Central Administrative Tribunal - Delhi
Ajay Kumar Rana vs Govt. Of Nct Of Delhi on 31 July, 2015
Central Administrative Tribunal Principal Bench New Delhi O.A.No.3242/2013 Order Reserved on: 03.07.2015 Order pronounced on 31.07.2015 Honble Shri V. Ajay Kumar, Member (J) Honble Shri V. N. Gaur, Member (A) Ajay Kumar Rana Aged about 40 years Ex. Constable of Delhi Police PIS No.28931676 S/o Sh. Dharamvir Singh R/o VPO: Nirpuda Distt: Baghpat, UP. Applicant (By Advocate: Sh. Anil Singal) Versus 1. Govt. of NCT of Delhi Through Commissioner of Police PHQ, IP Estate New Delhi. 2. Special C.P (Armed Police) PHQ, IP Estate, New Delhi. 3. D.C.P (1st Bn. DAP) Through Commissioner of Police PHQ, IP Estate New Delhi. Respondents (By Advocate: Ms. Ritika Chawla) O R D E R By V. Ajay Kumar, Member (J):
Questioning the impugned Annexure A1 Order dated 07.09.2012 whereunder the applicant was dismissed from service under Article 311(2)(b) of the Constitution of India, and Annexure A2, Appellate Order dated 10.06.2013 confirming the said punishment, the applicant, filed the OA.
2. The applicant was placed under suspension w.e.f. 29.12.2008, i.e., the date of his arrest in FIR No.74/2008 dated 07.05.2008 under Sections 182/211/468 /471/419/420/406/120-B IPC, PS Tuglak Road, New Delhi, vide order dated 13.01.2009. He was granted bail on 30.03.2009. A departmental inquiry has been initiated against him vide Order dated 04.04.2011. He was reinstated into service vide order dated 27.05.2011.
3. Again, the applicant was placed under suspension w.e.f. 16.09.2011, i.e., the date of his arrest in FIR No.285/2011 dated 16.09.2011 under Sections 420/468/471 IPC, PS Burari, Delhi, vide order dated 29.09.2011. In connection with this offence also, departmental inquiry proceedings have been initiated against the applicant vide order dated 18.10.2011. He was granted bail on 18.11.2011.
4. The applicant was arrested again on 29.04.2012 in FIR No.110/2012 dated 16.04.2012 under Section 379/411/468/471/34 IPC, PS Mukherjee Nagar, Delhi. He was released on bail on 07.07.2012. He has been deemed to be under suspension w.e.f. 29.04.2012, i.e., the date of his arrest vide order dated 14.06.2012 and DE contemplation order has also been issued on 19.07.2012.
5. While all the aforesaid criminal cases and the corresponding disciplinary proceedings are pending, the 3rd Respondent, Disciplinary Authority, in exercise of its powers under Article 311(2)(b) of the Constitution of India, dismissed the applicant from service vide the impugned Annexure A1 order dated 07.09.2012. The relevant paragraphs of the said order read as under:
Whereas the involvement of Constable Ajay Kumar Rana No.1413/DAP (PIS No.28931676) in such criminal cases which are of very serious nature being of their forgery, cheating and using of forged documents etc. erodes faith of common people in the police force, hence his continuation in the Police organization will further cause irreparable loss to the functioning and credibility of Delhi Police. He is involved in the criminal cases of almost similar nature and the circumstances indicate that such type of persons should not be allowed to continue in Delhi Police which is to work against criminals. His frequent involvements in criminal cases clearly show his criminality and indulgence in unwarranted activities which is not in the public interest. Further continuance of such criminal minded person in the force may be detrimental to public interest. Keeping such persons in Police Department will only encourage his riminal propensities to misuse his position.
Whereas in the backdrop of the position explained in the foregoing contents of this order, it is crystal clear that Constable Ajay Kumar Rana No.1413/DAP is a public servant of criminal bent of mind. Hence, in pursuance of approval of Spl. CP/Admn. Delhi and after observing the required formalities, I, M.N.Tiwari, Deputy Commissioner of Police, 1st Bn. DAP, Delhi do hereby dismiss Constable Ajay Kumar Rana No.1413/DAP (PIS No.28931676) from the service of Delhi Police with immediate effect under Article 311(2)(b) of the Constitution of India. His suspension period is also decided as period not spent on duty for all intents & purposes.
6. The appeal preferred by the applicant was dismissed by the 2nd Respondent - Appellate Authority - vide Annexure 2 Order dated 10.06.2013 and the relevant paragraphs of the same read as follows:
I have carefully gone through the appeal, impugned order dated 07.09.2012 and all relevant material available on record. The contentions of the appellant in his appeal and representation are devoid of merit. The representation submitted by the appellant during O.R. was sent to Addl. CP/Crime for comments, who has intimated that these cases are sub-judice/under investigation. It is a matter of record that appellant has been involved in the following three criminal cases, which are of serious in nature:-
1. FIR No.74/08 dated 07.05.2008 u/s 182/211/468/471/419/420/ 406/120-B IPC PS Tuglak Road, New Delhi.
2. FIR No.285/2011 dated 16.09.2011 u/s 420/468/471 IPC PS Burari, Delhi.
3. FIR No.110/2012 dated 16.04.2012 u/s 379/411/468/ 471/34 IPC PS Mukherjee Nagar, Delhi.
Frequent indulgence of the appellant in the above three criminal cases of similar nature indicates that he is in the habit of committing the crime of theft, fraud, cheating and using forged documents, which are offences against the society at large and the chance for his false implication in the above said criminal cases seems remote. The appellant is involved in criminal cases of similar nature and the circumstances indicate that such type of person should not be allowed to continue in Delhi Police, whose job is to work against criminals. This is not expected from a member of a uniformed organization, who has to perform his duty in public interest. The disciplinary authority has rightly examined his case under article 311(2)(b) of the Constitution of India and issued punishment order after due consideration and on merits of the case. There is no violation of Article 311(2)(b) of the Constitution of India. There is no need for calling O.R. as per Article 311 of the Constitution of India. Pendency of Criminal cases in Court and administrative action, both are distinct and different. The department has some liabilities towards the public to maintain their confidence. The disciplinary authority has issued order in accordance to law and instructions and the same is valid in all respects. Considering overall facts and circumstances of the case, I do not find any reason to interfere with the impugned order. The appeal is, accordingly, rejected.
Let the appellant be informed accordingly.
7. Heard Shri Anil Singal, the learned counsel for the applicant and Ms. Ritika Chawla, the learned counsel for the respondents, and perused the pleadings on record.
8. Shri Anil Singal, the learned counsel for the applicant while not disputing the fact of involvement, arrest and suspension of the applicant in the aforesaid serious offences, however, submits that the applicant was falsely implicated in all those offences and that his innocence will be proved once the criminal cases and the corresponding departmental proceedings reaches its logical end.
9. The learned counsel in support of the OA averments, mainly contends that the impugned orders are liable to be quashed and set aside on the sole ground that the same are passed without conforming the pre-requisites of Article 311(2)(b) of the Constitution of India. The respondent authorities have not recorded their satisfaction that for some reason it is not reasonably practicable to hold an inquiry before imposing the penalty of dismissal on the applicant, as mandatorily required under Article 311(2)(b).
10. The learned counsel placed reliance on the following Circular/Orders/Judgements:
a) Circular dated 28.12.1998 issued by DCP/HQ(II), for Commissioner of Police, Delhi regarding recording of cogent and legally tenable reasons in case the disciplinary authority comes to the conclusion that it is not reasonably practicable to hold an inquiry against the delinquent/charged officer.
b) Chief Security Officer & Ors. v. Singasan Rabi Das, JT 1991(5) SC 117.
c) Commissioner of Police v. Ex. Constable Gopal Lal Meena, CWP No.7392/2007, decided on 08.10.2007 by the Honble High Court of Delhi.
d) Govt. of NCT, Delhi and Ors. v. Ex. Head Const. Hans Raj and Anr., WP(C) No.1101/2008, decided on 24.4.2008.
e) Constable Deepak Kumar Dubey v. Govt. of NCT of Delhi & Anr., OA 760/2008, decided on 09.01.2009, which was upheld by the Honble High Court of Delhi in WP (C) No.10962/2009, vide its order dated 19.08.2009.
f) Ex. Constable Mahabir Singh & Anr. v. Union of India & Others, WP (C) No.7068/2000, decided on 02.09.2009 by Honble High Court of Delhi.
g) Commissioner of Police and Ors. v. Krishan Singh, WP(C) No.6766/2002, decided on 08.10.2013 of the Honble High Court of Delhi.
11. Ms. Ritika Chawla, the learned counsel for the respondents, submits that the applicant was public servant of criminal bent of mind and was involved in a number of serious criminal offences being of theft, forgery, cheating and using of forged documents, etc., and was arrested in connection therewith, and hence, his continuation in public service is unwarranted in public interest, and accordingly, the respondents, after observing the required formalities, dismissed the applicant from service. The disciplinary authority has rightly dispensed with the procedure of the departmental inquiry keeping in view the gravity of misconduct and applicants constant involvement in serious criminal activities. According to the learned counsel, the impugned orders are in accordance with law/instructions and norms and are valid in all respects. There is no violation of any rule or Article 311(2)(b) of the Constitution of India. Continuation of the applicant in the respondents police department, would have caused irreparable loss to the functioning and credibility of the department.
12. Article 311 of the Constitution of India provides as under:
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State - (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply-
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.
[(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].
13. A bare perusal of the aforesaid Constitutional provision reveals that to remove or dismiss a public servant by invoking the power under this Article, the prior satisfaction and recording of reasons that it is reasonably not practicable to hold an inquiry is mandatory. Neither the order of the disciplinary authority nor of the appellate authority does not indicate any such satisfaction was arrived at by them and any reasons were recorded before dismissing the applicant by invoking the power under Article 311(2)(b). Further, except stating that they have complied with the requirements of law, including under Article 311(2)(b) but the respondents failed to substantiate the said contentions even through their counter or pleadings in the OA.
14. The reasons required to be recorded under Article 311(2)(b) are for dispensing with the enquiry but not for dismissing/removing the delinquent. A bare perusal of the disciplinary and appellate orders in this case, reveals that the reasons mentioned therein are for `dismissing/removing the applicant from service but not the reasons for `dispensing with the enquiry before passing an order of dismissal on the applicant.
15. The Honble Apex Court in a recent Judgement in Risal Singh v. State of Haryana & Ors., AIR 2014 SC 2922, after elaborately discussing the various case laws on the subject, including the Constitutional Bench Judgement of the Honble Apex Court in Union of India and Anr. v. Tulsiram Patel, (1985) 3 SCC 398, held that under Article 311(2)(b) non-ascribing of reason while passing order dispensing with inquiry, which otherwise was must, definitely invalidates such action. The relevant part of the said Judgement can be gainfully quoted as under:
6. We have already reproduced the order passed by the competent authority. On a bare perusal of the same, it is clear as day that it is bereft of reason. Non-ascribing of reason while passing an order dispensing with enquiry, which otherwise is a must, definitely invalidates such an action. In this context, reference to the authority in Union of India and Anr. v. Tulsiram Patel[(1985) 3 SCC 398] is apposite. In the said case the Constitution Bench, while dealing with the exercise of power under Article 311(2)(b), has ruled thus:
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.
7. In Jaswant Sing v. State of Punjab and Others[(1991) 1 SCC 362] the Court, while dealing with the exercise of power as conferred by way of exception under Article 311(2)(b) of the Constitution, opined as follows:
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: (SCC p.504, para 130) 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 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.
8. After so stating, the two-Judge Bench quashed the order of dismissal and directed the appellant to be reinstated in service forthwith with the monetary benefits. Be it noted, it was also observed therein that it would be open to the employer, if so advised, notwithstanding the lapse of time, to proceed with the disciplinary proceedings.
9. Recently, in Reena Rani v. State of Haryana [(2012) 10 SCC 215], after referring to the various authorities in the field, the Court ruled that when reasons are not ascribed, the order is vitiated and accordingly set aside the order of dismissal which had been concurred with by the Single Judge and directed for reinstatement in service with all consequential benefits. It has also been observed therein that the order passed by this Court would not preclude the competent authority from taking action against the Appellant in accordance with law.
16. In view of the aforesaid categorical affirmation of law by the Honble Apex Court in its recent Judgement, we do not consider it necessary to go in detail with the decisions, referred to hereinbefore, relied upon by the applicants counsel.
17. In the circumstances and for the aforesaid reasons, the OA is allowed and the impugned disciplinary and appellate orders are quashed and set aside. However, the respondents are at liberty to proceed against the applicant in accordance with law. The period from the date of his dismissal to till date, shall be determined by the disciplinary authority after the conclusion of the inquiry, in terms of the liberty granted. As the applicant was under suspension, as on the date of dismissal, he is deemed to have been continuing under suspension till the departmental proceedings initiated against him are concluded or any orders for his reinstatement are passed by the respondents and he is entitled for payment of subsistence allowance from the date of this order, in accordance with rules/law on the subject.
18. There shall be no order as to costs.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/