Central Administrative Tribunal - Delhi
Karamveer vs Comm. Of Police on 10 February, 2022
1 O.A. No.1383/2020 with OAs 3508/2018,,
4021/2016
4021/2016, 4028/2016, 3027/2018, 2777/2019,
3267/2019, 467/2020, & 34/2021
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1383
1383/2020
with
OA No.3508/2018, OA No.4021/2016
OA No.4028/2016, OA No.3027/2018
No.3027/2018,
OA No.2777/2019, OA No.3267/2019
No.3267/2019,
OA No.467/2020, O.A. No.34/2021
Orders reserved on : 28.1.2022
Orders pronounced on : 10.2.2022
.2022
(Through Video Conferencing)
Hon'ble Mr. A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
OA No.1383/2020
Ct. Sumit Sharma
PIS No.28120642,
s/o Sh. Ramveer Sharma,
r/o-Vill.
Vill. Inayatpur,
Post Office Ahemadpur,
Distt. Mathura (U.P.)
... Applicant
(through Advocate Shri Sachin Chauhan)
Versus
1. Govt. of NCT of Delhi
through the Chief Secretary,
Govt. of NCTD, A-Wing,
A Wing, 5 Floor,
Delhi Secretariat, New Delhi
Delhi-110113
2. The Commissioner of Police
Police Headquarters, MSO Building
I.P Estate, New Delhi.
3. The Joint Commissioner of Police,
Licensing, Delhi
2 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019,
3267/2019, 467/2020, & 34/2021
Through Commissioner of Police,
Police Headquarters, MSO Building, I.P. Estate,
New Delhi.
4. The Dy. Commissioner of Police,
Licensing Unit, Delhi
Through Commissioner of Police,
Police Headquarters, MSO Building, I.P. Estate,
New Delhi.
... Respondents
(through Advocate Shri Amit Yadav)
OA No. 3508/2018
Amit Kumar, Age-38+ years,
Sub-Inspector, Group B,
S/o Sh. Shyam Dass,
R/o H.No. 233/234, Pocket-H-I,
Sector-11, Rohini,
New Delhi-85
... Applicant
(through Advocate Shri Sachin Chauhan)
Versus
1. Govt. of NCTD through
the Chief Secretary,
Govt. of NCTD,
A-Wing, 5th Floor,
Delhi Secretariat,
New Delhi- 110113
2. The Commissioner of Police
Police Headquarters, MSO Building
I.P. Estate, New Delhi.
3. The Dy. Commissioner of Police,
West District, New Delhi
Through the Commissioner of Police,
Police Headquarters, MSO Building
I.P. Estate, New Delhi.
... Respondents
(through Advocate Shri Suryanath Pandey)
3 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019,
3267/2019, 467/2020, & 34/2021
OA No. 4021/2016
Ex.Const. Deepak Kumar, Age-27 years, Group- C
S/o Dildar Singh,
R/o- Village-Nizampur Khurd,
PO-Kundal, PS-Kharkhoda,
District-Sonepat, Haryana
... Applicant
(through Advocate Shri Sachin Chauhan)
Versus
1. Govt. of NCTD through
the Chief Secretary,
Govt. of NCTD, A-Wing, 5 Floor,
Delhi Secretariat, New Delhi-110113
2. The Commissioner of Police
Police Headquarters, MSO Building
I.P Estate, New Delhi.
3. The Addl. Commissioner of Police,
Traffic, VIP ER and North,
Through Commissioner of Police,
Delhi Police,
Police Headquarters, I.P. Estate,
New Delhi.
4. The Dy. Commissioner of Police,
Traffic (North District),
Through Commissioner of Police, Delhi Police,
Police Headquarters, I.P. Estate,
New Delhi.
... Respondents
(through Advocate Ms. Sangeeta Tomar)
OA No. 4028/2016
Sombir, Age-26 years,
S/o Jagdish,
R/o-Village &P.0,-Anwali,
4 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019,
3267/2019, 467/2020, & 34/2021
P.S.-Guhana,
District-Sonepat, Haryana
... Applicant
(through Advocate Shri Sachin Chauhan)
Versus
1. Govt. of NCTD through
the Chief Secretary, Govt. of NCTD,
A-Wing, 5 Floor, Delhi Secretariat,
New Delhi-110113.
2. The Commissioner of Police
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
3. The Addl. Commissioner of Police,
Traffic, VIP ER and North,
Through Commissioner of Police,
Delhi Police, Police Headquarters, I.P. Estate,
New Delhi.
4. The Dy. Commissioner of Police,
Traffic (North District),
Through Commissioner of Police,
Delhi Police, Police Headquarters,
I.P. Estate, New Delhi.
... Respondents
(through Advocate Shri Amit Yadav)
OA No. 3027/2018
1. Karamveer, Age-28+ years,
Constable, Group-C,
S/o Sh. Raj Pal,
R/o-Village-Vihari Pur Dgpura,
Post Office-Dchalavas Ulabpura,
Police Station-Sadar Thana Rewari,
Distt-Rewari (Haryana).
2. Narender Kumar Drall, Age-28 years,
Constable, Group-C,
R/o VPO-Hiran Kudna,
5 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019,
3267/2019, 467/2020, & 34/2021
Police station-Mundka (Nangloi),
Distt-Outer (New Delhi)-110041.
...Applicants
(through Advocate Shri Sachin Chauhan)
Versus
1. Govt. of NCTD through
the Chief Secretary,
Govt. of NCTD,
A-Wing, 5th Floor,
Delhi Secretariat,
New Delhi-110113
2. The Commissioner of Police.
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
3. The Joint Commissioner of Police,
Western Range, Delhi
Through the Commissioner of Police
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
4. The Dy. Commissioner of Police,
West District, New Delhi,
Through the Commissioner of Police,
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
... Respondents
(through Advocate Shri Amit Anand)
OA No. 2777/2019
Sube Singh, Age-51 years Post-ASI, Group-C
S/o Sh. Banarsi Lal,
R/o-Vill. Churina, PS Bumana,
Distt. Jhunjhunu,
Rajasthan
... Applicant
(through Advocate Shri Sachin Chauhan)
6 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019,
3267/2019, 467/2020, & 34/2021
Versus
1. Govt. of NCTD through
the Chief Secretary,
Govt. of NCTD,
A-Wing, 5t Floor,
Delhi Secretariat,
New Delhi-110113
2. The Commissioner of Police
Police Headquarters, MSO Building
I.P. Estate, New Delhi.
3. The Joint Commissioner of Police,
Western Range, Delhi
Through the Commissioner of Police
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
4. The Dy. Commissioner of Police,
Outer District, Delhi
Through the Commissioner of Police
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
... Respondents
(through Advocate Shri Amit Yadav and Shri Jagdish N.)
OA No. 3267/2019
Ajay, Ex-Constable
No. 2475/COD and PIS No. 28081014
Group 'C'
Aged about 32 years
S/o Shri Krishan,
r/o Village Khaparwas, Tehsil Matenhil,
District Jhajjar,
Haryana.
... Applicant
(through Advocate Shri Anil Mittal)
7 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019,
3267/2019, 467/2020, & 34/2021
Versus
1. Commissioner of Delhi Police
Police Head Quarters,
I.P. Estate
New Delhi- 110002
2. Joint Commissioner of Police,
Western Range,
Police Head Quarters,
I.P. Estate
New Delhi- 110002
... Respondents
(through Advocate Shri Amit Yadav and Shri Jagdish N.)
OA No. 467/2020
ASI (Exe.) Ramesh Kumar
S/o Lt. Sh. Som Nath
(PIS No. 28940102), Belt No. 526/SB
R/o B-9/20, Gali No. 12,
Shiv Mandir Road,
Swaroop Nagar, Delhi
Group C
Aged around 44 years
Last Posting at:
Special Branch, Rohini Zone, Delhi
... Applicant
(through Advocate Shri Sourabh Ahuja)
Versus
GNCT of Delhi through
1. Commissioner of Police (Delhi Police),
Police Headquarters, I.P. Estate,
MSO Building, New Delhi
8 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019,
3267/2019, 467/2020, & 34/2021
2. Additional Commissioner of Police,
Special Branch, Delhi
Through Commissioner of Police (Delhi Police)
Police Headquarters, I.P. Estate
MSO Building, New Delhi.
3. Deputy Commissioner of Police
Special Branch, Delhi
Through Commissioner of Police
Police Headquarters, I.P. Estate
MSO Building, New Delhi.
... Respondents
(through Advocate Shri Amit Anand)
O.A. No. 34/2021
Harender Singh,
S/o Late Prahlad Singh,
R/o Plot No. 87, Balaji Enclave,
Govindpuram,
Ghaziabad (U.P.).
... Applicant
(through Advocate Shri Gyanendra Singh)
Versus
1. The Commissioner of Police (Delhi),
PHQs I.P. Estate,
I.T.O., New Delhi.
2. The Joint Commissioner of Police,
Security (HQ),
New Delhi.
3. The Deputy Commissioner of Police,
Security (HQ),
New Delhi.
... Respondents
(through Advocate Shri Amit Yadav)
9 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019,
3267/2019, 467/2020, & 34/2021
ORDER
Hon'ble Mr. R.N. Singh, Member (J) :
The applicants, in the aforesaid Original Applications, have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, to challenge the order(s) passed by the Disciplinary Authorities dismissing them from service by invoking their power under Article 311(2)(b) of the Constitution of India. The applicants have also challenged in their respective OAs the orders passed by the Appellate Authorities rejecting their representation(s)/statutory appeal(s) against order(s) of the Disciplinary Authorities. The applicants have prayed for setting aside of the impugned order(s) passed by the Disciplinary and Appellate Authorities and have prayed for their reinstatement in service with all consequential benefits.
2. The facts of the present Original Applications are similar and common grounds have been urged by the learned counsels for the parties in support and against the present Original Applications. In this background, with the consent of the learned counsels for the parties, all the aforesaid Original Applications have been heard together 10 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 and are being decided by the present common Order/Judgment.
3. The applicants had been appointed and working under the respondents. While hearing the aforesaid matters and for convenience of writing the present common Order/Judgment, OA No.1383/2020, titled Constable Sumit Sharma vs. Govt. of NCT of Delhi and others), has been taken as the lead case.
4. In Ct. Sumit Sharma (supra), the applicant was appointed as a Constable in the year 2012 and since then, he had been working under the respondents as such. However, his name was involved in criminal case FIR No.120/2017 dated 25.5.2017 under Sections 186/353/332/34 IPC PS Kamla Market, Central District, Delhi. Pursuant to the said case FIR, an inquiry was conducted by Additional Deputy Commissioner of Police-I, Central District, Delhi and taking into consideration the said report, the Disciplinary Authority by invoking the power under Article 311(2)(b) of the Constitution of India has passed the impugned order dated 13.7.2019 (Annexure A/1) dismissing the applicant from service and 11 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 on a statutory appeal (Annexure A/3), the Appellate Authority has rejected the applicant's said appeal vide order dated 28.8.2020 (Annexure A/2). Aggrieved by the impugned orders dated 13.7.2019 and 28.8.2020, the applicant has approached this Tribunal by way of the present OA No.1383/2020.
5. In the remaining OAs also, the orders of dismissal have been passed by the Disciplinary Authority and respective appeals have been dismissed by the Appellate Authority.
6. Pursuant to the notices, the respondents have filed their counter replies. The applicants have filed rejoinders.
7. Learned counsels for the parties have placed on record various judgments in support of their arguments to substantiate the claims and counter claims.
8. Shri Chauhan, learned counsel for the applicants in most of the aforesaid OAs, has filed a common written synopsis giving the details of the aforesaid OAs, like preliminary inquiry was conducted or not, reason(s) for dispensing with DE, details of criminal case(s), status of the criminal case(s). In the said synopsis, he has referred 12 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 to a few judgments in support of the applicants' claim. Shri Mittal, learned counsel for the applicant in OA 3267/2019 has also filed a short synopsis along with a judgment of the Hon'ble Delhi High Court dated 2.9.2009 in Writ Petition (Civil) No.7086/2000, titled Ex. Constable Mahabir Singh and another vs. Union of India and others. Similarly Shri Sourabh Ahuja, learned counsel appearing for the applicant in OA 467/2020 has filed a written submissions. He has also placed reliance on various judgments of this Tribunal, Hon'ble High Courts or the Hon'ble Supreme Court.
9. Shri Amit Yadav, learned counsel, who has appeared on behalf of the respondents in most of the aforesaid OAs, has filed a common synopsis to argue that the judgments referred to and relied upon by the learned counsel for the applicants are not applicable in the facts and circumstances of the present cases.
10. We have heard the learned counsels for the parties and perused the pleadings on record.
11. In precise the facts and reasons for passing the impugned disciplinary order(s) are evident from the 13 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 Disciplinary Authority's order(s). A few paragraphs of the impugned order dated 18.7.2019 in the case of Ct. Sumit Sharma (supra) read as under:-
"On 13.05.17 at 1.35 AM a PCR call was received vide DD No. 07-A PS Kamla Market about beating of police personnel in front of Kotha No. 64, G.B. Road. The said call was marked to ASI Gajpal No. 5570/C who along with HC Rajeev No. 713/C reached the spot. On enquiry, it was revealed that three-four persons have manhandled three police constables (who were on duty) and public persons had to come forward in support of beat staff as they were manhandled by Ct. Sumit Sharma, No. 117/Lic (PIS No. 28120642), Under Trainee PSI namely Mohit Kumar Chaudhary, No. D-776 (PIS No. 16160046) PTC Jharoda Kalan and Ct. Nitesh Kumar, No. 11433/PCR (PIS No. 28121771). All the beat staff as well as alleged staff were got medically examined at LNJP, Hospital and the alleged police personnel were found under the influence of alcohol.
An enquiry into the incident was conducted by Sh. Anto Alphonse, Addl. Dy. Commissioner of Police-I, Central District, Delhi. A copy of the report was sent to this office. On perusal of the enquiry report and the relevant documents placed on record, it is revealed that all the alleged persons are friends and initially they had gathered at the residence of Ct. Sumit Sharma, i.e. Quarter No. A-25 Police Colony, Hauz Khas Delhi where they consumed alcholol/beer and subsequently came to India Gate on two motorcycles. After spending some time at India Gate they came to G.B. Road, Kamla Market, Delhi at around 12.30 AM. They reached at Kotha No.64 and found the Kotha 14 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 closed. They asked the Kotha Staff to open the Gate but the Kotha Staff did not open, on which they started quarreling with them. They disclosed their identity as Police Officers and then Kotha persons opened the gate. The Kotha staff tried to convince alleged police officials that the Kotha had been closed and requested them to return. But the alleged police officials forcibly entered in Kotha and started abusing and quarrelling with Kotha Staff. On receipt of the information, Ct. Deep Ram of PS Kamla Market reached the spot and tried to pacify the quarrel but the alleged persons also misbehaved and abused him. However, he managed to take them down stairs. After that Ct. Sumit and Ct. Jitender also came at the spot and all of them tried to pacify the alleged persons but they did not cool down and continued quarreling with the Beat Officers.
The facts of the incident registered vide FIR No. 120/17, dt. 25.05.17, U/s 186/353/332/34/IPC, PS Kamla, Market, Central District, Delhi makes the sequence of event and the abhorrent behavior of the Constable crystal clear. The constable not only misbehaved with Kotha Staff but also assaulted the members of the force, to which he belongs. He did not even bother about the impact of his act on the image of Police while assaulting the Beat constables on duty in front of public. The indulgence of police person in such an act destroys the faith of the people on the law enforcement agency. He had acted in a manner which is highly unbecoming of a police officer of a disciplined force. Such involvement by a police officer can cause a highly deleterious impact on the entire force. On perusal of above sequence of events it can be inferred that Ct. Sumit Sharma, No. 117/Lic along with above associates has committed most disgusting and condemnable act and lowered the sacred 15 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 image of organization in the eyes of public. Ct. Sumit Sharma, No. 117/Lic has put the entire police force to shame, especially when such a force is responsible for the safety and security of the citizens. Being a policeman, his conduct has also violently shaken the faith of the citizens from the police force. The act committed by the Constable clearly shows that he has abdicated the solemn vow that he took at the time of passing out ceremony.
The facts & circumstances of the case are such that it would not be feasible to conduct a regular Departmental Enquiry against the delinquent, as there is reasonable possibility that the witnesses may not come forward to depose against him. Ordinarily, a departmental enquiry would have been ordered against such a delinquent but in this case initiation of departmental enquiry would not be proper keeping in view the sequence of events committed by Ct. Sumit Sharma, No. 117/Lic with his associates. There is also a possibility that witnesses of public may be unduly harassed or pressurized by the delinquent. In my considered opinion Ct. Sumit Sharma, No. 117/Lic deserves exemplary punishment at least to minimize such kind of incidents in future. In the light of given circumstances further retention of Ct. Sumit Sharma, No.117/Lic in the force shall be prejudicial for the police force and I am of the view his continuation as a member of police force would not be appropriate in the interest of department. The act of the Constable is a shameful, abominable, disgusting and the most deplorable act of moral turpitude & unbecoming of a public servant. Prima facie the act and conduct of the Constable warrant his dismissal from the service as in my considered opinion there is no place of such type of person in the organization whose primary task is to provide safety and security to the citizens."16 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021
12. On the basis of pleadings available on record, the details of preliminary enquiry conducted or not conducted, reason for dispensing with DE, details of criminal case and stage of the criminal case(s) in the respective OAs can be summarized as under:-
Name OA PE Reason for Details of Stage of conducted dispensing Criminal criminal or not DE case case conducted Sumit 1383/2020 PE admitted Possibility of FIR No- Charge sheet Sharma in DA order witness of 120/17 dated filed in court itself. public may be 25/5/17 unduly u/s harassed or 186/353/332 Total pressurized by /34 IPC, PS Witnes:3 delinquent Kamla Examined: 0 Market Next date 4.10.21 Karamveer 3027/2018 Investigation It has come on FIR Acquitted on Singh & admitted in record to No.165/2017 24.9.2020 Anr. DA's order prove criminal dt.11.4.2017 vide Ld. MM-
and in act of 2 05 (South
u/s
counter constables,
reply the image of
384/411/34 West)
police
of IPC Dwarka
Court, New
Delhi.
Amit 2508/2018 PE admitted Belief that FIR No.05/18 Charge sheet
Kumar in para 5.2 witness would u/s filed in Court
of counter not come, 7/8/13(1)(d)
affidavit applicant may POC Act, P.S.
influence the Vigilance dt. Total
witness, 23.5.18 Witness: 32
committed
grace offence Only 1
and serious witness
misconduct (Duty officer)
deposed
Next date:
25.10.21
Sube 2777/2019 PE admitted Threat to the FIR Charge sheet
Singh in dismissal discipline, No.643/18 filed in court
order dated integrity and u/s
5.12.18 morality of 341/342/365
entire police /384/34 IPC Total:
17 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 force. PS Maurya Witness: 40 Misconduct is Enclave dt.
Examined:5 extremely 5.12.18 dangerous.
Next date:
27.10.21
Deepak 4021/2016 PE admitted May influence FIR Charge sheet
Kumar in counter and No.155/16 filed in court
affidavit at intimidating dt. 17.4.16
Page-3 the witness in u/s
DE, involved 365/323/341 Total
in 342/377/511 Witness: 20
unscrupulous /427/34 IPC
and illegal PS Sabji Examinefd:1
activities of Mandi
very serious
nature
Next dated
(Oct/2021)
Somber 4086/2016 PE admitted May influence FIR Charge sheet
in counter and No.155/16 filed in court
affidavit at intimidating dt. 17.4.16
Page-3 and the witness in u/s
enquiry DE, involved 365/323/341 Total
admitted in in 342/377/511 Witness: 20
DA's order. unscrupulous /427/34 IPC
and illegal PS Sabji Examinefd:1
activities of Mandi
very serious
nature Next dated
(Oct/2021)
Ajay 3267/2019 PE admitted Threat to the FIR Charge sheet
in reply at discipline, No.643/18 filed in court
Page-6 as integrity and dt. 5.12.2018
well as in morality of u/s
DA's order entire police 341/342/365 Total
force /384/34 IPC, Witness: 50
PS Maurya
Enclave Examined:9
Next dated
(18.1.2022)
Ramesh 467/2020 PE Involvement in FIR No. Charge sheet
Kumar conducted supply of 20/2019 filed in court
illegal drugs dt. 1.2.2019
and arrest in
u/s Total
NDPS Act and
committed the 15/25/29
NDPS Act, PS
Witness: 18
gravest
misconduct Crime Examined:
and therefore Branch, nil
continuation Delhi
of the
applicant may Next dated
be detrimental (16.2.2022)
to the public
interest and
may lower the
image of police
force.
Harender 34/2021 Enquiry May influence FIR No.12 dt.
Singh admitted in and 23.8.2019
Para 4-5 of intimidating u/s
the counter the witness in 419/420/34
reply. DE, involved IPC PS South
18 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 in Avenue, unscrupulous and illegal activities of very serious nature
13. On perusal of the impugned order(s_ and precise facts, as recorded there from and derived from the pleadings on record, the following facts are evident:-
(i) The applicants have been working as Police official(s) under the respondents and while working as such complaints were received against them resulting into lodging of FIR(s) on receipt of complaint(s)/registration of FIR(s), preliminary inquiry/investigation was conducted;
(ii) Chargesheet(s) has/have been filed by the respondents in most of the said FIR(s) before the concerned learned Court(s) and in many of such FIR(s), a few witnesses have also been examined;
(iii) In a few cases-FIR(s), the applicants/accused(s) have been acquitted by the concerned learned Court(s);
and
(iv) The reason for dispensing with the Departmental Enquiry is possibility of witnesses or public may be unduly harassed by the applicant(s); gravity of the 19 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 charges leveled against the applicant(s); commission of grave offence(s); misconduct being extremely dangerous; threat to the discipline, integrity and morality of the police force; unscrupulous and illegal activities etc.
14. Shri Chauhan, learned counsel appearing for the applicants, in most of the cases, has argued that the applicants in the respective OAs have taken various grounds and have relied upon a catena of judgments of Hon'ble Supreme Court, Hon'ble High Courts and Full Bench of this Tribunal and the coordinate Benches of this Tribunal.
15. Shri Chauhan, Shri Mittal and Shri Ahuja, learned counsels for the applicants, have filed their written synopsis and they have made their oral submissions with the assistance of such written synopsis and have referred to and relied upon the judgments mentioned in such respective written synopsis.
16. Shri Chauhan, learned counsel for the applicants, has argued that the coordinate Bench of this Tribunal vide Order/Judgment dated 5.6.2007 in OA 2500/2006, titled 20 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 Suresh Kumar vs. Govt. of NCT of Delhi and others, had not only set aside the identical impugned orders but also observed about the casual approach adopted in passing the order(s) by invoking the power under Article 311 (2)(b) of the Constitution of India. Para 20 of the said Order/Judgment dated 5.6.2007 reads as under:-
"20. Before parting with this case, we are constrained to observe that on several occasions this Tribunal has quashed or set aside similar orders dismissing employees while dispensing with the departmental enquiry under Article 311(2)(b). The particulars of some of the cases have been provided in the foregoing paragraphs of this order. The dockets of this Tribunal are over-brimming with similar cases. Despite the fact that law stands well entrenched up to the highest Court of the land, the respondents would persist with order of dismissal primarily looking at the grave nature of acts of omissions and commission alleged against a delinquent. That alone, or at the most, coupled with previous background of the delinquent, is a ground considered sufficient to dispense with the enquiry. While so observing, the authorities do not even keep in mind involvement of a delinquent in a criminal case where witnesses who support the allegations may be police officers or officials who would not normally deviate from their duties by messing up or shielding the culprits. This Tribunal is equally concerned, as the respondents may be, when allegations of a serious nature come to be made against the men in uniform, who are supposed to protect a citizen rather than intimidating or extracting illegal benefits from him. But once it has been held that enquiry can be dispensed with only on cogent grounds specifying reasons for such dispensation, the law must take its course. Nobody can be a law unto himself in a 21 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 country where rule of law prevails. Individual thinking of even the highest officer in the hierarchy is no substitute for law. We may further mention that the course as adopted by the respondents in the present case has rather helped the police officers or officials, who may deserve no sympathy whatsoever. Almost in every such case, order of dismissal has been set aside by this Tribunal and confirmed by the High Courts and the Supreme Court. The respondents, after setting aside of such orders, would ordinarily deal with such persons by holding a regular departmental enquiry. In the interregnum, number of years would roll by, and on setting aside of the orders, the delinquent would only be benefited as he shall not only be reinstated but paid all back wages. The course adopted by the respondents, in our considered view, is counter-productive and leads to unnecessary and avoidable litigation. It amounts to waste of public money and time. In the circumstances as mentioned above, we direct the Commissioner of Police, respondent No.1, to place a copy of this order before the Hon'ble Lt. Governor of Delhi who may be pleased to suggest alternative and remedial measures, which may achieve the objective of eradicating ills in the society, particularly when the same are committed by men in uniform, without resorting to unavoidable remedy attempted in the present case and other similar cases."
17. He has submitted that pursuant to the said Order/Judgment, the respondents have issued a circular dated 11.9.2007 (Annexure A-5) and the impugned orders are also in violation of the mandate of the said circular and the law laid down by the Hon'ble Apex court, referred 22 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 to by the respondents themselves in the said circular dated 11.9.2007.
18. Shri Chauhan, learned counsel, has further argued that once it is evident that preliminary inquiry has been conducted by the respondents, their decision to dispense with the departmental enquiry by resorting to the provisions of Article 311(2)(b) of the Constitution of India, is bad in the eyes of law. He has also submitted that an identical issue had been considered by this Tribunal in the matter of co-accused- Neeraj Kumar in the aforesaid FIR No.120/2017, in OA No.2097/2019 decided on 1.11.2019, titled Neeraj Kumar vs. Commissioner of Police and another, and the claim of the applicant is squarely covered by the decision of this Tribunal in Neeraj Kumar (supra). In support of his such contention, he has further placed reliance on the Order/Judgment of this Tribunal dated 16.10.2020 in OA No.2867/2019, titled Jasmohinder Singh vs. Commissioner of Delhi Police and another and further on the Order/Judgment dated 7.1.2021 in OA 702/2019, titled Dharmender Singh Dangi vs. GNCTD and others. He has further contended that the Orders/Judgments of this Tribunal in Neeraj 23 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 Kumar (supra), Jagmohinder Singh (supra) as well as Dharmender Singh Dangi (supra) have attained finality as they have been complied with by the respondents.
19. The second limb of argument of Shri Chauhan, learned counsel, is that the cases in which preliminary inquiry is not conducted and straightway authorities have passed the impugned order(s) by resorting to the provisions of Article 311(2)(b) of the Constitution of India by giving vague reason(s) and/or reason(s) based on surmises and conjectures are not sustainable in the eyes of law and in this regard, he has placed reliance upon the Order/Judgment of this Tribunal in Suresh Kumar (supra). He has further argued that reasons for dispensing with the departmental enquiry, like gravity of misconduct; witnesses will not come forward to depose; witnesses will be won over and/or witnesses will be threatened and intimidated by the delinquent; and evidences or allegations are so clear that departmental enquiry is not required; were considered by this Tribunal in the following cases:-
24 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021
(a) Commissioner of Police vs. Ashwani Kumar, WP (C) No.4078/2017, decided on 11.12.2019 by the Hon'ble Delhi High Court;
(b) Commissioner of Police vs. Kaushal Singh, WP (C) No.11694/2018, decided on 6.5.2019 by the Hon'ble Delhi High Court;
(c) Rajbir Singh vs. Commissioner of Police in OA No.4246/2014, decided on 4.1.2017 by this Tribunal;
and
(d) Vikas Vs. GNCTD in OA No.1102/2015, decided on 27.11.2017 by this Tribunal.
20. Shri Chauhan, learned counsel, has also argued that judgments relied by Shri Yadav, learned counsel for the respondents, in various cases are of no help to the respondents inasmuch as either those judgments have already been considered by this Tribunal and/or are in view of the specific facts and circumstances of the case(s). He has submitted that judgment in Ved Mitter Gill vs. Union Territory Administration, Chandigarh and others in Civil Appeal No.3195/2015, decided on 26.3.2015 by the Hon'ble Apex Court, has been considered by this Tribunal in Neeraj Kumar (supra) as well as in 25 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 Rajbir Singh (supra). The judgment of the Hon'ble High Court in the case of Ct. Mukesh Kumar Yadav vs. GNCTD & others in WP (C) No.6005/2017 has been considered and dealt with by this Tribunal in Neeraj Kumar (supra) and further by this Tribunal in OA 1912/2015, titled Kripal Singh vs. GNCTD and by the Hon'ble High Court of Delhi in WP (C) No.11694/2018, titled Commissioner of Police vs. Kaushal Singh. He has also argued that judgment in Ikramuddin Ahmed Boarh vs. Superintendent of Police Darang & others, reported in 1988 AIR 2245, has been considered by the Hon'ble High Court of Delhi in WP (C) No.3940/2008, titled Commissioner of Police vs. Daya Nand, decided on 2.9.2009. With regard to reliance placed by Shri Yadav, learned counsel for the respondents, on the judgments of the Hon'ble Apex Court in the case of Chandigarh Administration & others vs. Ex. S.I. Gurdit Singh, reported in (1997) 10 SCC 430 and of the Hon'ble Delhi High Court in Praveen Kumar vs. Commissioner of Police and others in WP (C) No.2295/2007, Shri Chauhan, learned counsel for the applicants, has submitted that in the said cases there were enough 26 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 material before the Disciplinary Authority to invoke the power under Article 311(2)(b) of the Constitution of India and finding had been given to this effect by the Hon'ble Courts in the said judgments. With regard to reliance of Shri Yadav, learned counsel for the respondents, on the case of ASI Rishi Pal Singh vs. Govt. of NCTD and others in OA No.1293/2014, decided on 21.11.2017 by this Tribunal, Shri Chauhan, learned counsel for the applicants, has submitted that facts of the case are distinguishable and the said order/judgment has not attained finality as the delinquent in the said case had refused TIP and the Review Application is stated to be pending against the said order/judgment. With regard to the respondents' reliance on Azad Singh vs. GNCTD and others in OA 749/2014, decided on 15.9.2014 by this Tribunal, Shri Chauhan has submitted that in fact the DE was conducted and, therefore, the order/judgment in this case is of no help to the respondents. He has lastly said that order/judgment of this Tribunal in Ram Sahai Meena vs. GNCTD and another in OA 4066/2018, decided on 15.7.2021, is also of no help to the respondents inasmuch as the said order/judgment was 27 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 passed in the specific facts and circumstances of the case and the law laid down by the Hon'ble Apex Court in Union of India & Anr. etc. v. Tulsiram Patel etc., reported in 1985 (3) SCC 398, and Jaswant Singh v. State of Punjab & Ors., reported in 1991 (1) SCC 362, holds the field which have been followed by this Tribunal in the cases referred to hereinabove.
21. Shri Anil Mittal, learned counsel for the applicant in OA 3267/2019, has adopted the arguments advanced by Shri Chauhan, learned counsel, and has further added that from the order itself in OA 3267/2019 (Ajay vs. Commissioner of Police and another), it is evident that some ex parte preliminary inquiry was conducted and keeping in view the gravity of the alleged misconduct and the applicant's position, it was held by the authorities that it was not practicable to hold regular inquiry and, therefore, by invoking their power under Article 311(2)(b) on the Constitution of India, the Disciplinary Authority has passed the impugned order and the Appellate Authority has rejected the applicant's appeal without application of mind and without appreciating the grounds raised by the applicant. He has further submitted that the 28 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 claim of an identically placed co-accused, namely, Jagmohinder Singh (supra) has been allowed by this Tribunal vide Order/Judgment dated 16.10.2020 in OA No.2867/2019 and therefore, OA 3267/2019 also deserves to be allowed in the same manner. He has further placed reliance upon the judgment of the Hon'ble High Court of Delhi in Writ Petition (Civil) No.7086/2000, titled Ex. Constable Mahabir Singh and another vs. Union of India and others, decided on 2.9.2009,
22. Shri Ahuja, learned counsel for the applicant in OA 467/2020, titled Ramesh Kumar vs. Commissioner of Police and others, with the assistance of written synopsis submitted on behalf of the applicant advanced his arguments, and has also adopted the arguments advanced by Shri Chauhan and Shri Mittal, learned counsels. He has further submitted that name of the applicant did not figure in the said case FIR No.20/2019 and the accused - Mumtaz Ali has supplemented in second improved statement the name of the applicant. He has argued that reason for dispensing with the departmental enquiry in the present case is the applicant's alleged involvement in alleged supply of illegal drugs and his arrest under NDPS 29 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 Act and also the alleged gravest misconduct which may be detrimental to the public interest and which may lower the image of police force. He has further submitted that in fact no specific reason has been given by the Disciplinary Authority for dispensing with the inquiry and the Disciplinary Authority even before the trial has jumped to the conclusion that the applicant has committed the gravest misconduct and, therefore, in view of the law laid down by the Hon'ble Apex Court in Jaswant Singh (supra), the impugned orders are not sustainable in the eyes of law. He has further submitted that before the circular dated 11.9.2007, there had been a policy decision by respondents' own circular dated 21.3.1993 and the impugned orders have been passed in violation of the said circulars. With the assistance of the written synopsis, he has vehemently argued that the judgments referred to and relied upon by Shri Yadav, learned counsel for the respondents, are of no help to the respondents in the cases in hand.
23. Shri Gyanendra Singh, learned counsel for the applicant in OA 34/2021, has reiterated the grounds taken by the applicant in the OA and has also adopted the 30 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 arguments advanced by Shri Chauhan, Shri Mittal and Shri Ahuja, learned counsels.
24. On the other hand, Shri Yadav, learned counsel appearing of the respondents, though not disputed the facts, has submitted that the respondents have not only considered the facts and circumstances thereof but have also given the specific reason(s) in their detailed order(s) for dispensing with the departmental enquiry by invoking their jurisdiction under Article 311(2)(b) of the Constitution of India. He has further argued that once some reason has been given by the competent authority while passing the order(s), this Tribunal while exercising the power of judicial review may not go into the adequacy of the reason as an appellate authority. He has also added that reasons for dispensing with the departmental enquiry need not contain detail particulars and in each of the aforesaid cases satisfaction of the Disciplinary Authority is evident from the impugned order(s) itself that it was not reasonably practicable to hold inquiry. He has placed reliance upon the judgment of the Apex Court in the case of Ved Mitter Gill vs. Union Territory Administration, Chandigarh and others in Civil Appeal No.3195/2015, 31 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 decided on 26.3.2015 by the Hon'ble Apex Court. He has further submitted that the judgments referred to and relied upon by the learned counsels for the applicants have been considered by this Tribunal in OA filed by one Constable Mukesh Kumar Yadav (O.A. No.3548/2015) and this Tribunal has dismissed the said OA vide Order/Judgment dated 31.5.2016. He has also submitted that the said order/judgment of this Tribunal was challenged before the Hon'ble High Court of Delhi in WP (C) No.6005/2017 and the Hon'ble High Court upheld the same vide Order/Judgment dated 20.9.017. He has also argued that while considering the reasons given by the Disciplinary Authority, the court will not sit over the matter as an Appellate Authority. In this regard, he has placed reliance upon the judgment of Ikramuddin Ahmed Boarh vs. Superintendent of Police Darang & others (supra). He has further placed reliance upon the judgment of Hon'ble Apex Court in Chandigarh Administration & others vs. Ex. S.I. Gurdit Singh (supra) in support of his argument that the preliminary inquiry was conducted, however, the reasons that witnesses could not come forward to depose against the 32 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 delinquent(s) on account of fear to their life and property were found apt by the Hon'ble Court. He has further argued that principles of natural justice have been expressly excluded by the aforesaid constitutional provision and, therefore, there is no scope of reintroducing the same by side door. In this regard, he has placed reliance upon the judgment of the Hon'ble High Court of Delhi in Praveen Kumar vs. Commissioner of Police and others in WP (C) No.2295/2007. He has also placed reliance upon the Order/Judgment of this Tribunal in the case of ASI Rishi Pal Singh (supra) to contend that it calls for great courage to come forward to lead the evidence where the delinquent is a police official who may during his job influence the statement and deposition of the witnesses. He has submitted that in view of such facts and these binding judgments, the order(s) impugned in the respective OAs do not warrant any interference by this Tribunal.
25. In rejoinder, learned counsels for the applicants have reiterated their arguments.
33 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021
26. In view of the aforesaid, the issue which arises for our consideration is, in the facts and circumstances of the aforesaid cases, whether the action of the respondents in dismissing the applicants from service without holding regular departmental inquiry by invoking their jurisdiction under the provisions of Article 311(2)(b) of the Constitution of India is legal and valid?
27. Article 311 of the Constitution of India reads as under:-
"Article 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.--(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an 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:34 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 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. (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."
28. In the Constitution Bench decision of the Hon'ble Apex Court in the case of Union of India & Anr. etc. v. Tulsiram Patel etc. (supra), the scope of provisions of Article 311 of the Constitution of India was considered in detailed and in paragraph 130 thereof is reproduced as hereunder:-
35 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 "130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article
311. What is pertinent to note is that the words used are "not reasonably practicable"
and not "impracticable". According to the Oxford English Dictionary 'practicable' means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster's Third New International Dictionary defines the word 'practicable' inter alia as meaning "possible to practice or perform : capable of being put into practice, done or accomplished : feasible".
Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word 'reasonably' as "in a reasonable manner : to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through other threatens, intimidates 36 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311 (3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India and others, (1984) 3 S.C.R. 302, is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline 37 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter."
29. The issue of invoking the provisions of Article 311(2)(b) of the Constitution of India also came before the Hon'ble Supreme Court in the case of Jaswant Singh v. State of Punjab & Ors. (supra) and the Hon'ble Supreme Court ruled in paragraph 5 as under:-
"5. The impugned order of April 7, 1981 itself contains the reasons for dispensing with the inquiry contemplated by Article 311(2) of the Constitution. Paragraph 3 of the said order, which we have extracted earlier, gives two reasons in support of the satisfaction that it 38 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 was not reasonably practicable to hold a departmental enquiry against the appellant. These are (i) the appellant has thrown threats that he with the help of other police employees will not allow holding of any departmental enquiry against him and (ii) he and his associates will not hesitate to cause physical injury to the witnesses as well as the enquiry officer. Now as stated earlier after the two revision applications were allowed on October 13, 1980, the appellant had rejoined service as Head Constable on March 5, 1981 but he was immediately placed under suspension. Thereafter, two show cause notices dated April 4, 1981 were issued against him calling upon him to reply thereto within 10 days after the receipt thereof. Before the service of these notices the incident of alleged attempt to commit suicide took place on the morning of April 6, 1981 at about 11.00 a.m. In that incident the appellant sustained an injury on his right arm with a knife. He was, therefore, hospitalised and while he was in hospital the two show cause notices were served on him at about 10.00 p.m. on April 6, 1981. Before the appellant could reply to the said show cause notices respondent 3 passed the impugned order on the very next day i.e. April 7, 1981. Now the earlier departmental enquiries were duly conducted against the appellant and there is no allegation that the department had found any difficulty in examining witnesses in the said inquiries. After the revision applications were allowed the show cause notices were issued and 10 days time was given to the appellant to put in his replies thereto. We, therefore, enquired from the learned counsel for the respondents to point out what impelled respondent 3 to take a decision that it was necessary to forthwith terminate the services of the appellant without holding an inquiry as 39 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 required by Article 311(2). The learned counsel for the respondents could only point out clause (iv)(a) of sub-para 29(A) of the counter which reads as under:
"The order dated April 7, 1981 was passed as the petitioner's activities were objectionable. He was instigating his fellow police officials to cause indiscipline, show insubordination and exhibit disloyalty, spreading discontentment and hatred, etc. and his retention in service was adjudged harmful."
This is no more than a mere reproduction of paragraph 3 of the impugned order. Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3 thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on the respondents to disclose to the court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent 3 in the impugned order. Clause
(b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at page 270 of Tulsiram case (1985 (3) SCC 398 : 1985 SCC(L&S) 672 : 1985 (S2) SCR 131) : (SCC p. 504, para 130) "A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrary or out of ulterior 40 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 motives or merely in order to avoid the holding of an inquiry or because the department's case against the government servant is weak and must fail." * The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter filed by respondent 3 it is contended that the appellant, instead of replying to the show cause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental inquiry was held against him. No particulars are given. Besides it is difficult to understand how he could have given threats, etc. when he was in hospital. It is not shown on what material respondent 3 came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. This allegation is based on his alleged activities at Jullundur on April 3, 1981 reported by SHO/GRP, Jullundur. That report is not forthcoming. It is no one's contention that the said SHO was threatened. Respondent 3's counter also does not reveal if he had verified the correctness of 41 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 the information. To put it tersely the subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with of the inquiry envisaged by Article 311(2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be sustained."
30. The said issue again came before the Hon'ble Supreme Court in the case of Chief Security Officer and others vs. Singasan Rabi Das, reported in (1991) 1 SCC 729. In the said case, the respondent was on duty in Railway Yard and he allowed 22 outsiders to carry the stolen material after taking money from the said incumbents. The respondent was removed from service by invoking the provisions of Rule 47 of the Railway Protection Force Rules, 1959 by dispensing with inquiry by holding that it is not considered feasible or desirable to procure the witnesses of the security/other Railway Employees since this will expose them and make them ineffective for future and these witnesses if asked to appear at a confronted enquiry are likely to suffer personal humiliation and insults thereafter or even they and their family members may become targets of acts of violence. 42 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 The Hon'ble Apex Court while dismissing the appeal held in paragraph 5 of the said judgment as under:-
"5. In our view it is not necessary to go into the submissions made by Dr. Anand Prakash because we find that in this case the reason given for dispensing with the enquiry is totally irrelevant and totally insufficient in law. It is common ground that under Rules 44 to 46 of the said Rules the normal procedure for removal of an employee is that before any order for removal from service can be passed the employee concerned must be given notice and an enquiry must he held on charges supplied to the employees concerned. In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witnesses of the security/other Railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. In this view it is not necessary for 43 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result the appeal fails and is dismissed. There will be no order as to costs."
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.44 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 It is, once again emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) lightly but only in those cases where it is not reasonably practicable to hold the enquiry. Whenever the disciplinary authority comes to the conclusion that it is not reasonably practicable to hold an enquiry he must record at length cogent and legally tenable reasons for coming to such conclusion. In the absence of valid reasons, duly reduced in writing, no such order of dismissal etc. with resort to Article 311(2)(b) can be sustainable in law."
32. The issue regarding application of the provisions of Article 311(2)(b) of the Constitution of India came before the Hon'ble Apex Court in various cases and the law stands settled by the Apex Court in the Constitution Bench decision in 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 45 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 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 46 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 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 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:47 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 HDQRS,: DELHI"
33. Again the issue of legality and validity of dismissal order(s) by invoking the provisions of Article 311(2)(b) of the Constitution of India came for consideration before the coordinate Bench of this Tribunal in OA 4246/2014 and two others, titled Rajbir Singh vs. Commissioner of Police and others. In this case, the learned counsels for the parties relied upon various decisions of the Hon'ble Supreme Court, High Court(s) and of this Tribunal(s) and the decision of the Hon'ble Supreme Court in the case of Ved Mitter Gill (supra) on which learned counsel for the respondents in the instant cases has heavily relied and this Tribunal allowed the said OAs vide common Order/Judgment dated 4.1.2017, paragrpahs 29 to 32 thereof read as under:-
"29. The allegations against the applicants were grave in nature, more so, due to the fact that they are in the disciplined police force. But is it sufficient to dispense with the constitutional protection of inquiry before dismissing them from service?
30. On application of the guiding principles, as envisaged by the Hon'ble Apex Court in its Constitution Bench decision in Tulsiram Patel (supra), as followed in all the 48 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 subsequent decisions, to the facts of the present case, where it was not alleged that the applicants are terror in the area or intimidated any of the persons involved with the allegations or any industrial unrest was foreseen or conducting of inquiry will prejudice the security of the nation or no witness was involved in view of the nature of the allegation, as were the circumstances, in some of the decisions referred to above and where invocation of Clause (b) to Article 311(2) was upheld, we are of the considered view that the mandatory requirements under Article 311(2) for dispensing with the inquiry before dismissing the applicants from service were either existing or contended to be existing. Existence of grave charges or misusing of official position or agreeing to accept illegal gratification or suspicion of certain other facts cannot only be the sufficient reasons for dispensing with the inquiry. Incidents of terror, intimidation, industrial unrest and prejudice to the security of the nation are some of the prerequisites for dispensing with an inquiry before dismissing an employee under Article 311(2)(b) of the Constitution of India. In the present case, none of those conditions were fulfilled. Hence, there was no justification for dispensing with the inquiry.
31. We are conscious that there can be only Zero tolerance for corruption, but before a person is thrown away by such a stigma, the orders should be passed after following due procedure.
32. In the circumstances and for the aforesaid reasons, the OAs are allowed and 49 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 the impugned orders are set aside with all consequential benefits. Since the applicants were under suspension as on the date of passing of the impugned orders, they would thus remain under suspension and the respondents shall take a decision regarding revocation or continuation of the same. The respondents are at liberty to proceed against the applicants departmentally, as per rules and the treatment of suspension period shall be dependent on the same. No costs."
34. Legality of dismissal of a constable under the respondents by invoking the provisions of Article 311(2)(b) of the Constitution of India again came for consideration before the coordinate Bench of this Tribunal in OA No.4324/2017, titled Nitesh Kumar vs. Govt. of NCT of Delhi and others, decided on 05.03.2019, as noted above, the applicant therein in the said case has been the co-accused/co-delinquent in the said FIR No.120/2017 in which the applicant - Constable Sumit Sharma in the aforesaid OA 1383/2020 was also involved. Needless to mention here that this Tribunal considered the Constitutional Bench decision of the Hon'ble Supreme Court in the case of Tulsiram Patel (supra), and various other decisions of the Hon'ble Apex court in Jaswant 50 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 Singh (supra), Chief Security Officer and Others Vs. Singasan Rabi Das (supra), Union Territory, Chandigarh and Others Vs. Mohinder Singh (supra), Southern Railway Officers Association & Another. v. Union of India and Others (supra) and also Ved Mitter Gill (supra) and after considering the pleadings on records and arguments advanced by the learned counsels for the parties, the coordinate Bench of this Tribunal vide its Order/Judgment dated 05.03.2019 in the said case held in paras 20 and 21 as under:-
"20. A conspectus of the aforesaid decisions discloses that an order passed invoking Article 311(2)(b), just by reciting the language of the same, verbatim, cannot made it valid, unless sufficient/cogent reasons and circumstances satisfying the requirements of the said Article were prevailing at the relevant time. Similarly, every order passed by invoking Article 311(2)(b), cannot become invalid on the ground of violation of principles of natural justice. What is required is the existence of valid reasons and circumstances for dispensing with the inquiry before invoking Article 311(2)(b).
21. In one line of cases, after satisfying, in the facts of the said cases, it is not reasonably practicable to hold an inquiry, the orders under Article 311(2)(b) were upheld. Similarly, in another line of cases, noticing that the requirements of Article 311(2)(b) for dispensing with the inquiry, in the 51 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 circumstances of the said cases were not satisfied, the orders were set aside."
35. Similarly dismissal of an employee working under the respondents by invoking the provisions of Article 311(2)(b) of the Constitution of India came for consideration before the coordinate Bench of this Tribunal in OA No.2097/2019, titled Neeraj Kumar (supra), this Tribunal after considering the facts, various judgments of the Hon'ble Apex Court and Hon'ble High Court of Delhi, held in paras 14 to 16 thereof as under:-
"14. In the instant case, the applicant was placed under suspension vide order dated 31.07.2018 due to his involvement in a criminal case and lodging of a FIR against him. Subsequently, preliminary enquiry was ordered. In the preliminary enquiry it was recommended that exemplary punishment should be given. It was also indicted that there is a possibility that no witness would come forward in view of the influential position held by the delinquent and, therefore, it would not be reasonably appropriate to conduct regular DE. The DA noted the observations and dispensed with the enquiry and ordered dismissal of the applicant under Article 311 (2) (b) of the Constitution of India. The AA considered the appeal of the applicant and dismissed the same. In none of the orders, there is any mention of details of raid conducted by the CBI and any recovery of cash during this raid has also not been mentioned in the preliminary enquiry report. The apprehension 52 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 that the applicant may influence the witnesses, due to which it was decided to dispense with the DE are merely based on surmise and conjectures. The criminal proceedings are pending in the Court wherein also witnesses would be produced and cross examined. The apprehension of the witnesses turning hostile in the DE is not tenable as no such instance had come to the notice or specifically mentioned during the preliminary enquiry.
15. Article 311 provides for protection to a public servant from indiscriminate actions by the employer. Any punishment can be imposed only after conducting inquiry. That cannot be dispensed with indiscriminately. It is only in rare cases such as where security of State is involved, that recourse can be taken to Article 311(2)(b) of the Constitution. In this case, the preliminary inquiry itself has virtually declared that the applicant is guilty of grave misconduct. At the same time, regular inquiry is dispensed with. The whole exercise is not only opposed to the law laid down by the Hon'ble Supreme Court, but also is a contradiction in terms.
16. In view of the Hon'ble Apex Court's judgments, the DE can be dispensed with only on the grounds which are robust, clear and substantial. We do not find any such ground or fact which has been brought on record. We are not commenting on acts and omissions alleged against the applicant. It is only about the denial of reasonable opportunity for presenting his case to the applicant in a DE and denial of natural justice."
36. The issue of dismissal of an Inspector under the respondents by invoking the provisions of Article 311(2)(b) 53 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 of the Constitution of India came for consideration before the coordinate Bench of this Tribunal in OA No.2867/2019, titled Jasmohinder Singh (supra). The applicant in the said case has been the co-accused/co- delinquent in the case FIR 643/2018 in which the applicant, namely, Ajay in OA 3267/2019 was stated to be involved. After considering the facts and law at length, this Tribunal while allowing the said OA held in paras 11 and 12 as under:-
"11. Having instituted the preliminary inquiry under Rule 15, against the applicant, the DA has given up them halfway through, and recourse was taken recourse to second provision to Article 311 (2). On the one hand the DA rested his conclusions about the alleged involvement of the applicant on the preliminary inquiry and on the other hand, he felt that the witnesses may not come forward to depose against the applicant owing to the position on the other hand. It is difficult to reconcile these two. Further, when the police administration is so strong, with quite large number of IPS officers, and other State Service Officers above the rank of Inspector, the statement made in the impugned order, that the witnesses may not be in a position to speak against the applicant, would indirectly suggest the weakness of the entire establishment. There are ways and methods to give 14 (OA.2867/2019) protection to the witnesses. Alternative mechanisms exist, to unearth the truth. We are convinced that the observation in the penultimate paragraph of the 54 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 impugned order was made only as a ruse to take recourse to the second provision to Article 311 (2).
12. In medical terms, the mechanism provided for Article 311 (2) can be compared to a schedule 'H' drug. It is only when treatment with the drugs of other classifications does not yield the expected the results, that recourse is taken to schedule 'H' drug. The manufacturer administers a serious warning that it can be administered only by specialist, with proper supervision. Similarly the second proviso to Article 311 (2) can be pressed into service, only when the ordinary course of law has failed to bring a person, who has resorted to gross misconduct to book. Another aspect is that the nature of misconduct attributed to the employee must be such that it cannot be proved. The underlying objective is that the employee should not be permitted to take advantage of various protections accorded to him, under the law and, to escape from the responsibility, for the acts of misconduct which manifested themselves. This may include the cases of espionage, anti national activities, acts posing threat to the security of nation, leakage of sensitive state secrets and the like."
37. Further we may refer to Order/Judgment dated 11.3.2021 of this Tribunal in OA 1912/2015, titled Kripal Singh (supra) in which most of the judgments referred to and relied upon by the learned counsels for the parties have been considered and in paragraph 20, it has been held that before dispensing with an inquiry subjective 55 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 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 be recorded which must be based on objective criterion and not on the whims and fancies 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.
38. The issue of legality of dismissal of a Constable by resorting to the provisions of Article 311(2)(b) of the Constitution of India came for consideration before this Tribunal in OA 1876/1996, titled Ex. Constable Mahabir Singh and another vs. Union of India and others, and the same was considered and dismissed by this Tribunal vide Order/Judgment dated 24.4.2000. In the said case, the applicants were working as Constables in Delhi Police. It was alleged that they had raped one alleged (prosecutrix) and has also assaulted her husband. This information was passed on to the Disciplinary Authority of 56 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 the applicants in the said OA. The Disciplinary Authority visited the site where the offence was alleged to have been committed. He was accompanied by the SHO, some other police officials, MLA and the complainant. The said OA was dismissed by the Division Bench of this Tribunal. When the same was challenged before the Hon'ble High Court of Delhi in WP(C) No.7068/2000, titled Ex. Constable Mahabir Singh and another vs. Union of India and others, the Hon'ble High Court vide Order/Judgment dated 2.9.2009 allowed the said Writ Petition and quashed the Tribunal's Order/Judgment dated 24.4.2000 as well as the orders passed by the Disciplinary Authority dispensing with the departmental inquiry, paras 13 to 17 thereof read as under:-
"13. To what extent can the court interfere with the opinion formed by the Disciplinary Authority that it is not reasonably practicable to hold a disciplinary enquiry? This question is required to be answered in the light of Article 311 (3) of the Constitution which places the seal of finality on the decision of the Disciplinary Authority whether or not it is reasonably practicable to hold an inquiry. This question is also to be answered in the light of the decision of the Constitution Bench in Union of India and another v. Tulsiram Patel and others, (1985) 3 SCC 398.57 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021
14. The Supreme Court observed in Tulsiram Patel that whether it is reasonably practicable to hold an enquiry is a matter of assessment to be made by the Disciplinary Authority. This is because the Disciplinary Authority is generally on the spot and knows what is happening. The Supreme Court also observed that finality given to the decision of the Disciplinary Authority is not binding upon the Court so far as its power of judicial review is concerned. In an appropriate case the Court may strike down the order dispensing with the enquiry as also the order imposing penalty.
15. On the scope of interference by the Court, the Supreme Court held that interference is permissible on grounds well established in law in the exercise of the power of judicial review in matters where administrative discretion is exercised. For example, interference is permissible when clause (b) of the second proviso to Article 311(2) of the Constitution has not been properly applied, as also in a case when there is a charge of mala fides. Similarly, the Court can examine the relevancy of the reasons given by the Disciplinary Authority for holding that it is not reasonably practicable to hold an enquiry. However, the Court will not sit in judgment like a Court of first appeal over the relevancy of the reasons. The Court may also judge the reasonableness of the decision in the light of the then prevailing situation rather than in the cool and detached atmosphere of the court room, removed in time from the actual situation. In a case where two views are possible, the Court will decline to interfere.
16. Considering the law laid down by the Supreme Court, we have gone through the reasons given by the Disciplinary Authority of the Petitioners to conclude that it is not 58 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 reasonably practicable to hold a disciplinary enquiry. On a perusal thereof, it appears to us that what weighed with the Disciplinary Authority was the seriousness of the alleged crime; that the Petitioners were caught "red handed"; that the Petitioners were implicated in the preliminary enquiry; and that despite all this the Petitioners might be let off if the prosecutrix and her husband turn hostile. It appears that on a cumulative assessment and to prevent a "not guilty" decision of the enquiry officer, in the event of the prosecutrix and her husband turning hostile, that apparently prompted the Disciplinary Authority to take precipitate action.
17. We say this because the Disciplinary Authority has stated in the order dated 30th November, 1994 that the Petitioners may so terrorize the prosecutrix and her husband who may not be able to withstand the brutal force of the "two highly undesirable police personnel". This clearly suggests that the application of mind by the Disciplinary Authority was to the ultimate outcome of the disciplinary enquiry and not to the reasonable practicability of holding a disciplinary enquiry. In other words, it appears from a reading of the order dated 30th November, 1994 that it might have been possible to hold a departmental enquiry, but the Petitioners may not be found guilty in that enquiry because of their ability to terrorize the prosecutrix and her husband who were the only witnesses to the alleged offence. In our opinion, the application of mind by the Disciplinary Authority was not to the reasonable practicability of holding an enquiry, but to the result of the enquiry. Therefore, the reason given for dispensing with the inquiry was neither relevant nor germane to the issue."59 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021
39. Further we may refer to common Order/Judgment dated 16.5.2019 of the Hon'ble High Court of Delhi in WP(C) No.11694/2018, titled Commissioner of Police and others vs. Kaushal Singh, etc., and two other writ petitions. In the said case, the respondents were working in Delhi Police and have approached this Tribunal against the order passed by the Disciplinary Authority dismissing the three employees from service by invoking the power available under sub-clause (b) (2) of the provision of Article 311 of the Constitution of the India without conducting the departmental inquiry and reason given for not conducting the inquiry was that the fact finding inquiry was conducted into the matter and the documents collected by the Fact Finding Committee had shown involvement and commission of crime and act and omission and also the witnesses were very reluctant to come forward to depose in the inquiry. The said OAs filed by the applicants were allowed and on being challenged, the Hon'ble High Court of Delhi after dealing with the law at length dismissed the said Writ Petitions vide its common Order/Judgment dated 16.5.2019 and in paras 6 to 9 held as under:-
60 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 "6. By simply recording a statement the disciplinary authority has held that a preliminary enquiry was conducted.
Recording that even in the preliminary enquiry witnesses did not come has been cited as a reason for dispensing with the enquiry, stating that regular enquiry is not possible as the witnesses are not forthcoming. However, the names of the witnesses who were to be examined;
complaints, if any, received from the witnesses expressing their inability to come forward for the enquiry; report of the enquiry officer who conducted the preliminary enquiry to say as to how, when and in what manner he summoned the witnesses and how he came to know that the witnesses are not coming, were never brought on record or explained either to the Tribunal or before this Court.
7. It is based on these facts that the Tribunal from para 27 to para 30, after taking note of various legal provisions and judgments on the question, has dealt with the issue in the following manner:
"27. It is manifest from the record that the respondents have conducted a PE and basing on the same, formed an opinion that he was guilty of the charges levelled against him. The relevant part of the appellate order dated 22.05.2014 reads as under:-
"A fact finding enquiry (PE) was got conducted from P.G. Cell/SED. During enquiry, the appellant‟s involvement in the commission of crime and omission from his govt. duty (absence marked vide DD No.50 61 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 dated 07.11.2013, Distt.
Lines/SED) has been revealed.
The Disciplinary Authority, after perusal of the enquiry report, took the view that the appellant brought bad name to the entire police force.
The indulgence of police personnel in such a dastardly act would destroy the faith of the common people in the law enforcement system and no witness will come forward for an enquiry. The involvement of the appellant in such criminal activities is not only undesirable, but also amounts to serious misconduct, indiscipline and totally unbecoming of a police officer.
It is under these compelling circumstances, Rule under article 311(2)(b) of Constitution of India has been invoked in this case for the sake of justice.
The appellant has become a liability to the department and should not be allowed to continue in police service and needs to be dismissed. The Disciplinary Authority found him unfit to be retained in the police force anymore and dismissed the appellant from service vide order No.11042-
11142/HAP/SED(P-I) dated 27.11.2013". 28. Similarly, the respondents
conducted PE proceedings against the applicants in all the OAs and basing on the said report, came to the conclusion that the applicants does 62 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 not deserve to be continued in service. Except the allegation that the applicants in OA Nos.2067/2015 and 2413/2015 fired on their colleagues while trying to apprehend them, there was no other material before the respondents to form an opinion that no witnesses will come forward to depose against the applicants in the event of conducting a regular departmental enquiry. In view of the fact that the respondents were able to conduct PE against the applicants and without there being any sufficient material, jumped to the conclusion that it is not practicable to hold a regular departmental enquiry, we are of the view, that the facts in Tarsem Singh's case (supra) are squarely applicable to these OAs.
(emphasis supplied)
29. In Tarsem Singh's case (supra), the Hon‟ble Apex Court while allowing the appeals categorically observed "if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the appellant.
Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice". Accordingly, in the facts of the present OAs, we hold the issue in favour of the applicants.
(emphasis supplied)
30. In the circumstances and for the aforesaid reasons, all the OAs are allowed and the impugned orders are 63 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 set aside with all consequential benefits. Since the applicants were under suspension as on the date of passing of the impugned orders, they would thus remain under suspension and the respondents shall take an appropriate decision regarding revocation or continuation of the same. The respondents shall proceed against the applicants departmentally, as per rules and the treatment of suspension period shall be dependent on the same. No costs.
Let a copy of this order be placed in all the files."
Thereafter, the applications were allowed.
8. In our view, the discretion exercised by the Tribunal and the reasons given for holding so is reasonable, based on proper consideration of the material that came on record; and there is nothing based on which we can hold the aforesaid decision to be perverse or unreasonable, in any manner whatsoever.
9. Even before us, neither the report of the preliminary enquiry officer is produced nor anything is brought on record based on which the apprehension that the witnesses will not come forth to testify are indicated or established. On the contrary, we are informed that in the criminal case, the same witnesses deposed and thereafter the employees have been acquitted."
40. The Order/Judgment dated 7.10.2016 of this Tribunal in OA 217/2017, titled Ashwani Kumar and others vs. Commissioner of Police and others, which 64 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 was followed by the coordinate Bench of this Tribunal in its Order/Judgment dated 14.1.2017 passed in OA No.4246/2014, titled Rajbir Singh vs. Commissioner of Police, was challenged before the Hon'ble High Court of Delhi in WP(C) No.4078/2017 and the Hon'ble High Court after detailed consideration of the facts and law on the subject dismissed the said Writ Petition vide Order/Judgment dated 11.12.2019 and held in paras 7 and 8 thereof as under:-
"7. According to Mr. Satyakam the above reason is contained in the notings in file as well. The mandate of the law is clear that before dispensing with an enquiry, a subjective satisfaction is to be arrived at by the Disciplinary Authority ("DA") that it is not reasonably practicable to hold a regular departmental enquiry. These reasons must be based on an objective criterion and not on the whims and fancies of the DA. In other words, it cannot be based on surmises and conjectures, but must reflect the actual ground reality, which makes it impossible for the DA to order a regular departmental enquiry.
8. In the present case, with the Petitioners being in possession of a video footage, as aired on the television, of the actual incident involving the Respondents, there should be no difficulty in holding a regular enquiry where that evidence is not only presented, but also provided to the Respondents for them to defend themselves. Without there being any effort made to record statements of 65 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 public witnesses, or of media persons, the DA could not have come to a conclusion that the Respondents would have been able to "manage the evidence and witnesses in their favour at a later stage" or that the media would not cooperate in the inquiry. Without making the slightest effort of investigating into the matter further, to have taken a decision not to hold an enquiry, and to proceeding to remove the Respondents from service appears to this Court to be a decision unsustainable in law."
41. The issue of dismissal of Railway employee under Article 14 (ii) of Railway Servants (Discipline and Appeal) Rules, 1998 read with Article 311 (2) of the Constitution of India came for consideration before the Hon'ble High Court of Judicature at Patna in the case of Union of India vs. Central Administrative Tribunal, Patna Bench, reported in (2020) 3 PLJR 881. In the said case, the Tribunal had quashed and set aside the employer's order of dismissal justifying dispensing of the regular enquiry on the ground of terror of the delinquent employee and the gravity of the allegations against him. After extensive consideration of the facts and law on the subject, the Hon'ble High Court ruled in paras 22 to 24 as under:-
"22. The Hon'ble Apex Court in Tulsiram Patel (Supra) has already held that 66 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 the twin conditions leading to the action of dismissal must satisfactorily be born out from the record- (a) where holding an enquiry contemplated under the Rules or the Constitution is not reasonably practicably; (b) the Disciplinary Authority for reasons in writing has recorded, its satisfaction, that it is not reasonably practicable to hold such an enquiry.
23. Of course, such opinion has to be adjudged as that of a reasonable mind accounting for a reasonable view on the prevalent fact situation. If the order fails to meet any one of the carved out exceptions, it needs to be judicially reviewed.
24. As already noticed, copy of the reasons or the fact finding report were not supplied to the petitioner along with the order of dismissal which has resulted into grave miscarriage of justice. Also there is no finding recorded with regard to the condition not being normal or atmosphere not conducible for holding a regular enquiry."
42. Again in OA No.1516/2018, titled Ex. Constable Ashok Kumar and another vs. Govt. of NCT of Delhi and others, decided on 5.2.2009, this Tribunal had set aside the order of dismissal of the applicants therein from service by dispensing with the enquiry by invoking the provisions of Article 311(2)(b) of the Constitution of India. When the same was challenged before the Hon'ble High Court of Delhi in Writ Petition (Civil) No.10866/2009, titled Govt. of NCT of Delhi and others vs. Ex. 67 O.A. No.1383/2020 with OAs 3508/2018,
4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 Constable Ashok Kumar and another, the Hon'ble High Court of Delhi vide order/judgment dated 16.9.2011 dismissed the said Writ Petition. In the said case, the respondents were Constables in Delhi Police. During their service, a case FIR No.359/2006 was registered at Police Station Timar Pur, Delhi under Sections 186/353/307/34 of the IPC and 27 of the Arms Act and another FIR bearing no.383/2006 under Sections 302/364 of the IPC with Police Station Timar Pur, Delhi. The petitioners' department after taking into consideration the gravity of the allegations made against the respondents therein had held that it was not reasonably practicable to conduct a departmental inquiry on the ground of reasonable belief that the witnesses may not come forward to depose against them, and decided to dispense with the enquiry by invoking the power under Article 311(2)(b) of the Constitution of India and straightaway dismissed them from service. The appeal(s) against the disciplinary authority's order(s) was/were also rejected. The Hon'ble High Court after a detailed consideration of the facts and law, including the judgments of the Hon'ble Apex Court in Union Territory, Chandigarh & Ors v. Mohinder 68 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 Singh, (1997) 3 SCC 68; Tarsem Singh v. State of Punjab & Ors, (2006) 13 SCC 581; and Chandigarh Administration & Ors v. Ex.S.I.Gurdit Singh, (1997) 10 SCC 430, dismissed the said Writ Petition, para 27 of the said order/judgment dated 16.9.2011 reads as under:-
"27. The learned counsel for the petitioners is also unable to explain satisfactorily for not complying with the intent of the Circular dated 21st December, 1993 stipulating that the Police Officers involved in the case of rape or dacoity or any such heinous offence are not to be dismissed straightway under Article 311(2)(b) as criminal cases are registered against them. The circular directs that such dismissals without holding departmental enquiries are illegal as in such cases departmental enquiries can be conveniently held. The circular thus emphasizes that the Disciplinary Authority should not take recourse 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. It cannot be disputed by the petitioners that in the absence of valid reasons, duly reduced in writing, order of dismissal resorting to Article 311(2)(b) of the Constitution of India cannot be sustained in law. From the orders of the Disciplinary and Appellate Authority it is apparent that no cogent and valid reasons have been given as to why the departmental enquiry could not be conducted. In the circumstances, the order of dismissal of the respondents without conducting 69 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 departmental enquiry cannot be sustained in the facts and circumstances of the case. Therefore, for the foregoing reasons the petitioners have failed to show any such grounds against the order of the Tribunal which would show that it is illegal or irregular or suffers from such perversity which would require interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India."
43. We have also gone through the judgments referred to and relied upon by Shri Yadav, learned counsel for the respondents. The case of Ved Mitter Gill (supra) has been considered by this Tribunal and by the Hon'ble High Court(s) in the cases referred to hereinabove. It is not in dispute that it has been recorded that Mr. Ved Mitter Gill was a senior, permanent and non- transferable official of the Govt. and his juniors alone would have been the witnesses in the departmental proceedings and were not likely to depose against him on account of fear of earning his wrath in future. Moreover, his links with escaped under trials Babbar Khalsa International, a known and dreaded terrorist organization, was also considered as a reason for dispensing with the regular departmental enquiry. The case of Ct. Mukesh Kumar Yadav (supra) had been considered by the Hon'ble High Court of Delhi in 70 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 the case of Kaushal Singh (supra) as well as of this Tribunal in Neeraj Kumar (supra) and Kripal Singh (supra), The judgments in the cases of Chandigarh Administration & Ors v. Ex.S.I.Gurdit Singh, (1997) 10 SCC 430 and Parveen Kumar v. Commissioner of Police & Ors., MANU/DE/8251/2007, were considered by the Hon'ble High Court of Delhi in the order/judgment dated 16.9.2011 in the case of Govt. of NCT of Delhi and others vs. Ex. Constable Ashok Kumar and another (supra). In the case of Ram Sahai Meena (supra), a finding is recorded that the victims of the applicant were below the age of 10 years and it could not be expected from them to come forward to depose against the applicant therein in the departmental proceedings.
44. In view of the aforesaid, it is clear that following two sets of the cases have been decided by this Tribunal after extensively considering the law laid down by the Hon'ble High Court and the Hon'ble Supreme Court: (i) where the order(s) passed by the authorities by invoking the provisions of Article 311(2)(b) of the Constitution of India were upheld where the circumstances, material and reasons of the authorities on which it has been held by 71 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 them that holding of an enquiry is not reasonably practicable and (ii) where the Courts have found that the authorities have passed the orders of dismissal by resorting to the provisions of Article 311(2)(b) of the Constitution of India without their being ground to dispense with the enquiry. Such orders passed by the Disciplinary/Appellate authorities have been set aside.
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 72 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 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 73 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 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.
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 74 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 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.
48. In view of the aforesaid, we are of the considered view that the aforesaid OAs deserve to be partly allowed and the same are partly allowed with the following directions:-
(i) Order(s) passed by the disciplinary and appellate authorities in the aforesaid OAs are set aside with all 75 O.A. No.1383/2020 with OAs 3508/2018, 4021/2016, 4028/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020, & 34/2021 consequential benefits to the applicants in accordance with the relevant rules and law on the subject; and
(ii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant(s) in accordance with the law.
49. In the facts and circumstances of the cases, there shall be no order as to costs.
50. Registry is directed to place a copy of this Order in all the other connected cases.
(R.N. Singh) (A.K. Bishnoi) Member (J) Member (A) /ravi/