Central Administrative Tribunal - Delhi
Jagmal Singh vs Commissioner Of Police on 11 October, 2023
1 O.A. No.2209/2022
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2209/2022
Orders reserved on : 06.10.2023
Orders pronounced on : 11.10.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Jagmal Singh
S/o Sh. Daya Nand,
R/o 1850, Sector 7,
Bahadurgarh, Haryana,
Pincode-124507.
(Aged about 59 years)
Group 'C'
(Dismissed Sub-Inspector)
...Applicant
(By Advocate: Shri Ajesh Luthra)
VERSUS
1. Commissioner of Police,
Delhi Police Hdqrs. (New Building),
Behind Parliament Street Police Station,
New Delhi-110001.
2. Addln. Commissioner of Police (Traffic (HQ))
Delhi Police Hdqurs, (New Building)
Behind Parliament Street Police Station,
New Delhi-110001.
...Respondents
(By Advocate: Shri Amit Yadav)
2 OA No.2209/2022
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
By filing the instant OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-
"(a) Quash and set aside the impugned order dated 11.02.2022 (Annexure A/1);
(aa) quash and set aside the impugned order dated 22.12.2022 (Annexure A-1/A)
(b) Direct the respondents to forthwith reinstate the applicant in service.
(c) accord all consequential benefits including seniority and back wages.
(d) Award costs of the proceedings in favour of the applicant.
(e) Any other relief which this Hon'ble Tribunal deems fit and proper in favour of the applicant."
2. Brief facts of the case are that the applicant joined the service of the respondents on the post of Constable (Exe.) in Delhi Police on 01.05.1982 and thereafter he had earned three promotions, i.e., Head Constable, Asstt. Sub- Inspector and Sub-Inspector and has rendered around 40 years of service. However, it is alleged that while the applicant (SI (Exe.)) was deployed at Traffic Point Mundka for regulation and prosecution duties, on 8.2.2022, he was 3 OA No.2209/2022 sitting in gray Maruti Brezza Car parked at Mundka Insustrial Area, Rohtak Road (towards Tikri Border) and other staff was standing nearby on the road. A CBI personnel team reached the above spot to apprehend the applicant in case FIR No.RC-DAI-2022-A0004 dated 8.2.2022 of CBI, ACB, Delhi, as the applicant has allegedly accepted the bribe from the CBI complainant. When CBI team asked him to come out of the said car after disclosing their identity, the applicant accelerated the vehicle and tries to run over the CBI team and one Inspector of CBI, namely, Shri Anil Kumar got injured in his right arm and elbow. A case FIR No.339 dated 8.2.2022 under Sections 186/353/332 of IPC was registered at P.S. Mundka Outer District Delhi against the applicant. Later on the applicant was arrested by the CBI team. However, on the basis of said FIR, the Disciplinary Authority by invoking the power under Article 311(2)(b) of the Constitution of India had passed the impugned order dated 11.2.2022 (Annexure A/1) dismissing the applicant from service and a statutory appeal preferred by the applicant against the said order of the Disciplinary Authority, the Appellate Authority has rejected the applicant's said appeal vide order dated 22.10.2022 4 OA No.2209/2022 (Annexure A/1A). Hence, the applicant has filed the present OA for redressal of his grievances.
3. Pursuant to the notices, the respondents have filed their counter reply opposing the claim of the applicant and prayed for dismissal of the same. The applicant has filed rejoinder besides refuting the contents of the counter reply has reiterated the averments made in the OA.
4. We have heard the learned counsels for the parties and perused the pleadings on record as well as the judgments relied upon by the learned counsels for the parties.
5. The facts and reasons for passing the impugned order dated 11.2.2022, are evident from a few paragraphs of the same, which read as under:-
"The conduct of SI (Exe.) Jagmal Singh, No. 1150/D is unbecoming of a police officer. Very serious allegations have been leveled against him. He has violated all norms of ethics and morality by indulging himself in such a crime. He has lowered the image of Police Department and goodwill of an uniformed organization. This is not acceptable from a Police Officer whose prime duty/responsibility is to protect the common citizen and safeguard the spirit of law. His criminal conduct has also rudely shaken the faith of the citizens in the police force. He has acted in a reprehensible manner which is not at all expected from a member of the disciplined force. Such a conduct is also extremely prejudicial to the personal |safety and security of. a citizen.5 OA No.2209/2022
After such a grave criminal .misconduct, if the-- defaulter SI (Exe.) Jagmal Singh, No. 1150/D is allowed to continue in the Police force, it would be detrimental to the public interest and.further tarnish the image of police force in the Society. The facts and. circumstances of the cases are such that it would not be reasonable practical to conduct a regular departmental enquiry against the defaulter SI (Exe.) Jagmal Singh, No. 1150/D. The misconduct of the accused SI (Exe.) Jagmal Singh, No. 1150/D is of a grave nature that warrants the exemplary punishment of dismissal,| in order to send a clear message to such undesirable persons and to prevent the recurrence of such crimes. Assessing totality of the facts and circumstances of the case as mentioned above, I am of the firm opinion that the acts and grave misconduct of the accused SI (Exe.) Jagmal, Singh, No.. 1150/D. attract the. provisions of Article311.(2) (b) of the Constitution of India and make him completely unfit for police service.
Therefore, I, Addl. Commissioner of Police, Traffic, (HQ), New Delhi do hereby dismiss the defaulter St (Exe.) Jagmal Singh, No. 1150/D from Delhi Police with immediate effect under Article 311 (2) (b) of Constitution of India..."
6. During the course of hearing, Shri Luthra, learned counsel appearing for the applicant, has submitted that the applicant was falsely implicated in the said case FIR in which charge-sheet has already been filed in the court of competent jurisdiction and list of witnesses produced during the course of hearing shows that most of the witnesses are officers of the Banks, DDA, Delhi Police and other institutions. He has also produced a copy of order sheet dated 1.8.2023 passed in the said case FIR to show 6 OA No.2209/2022 that witness(es) are being examined by the learned trial court as such there was no question of invoking the provisions of Article 311(2)(b) of the Constitution of India and that too even without holding a preliminary enquiry in the said matter to find out as to why regular departmental enquiry is not found possible/practicable and such action/orders of the respondents are not in consonance with the provisions of the respondents' own Circular dated 11.9.2007. He has further argued that sole reason for dispensing with the inquiry is that very serious allegations have been levelled against him and he has violated all norms of ethics and morality by indulging himself in such a crime, as noted above. However, the disciplinary authority had never tried to hold a departmental enquiry on the said allegations/misconduct levelled against the applicant as mentioned in the aforesaid impugned order on the basis of which the applicant was dismissed by invoking the provisions of Article 311(2)(b) of the Constitution of India. It is done without recording any reason as to how the holding of departmental inquiry is not practicably possible, which is the condition precedent for invoking the powers under the said Article as held by the Hon'ble Supreme Court in the case of Union of India 7 OA No.2209/2022 v. Tulsi Ram Patel, reported in AIR 1985 SC 1416 and further in the case of Jaswant Singh vs. State of Punjab, reported in (1991) 1 SCC 362, has held that ".....the decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of Law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer." 6.1 Shri Luthra, learned counsel for the applicant, has also submitted that a plain reading of the impugned appellate authority's order dated 22.12.2022, it is evident that the appellate authority has went on to say that a preliminary enquiry, as referred to the respondents' circular dated 11.9.2007 does not connote a formal preliminary enquiry and the same means personal satisfaction of the Disciplinary Authority. He has further submitted that the appellate authority has attempted to supplement the disciplinary authority's aforesaid order by adding distinct element of threat as well as intimidation, 8 OA No.2209/2022 which have not been spelled out in the order of the disciplinary authority.
6.2 Shri Luthra has also submitted that the impugned orders are in clear violation of the respondents' own circulars dated 28.12.1998 and 11.9.2007, which categorically provides that the powers under Article 311 (2)(b) is not to be used as a short-cut and instructions contained in the said circular has to be strictly followed, which has not been done by the respondents in the instant case, as there is no proof on record to say that the applicant is in a position to influence the witnesses and further there is no reason given by the respondents that when the same witnesses can appear before the learned Trial Court to depose against the applicant and as to why they will not appear in the departmental inquiry. Rather the disciplinary and the appellate authorities have passed the impugned orders without application of mind to the conditions as contained in the aforesaid circulars. 6.3 Lastly Shri Luthra, learned counsel for the applicant, has submitted that the issue involved in the present case is squarely covered by the decision of this Tribunal in the case of Ct. Sumit Sharma vs. Govt. of NCT of Delhi and 9 OA No.2209/2022 others (OA 1383/2020 and a batch decided on 10.2.2022) and also subsequent decisions of this Tribunal on similar issue in OA Nos.2097/2019 (Neeraj Kumar vs. Commissioner of Police decided on 1.11.2019), 2867/2019 (Jasmohinder Singh vs. Commissioner of Police decided on 16.10.2020), 702/2019 (Dharmender Singh Dangi vs. Commissioner of Police decided on 7.1.2021) and 1912/2015 (Kripal Singh vs. Commissioner of Police decided on 11.3.202)1etc.
7. Shri Amit Yadav, learned counsel appearing for the respondents with the assistance of the counter reply has submitted that from the contents of the impugned order of the disciplinary authority, as quoted above, it is evident and prima facie establishes the applicant's criminal mind and conduct, further buttressed by his arrest by a specialized investigation agency, i.e., CBI, holding of the departmental proceedings will be inimical to speedy justice due to possible intimidation and threats to those who may depose against him during investigation and trial and possible affiliation of material witnesses to the accused, his continuation in the force may hamper the integrity of a disciplined force and in view of the fact that very serious 10 OA No.2209/2022 allegations have been levelled against him, it may not be practically feasible to conduct a speedy departmental inquiry in a reasonable time frame. Hence, the orders passed by the disciplinary and appellate authorities are apt in law and no interference in the matter is warranted from this Tribunal.
8. In rebuttal to the submissions of learned counsel for the respondents, Shri Luthra, learned counsel for the applicant has reiterated his contentions as noted above.
9. We have considered the submissions of the learned counsels for the parties and have carefully gone through the pleading on record as well as the case law cited by the learned counsel for the applicant.
10. After considering the relevant material on the subject, including circulars dated 28.12.1998 and 11.9.2007, and the case law, this Tribunal has considered the similar issue while deciding a batch of cases, OA No.1383/2020 and others, titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others, etc., vide common Order/Judgment dated 10.2.2022, paras 31, 32 and 45 to 47 read as under:-
11 OA No.2209/2022
"31. It is not that the issue of invoking the provisions of Article 311(2)(b) of the Constitution of India came for consideration before the Hon'ble Apex Court in the aforesaid cases or any other cases before other Court(s) and/or Tribunal(s) only but the same had attracted the attention of the respondents themselves as well and the respondents have themselves emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) of the Constitution of India lightly but only in those cases where it is not reasonably practicable to hold the inquiry. The same is evident from the circular dated 21.12.1993 (Annexure A/10 to OA 467/2020) of the respondents, which reads as under:-
"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 coming 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."
32. The issue regarding application of the provisions of Article 311(2)(b) of the Constitution of India came before the Hon'ble Apex Court in various cases and the law stands settled by the Apex Court in the Constitution Bench decision in 12 OA No.2209/2022 Tulsiram Patel (supra), the similar issue came before the Hon'ble Apex Court, the Hon'ble High Court(s) and the Tribunal(s) in many cases thereafter and after considering the issue at length, this Tribunal had made observation as in para 20 of the Order/Judgment dated 5.6.2007 in the case of Suresh Kumar (supra), noted in paragraph 16 hereinabove. The issue of termination/dismissal of the services of various employees attracted the attention of the respondents themselves. The respondents, after considering the provisions of Article 311(2)(b) of the Constitution of India and the judgment of the Hon'ble Apex Court in the case of Tulsiram Patel (supra) and the Order(s)/Judgment(s) passed by this Tribunal have issued another circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not practicable to hold an inquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and the disciplinary authority has no option but to resort to Article 311(2)(b) of the Constitution of India. The said circular dated 11.9.2007 reads as under:-
"CIRCULAR No. /2007 An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases and only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry. 13 OA No.2209/2022
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""
"45. In the cases in hand, it is evident that in most of the cases preliminary inquiry had admittedly been done and regular enquiry had 14 OA No.2209/2022 been dispensed with on the ground of possibility of witnesses likely to be unduly harassed or pressurized by the delinquent(s). 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 offence(s) by the applicant(s) had been arrived merely on the basis of the preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made to summon the witness(es) to lead the evidence against the applicant(s) or anything was found that on regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort 15 OA No.2209/2022 was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) to lead evidence against the applicant(s). Rather the respondents have themselves filed the final challan(s) with a list of witness(es) before the concerned learned Court(s) and in a few cases, the accused(s) had been acquitted as well. In a few cases, witnesses have been examined before the concerned learned Court(s). Moreover, co- delinquent in the cases of Neeraj Kumar (supra) and Ramesh Kumar (supra), the similar impugned orders have been set aside by the Tribunal and the orders of the Tribunal have also attained finality.
46. It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law 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."16 OA No.2209/2022
11. 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 in which one of us is the authority of the order/judgment while deciding the case of Ct. Sumit Sharma (supra).
12. Keeping in view the above, we have carefully perused the impugned order(s), we find that nothing has been recorded in the impugned order(s) or shown to us that the applicant had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). From the impugned orders, it is evidently clear that neither any effort was made by them to conduct a preliminary 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 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. Further from list of witnesses produced during the course of hearing, it is apparent that most of the witnesses are officers of the Banks, DDA, Delhi Police 17 OA No.2209/2022 and other institutions and from a copy of order sheet dated 1.8.2023 passed in the said case FIR, copy produced, to show that witness(es) are examined before the learned trial court. 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.
13. 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. 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, a few of which are referred to hereinabove.
14. 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 Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA 18 OA No.2209/2022 deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 11.2.2022 (Annexure A/1) and dated 22.12.2022 (Annexure A/1A) 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.
15. However, in the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/