Central Administrative Tribunal - Delhi
Deepak Dubey vs The Commissioner Of Police And Anr. on 5 March, 2007
Equivalent citations: 2007(3)SLJ338(CAT)
ORDER Shanker Raju, Member (J)
1. Applicant, an ex-Constable in Delhi Police, has impugned respondents' order dated 3.10.1999, whereby on dispensation of enquiry as not reasonably practicable, he was dismissed from service under Article 31.1 (2)(b) of the Constitution of India, an order passed on 20.7.2001 in appeal, whereby the punishment imposed upon him has been upheld. Also assailed is an order passed by the respondents on 24.5.2005, whereby on acquittal in criminal trial, a representation preferred has not been entertained.
2. Applicant, who was enrolled as a Constable in Delhi Police was implicated in a case of alleged kidnapping, rape and sodomy, under Sections 365,376,377,506,342/34 IPC at P.S. Kamla Market. On a preliminary enquiry (PE) conducted and on the conclusion that the probable witnesses are not coming forward to depose against applicant in writing and the sex workers have lost trust in police, presence of applicant is irreparable damage to the disciplined force and would terrorize the sex workers. On dispensation of enquiry as not reasonably practicable, he was dismissed from service. An appeal preferred when turned down, followed by judgment of the Criminal Trial Court, whereby on deposition by the witnesses when no incriminating evidence has come up against applicant he was acquitted of the charges, which led to a representation preferred to the Joint Commissioner. When the said representation was not entertained the present O.A. has been filed.
3. Learned Counsel of applicant contended that on acquittal by the Trial Court where the witnesses have deposed the ground for dispensation of enquiry of non-coming forward of the witnesses is not justifiable and as applicant has been deprived of a reasonable opportunity to show cause, dispensation of enquiry, which was very much possible, is misuse of the power under the Constitution of India by the authorities.
4. Learned Counsel would contend that applicant has been deprived of a reasonable opportunity to defend, which, in turn, is violation of principles of natural justice.
5. Learned Counsel has also relied upon the circular issued by the Commissioner of Police on 8.11.1993, whereby in cases where criminal offences are registered under the police official enquiry has been conveniently held.
6. Learned Counsel has relied upon the decision of the Apex Court in Ex-Constable Chhote Lal v. Union of India and Ors. , where the dismissal, on dispensation of enquiry, was set aside.
7. Learned Counsel has also relied upon the decision of the Apex Court in Sudesh Kumar v. State of Haryana and Ors. (2005) 11 SCC 525, where dispensation of enquiry was held to be illegal.
8. Another decision of the Apex Court in Chief Security Officer and Ors. v. Singasan Rabi Das , has also been relied upon to substantiate the plea.
9. Whereas, learned Counsel of respondents vehemently opposed the contentions and produced for our perusal the concerned departmental record. According to the learned Counsel in the report by ACP, PG Cell, the witnesses when called have not given any statement in writing. Accordingly, keeping in view the circumstances it was found that applicant has rightly been dismissed from service under Article 311 (2)(b) of the Constitution of India.
10. Learned Counsel has also relied upon the decision of the High Court of Delhi in Govt. of NCT of Delhi v. Rajpal Singh , to contend that when a person is dismissed and subsequently acquitted, Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980, would have no applicability and it is stated that applicant has been acquitted on technical grounds, as the witnesses have not supported the prosecution, which substantiated the issue taken by the Disciplinary Authority (DA).
11. We have carefully considered the rival contentions of the parties and perused the material on record.
12. As the record transpires that after registration of a criminal case against applicant ACP, Kamla Market, has recommended, on arrest report, a disciplinary action against him. By an order dated 2.10.1999 the Additional Commissioner of Police has directed an enquiry to be conducted by the ACP, PG Cell to facilitate a departmental action. Accordingly, the ACP, PG cell conducted an enquiry, where it is recorded that when on visit to G.B. Road witnesses have been asked to give their statements they have given a tutored statement that it is presumed that they will do it at a later stage as well. It is also concluded that in the departmental enquiry (DE) when these witnesses appear shall be vulnerable due to fear and frequent legal action taken against them by the police. In the case of one Smt. Chanda, cousin of the victim, she refused to give a statement but verbally stated about the incident. Accordingly, it has been concluded that being a serious misconduct and from the past experience relatives, friends and associates of such elements do not allow such witnesses to join the DE proceedings and hence the entire exercise becomes futile. As such recommendations have been made to resort to Article 311 (2)(b) of the Constitution of India. Accordingly, agreeing with this report the Additional Deputy Commissioner of Police, who is now Additional Commissioner of Police, on the ground that applicant has lowered down the image of Delhi Police in the society and applicant being potential to manhandle and terrorize the prosecution witnesses who will come to depose, dismissed him from service under Article 311 of the Constitution of India.
13. From the perusal of the file the note of the Additional DCP, which has culminated into a written order, does not show that any recording has been made to dispense with the enquiry as not reasonably practicable. However, an order passed incorporates five grounds as to holding of a DE as not reasonably practicable but nowhere in this order enquiry has been dispensed with, which is a condition precedent for invoking Article 311 (2)(b) of the Constitution of India.
14. Article 311(2) of the Constitution of India envisages a reasonable opportunity to defend and while dismissing the Government servant from service to follow the due process of law. However, as an exception and on the doctrine of pleasure when the authority concerned empowered to dismiss, for some reasons, is satisfied that the enquiry is not reasonably practicable without affording an opportunity can straightaway dismiss the Government servant. In judicial review the scope and interference with such orders passed under Article 31 l(2)(b) of the Constitution of India has been ruled by the Apex Court in a Constitution Bench decision in Union of India and Anr. v. Tulsiram Patel 1985(2) SLJ 145 (SC) : 1985 SCC (L&S) 672, with the following observations:
134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore find a place in the final order. It would be usual, to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing, the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of Clause (b) of the second proviso. For instance, it would be no compliance with the requirement of Clause (b) for the Disciplinary Authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances.
135. It was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the concerned Government servant to enable him to challenge the validity of the reasons in a departmental appeal or before a Court of law and that failure to communicate the reasons would invalidate the order. This contention too cannot be accepted. The constitutional requirement in Clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the Government servant. At Clause (3) of Article 311 makes the decision of the Disciplinary Authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in Clause (b) so that the superiors of the Disciplinary Authority may be able to judge whether such authority had exercised its power under Clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would however, be better for the Disciplinary Authority to communicate to the Government servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the Government servant to approach the High Court under Article 226 or, in a fit case, this Court under Article 32. If the reasons are not communicated to the Government servant and the matter comes to the Court, the Court can direct the reasons to be produced, and famished to the Government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non-production of the written reasons.
15. The power of constitutional review is also laid down as follows:
137. Where a Government servant is dismissed, removed or reduced in rank by applying Clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the Court will interfere on grounds well established in law, for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether Clause (b) or an analogous provision in the service rules was property applied or not. The finality given by Clause (3) of Article 311 to the disciplinary 1 authority' s decision that it was not reasonably practicable to hold the inquiry s not binding upon the Court. The Court will also examine the charge of mall fides, if any made in the writ petition. In examining the relevancy of the reasons, the Court will consider the situation which according to the Disciplinary Authority made it collie to the conclusion that it was not reasonably practicable to hold the inquiry. If the Court finds that the reasons are irrelevant, then the recording of its satisfaction by the Disciplinary Authority would be an abuse of power conferred upon it by Clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the Disciplinary Authority the Court will not, however, sit in judgment over them like a Court of first appeal. In older to decide whether the reasons are germane to Clause (b), the Court must put itself in the place of the Disciplinary Authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the fight of the then prevailing situation and not as if the Disciplinary Authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a Courtroom, removed in time, from the situation in question. Where two views are possible, the Court will decline to interfere.
16. It was further held in Tulsiram Patel's case (supra) that when such an order is assailed in appeal, it is incumbent upon the Appellate Authority to consider holding of enquiry even at the appellate stage.
17. The Apex. Court in Singasan Rabi Das (supra), where the enquiry has been dispensed with on account of witnesses not coming forward due to fear of reappraisal, held as follows:
5. In our view it is not necessary to go into the submissions made by Dr. Anand Prakash because we find that in this case the reason given for dispensing with the enquiry is totally irrelevant and totally insufficient in law. It is common ground that under Rules 44 to 46 of the said Rules normal procedure for removal is that before any order for removal from service can be passed the employee concerned must be given notice and an enquiry must be held on charges supplied to the employees concerned. In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witnesses of the security/ other Railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. In this view it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result the appeal fails and is dismissed. There will be no order as to costs.
18. In Ex-Constable Chhote Lal (supra) ruled that being a police Constable influence over the witnesses, who would come forward to depose in the DE, has not been found apt. Similarly, in Sudesh Kumar (supra), the Apex Court ruled as follows:
5. It is now established principle of law that an inquiry under Article 311(2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311 (2)(b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. A reading of the termination order by invoking Article 311 (2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry. On the other hand, it is not disputed that, by order dated 23.12.1999, the visa of the complainant was extended up to 22.12.2000. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the inquiry.
6. A reasonable opportunity of hearing enshrined in Article 311(2) of the Constitution would include an opportunity to defend himself and establish his innocence by cross-examining the prosecution witnesses produced against him and by examining the defence witnesses in his favour, if any. This he can do only if inquiry is held where he has been informed of the charges levelled against him. In the instant case, the mandate of Article 311 (2) of the Constitution has been violated depriving reasonable opportunity of being heard to the appellant.
19. From the cumulative reading of the aforesaid, we have no hesitation to rule, that a DE, which is a right of a Government servant, as a condition precedent for resorting to his dismissal from service cannot be dispensed with lightly on the ipsi dixit or on extraneous consideration. Audi alternate partem, as a cardinal rule, affords a reasonable opportunity to defend.
20. From the enquiry conducted by the ACP, Kamla Market on the arrest report once the Disciplinary Authority has initiated an exercise to determine whether departmental enquiry can be proceeded against the report of ACP, PG Cell, where it is concluded that the witnesses were tutored and one of the witnesses has not deposed that applicant would be instrumental in terrorizing the witnesses etc., is not only without basis but also without any material to support. There is nothing on record to establish that the witnesses have complained against applicant of being terrorized or threatened in any manner to come and depose either in the criminal case or in the DE, Asserting a general proposition that being a police officer applicant would terrorize is without any credible and justifiable material to support. In such view of the matter, the ACP, PG Cell, who was only to explore possibility of holding a DE has assumed the rule of the Disciplinary Authority by even suggesting resort to Article 311 (2)(b) of the Constitution of India to the Disciplinary Authority. The Disciplinary Authority in the present case has acted mechanically by dittoing the conclusion of the ACP, PG Cell, and ruling that applicant is potential enough to intimidate and terrorize the prosecution witnesses is certainly a conclusion arrived at on presumptions. Unless the witnesses are called in the enquiry on initiation of enquiry and thereafter they had not come forward and complained to the concerned authority of their being threatened or terrorized. The pre-determination of the issue and the conclusion is only on the ipsi dixit of the authorities but not on the basis of the material on record. Assumptions and presumptions would not defeat the rightful claim of applicant of being reasonably defended in the enquiry. In our considered view, when the Disciplinary Authority has not even recorded in clear terms dispensation of enquiry or its not being reasonably practicable on the file, the order passed would also show that the enquiry has not been dispensed with but has been found to be not reasonably practicable is not a valid discharge of Article 311(2)(b) of the Constitution of India; rather the aforesaid is misuse of the power vested in the authority.
21. The contention put-forth that applicant has managed to win over the witnesses in the criminal trial and got his acquittal, cannot be countenanced, as before forming an opinion Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980, has to be invoked. In the present case, the aforesaid occasion had not arisen, as both the witnesses, including Smt. Ganga and Smt. Chanda appeared before the Trial Judge and had not accused applicant of any charge or offence, which has been supported by PW-2. There is nothing on record in the order of the Trial Judge that the witnesses have been declared hostile and a suggestion that they had been won over by applicant. The significance of making a statement under Section 164 of Cr. P.C. and before the Court is that the earlier recorded statements under Section 161 Cr. P.C. have no admissibility in the evidence except the scope of contradiction, the evidence recorded in the enquiry clearly establishes that the witnesses were not terrorized or threatened and had appeared in the Trial Court. Once the witnesses had appeared has demolished the presumption of the PG Cell as to non-availability of the witnesses in the DE.
22. Whether these witnesses have deposed in favour of applicant, this may be correct that the case registered against applicant might be false and he has been acquitted honorably of the charges on the truthful testimony of these witnesses. Had there been an enquiry to examine the decision under Rule 12 of the Rules, applicant would have been accorded a reasonable opportunity to defend.
23. The decision cited of the High Court of Delhi in Rajpal Singh (supra) is distinguishable, as therein Article 31 l(2)(b) of the Constitution of India was not the issue. There, on acquittal enquiry was proceeded.
24. In a judicial review though the conduct of a police officer and its effect on morality, public as well as on discipline may be a relevant consideration, but once applicant is acquitted from the criminal trial, even the need for holding an enquiry is obviated in the light of the decision of the Apex Court in G.M. Tank v. State of Gujarat and Ors. 2006 (3) SLJ SC 312.
25. It appears that on a pre-mature exercise the Disciplinary Authority, even without ordering a DE, resorted to a convenient manner as a short cut to invoke Article 31 l(2)(b) of the Constitution of India, which, in a judicial review, we find, is misuse of the jurisdiction on the ipsi dixit of the authorities. It is basically done to maintain police image before the public but at the cost of violation of Article 311(2) of the Constitution of India and, in turn, infraction to principles of natural justice. Certainly, applicant has been deprived of a reasonable opportunity to defend.
26. In the result, for the foregoing reasons, O.A. is partly allowed. Impugned orders are set aside. Applicant is deemed to be under suspension during the interregnum and would be reinstated back forthwith in service. However, this will not preclude respondents to examine acquittal of applicant under Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980, and thereafter take a final decision, within a period of two months from the date of receipt of a copy of this order. It goes without saying that applicant would be entitled to the subsistence allowance but the interregnum would be operated on the finality as per the rules, instructions and law on the subject. No costs.