maintain discipline as well as to prevent recurrence of such an incident, it has become absolutely imperative to dismiss the defaulter as he is completely unfit for police service. Moreover, his further retention in the department after his involvement/arrest in the above mentioned case is absolutely detrimental to public interest.
Therefore, keeping in view the sensitivity of the matter, I, Shweta Chauhan, IPS, Deputy Commissioner of Police, Central District, Delhi, hereby order to dismiss the defaulter Constable Amit Kumar Yadav, Belt No. 1271/C (PIS No.28104693) from Delhi Police under Article 311 (2) (b) of the Constitution of India with immediate effect. His suspension period from 19.11.2021 to till the issue of this order is also decided as period not spent on duty for all intents and purposes and the same will not be regularized in any manner."
24. The applicant has also filed an appeal against the punishment order which was decided by the Appellate Authority on 27.02.2023 (Annexure-A/2). For facility of reference, it would be appropriate to quote the relevant portion of the appellate order, the same reads as under:-
"In view of the facts and circumstances narrated above, it would not be reasonably practicable to hold a regular departmental enquiry against appellant Ex. Constable in view of threat, inducement, intimidation, affiliation with criminals etc Appellant Ex. Constable has brought bad name for the department. His conduct is completely unbecoming of an office. It is shameful and abominable act of moral turpitude. He had violated all norms of ethics and morality of indulging himself into such type of crime kidnapping/abduction 20 OA No. 1412/2023 Item No. 36/C-II for ransom, robbery with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of a dacoity. It is not desirable to have such man in uniformed service. The gravity of the misconduct of appellant Ex Constable deserves to be dismissed from force under Article 311(2)(5) of Constitution of India on this count.
Through the facts surfaced, it had been observed that the facts and circumstances of the case are so serious that it will not be reasonably practicable to conduct a regular departmental enquiry against the appellant Ex. Constable, as there is a reasonable belief that the witnesses may not come forward to depose against him owing to his influential position: It also calls for great courage to depose against the desperate police personnel: and the task becomes more acute and difficult where the police personnel could use his job to influence the statement/deposition of the witnesses. It is also highly probable that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant fear of threat to their persons and property from the appellant Ex, Constable and his associates. Under these circumstances, the disciplinary authority satisfied that conducting a regular DE against the appellant Ex. Constable is not practicably possible.
The appellant Ex. Constable being a public servant, serving in a disciplinary force, with certain powers in order to maintain law and order with utmost honesty has betrayed his duty and responsibility. He has not only cast a stigma on himself but also to the esteem of the department and cannot be tolerated under any circumstances. He deliberately indulged himself in the company of criminals: If exemplary punishment is not awarded to such police personnel, it will encourage other members of the force to follow suit and flout disciplinary norms. After obtaining the fact findings from ACP/Pahar Ganj, the report along with all the relevant papers were forwarded to Spl C.P/Zone-1, Delhi for seeking his concurrence to dismiss the defaulter under Article 311 (2)(b) of the Constitution of India and the same has been approved by the competent authority.
Taking into account the totality of facts and circumstances of above mentioned case, it is amply clear that the defaulter committed one of the gravest 21 OA No. 1412/2023 Item No. 36/C-II acts of misconduct which cannot be tolerated in any disciplined organization like police whose basic duty is to protect the life and liberty of citizens in the society. He indulged himself in such as abominable act of moral turpitude which is not expected from personnel of a uniformed force. The shameful act committed by him has not only tarnished the image of the police force and brought disgrace to the organization but has also demoralized other police officers/staff. It is a clear instance of a law enforcer turning into the law breaker and ha thereby projected a very bad image of Delhi Police in the eyes of the general public which shall tend to erode the faith in police department. He has violated all norms c ethics and morality of indulging himself into such type of crime kidnapping/abduction ransom, robbery with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of a dacoity. Therefore, the disciplinary authority we satisfied that the act and grave misconduct of appellant Ex. Constable Amit Kumar Yadav, Belt No 1271/C attracts the provisions of Article 311(2)(b) of the Constitution India and makes him completely unfit for police service.
Therefore, in order to maintain discipline as well as to prevent recurrence of such an incident, it became absolutely imperative to dismiss the defaulter as he is com unfit for police service. Moreover, his further retention in the department after involvement/arrest in the above mentioned case is absolutely detrimental to public interest.
The appellant Ex Constable Amit Kumar Yadav, No. 1271/C shows his criminal tendency, desperate character and immoral attitude, which is highly abhorrent on his being a member of police force. It is first and foremost duty of a policeman to protect life and property of the citizen. This act of appellant Ex. Constable has not only tarnish the image of Delhi Police but also badly shattered the faith of common man in the police. Such a shameful and criminal act, which has eroded the faith of common people in force, his continuance in police force is likely to cause an irreparable loss to the functioning and credibility of Delhi Police. Therefore, keeping in view the sensitivity of the matter, Disciplinary Authority dismissed Constable Amit Kumar Yadav, No. 1271/C (PIS No. 28104693) (now appellant) from Delhi Police under Article 311(2)(b) of the Constitution of India.22 OA No. 1412/2023
Item No. 36/C-II I have carefully gone through the appeal, material available on record and facts and circumstances of the case. The undersigned is not convinced with the plea take the appellant Ex. Constable Amit Kumar Yadav, Belt No. 1271/C (PIS No. 28104693) in his submissions as the above act of the appellant is unbecoming of police personnel. His involvement in such type of crime tarnished the image of Delhi Police Personnel before the public.
Keeping in view all facts and circumstances, perusal of record and submission made by him, I do not find any strong reason to interfere with the decision of disciplinary authority. Hence, the appeal is hereby rejected.
Let the appellant be informed accordingly."
25. Disciplinary Authority and Appellate Authority has come to the decision on the presumption that alleged offence has been committed by the applicant, so there is no need to conduct the departmental enquiry, these reasons cannot stand to the scrutiny of law for invoking the power under provision of Article 311 (2) (b) of the Constitution of India. It needs to be tested whether the reasons recorded in the impugned order for imposition of Article 311 (2) (b) of the Constitution of India are justifiable or the provisions of above mentioned Article of the Constitution of India are invoked only to avoid the disciplinary enquiry and get rid of the applicant in convenient manner. The Disciplinary Authority did not mention the reasonable grounds even when Preliminary Enquiry was ordered against the applicant. It could be seen from the appellate order that Appellate Authority had rejected the appeal in a mechanical manner without addressing specific submissions of the applicant and merely on presumptions that the 23 OA No. 1412/2023 Item No. 36/C-II allegation against the applicant is presumed to be proved and the witness might not have come forward to depose against the applicant. The Appellate Authority is simply assuming that the allegations against the applicant stands proved and this justification is good enough to invoke the Article 311 (2) (b)of the Constitution of India and dismiss the applicant. The Appellate Authority did not explore in the present case that majority of the witnesses are official witnesses. If preliminary enquiry is possible, then the departmental enquiry is also possible. Similarly, if the trial is possible then the departmental enquiry is also possible. However, both disciplinary authority and appellate authority did not make any efforts to conduct departmental enquiry and resorted to invocation of provision of Article 311 (2) (b) of the Constitution of India to impose the penalty of dismissal. This could be construed as strong bias of respondents against the applicant and their disdain approach to uphold Rule of Law. The respondents being Senior Police Officer holding high position are required to run the administrative decision making lawfully. A serious course correction is needed. Leaving this argument here for pondering of competent authority, we proceed further.
26. In the recent matter decided on 14.08.2024 by the Hon‟ble High Court of Delhi in W.P. (C) No. 11276/2024 and CM Appl. 46705/2024. CM Appl. 46706/2024 in the matter of The Commissioner of Police & Ors. vs OM Prakash & 24 OA No. 1412/2023 Item No. 36/C-II anr.,whereinthe Commissioner of Police has been directed by the High Court of Delhi to look into the matters where Article 311 (2)
(b) of the Constitution of India has been invoked by the police authorities and police personnel have been removed from the service. Only on presumptions and assumptions without any material, coming to the conclusion or that it was not reasonably practicable to conduct regular departmental enquiry as witness might not come forward to decide the case and Appellate Authority depose against a police officer respondents have rejected the appeal which could be construed as bad in law.
27. It is apparent that the Disciplinary Authority has assumed as if the allegations made in criminal case (FIR) already stand proved and thus with this presumptions, the present impugned order has been passed. Once the order of Disciplinary Authority is based on assumption as if the allegations made against the applicant already stand proved that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being bad in law as being based on assumptions, suspicion and surmises. Further, the Disciplinary Authority is assuming that the offence has been committed by the applicant. Under this assumption, the present order of Disciplinary Authority is being passed invoking Article 311 (2) (b) of the Constitution of India. There are circulars, judgment of judicial forums which clearly states that if the allegations are grave then 25 OA No. 1412/2023 Item No. 36/C-II more opportunity should be provided to the delinquent official to put forward his defense. The applicant has not been subjected to a departmental enquiry and merely on assumptions the disciplinary authority adopting a short cut and has invoked the power under Article 311 (2) (b) of the Constitution of India. The reasoning recorded by Disciplinary Authority is based on suspicion and surmises. There is no occasion for the disciplinary authority to record that in the present case departmental enquiry is not reasonably practicable. The usage of expression like as there is a "reasonable belief" itself shows that the reasoning is based on suspicion and surmises. The reasoning recorded by Disciplinary Authority for dispensing away the departmental enquiry has been dealt by this Tribunal in various OAs qua the same department i.e. Delhi Police. It is observed that most of witnesses are official witness in criminal case; once the criminal trial and preliminary enquiry are possible, then departmental enquiry is also possible. There is no material in the hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in departmental enquiry. There is no clear and robust evidence in front of respondent authority that the applicant has made any attempt to influence any witness thus making the order of disciplinary authority as bad in law.
26OA No. 1412/2023 Item No. 36/C-II
28. The applicant is Constable in Delhi Police. It is a lower rank among the subordinate officer thus it is absolutely wrong to record that applicant is in any position to influence or threaten any witness. There is no admissible material or evidence before the authorities to conclude that the witness is threatened or intimidating or will not depose in departmental enquiry and thus reason recorded for dispensing the Departmental Enquiry under Article 311 (2) (b) of the Constitution of India are not tenable. As stated above, the applicant is only Constable in Delhi Police, if as per the allegations, the case of the department is so good on merit then come what may the applicant should be given a chance to put forward his defense in disciplinary enquiry. The preliminary enquiry was conducted by the respondents in order to construe that the allegations are true against the applicant that too at the back of the applicant. This fact clearly shows that Article 311 (2)
(b) of the Constitution of India has been adopted as a convenient method in the present case. There is no material in hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in Departmental Enquiry. The impugned order is passed with the presumption that the allegations are proved against the applicant. In such a situation, Article 311 (2) (b) of the Constitution of India cannot be invoked on the same as it amounts to abuse of process of law.
27OA No. 1412/2023 Item No. 36/C-II
29. In the public interest and even as per Rule of law, it was incumbent upon the authorities not to put to use Article 311 (2)
(b) of the Constitution of India in present case and to give opportunity to the applicant to put forward his defence in the departmental enquiry. The gravity of misconduct alleged in the present case cannot be a ground to invoke the power under Article 311 (2) (b) of the Constitution of India. The applicant as per rule of law must be given opportunity to put forward his defence in regular Departmental Enquiry until and unless the same is not reasonably practical. The reasons recorded in present impugned order to dispensing with the Departmental Enquiry are just not tenable in the eyes of law. Article 311 (2) (b) of the Constitution of India has been used as a short cut method. Admittedly in the present case a Preliminary Enquiry was conducted through ACP/Paharganj, Delhi, the order of dismissal from service was passed by Disciplinary Authority, if preliminary enquiry is possible then disciplinary enquiry is also possible. The Hon‟ble Tribunal in various judgments has allowed many petitions in respect of Article 311 (2) (b) of the Constitution of India, the same ground that if PE is possible then DE is also possible.
30. The reasoning to dispense away with the departmental enquiry cannot be based on suspicion and surmises and probability. Once the Disciplinary Authority records that there is a probability that complainant and witness are put on constant fear 28 OA No. 1412/2023 Item No. 36/C-II and threat for dispensing away with departmental enquiry the onus to establish that such situation prevails is based on the efforts made by them to conduct departmental enquiry and imminent failure to hold the said departmental enquiry due to such actions of the applicant. Therefore, while taking no action to conduct disciplinary enquiry and giving threat to witnesses etc., are the reasoning based on mere probability, suspicion and surmises. There was no material placed before the authority to come on to this conclusion and to invoke Article 311 (2) (b) of the Constitution of India.
31. The power under Article 311 (2) (b) of the Constitution of India has been invoked subsequent to a preliminary enquiry. The object of conducting the preliminary enquiry for invoking the power under Article 311 (2) (b) of the Constitution of India is being laid down in circular dated 11.09.2007. The reason for dispensing the departmental enquiry are on suspicion and surmises and no such material even through preliminary enquiry is being placed before any of the authorities on the basis of which the conclusion would be drawn whether the departmental enquiry is not practicable or even remotely supports the vague reasons recorded to dispense with the departmental enquiry. The cases in which preliminary enquiry is being conducted but in absolute violation of circular dated 11.9.2007 and straightaway the Disciplinary Authority passed an order under Article 311 (2) (b) of 29 OA No. 1412/2023 Item No. 36/C-II the Constitution of India is in violation of circular dated 11.9.2007 which was framed by department in pursuance of judgment of Hon'ble Tribunal in case of Suresh Kumar Vs. GNCTD in O.A. No. 2500/2006.
32. The Appellate Authority records that Preliminary Enquiry into the matter was conducted by ACP/Paharganj, Delhi. The facts and circumstance of the case were such that it was not reasonably practicable to conduct a regular departmental enquiry, cannot be a ground to invoke the Article 311 (2) (b) of the Constitution of India. The copy of preliminary enquiry report is not supplied to the applicant nor the applicant has been part of the preliminary enquiry but on the contrary the law is that Preliminary Enquiry is possible then even the departmental enquiry is also possible and in such cases the Article 311 (2) (b) of the Constitution of India is not invoked. That the applicant is placing its reliance on the judgment of Hon'ble Tribunal decided on 23.04.2018 whereby the Hon'ble Tribunal after relying the judgment of Tarsem Singh, Hon'ble Apex Court whereby the Hon'ble Tribunal clearly stating "29. In Tarsem Singh's case Apex Court while allowing the appeals categorically observed " if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the applicant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice'. Accordingly, in the facts of the present OAs, we hold the issue in favour of the applicant. 30. In the circumstances and for the 30 OA No. 1412/2023 Item No. 36/C-II aforesaid reasons, all the OAs are allowed and the impugned orders are set aside with all consequential benefits. Since the applicant was under suspension as on the date of passing of the impugned orders, they would thus remain under suspension and the respondents shall take an appropriate decision regarding revocation or continuation of the same. The respondents shall proceed against the applicant departmentally, as per rules and the treatment of suspension period shall be dependent on the same. No costs. "
33. In the present case, when the P.E. is possible then even a Departmental Enquiry is also possible and thus the reasoning recorded by the Disciplinary Authority for dispensing with the D.E. is bad in law. The disciplinary authority did not even make the slightest possible effort to initiate a departmental inquiry as only after initiating a departmental inquiry a disciplinary authority can come to the conclusion that departmental inquiry is not reasonably practicable. Without making any efforts and only acting on the presumption and surmises, the disciplinary authority on its own, came to the conclusion that departmental inquiry is not practicable. No order for initiating the Departmental Enquiry was made by the department thus it is wrong to say that the present Departmental Enquiry is not reasonably practicable.
34. The disciplinary authority is not able to apply its mind that the power under Article 311 (2) (b) of the Constitution of India has to be exercised with a pre-condition. The pre-condition is that if a disciplinary enquiry is not reasonably practical and to arrive at 31 OA No. 1412/2023 Item No. 36/C-II such conclusions, the Disciplinary Authority has to record reasons. The present reasoning is based on the assumption that the applicant has committed the alleged crime and thus departmental enquiry is not required. The Disciplinary Authority on the presumption that the act committed by the applicant is so grave that it is practically not feasible to conduct enquiry, hence, came to conclusion that there is no need to conduct the departmental enquiry the scrutiny of law for invoking the power under Article 311 (2) (b) of the Constitution of India. The law on the subject is that graver are the allegation then more opportunity should be provided to the delinquent official to submit the defense. The gravity of the charge will never be an imminent factor in deciding whether power under Art 311 (2) (b) of the Constitution of India is to be invoked or not.
35. The present case is a case of absolute misuse of power vested in the Disciplinary Authority under Article 311 (2) (b) of Constitution of India and hence bad in law. The reasons recorded by the authorities to dispense away with the departmental enquiry do not withstand the scrutiny of law. The so called reasons recorded by the authorities in the impugned order to invoke the power under the Article 311 (2) (b) of the Constitution of India as being mentioned are only to avoid the departmental enquiry. It is a well settled law that without conducting any departmental enquiry, if the finding of guilt against the applicant has been 32 OA No. 1412/2023 Item No. 36/C-II arrived on to, the same act is enough to vitiate the order of the disciplinary authority. There is a finding of guilt against the applicant without conducting the Departmental Enquiry and further not even giving the opportunity to the applicant to put forward his defense and the same is enough to vitiate the order of the disciplinary authority. The authorities failed to consider that no substantial material has been collected to come on to a conclusion that witness will be discouraged to appear in a D.E. Thus the order of the authorities establishes non-application of mind, bias, arbitrariness and to adopt a short cut method of dismissing the applicant by invoking the power under Article 311 (2) (b) of the Constitution of India only keeping in mind the gravity of the allegations.
36. The applicant preferred an appeal against the punishment order of dismissal. The Appellate Authority rejected the appeal on 27.02.2023 by an absolutely non-speaking and mechanical order.
The Appellate Authority failed to apply its mind that the law quoted by the applicant in the statutory appeal clearly establishes that the reasons recorded for dispensing with the DE are not legally tenable in the eyes of law. The present case is not a case for invoking the power under Article 311 (2) (b) of the Constitution of India. The Hon'ble Apex court has laid down clearly that the gravity of the charge will not be a tilting factor in deciding whether a Departmental Enquiry is a reasonably practicable or 33 OA No. 1412/2023 Item No. 36/C-II not. The graver the charge the opportunity to defend himself should be more.
37. The applicant has placed reliance on the order dated 13.12.2023 passed by this Tribunal in the case of Dushyant Kumar Vs. Govt. of NCT of Delhi & Ors. The relevant portion of the same is reproduced below:-
"8. A catena of cases of the Orders/Judgments of the Hon'ble Supreme Court, Hon'ble High Court of Delhi and of this Tribunal on the issue as involved in the present case were also considered by the Division Bench (consisting one of us) while deciding the case of Ct. Sumit Sharma (supra).
9. Having regard to the above, we have carefully perused the impugned order(s), we find that nothing has been recorded in the impugned order(s) or shown to us that the applicant had ever threatened or harassed any of the witness (es) and/or the prospective witness (es). From the impugned orders, it is also evident that neither any effort was made by them to conduct an enquiry, nor there is any evidence that despite their best efforts, the respondents would not have been able to produce the witness (es) to lead evidence against the applicant. Further 18 OA No.1019/2023 nothing is brought on record that witness (es) has/have been threatened by the applicant or they were too scared of the applicant to come forward in the regular enquiry proceedings. It is also found that the disciplinary authority while passing the impugned order has very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant, as no reason at all has been recorded in this regard and the applicant is guilty of committing grave misconduct and was involved in the aforesaid offences.
10. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circular dated 11.9.2007. The reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled 34 OA No. 1412/2023 Item No. 36/C-II by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, including in one referred to hereinabove.
11. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA is squarely covered by the common 19 OA No.1019/2023 Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and hence, the same is partly allowed with the following directions:- (i) Orders dated 03.10.2022 (Annexure A/1) and dated 10.3.2023 (Annexure A/2) passed by the disciplinary and appellate authorities respectively are set aside; (ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject; (iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and (iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
12. However, in the facts and circumstances, there shall be no order as to costs."
38. The order of this Tribunal was challenged in the Hon‟ble High Court of Delhi in W.P. (C) 2407/2024 in the matter of Govt. of Delhi and Ors. Vs. Dushyant Kumar, The Honble High of Delhi dismissed the Writ Petition being meritless. The relevant portion of the said judgment is as under:-
"14. In the light of the aforesaid, we have no hesitation in concurring with the Tribunal that the petitioners' decision to dispense with the enquiry was wholly unsustainable. The petitioners appear to have proceeded on an erroneous presumption that merely because a criminal case has been registered against the respondent, he was to be treated as guilty of the misconduct. No doubt, the respondent is a police officer, whose misconduct can never be condoned, but this would not imply that the principles of natural justice should be given a complete go by. As noted hereinabove, the petitioners have not given any valid reason for dispensing with the enquiry except for 35 OA No. 1412/2023 Item No. 36/C-II repeatedly stating that the respondent is guilty of serious misconduct. This course of action, in our view, is completely impermissible.
15. Before we conclude, we may also consider the decision in Ajit Kumar Nag (supra) relied upon by the petitioners. We, however, find that instead of forwarding the case of the petitioners, the said decision supports the case of the respondent. It would, therefore, be apposite to refer to paragraph no.44 of the said decision, which reads as under:-
"44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre- decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Even before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge [(1723) 1 Str 557 : 93 ER 698] .) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated:" „To do a great right‟ after all, it is permissible sometimes „to do a little wrong‟." [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India [(1990) 1 SCC 613] (Bhopal Gas Disaster), SCC p. 705, para 124.] While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "precedential"."
16. We are, therefore, of the considered view that the petitioners have not only ignored the decisions of the 36 OA No. 1412/2023 Item No. 36/C-II Apex Court laying down the parameters for applicability of Article 311(2)(b) of Constitution of India, but have also ignored their own circulars dated 21.12.1993 and 11.09.2007. We, therefore, find no infirmity with the impugned order.
17. The writ petition being meritless is, accordingly, dismissed with all pending applications."
39. In the order dated 16.04.2024 passed in OA Nos. 542/2023 &591/2023 in the case of Deepak vs. Govt. of NCT of Delhi & Ors by this Tribunal. The Tribunal held as under:-
"20. In the present case, as apparent from the reasons recorded by the respondents in the impugned order, it is apparent that the respondents have arrived at the conclusion for dispensing with the regular inquiry due to the involvement of the applicants in a grave and serious case. The respondents have jumped to the conclusion that on account of serious allegations, the applicants have become ineligible to be continued in police force. There is no finding that the 24 applicants and/or anybody on their behalf have at any point of time even attempted to influence or coerce any of the witness. Even there is no finding that the applicants in the captioned OAs who are very junior officers under the respondents were in a position to influence the witnesses who are generally senior officials working in the Government of India and particularly in CBI. It is also nowhere recorded by the respondents as to how if not only preliminary inquiry was found possible, but also the criminal trial is possible in the said case FIR with the support of more than nineteen witnesses and at no point of time the prosecution has even felt that those witnesses are not likely to turn up and regular inquiry was not possible in the matter. It is undisputed that regular inquiry is a Rule whereas dispensing with the same is only an exception. Though the respondents have recorded that if regular inquiry is initiated, the same is liable to take a long time, however, no reason has been given for the same and it is apparent that such reasoning and finding is based on surmises and conjectures.
21. In view of the aforesaid, we find that the impugned orders are not sustainable in the eyes of law. Accordingly, the OAs are allowed with the following 37 OA No. 1412/2023 Item No. 36/C-II order(s) :- (i) impugned orders dated 10.08.2022 and 25.01.2023 are set aside. The applicants shall be reinstated in service forthwith. (ii) the applicants shall be entitled for all consequential benefits in accordance with relevant rules and instructions on the subject. (iii) the aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of a copy of this order. (iv) the respondents shall be at liberty to initiate disciplinary proceedings against the applicants if they are so advised, of course in accordance with rules and instructions on the subject.
22. However, in the facts and circumstances of the case, there shall be no order as to costs."
40. In Writ Petition (C) No. 1258/2023 & CM App. No.4759/2023 in the case of Commissioner of Police Delhi Police & Ors. Vs. Manjeet; The Hon‟ble High Court of Delhi vide its judgement dated 22.04.2024 has held as under:-
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was that due to seriousness of the offence alleged to have been committed by him it would not be reasonably practicable to conduct a regular departmental enquiry. It also emerges that on the basis of the allegations levelled against the respondent in the FIR coupled with the findings of the preliminary enquiry, the petitioners presumed that the respondent was guilty of a serious offence and therefore deserve to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. The petitioners have sought to dispense with the enquiry in such a casual manner and that too only on the basis of a perceived notion that the respondent being a police personnel, an enquiry against him was likely to be difficult on account of his influence. This course of action is clearly violative of Article 311(2)
(b) of the Constitution of India.38 OA No. 1412/2023
Item No. 36/C-II
10. We have also considered the decision in Dushyant Kumar (Supra) and find that in the said case, this Court had rejected a similar challenge by the petitioners to the Tribunal's quashing of a dismissal order passed after dispensing with the enquiry. In fact, this Court after considering the circulars dated 21.12.1993 and 11.09.2007 issued by the petitioners themselves, observed that despite there being a requirement to record cogent reasons to dispense with the enquiry, the petitioners were passing cryptic orders dispensing with the enquiry in the most mechanical manner.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, with an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry. Furthermore, it is not as if the respondent has been let off without any departmental action being taken against him, as the learned Tribunal has already granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all applications.
13. Before we conclude, we are constrained to observe that in a large number of petitions filed by the Commissioner of Police which are coming up before this Court, we are finding termination orders are being passed by the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner, Delhi Police to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons."
39OA No. 1412/2023 Item No. 36/C-II
41. In other Writ Petition (C) No.4201/2024 on 20.03.2024 in case of Commissioner of Police and anr. Vs. Jagmal Singh. The Hon‟ble High Court of Delhi has held as under:-
"10. From a perusal of the aforesaid, we find that the petitioners have proceeded to dispense with the enquiry against the respondent only because of the grave nature of allegations levelled against him and have simply observed that since the respondent had lowered the image of the police department and goodwill of a uniformed organisation, an exemplary punishment of dismissal ought to be imposed upon him so as to send a clear message to undesirable persons and to prevent reoccurrence of such crimes. In the light of the aforesaid, we find absolutely no reason to differ with the conclusion arrived at by the learned Tribunal that the dismissal order passed by the petitioners did not contain any justifiable reason whatsoever for dispensing with the enquiry. What clearly emerges is that the petitioners have proceeded on the premise that such police officers, who are charged with serious misconduct, should be immediately dismissed from service. This approach, in our view to dispense with an enquiry, would not meet the parameters laid down under Article 311(2) (b) of the Constitution of India.
11. At the cost of repetition, we may reiterate that merely because the respondent was a police personnel, would not entitle the petitioners to give a complete go- bye to the requirement of holding a departmental enquiry against him without recording any justifiable reasons as to why departmental enquiry could not be held against him.
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition, being meritless, is along with accompanying application, dismissed."
42. In the Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, The Hon‟ble Apex Court vide its judgment on 10.07.2024 has dismissed the said SLP and the judgment of Hon‟ble Court of Delhi attained finality.
40OA No. 1412/2023 Item No. 36/C-II
43. In another matter, the Hon‟ble High Court of Delhi in W.P. (C) No. 5562/2024, CAV 181 /2024 CM Appl. 22929/2024 vide its judgment dated 23.04.2024 in the case of Commissioner of Police and ors. Vs. Sant Ram, the Hon‟ble High Court of Delhi in paras 9 to 12 has held as under:-
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was their presumption that the respondent would threaten or intimidate the complainant and other witnesses. The petitioners were further of the view that a prolonged enquiry would cause more trauma to the complainant. It is also evident from the dismissal order that the petitioners had, on the basis of the evidence led in the preliminary enquiry, already made up their mind that the respondent was guilty of serious misconduct and had lowered the image of the police force in the eyes of the public.
10. In our considered view, even though the charges against the respondent are very serious and the interest of the complainant deserves to be protected, it does not imply that the principles of natural justice as also the provisions of section 11 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 should be given a complete go by on the basis of mere presumptions. Only because the respondent is a police personnel, would in our view, not be a ground either to presume that the witnesses will not come forward to depose against him in a regular enquiry or to hold him guilty without conducting the statutorily prescribed departmental enquiry and that too in a matter like the present where the complainant and the witnesses are also police personnel. In fact, what emerges is that on the basis of the report of the preliminary enquiry itself, the petitioners presumed that the respondent was guilty of serious misconduct and therefore deserved to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an 41 OA No. 1412/2023 Item No. 36/C-II enquiry against the respondent. This course of action, in our considered opinion, was clearly violative of Article 311(2)(b) of the Constitution of India.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, dispense with the requirement of an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry and had also been admitted by him. We therefore have no hesitation in agreeing with the learned Tribunal that the petitioners have dispensed with the enquiry only on the basis of a perceived notion that the respondent being a police personnel, would threaten the witnesses and holding of an enquiry would cause trauma to the complainant. Furthermore, we find that it is not as if the respondent has been let off without any departmental action being taken against him. As is evident from the impugned order, the learned Tribunal, while setting aside the dismissal order, has granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all accompanying applications.
44. In pursuance to the order of this Tribunal in OA No. 14/2018 titled as Sant Ram vs. Commissioner of Police and the judgment of the Hon'ble High Court of Delhi in W.P. (C) 5562/2024, CAV 181/2024 CM Appl. No.22929/2024, the respondents reinstated the services of the applicant Shri Sant Ram in that case. The order dated 26.07.2024 is reproduced as under:-
42OA No. 1412/2023
Item No. 36/C-II "In pursuance of judgment dated 06.02.2024 passed by the Principal Bench of Hon'ble Mr. R.N. Singh, Member (J) & Hon'ble Mr. Sanjeeva Kumar, Member (A), Central Administrative Tribunal, New Delhi in 0.A. No.14/2018 titled Sant Ram Vs. Commissioner of Police, Delhi & Ors. and judgment dated 23.04.2024 passed by the Hon'ble Ms. Justice Rekha Palli & Hon'ble Mr. Justice Saurabh Banerjee, High Court Delhi in W.P.(C) No.5562/2024, CAV 181/2024, CM Appl.22929/2024 -
Stay, CM Appl. 22930/2024 - Ex./LLOD titled Commissioner of Police & Ors. Vs. Sant Ram as well as opinion of Ms. Aishwarya Bhati, Ld. Addl. Solicitor General of India that "this is not a fit case for filing of SLP", the order of the disciplinary authority passed vide No.1833-1900/HAP/PTC (P-II) dated 01.08.2017 vide which Const. (Exe.) Sant Ram, No.324PTC (PIS No.28060573) was dismissed from the Delhi Police force under Article311(2(b) of Constitution of India deciding his suspension period as period not spent on duty and the order passed by the Appellate Authority vide No.106-66/SO/Jt. C.P/Trg, dated 03.11.2017 rejecting his appeal, are set aside. Accordingly, Const. (Exe.) Sant Ram, No. 324/PTC (PIS No.28060573) is hereby re- instated in service from dismissal with immediate effect without prejudice to the further departmental action to be taken against him in accordance with the law. He is deemed to be under suspension from the date of his dismissal as he had already been placed under suspension vide D.D.No.29-A/PTC/JK dated 22.07.2017 and formal issued vide order No.1738-70/HAP/PTC (DA-II) dated 26.07.2017. His dismissal/suspension period will be decided later on.
Let Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) be informed accordingly.
45. In other judgment of the Hon‟ble High Court of Delhi in Writ Petition (C) No. 1258/2023 & CM Appl. No. 4759/2023 in case of Commissioner of Police, Delhi vs. Manjeet, the 43 OA No. 1412/2023 Item No. 36/C-II following circular was issued by the Office of Commissioner of Police as under:-
"No. 174/C/HC/24 5110-60 DA-III/Court Cell/PHQ dated 13.05.2024 To The Deputy Commissioner of Police, All District including Units, New Delhi.
Sub: W.P. (C) No. 1258/2023 & CM Appl. No. 4759/2023 in the matter of Commissioner of Police, Delhi vs. Manjeet.
Memo Enclosed please find here with a copy of letter No. 10264/W/DHC/ Writs/D-9/2023 dated 26.04.2024 received from the Registrar General, Delhi High Court alongwith copy of the order dated 22.04.2024 wherein the Hon'ble has observed that " in large number of petitions filed by the Commissioner of Police which are coming up before the this Court, we are finding termination orders are being passed b y the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner of Police, Delhi to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons.
It is, therefore, requested that the aforementioned directions of the Hon'ble High Court of Delhi shall be taken into consideration before passing termination orders by dispensing with the departmental enquiries in future.
This issues with the approval of Commissioner of Police, Delhi.
(Hareesh H.P) 44 OA No. 1412/2023 Item No. 36/C-II Deputy Commissioner of Police Legal Division/ PHQ, Delhi"
Relying upon the circular issued on 11.09.2002, a similar order was passed by the respondents in the OA No. 1088/2021 as under:-
"The respondents, after considering the provisions of Article 311(2)(b) of the Constitution of India and the judgment of the Hon'ble Apex Court in the case of Tulsiram Patel (supra) and the Order(s)/Judgment(s) passed by this Tribunal have issued another circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not practicable to hold an inquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and the disciplinary authority has no option but to resort to Article 311(2)(b) of the Constitution of India. The said circular dated 11.9.2007 reads as under:-
"CIRCULAR No. /2007 An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases and only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry.
Though some cases are still pending in the Hon'ble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2) 45 OA No. 1412/2023 Item No. 36/C-II
(b) on assumptions and conjectures. No speaking orders were passed based on and supported by material/facts on record for dispensing with prior enquiry. Orders for dismissal were passed arbitrarily violating Article 311 and the principles of natural justice.
Henceforth, it has been decided that whenever any Disciplinary Authority intends to invoke Article 311 (2)
(b) of the Constitution of India, he must keep in mind the judgment in the case of UOI v. Tulsi Ram Patel, AIR 1985 SC 1416. Only in cases where Disciplinary Authority is personally satisfied on the basis of material available on file that the case is of such a nature that it is not practicable to hold an enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in view of specific circumstances of the case it is not possible that PWs will depose against the defaulter and disciplinary authority has no option but to resort to Article 311 (2) (b) should such an action be taken. Prior to such an order, a PE has to be conducted and it is essential to bring on record all such facts. It has also been decided that before passing on order under Article 311 (2) (b) of the Constitution of India, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.
This has the approval of C.P., Delhi.
Sd/-
(S.N. SRIVASTAVA) JT. COMMISSIONER OF POLICCE:
HDQRS,: DELHI""
46. The Hon‟ble High Court of Delhi in WP(C )No. 11276/2024 and CM Appl. No.46705/2024, CM Appl. No. 46706/2024 in the matter of The Commissioner of Police & Ors. vs. OM Prakash & Anr. decided on 14.08.2024 has taken a serious cognizance of the order passed by the Disciplinary Authority in which Delhi Police resorting to invocation of Article 46 OA No. 1412/2023 Item No. 36/C-II 311 (2) (b) of the Constitution of India. For facility of reference, the relevant portion of above mentioned judgment is as follow:-
"20. Accordingly, finding no error in the impugned order passed by the learned Tribunal, the present petition is dismissed.
21. Before parting with this matter, we hereby direct the Commission of Police Delhi to personally look into such matters and take proper decision so that Courts/Tribunals are not burdened with a case where departmental inquiries can be initiated. We hereby make it clear that if such like petitions are filed in future wherein dismissal or suspension orders are passed without holding any enquiry without any plausible reasoning, certainly heavy cost will be imposed and that too, will be recovered from the Officer, who takes such type of unwarranted decision.
22. A copy of this order be transmitted to the Commissioner of Delhi Police for information and compliance."
47. Having regard to the above, we are of the view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circulars dated 11.09.2007 and 13.05.2024. The reasons given by the respondents for dispensing away with the enquiry are not in consonance with the law settled by the Hon‟ble Supreme Court and Hon‟ble High Court(s) and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove.
48. In view of the aforesaid facts and circumstances in the present case, we are of the considered view that the instant OA 47 OA No. 1412/2023 Item No. 36/C-II deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 19.11.2021 (Annexure-A/1) of Disciplinary Authority and appellate order dated 27.02.2023 (Annexure-A/2) of the appellate authority are set aside;
(ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and instructions on the subject;
(iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
(v) With great restrain, we are holding us back from imposing cost on the respondents. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/neetu/