Central Administrative Tribunal - Delhi
Ashwani Kumar vs Comm. Of Police on 7 October, 2016
Central Administrative Tribunal
Principal Bench
New Delhi
O.A.No.217/2016
Order Reserved on: 20.09.2016
Order pronounced on 07.10.2016
Hon'ble Shri V. Ajay Kumar, Member (J)
Hon'ble Shri V. N. Gaur, Member (A)
1. Ashwani Kumar, Age 53 years
S/o Shri Sher Singh
R/o H.No.10-A, J-Block
Arya Samaj Road
Uttam Nagar, New Delhi.
2. Rajesh Kumar, age 41 years
S/o Shri Sube Singh
R/o Village Shahpur
Post Office Nagal Tejoo
PS Bawal, Distt. Rewari
Haryana.
3. Sanjay, age 29 years
S/o Shri Mahender Singh
R/o Village & Post Office Ramrai
Police Station Jind
Distt. Jind (Haryana).
4. Krishan Dagar, Age 44 years
S/o Shri Balbir Singh
R/o Village & Post Office Malik Pur
Police Station Jaffar Pur Kalan
South-West Distt., New Delhi - 110 073.
5. Yogender, age 45 years
S/o Shri Lala Ram
O.A.No.217/2016
2
R/o Village & Post Office Mundi
Police Station Khol, Tehsil Rewari
Distt. Rewari (Haryana).
6. Padam Singh, age 43 years
S/o Shri Prabhu Ram
C/o Sh. Lalit Kumar
R/o H.No.RZ-496/1
Gali No.2, Raj Nagar-1
Palam Colony, New Delhi-45. ... Applicants
(By Advocate: Shri Ajesh Luthra)
Versus
1. Commissioner of Police
PHQ MSO Building
IP Estate
New Delhi.
2. Additional Commissioner of Police
Armed Police Delhi
Room No.1, Admn. Block
New Police Line, Kingsway Camp
New Delhi - 110 009.
3. Deputy Commissioner of Police
III Bn. DAP, Vikas Puri
New Delhi. ... Respondents
(By Advocate: Shri Anmol Pandita for Shri Vijay Pandita)
ORDER
By V. Ajay Kumar, Member (J):
Questioning the legality and validity of the Annexure A2, dated 31.08.2015, common removal order issued by invoking the second proviso to Article 311(2) of the Constitution of India, and the appellate O.A.No.217/2016 3 order Annexure A1 dated 13.11.2015 thereto, the OA has been filed by the applicants, who are six in number.
2. The 1st Applicant is an ASI (Executive) and the 2nd Applicant is a Head Constable and the remaining Applicants are Constable (Executive), in the Outstation Command of respondent-Delhi Police. The 3rd Respondent-DCP, vide Annexure A3 (Common Order) dated 28.08.2015 placed all the applicants under suspension on the allegation that they have provided undue facility to Under Trial Prisoner (in short, UTP) Manoj Kumar Bakkarwala during production duty in Agra (U.P.).
3. Again the 3rd Respondent-DCP vide the impugned Annexure A2 dated 31.08.2015 has removed all the applicants from service under Article 311(2)(b) of the Constitution of India. The said common order of removal reads, as under:
"Whereas, on 27.08.2015, an outstation command, comprising 1) ASI Ashwani Kumar, No.505/Crime (PIS No.28850788), 2) HC Rajesh Kumar, No.7319/DAP (PIS No.28961011), 3) Const. Sanjay, No.7202/DAP (PIS No.28080491), 4) Const. Shri Krishan, No.2218/DAP (PIS No.29101499), 5) Const. Yogender, No.7331/DAP (PIS No.28902769) and 6) Const. Padam, No.6910/DAP (PIS No.28121594) was detailed to produce High Risk UTP Manoj Bakarwala s/o Narayan before the Hon'ble Court in Agra (U.P.). After proper briefing, the said Escort Guard departed to Central Jail from where they took High Risk UTP Manoj Bakarwala and proceeded to Agra (UP) by train. A message was also flashed to SSP/Agra for providing escort guard & vehicle from Agra Railway Junction to Hon'ble Court and back.
And whereas, in the evening of 27.08.2015, a video clipping goes in air through various TV channels wherein all the above mentioned members are seen in a shoe shop in Agra (UP). The members of Escort Guard are seen on TV, facilitating the High Risk UTP for shopping in a shoe shop in Agra (UP) ignoring all the standing instructions contained in Standing Order No.52 as well as protocol. They were seen embarrassed and speechless when confronted by media persons in the shop. Their malafide in this act stood proved and their omission & commission has not only sent a wrong message amongst the public as well as other sincere O.A.No.217/2016 4 & dedicated personnel of the force. This is a gross violation of all rules & regulations, and a conduct unbecoming of police personnel.
And whereas, this act of theirs exposed the High Risk UTP to grave dangers from his rival gangs and also provided an opportunity for such a dreaded criminal involved in 73 cases to escape, had he so wanted. The Escort Guard was supposed to be extra cautious during his production and not to provide him with any sort of illegal facility. They have deliberately ignored all the norms and standing instructions on the subject during the production duty of aforesaid UTP.
And whereas, the above act on the part of members of Escort Guard has not only tarnished the image of the entire police force but also set a bad example for other sincere and dedicated members of the Delhi Police force. Their act has created a grave sense of insecurity amongst the general public viz - a - viz their implicit faith & trust in uniformed police personnel. The police officers are public servant and are bound to perform their duty within the ambit of law as well as standing instructions. The overall acts of the above named members of Escort Guard would not only destroy the faith of the people but also lower the dignity of whole police force.
And whereas, all the members of Escort Guard i.e. ASI (Exe.) Ashwani Kumar, No.505/Crime, HC (Exe) Rajesh Kumar, No.7319/DAP, Const. Sanjay, No.7202/DAP, Const. Krishan, No.2218/DAP, Const. Yogender, No.7331/DAP and Const. Padam, No.6910/DAP were placed under suspension vide DD No.33-A dated 27.08.2015 read with order No.9467-508/HAP (P-II)/III Bn. DAP dated 28.08.2015 for the said misconduct and are running under suspension.
And whereas, prima facie holding an enquiry in this case would only be an advantage to the members of the Escort Guard as the probability to manage the evidence and witnesses in their favour at later stage also cannot be ruled out. Moreover, in such cases where video clippings of illegal activities of police personnel is made, the media also do not support the misdeanour of the police officers when an enquiry is ordered/initiated. Therefore, it would not be reasonably practicable to hold a regular departmental enquiry against the defaulters as it is believed that witnesses either will not join the enquiry or they will not depose against the police officials as well as disclosed the identity of High Risk UTP Manoj Bakarwala, a hard core notorious criminal, who has a history of involvement in 73 criminal cases.
Hence, in view the above reasons, no fruitful results would come out if any regular enquiry is conducted. Also, prima facie the retention of the defaulters in police force is totally undesirable keeping in view of their misdemeanour and they deserve deterrent action which could send a message to all the members of force to be remain more alert and vigilant during the performance of their duties within the ambit of law and standing instructions on the subject. Therefore, I, S.K.Tewari, Deputy Commissioner of Police, III Bn. DAP, Delhi, being competent authority as well as with the prior consent/approval of Senior Special Commissioner of Police, Administration, Delhi, hereby remove ASI (Exe.) Ashwani Kumar, No.505/Crime (PIS No.28850788), HC (Exe) Rajesh Kumar, No.7319/DAP (PIS No.28961011), Const. Sanjay, No.7202/DAP (PIS No.28080491), Const. Krishan, No.2218/DAP (PIS No.29101499), Const. Yogender, No.7331/DAP (PIS No.28902769) and Const. Padam, No.6910/DAP (PIS No.28121594) from Delhi Police force under Article-311 (2)(b) of Constitution of India with O.A.No.217/2016 5 immediate effect. There suspension period from 27.08.2015 to the date of issue of this order is also decided as period "not spent on duty", which shall not be regularized in any manner.
They will deposit all the govt. belongings i.e. Identity Card, CGHS Card, General Store/Clothing articles etc with respective store/branches of this Battalion forthwith. ..... "
4. The appeals preferred by the applicants vide Annexure A4 (Colly.) were rejected by the 2nd Respondent-Appellate Authority, vide the impugned Annexure A1 dated 13.11.2015.
5. Heard Shri Ajesh Luthra, the learned counsel for the applicants and Shri Anmol Pandita and Shri Vijay Pandita, the learned counsel for the respondents, and perused the pleadings on record.
6. Article 311 of the Constitution of India reads as under:
"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry."O.A.No.217/2016 6
7. The learned counsel appearing for the applicants, inter-alia, contended that the impugned removal orders, issued under Article 311 (2)(b) of the Constitution of India, are illegal, arbitrary and violative of the Article 311(2)(b) itself. It is further submitted that the reasons mentioned for dispensing with the inquiry are baseless and do not satisfy the requirements of Article 311(2)(b).
8. The learned counsel for the applicants in support of his submissions, placed reliance on the following decisions:
a) Chief Security Officer & Others v. Singasan Rabi Das, (1991) 1 SCC 729.
b) MCD v. S.L.Meena, WP(C) No.9300/2009 and batch, decided by the Hon'ble High Court of Delhi on 09.09.2010.
c) Government of NCT of Delhi v. Ex. ASI Surinder Kumar, WP(C) No.1758/2008, decided by the Hon'ble High Court of Delhi on 24.04.2008.
d) Jagdish v. Union of India & Ors., OA No.1515/2001, decided on 07.02.2003 (Full Bench of the Central Administrative Tribunal, Principal Bench).
e) Constable Jagdish Kumar v. Government of NCT of Delhi & Others, OA No.2353/2006, decided on 05.10.2007, by the Principal Bench of the CAT.
f) A.K.Jain v. Govt. of NCT of Delhi & Anr., OA 2546/2006, and batch, decided on 31.08.2009 by the Full Bench of the Principal Bench of the Central Administrative Tribunal.
9. Per contra, the learned counsel for the respondents, inter-alia, would submit that the charges against the applicants were proved in view of the recording and telecast of the entire episode by TV Channels and it is highly unlikely that witnesses either may not join the inquiry or they will not depose against the applicants as they are police officials and also in view of the involvement of the notorious UTP, who O.A.No.217/2016 7 has a history of involvement in 73 Criminal Cases, and accordingly having satisfied that the requirements of invoking Article 311(2)(b) of the Constitution of India are satisfied, the respondents rightly removed the applicants from service by dispensing with the inquiry.
10. The learned counsel for the respondents to buttress his submissions placed reliance on the following decisions:
a) Union Territory, Chandigarh & Ors. v. Mohinder Singh, (1997) 3 SCC 68.
b) Satyavir Singh and Others v. Union of India and Others, AIR 1986 SC 555.
c) Parveen Kumar v. Commissioner of Police & Others, WP (C) No. 2295 of 2007, decided on 13.07.2007 by Hon'ble High Court of Delhi.
d) Ex. Ct. Jasminder Singh v. Union of India & Anr., WP(C) No.2087/2001, decided on 12.10.2009 of the Hon'ble High Court of Delhi.
e) Balkar Singh v. Union of India & Ors, WP(C) No.1191/2015, decided on 07.09.2016 by the Hon'ble High Court of Delhi.
11. In Singasan Rabi Das (supra), it was alleged that while he was on duty in the Railway Yard, he allowed 22 outsiders to carry the stolen Railway material after taking Rs.1 each from them. When the respondents removed him from service, invoking powers under Rule 44 to 46 of the Railway Protection Force, 1959, by dispensing with the inquiry, by stating that "it is not considered feasible or desirable to procure the witnesses of the security/other railway employees since this will expose them and make them ineffective for future and these witnesses, if asked to appear at a confronted enquiry are likely to O.A.No.217/2016 8 suffer personal humiliation and insults thereafter or even their family members may become targets of acts of violence", the Hon'ble Apex Court while dismissing the appeal held as under:
5. ......... We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. ................."
12. In S.L.Meena & batch (supra), the Hon'ble High Court of Delhi, in a Public Interest Litigation case titled as Kalyan Sanstha Social Welfare Organization v. Union of India & Others, while observing that the officers of MCD, its Engineers are hand in glove with those indulging in unauthorized construction and that without their active or passive connivance, it was not possible for such mushrooming of unauthorized constructions in the Capital of this country, directed the MCD to initiate major penalty proceedings against all such persons who are found guilty of having abetted and connived with those who indulged in unauthorized construction. In pursuance of the said direction, the MCD dismissed S.L.Meena and Others by dispensing with the inquiry by stating that "considering the sensitiveness of the charge, the public interest and the material available on record and lastly that holding of a full-fledged inquiry would lead to unfair results". When this Tribunal set aside the dismissal orders, the MCD filed Writ Petitions and the Hon'ble High Court while upholding the decision of this Tribunal observed as under:O.A.No.217/2016 9
"41. We are satisfied that the reasons for dispensing with the enquiry, as mentioned above, are wholly irrelevant and unjustified. What was sensitive about the charges on which the respondent may have been tried is not explained either in the impugned orders or in the counter reply filed before the Tribunal or in the submissions made during the course of arguments. The issue of unauthorized construction may be sensitive, but the issue of holding an enquiry in case of an official who is alleged to have not checked or taken measures to demolish illegal constructions, in our considered view, cannot be stated to be sensitive at all. Once again, public interest may be with regard to demolition of illegal constructions, but there was no public interest involved in proceeding against individuals.
42. At this stage we would take note of the observations made by the Tribunal in para 24 of the impugned order where the general principles and conditions for the application of Article 311 (2)(b) have been distilled from various Judgments of the Apex Court and we agree with the same. They are as follows:
i)reasons for dispensing with the regular departmental enquiry must be established by holding that it is `not reasonably practicable to do so and reasons for this must be recorded in writing;
ii) disciplinary enquiry should not be dispensed with lightly or arbitrarily or out of ulterior motive;
iii) disciplinary enquiry should not be dispensed with to avoid the holding of an enquiry or because the departments case against the government servant is weak and must fail;
iv) the reason for dispensing with enquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of second proviso;
(v) the authority is obliged to show that his satisfaction is based on objective facts. The decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority;
(vi) the subjective satisfaction must be fortified by independent material to justify dispensing with the enquiry envisaged by Article 311 (2);
(vii) recourse to Article 311 (2) (b) can be taken even after enquiry has been started;
(viii) the gravity of offence is not a ground for dispensing with regular departmental enquiry and invoking Article 311 (2) (b);
(ix) courts can interfere with such orders on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised, notwithstanding clause (3) of Article 311;
(x) in examining the relevance of reasons, the court will consider the situation, which led the disciplinary authority to conclude that it was not reasonably practicable to hold the enquiry;
(xi) court should examine whether the reasons are relevant and in order to do that the court must put itself in place of O.A.No.217/2016 10 the disciplinary authority and consider what in the then prevailing situation a reasonable person acting reasonably would have done. Where two views are possible, the court will decline to interfere; 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 whim or caprice of the concerned officer.
(xii) Subjective satisfaction recorded in the order has to be fortified by any independent material to justify the dispensing with the enquiry envisaged by Article 311 (2) of the Constitution; and that the appellate authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by the concerned officer in the appeal.
43. The three conditions which are available for invoking powers vested under Section 311 (2)(b) which may permit dispensation of regular departmental enquiry are: firstly, where the person concerned has been convicted of a criminal charge which is not the case before us. The second exception is where the authority is satisfied for some reason to be recorded by that authority in writing it is not reasonably practical to hold such enquiry which seems to be the tenor of the order passed by the petitioners. The third exception is available in those cases where the President or the Governor is satisfied that in the interest of security of the State it is not expedient to hold such an enquiry. This is also not the case of the petitioners in this case."
13. In Ex. ASI Surinder Kumar (supra), a sting operation was telecasted on NDTV on 07.02.2006 in which the respondent was shown demanding and negotiating amount of bribe with one Mr. Anand, and thereafter an interview of Mr. Anand and his family members was telecasted in which he levelled allegations of harassment against the respondent. Basing on the same when the disciplinary authority dismissed the respondent under Article 311(2)(b) without holding any departmental inquiry, the Hon'ble High Court, while upholding the decision of this Tribunal, held as under:
"We agree with the findings of the learned Tribunal that there were no grounds for the authority to hold that a regular departmental enquiry was not reasonably practicable. In our opinion, it is reasonably practicable to conduct the departmental enquiry in the present case of sting operation. The department could have proved the charge against the respondent by examining the witnesses from NDTV who carried out the sting operation. We are further of the view that conducting of the departmental enquiry in sting operation is all the more necessary in order to rule out the possibility of any motivated action in sting operation. Whether such O.A.No.217/2016 11 a sting operation was genuine or not has to be proved by cogent evidence and for this, it is not difficult to produce the material witnesses."
14. In A. K. Jain and batch (supra), the News Channel Aaj Tak conducted two sting operations, one at the Tihar Central Jail, and the other at the Department of Trade and Taxes, Govt. of NCTD, wherein it was shown that the applicants were accepting bribe and basing on the same, the applicants were removed from service under Article 311(2)(b) by dispensing with the inquiry, by stating that the TV Channel Aaj Tak informed that the Company does not allow any of its personnel, including reporters, journalists, etc., to join investigation of any kind and hence, it is not reasonably practicable to hold any departmental inquiry and without the active assistance of the Aaj Tak in the matter of conducting inquiry, no meaningful inquiry could have been held. A Full Bench of this Tribunal, while answering the reference, whether the view of a Division Bench in OA No.778/2006 or the Division Bench in OA No.2884/2005 and batch, is correct, approved the view in OA No.778/2006, wherein the order issued under Article 311(2)(b) was set aside.
15. Constable Jagdish Kumar (supra), pertains to a case where a detailed inquiry was conducted and after following due procedure appropriate disciplinary and appellate orders were passed. Hence, the same has no relevance to the present case.
16. In Jagdish (supra), when the applicant was dismissed under Article 311(2)(b) by dispensing with the inquiry by stating that it is not O.A.No.217/2016 12 reasonably practicable, because it is not uncommon in such cases to find the complainants and witnesses turning hostile due to fear of reprisals and a lot of courage is required, to depose against an ordinary criminal and much more guts have to be shown to depose against a criminal in the robes of a police man who would loose their job on their statements and it will be too much to expect from an ordinary citizen to show this much of courage. A Full Bench of this Tribunal while quashing the order under Article 311(2)(b) observed as under:
"13. When such are the facts, can it be stated that the ingredients of Article 311(2)(b) of the Constitution would be satisfied? In our considered opinion, the answer would be in the negative. The heinous nature of the offence is not the tilting factor. The disciplinary authority had recorded the reasons but once the reasons are scrutinised, they did not come up to the mark. It is not a case where the enquiry was not practicable. Merely because if the complainant and other witnesses had not supported the prosecution version in the court necessarily is not a ground to conclude that the departmental enquiry is not practicable. The merit or the conclusion thereto is not to be looked into at the threshold. The heinous nature of the finding through could be considered but is not the sole factor. Consequently, the impugned orders in the peculiar circumstances cannot be sustained because it was practicable to hold the enquiry more so when there is little for us to conclude that there is no other material to state otherwise."
17. In Mohinder Singh (supra), the respondent, a Sub Inspector of Police, was dismissed from service under Article 311(2)(b), by dispensing with the inquiry, by stating that a report submitted by Superintendent of Police proved the nefarious activities and misdeeds of the respondent and hence, witnesses cannot come forward freely to depose against him in a regular departmental inquiry. It was held as under:
"5. Clause (3) of Article 311, it may be noticed, declares that where a question arises whether it is reasonably practicable to hold an inquiry as contemplated by clause (2), the decision of O.A.No.217/2016 13 the authority empowered to dismiss such person shall be final on that question. The Tribunal has not referred to clause (3) at all in its order. We are not suggesting that because of clause (3), the Court or the Tribunal should completely shut its eyes.
Nor are we suggesting that in every case the Court should blindly accept the recital in terms of the said proviso contained in the order of dismissal. Be that as it may, without going into the question of extent and scope of judicial review in such a matter, we may look to the facts of this case. The Superintendent of Police, Intelligence, has reported that the respondent "is a terror in the area" and, more important, in his very presence, the respondent "intimidated the complainant Shri Ranjit Singh who appeared to be visibly terrified of this Sub-Inspector". It is also reported that the other persons who were arrested with Ranjit Singh, and who were present there, immediately left his office terrified by the threats held out by the respondent. In such a situation - and keeping in view that all this was happening in the year 1991, in the State of Punjab - the Senior Superintendent of Police cannot be said to be not justified in holding that it is not reasonably practicable to hold an inquiry against the respondent."
18. In Satyavir Singh (supra), the appellants who were employed in the Research and Analysis wing, Cabinet Secretariat, Government of India, were dismissed from service under Article 311(2)(b) read with Rule 19 of CCS (CCA) Rules, 1965, without serving any Chargesheet and without holding any inquiry. When strict security measures were introduced in the office building where the appellants were working, a number of staff members collected in the galarries protesting against the said security regulations and demanded its immediate withdrawal, and in that process slogans were shouted and employees misbehaved with the senior officers and large scale unrest was prevailed and senior officers could be rescued only after the intervention of the police and 31 agitators were arrested and were suspended and criminal cases were registered against them. Even thereafter, the unrest went on. Ultimately, the appellants were dismissed under Article 311(2)(b) read with Rule 19 of the CCS (CCA) Rules, by stating that due to the practices of coercion, intimidation and such like threats and postures adopted by the appellants the atmosphere is so tense and abnormal O.A.No.217/2016 14 that no witness will cooperate with any proceedings and hence, it is not reasonably practicable to hold any inquiry. It was observed as under:
"15. Though several. contentions were raised in the said writ petition, in view of the judgment in Tulsiram Patel's case (AIR 1985 SC 1416) the only contention taken at the hearing of these two Appeals was that the said orders of dismissal were passed mala fide and the reasons given therein for dispensing with the inquiry were not true and that an inquiry was reasonably practicable. Several points were urged in support of this contention.
16. The first point was that the orders of suspension showed that a disciplinary inquiry was in fact contemplated and, if so, nothing had happened between the date of the orders of suspension and the date of the orders of dismissal to come to the conclusion that the inquiry was not reasonably practicable. Each order of suspension stated that the concerned employee was being suspended in the exercise of the powers conferred by R. 10(1) of the said Rules because a disciplinary proceeding against him under R. 14 of the said Rules contemplated. Cl. (a) of R. 10(1) confers power upon a disciplinary authority to place the government servant under suspension where a disciplinary proceeding against him is contemplated or is pending. Rule 14 prescribes the procedure for imposing major penalties. One of the major penalties set out in R. 11 is the penalty of dismissal from service. It is thus clear that at the date. of the orders of suspension disciplinary proceedings against the Appellants was in contemplation. This, however, does not mean that the situation will continue to be the same and that at no time thereafter will the holding of the inquiry become "not reasonably practicable". As pointed out in Tulsiram Patel's case, it is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated, because a situation which renders the holding of an inquiry not reasonably practicable can come into being even during the course of an inquiry. The affidavits filed in the High Court clearly show that the situation had so changed after the orders of suspension were issued against the Appellants that it was not reasonably practicable to hold any inquiry against the Appellants. The all-India pen-down strike was spreading. More and more centres in India were joining in the said strike. The position was fast deteriorating. Employees were being instigated into further acts of indiscipline and insubordination and loyal employees and senior, officers were being intimidated. Meetings and demonstrations were regularly being held within the office premises and their precincts and there was no possibility of any witness coming forward to give evidence against the Appellants who were said to have taken a leading part in this agitation. It is also pertinent to note that when the first batch of dismissal orders was served upon some of the Appellants on December 8, 1980, the pen- down strike was called off on December 9, 1980. In such a- situation as was then prevailing, prompt and urgent action was required to bring the situation under control. As pointed out in Tulsiram Patel's ease (AIR 1985 SC 1416), sometimes not taking prompt action may result in the trouble spreading and the situation worsening and at times becoming uncontrollable, and may at times be also construed by the trouble-makers and agitators as a sign of weakness on the part of the authorites O.A.No.217/2016 15 and encourage them to step up the tempo of their activities or agitation. The affidavits filed in the High Court clearly show that this is exactly what happened when the suspension orders were issued and that what was required was prompt and urgent action against those who were considered to be the ring leaders and that once such action was taken the situation improved and started becoming normal.
xx xx x xxx
21. The point which was next urged in support of the contention that the impugned orders were passed mala fide was that even though co-workers may not have been available as witnesses, there were policemen and police officers posted inside and outside the building and they were available to give evidence and that superior officers were also available to give evidence. The crucial and material evidence against the Appellants would be that of their co-workers for these co-workers were directly concerned in and were eyewitnesses to the various incidents. Where the disciplinary authority feels that crucial and material evidence will not be available in an inquiry because the witnesses who could give such evidence are intimidated and would not come forward and the only evidence which would be available, namely, in this case, of policemen, police officers and senior officers, would only be peripheral and cannot relate to all the charges and that, therefore, leading only such evidence may be assailed in a Court of law as being a mere farce of an inquiry and a deliberate attempt to keep back material witnesses, the disciplinary authority would be justified in coming to the conclusion that an inquiry is not reasonably practicable. The affidavit filed by the Joint Director, Research and Analysis Wing, Cabinet Secretariat, Hari Narain Kak, who had passed the impugned orders, sets out in detail the various acts of intimidation, violence and incitement committed by each of the Appellants. Copies of the written reasons for dispensing with the inquiry in the case of the Appellants have also been annexed to the said affidavit. It is clear from a perusal of the said affidavit and its annexures that the police officers, policemen and senior officers could not have possibly given evidence with respect to all these acts. The said affidavit further states that the senior officers were also intimidated and were threatened with dire consequences if they gave evidence. Further, grievances were made against the senior officers of the RAW in the said charter of demands submitted by the said Association and the evidence of senior officers would have been attacked as being biased and partisan. There is thus no substance in this point also.
xxx x x x x x
23. We are, therefore, of the opinion that Cl. (b) of the second proviso to Art. 311(2) and Rule 19 of the Central Civil Services (Classification Control and Appeal) Rule 1965, were properly applied to the case of each of the Appellants and the impugned orders of dismissal were validly passed against them."
19. In Ex. Ct. Jasminder Singh (supra), the Petitioner, a Police Constable, was dismissed under Article 311(2)(b), by dispensing with the inquiry, and by stating as under:
O.A.No.217/201616
"These instances clearly indicates the association of Constable Jasminder Singh with Bhoori gang and others. Constables Jasminder Singh who is a Policeman should have informed the concerned Police Station about the involvement of Bhoori and others in the heinous offences. Instead of doing his duty he assisted the criminals. The above information is revealed during the interrogation of various persons mainly the members of the Bhoori gang. None of these criminals are going to depose against the Constable Jasminder Singh if a departmental enquiry is conducted against him. In fact on the contrary continuation of Constable Jasminder Singh in the police force would be beneficial to Bhoori and others and therefore in no circumstances they would depose anything against Constable Jasminder Singh. Hence it is not practicably possible to conduct a regular departmental enquiry against him."
The Hon'ble High Court, after considering the various case law on the subject and the facts involved therein, upheld the decision of the authorities.
20. In Balkar Singh (supra), the Petitioner, a Constable in CISF, was dismissed from service by dispensing with the inquiry, invoking Article 311(2)(b) of the Constitution of India, on the ground that the petitioner has been in contact on face book with an agent of Pakisthan and furnished information regarding CISF Units in Rajasthan and the details of his colleagues putting the security of the country in risk and in the said circumstances, no regular inquiry could be held against the petitioner and at the same time, his continuance is detrimental to public interest. The Hon'ble High Court, after considering various decisions of the Hon'ble Supreme Court and of the Delhi High Court, with reference to the facts of the case, held as under:
"19. Having said so, from the perusal of the aforesaid reasoning and noting the allegation against the petitioner of divulging information with regard to CISF Units and his colleagues, is surely an aspect, which is detrimental to the security interest of the organization, moreso, when the person to which the information has been divulged, is an under cover agent of a hostile foreign country and such person to whom the information divulged, is an important witness, who cannot be produced in the disciplinary proceedings. The plea of Ms. Palli that the information divulged can be obtained from the Facebook Inc. is also not sustainable, when such company is O.A.No.217/2016 17 based abroad. In any case, such is not the case of the petitioner also in his representation made to the Director General of the CISF. It is not a case where there was no material before the competent authority while dispensing with the inquiry. There was material in the form of a statement of the petitioner himself and the information given by the Sister Intelligence Agency and on analyzing the same, if the competent authority concludes that in the scenario, it is not possible to hold an inquiry, this Court is of the view that the same cannot be faulted.
20. This we say, because in examining the relevancy of the reasoning given for dispensing with the inquiry, the Court will consider the circumstances, which according to the Disciplinary Authority, made it come to the conclusion that it was not reasonably practicable to hold the inquiry. In the prevailing situation, the view taken in the impugned order is justified as even if a departmental inquiry is held, the charges against the petitioner cannot be proved in the absence of a crucial witness. In Union of India and another v. Tulsiram Patel's case (supra), the Supreme Court held where two views are possible, the Court will decline to interfere. Accordingly, we do not find any merit in the writ petition. The same is dismissed. No Costs."
21. Before applying the aforesaid law to the facts of the present case, it is relevant to refer to the Constitutional Bench Judgement of the Hon'ble Apex Court in Union of India & Others v. Tulsi Ram Patel, AIR 1985 SC 1416 and certain other decisions. The Hon'ble Apex Court in Satyavir Singh (supra), summarized the topic wise conclusions reached by the majority in Tulsiram Patel's case and the relevant paragraphs, pertaining to Article 311(2)(b), of the same reads as under:
"(55) There are two conditions precedent which must be satisfied before Cl. (b) of the second proviso to Art.
311(2) can be applied. These conditions are :
(i) there must exist a situation which makes the holding of an inquiry contemplated by. Art. 311(2) not reasonably practicable, and
(ii) the disciplinary authority should record in writing its reason for its satisfaction that it is not reasonably practicable to hold such inquiry.
(56) Whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so.O.A.No.217/2016 18
(57) It is not a total or absolute impracticability which is required by Cl. (b) of the second proviso. What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.
(58) The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. The disciplinary authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of the prevailing situation that Cl. (3) of Art. 311 makes the decision of the disciplinary authority on this question final.
(59) It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry.
Illustrative cases would be
(a) where a civil servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so, or
(b) where the civil servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held, or
(c) where an atmosphere of violence or of general indiscipline and insubordination prevails, it being immaterial whether the concerned civil servant is or is not a party to bringing about such a situation. In all these cases, it must be remembered that numbers coerce and terrify while an individual may not.
(60) The disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the civil servant is weak and must fail.
xxxxxxxx (63) The recording of the reason for dispensing with the inquiry is a condition precedent to the application of Cl.
(b) of the second proviso. This is a constitutional obligation and if such reason is not recorded in writing the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. It is, however, not necessary that the reason should find a place in the final order but it would be advisable to record it in the final order in order to avoid an allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated.
(64) The reason for dispensing with the inquiry need not contain detailed particulars but it cannot be vague or just a repetition of the language of Cl. (b) of the second proviso.
O.A.No.217/201619
xxxxxxxxx (68) The submission that where a delinquent government servant so terrorizes the disciplinary authority that neither that officer nor any other officer stationed at that place is willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry cannot be accepted. This submission itself shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that administrative work carried out by senior officers should be paralysed just because a delinquent civil servant either by himself or along with or through others makes the holding of an inquiry by the designated disciplinary authority or inquiry officer not reasonably practicable.
xxxx x x xxxxx (71) Where a large group of members of the Central Industrial Security Force Unit posted at the plant of the Bokaro Steel Ltd., indulged in acts of insubordination, indiscipline, dereliction of duty, abstention from physical training and parade, taking out processions, shouting inflammatory slogans, participating in the 'gherao' of supervisory officers, going on hunger strike and 'dhama' near the Quarter Guard and Administrative Building of the Unit, indulging in threats of violence, bodily harm and other acts of intimidation to supervisory officers and loyal members of the said Unit, and thus created a situation whereby the normal functioning of the said Unit of the Central Industrial Security Force was made difficult and impossible, the disciplinary authority was justified in applying clause (b) of the second proviso to those who were considered responsible for such acts. Cl.
(b) of the second proviso to Art. 311(2) was also properly applied in the cases of those members of the Central Industrial Security Force who were considered responsible for creating a similar situation at Hoshangabad.
xxxxxx (104) Where a clause of -the second proviso to Art. 311(2) or an analogous service rule is applied on an extraneous ground or a ground having no relation to the situation envisaged in such clause or rule, the action of the disciplinary authority in applying that clause or rule would be mala fide and, therefore, bad in law and the Court in exercise of its power of judicial review would strike down both the order dispensing with the inquiry and the order of penalty following thereupon."
22. In Jaswant Singh v. State of Punjab, (1991) 1 SCC 362, observed as under:
"5. ......... ..... 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 O.A.No.217/2016 20 satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."
23. In Southern Railway Officers Association & Another. v. Union of India and Others, (2009) 9 SCC 24, one Shri S.M.Krishnan, who was a Deputy Chief Mechanical Engineer and was the disciplinary authority of the workmen in the case, and as a disciplinary authority, imposed a punishment of dismissal on one L. Arputharaj, and on his superannuation, in order to go to his native place, went to the Railway Station. The delinquent employees also went to the said Railway Station and started abusing the said S.M.Krishnan with filthy language and assaulted him. He and his family members were threatened to be killed in the presence of other Railway Officers who were present at the same time and at the same place. The delinquent employees allegedly created ugly seen in the plat-form which was witnessed by Railway Officers/Staff and Passengers and accordingly created an atmosphere of violence, general indiscipline and insubordination, and they have also threatened, intimidated and terrorized other officers. In those circumstances, the Hon'ble Apex Court, after considering a long list of cases on the subject, upheld the order of dismissal of the said delinquent employees, passed by invoking the second proviso to Article 311(2) and Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968.
24. In Reena Rani v. State of Haryana, (2012) 10 SCC 215, the appellant, a Constable was dismissed from service by invoking Article O.A.No.217/2016 21 311(2)(b), by stating that while she remained posted as Prisoner Escort Guard, developed close relation with one Mustak, despite the fact that he was involved in seven criminal cases and hence, she did not deserve to be retained in service and it was not practicable to hold a regular departmental inquiry because no independent witness would be available. Applying the law enunciated in Tulsi Ram Patel (supra), and other decisions to the facts of the said case, the Hon'ble Apex Court by holding that the appellant's dismissal from service was ultra vires under the provisions of the Article 311, allowed the appeal.
25. In Risal Singh v. State of Haryana & Ors., (2014) 13 SCC 244, the appellant, an Assistant Sub-Inspector, as alleged, was involved in a corruption sting operation in a television channel, and thereafter he was dismissed from service under Article 311(2)(b) and the relevant Paragraphs of the said order reads as under:
"2. ........ 3. Being aggrieved by the aforesaid order, the appellant preferred a civil writ petition and the High Court without adverting to the essential contention that no reason had been ascribed for dispensing with the inquiry under Article 311(2)(b) opined that prompt action was required to be taken to avoid spreading of trouble and, therefore, the order passed by the authority was justified."
The Hon'ble Apex Court , after considering Tulsi Ram Patel (supra) and other decisions, under Article 311(2)(b), while allowing the appeal held as under:
"10. Tested on the touchstone of the aforesaid authorities, the irresistible conclusion is that the order passed by the Superintendent of Police dispensing with the inquiry is totally unsustainable and is hereby annulled. As the foundation founders, the order of the High Court giving the stamp of approval to the ultimate order without addressing the lis from a proper perspective is also indefensible and resultantly, the order of dismissal passed by the disciplinary authority has to pave the path of extinction."O.A.No.217/2016 22
26. In Ved Mitter Gill v. Union Territory Administration, Chandigarh & Others, (2015) 8 SCC 86, while the appellant was holding the charge of the post of Deputy Superintendent of Police, Model Jail, Burial, Chandigarh, four Under Trials, three of whom were facing trial for the assassination of a former Chief Minister of Punjab Shri Beant Singh and one was being tried for the charge of murder, escaped from the jail, by digging an underground tunnel. The Adviser to the Administrator, Union Territory, Chandigarh by an order dated 01.03.2004 having invoked Article 311(2)(b) dismissed the appellant. The relevant paragraph of the said order reads as under:
7. .................. And whereas the above conduct of the said Shri Gill establishes that he was directly involved in the conspiracy to help the above-mentioned under trials to escape from the Model Jail, Chandigarh. It has also come to light during investigation that three of the escaped under trials had linkage with the Babbar Khalsa International, a known and a dreaded terrorist organization, which is involve in anti-national and anti-State activities. The said Shri V.M. Gill is a senior, permanent and non- transferable official of the Model Jail, Chandigarh and junior jail officials, who are witnesses in the above case are not likely to come forward to depose against him if disciplinary proceedings are initiated so long as he remains in service, for fear of earning his wrath in future. Further, due to the involvement of the escaped under trials, with the Babbar Khalsa International, a known and dreaded terrorist organization, no witness is likely to come forward to depose against him in the disciplinary proceedings, if initiated, due to fear of life. Independence assessment also is that three of the escaped under trials are likely, inter alia, to pose a danger to the lives of the people. In these circumstances I am satisfied that the holding of an inquiry as contemplated by Article 311 (2) (b) of the Constitution of India and the Punjab Civil Services (Punishment and Appeal) Rules, 1970 as made applicable to the employees of Union Territory, Chandigarh, is not reasonably practicable; "
The Hon'ble Apex Court, after observing the following, "17. Before delving into the pointed issues canvassed at the hands of the learned counsel representing appellant/petitioners, it is necessary for us to notice the parameters laid down by this Court for invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India. Insofar as the instant aspect of the matter is concerned, the norms stipulated by this Court for the above purpose, require the satisfaction of three ingredients. Firstly, that the conduct of the delinquent employee should be such as would justify one of the three punishments, namely, dismissal, removal or reduction in rank. Secondly, the satisfaction of the competent authority, that it is not O.A.No.217/2016 23 reasonably practicable to hold an inquiry, as contemplated under Article 311(2) of the Constitution of India. And thirdly, the competent authority must record the reasons of the above satisfaction in writing."
and after examining the facts of the case in detail, held as under:
"29. For the reasons recorded above, we are satisfied, that all the parameters laid down by this Court, for a valid/legal application of clause (b) to the second proviso under Article 311(2) of the Constitution of India, were duly complied with."
and accordingly, by upholding the order under Article 311(2)(b), dismissed the appeal.
27. In Kaushal Singh v. Commissioner of Police (O.A.No.2592/2014, decided on 26.09.2016), a coordinate bench in which one of us (V. Ajay Kumar) is a member, considering the fact that the alleged accomplices of the applicant fired at the senior police officers of the rank of ACP, who are their own colleagues, accepted the reasoning of the respondents, and upheld the order passed under Article 311(2)(b) of the Constitution of India.
28. A conspectus of the aforesaid decisions discloses that an order passed invoking Article 311(2)(b), just by reciting the language of the same, verbatim, cannot made it valid, unless there are sufficient/cogent reasons and circumstances satisfy the requirements of the said Article were prevailing at the relevant time. Similarly, every order passed by invoking Article 311(2)(b), cannot become invalid on the ground of violation of principles of natural justice. What is required is the existence of valid reasons and circumstances for dispensing with the inquiry before invoking Article 311(2)(b). O.A.No.217/2016 24
29. In one line of cases, after satisfying, in the facts of the said cases, it is not reasonably practicable to hold an inquiry, the orders under Article 311(2)(b) were upheld. Similarly, in another line of cases, noticing that the requirements of Article 311(2)(b) for dispensing with the inquiry, in the circumstances of the said cases were not satisfied, the orders were set aside.
30. In this view of the matter, it is necessary to examine the circumstances prevailing in the present case at the time of passing of the orders under Article 311(2)(b) and whether the reasoning given by the respondents, is justified.
31. The applicants, who belong to an outstation Command, were detailed to produce the high risk UTP, Manoj Bakarwala, before the concerned Court in Agra and as per the video clipping went on air through various TV Channels, in the evening of 27.08.2015, facilitated the high risk UTP for shopping in a shoe-shop in Agra ignoring all the standing instructions as well as protocol. It was stated in the impugned order that `prima-facie, holding an inquiry would only be an advantage to the applicants as the probability to manage the evidence and witnesses in their favour at later stage cannot be ruled out and in such cases, where video clippings of illegal activities of police personnel is made, the media also do not support the misdemeanour of the police officers when an inquiry is ordered'. It was also stated that `therefore, it would not be reasonably practicable to hold a regular departmental inquiry against the defaulters as it is believed that O.A.No.217/2016 25 witnesses either will not join the inquiry or they will not depose against the police officials as well as disclosed the identity of high risk UTP- Manoj Bakarwala, a hardcore notorious criminal, who has a history of involvement in 73 criminal cases'.
32. After the Constitution Bench Judgement of the Hon'ble Apex Court in the case of Tulsiram Patel (supra), three conditions becomes relevant for invoking of sub-clause (b) of the second proviso to Article 311(2);
(a) Where a civil servant, alone or together with his associates terrorizes, threatens or intimidates witnesses who are likely to give evidence against him with fear or reprisal in order to prevent them from doing so; or
(b) Where the civil servant by himself or though others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that the officer is afraid to hold the enquiry or direct it to be held; or
(c) Where an atmosphere of violence or of general indiscipline and insubordination prevails at the time of the attempt to hold the enquiry is made.
33. It is not the case of the respondents that any of the applicants at any time terrorised, threatened or intimidated any of the witnesses in any departmental proceedings or during the course of discharging of their duties. It is also not the case of the respondents that when the media was picturising the applicants at the time of alleged incident of O.A.No.217/2016 26 facilitation of the high risk UTP for shopping, any of the applicants used physical force or hurled abuses and threats on the media persons or on the public who were watching them at the place of alleged incident. On the other hand, it was the specific case of the respondents that the applicants were seen embarrassed and speechless when confronted by media persons in the shop.
34. The allegation that the act of the applicants exposed the high risk UTP to grave dangers from his rival gangs and also provided an opportunity for such a dreaded criminal involved in 73 cases to escape, had he so wanted and the applicants deliberately ignored all the norms and standing instructions on the subject during the production duty of the said UTP, all matters to be inquired with but cannot be grounds for dispensing with the inquiry. It was also not the case of the respondents that the applicants developed close relation with the said high risk UTP or with his gang and involved in any of his illegal activities.
35. Like in Mohinder Singh (supra), where the intelligence reported that the respondent is a terror in the area and that in the presence of Superintendent of Police (Intelligence) itself, the respondent intimidated the complainant, or like in Satyavir Singh (supra) where the whole staff of the organization rallied under the Employees Associations and created unrest by manhandling the senior officers or like in Ex. Ct. Jasminder Singh (supra) where the petitioner associated with a criminal gang or like in Balkar Singh (supra) where O.A.No.217/2016 27 the only witness would be a Pakisthani agent to whom the petitioner transmitted secrets of CISF, that too online, no such circumstances were claimed to be existing. Therefore, the said decisions cannot be made applicable to the present case.
36. In the circumstances and for the aforesaid reasons, the OA is allowed and the impugned orders are set aside with all consequential benefits. Since the applicants were under suspension as on the date of passing of the impugned orders, they would thus remain under suspension and the respondents shall take a decision regarding revocation or continuation of the same. The respondents are at liberty to proceed against the applicants departmentally, as per rules and the treatment of suspension period shall be dependent on the same. No costs.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/