Central Administrative Tribunal - Delhi
Mukesh Kumar vs Comm. Of Police on 31 May, 2016
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.3548/2015
Order Reserved on :27.04.2016
Order Pronounced on:31.05.2016
Hon'ble Mr.Justice M.S.Sullar,Member, (J)
Hon'ble Mr. K.N. Shrivastava, Member (A)
Const. Mukesh Kumar Yadav
Belt No.730/Crime PIS No.28900968
S/o Sh. Hari Singh Yadav,
Group 'C' Aged 45 years,
R/o Quarter No.719, Type-II,
Gomukh Apartments, PC Kaushambhi Kalan,
Delhi. ... Applicant
(By Advocate: Shri Sourabh Ahuja)
Versus
1. GNCT of Delhi
Through its Chief Secretary,
Delhi Secretariat, Players Building,
IP Estate, New Delhi-2.
South Block,
New Delhi.
2. Commissioner of Police,
Police Head Quarters,IP Estae,
MSO Building, New Delhi.
3. Additional Commissioner of Police,
Crime, Delhi
Through Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
4. Deputy Commissioner of Police,
Crime and Railways, Delhi
Through Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
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5. Deputy Commissioner of Police
General Administration, Delhi
Through Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building,
New Delhi. .... Respondents
(By Advocate: Ms. Sumedha Sharma )
ORDER
By Hon'ble Mr.K.N. Shrivastava, Member(A):
This OA has been filed under Section 19 of the Administrative Tribunal Act, 1985. The specific relief(s) prayed in the OA by the applicant read as under:-
(a) Quash and set aside the order 05.09.2012 (whereby the Applicant was dismissed from service under Article 311(2) (b) of the constitution of India) Appellate Authority's order dated 26.08.2015 (whereby the appeal of the applicant was rejected) and order dated 08.09.2015(whereby the Applicant is directed to vacate the government accommodation) And
(b) Direct the respondents to reinstate the Applicant back in service from the date of his dismissal and accord him all the consequential benefits arising there from i.e. back wages, seniority, promotion etc. And
(c) Direct the respondents to treat the suspension period of the Applicant from 08.08.2012 to 05.09.2012 as spent on duty for all intents and purposes. And
(d) Award cost in favor of the Applicants and against the respondents And/or (e ) pass any further order, which this Hon'ble Tribunal may deem fit and appropriate in the facts and circumstances of the case.
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2. The brief facts of this case are as under:
The applicant was a Constable in Delhi Police. He and another Constable Ajeet Singh while posted in Special Unit, Crime Branch, were arrested along with 2 civilians namely Harender Yadav, of Distt. Muzaffar Nagar, UP and Baldev Singh of Distt. Bharat Pur (Rajasthan) by U.P.Police in the night of 7/8 August, 2012 for the charge of kidnapping for ransom, forgery and impersonation and also under the Arms Act. Three criminal cases were registered against them. On the fateful day i.e. 07.06.2012, the applicant was absent from duty purportedly on account of medical rest. It is alleged that the applicant and three co-accused had kidnapped one Shri Sushil Bansal, Executive Engineer, Jal Board from his residence for ransom for which FIR No.692/12 u/s 364-A IPC was registered at PS Kotwali, Bijnour. During personal search of the applicant, one ID card of Delhi Police, one fake identity of CBI No.28882452 having his photograph and identity as Rajender Kumar, SI, CBI and 4 bank ATM cards, 2 vehicles registration certificates and 2 driving licences were seized from him. He was placed under suspension on 08.08.2012. A fact finding enquiry headed by Shri M.C.Katoch, ACP/Crime Branch was ordered by the Delhi Police. Shri Katoch went to Bijnour to conduct the enquiry. During the enquiry no one came forward to depose. In his report inter alia, Shri Katoch had said that it would not be practicable to hold departmental enquiry against the applicant as no one came forward to depose against the applicant and other co-accused for fear. He also reported that retention of a criminal like the applicant in Delhi Police would be unjustifiable. Acting on the said report, the 4 OA-3548/2015 Disciplinary Authority (DA) i.e. Dy. Commissioner of Police (Crime and Railways), vide impugned Annexure A-1 order dated 06.09.2012, dismissed the applicant as well as the co-accused Constable Ajeet Singh from the service of Delhi Police under Article 311 (2) (b) of Constitution of India with immediate effect. The impugned order also states that the suspension period of the applicant i.e. from 08.08.2012 to the date of dismissal order i.e. 06.09.2012 shall be treated as 'period not spent on duty' for all intents and purposes.
3. Aggrieved by the Annexure A-1 dismissal order passed by the DA, the applicant and the co-accused Cont. Ajeet Singh preferred an appeal before the Appellate Authority (AA) i.e. Addl. Commissioner of Police. The AA, vide the impugned Annexure A-2 order dated 26.08.2015, dismissed the appeal. Aggrieved by the Annxure A-1 and A-2 orders of DA and AA, the applicant has filed the present OA.
4. Pursuant to the notices issued, the respondents entered appearance and filed their reply. The applicant thereafter filed his rejoinder. After the completion of pleadings, the case was taken up for hearing the arguments of the parties on 27.04.2016. Shri Sourabh Ahuja, learned counsel for the applicant and Mrs. Sumedha Sharma, learned counsel for the respondents argued the case.
5. Learned counsel for the applicant submitted that the punishment order has been passed by DA is based on surmises and conjectures under the garb of Article 311(2) (b) of the Constitution of India dispensing with the departmental enquiry. He said that the applicant has been acquitted from the criminal charges, on merits, by the Session Court, Bijnour (UP) vide judgment dated 12.11.2013. He said 5 OA-3548/2015 that the acquittal of the applicant from the criminal case goes to demonstrate amply that the applicant was implicated in false criminal cases.
6. Learned counsel stated that dismissal of the applicant without holding departmental enquiry is gross violation of the principles of natural justice. Learned counsel cited the judgment of Hon'ble Supreme Court in the cases of Satyavir Singh Vs. UOI and Jaswant Singh Vs. State of Punjab to say that the departmental enquiry cannot be lightly dispensed with and that such dismissal not supported by any independent materials and without holding enquiry would be illegal.
7. Shri Ahuja further stated that the DA has wrongly observed in the punishment order that it would not be reasonably practicable to conduct departmental enquiry against the reckless criminals. It was also submitted that the DA has passed the punishment order on extraneous materials being the report of Shri M.C.Katoch, ACP/Crime without supplying a copy of the said report to the applicant. Non- supplying of the enquiry report to the applicant itself goes to prove that the applicant has been treated unfairly by the DA. The learned counsel vehemently argued that the acquittal of the applicant from the criminal case by the Session Judge proved that applicant was implicated falsely in the criminal case. Learned counsel further stated that the AA has not applied his mind to the case and has mechanically dismissed the appeal of the applicant and upheld the order of the DA. He said that whether the applicant is guilty of the crime charge is to be decided solely by the criminal court and none else.
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8. Learned counsel placed reliance on the judgment of the Hon'ble Delhi High Court in the case of GNCTD Vs. Ex-Constable Ashok Kumar & Anr. in which the accused Const. Ashok Kumar was also dismissed under Article 311(2) (b) of the Constitution of India for alleged criminal offence but the said order was set aside by the Principal Bench of this Tribunal in OA-1516/2008 vide order dated 05.02.2009. The said order was challenged by the GNCTD in WP(C) No.10866/2009 before the Hon'ble Delhi High Court. The said WP (C) was disposed of vide order dated 16.09.2011 upholding the order of the Tribunal. He argued that the case of the applicant is identical to that of Const. Ashok Kumar (supra) and hence the applicant deserves to be granted the same relief that was granted Const.Ashok Kumar by this Tribunal. Concluding his arguments, learned counsel for the applicant stated that if any exceptional action is to be taken under Article 311(2)(b) of the Constitution of India, the concerned authority has to establish that indeed an exceptional situation exists by adducing credible evidence before passing the order under Article 311(2)(b) of the Constitution. For all these reasons, the impugned Annexure A-1 and A-2 passed by the DA and AA respectively deserve to be quashed and set aside and the prayer made by the applicant in the OA may be granted, the learned counsel argued.
9. Per contra, learned counsel for the respondents submitted that the applicant had indulged into heinous crime for which 3 FIRs for kidnapping for ransom, forgery, impersonation as well as for the violation of the provisions of Arms Act had been registered against him and other co-accused under the relevant sections of the concerned 7 OA-3548/2015 Acts. The applicant had hatched a conspiracy to extort money from the govt. official by masquerading himself as a CBI officer. Thus he had indulged into heinous criminal act. Such action by the applicant and his co-accused has shaken the faith of the peace loving citizens in the law enforcing agency. Learned counsel said that Shri M.C.Katoch, ACP/Crime Branch was sent to Bijnour for conducting a fact finding enquiry in the matter. After enquiry, he reported that for fear of the applicant and other co-accused, no one came forward to depose against them. He had also reported that conduct of departmental enquiry against the applicant would be futile for the same reasons. She further submitted that taking cognizance of the fact that the applicant with his co-accused were arrested and kept under judicial custody and also in view of the findings of Shri M.C.Katoch, ACP/Crime Branch in his enquiry report, DA came to a conclusion that in the prevailing situation, it would be futile to conduct departmental enquiry against the applicant and hence decided to invoke his powers under Article 311(2)(b) of the Constitution of India to dismiss the applicant from service of Delhi Police. Accordingly Annexure A-1 order was passed. She also downplayed the acquittal of the applicant by the Session Judge, Bijnour saying that the acquittal has happened as the crucial witnesses turned hostile and for want of adequate evidence, the Session Judge acquitted the applicant and other co-accused. She also stated that two cases, one relating to FIR No.741 under section 171/420/467/468/471 of IPC registered by PS Milak Distt. Rampur, UP and the other relating to FIR No.742 u/s 25 of Arms Act registered in the same Police Station, are still pending in the trial court.
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10. Concluding her arguments, learned counsel for the respondents submitted that preponderance of the evidence would go to indicate that the applicant indeed had indulged into grave misconduct for which his dismissal under Article 311(2)(b) of the Constitution vide Annexure A-1 and A-2 orders was fully justified and hence the OA being devoid of merits is liable to be dismissed.
11. We have considered the arguments put forth by the learned counsel for the parties and have also perused the pleadings and the documents annexed thereto. The Hon'ble S.C. in a catena of judgment has laid down essential conditions for dispensing with the holding of departmental enquiry. The names of the case and the principles laid down by the Hon'ble Apex Court are mentioned below:-
(i) Satyavir Singh & Others vs. UOI & Others
[1985(4)SCC 252]
(ii) Chief Security Officer & Others Vs.
Singasan Rabi Das
[1991 (1) SCC 729]
(iii) Jaswant Singh vs. State of Punjab & Others
[1991(1) SCC 362]
(iv) UOI & Others Vs. R.Reddaoa & Another
[1993 (4) SCC 269]
(v) Kuldip Singh Vs. State of Punjab & Others
[1996 (10) SCC 659]
(vi) Sudesh Kumar Vs. State of Haryana &
Others
[2005 (ii) SCC 525]
(vii) Dharamuddin Ahmed Borah V
Superintendent of police. Darrong and
other
[ AIR 1998 SC 2245]
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(viii) Onkar Lal Bajaj & Others Vs. UOI & Others [ (2003) & SCC 673]
(ix) Ajit Kumar Nasg vs. General Manager (PJ), IOC Ltd. Haldia & other [ (2005) 7 SCC 764]
(x) Chandigarh Administration, UT Chandigarh vs. Ajay Manchanda [1996 (3) SCC 753]
(xi) Ram Chander vs. UOI & Others (AIR 1986 SC 1173]
(xii) Sahadeo Singh & Other Vs. UOI & Others [(2003) 9 SCC 75] Essential conditions for dispensing with the holding of Departmental Enquiry laid down by the Supreme Court
1. Reasons for dispensing with the regular departmental enquiry must be established by holding that it is not reasonably practicable to do so and reasons for this must be recorded in writing.
2. Disciplinary enquiry should not be dispensed with lightly or arbitrarily or out of ulterior motive
3. Disciplinary enquiry should not be dispensed with to avoid holding of an enquiry or because the department's case against the government servant is weak and must fall.
4. The reasons for dispensing with enquiry need not contain detailed particulars, but the reason must not be vague or just a repletion of the language of clause (b) of second proviso.
5. The authority is obliged to show that his satisfaction is based on objective facts. The decision to dispense with the departmental enquiry cannot be rested solely an ipse dixit of the concerned authority.
6. The subjective satisfaction must be fortified by independent material to justify dispensing with the enquiry envisaged by Article 311(2) (b); recourse to Article 311 (2) (b) can be taken even after enquiry has been started, the gravity 10 OA-3548/2015 of offence is not a ground for dispensing with regular departmental enquiry and involving Article 311 (2) (b)
7. Courts can interfere with such orders on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised;
notwithstanding clause (3) of Article 311.
8. In examining the relevance of reasons, the court will consider the situation, which led the disciplinary authority to conclude that it was not reasonably practicable to hold enquiry.
9. Court should examine whether the reasons are relevant and in order to do that the court must put itself in place of disciplinary authority and consider what is the prevailing situation a reasonable person acting reasonably would have done. When two view are trouble, the court will decline to interfere; when the satisfaction of the concerned authority is questioned in the 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 which or caprice of the concerned officers.
Subjective satisfaction recorded in the order has to be fortified by an independent material to justify the dispensing with the enquiry envisaged by Article 311(2) of the Constitution; and that the appellate authority must not only give a hearing to the Government servant concerned but also pass a reasoned under dealing with the contentions raised by the concerned officer in the appeal
12. The Hon'ble Supreme Court in the case of UOI and Anr. Vs. Tulsiram Patel [1985 (2 )SLR 576 on the issue of removal under Article 311(2)(b) of the Constitution is held as under:-
" having examined the proviso to Article 311(2) and principles of natural justice, it was ruled that dispensing of enquiry takes away the right to make representation consideration of fair play and violation of natural justice requiring an opportunity of hearing to be given before major penalty is imposed and exercise of power under Article 311(2)(b) is not legally permissible under given set of circumstances."
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13. In view of the above principles laid down in Apex court in the above Cases, let us now examine as to whether the competent authority was justified to invoke its powers under 311(2)(b) of the Constitution to dismiss the applicant.
14. The fact that the applicant and other co-accused were arrested in the Distt. Of Bijnour, UP and kept under judicial custody cannot be denied. Shri Katoch ACP/Crime Branch who had gone to Bijnour for conducting a fact finding enquiry on behalf of the Delhi Police, has reported that for fear of the applicant and other criminals no one came forward to depose against them. The applicant was reported to be on medical rest since 07.06.2012 but his arrest by the UP Police in night of 7/8 August,2012 in Bijnour District raises enormous doubt his conduct. The recovery of a false Identity Card having the photograph of the applicant but containing the name of Rajender Kumar SI, CBI would cause genuine shadow of doubt with regard to the conduct of the applicant. His acquittal by the Session Judge from the charge cannot be construed as an honorable acquittal since crucial prosecution witnesses had turned hostile in the court. The fact finding report of Shri M.C.Katoch ACP/Crime Branch indicated that for sheer fear no one came forward to depose against the applicant. This itself would suffice to describe the gravity and enormity of the then prevailing situation. We are, therefore in agreement with the assessment of the DA that conduct of department enquiry under the prevailing situation would not have possible. When the crucial witnesses turned hostile in the criminal court for understandable 12 OA-3548/2015 reasons, the same conduct they would have exhibited even in the departmental enquiry proceedings. Needless to say that when the Police constables who are in-charge of prevention and control of crimes themselves indulge into such criminal acts, the faith of general public in police would definitely get shaken. It is settled law that unlike in the criminal court where the charge against the accused is to be proved beyond and reasonable time, in case the departmental proceedings, preponderance of evidence is sufficient to take action against the delinquent official. In the instance case, as described in forgoing paras, preponderance of evidence against the applicant is there in abundance. The DA has convincingly described the extra ordinary situation in which the conduct of DE proceedings could not had been possible and have rightly decided to invoke its power under 311(2)(b) of the Constitution of India for dismissing the applicant from the service of Delhi Police. The said resolute action is fully justified. Only such actions can deter the police officials from indulging into criminal acts and held restore faith of the common public in the law enforcing agency. We would not like to discuss the case of Const. Ashok Kumar(supra) as the judgment of Hon'ble Delhi High Court in that case is not a judgment in rem.
15. In the conspectus, we do not find any merit in the OA. Accordingly the OA is dismissed. No costs.
(K.N.Shrivastava) (Justice M.S.Sullar)
Member(A) Member(J)
/rb/