Central Administrative Tribunal - Delhi
Manoj Chhikara vs Gnctd on 3 October, 2024
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Item No. 06 (C-3)
O.A. No. 2277/2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2277/2023
This the 03rd day of October, 2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Manoj Chhikara,
S/o Sh. Dharambir Singh
Age-39 years
R/o- Village Ladrawan V.P.O. Ladravan, Distt. Jhajjar,
Tehsil Bhahdurgarh, Haryana-124507
... Applicant
(By Advocate: Mr. Sachin Chauhan, Ms. Ridhi Dua and Mr.
Abhimanyu Baliyan)
Versus
1. Govt. of NCT of Delhi
Through the Chief Secretary,
Govt. of NCTD,
A-Wing, 5th Floor,
Delhi Secretariat, New Delhi-110003.
2. The Commissioner of Police
Police Headquarters,
Jai Singh Road
New Delhi.-110001.
3. The Joint. Commissioner of Police,
Central Range, Delhi
Through The Commissioner of Police
Police Headquarters,
Jai Singh Road New Delhi-110001
4. The Dy. Commissioner of Police,
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Item No. 06 (C-3)
O.A. No. 2277/2023
Central District, Delhi
Through The Commissioner of Police
Police Headquarters, Jai Singh Road
New Delhi-110001.
... Respondents
(By Advocate: Mr. Amit Sinha)
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Item No. 06 (C-3)
O.A. No. 2277/2023
O R D E R (ORAL)
Hon'ble Mrs. Pratima K. Gupta, Member (J):-
The applicant was appointed as Constable with the Delhi Police on 04.04.2009. On 20.03.2021, the applicant was falsely implicated in a criminal case on the basis of a compliant regarding attempted malpractices during Indian Coast Guard Recruitment Exam conducted at Port Blair.
The FIR No. 0026/21 was registered against him U/s 419, 420/120B IPC r.w.s. 65/66//66D/72A of the IT Act, 2000 at Police Station, Pahargaon. Pursuant to the FIR, the applicant was arrested on 21.03.201 and was granted interim bail on 22.04.2021. During the interregnum, a preliminary enquiry was conducted by the respondents and in pursuance of the same, they have invoked the provisions of Article 311(2)(b) and dismissed the applicant from service vide order dated 18.08.2021. The applicant had preferred an appeal before Appellate Authority which has been rejected by the respondents vide order dated 27.02.2023.
Accordingly, the applicant has preferred the present O.A. seeking the following relief(s):-4
Item No. 06 (C-3) O.A. No. 2277/2023 " 8.1 To set aside order dated 18.08.2021 whereby the extreme punishment of dismissal from service is inflicted upon the applicant and order dated 27.02.2023 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents to reinstate the applicant back in service with all consequential benefits including seniority & promotion and pay & allowance And/or Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant."
2. Mr. Sachin Chauhan, learned counsel for the applicant, in support of the cause of the applicant, while drawing attention to the impugned order dated 18.08.2021 (Paras 1 and 2) submits that besides many others, there were two accused named in the FIR , the applicant and one Mr. Mohit Yadav, who, too is a Constable with Delhi Police. Learned counsel submits that with respect to Mr. Mohit Yadav the respondents have chosen to conduct a regular departmental proceeding as is reflected vide order dated 01.10.2021 (Page 63/Annexure A5), while the respondents have discriminated against the applicant dismissing him by invoking the provisions of Article 311(2)(b).The relevant portion of the order dated 01.10.2021 reads as under:-
"On registration of the case FIR, the local police found that Const. Mohit Yadav No 132/RB and accused Manoj Chhikara hatched conspiracy to clear accused Praveen Kumar the online Coast Guard Navik GD 5 Item No. 06 (C-3) O.A. No. 2277/2023 examination by cheating, for hefty monetary consideration Const. Mohit Yadav was a batch-mate of Const. Manoj Chhikara in Delhi Police. Const. Mohit was in continuous touch with Manoj Chhikara during the period while Praveen Kumar was at Port- Blair and during the online Navik GD examination, which were to be held in March-2021 Const Mohit Yadav came in an agreement with Manoj Chhikara & his partners and they decided to select Port Blair as centre for appearing for examination which was to be conducted at Elite Computer Solution, Port Blair. Const Mohit Yadav booked Praveen Kumar's flight tickets for Port Blair and met accused Rajesh and Praveen at Delhi Airport to get conducted RTPCR Test. The accused person were remotely connected system at examination center to a system at Delhi, which enabled them to solve accused Praveen Kumar's examination paper and submit them on time. After the examination, Majoj Chhikara informed Const. Mohit Yadav about the number of questions attended by Praveen Kumar and he was assured by Manoj Chhikara that Praveen Kumar will clear the examination."
3. He draws attention to the impugned order and submits that the reason for dispensing with the disciplinary proceedings, as outlined in the impugned order, is that the allegations were serious. Therefore, it was not reasonable and practical to conduct regular disciplinary proceedings against the applicant. He submits that the appellate order was passed on the basis of surmises and conjectures relying upon the law of probability which cannot be allowed to be sustained. He further draws attention to the order of the Hon'ble High Court of Delhi in W.P.(C) NO. 11276/2024 on 6 Item No. 06 (C-3) O.A. No. 2277/2023 14.08.2024. The relevant portion of the said order reads as under (emphasis supplied) :-
"21. Before parting with this matter, we hereby direct the Commissioner of Police, Delhi to personally look into such matters and take proper decision so that Courts/Tribunals are not burdened with a case where departmental inquiries can be initiated. We hereby make it clear that if such like petitions are filed in future wherein dismissal or suspension orders are passed without holding any enquiry without any plausible reasoning, certainly heavy cost will be imposed and that too, will be recovered from the Officer, who takes such type of unwarranted decision."
He draws attention to another order of the Hon'ble High Court of Delhi in W.P.(C) No. 12573/2024 on 20.09.2024. The same reads as under:-
"1. Learned counsel for petitioner, on instructions, submits that in view of judgment dated 14.08.2024 passed by this Court in W.P.(C) 11276/2024 titled as The Commissioner of Police & Ors. Vs. Om Prakash & Anr., petitioners may be allowed to withdraw the present petition.
2. Accordingly, the present petition is dismissed as withdrawn.
3. Petitioners are directed to examine all such petitions pending before this Court which are falling under similar circumstances and to file application to withdraw the said petitions, if they consider it necessary."
4. Mr. Amit Sinha, learned counsel for the respondents, vehemently opposes the O.A. He states that in the appeal 7 Item No. 06 (C-3) O.A. No. 2277/2023 preferred by the applicant he has not mentioned that he was not involved in the FIR. Therefore, he submits that the contents of the appeal itself confirm the fact that the applicant was involved in the crime and his conduct was such that persuaded the respondents to invoke the provisions of Article 311(2)(b) and not to proceed with the regular disciplinary proceedings.
5. We have heard the learned counsel for the parties as also gone through the pleadings on record along with the original record produced by the respondents.
6. In order to decide this O.A. it would be worthwhile to examine the impugned order in detail. The order explicitly mentions two names, that is, Mr. Mohit Yadav and Mr. Manoj Chhikara (the present applicant). Both of them are constable with the Delhi Police and are named as accused in the same FIR. Mr. Mohit Yadav has been subjected to regular disciplinary proceedings as reflected in order dated 01.10.2021 and given an opportunity to defend himself while the present applicant has been dismissed from service by invoking the provisions of Article 311(2) (b) that too for the 8 Item No. 06 (C-3) O.A. No. 2277/2023 same charges. It is apparent that the applicant has been discriminated against.
7. Further, the reasons mentioned in the impugned order by the respondents for invoking such a punishment are (1) facts and circumstances of the case are serious; (2) there was a reasonable belief that witnesses would not come forward and (3) the applicant was in an influential position. This a reproduction of the reasons reflected in the original record. All the three reasons are based on law of probability. Hence, the respondents cannot be allowed to bet on a lower probability and invoke the provisions of Article 311(2)(b).
8. We are guided by the decision of a coordinate Bench of this Tribunal in O.A. No. 1383/2020 and Batch dated 10.02.2022 and O.A. No. 542/2023 dated 16.04.2024. For the sake of better clarity, the order in O.A. No. 542/2023 reads as under:-
"Heard the learned counsels for the parties. With their assistance, we have also perused the pleadings available on record and the judgments cited by them in support of their claim and counter claim.
2. Learned counsels for the parties agree that in both the captioned Original Applications (OAs) impugned order(s) passed by the Disciplinary Authority are common and the impugned Appellate 9 Item No. 06 (C-3) O.A. No. 2277/2023 Order has been passed by the concerned Appellate Authority. They further agree that the issue involved in the captioned matters is identical. In this view of the matter, both the OAs have been heard together and are being disposed of by a common order. However, for the sake of writing this order, the facts are being taken from OA No. 542/2023.
3. The undisputed facts are that the applicant was appointed under the respondents as Constable on 01.08.2007. He was further promoted to the post of Head Constable in May, 2022. While working as such, he was involved in a criminal case FIR No. RC0032022A0050 dated 22.07.2022 under section 120B IPC and Section 7 of Prevention of Corruption Act, 1988, registered with the CBI, Anti Corruption Branch, New Delhi. The applicant was arrested on 23.07.2022 by the CBI Anti Corruption Branch, Delhi in the said case FIR for alleged demanding and accepting bribe. Keeping in view the complaint and verification made by the Inspector of the CBI in respect of the allegations, the said FIR under the aforesaid Sections were registered and keeping in view such facts and circumstances, the respondents herein ordered for a preliminary enquiry vide order dated 28.07.2022 and entrusted the same to an Inspector in Vigilance Branch. Pursuant to the preliminary enquiry, the matter was considered by the Disciplinary Authority amongst the respondents and the Disciplinary Authority passed the impugned order dated 10.08.2022 whereby applicants in both the captioned OAs were dismissed from service with immediate effect by invoking the 10 Item No. 06 (C-3) O.A. No. 2277/2023 provisions of Article 311(2)(b) of the Constitution of India. Vide the said order, the suspension period has been decided as period "not spent on duty for all intents and purposes" and with further order that the same will not be regularized in any manner.
4. Aggrieved by the impugned disciplinary order, the applicants preferred statutory appeal and the same was rejected by the Appellate Authority vide impugned order dated 25.01.2023 (Annexure A-2).
Thus, the present OA filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"8.1 To set aside order dated 10.8.2022 whereby the extreme punishment of dismissal from service is inflicted upon the applicant and order dated 25.1.2023 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents to reinstate the applicant back in service with all consequential benefits including seniority & promotion and pay & allowance And/or Any other relief which this Hon‟ble Court deems fit and proper may also awarded to the applicant."
5. The claim as made in the OA has been contested by the respondents by filing detailed counter reply with prayer therein to dismiss the OA with cost. In response thereto, the applicant has filed rejoinder wherein he has reiterated his claim and the grounds pleaded in support thereof.
6. The reasons for dispensing with the regular inquiry and for invoking the jurisdiction as provided under the provisions of Article 311(2)(b) of the Constitution of India, the Disciplinary Authority has 11 Item No. 06 (C-3) O.A. No. 2277/2023 recorded the reason as would be evident from the impugned Disciplinary Order dated 10.08.2022 and the same reads as under:
"During enquiry it is established that on the basis of available collected evidences and the facts surfaced during PE, the quantum of culpability and misconduct on the part of above said Head Constables found to be grossly grave in nature and allegation of demanding and taking bribe is proved."
7. Further, in the subsequent paragraph of the same impugned order dated 10.08.2022, the Disciplinary Authority has recorded the reason for arriving at the conclusion and the same reads as under:
"The involvement of HC (Exe.) Deepak, No. 3145/OD (28071693) and HC (Exe.) Satish Kumar, No. 1584/OD (28081111) in such a shameful, corrupt activity has eroded the faith of common people in Police force and their continuance in the force is likely to cause further irreparable loss to the functioning and credibility of the Delhi Police. They did not perform their duty in professional manner within the legal periphery. They have indulged themselves in the most abominable act of demanding and accepting bribe is not expected from an official of a uniformed force. This requires a prompt and instant punitive action. It has been observed that the facts and circumstances of the case were so serious that it will not be reasonable practicable to conduct a regular Departmental Enquiry against HC (Exe.) Deepak, No. 3145/OD and HC (Exe.) Satish Kumar, No. 1584/OD, as there is a reasonable belief that the defaulter who may use their job to influence the statements/deposition of witnesses during Departmental Enquiry."
8. Similarly, further reason as recorded by the Disciplinary Authority in the said impugned order for dispensing with the regular inquiry is recorded as follows:
"I am personally satisfied that conducting a regular Departmental Enquiry against them will take a considerable long period and it is not practicably possible. Further, an extended 12 Item No. 06 (C-3) O.A. No. 2277/2023 departmental enquiry would only cause more traumas to the victims. It is clear instance of law enforcers turning into law breakers. Hence, it is a case where an exemplary punishment needs to be awarded to the defaulters, so that it proves to be an eye opener to the others.
Further, the shameful act committed by HC (Exe.) Deepak, No. 3145/OD and HC (Exe.) Satish Kumar, No. 1584/OD have 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. 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 has become absolutely necessary to dismiss HC (Exe.) Deepak, No. 3145/OD (PIS No. 28071693) and HC (Exe.) Satish Kumar, No. 1584/OD (PIS No. 28081111) for service as they are completely unfit for police service."
9. As apparent from the impugned Appellate Order dated 25.01.2023, the Appellate Authority has recorded the background of the aforesaid case FIR, the order of preliminary inquiry as well as the decision of the Disciplinary Authority that the involvement of the applicants in such a shameful, corrupt activity has eroded the faith of common people in Police force and their continuance in force was likely to cause further irreparable loss to the functioning and credibility of the Delhi Police. The Appellate Authority in its order dated 25.01.2023 has though precisely recorded various grounds pleaded by the applicant in his appeal, however, he has neither dealt with any of such pleas of the applicant nor he has given any reason 13 Item No. 06 (C-3) O.A. No. 2277/2023 for ignoring such pleas while reaching to the conclusion for rejecting the statutory appeal.
10. On perusal of the impugned orders, it is apparent that the respondents have invoked their jurisdiction as available to them under the provisions of Article 311(2)(b) of the Constitution of India on the grounds (i) involvement of the applicants in a case of corruption, (ii) findings recorded by the official conducting the preliminary inquiry,
(iii) finding to the effect that the law enforcers have turned into law breakers, (iv) involvement of the applicants in shameful and corrupt activity which has eroded the faith of the common people in Police force and their continuance in the force is likely to be the cause of further irreparable loss to the functioning and credibility of Delhi Police, (v) the delinquents did not perform their duties in professional manner within the legal periphery and (vi) the Authorities concluded that the applicants have indulged themselves in the most abominable act of demanding and accepting bribe which is not acceptable from an officer of a uniformed force.
11. Sh. Sachin Chauhan, learned counsel appearing for the applicant has argued that the reasons recorded for invoking the provisions of Article 311 (2)(b) of the Constitution of India in the impugned order are not sustainable in the eyes of law inasmuch as the same are not based on any evidence and/or any material sustainable in the eyes of law. The reasons recorded are based on suspicion, surmises and conjectures. Once a preliminary inquiry is found possible, no reason has been recorded as to how a regular 14 Item No. 06 (C-3) O.A. No. 2277/2023 departmental inquiry may not be possible. The gravity of the alleged offence has led the authorities to pass the impugned orders without appreciating the fact that the gravity of the allegations will not make the applicants to be convicted. The respondents have violated their own circulars dated 11.09.2007 (Annexure A-4) read with circular dated 17.04.2018 (Annexure A-5). Sh. Chauhan has also argued that the orders passed by the respondents for similar reasons have been dealt with by this Tribunal in catena of cases wherein the same have not been found sustainable in the eyes of law. He has further argued that in the criminal case the challan under Section 173 CrPC has been filed before the Learned Court of competent jurisdiction. Charges have been framed and matter has been posted for examination of prosecution witnesses. He has further submitted that in the criminal trial in the said case FIR, reliance has been placed by the prosecution on 19 witnesses and except two witnesses all are official witnesses i.e. officer(s)/official(s) from CBI/Delhi Police, CFSL etc. He argues that if preliminary inquiry was possible on the basis of the available documents and witnesses who have been flagged as prosecution witness in the criminal case, why a regular departmental inquiry was not possible. He has further added that it is also not the case of the respondents that at no stage, the applicants and/or anybody on their behalf has even attempted to influence and/or co-oercing any of the witnesses and/or probable witnesses in the matter.
12. In support of his arguments, he has placed reliance on the following:
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Item No. 06 (C-3) O.A. No. 2277/2023
(i) judgment dated 11.03.2021 of this Tribunal in OA No. 1912/2015 (Annexure A-7) titled Kripal Singh vs. GNCT of Delhi & Ors.;
(ii) common order/judgment dated 10.02.2022 in OA No. 1383/2020 titled Ct. Sumit Sharma Vs. GNCTD & Ors. with a batch of OAs (Annexure A-8);
(iii) order/judgment dated 19.02.2024 in WP(C) No. 2407/2024 of a Division Bench of the Hon'ble High Court of Delhi in Govt. of NCT of Delhi & Ors. Vs. Dushyant Kumar; and
(iv) order/judgment dated 13.03.2024 in WP(C) No. 10452/2023 of a Division Bench of the Hon'ble High Court of Delhi in Govt. of NCT of Delhi & Ors. Vs. Ex Ct. Naeem Khan.
13. On the other hand, Sh. Amit Yadav, learned counsel appearing for the respondents by referring to the impugned orders and assertions made in the counter reply has very vehemently opposed the claim of the applicants. He has argued that in such matters, Disciplinary Authority is always the master of facts and he is the best suited to ascertain the factual matrix whether a regular inquiry is possible or not and in such circumstances, only the disciplinary authority knows as to whether regular disciplinary inquiry is to be conducted and/or to be dispensed with. Sh. Yadav argues that unless the reasoning recorded by the authorities is found to be illegal, indulgence of this Tribunal while exercising the power of judicial review is not warranted. He has further added that in the case in hand, not only the concurrence of the competent authority under the respondents was 16 Item No. 06 (C-3) O.A. No. 2277/2023 given but the Appellate Authority has also considered the entire facts and all relevant records and only after recording the reasons, he has rejected the applicant's statutory appeal.
14. To support his arguments, he has referred to various judgments including a Division Bench judgment of the Hon'ble High Court of Delhi dated 13.07.2007 in WP(C) No. 2295/2007 titled Parveen Kumar vs. Commissioner of Police and Ors. However, he has fairly submitted that those judgments have been considered by this Tribunal while passing the common order in the case of Ct. Sumit Sharma (supra). Despite that, Sh. Yadav has invited our attention to paragraph 17 of judgment of the Hon'ble High Court of Delhi in the case of Parveen Kumar (supra) wherein the Hon'ble High Court of Delhi has considered the judgment of the Hon'ble Apex Court in the case of S.R. Bommai vs. Union of India and Ors.
15. We have considered the submissions made by the learned counsels for the parties. We have also gone through the order/judgment referred and relied upon by the learned counsels for the parties.
16. In the case of Kripal Singh (Supra), after considering a catena of judgments of Hon'ble Supreme Court, the Hon'ble High Court of Delhi, the respondents own circular dated 11.09.2007 under reference, the Tribunal held in paragraphs 20-22 as under:
"20. In view of various judgments and the rules, referred to hereinabove, it is evident that before dispensing with an inquiry subjective satisfaction is to be arrived at by the disciplinary authority that it is not reasonably practicable to hold a regular departmental inquiry. The reasons must 17 Item No. 06 (C-3) O.A. No. 2277/2023 be recorded which must be based on objective criterion and not on the whims and fancy of the disciplinary authority. The reasons given by the disciplinary authority must reflect the actual ground reality which makes it impossible for the disciplinary authority to order departmental inquiry. The inquiry cannot be dispensed with lightly or arbitrarily or out of ulterior motive or merely in order to avoid holding of a departmental inquiry. If it is a case that preliminary inquiry has been conducted, statements there from may be brought on record of the departmental proceedings when the witnesses are no longer available. The Enquiry Officer may bring on record any other document from the file of the preliminary enquiry, if he considers it necessary after supplying copies to the accused officer. However, in absence of any document to support that the witnesses are not traceable, they are not willing to come forward to adduce their evidence or the said witnesses are threatened, intimidated or coerced, terrorised, influenced by and/or on behalf of the delinquent for leading their evidence or security of the State is likely to put under danger etc., it may not be sufficient to say that the departmental proceeding is not reasonably practicable. However, it may suffice in saying that departmental inquiry is not probable whereby an atmosphere of violence or of any general indiscipline and insubordination prevails or the delinquent is in affiliation with criminals. Furthermore, the provisions of Rule 15 of the Delhi Police (Punishment & Appeal) Rules, 1980 clearly indicate that the purpose is not only to judge acquaintance of default but also to collect prosecution evidence and to bring on record relevant documents to facilitate a regular departmental inquiry. Mere gravity of the allegations against the defaulter shall not be sufficient and good reason not to hold that the enquiry is not reasonably practicable. The word „Practicable‟ has been considered and explained by the Hon‟ble High Court of Delhi in the case of R.K. Mishra (supra).
21. From the facts recorded hereinabove, it is evident that inquiry report dated 22.10.2014 was 18 Item No. 06 (C-3) O.A. No. 2277/2023 based on the statements, relevant documents and also the statement of victim under Section 164 of Cr.P.C. In spite of the fact that report appearing to be on the basis of the statement, documents as well as statement of victim under Section 164 of Cr.P.C., the disciplinary authority in absence of any material came to the conclusion about criminal propensity and immoral attitude of the applicant and also that in all the probability that witnesses/complainant would not come forward to depose against him in case a departmental inquiry is initiated against him. There is nothing on record to show that any effort has been made by the respondents to conduct the departmental enquiry. Further, there is nothing on record to support such conclusion of the disciplinary authority that departmental enquiry is not reasonably practicable in as much as there is not even an allegation that any of the prosecution witnesses including the victim has been terrorized, intimated, coerced and/or has/have been adversely influenced by the applicant and/or on his behalf by anybody else. Rather it appears from the very inquiry officer‟s report that certain statements were recorded by the inquiry officer. It is further evident from the Order/Judgment dated 18.1.2020 of the learned Trial Court that 8/9 prosecution witnesses including the victim, the doctor, police officials and other witnesses have not only joined the preliminary investigation but have also come forward and have adduced their evidences in the criminal trial. Such facts also indicate that the disciplinary authority has ignored the directions of the Commissioner of Police contained in Circular dated 11.9.2007, referred to hereinabove, wherein it is mandated that whenever any disciplinary authority intends to invoke Article 311 (2) (b) of the Constitution of India, he must keep in mind the Judgment of the Hon‟ble Supreme Court in the case of Tulsi Ram Patel (supra) and only in those cases where the 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 the specific circumstances of the 19 Item No. 06 (C-3) O.A. No. 2277/2023 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) of the Constitution of India. It is further pertinent to note that applicant in his appeal (Annexure A/2) has taken various grounds. However, the appellate authority without dealing with the same has mechanically upheld the order passed by the disciplinary authority and has rejected the appeal of the applicant.
22. In view of the facts and circumstances of the case in hand, we are of the considered view that reasons assigned by the respondents for coming to the conclusion that it was not reasonably practicable to hold departmental inquiry are not at all satisfactory. The reasons recorded by the disciplinary authority for dispensing with the departmental inquiry are not convincing and the same do not connect with any material on record and accordingly, the same are not acceptable in the eyes of law."
17. In the case of Ct. Sumit Sharma, this Tribunal had occasion to consider various judgments of the Hon'ble Apex Court, Hon'ble High Court of Delhi and various orders of this Tribunal as well as the circular dated 11.09.2007 of the respondents under reference and the tribunal held in paragraphs 45-47 as under:
"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 20 Item No. 06 (C-3) O.A. No. 2277/2023 the impugned orders, it is evident that either the authorities have passed the orders of dispensing with the enquiry on jumping to the conclusion that delinquency or guilt of the applicants as alleged in the case FIRs stood proved even without regular enquiry in the departmental proceedings or trial in the concerned learned court(s). In most of the cases, conclusion about delinquency and commission of the offence(s) by the applicant(s) had been arrived merely on the basis of the preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made to summon the witness(es) to lead the evidence against the applicant(s) or anything was found that on regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) to lead evidence against the applicant(s). Rather the respondents have themselves filed the final challan(s) with a list of witness(es) before the concerned learned Court(s) and in a few cases, the accused(s) had been acquitted as well. In a few cases, witnesses have been examined before the concerned learned Court(s). Moreover, co-delinquent in the cases of Neeraj Kumar (supra) and Ramesh Kumar (supra), the similar impugned orders have been set aside by the Tribunal and the orders of the Tribunal have also attained finality.21
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46. It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon‟ble Supreme Court and Hon‟ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
47. It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove."
18. The Hon'ble High Court of Delhi in the case of Dushyant Kumar (supra) had considered the circular of 11.09.2007 as well as 21.12.1993 of the respondents and in paragraphs 12-16 has held as under:
"12. We find that in support of the petition, learned counsel for the petitioners has simply submitted that once the Appellate Authority has, after giving an opportunity of hearing to the respondent, come to a conclusion that it was a fit case where the respondent should be dismissed without any enquiry, the learned Tribunal could not have interfered with the said decision. We are, however, unable to agree. No doubt, it is for the Disciplinary Authority to decide whether in a case it is not reasonably practical to hold an 22 Item No. 06 (C-3) O.A. No. 2277/2023 enquiry, but this decision has to be necessarily based on cogent reasons. Learned counsel for the petitioners has not been able to provide any reason, much less to say any cogent reasons, not to hold any enquiry against the respondent. There is neither any plea that the respondent is in any influential position nor any plea of threat to or intimidation to the witnesses by him.
13. Finally, we may refer to the relevant extracts of the impugned order as contained in paragraph nos.9 to 11, which read as under:
9. Having regard to the above, we have carefully perused the impugned order(s), we find that nothing has been recorded in the impugned order(s) or shown to us that the applicant had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). From the impugned orders, it is also evident that neither any effort was made by them to conduct an enquiry, nor there is any evidence that despite their best efforts, the respondents would not have been able to produce the witness(es) to lead evidence against the applicant. Further nothing is brought on record that witness(es) has/have been threatened by the applicant or they were too scared of the applicant to come forward in the regular enquiry proceedings. It is also found that the Disciplinary Authority while passing the impugned order has very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant, as no reason at all has been recorded in this regard and the applicant is guilty of committing grave misconduct and was involved in the aforesaid offences.
10. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circular dated 23 Item No. 06 (C-3) O.A. No. 2277/2023 11.9.2007. The reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, including in one referred to hereinabove.
11. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA is squarely covered by the common Order/Judgment dated 10.2.2022 in Ct.
Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and hence, the same is partly allowed with the following directions:-
(i) Orders dated 03.10.2022 (Annexure A/ 1) and dated 10.3.2023 (Annexure A/2) passed by the disciplinary and appellate authorities respectively are set aside;
(ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject;
(iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order;
and (iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law."
14. In the light of the aforesaid, we have no hesitation in concurring with the Tribunal that the petitioners‟ decision to dispense with the enquiry was wholly unsustainable. The petitioners appear to have proceeded on an erroneous presumption that merely because a criminal case has been registered against the respondent, he was to be treated as guilty of the 24 Item No. 06 (C-3) O.A. No. 2277/2023 misconduct. No doubt, the respondent is a police officer, whose misconduct can never be condoned, but this would not imply that the principles of natural justice should be given a complete go by. As noted hereinabove, the petitioners have not given any valid reason for dispensing with the enquiry except for repeatedly stating that the respondent is guilty of serious misconduct. This course of action, in our view, is completely impermissible.
15. Before we conclude, we may also consider the decision in Ajit Kumar Nag (supra) relied upon by the petitioners. We, however, find that instead of forwarding the case of the petitioners, the said decision supports the case of the respondent. It would, therefore, be apposite to refer to paragraph no.44 of the said decision, which reads as under:-
"44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Even before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge [(1723) 1 Str 557 : 93 ER 698] .) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated: "To do a great right" after all, it is permissible 25 Item No. 06 (C-3) O.A. No. 2277/2023 sometimes „to do a little wrong‟." [Per Mukharji, C.J. in Charan Lal Sahu v.
Union of India [(1990) 1 SCC 613] (Bhopal Gas Disaster), SCC p. 705, para
124.] While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "precedential"."
16. We are, therefore, of the considered view that the petitioners have not only ignored the decisions of the Apex Court laying down the parameters for applicability of Article 311(2)(b) of Constitution of India, but have also ignored their own circulars dated 21.12.1993 and 11.09.2007. We, therefore, find no infirmity with the impugned order."
19. Similarly in the case of Ex. Ct. Naeem Khan (supra), the Hon'ble High Court of Delhi has considered the judgment of this Tribunal in the case of Ct. Sumit Sharma (supra). In the said case, the Hon'ble High Court has categorically held that merely because the respondent happens to be police personnel, it cannot be said that a departmental inquiry cannot be held against him. Similarly, the nature of cases, whether the inquiry can be dispensed with, cannot be put in straight jacket formula; every case is, therefore required to be considered on its own facts.
20. In the present case, as apparent from the reasons recorded by the respondents in the impugned order, it is apparent that the respondents have arrived at the conclusion for dispensing with the regular inquiry due to the involvement of the applicants in a grave and 26 Item No. 06 (C-3) O.A. No. 2277/2023 serious case. The respondents have jumped to the conclusion that on account of serious allegations, the applicants have become ineligible to be continued in police force. There is no finding that the applicants and/or anybody on their behalf have at any point of time even attempted to influence or coerce any of the witness. Even there is no finding that the applicants in the captioned OAs who are very junior officers under the respondents were in a position to influence the witnesses who are generally senior officials working in the Government of India and particularly in CBI. It is also nowhere recorded by the respondents as to how if not only preliminary inquiry was found possible, but also the criminal trial is possible in the said case FIR with the support of more than nineteen witnesses and at no point of time the prosecution has even felt that those witnesses are not likely to turn up and regular inquiry was not possible in the matter. It is undisputed that regular inquiry is a Rule whereas dispensing with the same is only an exception. Though the respondents have recorded that if regular inquiry is initiated, the same is liable to take a long time, however, no reason has been given for the same and it is apparent that such reasoning and finding is based on surmises and conjectures.
21. In view of the aforesaid, we find that the impugned orders are not sustainable in the eyes of law. Accordingly, the OAs are allowed with the following order(s):-
27
Item No. 06 (C-3) O.A. No. 2277/2023
(i) impugned orders dated 10.08.2022 and 25.01.2023 are set aside. The applicants shall be reinstated in service forthwith.
(ii) the applicants shall be entitled for all consequential benefits in accordance with relevant rules and instructions on the subject.
(iii) the aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of a copy of this order.
(iv) the respondents shall be at liberty to initiate disciplinary proceedings against the applicants if they are so advised, of course in accordance with rules and instructions on the subject.
22. However, in the facts and circumstances of the case, there shall be no order as to costs.
23. A copy of this order be kept on the relevant files of both the OAs."
9. For the reasons detailed hereinabove, we find that the impugned orders are not sustainable in the eyes of law. Accordingly, the OA is allowed with the following directions:-
28
Item No. 06 (C-3) O.A. No. 2277/2023
(i) Impugned orders dated 18.08.2021 and 27.02.2023 are set aside. The applicant shall be reinstated in service forthwith.
(ii) The applicant shall be entitled for all consequential benefits in accordance with relevant rules and instructions on the subject.
(iii) The aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of a copy of this order.
(iv) The respondents shall be at liberty to initiate disciplinary proceedings against the applicant if they are so advised, of course in accordance with rules and instructions on the subject.
(Dr. Chhabilendra Roul) (Pratima K. Gupta) Member (A) Member (J) /dd/