Central Administrative Tribunal - Delhi
Anil Kumar vs Comm. Of Police on 26 September, 2024
1
OA No. 1247/2020
Item No. 42(C-3)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 1247/2020
This the 26th Day of September, 2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Mr. Chhabilendra Roul, Member (A)
Ct. Anil Kumar
PIS No.28080436,
S/o Late Sh. Ajit Singh,
R/o-Vill. Mukundpur,
Post Office Kanonda,
Tehsil - Bahadurgarh.
Distt. Jhajjar,
Haryana-124507
Age 35
Group-c
...........Applicant
(By Advocate : Mr Sachin Chauhan)
VERSUS
1. Govt. of NCT of Delhi
through the Chief Secretary
Govt. of NCTD,
A-Wing, 5th Floor,
Delhi Secretariat,
New Delhi-110113
2. The Commissioner of Police
Police Headquarters, MSO Building,
I.P. Estate,
New Delhi.
3. The Joint Commissioner of Police
Western Range, Delhi
Through the Commissioner of Police
Police Headquarters, MSO Building.
I.P. Estate, New Delhi.
4. The Dy. Commissioner of Police
Outer District, Delhi
2
OA No. 1247/2020
Item No. 42(C-3)
Through the Commissioner of Police
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
.... Respondents
(By Advocate : Mr Manish Kumar)
ORDER (ORAL)
Hon'ble Mrs. Pratima K. Gupta, Member (J):
Learned counsel for the Applicant explains the facts of the case that have arrived for consideration in the present OA and submits that an FIR No. 195/2019 dated 01.10.2019 u/s 420/120-B/409 IPC, PS EOW, Delhi on the complaint of Inspector Mr. Ved Prakash s/o Mr. Rai Singh, Accountant, Account Branch, Pitampura Police Line, Delhi Police. Four accused were named in the FIR, namely Mr. Vijender Singh, Ms. Veena Kumari, Mr. Anil Kumar and Mr. Krishna Kumar.
All the four accused were dismissed by the respondents invoking the provision of Article 311 (2) (b) vide an order dated 09.10.2019. Aggrieved by the same, the Applicant preferred an appeal before the Appellate Authority, the Appeal has been rejected by the order dated 24.08.2020. Aggrieved by the two orders dated 09.10.2019 and 24.08.2020, the Applicant preferred OA No. 1247/2020 seeking the following relief(s):-
"i) To set aside the impugned order dated 09.10.2019 whereby the extreme punishment i.e. dismissal from service is being imposed upon the Applicant and the order of the Appellate authority dated 24.8.2020 and to further direct the respondents to reinstate the Applicant in service with all consequential benefits including seniority and promotion and pay and allowances.
And/or
ii) Any other relief which this Hon'ble Court deems fit and proper may also awarded to the Applicant."
3 OA No. 1247/2020Item No. 42(C-3) The OA was allowed by this Tribunal by Order dated 01.12.2022. The operative Para 9 of the Order dated 01.12.2022 deciding OA No. 1247/2020 reads as under:-
"9. Resultantly, the OA is allowed. The Order dated 09.10.2019 passed by the disciplinary authority dismissing the Applicant and the order dated 24.08.2020 passed by the appellate authority confirming the dismissal order, are quashed set aside, but the Applicant shall be under and suspension. We, however, make it clear that it shall be open to the respondents to initiate disciplinary proceedings against the Applicant in accordance with law. MA No. 3559/2022 also stands disposed of accordingly. There shall be no order as to costs."
2. The respondents assailed the Order dated 01.12.2022 passed by the Tribunal, before the Hon'ble High Court of Delhi by way of Writ Petition (C) No. 7000/2023 (Government Of NCT Of Delhi Through Its Chief Secretary & ORS Vs. Anil Kumar) decided on 14.03.2024 in which, the Hon'ble High Court remanded the Original Application back to this Tribunal for consideration for certain reasons. The operative Para 9 & 11 of the Order of the Hon'ble High Court of Delhi in WP (C) 7000/2023 read as under:-
"9. In the present case, we find that the learned tribunal has allowed the OAs without even referring the reasons provided by the petitioners for dispensing with the enquiry and, therefore, we have no other option but to set aside the impugned orders and remand the matters back to the learned Tribunal for fresh adjudication of the respondents' O.As on merits. While remanding the matter back to the learned Tribunal, it is expected that the Tribunal will consider the reasons furnished by the petitioners for dispensing with enquiry against the respondents and pass a reasoned and speaking order accepting or rejecting the petitioners' explanation. Taking into account that pleadings in the matters are already complete, the Tribunal will make an endeavour to decide the O.As. within three months.
xxxx xxxx xxxx xxxx
11. However, taking into account that while issuing notice in the present petitions, this Court had not stayed the impugned orders, the respondents would be entitled to monetary benefits in terms of the impugned orders from the date of the passing of the said orders till 4 OA No. 1247/2020 Item No. 42(C-3) today. Payment in terms of this order to the respondents be made within four weeks."
3. The respondents assailed the said Order dated 01.12.2022 before the Hon'ble High Court of Delhi by way of Writ Petition (C) No. 7000/2023 (Government Of NCT Of Delhi Through Its Chief Secretary & ORS Vs. Anil Kumar) decided on 14.03.2024, in which, the Hon'ble High Court remanded the Original Application back to this Tribunal for consideration for certain reasons. The Review Petition against the decision in WP No. (C) 7000/2023 , has also been dismissed, before the Hon'ble High Court as not pressed dated 24.05.2024. Therefore, the OAs are being re-heard.
4. Learned counsel for the Applicants states, While deciding the Writ Petition No.7000/2023, the Hon'ble High Court of Delhi has decided the four Writ Petitions including the one preferred in case of the Applicant. He clarifies, that each of the four accused named in the FIR were dismissed from the service by the respondents invoking provisions of Article 311(2) b, and each of the Applicants approached this Tribunal by filing separate OA, The orders in each of the Original applications have been assailed by the respondents by way of Writ Petitions before the Hon'ble High Court. On 14.03.2024, by a common order, the Hon'ble High Court of Delhi has disposed the Petitions and pursuant to the directions in the writ petitions, that one of the original applications no 2988/2022 in the case of Mr. Vijender Singh (supra) has been decided upon reconsideration on 13.09.2024. Therefore, he submits that the issue at stake has been conclusively decided by the Coordinate Bench of this Tribunal and the present OA may also be disposed of in similar lines.
5 OA No. 1247/2020Item No. 42(C-3)
5. Mr. Manish Kumar, learned counsel for the respondents confirms the facts recorded above. He submits that the reasons for dispensing with the disciplinary proceedings as recorded in the Order dated 13.09.2024 while deciding OA No. 2988/2022 remain the same in the present fact also as each of the four accused named in the FIR have filed different OAs and all the four Applicants were placed in a common decision by the Hon'ble High Court of Delhi. Therefore, he confirms, the facts in this OA are not only similar but identical to the facts in OA No. 2988/2022.
6. We have gone through the decision taken by the Tribunal in OA No 2988/2022 and gone through the record in detail, this further confirms for our satisfaction that the facts narrated in the said OA are identical to that in present OA.
7. Heard the learned counsel(s) for the parties.
8. In light of above fact, the facts before the Tribunal in O A 2988/2022, decided on 13.09.2024 are not only similar but identical , rather out of four accused named in the FIR one of them is the present Applicant. Decision has been taken by the Tribunal with respect to co-accused delinquent against whom Article 311 (2)
(b) has been invoked. Judicial discipline binds us. We cannot take a divergent view.
For the reasons of parity the OA is decided on similar terms For the sake of better appreciation, the said order dated 13.09.2024 is reproduced herein below:-
"In the present OA, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant seeks the following reliefs:
"1 To quash and set aside Order of dismissal dt. 22.10.2020 & Appellate Order dt. 7.9.2021 and 6 OA No. 1247/2020 Item No. 42(C-3) 2 To direct the respondents to reinstate the applicant into service with all consequential benefits including promotion/seniority and arrears of pay since the applicant is not able to get job despite his best efforts and is unemployed.
3. To award costs in favor of the applicant and
4. To pass any order or orders which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
2. The brief facts of the case as narrated by the learned counsel for the applicant are as under:
2.1. The applicant was holding the post of Head Constable in the office of the respondents. On being falsely implicated in FIR No.195/19 dt.1.10.2019 u/s 409/420/120-B IPC PS EOW, Delhi, the applicant was illegally dismissed from service under Article 311 (2) (b) vide Order dated 22.10.2020, dispensing with the enquiry on the same allegations and on the basis of which criminal case was registered, investigated and Charge-sheet also filed on 29.12.2019. The relevant portion of the order of dismissal dated 22.10.2020, reads as under:-
"...In view of the above facts, it revealed that HC (Exe.) Vijender Singh No.740/OD, PIS No. 28950205 has committed a grave misconduct in collusion with W/SI Meena Kumari No.672/D, Const. Anil Kumar No.3131/OD and Const. Krishan Kumar No.1929/OD with ill intention and siphoned off huge amounts of money meant to be credited to other Police personnel‟s accounts. Prima facie the facts have revealed that the actions of HC (Exe.) Vijender Singh No. 740/OD, PIS No. 28950205 amounts to negligence, gross misconduct and are highly unbecoming of a police officer. HC (Exe.) Vijender Singh No.740/OD, PIS No. 28950205 being in influential position, holding a proper detailed enquiry is impracticable as the affected police personnel would not be in a position to depose against him. His misconduct is such that if he is allowed to continue in the police force, it would be detrimental to public interest and shall further tarnish the image of the police force in society. He did not perform his duty in a professional manner within the legal periphery. He has indulged himself in the most abominable act, which is not expected from an official of a uniformed force. Though the facts surfaced out during enquiry, it requires a prompt and instant punitive action & it will not be reasonably practicable to conduct a regular departmental enquiry against HC (Exe.) Vijender Singh No.740/OD, PIS No. 28950205, as there is a reasonable belief that the defaulter will influence the statements/deposition of witnesses. I am personally satisfied that conducting a regular DE against HC (Exe.) Vijender Singh No.740/OD, PIS No.28950205 will take a considerable long period and it is not practicably possible.
Further, the shameful act committed by HC (Exe.) Vijender Singh No.740/OD, PIS No. 28950205 has not only tarnished the image and brought disgrace to the organization, but also demoralized other police personnel. Therefore, in order to send a clear message to such undesirable elements in the police force and to maintain discipline as well as to prevent recurrence of such incidents. Hence, it has become necessary to dismiss HC (Exe.) Vijender Singh No.740/OD, PIS No. 28950205, as he is completely unfit for police service. Hence, such corrupt and dishonest person should be immediately dismissed from public service.7 OA No. 1247/2020
Item No. 42(C-3) Therefore, I, Dr. A. Koan, Dy. Commissioner of Police, Outer Distt., Delhi, hereby ordered to dismiss HC (Exe.) Vijender Singh No.740/OD, PIS No.28950205 from Delhi Police under provisions of Article 311(2) (B) of Constitution of India with immediate effect. His suspension period w.e.f. 10.10.2019 will not be regularized in any manner and will be considered as "not spent on duty" for all intents and purposes.
He will deposit all his Govt. belongings i.e. Identity Card, Appointment Card, CGHS Cards, General Store and Clothing Store Articles etc. to the concerned authority at once.
His particulars as per the service record are as under:
Rank, Name and PIS No. HC (Exe.) Vijender Singh
No.740/OD,PIS
No.28950205
Father‟s name Sh. Hukam Chand
Date of Birth 01.10.1970
Date of enlistment 06.01.1995
Height 170.8 cm (5‟7")
Religion/Caste Hindu/Jat
Present Address Village Mangol Puri,
Delhi
Permanent Address V.P.O. Mandhothi, Tehsil
Bahadurgarh, PS Sadar
Bahadurgarh, District
Jhajjar, Haryana.
Let a copy of this order be given to HC (Exe.) Vijender Singh No.740/OD, PIS No.28950205 free of cost. He can file an appeal against this order to Joint Commissioner of Police, Western Range, New Delhi within 30 days from the receipt of this order on a non-judicial stamp paper worth Rs.0.75 by enclosing of this order, if he so desires."
2.2. Thereafter, the applicant submitted appeal to the respondent no.2 against the order of dismissal passed by the Disciplinary Authority, praying for reconsideration of the case and to quash and set aside the impugned order of punishment dated 22.10.2020. The applicant, not only explained the background of the case, but also raised a number of questions of facts and law for the consideration of the Appellate Authority. However, the Appellate Authority vide order dated 07.09.2021 rejected the appeal of the applicant. The relevant portion of the said order reads as under:
8 OA No. 1247/2020Item No. 42(C-3) "...He has indulged himself in the most abominable act which is not expected from an officer of a uniformed force. The shameful act committed by him has not only tarnished the image and brought disgrace to the organization but has also a potential to demoralize other police officers/staff. It is clear instance of law enforcer turning into law breaker and thereby projected a very bad image of Delhi Police in the eyes of the general public which tends to erode the faith in police department. Therefore, it would be a fit case in which Article 311 (2)(B) of the Constitution of India should be invoked at the first instance without following the procedure of regular departmental proceeding as the FIR furnished by the concerned authority, is enough to straightway award the punishment of dismissal to the appellant The appeal preferred by the appellant has no merit. While the trial of the criminal case may take its own course and the charges may or may not be proved in the case, the evidences in the departmental action is that of „preponderance of probability‟ (and not beyond reasonable doubt as in the criminal case). Further, as settled by many case laws, criminal case and departmental action can take place simultaneously. Thus, there is no merit in his appeal Therefore, there is no violation of any law/rule in the instant case.
Taking into consideration the gravity of the misconduct/offence committed by him, his submissions and above discussion on same and the facts that there is no change in the circumstances since the dismissal order, the undersigned finds no reason to revisit or interfere with the decision of the disciplinary authority at this stage. Therefore, the appeal filed by the appellant against the punishment order is hereby rejected."
2.3. Learned counsel for the applicant submitted that mere reading of the Appellate Authority‟s order dated 07.09.2021 shows that the Appellate Authority had not applied its mind to the facts and legal points raised in the appeal and mechanically endorsed the perverse and untenable reasoning given by the disciplinary Authority, which nowhere mentions that holding of enquiry is not reasonably practicable, with a non-speaking and cryptic order.
3. Learned counsel for the applicant contended that the applicant was falsely implicated in FIR No.195/19 dt.1.10.2019 U/S 409/420/120-B IPC PS EOW, Delhi and, therefore, there was no question of upholding dismissal from service under article 311(2)(b) in appeal as on 07.09.2021 when the same witnesses are going to be examined in the criminal case.
3.1. Learned counsel for the applicant further contended that the disciplinary authority decided to dispense with the enquiry for the sole reason that the department's case against the applicant is very weak and the department will not be able to conclusively establish the false allegations against the applicant and, therefore, in the order of punishment there is no mention of the fact that the disciplinary authority had ever tried to hold a departmental enquiry on the allegations/misconduct as mentioned in the aforesaid order on the basis of which the applicant was dismissed from service by invoking the powers under Article 311(2)(b) without any evidence as to how the holding of departmental enquiry is not practicable possible. Therefore, 9 OA No. 1247/2020 Item No. 42(C-3) the order passed by the disciplinary authority clearly show that this is colorable exercise of power.
3.2. Learned counsel for the applicant argued that the Disciplinary Authority has nowhere pointed out any evidence as to how holding of DE is not reasonable practical that is the condition precedent for invoking powers under Article 311(2)(b). The Order is based on extraneous ground that has nothing to do with the exercise of power under Article 311(2)(b) and, therefore, the impugned order is liable to be set aside and quashed.
3.3. It is also the contention of the learned counsel for the applicant that there is no material with the disciplinary authority which could show that the witnesses were threatened by the applicant in form of any complaint by the witnesses regarding threatening notes/calls and the disciplinary authority even without making any efforts to initiate the DE, called the witnesses by way of notices and presumed the applicant guilty of charges leveled against him in criminal case to be true.
3.4. Placing reliance upon the decision of Hon‟ble Supreme Court in Chief Security Officer Vs. Singasan Rabidas 1991 (5) J.T 117, learned counsel for the applicant submitted that dispensing with the enquiry for even non- deposition of witness due to fear was held to be illegal by the Hon‟ble Apex Court.
3.5. The other ground urged by the learned counsel for the applicant is that the order of dismissal dispensing with the enquiry is in violation of Rule,17 Explanation (b) of D.P. (P&A) Rules, which categorically provides that the procedure laid down with regard to the conduct of departmental enquiry can be dispensed with if Police Officer charged with misconduct refuses or fails to attend the enquiry without reasonable excuse or has absconded.
3.6. Another contention of the learned counsel for the applicant is that the order dispensing with the inquiry is in violation of respondents own circular dated 8.11.1993 and re-issued on 31.12.1998 which categorically provides that the powers under Article 311 (2) (b) is not to be used as a short-cut and if the Police Officers involved in the cases of rape or dacoity or any other such heinous offence are dismissed straightway under Article 311 (2) (b) despite the fact that criminal cases had been registered.
4. Respondents have filed counter affidavit opposing the OA. Learned counsel for the respondents submitted that after enquiry, DCP/EOW filed charge sheet against the applicant in the Hon'ble Court on 29.12.2019. As per the charge sheet, he was posted in Outer District and received misappropriated government fund in his salary account and further he transferred the money into account of Arti, W/o Constable Anil Kumar No.3131/OD. He also kept his commission for his role in the said offence. He being a public servant neither returned the money nor informed bank or anybody else in this regard. He further kept the money with him as commission. He committed criminal 10 OA No. 1247/2020 Item No. 42(C-3) breach of trust in respect of the money received in his account in connivance of his associates with criminal conspiracy, hence committed offence u/s 409/420/120-B IPC. The details of the transaction between HC Vijender, Ex. Constable Anil and his wife namely Arti are as under: -
Date Amount Beneficiary
18.10.2017 125000.00 Anil
17.05.2018 492000.00 Arti
19.06.2018 108000.00 Arti
13.06.2019 435000.00 Arti
08.07.2019 435000.00 Arti
__________________________________
Total 15,95,000
___________________________________
4.1. It is the contention of the learned counsel for the respondents that the co-accused in FIR No.195/2019, dated 01.10.2019, u/s 409/420/120-B IPC, P.S EOW, Delhi, Constable Anil Kumar, No. 3131/OD (PIS No.28080436) was arrested on the same day by the Police Officials of EOW and after interrogation, he was sent to judicial custody. Due to grave misconduct, he was dismissed from the force under article 311 (2) (B) of the Constitution of India vide order No. 21864-950/HAP (P-
1)/OD, dated 09.10.2019. Moreover, co-accused, namely, Constable Krishan Kumar, No. 1929/RD (PIS No. 28093877), P.S. Prem Nagar, Rohini District was also dismissed from service vide Order No.1614-44/HAP (P-I) dated 18.03.2020.
4.2. Learned counsel for the respondents submitted that the facts have revealed that the actions of HC (Exe.) Vijender Singh, No.740/OD, PIS No. 28950205 amounts to negligence, gross misconduct and are highly unbecoming of a police officer. HC (Exe.) Vijender Singh, No.740/OD, PIS No. 28950205 being in influential position, holding a proper detailed enquiry is impracticable as the affected police personnel would not be in a position to depose against him. His misconduct is such that if he is allowed to continue in the police force, it would be detrimental to public interest and shall further tarnish the image of the police force in society. He did not perform his duty in a professional manner within the legal periphery. He has indulged himself in the most abominable act, which is not expected from an official of a uniformed force. Though the facts surfaced out during enquiry require a prompt and instant punitive action, it will not be reasonably practicable to conduct a regular departmental enquiry against HC (Exe.) Vijender Singh No.740/OD, PIS No. 28950205, as there is a reasonable belief that the defaulter will influence the statements/ deposition of witnesses. The disciplinary authority is personally satisfied that conducting a regular 11 OA No. 1247/2020 Item No. 42(C-3) DE against HC (Exe.) Vijender Singh No.740/OD, PIS No. 28950205 will take a considerable long period and it is not practicably possible. Further, the shameful act committed by HC (Exe.) Vijender Singh No.740/OD, PIS No. 28950205 has not only tarnished the image and brought disgrace to the organization, but also demoralized other police personnel. Therefore, in order to send a clear message to such undesirable elements in the police force and to maintain discipline as well as to prevent recurrence of such incidents, it had become necessary to dismiss HC (Exe.) Vijender Singh No.740/OD.
5. Having heard the learned counsel for the parties and perused the records as well as the brief synopsis filed on behalf of the applicant, we would draw the following analysis:
6. ANALYSIS :
6.1 The Hon‟ble High court has remanded the matter, vide its Order dated 14.03.2024 observing as under:-
"9 In the present case, we find that the learned tribunal has allowed the OAs without even referring the reasons provided by the petitioners for dispensing with the enquiry and, therefore, we have no other option but to set aside the impugned orders and remand the matters back to the learned Tribunal for fresh adjudication of the respondents' O.As on merits. While remanding the matter back to the learned Tribunal, it is expected that the Tribunal will consider the reasons furnished by the petitioners for dispensing with enquiry against the respondents and pass a reasoned and speaking order accepting or rejecting the petitioners explanation. Taking into account that pleadings in the matters are already complete, the Tribunal will make an endeavour to decide the O.As. within three months."
6.2 The Learned counsel for the respondents had reiterated that the impugned order passed by the competent authority is based on sound reasoning in consonance with Rule position. There has been no infirmity in the said order.
6.3 In terms of para 9 of the order of remand dated 14.3.2024, we had once again gone through the records of the case and carefully examined the impugned office order. We draw a comparative chart of the reasoning in said order and distinguishing features:-
Reasoning in impugned Distinguishing
order features
A) The affected Police A) When the witnesses
personnel would not be in a can appear in criminal
position to depose against trial, they can very well
him. appear in DE also. The
witnesses themselves
B) Though the facts surfaced are police officers, how
out during enquiry, it can be afraid of their
requires a prompt and own colleagues.
instant punitive action.
B). Prompt and instant
C) Conducting a regular DE
12
OA No. 1247/2020
Item No. 42(C-3)
will take a considerable long punitive action cannot
period. be a ground to dismiss
by invoking Article
D) In order to send a clear 311(2) (b) of the
message to such undesirable Constitution of India.
elements in the police force
and to maintain discipline as C). Holding of DE will
well as to prevent recurrence take long period cannot
of such incidents. be a ground to dismiss
by invoking Article
311(2) (b) of the
Constitution of India.
D). The applicant is
desirable or
undesirable cannot be
decided at his back and
dismiss him by
invoking Article
311(2)(b) of the
Constitution of India.
6.4 In another set of WP (C) No. 9098 /2024 tilted Commissioner of Police vs Shri Karam Pal decided on 18.07.2024, the Hon‟ble High Court of Delhi has observed as under :-
"16. Further, the respondents have also brought to our notice communication no.174/C/HC/24/5110/60/DAIII/CourtCell/PHQ dated 13.05.2024 whereby, the office of Commissioner of Police issued advisory to the Deputy Commissioners of Police to ensure that directions of this court shall be taken into consideration before passing termination orders by dispensing with the departmental enquiries in future. The said directions issued by this court were in the case of Commissioner of Police Delhi vs. Manjeet, 2024:DHC:3132-DB and the same were as follows:
"13. 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."
17. In order to maintain brevity, the remaining judicial precedents cited by respondents are not being quoted herein. Suffice it to record that repeatedly, this court as well as the Hon'ble Supreme Court have laid down the broad parameters within which powers under Article 311(2)(b) can be invoked. But unfortunately, despite such clear judicial pronouncements and even their own internal circulars and communications, the petitioners continue to 13 OA No. 1247/2020 Item No. 42(C-3) exercise those powers unjustifiably, thereby depriving their officials fair opportunity to defend themselves.
18. Falling back to the present case, as mentioned above, the allegations on the basis whereof services of the respondents were summarily terminated by way of dismissal orders are that while accepting bribes in the course of trap laid by CBI, they were apprehended flagrante delicto. Keeping in mind the above quoted legal position, we examined the orders whereby the respondents were dismissed from service.
19. From the said dismissal orders, it comes out that the SHO, PS Saket was telephonically informed by the CBI Inspector about the said trap, followed by apprehending of the respondents. It also comes out that a Preliminary Enquiry into the incident was conducted by the ACP, Public Grievances Cell, South District, Delhi in which only the SHO was examined. Neither any member of the CBI team nor any public witness nor even the complainant Pawan Gupta was examined. Not only this, according to the observations recorded in the said dismissal orders, no incriminating material was found during search (apparently the personal search of the respondents after they were apprehended).
20. Most importantly, there is not even a whisper in the said dismissal orders that the complainant or any other person, considered to be examined as a witness was terrorized or threatened or intimidated by either of the respondents or their associates, so as to dissuade them from appearing before the Departmental Enquiry. Even otherwise, keeping in mind that the respondents are mere Head Constables, in the absence of any cogent material, it does not sound reasonably possible to apprehend that they would be able to threaten the members of the CBI team or even the complainant Pawan Gupta, who was bold enough to lodge a complaint against the respondents with CBI, as alleged.
21. For dispensing with the Departmental Enquiry under Article 311(2)(b) of the Constitution of India, it is not enough to say that there is possibility that no witness/complainant would come forward to depose against the delinquent official. Such a belief has to be on the basis of sound and cogent reasons and those reasons must be explicitly recorded in the dismissal order.
22. The relevant extract of the dismissal orders in question is as below:
"During the enquiry conducted so far, documents available on record, statement of SHO/Police Station Saket and statement of complainant Shri Pawan Gupta, it was revealed that HC (Exe) Ram Kishan Mehta, No. 2137/SD (PIS No. 28093689) and HC (Exe) Karm Pal, No. 940/SD (PIS No. 28107645) were found involved in corrupt practices with malicious intention. They showed gross negligent, unprofessional behaviour. They were caught red handed by CBI authorities.14 OA No. 1247/2020
Item No. 42(C-3) Whereas, being a member of disciplined force, they were responsible for protecting the life and property of the citizen of this country, but instead of discharging their duties honestly and sincerely they themselves indulged in corrupt practice, which is most abhorrable, most reprehensible and most unexpected being a member of a disciplined force. If the police man who is charged with sacred responsibility of upholding the rule of law indulging in such acts of crime and lawlessness it shatters the faith of the common man in the Government's law and order machinery. It also attracts immediate public attention and compels the authority to take action. Such acts of police misdemeanour produce highly deleterious impact on the organization. Such misconduct directly erodes the basis of police functioning i.e. "Public Trust" the foundation on which police work is built. Without people's trust the police as service to people would become rather irrelevant. Reputation and image assiduously built on sustained and good team work, suffer irreparable damage when an individual member of the service traps and indulges in such an abhorrable act.
Whereas the Govt. is always anxious and every effort is being made to root out corruption from the public service, after such act of serious misconduct if the defaulters Head Constables are allowed to be continued in 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 Head Constables as there is a reasonable belief that the witness may not come forward to depose against them and possibility of misusing their official position cannot be ruled out. It is common experiences that due to terrorizing and intimidating the witnesses and complainant do not come forward to depose against the delinquents in the Departmental Enquiry and this kind of intimidation is a common tactic adopted by the unscrupulous police personnel. It also calls for great courage to depose against desperate person and the task become more acute and difficult where the delinquents are police officials who may use their job to influence the statement/deposition of the witnesses.
Whereas, in the backdrop of the position explained in the foregoing paras, it is clear that HC (Exe) Ram Kishan Mehta, No. 2137/SD (28093689) and HC (Exe) Karm Pal, No. 940/SD (28107645) are public servants 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 against them. Under these set of compelling circumstances, Article 311(2)(b) of the 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".
23. Thence, except writing an essay on corruption by police, nothing has been stated in the said dismissal orders on the basis whereof the concerned authority arrived at a satisfaction that it would not be reasonably practicable to hold Departmental Enquiry against the respondents. The concerned authority appears to be under a presumptive impression that since the delinquents are police officials, no witness or complainant would come forward to depose. This impression, to say the least is not just baseless but even completely irrational. For, accepting this impression would lead to absurd result that in all cases of misconduct by police officials, Departmental Enquiry would not be possible and the authorities would be per force compelled to resort to Article 311(2)(b) of the Constitution of India, thereby 15 OA No. 1247/2020 Item No. 42(C-3) throwing completely in the trash bin the elaborate structures created under the Delhi Police (Punishment & Appeal) Rules, 1980.
24. The irresistible conclusion in the light of aforesaid is that services of the respondents were terminated by the petitioners through dismissal orders without following due process of law and the invocation of powers under Article 311(2)(b) of the Constitution of India was completely unsustainable.
25. In view of the above discussion, we are unable to find any infirmity in the impugned orders, so the same are upheld and both these petitions as well as pending applications are dismissed."
6.5. Similarly, in Commissioner of Police and Anr. vs. Jagmal Singh, WP No.4201/2024, the Hon‟ble Delhi High Court vide order dated 20.03.2024 observed 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 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."
6.6. We also find that Jagmal Singh's (supra) has been upheld by the Hon‟ble Apex Court vide Order dated 10.7.2024 in SLP (c) No. 11681/2024.
16 OA No. 1247/2020Item No. 42(C-3) 6.7 It may be appropriate to refer to a recent decision in Civil Appeal No. 9758 OF 2024 arising out of SLP (C) NO.11685 OF 2021] tilted Swati Priyadarshini Versus The State Of Madhya Pradesh & Ors. decided on 22.08.2024, wherein the Hon‟ble Apex Court observed as under:-
33. In either of the above-noted eventualities, the Impugned Judgment would have to necessarily be set aside. Nevertheless, let us examine the reasoning of the Division Bench, which opined that the order is non-stigmatic and simpliciter non-renewal of contract. The order dated 30.03.2013 was, quite obviously, the culmination of the process set into motion by the two SCNs, which has been overlooked by the Division Bench. The mere non-
mention of the background situation or the SCNs in the order dated 30.03.2013 cannot, by itself, be determinative of the nature of the order. As held by this Court in Samsher Singh v State of Punjab, (1974) 2 SCC 8315 and Anoop Jaiswal v Government of India, (1984) 2 SCC6, the form of an order is not its final determinant and the Court can find out the real reason and true character behind terminating/removing an employee. Moreover, the Impugned Judgment also does not deal with Clause 4. Interestingly, this Clause also escaped the attention of or/and was not brought to the notice of the learned Single Judge either.
34. It is profitable to refer to what five learned Judges of this Court laid down in Parshotam Lal Dhingra v Union of India, 1957 SCC OnLine SC 5:
"28. The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India [(1953) 1 SCC 420:
(1953) SCR 655]. Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh [(1955) 1 SCR 26]. In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v. Union of India [LR 58 Bom 673 : AIR (1956) Bom 455] wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forefeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has a right to a particular rank, then the very reduction from that rank 17 OA No. 1247/2020 Item No. 42(C-3) will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant."
(emphasis supplied)
35. We would only be adding to verbosity by multiplying authorities. In view of the above dictum, it is clear that the Respondents did not comply with Clause 4 - either the first part or the second part thereof. The order dated 30.03.2013 does visit the appellant with evil consequences and would create hurdles for her re further employment.
36. In view of the discussions made hereinabove, the Impugned Judgment is quashed and set aside. The judgment of the learned Single Judge dated 20.06.2017 stands revived, however with a modification to the extent that the appellant shall be entitled to all consequential benefits including notional continuation in service at par with other similarly- situated employees, but with the back wages restricted to 50%. Further, in view of the long passage of time, we deny liberty to the respondents to proceed afresh against the appellant as was granted by the learned Single Judge. However, this will not preclude the respondents from taking action against the appellant in accordance with law in futuro apropos her official duties on the post in question, if the situation so arises. The exercise be completed within three months from the date of receipt of this judgment."
7 Applying the aforesaid ratio and test(s) of Swati Priyadarshini (supra) to the reasoning in the impugned Order of dismissal dated 22.10.2020 & Appellate Order dated 07.09.2021, we find force in the argument of the learned counsel for the applicant wherein learned counsel for the applicant highlights that the reasoning given by the respondents is contrary to Rule of law and in violation of principles of natural justice. The present case does fall within the twin test, i.e., the applicant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his 18 OA No. 1247/2020 Item No. 42(C-3) substantive rank must be regarded as a reduction in rank, and there is failure to comply with the requirements of the rules and Article 311, which give protection to government servant, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant. We also find that impugned order(s) has been passed merely on assumptive reasoning adopting a short cut approach.
8 CONCLUSION :
8.1. We, therefore, quash and set aside the impugned office order of dismissal dated 22.10.2020 & Appellate Order dated 07.09.2021.
8.2. The applicant shall be entitled to all consequential benefits including notional continuation in service at par with other similarly- situated employees, but with the back wages restricted to 50%.
8.3. In view of the fact, the matter has been remanded back and considerable time has elasped, we also deny liberty to the respondents to proceed afresh against the applicant in light of Shri Karam Pal's case (supra). However, this will not preclude the respondents from taking action against the applicant in accordance with law in future of his official duties on the post in question, if the situation so arises.
The exercise as ordained above shall be completed by the respondents within three months from the date of receipt of a certified copy of this order. All pending MAs, if any, shall also stand disposed of. No costs."
9. Accordingly, for the reasons explained herein above, the OA is disposed of and the impugned orders dated 09.10.2019 and 24.08.2020 are quashed and set aside. The Applicant shall be reinstated in service and he would be entitled to all consequential benefits including notional continuation in service at par with other similarly-situated employees. However with the back wages restricted to 50% in view of the fact that this matter is being remanded back. This exercise shall be completed by the respondents within a period of three months from the date receipt of certified copy of this Order. However, the respondents shall be at liberty to take action against the Applicant in future as per law.
10. The present OA is disposed of accordingly. No costs.
19 OA No. 1247/2020 Item No. 42(C-3) (Chhabilendra Roul) (Pratima K. Gupta) Member (A) Member (J) /pinky