Central Administrative Tribunal - Delhi
Sonu Rathi vs Delhi Police on 7 August, 2024
1
Item No. 29 & 30
Court-2 OA No. 3824/2023
OA No. 3884/2023
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 3824/2023
with
OA No. 3884/2023
This the 07th day of August, 2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
OA No. 3824/2023
Sonu Rathi
S/o Sh. Ashok Kumar Rathi
R/o H.No. 151, Gali No. 4
Prem Nagar, Nathupura, Burari
Delhi-110084
Aged about 35 years
Group C, Dismissed Head Constable
... Applicant
(By ADVOCATE: Sh. Ajesh Luthra with Sh. Jatin Parashar)
VERSUS
1. Commissioner of Police
Delhi Police Hdqrs. (New Building)
Behind Parliament Street Police Station
New Delhi-110001
2. Joint Commissioner of Police (Northern Range)
A-127, Rohini Institutional Area
Sector 5, Rohini
Delhi-110085
3. Deputy Commissioner of Police
North West District
Office at P.S. Ashok Vihar
Ashok Vihar, New Delhi-110052
... Respondents
(By ADVOCATE: Sh. Sanjeev Yadav with Sh. Anurag)
2
Item No. 29 & 30
Court-2 OA No. 3824/2023
OA No. 3884/2023
OA No. 3884/2023
Sapan
S/o Sh. Kartar Singh
R/o H .No. 37, Village-Ranhola
Nangloi, Delhi-110041
Aged about 41 years
Group C
Dismissed Sub-Inspector
... Applicant
(By ADVOCATE: Sh. Ajesh Luthra with Sh. Jatin Parashar)
VERSUS
1. Commissioner of Police
Delhi Police Hdqrs. (New Building)
Behind Parliament Street Police Station
New Delhi-110001
2. Joint Commissioner of Police (Northern Range)
A-127, Rohini Institutional Area
Sector 5, Rohini
Delhi-110085
3. Deputy Commissioner of Police
North West District
Office at P.S. Ashok Vihar
Ashok Vihar, New Delhi-110052
... Respondents
(By ADVOCATE: Sh. Sanjeev Yadav with Sh. Anurag)
3
Item No. 29 & 30
Court-2 OA No. 3824/2023
OA No. 3884/2023
O R D E R (ORAL)
Hon'ble Mr. R.N. Singh, Member (J) Learned counsels for the parties agree that the alleged incident leading to the order(s) passed by the respondents and impugned by the applicants in the captioned Original Applications (OAs) is one, the FIR lodged against the applicant which has led investigation and passing of the order(s) impugned in the present OA is also the same, the impugned disciplinary order is also common, both the applicants have been working under the respondents and the issue raised in the present OA is common, therefore, with their consent, both the OAs have been heard together and are being disposed of vide the present common order. However, for writing the order, the facts are being taken from OA No. 3884/2023 titled Sapan vs. Delhi Police & Ors.
2. In the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:
"(a) Quash and set aside the impugned order dated 28.09.2020 (Annexure A-1)
(b) Direct the respondents to forthwith reinstate the applicant in service.
(c) accord all consequential benefits including seniority and back wages.
(d) Award costs of the proceedings in favour of the applicant.
(e) Any other relief which this Hon'ble Tribunal deems fit and proper in favour of the applicant."
3. The background of the case and the reasons for passing the impugned order dated 28.09.2020 by invoking the jurisdiction as provided under the provisions of Article 311(2)(b) of the Constitution of India, the 4 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 Disciplinary Authority has dismissed the applicant from service would be evident from a few paragraphs of the impugned order itself. Accordingly, the relevant paragraphs of the impugned order dated 28.09.2020 are reproduced as under:
"On 11.09.2020, a chance recovery of 920 grams of 'Gaanja' was allegedly effected from one Anil Kumar S/o Satnarayan R/o B-574, Jahangir Puri, Delhi by a team of PS Jahangir Puri led by SI Shekhar No. D-4354 (PIS No. 16080258) and comprising of HC Sonu Rathi No. 558/NW (PIS No 28082348) and HC Harphool Meena No. 741/NW (PIS No. 28031726) and subsequently, a case vide FIR No. 423/20 dated 11.09 2020 u/s 20 (b)(ii)A NDPS Act was registered at PS Jahangir Puri, Delh. SI Sapan No. D-5060 (P1S No. 28040139) was the second I.O of the case. The facts of the case are that SI Shekhar No D-4354 of PS Jahangir Puri received secret information that one Anil s/o Sat Narayan r/o B- Block, Jahangir Puri, Delhi, who is in illegal trade of 'Ganja', would take a supply of 'Gaanja' at Majnu Ka Tila and go towards B-Block, Jahangir Puri via Shah Alam Baandh Road. The SI informed the SHO Insp. Sarvesh who then informed Sh Sanjay Drall, ACP Jahangir Puri. The SI formed a Raiding Party alongwith HC Sonu Rathi No. 558/NW and HC Harphool Meena No. 741/NW and laid a trap near Shah Alam Baandh Road T-Point. At about 4.50 PM, at the instance of the secret informer, the Raiding Party apprehended one person who was heading towards Azad Chowk Gol Chakkar carrying a black colour polythene in his right hand. Upon investigation, the substance kept in the polythene was found to be 'Gaanja' weighing 920 gms. SI Shekhar No.D-4354 took the narcotic substance into police possession through seizure memo and informed ACP Jahangir Puri Sh Sanjay Drall who reached the spot at about 6.05 PM. The SI sent the 'Rukka' and the sealed 'Pulanda' to the Police Station through HC Sonu Rathi No. 558/NW with the directions that he would hand over the 'Pulanda' to the SHO for further proceedings to be carried out u/s 55 NDPS Act and the 'Rukka' to the Duty Officer for registration of a case. A case was registered u/s 20 (b)(ii)A NDPS Act vide FIR No 423/20 and investigation was marked to SI Sapan No. D- 5060 who arrested the accused and subsequently released him on bail after carrying out codal formalities.
In order to probe deeper into the nexus of Narcotic Substances operating in the area, ACP Operations, North West District was tasked to follow the trail of the contraband seized in the afore mentioned case and get to 5 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 the source of the contraband. During the course of enquiry, CDRs of accused Anil Kumar were analyzed and he was examined by the ACP/Operation, Sh. Manoj Pant. During examination, statement of accused Anil and his mother Smt. Rita Devi were recorded. In his statement, accused Anil disclosed that the contraband recovery by the police team comprised of around 164 Kilograms of 'Gaanja' seized from the house of his maternal uncle (Ramesh). He also disclosed that the police officers took a bribe of Rs. 1.5 lakhs from his mother Rita Devi which was paid to HC Sonu Rathi No. 558/NW in lieu of releasing him. Mother of the accused Anil, Smt Rita Devi stated the same facts as disclosed by the accused Anil Kumar.
Thereafter, statements of SI Shekhar Khan No. D- 4354, HC Harphool No. 741/NW, HC Sonu Rathi No 558/NW (all members of the Raiding Party), SI Sapan, IO of the case, HC Pritam No. 504/NW MHC(M) CP and Const. Kuldeep No. 2622/NW Chittha Munshi were also recorded.
During further course of enquiry, CCTV footages of the camera installed at the main entry door of PS Jahangir Pun were examined which revealed that SI Shekhar No.D-4354 and SI Sapan No. D-5060 reached the Police Station at 07:42 PM on 11.09.2020 in a white sedan car driven by SI Shekhar. SI Sapan was also present in that car sitting on the adjacent seat to the driver. HC Sonu Rathi was found already present at the main entry door of Police Station. SI Shekhar opened boot of the car. HC Sonu Rathi No. 558/NW called three unidentified public persons present in the Police Station and asked them to take out one bag each from the boot of the car. HC Sonu Rathi No 558/NW took out the fourth bag. They entered the Police Station with all four bags taken out from the car of SI Shekhar No D-4354 and went towards 1st Floor of the Police Station with all four bags. The bags seen in the CCTV are of dark grey or black colour and seem to be heavy in weight.
The CCTV footage of subsequent days was also examined and on 15.09.2020 at 1.45 PM, SI Shekhar No.D-4354 can be seen parking his white sedan car in front of the main entry door of the Police Station. The car was parked slightly outside the focus of CCTV installed at the main entry door. SI Sapan No D-5060 was also seen accompanying him. After that, SI Shekhar No. D-4354 and SI Sapan No. D- 5060 went inside the Police Station. At 1.51 PM, SI Shekhar No. D-4354 and SI Sapan No. D- 5060 were seen boarding the car of SI Shekhar No D- 4354. Interestingly none of the SIs can be seen coming out from the Police Station through the main entry door. It appears that they came out of the Police Station from an alternative exit route on the backside of the Police Station 6 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 building which is not covered by CCTVs. When they were going out from the Police Station in the car driven by SI Shekhar No.D-4354, a grey/black bag similar to the one noticed in the CCTV of 11.09.2020 can be seen on the rear seat of the car.
The CDRs of mobile numbers 9212172951 of SI Shekhar No.D-4354, 9811944848 of SI Sapan No D-5060, 8860445592 of HC Sonu Rathi. No. 558/NW, 8750540111 of HC Harphool Meena No. 741/NW were analysed which also indicate the culpability of these officers.
From the statements of the witnesses, analysis of CDRs & CCTV footages and other circumstantial evidences placed on record, it has surfaced that on 11.09.2020, S.I. Shekhar Khan No. D-4354, SI Sapan No. D-5060, HC Harphool Meena No. 741/NW, HC Sonu Rathi No. 558/NW of PS Jahangir Pun recovered approximately 164 kgs of 'Gaanja' (a commercial quantity) at the instance of the accused Anil Kumar. The above staff conspired and connived with each other to book the accused Anil Kumar in a smaller quantity of 920 grams which as per law is considered to be for personal consumption and is a bailable offence. For this minimization of the offence, they also took illegal gratification of Rs. 1.5 Lakhs from Rita Devi, mother of the accused Anil. Not only this, they also misappropriated the recovered contraband 'Gaanja' weighing approximately 164 kgs and supposedly sold it to drug peddlers. S.I. Shekhar khan, HC Sonu Rathi and HC Harphool (all members of Raiding Team) and SI Sapan, IO of the case were called several times to confront them with the witnesses, CCTV footage and their CDRs but despite repeated directions, they did not join the enquiry to depose themselves, which further give credence to their complicity in the act.
The aforementioned officers have committed a misconduct of the highest order and tarnished the image of Delhi Police. Hence, they were placed under suspension vide this office order No. 8040-65/HAP(P-I)NWD, dated 24.09 2020. In this connection a case FIR No. 2 dated 27.09.2020 U/s 201/203/217/408/409/384/120B IPC & 20 N.D.P.S Act & 13 Prevention of Corruption Act, PS Vigilance Branch, Barakhamba Road, New Delhi has been registered against SI Shekhar No. D-4354, PIS-16080258 SI Sapan, No D-5060, PIS 28040139, HC Harphool Meena No. 741/NW, PIS-28031726, HC Sonu Rathi No. 558/NW, PIS-28082348 which is pending investigation.
After completing the enquiry into the matter, in compliance of the circular issued from PHQ into the matter vide No. 5545-645/P.Cell/Vig dated 11.09.2007, the enquiry report was forwarded to Spl.CP/L&O(N), 7 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 Delhi for seeking his concurrence to dismiss the defaulters under Article 311 (2) (b) of the Constitution of India and the same has been approved by the competent authority.
Taking into account the totality of facts and circumstances, it is amply clear that the misconduct of SI. Shekhar No D-4354, PIS-16080258, SI Sapan, No D-5060 PIS-28040139, HC Harphool Meena No. 741/NW, PIS- 28031726, HC Sonu Rathi No 558/NW. PIS-28082348 is a criminal act which warrants exemplary punishment. In order to deter other members of the force from contemplating such conduct, this act should be dealt with extraordinary punishment. When a police officer who is supposed to uphold the law himself resorts to lawlessness and criminal act, it causes a major blow to the confidence of citizens in its police. The conduct of these four officials has caused a lot of damage to the goodwill of the organization and has shaken the confidence of the public in the police force.
Given the desperate nature of the act, it can be inferred that it is a misconduct of the highest order. In the present circumstances where the four delinquents are not joining the enquiry and also given the fact that the witness Anil is an accused in the case registered at the instance of the delinquents, it is not practicable to conduct a fair departmental enquiry. It is quite possible that the witness can be intimidated and threatened. Hence, it is an apt case where an exemplary punishment needs to be awarded to the defaulters so as to send a strong message and to prevent the recurrence of such unacceptable behavior of moral turpitude.
Therefore, the undersigned is satisfied that the acts and grave misconduct of defaulters SI Shekhar No.D-4354 (PIS No. 16080258), SI Sapan No. D-5060 (PIS No 28040139), HC Sonu Rathi No.558/NW (PIS No.28082348) and HC Harphool Meena No.741/NW(PIS No.28031726) attracts the provisions of Article 311 (2) (b) of the Constitution of India and makes then completely unfit for police service.
In order to send a clear message to such undesirable elements in the police force and to maintain discipline as well as to prevent recurrence of such an incident, it has become absolutely imperative to dismiss the defaulters as they are completely unfit for police service. Moreover, their further retention in the department after their involvement in the above mentioned case is absolutely detrimental to public interest.
Therefore, keeping in view the sensitivity of the matter, I Vijayanta Arya, IPS, Deputy Commissioner of Police, North-West Distt., Delhi, hereby order to dismiss 8 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 defaulter SI Shekhar No D-4354 (PIS No.16080258), SI Sapan No. D-5060 (PIS No. 28040139), HC Sonu Rathi No. 558/NW (PIS No. 28082348) and HC Harphool Meena No. 741/NW (PIS No. 28031726) from Delhi Police under Article 311(2) (b) of the Constitution of India with immediate effect. Their suspension period from 24.09.2020 to till issue of this order is also decided as period not spent on duty for all intents and purposes and the same will not be regularized in any manner."
4. From the aforesaid, it is apparent that the applicants were named in the said case FIR. Pursuant to the case FIR inquiry/investigation was got conducted and during such inquiry, CCTV footage of the camera were examined which indicated involvement and role of the applicants in the alleged offences. CDRs of mobile phone numbers of applicants were also analyzed and on such assessment, the culpability of the applicants was found by the Disciplinary Authority. Further, statements of witnesses were also available with the respondents and after considering such statements of the witnesses, analyses of CDRs and CCTV footage and other circumstantial evidence placed on record, it has surfaced to the Disciplinary Authority that the applicants and others misappropriated the recovered contraband "gaanja" and they supposedly sold it to drug peddlers. The Disciplinary Authority has also given a finding that though the applicants and a few others were called several times to confront them with the witnesses, CCTV and CDRs but despite directions, they did not join the enquiry to depose themselves and the same gave credence to their complicity in the act. Going by such consideration and finding, the Disciplinary Authority has arrived at a conclusion that the applicants have committed a misconduct of the highest order and tarnished the image of 9 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 Delhi Police. Such investigation is stated to have been done in compliance of the respondents circular dated 11.09.2007 and the inquiry report was submitted before the higher authority for seeking concurrence to dismiss the applicants under the provisions of Article 311(2)(b) of the Constitution of India and on receipt of such approval, the impugned orders have been passed. It has also been recorded by the Inquiry Officer that as the misconduct has been of the highest order and the four delinquents are not joining the inquiry, it would not be practicable to conduct a fair departmental inquiry and it would be quite possible that witnesses could be intimidated and threatened.
5. Learned counsel for the applicants has argued that the inquiry referred to by the Disciplinary Authority in the impugned order is a preliminary inquiry got conducted by the respondents pursuant to the case FIR and/or investigation done by the investigating officials into the case FIR and that inquiry has admittedly not been a regular departmental inquiry. He has added that during the relevant period, the applicants were under judicial custody and at no point of time applicants have been produced by the respondents to join any kind of inquiry and/or verification.
He has further argued that from the facts recorded in the disciplinary order itself, it is apparent that before a departmental inquiry and/or necessary trial before the court of competent jurisdiction, the Disciplinary Authority has arrived at a conclusion of commission of misconduct of the highest order by the applicants. He has further argued that there is no material or 10 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 evidence to indicate that the applicants have ever threatened and/or intimidated any of the persons who could have been witnesses and/or probable witnesses in the departmental and/or in the criminal case. Despite that, without any material and/or reason therefor, the Disciplinary Authority has come to the conclusion that the applicants could have intimidated and threatened the witnesses and therefore, a fair departmental inquiry was not found possible.
6. Sh. Ajesh Luthra, learned counsel for the applicants has argued that the issue is no more res integra in view of (i) the order dated 06.02.2024 of a Co-ordinate Bench of this Tribunal consisting of one of us (Hon'ble Sh.
R.N. Singh, Member (J)) in OA No. 4351/2018 titled Satyendra Kumar vs. Commissioner of Police & Ors., (ii) order/judgment dated 20.03.2024 of the Hon'ble High Court of Delhi in WP(C) No. 4201/2024 titled Commissioner of Police & Anr. Vs. Jagmal Singh and (iii) order/judgment dated 18.07.2024 of the Hon'ble High Court of Delhi in WP(C) No. 9098/2024 titled Commissioner of Police & Ors. vs. Shri Karam Pal. He has submitted that the order/judgment in the case of Jagmal Singh (supra) has been affirmed by the Hon'ble Apex Court inasmuch as the SLP No. 11681/2024 has been dismissed vide order/judgment dated 10.07.2024.
7. On the other hand, Sh. Sanjeev Yadav, learned counsel for the respondents, by referring to the findings returned by the Disciplinary Authority in the impugned orders and also assertions made by the 11 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 respondents in their counter reply has vehemently opposed the claim of the applicants. He has argued that during the course of inquiry, CCTV footage, statements of witnesses and also the CDRs of mobile numbers of the applicants were analyzed and the delinquency of the applicants was found proved.
8. Learned counsel has further added that a fair inquiry into the matter was got conducted by the ACP/OPS Cell NWD. He has argued that the applicants belong to a disciplined force and delinquency of such highest order was found likely to tarnish the image of Delhi Police. He adds that as and when the applicants were called for joining the investigation, they were not in judicial custody. He has further argued that it is always for the competent authority amongst the respondents to decide as to who is the person suitable for retention and continuation under the respondents or not.
He submits that detailed reasons for passing the impugned orders are there and while exercising the jurisdiction of judicial review, interference by this Tribunal is not required.
9. We have considered the submissions made by the learned counsels for the parties, and with their assistance we have also gone through the pleadings and judgments referred to by them.
10. From a perusal of the Disciplinary Order, it is apparent that pursuant to FIR, the matter was got investigated/inquired, statements of witnesses were recorded, analysis of CDRs and CCTV footage and other circumstantial evidence was also brought on record. Once a preliminary 12 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 inquiry/investigation has been made and admittedly witnesses have come forward to make deposition, evidence in the form of CDRs and CCTV footage were found available, no reason has been given by the Disciplinary Authority as to why a regular departmental inquiry was not possible. It is further evident from the impugned order that on the basis of evidence referred to, the respondents have arrived at a conclusion that the applicants have committed a grave misconduct despite the fact that they have not been afforded an opportunity to defend by conducting a regular inquiry nor they have been found guilty by a Learned Court having jurisdiction.
11. In the impugned order, possibility of the witnesses to be intimidated and threatened has been recorded. However, the same is without any basis therefor and is based only on assumptions and presumptions. The retention of the applicants in the department has been found to be detrimental to public interest on the ground of their involvement in the relevant case FIR.
It is well settled that mere involvement of the employee shall not automatically make him/her unfit for retention in service.
12. Now, the issue arises as to whether after preliminary inquiry was got conducted and there is no reason as to why a regular departmental inquiry is not possible merely for the gravity of offence and/or presumption, the same can be dispensed with by invoking the jurisdiction under provisions of Article 311(2)(b) of the Constitution of India?
13. Now, we may consider the judgments referred and relied upon by the learned counsel for the applicants.
13 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/202314. Paragraphs 9-12 of the order dated 06.02.2024 of this Tribunal in the case of Satyendra Kumar (supra) read as under:
"9. After considering the relevant materials on the subject including circulars dated 28.12.1998 and 11.9.2007 and the case law, this Tribunal has considered the similar issue while deciding a batch of cases, OA No.1383/2020 and others, titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others, etc., vide common Order/Judgment dated 10.2.2022, paras 31, 32 and 45 to 47 read as under:-
"31. It is not that the issue of invoking the provisions of Article 311(2)(b) of the Constitution of India came for consideration before the Hon'ble Apex Court in the aforesaid cases or any other cases before other Court(s) and/or Tribunal(s) only but the same had attracted the attention of the respondents themselves as well and the respondents have themselves emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) of the Constitution of India lightly but only in those cases where it is not reasonably practicable to hold the inquiry. The same is evident from the circular dated 21.12.1993 (Annexure A/10 to OA 467/2020) of the respondents, which reads as under:-
"The Police Officers involved in the case of rape or dacoity or any such heinous offence have been dismissed straightway under Article 311(2)(b) despite the fact that criminal cases have been registered. Such dismissals without holding D.Es are illegal because in such cases D.E. can be conveniently held.
It is, once again emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) lightly but only in those cases where it is not reasonably practicable to hold the enquiry. Whenever the disciplinary authority comes to the conclusion that it is not reasonably practicable to hold an enquiry he must record at length cogent and legally tenable reasons for coming to such conclusion. In the absence of valid reasons, duly reduced in writing, no such order of dismissal etc. with resort to Article 311(2)(b) can be sustainable in law."
32. The issue regarding application of the provisions of Article 311(2)(b) of the Constitution of India came before the Hon'ble Apex Court in various cases and the law stands settled by the Apex Court in the 14 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 Constitution Bench decision in Tulsiram Patel (supra), the similar issue came before the Hon'ble Apex Court, the Hon'ble High Court(s) and the Tribunal(s) in many cases thereafter and after considering the issue at length, this Tribunal had made observation as in para 20 of the Order/Judgment dated 5.6.2007 in the case of Suresh Kumar (supra), noted in paragraph 16 hereinabove. The issue of termination/dismissal of the services of various employees attracted the attention of the respondents themselves. The respondents, after considering the provisions of Article 311(2)(b) of the Constitution of India and the judgment of the Hon'ble Apex Court in the case of Tulsiram Patel (supra) and the Order(s)/Judgment(s) passed by this Tribunal have issued another circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not practicable to hold an inquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and the disciplinary authority has no option but to resort to Article 311(2)(b) of the Constitution of India. The said circular dated 11.9.2007 reads as under:-
"CIRCULAR No. /2007 An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases and only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry.
Though some cases are still pending in the Hon'ble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2) (b) on assumptions and conjectures. No speaking orders were passed based on and supported by material/facts on record for dispensing with prior enquiry. Orders for dismissal were passed arbitrarily violating Article 311 and the principles of natural justice.
Henceforth, it has been decided that whenever any Disciplinary Authority intends to 15 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 invoke Article 311 (2) (b) of the Constitution of India, he must keep in mind the judgment in the case of UOI v. Tulsi Ram Patel, AIR 1985 SC 1416. Only in cases where Disciplinary Authority is personally satisfied on the basis of material available on file that the case is of such a nature that it is not practicable to hold an enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in view of specific circumstances of the case it is not possible that PWs will depose against the defaulter and disciplinary authority has no option but to resort to Article 311 (2) (b) should such an action be taken. Prior to such an order, a PE has to be conducted and it is essential to bring on record all such facts. It has also been decided that before passing on order under Article 311 (2) (b) of the Constitution of India, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.
This has the approval of C.P., Delhi.
Sd/-
(S.N. SRIVASTAVA) JT. COMMISSIONER OF POLICCE:
HDQRS,: DELHI""
"45. In the cases in hand, it is evident that in most of the cases preliminary inquiry had admittedly been done and regular enquiry had been dispensed with on the ground of possibility of witnesses likely to be unduly harassed or pressurized by the delinquent(s). In all the case FIRs, chargesheet had been filed, list of witnesses had been filed, a few witnesses had been examined or after tiral the accused(s) had been acquitted. In a few cases, the reason for dispensing with the enquiry had been given that the material had come on record to prove the criminal acts of the applicants. The reason had been also of threat to discipline, integrity and morality of the entire police force. On perusal of the impugned orders, it is evident that either the authorities have passed the orders of dispensing with the enquiry on jumping to the conclusion that delinquency or guilt of the applicants as alleged in the case FIRs stood proved even without regular enquiry in the departmental proceedings or trial in the concerned learned court(s). In most of the cases, conclusion about delinquency and commission of the offence(s) by the applicant(s) had been arrived merely on the 16 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 basis of the preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made to summon the witness(es) to lead the evidence against the applicant(s) or anything was found that on regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) to lead evidence against the applicant(s). Rather the respondents have themselves filed the final challan(s) with a list of witness(es) before the concerned learned Court(s) and in a few cases, the accused(s) had been acquitted as well. In a few cases, witnesses have been examined before the concerned learned Court(s). Moreover, codelinquent in the cases of Neeraj Kumar (supra) and Ramesh Kumar (supra), the similar impugned orders have been set aside by the Tribunal and the orders of the Tribunal have also attained finality.
46. It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and 17 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
47. It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove."
10. Keeping in view the above, we have carefully perused the impugned order dated 30.3.2018, we find that nothing has been recorded in the impugned order or shown to us that the applicant had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). From the impugned order, it is evidently clear that there is no evidence that despite their best efforts, the respondents would not have been able to produce the witness(es) to lead evidence against the applicant. Further nothing is brought on record that witness(es) has/have been threatened by the applicant or they were too scared of the applicant to come forward in the regular enquiry proceedings. It is also found that the disciplinary authority while passing the impugned order has very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant, as no reason at all has been recorded in this regard.
11. Having regard to the above, we are of the view that impugned order passed by the respondents is not only in violation of the settled law but also of their own circulars dated 28.12.2018 and 11.9.2007. The reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove.
12. Keeping in view that the applicant's appeal against the impugned order of penalty was not disposed of by the respondents, normally, we could have remanded the matter for disposal of the said appeal, however, keeping in view the fact that the applicant has approached this Tribunal after a lapse of statutory period in the year 2018 and even during pendency of this OA for almost six years, the respondents hae chosen not to dispose of the same coupled with the fact that they have justified the impugned order by way of a detailed counter reply, matter needs to be disposed on merit."
18 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/202315. Paragraphs 10 and 11 of the order/judgment dated 20.03.2024 of the Hon'ble High Court in the case of Jagmal Singh (supra), read 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."
16. Paragraphs 7-21 of the common order/judgment dated 18.07.2024 of the Hon'ble High Court in the case of Shri Karam Pal (supra) read as under:
"7. The provision under Article 311(2) of the Constitution of India has been the subject matter in plethora of judicial as well as administrative pronouncements, since this salutary provision protects the government servant from vengeful and/or arbitrary termination of her services. Such protection is vital for any government servant so as to enable her to take decisions and act according to best of her wisdom in national interest. This provision flows from the core of jus naturale that no administrative action adverse to a person can be sustained if taken without affording a fair opportunity to the said person to be heard. In the matters of termination of services or any other 19 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 punishment sought to be inflicted on the government servant, the Departmental Enquiry into the allegations is an important facet of right to be heard, whereby the effected government servant would have an opportunity to challenge the truthfulness of the allegations leveled against her. In view of extreme disparity of power between the State and the Subject, it is necessary that the Subject be not deprived of a fair opportunity to defend herself.
8. Another paradigm is that in order to ensure that personal vendetta of any officer serving the government should not lead to depriving the State services of an efficient and competent employee, the allegations must be tested through Departmental Enquiry. In other words, the proceedings of Departmental Enquiry are to the benefit of not just the Subject but the State as well.
9. It is keeping in mind the aforesaid that the provision under Article 311 of the Constitution of India has to be analyzed. It would be apposite to quote the provision here:
"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 Slate 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 is 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.20 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023
(3)If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final".
10. The provision under Article 311 of the Constitution of India as quoted above, read in its entirety amply shows that the basic principle is that no government servant shall be dismissed or removed or reduced in rank except after an enquiry in which she has been informed of the charges against her and has been given a reasonable opportunity of being heard on those charges; and that the penalty imposed upon her has to be only on the basis of evidence adduced during such enquiry. After laying down this basic principle, the provision carves out exceptions to the effect that the enquiry into the charges can be dispensed with in case where the misconduct has led to conviction of the government servant or where the President or the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold such enquiry or "where the authority empowered to dismiss or remove a person or reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to hold such enquiry". It is the italicized quoted portion of Article 311(2)(b) of the Constitution of India, with which we are concerned.
11. It is trite that while interpreting any statute, the exception through proviso cannot be read in such a manner so as to negate the main provision. The main provision under Article 311 of the Constitution of India is that no dismissal or removal or reduction in rank of a government officer is permissible without any Departmental Enquiry. One of the exceptions to the said principle is in the form of Article 311(2)(b) of the Constitution of India and the same has to be read as an exception only and not otherwise. Even the mandate issued in Article 311(2)(b) of the Constitution of India to the effect that the concerned authority has to record her satisfaction by way of reasons to be recorded in writing, shows that this provision is not to be invoked lightly.
12. The Constitution Bench of the Supreme Court of India in the case of Union of India vs Tulsi Ram Patel, (1985) 3 SCC 398 examined the legal position under Article 311(2)(b) of the Constitution of India and held that the condition pre-requisite to invoke powers under Article 311(2)(b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" an enquiry contemplated by Article 311(2). Elucidating the distinction between the expressions "not reasonably practicable" and "impracticable", as well as "reasonably not practicable" and "not practicable", the apex court held 21 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 that what is required for invoking Article 311(2)(b) is that holding of the enquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. The Hon'ble Supreme Court further held that it is not possible to enumerate the circumstances in which it would not be reasonably practicable to hold enquiry, though some such circumstances may be where the government servant personally or through associates so terrorizes, threatens or intimidates the witnesses, who are expected to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant himself or through his associates threatens, intimidates or terrorizes the disciplinary authority or any member of his family so as to scare him from holding the enquiry or where an atmosphere of violence or general indiscipline and insubordination prevails. It is the disciplinary authority which has to assess the situation while coming to record its satisfaction that it would not be reasonably practicable to hold enquiry.
13. In the case of Jaswant Singh (supra) the Supreme Court held that when satisfaction of the disciplinary authority about reasonable impractability of holding an enquiry under Article 311(2)(b) is questioned in court, it is for the State to establish that the satisfaction is based on objective facts and not on whims of the concerned officer.
14. In the case of Commissioner of Police & Anr. vs. Jagmal Singh, 2024:DHC:2259-DB, a coordinate bench of this court in which one of us (Girish Kathpalia, J.) was a member, the justification for invocation of powers under Article 311(2)(b) advanced on behalf of petitioners was that they had dispensed with the departmental enquiry against the concerned official because the nature of allegations levelled against was grave and the official concerned tarnished the image of the organization, which called for an exemplary punishment in order to send a stern message to undesirable persons in service. The justification was rejected by the learned Tribunal as well as this court, holding the same not covered by the parameters within which such powers have to be invoked.
15. In the case of Govt. of NCT of Delhi & Ors. vs. Dushyant Kumar, 2024:DHC:1247-DB, a coordinate bench of this court while dealing with similar issue extracted two important guidelines as follows:
"9. Having considered the rival submissions of learned counsel for the parties, we may begin by noting the Circular dated 21.12.1993 which succinctly lays down the guidelines for dealing with situations, where decision is taken to dispense with the enquiry by resort to Article 311(2)(b) of 22 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 the Constitution of India. The same reads as under:-
"The Police Officers involved in the case of rape or dacoity or any such heinous offence have been dismissed straightway under Article 311 (2)(b) despite the fact that criminal cases have been registered. Such dismissals without holding D.Es are illegal because in such cases D.E. can be conveniently held.
It is, once again emphasized that the Disciplinary Authority should not take resort to Article 311 (2)(b) lightly but only in those cases where it is not reasonably practicable to hold the enquiry. Whenever the Disciplinary Authority comes to the conclusion that it is not reasonably practicable to hold an enquiry he must record at length cogent and legally tenable reasons for coming to such conclusion. In the absence of valid reasons, duly reduced in writing, no such order of dismissal etc. with resort to Article 311 (2)(b) can be sustainable in law."
10. We may also now refer to petitioners' subsequent Circular dated 11.09.2007, which again reiterates that an enquiry must not be dispensed with lightly. The same reads as under:
"CIRCULAR No. /2007 An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry.
Though some cases are still pending in the Hon'ble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2) (b) on assumptions and conjectures. No speaking orders were passed based on and supported by material/facts on record for dispensing with prior enquiry. Orders for dismissal were passed arbitrarily violating Article 311 and the principles of natural justice.23 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023
Henceforth, it has been decided that whenever any Disciplinary Authority intends to invoke Article 311 (2) (b) of the Constitution of India, he must keep in mind the judgment in the case of UOI v. Tulsi Ram Patel, AIR 1985 SC 1416. Only in cases where Disciplinary Authority is personally satisfied on the basis of material available on file that the case is of such a nature that it is not practicable to hold an enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in view of specific circumstances of the case it is not possible that PWs will depose against the defaulter and Disciplinary Authority has no option but to resort to Article 311 (2) (b) should such an action be taken. Prior to such an order, a PE has to be conducted and it is essential to bring on record all such facts. It has also been decided that before passing on order under Article 311 (2) (b) of the Constitution of India, Disciplinary Authority has to take prior concurrence of Spl. CP / Admn. This has the approval of C.P., Delhi.
Sd/-
Jt.Commissioner of Police, HDQRS; Delhi"
(emphasis supplied)
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 24 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 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 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 25 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/2023 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."
17. From the aforesaid, it is apparent that the issue involved in the present case is squarely covered and already settled by the Hon'ble High Court of Delhi in the aforesaid cases of Jagmal Singh (supra) and Shri Karam Pal (supra). The identical issue also came up for consideration before this Tribunal in the case of Satyendra Kumar (supra) and decided vide order dated 06.02.2024.
18. Further, we may record that the applicant filed an appeal on 05.08.2021 and despite lapse of six months thereafter, the said appeal was not disposed of, he filed the present OA only in December, 2023 with a Miscellaneous Application No. 4407/2023 seeking condonation of delay which was allowed by this Tribunal on 16.01.2024. Normally, we would have remanded the matter for disposal of the said appeal, however, keeping in view the fact that the applicants have approached this Tribunal after a lapse of statutory period in the year 2023 and even during pendency of this OA, the respondents have chosen not to dispose of the same coupled with the fact that they have justified the impugned order by way of a detailed counter reply, matter needs to be disposed on merit. In this regard as well, we may refer paragraph 12 of the order of this Tribunal in Satyendra Kumar (supra).
26 Item No. 29 & 30 Court-2 OA No. 3824/2023 OA No. 3884/202319. Accordingly, the OA is allowed with the following orders:
(i) impugned order dated 28.09.2020 (Annexure A-1) is set aside;
(ii) the applicants shall be reinstated into service forthwith;
(iii) the applicants shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject;
(iv) the respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and
(v) the respondents shall be at liberty to initiate disciplinary proceedings against the applicants, if they so decide, however, in accordance with law.
20. However, in the facts and circumstances of the case, there shall be no order as to costs.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/NS/