Central Administrative Tribunal - Delhi
Bhojraj Singh vs Gnctd on 9 September, 2024
1
OA No.1067 /2023
Central Administrative Tribunal
Principal Bench
OA No. 1067/2023
Reserved on:06.08.2024
Pronounced on: 09.09.2024
Hon'ble Mr.R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Bhojraj Singh,
S/o Late Sh. Laxman Singh,
R/o E-413, Hardev Puri,
Shahdara,Delhi-93
Age 36 years, Group-"C"
Sub-Inspector (Exe.) in Delhi Police
-Applicant
(By Advocate: Shri Sachin Chauhan with Ms.
Ridhi Dua,Sh. Abhimanyu Baliyan and Sh.
Himanshu Raghav)
VERSUS
1. Govt. of NCT of Delhi
through the Chief
Secretary,Govt. of NCTD,
A-Wing, 5th floor,
Delhi Secretariat,
New Delhi-10113
2. The Commissioner of Police
Police Headquarters,
Jai Singh Road New Delhi 10001
3. The Joint Commissioner of
PoliceSouthern Range, Delhi
Through the Commissioner of
PoliceJai Singh Road
New Delhi.110001.
2
OA No.1067 /2023
4. The Deputy Commissioner of Police
South District: New Delhi
Through the Commissioner of Police
Jai Singh Road, New Delhi -110001
-Respondents
(Through Advocate: Mr. Ashish Singh))
O R D E R
By Hon'ble Mr. Rajinder Kashyap, Member (A):-
The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act., 1985, seeking the following relief(s):-
"8. Relief Sought In view of the above facts and circumstances, this Hon'ble Tribunal may be pleased to: 8.1. To quash and set aside order dated 29.10.2021 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 and promotion and pay and allowance.
And/or Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the applicant."
2. Pursuant to the notices, the respondents have filed their counter affidavit opposing the claim of 3 OA No.1067 /2023 the applicant and have prayed for dismissal of the present Original Applicant. The applicant has also filed his rejoinder denying the contentions 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 a Sub-Inspector in Delhi Police in the year 2010. The applicant states that he has satisfactory service record and has family which is dependent upon his income and therefore present employment is utmost important for him and his family as a source of sustenance. He further states that he was falsely implicated in a criminal case RC-DAI-2021-A-0037 under section 7 of PC Act, 1980 dated 27.10.2021 and was arrested on the same day i.e., 27.10.2021. He was placed under suspension w.e.f. 27.10.2021 vide order dated 28.10.2021.. He was released on regular bail on 24.12.2021 in RC-DAI-2021-A- 0037 under section 7 of PC Act. The investigating agency has filed the charge sheet before Ld. Trial Court and charges were framed vide order dated 11.05.2021.
4OA No.1067 /2023
4. In the year 2022, he states that he was falsely implicated in another criminal case No. RC220/2022/E/0012 PS EO-II, CBI, New Delhi under section 21 read with 29 NDPS Act which was off shot of same allegation as being the subject matter of RC-DAI-2021-A-0037. He was granted anticipatory bail in aforesaid criminal case vide Ld Trial court order dated 27.09.2022. The anticipatory bail order clearly establishes that he was falsely implicated in another criminal case RCDAI-2022- A-01022 under section 13 (2) read with S.13(1)(e) of PC Act., 1988 dated 08.03.2022 by the CBI. He stated that this criminal was further off shoot of the same allegation and incident was being subject matter of RC-DAI-2021-A-0037. The case of asset disproportionate to income is being alleged against the applicant because of so called recovery of cash (as being subject matter of RC-DAI-2021-A-0037) from the premises of the applicant. The so called recovery was made from House No. E-413, Hardev Puri, Shahdara which was residential property in which three brothers of applicant were residing. The applicant has disputed in the same criminal case that he was having any asset disproportionate 5 OA No.1067 /2023 to income. He denied each and every charge in the same case as being false. The above two criminal cases are not even the subject matter of impugned orders in present case but still as a bonafide on the part of the applicant, he has brought the details on record so in order to establish the harassment being faced by the applicant due to unwarranted, biased criminal prosecution by the investigation agency. The applicant contends that once the applicant is subjected to criminal trial, then come what may the applicant, can also be subjected to Disciplinary Enquiry (DE). On 29.10.2021, the Disciplinary Authority issued an order dated 29.10.2021, vide which he has been dismissed from service invoking the power under Article 311(2) (b) of the Constitution of India without conducting departmental enquiry. He was placed under suspension on 29.10.2021. The reasons recorded by the Disciplinary Authority for dispensing with the enquiry are vague and based on suspicions and surmises. It was admitted in the order of the Disciplinary Authority that preliminary enquiry was conducted by Sh. Vinod Narang, ACP/Sub-Div./Mehrauli. The relevant 6 OA No.1067 /2023 portion of the order of the Disciplinary Authority issued on 29.10.2021 reads as under:-
"Whereas Sh. Vinod Narang, ACP/sub-
Div./Meherauli has submitted his enquiry report and concluded that on the complaint of Sh. Honey Tyagi @ Manoj Tyagi R/o Rameshwar Dayal Tyagi, R/o 2/208, Varun Farms, Gaushala Road, Chattarpur, New Delhi were approached CBI Authorities through his written complaint against IO, SI Bhoj Raj of PS Maidangarhi, that he has demanded Rs.5 lacs to favour the complainant and his friend in the bail matter of his case FIR No. 222/2021, dated 26.8.2021 under section 232/31/306/34 IPC, PS Maidangarhi, Delhi and also not attend the court during hearing for bail application and assured the (complainant and his friend ) to favour in the investigation."
5. Disciplinary Authority issued order dated 29.10.2021 vide which the applicant was dismissed from service. The applicant submitted an appeal to the appellate authority which was decide by the appellate authority. The relevant portion of the orders are quoted in the OA.
6. The applicant states that the reasons recorded in the order of Disciplinary Authority for dispensing with the D.E. are vague, evasive and false. The sole objective is to adopt the short cut method with the sole intent to avoid D.E. and thus the power under Article 311 (2)(b) has been exercised imposing extreme punishment of dismissal from service and further establishing the 7 OA No.1067 /2023 absolute abuse of the process of law.
7. As per Rule of law, it was incumbent upon the authorities not to use Article 311 (2)(b) and to give opportunity to the applicant to put forward his defence in D.E. It is also stated that gravity of misconduct alleged in the criminal case cannot be a ground to invoke the power of Article 311 (2)(b) unless and until D.E. is not reasonably practical. Moreover, the Disciplinary Authority within the impugned order has assumed as if the allegations made in the criminal case stood proved. Even the Appellate Authority did not consider the pleas and submissions raised by the applicant in his Appeal and mechanically rejected the same. Thus on presumptions, the Disciplinary Authority imposed the extreme punishment of dismissal from service and the Appellate Authority confirmed the same in a mechanical manner.
8. The applicant has placed reliance on the judgmentof this Tribunal on the use of Article 311(2(b) that is OA NO 2097/2019 Neeraj Kumar vs Delhi Police dated 01 November 2019, Ins. Jasmohinder Singh OA NO 2867/2019 decided on 16" Oct 2020, Ins. 8 OA No.1067 /2023 Dharmender Singh Dangi OA No. 702/2019 decided on 7 January 2021, OA 1912/2015- Kripal Singh Vs Govt of NCTD & Ors.
decided on 11.3.2021 and OA No. 1114/2018- Tara Dutt Vs GNCT of Delhi & Ors. decided on 17.6.2021 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., on the use of Article 311(2) (b) by the respondents authorities, OA No. 1019/2023 (Dushyant Vs GNCTD) decided on 13.12.2023, OA No. 3436/2022 & 3494/2022 (Sandeep Moun vs GNCTD and Sandeep Bishnoi Vs. GNCTD) decided on 16.8.2023. The judgment of Dushyant is being upheld by Hon'ble Delhi High Court in Writ Petition No. 2407/2024, dated 19.02.2024, Dushyant Kumar CAT- OA/1019/2023, HC -W.P. (C) No. 2407/2024, Deepak CAT-
OA/542/2023 with OA/591/2023, Manjeet HC- W.P. (C) - 1258/2023, Jagmal
Singh HC- W.P. (c)- 4201/2024, Supreme 9 OA No.1067 /2023 Court- SLP NO.- 1 1681/2024, Sant Ram- HC- W.P. (C)- 5562/2024 Re-instatement order 16.07.2024 and Circular Dated 13.05.2024 issued by DCP Legal Division/PHQ Delhi.
9. At the time of hearing, the learned counsel for the applicant Shri Sachin Chauhan has argued that the impugned order passed by the Disciplinary and Appellate Authorities are being passed without application of mind as the Disciplinary Authority is in utter violation of the principle of natural justice as laid down in the departmental rules and procedure under garb of Article 311 (2)(b) of the Constitution of India without subjecting the applicant to departmentally enquiry straight way dismissed the applicant from service.
10. The learned counsel for the applicant also submits that admittedly the preliminary enquiry was conducted by Sh. Vinod Narang, ACP/Sub- Div./Mehrauli. in order to construe that the allegations are true against the applicant that too at the back of the applicant. The relevant extract of the order of Disciplinary Authority 10 OA No.1067 /2023 dated 29.10.2021 is reproduced hereinbelow:-
"Whereas, Sh Vinod Narang, ACP/sub- Div/Mehrauli has submitted his enquiry report and concluded that on the complaint of Sh Honey Tyagi @ Manoj tyagi R/o Rameshwar Dayal Tyagi, Rlo 2/208, Varun Farms, Gaushala Road, Chattarpur, New Delhi were approached CBI Authorities through his written complaint against I0, SI Bhoj Raj of PS Maidangarhi, that he has demanded Rs 5 lacs to favour the complainant and his friend in the bail mater of his case FIRNo.
222/2021. dated 26.8.2021 ws 232/31/306/34 IPC, PS Maidangarhi, Delhi and also not attend the court during hearing for bail application and assured the (complainant and his friend) to favour in the investigation."
11. The learned counsel for the applicant has further submitted that the Disciplinary Authority and the Appellate Authority did not make the required and possible effort to initiate the departmental enquiry after initiating departmental enquiry or findings of sufficient reasons /material, the Disciplinary Authority can come to the conclusion that departmental enquiry is not reasonably practicable. However, in the present case, only acting on the presumption and surmises, the respondents came to the conclusion the departmental enquiry is not practicable and such conclusion /determination of the respondents are not sustaining in the eyes of law. He also states that the Disciplinary Authority has failed to apply its 11 OA No.1067 /2023 minds that the power under the Article 311(2) (b) of the Constitution of India has to be exercised with a pre-condition. The pre-condition is that a departmental enquiry is not reasonably practicable and came to that conclusion the Disciplinary Authority has to record reason(s), and reasoning in the case in hand is on basis of assumption. The applicant has committed the alleged crime without there being conclusive verdict in that learned court of the aforesaid case FIR.
12. The respondents have filed counter affidavit on 07.11.2023, wherein, they have stated that on 23.08.2021 at about 20:57 hrs, a PCR call vide GD No. 64/A regarding quarrel was between Sh. Naresh Kumar and Manoj Tyagi and his friends on the issue of parking of Scooty in front of their house. Sh. Naresh Sharma is serving in BSES who parked his Scooty in front of house of Manoj Tyagi. It is alleged that after hot arguments accused Manoj Tyagi with his associates assaulted Sh. Naresh Sharma and his son Naitik Sharma and injured them. Sh. Naresh Sharma sustained a fracture on his jaw (near Rt. Ear). On the basis of MLC result of Shri Naresh Sharma Section 308 of IPC was added on 12 OA No.1067 /2023 08.09.2021. A case FIR No.222/21 dated 26.08.2021 u/s 341/323/506/34/308 IPC, PS Maidan Garhi was registered and the same was entrusted to Ex. SI Bhojraj, No. D-5162 (16100169) for further investigation. During the course investigation accused Vikram was arrested on 21.09.2021, who enlarged on bail by Ld. ADJ, Shri Atul Kumar Garg, L. ASJ/Saket Courts on 29.09.2021 further anticipatory bail applications of accused Manoj Tyagi, Satyra Priya and Surender were declined. Later on, accused Surender Partap Singh and Styra Priya approached the Hon'ble High Court for anticipatory bail and the Hon'ble High Court of Delhi issued directions on 12.10.2021 for no coercive action against them till 17.12.2021 and status report was also called. The Hon'ble Court issued that no coercive steps to be taken till NDOH i.e. 11.11.2021. Moreover a cross case vide FIR No. 223/2021, dated 26.08.2022, under section 323/341/34 IPC was also registered on the complaint of Sh. Manoj Tyagi against Naresh Kumar Sharma and his son Naitik Sharma. Shri Honey Tyagi @ Manoj Tyagi S/o Rameshwar Dayal Tyagi approached CBI authorities through his written complaint against the Enquiry 13 OA No.1067 /2023 Officer, Shri Bhoj Raj of PS Maidan Garhi that he demanded Rs.5 lacs to favour the complainant and his friends in the bail matter in case FIR No. 222/2021 dated 26.082021 under section 323/341/34 IPC, PS Maidan Garhi, Delhi and also not to attend the court during hearing for bail application. Shri Bhojraj, SI further assured the complainant and his friends that he will favour them in the investigation. The allegations mentioned in the complaint were verified by the CBI authority in the presence of independent witnesses. The allegation mentioned in the letter of complaint was found correct against SI Bhoj Raj. During verification demand of Rs. 2 lacs came to light for the above purpose on 27.10.2021 and CBI authorities arrested the appellant red handed from Saket City Walk at about 11:00 PM, while he was accepting bribe of Rs. 50,000/-, a criminal case was registered against him vide RC-DAI-2021-A-0037, under Section 7 of PC Act., 1980. The applicant (SI Shri Bhoj Raj) was placed under suspension from the date of arrest i.e. on 27.10.2021 vide office order dated 28.10.2021. A preliminary enquiry was ordered vide order dated 28.10.2021 and the same was entrusted to Sh. Vinod Narang, ACP/Sub- Div./Mehrauli, 14 OA No.1067 /2023 South Distt. Delhi.ACP/Sub-Div. / Mehrauli and he submitted his report leveling allegations against the appellant sustained without any doubt. The necessary concurrence of Spl. CP/L & O/Zone
-II, Delhi has been sought to invoke Article of 311 (2) (b) of the Constitution of India upon the appellant and after receiving concurrence of Spl. CP/L & O/Zone-II Delhi, the Disciplinary Authority dismissed the Ex. SI Bhojraj No.D-5162 (PIS No.16100169) vide order dated 29.10.2021 and his period treated as Not Spent on Duty for all intents and purposes. The appellant filed appeal before the appellate authority against the punishment of dismissal from service awarded to him and the said appeal was rejected by the Appellate Authority and hence, he has filed the present Original Application seeking the aforementioned relief(s). The respondents denied that the applicant was falsely implicated in a criminal case. They state that the applicant apprehended by the CBI on perusal of enquiry report and after considering the relevant record mentioned in the complaint and were verified by the CBI authority in presence of witnesses. The allegation mentioned in 15 OA No.1067 /2023 the letter of complaint was found correct against appellant. During verification demand of Rs. 2 lacs came to light for the above purpose on 27.10.2021 and CBI authority arrested the appellant red handed and FIR RC-DIA-2021-A-0037, under Section of PC Act. 1980 was registered against him. The respondents state that the disciplinary authority has rightly invoked the Article 311(2) (b) of the Constitution of India after due assessment of the gravity of misconduct. They further state that there is no procedural lapse and legal flaw in this case. After due consideration of facts the applicant was dismissed from service under Article 311 (2) (b) of the Constitution of India by the Disciplinary Authority and there is no violation of Article 20 to 22 of Constitution of India as pleaded by the applicant and the orders passed by the Disciplinary Authority and the Appellate Authority are self speaking, reasoned, justify and fair and there is no infirmity in it. The applicant was a member of the Delhi Police Force and was governed by the service rules applicable to him and his case was decided by the competent authority as per the rules and the Disciplinary Authority has rightly observed that 16 OA No.1067 /2023 reasonably practicable to conduct a regular departmental enquiry against delinquent police officer and the applicant is public service with criminal bent of mind and there is every possibility that no witness/complainant would come forward to depose against them in case a departmental enquiry is initiated. Under these set of compelling circumstances Article 311 (2) (b) of the Constitution of India was involved and the delinquent had acted in a most reprehensible manner, which is never expected from a member of a disciplined force and which is undoubtedly extremely prejudicial to the safety and security of the society and the case cited by the applicant is entirely different from the present case and the Appellate Authority considering the contentions of the applicant raised his appeal, but not found satisfactory and rejected vide order dated 27.02.2023.
13. The applicant has filed rejoinder to the counter affidavit filed by the respondents on 20.11.2023. The applicant has reiterated his pleadings and stand mentioned in the OA and has placed reliance on the 17 OA No.1067 /2023 following the judgments:-
(i) Neeraj Kumar vs. Delhi Police [OA No.2097/2019 decided on 01.11.2019];
(ii) Ins. Jagmohinder Singh [OA No2867 of 2019 decided on 16.10.2020];
(iii) Ins. Dharmender Singh Dangi [OA No.702 of 2019 decided on 07.01.2021];
(iv) Kripal Singh vs. GNCTD [OA No.1912 of 2015 decided on 11.03.2021]; and
(v) Tara Dutt vs. GNCT&D & Ors. [OA No.1114 of 2018 decided on 17.06.2021].
14. The applicant contends that the respondents failed to give reply to the specific averments made by the applicantwithin the body of the OA. Counter affidavit given by the respondents is repetition and do not deal with the factual and legal submission made in the body of the OA.
15. We have heard the learned counsels for the parties and have perused the pleadings available on records. Learned counsel for the applicant has submitted an additional list of judgments of the cases on which he is placing reliance. 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 18 OA No.1067 /2023 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. 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.
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16. 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 state 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 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 government service.
17. The Disciplinary Authority vide its order dated 29.10.2021 has dismissed the applicant invoking the provisions of Article of 311 (2) (b) of the Constitution of India. For facility of reference, the relevant portion of the ibid Disciplinary Authority is as follows:-
"Whereas for his misconduct SI (Exe.) Bhoi Rai, No.D/5162 has been placed under suspension from the date of arrest I.e. 27.10.2021 vide this office order No.10056-82/HAP/SD (P-IV), dated 20 OA No.1067 /2023 28.10.2021.
Whereas, for the sake of justice and as per Vigilance Circular, circulated vide endst. No.5545-645/P.Cel/Vig. dated 11.09.2007 ą P.E has been ordered vide this office order No.10055/HAP (P-II)/SD, dated 28.10.2021 and entrusted to Sh. Vinod Narang, ACP/Sub- Div./Mehrauli, South Distt. Delhi.
Whereas, Sh. Vinod Narang, ACP/Sub- Div./Mehrauli has submitted his enquiry report and concluded that on the complaint of Shri Honey Tyagi@ Manoj Tyagi R/o Rameshwar Dayal Tyagi, R/o 2/208, Varun Farms, Gaushala Road, Chattarpur, New Delhi were approached CBI Authorities through his written complaint against IO, SI Bhoi Raj of P.S Maidangarhi, that he has demanded Rs.5 lacs to favour the complainant and his friend in the bail matter of his case FIR No.0222/2021, dated 26.08.2021, u/s 232/341/306/34 IPC, P.S Maidangarhi, Delht and also not attend the court during hearing for ball application and assured the (Complainant and his friend) to favour in the Investigation.
The allegations mentioned in the complaint were verified by CBI Authority in the presence of independent witness. The allegation mentioned in the letter of complaint is found to be correct against SI Bhoj Raj. During verification demand of Rs. 2 lacs came to light for the above purpose on 27.l0.2021 and CBI authority has arrested SI Bhoj Raj No.D/5162 from Saket City Walk at about 11.00 PM. red handed vide RC-DAI-2021- A-003/, U/s o PC Act, 1980. Thẹ allegation leveled against SI Bhoj Raj, No.D/5162 sustained without any shadow of doubt.
Whereas, In view of the above, necessary concurrence of Spl.C.P/L& O/Zone-II, Delhi has been sought to Invoke Article 311(2)(b) of the Constitution of India upon SI Bhoj Raj, No.D/5162 in light of Circular No.2513- 2612/P.Cell (P.Misc.)/ Vigilance dated
18.04.2018, Spl.C.P/L&O/Zone-lI, Delhl has expressed his concurrence that of India case is fit to invoke Article 311 (2)(b) of the Constitution upon SI Bhoj Raj, No.D/5162.
21OA No.1067 /2023 Whereas, SI Bhoj Raj, No.D/5162 shows his criminal propensity and immoral attitude. He being member of disciplined force is responsible for protecting the society and citizens of this country from criminal activities, but instead of discharging his duty ethically and sincerely, he has not only tarnished the image of Delhi Police but also has rudely shaken the faith of the citizens upon the entire police force. He has acted in a most reprehensible manner, which is never expected from a member of a disciplined force and which s undoubtedly extremely prejudicial to the safety and security of the society at large.
Whereas, the involvement of SI Bhoj Raj, No.D/5162 in such a activity has eroded the faith of common people in the police force and his continuance in force is likely to cause further irreparable loss to the functioning and credibility of Delhi Police. The defaulter SI has acted in a manner highly unbecoming of a police official. Whereas, after such act of serious misconduct, if the defaulter SI Bhoj Raj, No.D/5162 is allowed to continue in the police force, it would be detrimental to public interest. The facts and circumstances of the case are such that it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulter SI.
Whereas, in the backdrop of the position explained In the foregoing paras, it is clear that SI Bhoj Rai, No. D/5162 is a public servant with a criminal bent of mind and there is every possibility that no witness/complainant would come forward to depose against him in case a departmental enquiry is initiated against him. Under these sets of compelling circumstances, Article 311 (2) (b) of Constitution of India is invoked in this case. It would be in the interest of general public and society as well as for the establishment of rule of law.
Therefore, I, BENITA MARY JAIKER, IPS, Dy. Commissioner of Police, South Distt., New Delhi do hereby DISMISS defaulter SI Bhoj Raj, No, D/5162 (PIS No.16100169) from service with 22 OA No.1067 /2023 immedlate effect under Article 311 (2) (b) of Constitution of India. His Suspension period from 27.10.2021 to the date of issue of this order is treated as period 'Not spent on duty' for all intents and purposes.
18. Aggrieved by the aforesaid impugned order dated, 29.10.2021, the applicant made an appeal on 04.04.2022. The Appellate Authority passed an order dated 27.02.2023whereby statutory appeal of the applicant was rejected; wherein the appellate authority does not consider the submissions and please raised within the body of statutory appeal and rejected on arbitrary grounds thus making the order dated 27.02.2023. Thus, making the said order bad in law. For facility of reference, it would be appropriate to mention relevant portion of Appellate-orderwhich reads as follows:-
" I have carefully gone through the appeal filed by the appellant, as well as relevant record available on file and also heard him in OR on 21.10.2022. Poinst wise reply to the pleas taken by Appellant is as follows:-
1to 14 It was established from P.E. and gist of FIR registered by ACB/CBI/Delhi against appellant, that appellant demanded bribe from the complainant and the appellant was caught red handed while accepting bribe amount of Rs. 50,000/- from complainant. At the time of arrest of appellant, during search of the car of the appellant cash amount of Rs 5,47,350/- and during search of house of the appellant huge amount of Rs.1.07 Crore was recovered in the presence of Independent witnesses. The 23 OA No.1067 /2023 disciplinary authority had rightly observed that the facts and circumstances of the case were such that it was not reasonably practicable to conduct a regular departmental enquiry against the appellant. It was clear that appellant was a public servant with criminal bent of mind and there was every possibility that no witness/complainant would have come forward to depose against him in case a departmental enquiry was initiated against him in case a departmental was initiated against him. The cases of subordinates facing serious criminal charges including murder etc. are decided on the basis of merit of the case and a uniform policy cannot be applied to all cases. The punishment is äwarded on the facts and merit of individual case, The appellant was governed by the service rules applicable to him and case was decided by the competent authority as per rules and procedure. The disciplinary authority had dismissed the appellant from service under Article 311 (2) (b) of the Constitution of India on merit of the case.
15 to 18 Each case has its own merit. After due consideration of facts and circumstance of the case, the disciplinary authority had rightly invoked Article 311(2)(b) of the Constitution of India and dismissed him from service accordingly.
19 to 35 There is no procedural lapse and legal flaw in this case. The disciplinary authority had rightly invoked Article 311(2)(b) of the Constitution of India after due assessment of gravity .of misconduct leveled upon appellant and merit of case, without conducting formal departmentał enquiry as per provision of service rules and as such there is no.
violation of circular/instructions Into the matter.
Keeping in view of all the facts and circumstances of the case, I am of the firm view that the act of the appellant attracted the provisions of Article 311 (2) (b) of Constitution of India and made the appellant unfit for police service Hence, I am not Inclined to disagree with the decision taken by the disciplinary authority. Therefore, the appeal submitted by the appellant EX.SI (Éxe.) Bhojraj Singh, No. 24 OA No.1067 /2023 D/5162 (PIS No. 16100169), is hereby rejected Let the appellant be informed accordingly."
19. 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.
20. 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 mechanical 25 OA No.1067 /2023 manner without addressing specific submissions of the applicant and merely on presumptions that the allegation against the applicant is presumed to be proved as arguments like witness might not have come forward to depose against the applicant has been cited. The Appellate Authority is simply assuming that the allegations against the applicant stand proved and this justification is good enough to invoke Article 311 (2) (b) of the Constitution of India to dismiss the applicant. The Appellate Authority did not explore in the present case that the 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 and imposed penalty of dismissal. This could be construed as a strong bias of respondents against the applicant and their disdainful approach to uphold Rule of Law.
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21. The respondents being Senior Police Officers holding high positions are required to run the administrative decision making lawfully. A serious course correction is needed. Leaving this argument here for pondering competent authority, we proceed further. 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 & anr., wherein the 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. 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.
27OA No.1067 /2023
22. 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 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 has invoked the power under Article 311(2)(b) of the Constitution of India. The reasoning recorded by the 28 OA No.1067 /2023 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 the witnesses are official witnesses 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. 29 OA No.1067 /2023
23. The applicant is a Sub Inspector in Delhi Police. It is middle rung among the subordinate officers thus it is absolutely wrong to record that applicant is in any position to influence or threaten any witness when most of the witnesses are police officer and officer of CBI. 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 Constitution of India are not tenable. As stated above, the applicant is only Sub-Inspector (exe) 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 Art. 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 30 OA No.1067 /2023 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.
24. 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 the 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 Art. 311(2)(b) of 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 dispense away with the Departmental Enquiry are just not tenable in the eyes of law and Article 311(2)(b) of the 31 OA No.1067 /2023 Constitution of India has been used as a short cut method. Admittedly in the present case, a Preliminary Enquiry was conducted through ACP/Sub-Div./ Mehrauli, 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 on the same ground. The Hon'ble Tribunal recently qua the same respondents have passed the judgments whereby the order of dismissalfrom service under Article 311(2)(b) of Constitution of India has been quashed and set aside on the ground that if PE is possible then DE is also possible.
25. There is no attempt to initiate departmental enquiry as nothing has been brought on record, subsequent to the allegation that the applicant has made any attempt to influence the witness and thus the reasonable belief is based merely on suspicion and surmises. The reasoning to dispense with the departmental enquiry cannot be based on suspicion and surmises and probability. Once the Disciplinary 32 OA No.1067 /2023 Authority records that there is a probability that complainant and witness are put on constant fear 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 citing reasons of 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 to this conclusion and to invoke Article 311(2)(b) of the Constitution of India.
26. 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 33 OA No.1067 /2023 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 away with the departmental enquiry have been cited. The cases in which preliminary enquiry is being conducted, but in absolute violation of circular dated 11.9.2007 and the Disciplinary Authority passed an order under Article 311(2)(b) of 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 OA No-2500/2006.
27. The Appellate Authority records that Preliminary Enquiry into the matter was conducted by ACP/Sub-Div./Mehrauli on 29.10.2021. 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 34 OA No.1067 /2023 preliminary enquiry but on the contrary, if 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. The applicant is placing reliance on the judgment of Hon'ble Tribunal decided on 23.4.2018 whereby the Hon'ble Tribunal after relying the judgment of Tarsem Singh of Hon'ble Apex Court this 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 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. "
28. In the present case when the P.E. is possible then even a Departmental Enquiry is also possible 35 OA No.1067 /2023 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.
29. The disciplinary authority failed 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, the Disciplinary Authority has to record reasons. The present reasoning is based on the assumption that the applicant has committed the alleged crime 36 OA No.1067 /2023 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 and invoked the power under Article 311 (2)(b) of 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 a imminent factor in deciding whether power under Article 311 (2)(b) of the Constitution of India is to be invoked or not.
30. 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 does 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, as being mentioned, are only to avoid the departmental enquiry. It is a well settled law 37 OA No.1067 /2023 that without conducting any departmental enquiry, if the finding of guilt against the applicant has been arrived at, 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 witnesses 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 Constitution of India only keeping in mind the gravity of the allegations.
31. The applicant preferred an appeal against the punishment order of dismissed from services on 29.10.2021. The Appellate Authority rejected the appeal on 27.02.2023 by an absolutely non- speaking and mechanical order. The Appellate 38 OA No.1067 /2023 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 away 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 not. The more graver the charge the opportunity to defend himself should be more.
32. 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 39 OA No.1067 /2023 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 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."40 OA No.1067 /2023
33. 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 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 41 OA No.1067 /2023 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 hadeaten 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 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."
34. In the order dated 16.04.2024 542/2023 in OA 591/2023 passed in case of Deepk vs. Govt.of NCT of Delhi & Ors of this Tribunal. The Tribunal held as under:-
42OA No.1067 /2023
" 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 Item No. 35 & 36 Court-2 OA No. 542/2023 & 591/2023 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. 25 Item No. 35 & 36 Court-2 OA No. 542/2023 & 591/2023.
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 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 43 OA No.1067 /2023 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."
35. 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.
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 44 OA No.1067 /2023 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 therespondent 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 allapplications.
10. 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."
36. In other Writ Petition (C) No.4201/2024 on 20.03.2024 in case of Commissioner of Police and anr. Vs. Jagamal Singh. The Hon'ble High Court of Delhi hasheld 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 45 OA No.1067 /2023 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."
37. 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.
38. 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 46 OA No.1067 /2023 23.04.2024 in the case of Commissioner of Police and ors. Vs. Sant Ram, the Hon'ble High Court of Delhi in para 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 W.P.(C) 5562/2024 Page 7 of 8 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 enquiry against the respondent. This course of action, in 47 OA No.1067 /2023 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'sguilt 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, W.P.(C) 5562/2024 Page 8 of 8 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 allaccompanying applications.
39. 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 48 OA No.1067 /2023 under;-
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.49 OA No.1067 /2023
40. 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 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.
50OA No.1067 /2023 This issues with the approval of Commissioner of Police, Delhi.
(Hareesh H.P) Deputy Commissioner of Police Legal Division/ PHQ, Delhi"
Relying upon the circular issued on 11-9- 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 51 OA No.1067 /2023 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) (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"52 OA No.1067 /2023
41. 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 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."53 OA No.1067 /2023
42. 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 circular dated 11.9.2007 and 13-5- 2024. 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 Court(s) and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove.
43. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 29.10.2021 (Annexure A-
1) and dated 27.02.2023 (Annexure A-2) passed bythe 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 instructions on the subject;54 OA No.1067 /2023
(iii) The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order;
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law; and
(v) There shall be no order as tocosts. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R.N. Singh) Member (A) Member (J) /mk/