Central Administrative Tribunal - Delhi
Kuldeep vs Gnctd on 9 May, 2024
1
Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024
Central Administrative Tribunal
Principal Bench, New Delhi
MA No. 1263/2024 in O.A. No. 656/2024
This the 9th day of May, 2024.
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Dr. Anand S Khati, Member (A).
Kuldeep, Age 25 years, S/o Sh. Fulchand Yadav, R/o-
Faridpur, PO Bandi Ghat, District Mau, U.P.
Sub.; Dismissal
Group 'C'
...Applicant
(By Advocate: Mr. Sachin Chauhan with Ms. Ridhi Dua)
Versus
1. Govt. of NCT of Delhi, through the Chief Secretary, Govt. of
NCTD, A-Wing, 5th Floor, Delhi Secretariat, New Delhi-
110003.
2. The Commissioner of Police, Police Headquarters, Jai
Singh Road, New Delhi-110001.
3. The Joint Commissioner of Police, Southern Range Delhi,
through the Commissioner of Police, Jai Singh Road, New
Delhi-110001.
4. The Deputy Commissioner of Police, South East District,
Delhi, Through the Commissioner of Police, Jai Singh Road,
New Delhi-110001.
(By Advocate: Mr. Amit Yadav)
2
Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024
O R D E R (ORAL)
Per: Hon'ble Mr. R.N. Singh.
By way of the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the order dated 08.04.2022 vide which the penalty of dismissal from service has been inflicted upon the applicant by invoking the jurisdiction under Article 311 (2) (b) of the Constitution of India. Under challenge is also the order dated 02.01.2024, whereby the statutory appeal of the applicant has been rejected.
2. In the OA, the applicant has prayed for the following reliefs:
"8.1 To quash and set aside an order dated 8.4.2022 whereby the extreme punishment of dismissal from service is inflicted upon the applicant, order dated 02.01.2024 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 3 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 Any other relief that this Hon'ble Court deems fit and proper may also be awarded to the applicant."
3. In response to the notice, the respondents have filed counter reply, wherein the respondents disputed the claim of the applicant and they have prayed for dismissal of the OA with costs.
4. The applicant has filed rejoinder and has reiterated his claims and the grounds in support thereof.
5. We have heard the learned counsels for the respective parties and perused the pleadings available on record.
6. The background and the reasons for passing the impugned penalty order could be apparent from the impugned order dated 08.04.2024 (Annexure-A-1). Relevant extract of the order reads as under:
"Whereas, on having been arrested in case FIR No. 138/22, u/s 7 POC ACt & 384 IBC PS Civil Lines, Budaun, UP on the complaint of Advocate Nepal 5/0 Shi. Pyare Lal, r/o C-11, Awas Vikash Colony, Civil Lines Budaun, U.P. SI (Exe.) Pawan Kumar Yadav, D/3095 PIS No. 28103312 and Ct. (Exe.) 4 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 Kuldeep, No.2163/SE PIS No. 28170210 have been placed under suspension from the date of their arrest i.e. 14.03.2022 vide order No. 2461- 2480/HAP/SED (P-1) dated 15.03.2022.
In order to verify/ascertain the facts, a PE has been ordered to be conducted by Sh. Jasood Singh Mehta, ACP/PG Cell/SED vide No. 2695/HAP/SED (p-I) dated 25.03.2022 which has revealed that a case vide FIR No. 848/2021 dated 31.12.2021 W/s 363 IPC was registered at PS-Kalkaji regarding the kidnapping of a minor girl namely "AA" D/o Late. Sadashiv R/o Jhuggi CN-21, Kalkaji Mandir, New Delhi, and investigation of the case was entrusted to SI Pawan Kumar No. D/3095. During the investigation, a clue was found about the current location/residence of the kidnapped girl and the accused. on 12.03.2022 at 11:14 PM, SI Pawan Kumar No. D/3095 along with Ct. Kuldeep No. 2163/SE and W/Ct. SheetalNo. 1107/SE made their departure from PS-Kalkjai vide DD No.97A and they reached Village-Anandpur, Distt. Bareilly (UP) in a private car] The car was driven by a private person, namely, Subhash Chand. The victim girl "AA" and accused Raju were found there. On investigation, accused Raju produced docurents i.e., an application for registration of marriage supported with an affidavit related to their marriage and a photocopy of Aadhar Card of "AA".
The age of the victim girl was different from the documents provided by the complainant of the case. On interrogation, accused Raju disclosed that the Aadhar Card and these documents were given by Advocate Nepal in lieu of Rs. 40,000/-. For the verification of documents and age determination of the victim, SI Pawan Kumar No. D/3095 along with the above staff went to Badaun & they met with Advocate Nepal on 13.03.2022. On 14.03.2022, Advocate Nepal filed a complaint before the SSP/Badaun alleging therein that about 3 months ago, a boy and a girl came to his chamber and said that they want to register their marriage.
5Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 On this, he prepared an application and an affidavit on behalf of them which was sent to the District Magistrate by post by them. It was also alleged in the complaint that a case has been registered regarding the kidnapping of a girl and is being investigated by the Crime Branch, Delhi Police. On 13.03.2022, the 0 of the case SI Pawan Rana came to his house and alleged to him that he is accused in this case. He (Adv) explained to him that he had prepared an application and affidavit only, then how he is accused in this case, and told him that they (boy and. girl) brought Aadhar Card themselves. Then 10 demanded Rs. 15 Lacs to spare him from this case. He told him that he is unable to pay. Then he asked forRs. 12 Lacs. He had to agree to pay. On this IO/ST Pawan Rana asked him to pay Rs. 2. Lacs on 14.03.2022 and the rest of the amount can be paid on 15.03.2022. He arranged Rs. 1.6 Lakhs and noted the numbers of the Notes on paper.. The Advocate further alleged in his complaint that IO/ST Pawan Rana is blackmailing him and he is going to pay this amount to him, The complainant (Adv) has also requested that he can be arrested red-handed and stern action may be taken against him. The sald complant was marked to the CO/City, Badaun to take immediate action. Shri Alok Mishra, CO/City, Badaun formed a team and the SDM/Badaun also joined the raiding party. Accordingly, a trap was laid. When SI Pawan Kumar received Rs. 1.6 Lakhs from: Advocate Nekpal near Ambedkar Hostel, Patel Nagar Market, near Pradeep Jansewa Kendra, the raiding party apprehended SI Pawan Kumar Yadav No. D/3095 (FIS No. 28103312) and Ct. Kuldeep No. 2163/SE (PIS No. 28170210) and recovered Rs. 1.6 Lakhs from the bag of SI Pawan Kumar Yadav. The amount was seized and both the above police officials were arrested vide case vide FIR No. 138/22 dt. 14.03.2022 u/s 384 IPC and. 7/13 POC Act at PS-Civil Line, Distt., Badaun (UP). Further investigation was entrusted to Sh. Gajendra Kumar CO/Uhani, Distt. Badaun(UP). Both the arrested police officials were produced in 6 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 the Upper Session Court (Special Judge POC Act), Bareilly (UP), and both were remanded to 14 days IC.
The overall assessment and evaluation of facts and report received from the concerned authority has revealed that SI (Exe.) Pawan Kumar Yadav, D/3095 PIS No. 28103312 and Ct. (Exe.) Kuldeep, No. 2163/SE PIS No. 28170210 have committed a grave offence and serious professional misconduct. They have indulged themselves in the most abominable act which is not expected from the officers of a uniformed force. The shameful act committed by them have not only tarnished the image and brought disgrace to the organization, but also demoralized other police officers/staff. It is a clear instance of law enforcer turning into a law breaker and thereby projected a very bad image of Delhi Police in the eyes of general public which tends to erode the faith in Police department.
Through the facts surfaced as received from SSP Baduan, it has been observed that the facts and circumstances of the case were so serious that it will not be reasonably practicable to conduct a regular Departmental Enquiry against the above mentioned police personnel as there Is a reasonable belief that the witnesses may not come forward to depose against them owing to their influential position /It also calls for great courage to depose against a desperate person and the task becomes more acute and difficult where the police officials could use their influence against the statement/depositions of the witnesses. It is also highly probable that during the entire DE proceedings, the complainant and witnesses are unlikely to come forward to depose willingly against them out of fear of life &properly from the alleged police personnel. Under these circumstances, I am personally satisfied that conducting a regular DE against the above police personnel is not practicably possible. Further, an extended DE would only cause more traumas to the victims.
7Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 In view of the grave misconduct of the alleged police personnel and their indulgence in moral turpitude, It has become absolutely necessary to dismiss SI (Eve.) Pawan Kumar Yadav, D/3095 P15 No. 28103312 and Ct. (Exe.) Kuldeep, No.2163/SE.PIS No. 28170210 as they are completely unfit for police service. Moreover, their further retention in the department after their Involvement/arrest in the above mentioned case is absolutely undesirable in the public interest, safely and security."
7. From the aforesaid, it is apparent that the applicant while working as a Constable and another person while working as a Sub- Inspector in Delhi Police were involved in the case FIR referred hererinabove. In view of the same, the respondents got the preliminary enquiry conducted and on the basis of the findings in the preliminary enquiry, the Disciplinary Authority concluded Commission of Grave Offence and serious professional misconduct. While concluding so, the Disciplinary Authority also recorded that the applicant and the other co-accused indulged themselves in the most abominable act, not expected from the officers of a uniformed force and such shameful act committed by them have 8 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 not only tarnished the image and brought disgrace to the organization, but also demoralized other police officers/staff. The Disciplinary Authority has concluded that the law enforcer have turned into a law breaker and therefore, projected a very bad image of Delhi Police in the eyes of general public which tends to erode the faith in Police Department. It is also undisputed that in the said preliminary inquiry, the applicant was neither afforded an opportunity to participate and/or to submit his own versions/defence. Besides a copy of the said inquiry report was also never supplied to the applicant.
8. Aggrieved by the impugned order dated 08.04.2022, passed by the Disciplinary Authority, the applicant preferred a statutory appeal (Annexure-A-3), wherein he pleaded various grounds and also placed reliance on the judgment of the Hon'ble High Court of Delhi in W.P. (C) NO. 7883/2010 & CM No. 20322/2010, vide which the Hon'ble High 9 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 Court of Delhi has dismissed the writ petition filed by the respondents and has upheld the order passed by the Tribunal in the relevant OA.
9. The applicant has also pleaded that disciplinary authority should take resolve to the provisions of Article 311 (2) (b) of the Constitution of India but in those cases, where it is not reasonable or practicable to hold the inquiry. In support of the same, the applicant has referred and relied upon the instructions issued by the Delhi Police in this regard, particularly one circular dated 21.12.1993. The applicant in support of his claim under statutory appeal has also placed reliance on the law laid down by the Hon'ble Supreme Court in the case of Union of India V. Tusli Ram Patel, reported in AIR 1985 SC 1416, to submit that while invoking the provisions of Article 311 (2)
(b) reasons should properly be recorded for passing the dismissal order. Besides, this the applicant has further relied upon the law laid 10 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 down by the Hon'ble Supreme Court in the case of Satyavir Singh & Ors. v. Union of India & Ors, reported in AIR 1986SC555 to contend that regular disciplinary enquiry cannot be dispensed with on the basis of whims and fancies of the Disciplinary Authority and can only be done away with when circumstances indicate, rather establish that it is not reasonably practicable to hold the inquiry. The applicant further pleaded that recording of presumptions and surmises is not sufficient to meet the requirement of the provisions of Article 311 (2) (b) of the Constitution of India.
10. The Appellate Authority while passing the impugned order dated 02.01.2024 (Annexure A-2) has reproduced the facts and circumstances and background of the case and has also reproduced precisely the contentions of the applicant as has been made out in the statutory appeal under various paras thereof. While dealing with the same, the respondents have negated all the grounds pleaded and urged 11 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 by the applicant based on surmises and conjunctions and without recording any reasons or indicating any ground in support thereof and have confirmed the penalty and rejected the appeal.
11. The learned counsel for the applicant argued that once a preliminary inquiry is possible, the regular departmental inquiry is also possible and if at all a regular inquiry is found necessary to be dispensed with; the disciplinary authority is mandated to record the reasons in writing in support thereof. He has further argued that mere seriousness of the alleged offences shall not be sufficient for coming to the conclusion by the disciplinary authority that the concerned employee has committed those offences and that too in absence of the findings of the learned trial court in this regard and/or any other inquiry in this regard.
12. The learned counsel for the applicant has further argued that admittedly, the applicant was working only as a constable, whereas the 12 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 co-accused was working as a Sub-Inspector i.e. on a higher post and both the applicant as well as the said Inspector were involved in the said case FIR. The preliminary inquiry was conducted in respect of both. Similar order was passed by the Disciplinary Authority in respect of the said Sub-Inspector as well. However, when the said Sub-Inspector preferred a statutory appeal, more or less on similar grounds, the appellate authority dealing with said appeal of the Sub-Inspector ultimately came to the conclusion as under:
"Considering the rationale/justification given in appeal along with judicial pronouncement and facts of the case, the undersigned is of the opinion that no cogent reasons with supportive material has been given for invoking Article 311 (2) (b) of the Constitution of India. Hence, the case is remanded back under rule 25 (1) (e) of Delhi Police (Punishment & Appeal) Rules, 1980, to take a fresh decision in the case within two month.
Let the appellant be informed accordingly."
13. He further argues that in the similar facts and circumstances and on the similar grounds, once the Appellate Authority has come to a finding in the case of the said Sub-Inspector in 13 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 the manner as recorded and reproduced hererinabove, while passing the order dated 24.02.2024 (Annexure- MA-1), no justification has been advanced on behalf of the respondents as to why the Appellate Authority in the case of the applicant came to a different conclusion and has rejected the statutory appeal of the applicant.
14. He further adds that pursuant to the Appellate order dated 24.02.2024, in the case of the co-accused, the concerned disciplinary authority did not revisit the relevant disciplinary order but passed order for reinstatement of that Sub-Inspector, of course, with liberty to the respondents to proceed with the Departmental Enquiry vide order dated 01 01.03.2024 (Annexure-MA-2). The learned counsel for the applicant argued that such action of the respondents not only indicates non-application of mind, orders were being passed on whims and fancies and ignoring not 14 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 only the law on the subject but their own circulars on the subject.
15. To substantiate his arguments, the applicant has placed reliance on a catena of judgments passed by this Tribunal, the Hon'ble High Courts and the Hon'ble Supreme Court on the subject. However to be precise, while arguing, the learned counsel for the applicant has placed reliance on the order passed by this Tribunal in OA No. 1383/2020 & other connected OAs, titled Ct. Sumit Sharma Vs. Govt. of NCT of Delhi (Annexure A-6). He has further placed reliance on the judgment of the Hon'ble High Court of Delhi in W.P. (C) 2407/2024, titled as Govt of NCT of Delhi And ors. Vs. Dushyant Kumar, decided on 19.02.2024. He submits that in the said judgment, the Hon'ble Delhi High Court has not only considered the order of this Tribunal in the case of Ct. Sumit Sharma (supra) but has also considered circulars issued by the respondents on the subject.
15Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024
16. He has further placed reliance on the judgment of Hon'ble High Court of Delhi in W.P (C) 10452/2023 & CM APPL. 40509/2023- Stay, titled as Govt of NCT of Delhi And ors Vs. Ex CT Naeem Khan, decided on 13.03.2024, wherein the Hon'ble High Court of Delhi has again considered the order of this Tribunal in the case of Ct. Sumeet Sharma (supra) and also the fact that in case where more than one person was found involved, for the same offence and/or misconduct, both the persons are required to be similarly treated in the similar manner.
17. On the other hand, opposing the claim of the applicant, the learned counsel for the respondents has referred the pleadings available on record and particularly the impugned order and the assertions made in the counter reply. He submits that in the case FIR apparently both the applicant and the co- accused were involved where allegations of commission of serious offences were involved.
16Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 The respondents got a preliminary enquiry conducted and the report of such inquiry indicated commissions of the alleged offences and also the misconduct committed by the accused persons including the applicant. He argues that it is always for the competent disciplinary authority to see as to who is the person to be continued in the employment and who is not. He further submits that the order of this Tribunal in the case of Ct. Sumeet Sharma (supra), though has attained finality cannot be considered as a binding precedent in view of the fact that each case depends upon its individual facts and circumstances.
18. The learned counsel for the respondents further argues that the applicant was working as a Constable whereas the co-accused was working as a Sub-Inspector and even if both were accused in the said case FIR, the role might have been found different by the competent disciplinary authority and the Appellate Authority and therefore, the applicant 17 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 cannot expect the same treatment as has been extended to the co-accused Sub-Inspector.
19. We have considered the submissions made by the counsels for the respective parties. Undisputed facts have been precisely recorded hereinabove and for the sake of precision, the same are not reiterated here again.
20. We find that qua the jurisdiction of the Disciplinary Authority for invoking the provisions of Article 311 (2) (b) is no more res- integra in view of the ratios in a catena of case laws and the instructions issued by the respondents themselves on the subject and which has been taken into consideration by the Hon'ble High Court and the Hon'ble High Court in the case of Dushyant Kumar (supra) in paras 9 to 16 has observed thus:
9. Having considered the rival submissions of learned counsel for the parties, we may begin by noting the circular dated 21.12.1993 which succinctly lays down the guidelines for dealing with situations, where decision is taken to dispense with the enquiry by resort to Article 311(2)(b) of the Constitution of India. The same reads as under:-18
Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 "The Police Officers involved in the case of rape or dacoity or any such heinous', offence have been dismissed straightway under Article 311 (2)(b) despite the fact that criminal cases have been registered. Such dismissals without holding D.Es are illegal because in such cases D.E. can be conveniently held.
It is, once again emphasized that the Disciplinary Authority should not take resort to Article 311 (2)(b) lightly but only in those cases where it is not reasonably practicable to hold the enquiry. Whenever the Disciplinary Authority comes to the conclusion that it is not reasonably practicable to hold an enquiry he must record at length cogent and legally tenable reasons. for corning to such conclusion. In the absence of valid reasons, duly reduced in writing, no such order of dismissal etc. with resort to Article 311 (2)(b) can be sustainable in law."
10. We may also now refer to petitioners' subsequent circular dated 11.09.2007, which again reiterates that an enquiry must not be dispensed with lightly. The same 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 W.P.(C)- 2407/2024 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.19
Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 Though some cases are still pending in the Honble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2) (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 W.P. (C)-2407/2024 of India, Disciplinary Authority has to take prior concurrence of Spi. CP / Admn.
This has the approval of C.P., Delhi.
Sd/-
Jt. Commissioner of Police, HDORS;
20Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 Delhi
11. We may now also note the relevant extracts of the termination order dated 03.10.2022, which read as under:
"01.09.2022, RI/5'Bn has intimated that ASI(Exe) Dushyant Kumar No.4066/DAP, PIS No. 28911063 posted in NDMC guard from 5"Bn DAP has been arrested in Case FIR No. RC0032022A0055 u/s 120B IPC r/w sec.07 PC Act PS CBI, ACB, New Delhi.
For his involvement in the case, ASI (Exe) Dushyant Kumar, No. 4066/DAP, PIS No. 28911063 has been placed under suspension vide order No. 6543-6643/HAP/P-I/Sth Bn. DAP dated 01.09.2022 from the date of his arrest in the case.
According to the contents of FIR, on the complaint of one Sh. Vinod Kumar Sapra S/ Late Shri Kishan Lal Sapra R/o C--6/96 Sector-5 Rohini Delhi -110085, it is revealed that he(Complainam) was working as 'Khabri' of ACP Sh. Brij Pal for 5-6 years when, ACP Sh. Bri Pal was working as Sub-Inspector and Inspector in Delhi Police in different Police Stations of Delhi. However, he (complainant) left this work 14-15 years ago. At present ACP Sh. Brij Pal is posted at Narcotics Department in Bawana, New Delhi. He (Complainant stopped the work of Khabri to ACP Sh. Bri Pal Singh due to non-payment of money for the information provided by him (Complainant). Since last 9 months, when ACP Sh. Bri Pal was working as Inspector at Bawana Police Station., New Delhi (In Narcotics Division), he is demancing Rs.50 Lakhs for not implicating his (Complainant) wife Smt. Mamta Sapra in various cases.
On 23.08.2022, one ASI (Exe) Dushyant Kumar, No. 4066/DAP, PIS No. 28911063 who 21 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 was earlier working under ACP Brij Pal, contacted the wife of the complainant over whatsapp call from his mobile number 9899072635 and informed her (wife of complainant) that ACP Brij Pal is ready to negotiate the amount in his (ASI (Exe) Dushyant Kumar, No. 4066/DAP, PIS No. 28911063) presence and if she does not agree the terms of ACP Sh. Brij Pal, she will be implicated in criminal case. Based on the complaint, a verification of allegation was undertaken on 29.08.2022 & 30.08.2022 and it was revealed from verifications that Bri Pal, ACP of Delhi Police posted at Bawana Police Station in Narcotics Department has demanded Rs.15 Lakh in the presence of ASI(Exe) Dushyant Kumar, No. 4066/DAP PIS No. 28911063 of Delhi Police and also directed the complainant to hand over the bribe amount to ASI (Exe) Dushyant Kumar, No. 4066/DAP, PIS No.28911063. The Complaint and Verifications prima facie disclose commission of offence punishable u/s 120B of IPC r/w Sec.7 of PC Act, 1988 (asamended in 2018) oh the part of Brij Pal, ACP of Delhi Police posted at Bawana Police Station in Narcotics Department and ASI(Exe) Dushyant Kumar No. 4066/DAP, PIS No. 28911063 of Delhi Police posted at 5th Bn. DAP ASI (Exe) Dushyant Kumar No. 4066/DAP.
PIS No. 28911063 has been arrested by ACB, CBI on 01.09.2022 under prevention of corruption ACT for demanding Rs. 15 lacs from the complainant in connivance with ACP Bri Pal and the bribe amount of Rs 7,89,000 recovered from ASI (Exe) Dushyant Kumar No. 4066/DAP, PIS No. 28911063.
The above act on the part of ASI (Exe) Dushyant Kumar, No. 4066/DAP, PIS No. 2891 1063 shows that he is involved in demanding and accepting of the bribe amount of Rs 7,89,000 and his criminal attitude has 22 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 tarnished the image of Delhi Police and his action amounts to gross misconduct and highly unbecoming of a police officer.
Further on perusal of his entire service record it is revealed that previously he has been punished on 02 different occasions as under: -
1. DE initiated vide order No. 2502- 17 /HAP/ C&R, Delhi dated 17.12.2002 has been finalized and awarded him a Censure vide order No. 1797-1815/HAP/ C&R, Delhi dated 27.08.2003 for his negligence in duty.
2. SCN issued to him vide order No. 7699-
770/HAP/P- Ill/West dated 15.07.2019 has been finalized and awarded him a Censure i vide order No. 3987-88/HAP (P-Il) / Sth; Bn. DAP, Delhi dated 21.10.2019.
The above criminal attitude of ASI (Exe) Dushyant Kumar, No. 4066/DAP, Pl No. 28911063 has tarnished the image of Delhi Police and his action amounts to gross misconduct and highly unbecoming of a police officer.
Taking into account the totality of facts and circumstances of the above mentioned misconduct, it is very clear that the delinquents committed the grave misconduct which cannot be tolerated in any disciplined organization like the police force whose basic duty is to protect the life and liberty of citizen in the society. He indulged himself in a most abominable act which is not expected from a uniformed police person. The shameful act committed by him has not only tarnished the image of the police force but has also brought disgrace to the organization. He demoralized the moral of other police officers/staff. It is a clear instance of a law enforcer turning into the law breaker and has 23 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 thereby projected a very shabby image of Delhi police in the eyes of the general public which shall tend to erode the faith in police department. It is an apt case where an exemplary punishment needs to be awarded to the defaulter so that a strong message should go among the other police personnel. In order to deter other members of the force from contemplating such conduct, this act should be dealt with heavy hand & be awarded exemplary punishment When a police officer who is supposed to uphold the law himself resorts to lawlessness and commit a serious misconduct and tarnish the image of Police Department, it causes a major blow to the confidence of citizens in the police. Such conduct will cause a lot of damage to the goodwill of the organization and will shaken the confidence of the public in the police force The defaulter ASI(Exe) attracts the provision of Article 311 (2) (b) of Constitution of India and makes him completely unfit for police service.
In order to send a clear message to such undesirable elements in the police force and to maintain discipline as well as to prevent recurrence of such incidents, it has become absolutely imperative to dismiss the defaulter ASI(Exe) as he is completely unfit for police service. His further retention in the department after his involvement/ arrest in above mention case is absolutely detrimental to public interest. He is completely a burden on the Govt exchequer.
Therefore, I SHRI KISHAN MEENA, Deputy Commissioner of Police, 5 Bn. DAP, Delhi do hereby order to dismiss defaulter ASI (Exe) Dushyant Kumar, No. 4066/DAP, PIS No. 28911063 from the force with immediate effect under Article 311 (2)(b) of Constitution of India. His suspension period from 0 1/09/2022 to date of issue of this order is also 24 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 been decided as 'period not spent on duty for all intents and purposes"
(Emphasis Supplied)
12. We find that in support of the petition, learned counsel for the petitioners has simply submitted that once the Appellate Authority has, after giving an opportunity of hearing to the respondent, come to a conclusion that it was a fit case where the respondent should be dismissed without any enquiry, the learned Tribunal could not have interfered with the said decision. We are, however, unable to agree. No doubt, it is for the Disciplinary Authority to decide whether in a case it is not reasonably practical to hold an enquiry, but this decision has to be necessarily based on cogent reasons. Learned counsel for the petitioners has not been able to provide any reason, much less to say any cogent reasons, not to hold any enquiry against the respondent. There is neither any plea that the respondent is in any influential position nor any plea of threat to or intimidation to the witnesses by him.
13. Finally, we may refer to the relevant extracts of the impugned order as contained in paragraph nos.9 to 11, which read as under:
9. Having regard to the above, we have carefully perused the impugned orders), 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 witnesses). 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 nothing is brought on record that witnesses) has/have been threatened by the applicant or they were 25 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 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 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 O4 is squarely covered by the common 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 Al 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 26 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 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."
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 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 hasbeen stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Even 27 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 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 6981 .) 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, 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 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."
21. In the case of Ex CT Naeem Khan (supra), the Hon'ble High Court had opportunity to deal with the order of this Tribunal in the relevant OA with identical facts and circumstances and the Hon'ble High Court has ruled in paras 7 to 12 as under:
28Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024
7. Having considered the submissions of learned counsel for the parties and perused the record, we may begin by noting the relevant extracts of the impugned order. We may, therefore, first note para 9 of the impugned order wherein the learned Tribunal has referred to the relevant extracts of the decision dated 10.02.2022 in the case of ASI Intikhab Alam. The same read as under:
"9. The judgment in Ct. Sumit Sharma vs. Govt. of NCT of Delhi (supra) was followed in the case of coaccused/ delinquent in the case titled Intikhab Alam (supra), paras 45 to 48 of Ct. Sumit Sharma (supra) which read as under:-
"45. In the cases in hand, it is evident that in most of the cases preliminary inquiry had admittedly beendone and regular enquiry had been dispensed with on the ground of possibility of witnesses likely to be unduly harassedor pressurized by the In delinquents).
In all the case FIRs, chargesheet had been filed, list of witnesses had been filed, a few witnesses had been examined or after tiral the accused(s) had been acquitted. In a few cases, the reason for dispensing with the enquiry had been given that the material had come on record to prove the criminal acts of the applicants. The reason had been also of threat to discipline, integrity and morality of the entire police force. On perusal of the impugned orders. it is evident that either the authorities have passed the orders of dispensing with the enquiry on jumping to the conclusion that delinquency or guilt of the applicants as alleged in the case FIRs stood proved even without regular enquiry in the departmental proceedings or trial in the concerned learned court(s). In most of the cases, conclusion about delinquency and commission of the 29 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 offence(s) by the applicant(s) had been arrived merely on the basis of the preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area-and/or were having link with the terrorists) and they were involved in any case of espionage. Nothing has been recorded in the orders) or shown to us that the applicants) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es).
There is no evidence or document to indicate that in view of the facts and circumstances of the cases), any efforts was made to summon the witnesses) to lead the evidence against the applicants) or anything was found that on regular enquiry or by summoning the witnesses) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) to lead evidence against the applicants). Rather the respondents have themselves filed the final challan(s)with a list of witnesses) before the concerned learned Court(s) and in a few cases, the accused(s) had acquitted been as well. In a few cases, witnesses have been examined before the concerned learned Courts).
Moreover, co-delinquent in the cases of Neeraj Kumar (supra) and Ramesh Kumar (supra), the similar: impugned orders have 30 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 been set aside by the Tribunal and the orders of the Tribunal have also attained finality.
46. It is found that the authorities while passing the impugned orders have. very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s): and there being a possibility that witnesses) may not come forward to depose against the applicants). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
47. It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public Service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove.
48. In view of the aforesaid, we are of the considered view that the aforesaid Os deserve to be partly allowed and the same are partly allowed with the J following directions:-
(i) Order(s) passed by the disciplinary and appellate authorities in the aforesaid As are set aside with all consequential benefits to 31 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 the applicants in accordance with the relevant rules and law on the subject; and
(ii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant(s) in accordance with law."
8. We may now note hereinbelow the relevant extracts of para 11 of the impugned order wherein the learned Tribunal has given its findings as to why the action of the petitioners dismissing the respondent without holding an enquiry was unsustainable;
"11. However, 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) and further there is no evidence or document to indicate that in view of the facts and circumstances of the case, any efforts was made by them to summon the witnesses) to lead the evidence. It is also not the case of the respondents that resorting to regular enquiry, the relation with foreign countries was likely to be adversely affected.
From the impugned orders, it is evidently clear that neither any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their best efforts, the respondents had not been able to produce the witness(es) to lead evidence against the applicant and further nothing is brought on record that witnesses) has/have been threatened by the applicant or they are too scared of the applicant to come forward in the regular enquiry proceedings. I 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 and there being a possibility that 32 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 witnesses) may not come forward to depose against the applicant despite the fact that the said complainant lodged DD entry and made a Statement that the applicant is not the person who has fired a shot and his name was taken by him and got recorded in the FIR due to some misunderstanding and to this effect an affidavit is stated to have been filed before the District and Session Judge, Karkardooma Court. This fact has not been considered by the Appellate Authority while passing the impugned order.
9. In the backdrop of the aforesaid findings of the learned Tribunal, we have considered the submission of Mrs. Ahlawat that since the roles attributed to the respondent and to ASI Intikhab Alam in the incident which took place in the night of 24.02.2018 were different, no reliance could be placed on the order passed by the learned Tribunal in the case of ASI Intikhab Alam. We are, however, unable to appreciate this plea as we find that this Court is not dealing with the question regarding the guilt or misconduct of either the respondent or of ASI Intikhab Alam. The only question which arises for consideration of this Court is, as to whether there were sufficient grounds for the petitioners to dispense with the departmental enquiry and pass a dismissal order against the respondent under Article 311 (2)(b) of the Constitution of India.
10. Taking into account that it was the own case of the petitioners that the respondent as also ASI Intikhab Alam were involved in the very same incident, it is evident that the witnesses qua the incident in respect of both, would necessarily be the same. As noted hereinabove, in fact, the petitioners had themselves initially passed a common order on 26.02.2018 dismissing both the respondent and ASI Intikhab Alam on the ground that it would not be reasonably practicable to conduct the regular departmental enquiry against them which conclusion was found to be unsustainable by the 33 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 learned Tribunal in the case of ASI Intikhab Alam. In these circumstances, we are of the view that once the petitioners themselves had treated the case of the respondent and ASI Intikhab Alam at par for the purposesof determining as to whether it was a fit case for dispensing with the enquiry, they cannot now be permitted to urge that the case of the respondent is not covered by the decision of the learned Tribunal in the case of ASI Intikhab Alam, which decision as noted hereinabove has been duly implemented.
11. We are, therefore, unable to accept the plea of the petitioners that the cases of the respondent and ASI Intikhab Alam are in any manner different insofar as they relate to the question regarding the feasibility of holding a departmental enquiry. Their role in the alleged incident and the misconduct attributed to them may be different but this would not be a material factor to determine as to whether a departmental enquiry against the respondent should be dispensed with. In our considered view, once the petitioners have initiated a departmental enquiry against ASI Intikhab Alam, there is no reason as to why such an enquiry cannot be initiated against the respondent especially when the witnesses to the incident, in which both the employees are alleged to have been involved, is the same. Even though, Mrs. Ahlawat has vehemently urged that the witnesses were being threatened by the respondent and, therefore, it was not reasonably practicable to hold an enquiry against him, however as has also been noted by the learned Tribunal, we find that nothing has been placed on record to substantiate this bald plea. Merely because some witnesses are alleged to have turned hostile, cannot, in our view, be a ground not to hold a departmental enquiry and that too when an enquiry based on the same incident is being held against a co-delinquent.
12. We have also considered the decisions in CT. Mukesh Kumar Yadav Vs. Govt. (NCT of Delhi), 2017 SCC OnLine Del 11169; Parveen 34 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 Kumar Vs. Commissioner of Police, 2007 (98) DRJ 433 (DB) and Manohar Lal Vs. Commissioner of Police being WP(C) 1309/2023 decided on 02.02.2023, relied upon by the petitioners but find that the same turn on their own facts. In none of these cases, the Court was dealing with a situation like the one in the present case where enquiry pertaining to the same incident is being held against a co-delinquent. Even otherwise, merely because the respondent happens to be police personnel, it cannot be said that a departmental enquiry cannot be held against him. Similarly, the nature of cases, where the enquiry can be dispensed with, cannot be put in a straight jacket formula; every case is, therefore, required to be considered on its own facts. In the present case, we have no hesitation in agreeing with the learned Tribunal that no ground was made out for dispensing with a regular departmental enquiry against the respondent."
22. Admittedly, nothing has been brought on record and/or shown to us that the respondents have even attempted to initiate disciplinary proceedings against the applicant. It is the not the respondents' case that the same was not found possible for want of availability of the witnesses and/or the witnesses were coerced, influenced and/or not willing to turn up to lead evidence in the matter. It is also not brought before us in any manner that applicant has in any manner attempted to pressurize and/or influence the witnesses and/or the prospective 35 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 witness. Pursuant to the said Case FIR , it is admitted fact that the prosecution had filed challan under section 173 of the CrPC with list of documents and witnesses. No reason has been given by the respondents that if inquiry is possible for criminal prosecution why departmental enquiry was not found feasible in the matter. It remains undisputed that the Disciplinary Authority as well as the Appellate Authority has jumped to the conclusion of commission of offences by the applicant and/or initially in the case of the co-accused Sub- Inspector also without there being any trial before the competent court of law and/or in any regular inquiry conducted by the respondents in the matter.
23. In such facts and circumstances and in light of what has been held by the Hon'ble High Court of Delhi in the case of Dushyant Kumar (supra) & Ex CT Naeem Khan (supra), we are of the considered view that this 36 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 OA deserves to be allowed. Accordingly, the OA is allowed with following orders:
(i) The impugned orders dated 08.04.2022 & 02.01.2024 are hereby quashed and set aside.
(ii) The respondents shall re-instate the applicant forthwith from the date the applicant was dismissed from the service in view of the order passed by them and impugned by the applicant hereinabove.
(iii) The applicant shall be entitled for all other consequential benefits in accordance with the relevant rules.
(iv) The respondents shall be at liberty to proceed against the applicant departmentally, if they are so advised.
(v) However, in the facts and circumstances of the case, there shall be no order as to costs.
(vi) The aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within four weeks from 37 Item No. 49/ Court No. 2. MA No. 1263/2024 in O.A. No. 656/2024 the date of receipt of a certified copy of this order.
(Dr. Anand S. Khati) (Mr. R.N. Singh) (Member A) ( Member J) /abhay/