Central Administrative Tribunal - Delhi
Rohit vs Delhi Police on 8 October, 2024
1
OA No. 3055/2023
Item No. 75/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3055/2023
Reserved on: - 23.09.2024
Pronounced on: - 08.10.2024
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Rohit
Ex- Constable (Ex.) of Delhi Police
PIS No. 28160352
Aged about 30 Years
S/o Sh. Balwan Singh
R/o VPO : Mandauthi,
PS : Bahadurgarh,
Distt : Jhajjar, Haryana-124507
... Applicant
(By Advocate: Mr. Anil Singal)
Versus
1. Delhi Police
Through Commissioner of Police,
New PHQ, Jai Singh Road,
New Delhi-110002.
2. Addl. C. P. (Traffic/HQ)
New PHQ, Jai Singh Road,
New Delhi-110002. ... Respondents
(By Advocate: Mr. S. M. Atif for Mr. S. M. Arif)
2
OA No. 3055/2023
Item No. 75/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant, in Para 8 of the OA, has prayed for the following reliefs: -
"1. To quash and set aside Order of dismissal dt. 12.11.2021 and Appellate Order dt. 21.4.2023
2. To direct the respondents to reinstate the applicant into service with all consequential benefits including promotion/seniority and arrears of pay since the applicant is not able to get job despite his best efforts and is unemployed.
3. To award costs in favour of the applicant and pass any order or orders which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
2. Pursuant to notice, the respondents have filed their counter affidavit opposing the claim of the applicant and have prayed for dismissal of the present Original Application. The applicant has also filed his rejoinder denying the contention of the counter affidavit and reiterated his claim in the OA.
3. The brief facts of the present case are that the applicant was working as Constable in Delhi Police since 04.04.2016. He was arrested and remained in judicial custody from 19.09.2021 to 31.05.2022. He was granted bail on 27.05.2022. The applicant states that 06 false FIRs were registered against him by the people from whom he had borrowed money as he could not pay back 3 OA No. 3055/2023 Item No. 75/C-II money to them. However, he always had intention to repay money to the persons from whom he borrowed. Departmental Enquiry was initiated against him on these allegations on 06.07.2021 without considering the issue whether the allegations made against him in the FIR amounts to service misconduct. He states that the department fully well knew that the departmental enquiry is bad in law. On the basis of these FIRs, there is no evidence to prove those allegations. Therefore, vide order dated 12.11.2021, the applicant was illegally dismissed from service under Article 311 (2) (b) of the Constitution of India dispensing away with the enquiry on the same allegation which were alleged in the criminal cases. He further contends that he had already been acquitted from some of the criminal cases by the Court of Law. He also enclosed copies of the order of Hon'ble Courts. He further states that he submitted an appeal on 25.06.2022 against the order of dismissal passed by the Disciplinary Authority. However, the Appellate Authority vide order dated 21.04.2023 rejected his appeal.
4. The applicant states that he has been falsely implicated in the criminal cases and these cases have nothing to do with the official duties. Therefore, there is no justification of resorting to Article 311 (2) (b) of the Constitution of India to dismiss him from service. He also states that the Disciplinary Authority decided to dispense away with the enquiry for the sole reason that the 4 OA No. 3055/2023 Item No. 75/C-II department case against the applicant is very weak and will fail the rigour of enquiry. Hence, the respondents choose to follow an easy option to get rid of him. Powers vested under Article 311 (2)
(b) of the Constitution of India have been invoked in this case. He contends that the reasons recorded by the Disciplinary Authority to dispense away with the enquiry are vague and totally unsustainable in law. The Disciplinary Authority has nowhere pointed out an evidence as to how holding of Departmental Enquiry is not reasonably practicable i.e. the condition precedent for invoking powers under Article 311 (2) (b) of the Constitution of India. He states that the order issued by the Disciplinary Authority is based on extraneous grounds that have nothing to do with the exercise of power under Article 311 (2) (b) of the Constitution of India. He submits that there is no material with the Disciplinary Authority which could show that the witnesses were threatened by the applicant in form of any complaint by the witnesses regarding threatening notes/calls by the applicant. The Disciplinary Authority even without making any efforts to initiate the departmental enquiry, calling the witnesses by the notice, presumed that the applicant is guilty of charges leveled against him in the criminal cases and held the same to be true. He states that this indicates that opinion of the Disciplinary Authority is based on merely presumptions. He refers to the judgment of Hon'ble Supreme Court in the matter of Chief Security Officer 5 OA No. 3055/2023 Item No. 75/C-II Vs. Singasan Rabidas 1991 (5) J. T 117 wherein it was held that even otherwise the dispensing of the enquiry for even non deposition of witness due to fear was held to be illegal by the Hon'ble Supreme Court.
5. The applicant states that the order of dismissal dispensing with the enquiry is in violation of Rule 17 (b) of Delhi Police (Punishment & Appeal) Rules which categorically provides that the procedure laid down with regard to the conduct of departmental enquiry can be dispensed away with if Police Officer charged with misconduct refuses or fails to attend the enquiry without reasonable excuse or has absconded or has deserted or cannot be found without inordinate delay and no other ground, which is not the position/grounds taken by the Disciplinary Authority for dispensing with the enquiry. Therefore, the order of dismissal dispensing with enquiry being in violation of aforesaid rule is liable to be set aside/quashed. He further states that the decision taken by the Disciplinary Authority is merely based on suspicions, surmises and presumption. Therefore, the order of punishment is legally not sustainable and is liable to be set aside/quashed.
6. The applicant contends that the order dispensing with the enquiry is in violation of their own circular dated 08.11.1993 and reissued on 31.12.1998 which categorically provides that the powers under Article 311 (2) (b) of the Constitution of India is not 6 OA No. 3055/2023 Item No. 75/C-II to be used as a short-cut and if the Police Officers involved in the cases of rape or dacoity or any other such heinous offence are dismissed straightway under Article 311 (2) (b) of the Constitution of India despite that fact that criminal cases had been registered, such dismissals without holding DEs are illegal because in such cases departmental enquiry is illegal and is liable to be set aside/quashed. He further contends that the seriousness of charges cannot be the basis of invoking Article 311 (2) (b) of the Constitution of India and dispense with the enquiry. The Disciplinary Authority has nowhere recorded any evidence to conclude that the holding of departmental enquiry is not practicable. It is further contended that even if the Disciplinary Authority did not feel to conduct regular departmental enquiry, the Appellate Authority can consider whether there is possibility of holding disciplinary enquiry at the time of deciding the present appeal as per the judgment of Hon'ble Supreme Court in the matter of Tulsi Ram Patel's Case. However, the appeal has been rejected without considering the feasibility of holding departmental enquiry.
7. Learned counsel for the applicant has placed reliance on the order/judgment of the Hon'ble High Court of Delhi in W.P. (C) No. 12573/2024 in the matter of GNCTD & Ors. Vs. Amar Singh Chauhan decided on 20.09.2024 wherein the applicant (GNCTD) withdrew the aforesaid petition in view of judgment 7 OA No. 3055/2023 Item No. 75/C-II dated 14.08.2024 passed by the Hon'ble High Court in W.P. (C) 11276/2024 titled as The Commissioner of Police & Ors. vs OM Prakash & anr.,
8. Feeling aggrieved by the aforesaid act of the respondents, the applicant approached this Tribunal by way of the present OA.
9. Counter reply has been filed by the respondents on 28.11.2023 wherein it is stated that an information was received that Rohit Kumar (applicant) was arrested on 19.09.2021 in case FIR No. 437/21 dated 16.09.2021 u/s 420 IPC P.S. Ashok Vihar, Delhi. They further state that he was absent vide DD No.28 dated 07.09.2021, Traffic Lines Todapur Delhi from 05.00 PM and was suspended vide order dated 19.03.2021 being involved in case FIR No. 14/2021 dated 06.03.2021 u/s 420 IPC P.S. Chanakya Puri, New Delhi. On receipt of above said information and gravity of the offence, it has been found that six criminal cases are registered against the appellant. The details of cases are as under: -
i. FIR No. 14/2021 dated 06/03/2021 u/s 420 IPC, PS Chanakya Puri, New Delhi.
ii. FIR No. 0116/2021 dated 07/04/2021 u/s 406/420 IPC PS Asauda, Distt. Jhajjar, Haryana.
iii. FIR No. 426/2021 dated 27/08/2021 u/s 420 IPC, PS Baba Haridas Nagar, Delhi.8 OA No. 3055/2023
Item No. 75/C-II iv. FIR No.450/2021 dated 14/09/2021 u/s 419/420 IPC PS Baba Haridas Nagar, Delhi.
v. FIR No.437/2021 dated 16.09.2021 u/s 420 IPC, PS Ashok Vihar, Delhi.
vi. FIR No. 822/2021 dated 18.09.2021 u/s 420 IPC PS Jahangir Puri, Delhi.
10. The respondents state that in each above mentioned case the applicant took money/got the money transferred to his known account from someone or owner of money transferred the same to the account on the pretext of returning them quickly. Thereafter, the applicant absconded without returning the amount. It is further stated that a DE was initiated against the applicant for his gross misconduct and his act of duping of people in Police uniform and maligning the image of the department. It has been alleged that the applicant in the uniform of Delhi Traffic Police along with service pistol had cheated an Indian Army Constable.
The conduct of the appellant was unbecoming of a police officer. Very serious allegations were leveled against the appellant. It was a shameful and abominable act of moral turpitude. The respondents further state that the applicant had violated all norms of ethics and morality by indulging himself into such type of crime/cheating and had lowered the image of Police Department and goodwill of a uniformed organization. This was not acceptable from a Police Officer whose prime duty/responsibility is to protect 9 OA No. 3055/2023 Item No. 75/C-II the common citizen and safeguard the spirit of law. His criminal conduct had also rudely shaken the faith of the citizens in the police force. He had acted in a reprehensible manner which was not at all expected from a member of the disciplined force. Such a conduct was also extremely prejudicial to the personal safety and security of the citizen.
11. The respondents contend that after such a grave criminal misconduct, if the applicant was allowed to continue in the Police force, it would be detrimental to the public interest and further tarnish the image of police force in the society. The facts and circumstances of the cases are such that it would not be reasonably practicable to conduct a regular departmental enquiry against the applicant. The misconduct of the appellant was of a grave nature that warrants the exemplary punishment of dismissal, in order to send a clear message to such undesirable persons and to prevent the recurrence of such crimes. Assessing totality of the facts and circumstances of the case as mentioned above, the disciplinary authority opined that the acts and grave misconduct of the appellant attract the provisions of Article 311 (2) (b) of the Constitution of India and make him completely unfit for police service. Therefore, the disciplinary authority dismissed the appellant from Delhi Police with immediate effect under Article 311(2) (b) of Constitution of India and his suspension period from 19.09.2021 to date of issue of this order as well as 10 OA No. 3055/2023 Item No. 75/C-II absent period from 07.09.2021 to till date was treated as "not spent on duty" for all intents and purposes vide this office order dated 12.11.2021.
12. The respondents submit that aggrieving with the said orders, the applicant had filed an appeal before the Appellate Authority to set aside the order of dismissal dated 12.11.2021 (Annexure-A/1) and to reinstate him in service with all consequential benefits, which has been rejected by the worthy CP, Delhi vide order dated 21.04.2023 (Annexure-A/2).
13. The Disciplinary Authority while issuing punishment order dated 12.11.2021 (Annexure-A/1) has invoked the provisions of Article 311 (2) (b) of the Constitution of India and dismissed the applicant from service. For facility of reference, the relevant portion of the disciplinary order is as follows:-
"Further, a DE has already been initiated against Const. Rohit, No. 4864/T (PIS No. 28160352), for his gross misconduct and his act of duping of people in Police uniform and maligning the image of the department. It has been alleged that Const. Rohit, No. 4864/T in the uniform of Delhi Traffic Police alongwith service pistol had cheated an Indian Army Constable.
The conduct of Const. Rohit, No.4864/T (PIS No.28160352) is unbecoming of a police officer. Very serious allegations have been leveled against him. It is a shameful and abominable act of moral turpitude. He has violated all norms of ethics and morality by indulging himself into the such type of crime/cheating. He has lowered the image of Police Department and goodwill of an uniformed organization. This is not acceptable from a Police Officer whose prime duty/responsibility is to protect the common citizen and 11 OA No. 3055/2023 Item No. 75/C-II safeguard the spirit of law. His criminal conduct has also rudely shaken the faith of the citizens in the police force. He has acted in a reprehensible manner which is not at all expected from a member of the disciplined force. Such a conduct is also extremely prejudicial to the personal safety and security of the citizen.
After such a grave criminal misconduct, if the defaulter Const. Rohit, No. 4864/T (PIS No. 28160352) is allowed to continue in the Police force, it would be detrimental to the public interest and further tarnish the image of police force in the society. The facts and circumstances of the cases are such that it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulter Const. Rohit, No.4864/T (PIS No.28160352).
The misconduct of the accused Const. Rohit, No.4864/T (PIS No.28160352) is of a grave nature that warrants the exemplary punishment of dismissal, in order to send a clear message to such undesirable persons and to prevent the recurrence of such crimes. Assessing totality of the facts and circumstances of the case as mentioned above, I am of the firm opinion that the acts and grave misconduct of the accused Const. Rohit, No. 4864/T (PIS No. 28160352) attract the provisions of Article 311 (2)
(b) of the Constitution of India and make him completely unfit for police service.
Therefore, I, Addl. Commissioner of Police, Traffic, (HQ), New Delhi do hereby dismiss the defaulter Const.
Rohit, No.4864/T (PIS No.28160352) from Delhi Police with immediate effect under Article 311(2)(b) of Constitution of India. His suspension period from 19.09.2021 to date of issue of this order as well as absent period from 07.09.2021 to till date is treated as "not spent on duty" for all intents and purposes."
14. The applicant has stated that he had filed an appeal (Annexure-A/4) against the punishment order. However, Appellate Authority vide order dated 21.04.2023 (Annexure-A/2) decided his appeal. For facility of reference, it would be appropriate to quote the relevant portion of the appellate order, the same reads as under:-
12OA No. 3055/2023
Item No. 75/C-II "In the appeal, the Appellant has mainly pleaded as under:-
1. That he was working as a Constable since 04.04.2016 and remained in Judicial Custody w.e.f. 19.09.2021 to 31.05.2022.
2. That 06 (Six) false FIRs were registered against him by some people from whom the Appellant had borrowed money because he could not return the money on the promised day to be repaid, although, he had the intention to repay and in many cases he had already re-paid the amount.
3. That vide order dated 06.07.2021, a Departmental Enquiry was initiated against him without considering whether the allegations mentioned in those FIRs amounted to misconduct. There being no evidence to prove those allegations, he was illegally dismissed from service under the Article 311 (2) (b) of the Constitution of India dispensing with the enquiry as the alleged allegations had nothing to do with discharge of his official duties. There was no question of his dismissal from service when the criminal cases were under investigation.
4. That there was no evidence to show as to why holding of Departmental Enquiry was not reasonably practicable, rather provisions of the Article 311 (2) (b) of the Constitution of India was invoked as a shortcut method to punish the Appellant by treating the allegations, mentioned in these 6 FIRs, as true. The reasons to dispense with enquiry mentioned in the punishment order are vague and unsustainable in Law.
5. That there is no material to show that the witnesses were threatened by the Appellant in the form of any complaint by the witnesses regarding threatening notes/calls by the Appellant. The decision taken by the disciplinary authority is based on suspicion, surmises, and presumption.
6. That even if the disciplinary authority can consider to conduct regular Departmental Enquiry, the appellate authority can also consider the possibility of holding departmental enquiry at the time of deciding the appeal as per the judgement of Hon ble Supreme Court delivered in "Tulsi Ram Patel's case", in case 13 OA No. 3055/2023 Item No. 75/C-II department feels that the Appellant is guilty of any offence/ misconduct in accordance with law.
7. That when the witnesses can appear before the trial Court to depose against the Appellant, then why they will not appear in the departmental enquiry against him. The disciplinary authority without applying mind to the condition precedent for invoking powers under Article 311 (2) (b) of the Constitution of India that holding of enquiry was not reasonably practicable, has illegally awarded the punishment in haste.
8. That he had already been acquitted vide orders dated 19.05.2022 in FIR No. 426/2021 dated 27.08.2021 u/s 420 IPC and FIR No. 450/2021 dated 14.09.2021 u/s 419/420 IPC both registered at P.S. Baba Hari Das Nagar, Delhi. Therefore, there was no question of dismissal from service under Article 311 (2)
(b) of the Constitution of India.
9. That punishing the Appellant, dispensing with the enquiry is in violation of Rule 17 Explanation (b) of Delhi Police (Punishment & Appeal) Rules, which provides that the procedure laid down with regard to the conduct of departmental enquiry can be dispensed with if Police Officer charged with misconduct refuses or fails to attend the enquiry without reasonable excuse or has absconded or has deserted or cannot be found without inordinate delay and no other ground; which was not the position/grounds taken by the disciplinary authority for dispensing with the enquiry.
10. That the order dispensing with the inquiry is also in violation of PHQ's Circular dated 08.11.1993 and re- issued on 31.12.1998, which provides that the powers under Article 311 (2) (b) of the Constitution of India, is not to be used as a short-cut and if the Police Officer involved in the cases of rape or dacoity or any other such heinous offences are dismissed straightway under Article 311 (2) (b) of the Constitution of India despite the fact that criminal cases had been registered, such dismissals without holding DES are illegal because in such cases Departmental Enquiry can be conveniently held.
11. That, the Appellant was not in a position to influence the witnesses, as on 12.11.2021 (date of punishment order), he was in judicial custody since 19.09.2021.
14OA No. 3055/2023 Item No. 75/C-II
12. That he is sole bread-earner of his family and only source of income was the service of the Appellant. Due to award of punishment, great financial hardships are being faced by him and his family. He prayed to condon the delay in filing of appeal and set-aside the punishment.
13. He has not requested for personal hearing. I have perused the submissions made in instant appeal along with the material placed on record. The Appellant has mainly pleaded that appropriate enquiry was not conducted before awarding him the punishment of dismissal from service, which is not in consonance with the provisions of PHQ's Circular No. 5545-645/P. Cell/Vig./P. Misc. dated 11.09.2007. The mention of the term preliminary enquiry in the Circular No. 5545-645/P. Cell/Vig./ Misc., dated 11.09.2007, does not connote a formal PE, involving examination of witnesses, recording of statements, assessing evidence and counter evidence etc. and the word PE, as mentioned in this particular Circular, is to be read in the particular context of the circumstances specifically laid out in the Circular itself i.e. 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 practical to hold an enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in view the 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) of the Constitution of India.
The factual matrix of the criminal acts committed by the Appellant have been clearly brought out in six different First Information Reports mentioned as under:-
1. FIR No. 14/2021 dated 06.03.2021, U/s 420 IPC, PS Chankya Puri, New Delhi. The case is pending trial.
2. FIR No. 0116/2021 dated 01.04.2021, U/s 406/420 IPC, PS Asauda, Distt. Jhajjar, Haryana. The case is pending trial.
3. FIR No. 426/2021 dated 27.08.2021, u/s 420 IPC, PS Baba Haridas Nagar, Delhi and FIR No. 450/2021 15 OA No. 3055/2023 Item No. 75/C-II dated 14.09.2021, u/s 419/420 IPC, PS Baba Haridas Nagar, Delhi. These cases were settled by the accused/Appellant after paying the settlement amount to the victim and the offences were subsequently compounded by the Hon'ble Court. This act of repayment in itself manifests the crime to have been committed in the first place.
4. FIR No. 437/2021 dated 16.09,2021, u/s 420 IPC, PS Ashok Vihar, Delhi. This case is pending trial.
5. FIR No. 822/2021 dated 18.09.2021, u/s 420 1PC, PS: Jahangir Puri, Delhi. This case is pending trial.
The Central Civil Service (Conduct) Rules -1964 Rule-3 (1) (1) require that every government servant shall, at all times, maintain absolute integrity and do nothing which is unbecoming of a government servant but the Appellant herein had cheated and duped innocent and common citizens of their hard earned money. The multiple and recurring acts of cheating and duping committed within a short span of time by the Appellant, as mentioned in the above criminal cases, are indicative of his complete incorrigibility. Therefore, the criminal acts of the Appellant make it abundantly clear that holding a formal preliminary enquiry under the given circumstances was wholly not practicable. Thus, the requirements of preliminary enquiry as mentioned in Circular No. 5545-645/P. Cell/Vig./P. Misc., dated 11.09.2022 have been adequately met in the case. Under the facts and circumstances of the case, the disciplinary authority has rightly dispensed with the requirement of holding of departmental enquiry and awarded the impugned punishment. As such, the appeal is devoid of merit and is liable to be dismissed.
In view of facts and circumstances narrated hereinabove, I find that the order of punishment dated 12.11.2021 passed by the disciplinary authority is commensurate to the quantum of the guilt of the Appellant. There appears to be no need to interfere in the impugned punishment order, as the pleas taken by the Appellant are bereft of merit. Therefore, the instant appeal filed by Ex. Constable (Exe.) Rohit. No. 4867/T (PIS No. 28160352) against the impugned order dated 12.11.2021 is hereby rejected, being devoid of merits." 16 OA No. 3055/2023 Item No. 75/C-II
15. We have perused the pleadings available on record and considered the submissions made by the learned counsels for the parties and have also gone through the Orders/Judgments referred to and relied upon by the learned counsels for the respective parties carefully.
16. The learned counsel for the respondents pleaded that the respondents have given detailed justification of invocation of the Article 311 (2) (b) of the Constitution of India in their Disciplinary order and Appellate order. They repeatedly stated that further continuation of the applicant in disciplined force like Delhi Police which is responsible for protecting the society and citizens of the country from immoral and disrespectable activities will rudely shake the faith of the citizens in Delhi Police Force. The applicant has acted in a manner which is highly unbecoming of a Police Officer. Therefore, keeping in view the position in the matter, respondents have resorted to invocation of Article 311 (2) (b) of the Constitution of India and dismissed the applicant from the government service.
17. The Disciplinary Authority and the Appellate Authority have come to the decision on the presumption that alleged offence has been committed by the applicant, so there is no need to conduct the departmental enquiry, these reasons cannot stand to the scrutiny of law for invoking the power under provision of Article 17 OA No. 3055/2023 Item No. 75/C-II 311 (2) (b) of the Constitution of India. It needs to be tested whether the reasons recorded in the impugned order for imposition of Article 311 (2) (b) of the Constitution of India are justifiable or the provisions of above mentioned Article of the Constitution of India are invoked only to avoid the disciplinary enquiry and get rid of the applicant in convenient manner. The Disciplinary Authority did not mention the reasonable grounds even when Preliminary Enquiry was ordered against the applicant. It could be seen from the appellate order that Appellate Authority had rejected the appeal in a mechanical manner without addressing specific submissions of the applicant and merely on presumptions that the allegation against the applicant is presumed to be proved and the witness might not have come forward to depose against the applicant. The Appellate Authority is simply assuming that the allegations against the applicant stands proved and this justification is good enough to invoke the Article 311 (2) (b) of the Constitution of India and dismiss the applicant. The Appellate Authority did not explore, in the present case, that majority of the witnesses are official witnesses. If preliminary enquiry is possible, then the departmental enquiry is also possible. Similarly, if the trial is possible then the departmental enquiry is also possible. However, both disciplinary authority and appellate authority did not make any efforts to conduct departmental enquiry and resorted to invocation of 18 OA No. 3055/2023 Item No. 75/C-II provision of Article 311 (2) (b) of the Constitution of India to impose the penalty of dismissal. This could be construed as strong bias of respondents towards the applicant and their disdain approach to uphold Rule of Law. The respondents being senior police officer holding high position are required to run the administrative decision making lawfully. Earlier also while deciding other matters we have pointed out that a serious course correction is needed in the respondent Department while handling such cases and it is for their betterment if they take effective steps in that direction. We need not further ponder upon this point and leave it here.
18. In the recent matter decided on 14.08.2024 by the Hon'ble High Court of Delhi in W.P. (C) No.11276/2024 and CM Appl. 46705/2024. CM Appl. 46706/2024 in the matter of The Commissioner of Police & Ors. vs OM Prakash & anr., wherein the Commissioner of Police has been directed by the Hon'ble High Court of Delhi to look into the matters where Article 311 (2) (b) of the Constitution of India has been invoked by the police authorities and police personnel have been removed from the service. Only on presumptions and assumptions without any material, coming to the conclusion or that it was not reasonably practicable to conduct regular departmental enquiry as witness might not come forward to decide the case and Appellate 19 OA No. 3055/2023 Item No. 75/C-II Authority depose against a police officer respondents have rejected the appeal which could be construed as bad in law.
19. It is apparent that the Disciplinary Authority has assumed as if the allegations made in criminal case (FIR) already stand proved and thus with this presumptions, the present impugned order has been issued. Once the order of Disciplinary Authority is based on assumption as if the allegations made against the applicant already stand proved that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being bad in law and being based on assumptions, suspicion and surmises. Further, the Disciplinary Authority is assuming that the offence has been committed by the applicant and under this assumption, the present order of Disciplinary Authority is being passed invoking Article 311 (2) (b) of the Constitution of India. There are circulars, judgment of judicial forums which clearly states that if the allegations are grave then more opportunity should be provided to the delinquent official to put forward his defense. The applicant has not been subjected to a departmental enquiry and merely on assumptions the disciplinary authority adopting a short cut and has invoked the power under Article 311 (2) (b) of the Constitution of India. The reasoning recorded by Disciplinary Authority is based on suspicion and surmises. There is no occasion for the disciplinary authority to record that in the present case departmental enquiry is not 20 OA No. 3055/2023 Item No. 75/C-II reasonably practicable. The usage of expression like "as there is a reasonable belief" itself shows that the reasoning is based on suspicion and surmises. The reasoning recorded by Disciplinary Authority for dispensing away the departmental enquiry has been dealt by this Tribunal in various OAs qua the same department i.e. Delhi Police. It is observed that most of witnesses are official witness in criminal case; once the criminal trial and preliminary enquiry are possible, then departmental enquiry is also possible. There is no material in the hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in departmental enquiry. There is no clear and robust evidence in front of respondent authority that the applicant has made any attempt to influence any witness thus making the order of disciplinary authority as bad in law.
20. The applicant is Constable in Delhi Police. It is a lower rank among the subordinate officer, thus, it is absolutely wrong to record that applicant is in any position to influence or threaten any witness. There is no admissible material or evidence before the authorities to conclude that any witness is threatened or intimidating or will not depose in departmental enquiry and thus reason recorded for dispensing the Departmental Enquiry under Article 311 (2) (b) of the Constitution of India are not tenable. As stated above, the applicant is only Constable in Delhi Police, if as 21 OA No. 3055/2023 Item No. 75/C-II per the allegations, the case of the department is so good on merit then come what may the applicant should be given a chance to put forward his defense in disciplinary enquiry. The preliminary enquiry was conducted by the respondents in order to construe that the allegations are true against the applicant that too at the back of the applicant. This fact clearly shows that Article 311 (2)
(b) of the Constitution of India has been adopted as a convenient method in the present case. There is no material in hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in the Departmental Enquiry. The impugned order is passed with the presumption that the allegations are proved against the applicant. In such a situation, Article 311(2) (b) of the Constitution of India cannot be invoked on the same as it amounts to abuse of process of law.
21. In the public interest and even as per Rule of law, it was incumbent upon the respondent authorities not to put to use Article 311 (2) (b) of the Constitution of India in present case and to give opportunity to the applicant to put forward his defence in the departmental enquiry. The gravity of misconduct alleged in the present case cannot be a ground to invoke the power under Article 311 (2) (b) of the Constitution of India. The applicant as per rule of law must be given opportunity to put forward his defence in regular Departmental Enquiry until and unless the 22 OA No. 3055/2023 Item No. 75/C-II same is not reasonably practical. The reasons recorded in present impugned order to dispensing away with the Departmental Enquiry are just not tenable in the eyes of law. Article 311 (2) (b) of the Constitution of India has been used as a short cut method. It is not known as to why DE which was ordered in this case was not conducted and respondents suddenly decided to invoke provisions of Article 311 (2 (b) of the Constitution of India.
22. The reasoning to dispense away with the departmental enquiry cannot be based on suspicion and surmises and probability. Once the Disciplinary Authority records that there is a probability that complainant and witness are put on constant fear and threat as a reason to dispense away with departmental enquiry, the onus to establish that such situation prevails is based on the efforts made by them to conduct departmental enquiry and imminent failure to hold the said departmental enquiry due to such actions of the applicant. Therefore, on the one hand taking no action to conduct disciplinary enquiry and while on the other citing the imaginary reasons of giving threat to witnesses etc., are the reasoning based on mere probability, suspicion and surmises and cannot be attached any credence. No material is placed before the authority to come to the conclusions that Departmental Enquiry is not possible and invocation of Article 311 (2) (b) of the Constitution of India is the only solution available to the respondents.
23OA No. 3055/2023 Item No. 75/C-II
23. It is also observed that the power under Article 311 (2) (b) of the Constitution of India has been invoked subsequent to a preliminary enquiry. The object of conducting the preliminary enquiry for invoking the power under Article 311 (2) (b) of the Constitution of India is being laid down in circular dated 11.09.2007. The cases in which preliminary enquiry is being conducted but in absolute violation of circular dated 11.09.2007 and straightaway the Disciplinary Authority passed an order under Article 311 (2) (b) of the Constitution of India is in violation of circular dated 11.9.2007 which was framed by department in pursuance of judgment of Hon'ble Tribunal in case of Suresh Kumar Vs. GNCTD in O.A. No. 2500/2006.
24. The decision of the Disciplinary Authority dispensing away with the Departmental Enquiry is bad in law. As also stated above, the disciplinary authority did not even make the slightest possible effort to initiate a departmental inquiry as only after initiating a departmental inquiry a disciplinary authority can come to the conclusion that departmental inquiry is not reasonably practicable. Without making any efforts and only acting on the presumption and surmises, the disciplinary authority on its own, came to the conclusion that departmental inquiry is not practicable. No order for initiating the Departmental Enquiry was made by the department thus it is wrong to say that the present Departmental Enquiry is not reasonably practicable. 24 OA No. 3055/2023 Item No. 75/C-II
25. The disciplinary authority is not able to apply its mind that the power under Article 311 (2) (b) of the Constitution of India has to be exercised with a pre-condition. The pre-condition is that if a disciplinary enquiry is not reasonably practical and to arrive at such conclusions, the Disciplinary Authority has to record reasons. The present reasoning is based on the assumption that the applicant has committed the alleged crime and thus departmental enquiry is not required. The Disciplinary Authority on the presumption that the act committed by the applicant is so grave that it is practically not feasible to conduct enquiry, hence, came to conclusion that there is no need to conduct the departmental enquiry the scrutiny of law for invoking the power under Article 311 (2) (b) of the Constitution of India. The law on the subject is that graver are the allegation then more opportunity should be provided to the delinquent official to submit the defence. The gravity of the charge will never be an imminent factor in deciding whether power under Art 311 (2) (b) of the Constitution of India is to be invoked or not.
26. The present case is a case of absolute misuse of power vested in the Disciplinary Authority under Article 311 (2) (b) of Constitution of India and hence bad in law. The reasons recorded by the authorities to dispense away with the departmental enquiry do not withstand the scrutiny of law. The so called reasons recorded by the authorities in the impugned order to invoke the 25 OA No. 3055/2023 Item No. 75/C-II power under the Article 311 (2) (b) of the Constitution of India as being mentioned are only to avoid the departmental enquiry. It is a well settled law that without conducting any departmental enquiry, if the finding of guilt against the applicant has been arrived on to, the same act is enough to vitiate the order of the disciplinary authority. There is a finding of guilt against the applicant without conducting the Departmental Enquiry and further not even giving the opportunity to the applicant to put forward his defence and the same is enough to vitiate the order of the disciplinary authority. The authorities failed to consider that no substantial material has been collected to come on to a conclusion that witness will be discouraged to appear in a D.E. Thus the order of the authorities establishes non-application of mind, bias, arbitrariness and to adopt a short cut method of dismissing the applicant by invoking the power under Article 311 (2) (b) of the Constitution of India only keeping in mind the gravity of the allegations.
27. The applicant preferred an appeal (Annexure-A/4) against the punishment order of dismissal dated 12.11.2021 (Annexure- A/1). The Appellate Authority rejected the appeal on 21.04.2023 (Annexure-A/2) by an absolutely non-speaking and mechanical order. The Appellate Authority failed to apply its mind that the law quoted by the applicant in the statutory appeal clearly establishes that the reasons recorded for dispensing with the DE 26 OA No. 3055/2023 Item No. 75/C-II are not legally tenable in the eyes of law. The present case is not a case for invoking the power under Article 311 (2) (b) of the Constitution of India. The Hon'ble Apex court has laid down clearly that the gravity of the charge will not be a tilting factor in deciding whether a Departmental Enquiry is a reasonably practicable or not. The graver the charge the opportunity to defend him should be more.
28. We place reliance on the following judgements/orders:-
(i) Order dated 13.12.2023 passed by this Tribunal in the case of Dushyant Kumar Vs. Govt. of NCT of Delhi & Ors. The relevant portion of the same is reproduced below:-
"8. A catena of cases of the Orders/Judgments of the Hon'ble Supreme Court, Hon'ble High Court of Delhi and of this Tribunal on the issue as involved in the present case were also considered by the Division Bench (consisting one of us) while deciding the case of Ct. Sumit Sharma (supra).
9. Having regard to the above, we have carefully perused the impugned order(s), we find that nothing has been recorded in the impugned order(s) or shown to us that the applicant had ever threatened or harassed any of the witness (es) and/or the prospective witness (es). From the impugned orders, it is also evident that neither any effort was made by them to conduct an enquiry, nor there is any evidence that despite their best efforts, the respondents would not have been able to produce the witness (es) to lead evidence against the applicant. Further 18 OA No.1019/2023 nothing is brought on record that witness (es) has/have been threatened by the applicant or they were too scared of the applicant to come forward in the regular enquiry proceedings. It is also found that the disciplinary authority while passing the impugned order has very casually come to the 27 OA No. 3055/2023 Item No. 75/C-II conclusion that it would not be possible to conduct the departmental enquiry against the applicant, as no reason at all has been recorded in this regard and the applicant is guilty of committing grave misconduct and was involved in the aforesaid offences.
10. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circular dated 11.9.2007. The reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, including in one referred to hereinabove.
11. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA is squarely covered by the common 19 OA No.1019/2023 Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and hence, the same is partly allowed with the following directions:- (i) Orders dated 03.10.2022 (Annexure A/1) and dated 10.3.2023 (Annexure A/2) passed by the disciplinary and appellate authorities respectively are set aside; (ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject; (iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and (iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
12. However, in the facts and circumstances, there shall be no order as to costs."
(ii) The order of this Tribunal was challenged in the Hon'ble High Court of Delhi in W.P. (C) 2407/2024 in the matter of Govt. of Delhi and Ors. Vs. Dushyant Kumar, The Hon'ble High of Delhi dismissed the Writ Petition being meritless. The relevant portion of the said judgment is as under:-
28OA No. 3055/2023
Item No. 75/C-II "14. In the light of the aforesaid, we have no hesitation in concurring with the Tribunal that the petitioners' decision to dispense with the enquiry was wholly unsustainable. The petitioners appear to have proceeded on an erroneous presumption that merely because a criminal case has been registered against the respondent, he was to be treated as guilty of the misconduct. No doubt, the respondent is a police officer, whose misconduct can never be condoned, but this would not imply that the principles of natural justice should be given a complete go by. As noted hereinabove, the petitioners have not given any valid reason for dispensing with the enquiry except for repeatedly stating that the respondent is guilty of serious misconduct. This course of action, in our view, is completely impermissible.
15. Before we conclude, we may also consider the decision in Ajit Kumar Nag (supra) relied upon by the petitioners. We, however, find that instead of forwarding the case of the petitioners, the said decision supports the case of the respondent. It would, therefore, be apposite to refer to paragraph no.44 of the said decision, which reads as under:-
"44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre- decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Even before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge [(1723) 1 Str 557:93 ER 698] .) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated:" „To do a great 29 OA No. 3055/2023 Item No. 75/C-II right‟ after all, it is permissible sometimes „to do a little wrong‟." [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India [(1990) 1 SCC 613] (Bhopal Gas Disaster), SCC p. 705, para 124.] While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "precedential"."
16. We are, therefore, of the considered view that the petitioners have not only ignored the decisions of the Apex Court laying down the parameters for applicability of Article 311(2)(b) of Constitution of India, but have also ignored their own circulars dated 21.12.1993 and 11.09.2007. We, therefore, find no infirmity with the impugned order.
17. The writ petition being meritless is, accordingly, dismissed with all pending applications."
(iii) In the order dated 16.04.2024 passed in OA Nos. 542/2023 & 591/2023 in the case of Deepak vs. Govt. of NCT of Delhi & Ors by this Tribunal. The Tribunal held as under:-
"20. In the present case, as apparent from the reasons recorded by the respondents in the impugned order, it is apparent that the respondents have arrived at the conclusion for dispensing with the regular inquiry due to the involvement of the applicants in a grave and serious case. The respondents have jumped to the conclusion that on account of serious allegations, the applicants have become ineligible to be continued in police force. There is no finding that the 24 applicants and/or anybody on their behalf have at any point of time even attempted to influence or coerce any of the witness. Even there is no finding that the applicants in the captioned OAs who are very junior officers under the respondents were in a position to influence the witnesses who are generally senior officials working in the Government of India and particularly in CBI. It is also nowhere recorded by the respondents as to how if not only preliminary inquiry was found possible, but 30 OA No. 3055/2023 Item No. 75/C-II also the criminal trial is possible in the said case FIR with the support of more than nineteen witnesses and at no point of time the prosecution has even felt that those witnesses are not likely to turn up and regular inquiry was not possible in the matter. It is undisputed that regular inquiry is a Rule whereas dispensing with the same is only an exception. Though the respondents have recorded that if regular inquiry is initiated, the same is liable to take a long time, however, no reason has been given for the same and it is apparent that such reasoning and finding is based on surmises and conjectures.
21. In view of the aforesaid, we find that the impugned orders are not sustainable in the eyes of law. Accordingly, the OAs are allowed with the following order(s) :- (i) impugned orders dated 10.08.2022 and 25.01.2023 are set aside. The applicants shall be reinstated in service forthwith. (ii) the applicants shall be entitled for all consequential benefits in accordance with relevant rules and instructions on the subject. (iii) the aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of a copy of this order. (iv) the respondents shall be at liberty to initiate disciplinary proceedings against the applicants if they are so advised, of course in accordance with rules and instructions on the subject.
22. However, in the facts and circumstances of the case, there shall be no order as to costs."
(iv) In Writ Petition (C) No. 1258/2023 & CM App. No.4759/2023 in the case of Commissioner of Police Delhi Police & Ors. Vs. Manjeet; The Hon'ble High Court of Delhi vide its judgement dated 22.04.2024 has held asunder: -
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was that due to seriousness of the offence alleged to have been committed by him it would not be reasonably practicable to conduct a regular departmental enquiry. It also emerges that on 31 OA No. 3055/2023 Item No. 75/C-II the basis of the allegations levelled against the respondent in the FIR coupled with the findings of the preliminary enquiry, the petitioners presumed that the respondent was guilty of a serious offence and therefore deserve to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. The petitioners have sought to dispense with the enquiry in such a casual manner and that too only on the basis of a perceived notion that the respondent being a police personnel, an enquiry against him was likely to be difficult on account of his influence. This course of action is clearly violative of Article 311(2)
(b) of the Constitution of India.
10. We have also considered the decision in Dushyant Kumar (Supra) and find that in the said case, this Court had rejected a similar challenge by the petitioners to the Tribunal's quashing of a dismissal order passed after dispensing with the enquiry. In fact, this Court after considering the circulars dated 21.12.1993 and 11.09.2007 issued by the petitioners themselves, observed that despite there being a requirement to record cogent reasons to dispense with the enquiry, the petitioners were passing cryptic orders dispensing with the enquiry in the most mechanical manner.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, with an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry. Furthermore, it is not as if the respondent has been let off without any departmental action being taken against him, as the learned Tribunal has already granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition 32 OA No. 3055/2023 Item No. 75/C-II being meritless is dismissed along with all applications.
13. Before we conclude, we are constrained to observe that in a large number of petitions filed by the Commissioner of Police which are coming up before this Court, we are finding termination orders are being passed by the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner, Delhi Police to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons."
(v) In other Writ Petition (C) No.4201/2024 on 20.03.2024 in case of Commissioner of Police and Anr. Vs. Jagmal Singh. The Hon'ble High Court of Delhi has held as under:-
"10. From a perusal of the aforesaid, we find that the petitioners have proceeded to dispense with the enquiry against the respondent only because of the grave nature of allegations levelled against him and have simply observed that since the respondent had lowered the image of the police department and goodwill of a uniformed organisation, an exemplary punishment of dismissal ought to be imposed upon him so as to send a clear message to undesirable persons and to prevent reoccurrence of such crimes. In the light of the aforesaid, we find absolutely no reason to differ with the conclusion arrived at by the learned Tribunal that the dismissal order passed by the petitioners did not contain any justifiable reason whatsoever for dispensing with the enquiry. What clearly emerges is that the petitioners have proceeded on the premise that such police officers, who are charged with serious misconduct, should be immediately dismissed from service. This approach, in our view to dispense with an enquiry, would not meet the parameters laid down under Article 311(2) (b) of the Constitution of India.
11. At the cost of repetition, we may reiterate that merely because the respondent was a police personnel, would not entitle the petitioners to give a complete go- bye to the requirement of holding a departmental enquiry against him without recording any justifiable 33 OA No. 3055/2023 Item No. 75/C-II reasons as to why departmental enquiry could not be held against him.
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition, being meritless, is along with accompanying application, dismissed."
(vi) In the Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, the Hon'ble Supreme Court vide its judgment on 10.07.2024 has dismissed the said SLP and the judgment of Hon'ble Court of Delhi attained finality.
29. In another matter, the Hon'ble High Court of Delhi in W.P. (C) No. 5562/2024, CAV 181 /2024 CM Appl. 22929/2024 vide its judgment dated 23.04.2024 in the case of Commissioner of Police and Ors. Vs. Sant Ram, the Hon'ble High Court of Delhi in paras9 to 12 has held as under:-
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was their presumption that the respondent would threaten or intimidate the complainant and other witnesses. The petitioners were further of the view that a prolonged enquiry would cause more trauma to the complainant. It is also evident from the dismissal order that the petitioners had, on the basis of the evidence led in the preliminary enquiry, already made up their mind that the respondent was guilty of serious misconduct and had lowered the image of the police force in the eyes of the public.
10. In our considered view, even though the charges against the respondent are very serious and the interest of the complainant deserves to be protected, it does not imply that the principles of natural justice as also the provisions of section 11 of The Sexual 34 OA No. 3055/2023 Item No. 75/C-II Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 should be given a complete go by on the basis of mere presumptions. Only because the respondent is a police personnel, would in our view, not be a ground either to presume that the witnesses will not come forward to depose against him in a regular enquiry or to hold him guilty without conducting the statutorily prescribed departmental enquiry and that too in a matter like the present where the complainant and the witnesses are also police personnel. In fact, what emerges is that on the basis of the report of the preliminary enquiry itself, the petitioners presumed that the respondent was guilty of serious misconduct and therefore deserved to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. This course of action, in our considered opinion, was clearly violative of Article 311(2)(b) of the Constitution of India.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, dispense with the requirement of an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry and had also been admitted by him. We therefore have no hesitation in agreeing with the learned Tribunal that the petitioners have dispensed with the enquiry only on the basis of a perceived notion that the respondent being a police personnel, would threaten the witnesses and holding of an enquiry would cause trauma to the complainant. Furthermore, we find that it is not as if the respondent has been let off without any departmental action being taken against him. As is evident from the impugned order, the learned Tribunal, while setting aside the dismissal order, has granted time to the petitioners to initiate departmental proceedings against him as per law.35 OA No. 3055/2023
Item No. 75/C-II
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all accompanying applications.
30. In pursuance to the order of this Tribunal in OA No. 14/2018 titled as Sant Ram vs. Commissioner of Police and the judgment of the Hon'ble High Court of Delhi in W.P. (C) 5562/2024, CAV 181/2024 CM Appl. No.22929/2024, the respondents reinstated the services of the applicant Shri Sant Ram in that case. The order dated 26.07.2024 is reproduced as under:-
"In pursuance of judgment dated 06.02.2024 passed by the Principal Bench of Hon'ble Mr. R.N. Singh, Member (J) & Hon'ble Mr. Sanjeeva Kumar, Member (A), Central Administrative Tribunal, New Delhi in 0.A. No.14/2018 titled Sant Ram Vs. Commissioner of Police, Delhi & Ors. and judgment dated 23.04.2024 passed by the Hon'ble Ms. Justice Rekha Palli & Hon'ble Mr. Justice Saurabh Banerjee, High Court Delhi in W.P.(C) No.5562/2024, CAV 181/2024, CM Appl.22929/2024 -
Stay, CM Appl. 22930/2024 - Ex./LLOD titled Commissioner of Police & Ors. Vs. Sant Ram as well as opinion of Ms. Aishwarya Bhati, Ld. Addl. Solicitor General of India that "this is not a fit case for filing of SLP", the order of the disciplinary authority passed vide No.1833-1900/HAP/PTC (P-II) dated 01.08.2017 vide which Const. (Exe.) Sant Ram, No.324PTC (PIS No.28060573) was dismissed from the Delhi Police force under Article311(2(b) of Constitution of India deciding his suspension period as period not spent on duty and the order passed by the Appellate Authority vide No.106-66/SO/Jt.C.P/Trg, dated 03.11.2017 rejecting his appeal, are set aside. Accordingly, Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) is hereby re- instated in service from dismissal with immediate effect 36 OA No. 3055/2023 Item No. 75/C-II without prejudice to the further departmental action to be taken against him in accordance with the law. He is deemed to be under suspension from the date of his dismissal as he had already been placed under suspension vide D.D.No.29-A/PTC/JK dated 22.07.2017 and formal issued vide order No.1738-70/HAP/PTC (DA-II) dated 26.07.2017. His dismissal/suspension period will be decided later on.
Let Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) be informed accordingly.
In other judgment of the Hon'ble High Court of Delhi in Writ Petition (C) No.1258/2023 & CM Appl. No. 4759/2023 in case of Commissioner of Police, Delhi vs. Manjeet, the following circular was issued by the Office of Commissioner of Police as under:-
"No. 174/C/HC/24 5110-60 DA-III/Court Cell/PHQ dated 13.05.2024 To The Deputy Commissioner of Police, All District including Units, New Delhi.
Sub: W.P. (C) No. 1258/2023 & CM Appl. No. 4759/2023 in the matter of Commissioner of Police, Delhi vs. Manjeet.
Memo Enclosed please find here with a copy of letter No. 10264/W/DHC/ Writs/D-9/2023 dated 26.04.2024 received from the Registrar General, Delhi High Court alongwith copy of the order dated 22.04.2024 wherein the Hon'ble has observed that " in large number of petitions filed by the Commissioner of Police which are 37 OA No. 3055/2023 Item No. 75/C-II coming up before the this Court, we are finding termination orders are being passed b y the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner of Police, Delhi to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons.
It is, therefore, requested that the aforementioned directions of the Hon'ble High Court of Delhi shall be taken into consideration before passing termination orders by dispensing with the departmental enquiries in future.
This issues with the approval of Commissioner of Police, Delhi.
(Hareesh H.P) Deputy Commissioner of Police Legal Division/ PHQ, Delhi"
Relying upon the circular issued on 11.09.2002, a similar order was passed by the respondents in the OA No. 1088/2021 as under:-
"The respondents, after considering the provisions of Article 311(2)(b) of the Constitution of India and the judgment of the Hon'ble Apex Court in the case of Tulsiram Patel (supra) and the Order(s)/Judgment(s) passed by this Tribunal have issued another circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not practicable to hold an inquiry in view of threat, inducement, intimidation, affiliation with criminals etc. 38 OA No. 3055/2023 Item No. 75/C-II and the disciplinary authority has no option but to resort to Article 311 (2) (b) of the Constitution of India. The said circular dated 11.9.2007 reads as under:-
"CIRCULAR No. /2007 An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases and only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry.
Though some cases are still pending in the Hon'ble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2)
(b) on assumptions and conjectures. No speaking orders were passed based on and supported by material/facts on record for dispensing with prior enquiry. Orders for dismissal were passed arbitrarily violating Article 311 and the principles of natural justice.
Henceforth, it has been decided that whenever any Disciplinary Authority intends to 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, 39 OA No. 3055/2023 Item No. 75/C-II Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.
This has the approval of C.P., Delhi.
Sd/-
(S.N. SRIVASTAVA) JT. COMMISSIONER OF POLICCE:
HDQRS,: DELHI""
31. The Hon'ble High Court of Delhi in WP(C )No. 11276/2024 and CM Appl. No.46705/2024, CM Appl. No. 46706/2024 in the matter of The Commissioner of Police & Ors. vs. Om Prakash & Anr. decided on 14.08.2024 has taken a serious cognizance of the order passed by the Disciplinary Authority resorting to invocation of Article 311 (2) (b) of the Constitution of India. For facility of reference, the relevant portion of above- mentioned judgment is as follow:-
"20. Accordingly, finding no error in the impugned order passed by the learned Tribunal, the present petition is dismissed.
21. Before parting with this matter, we hereby direct the Commission of Police Delhi to personally look into such matters and take proper decision so that Courts/Tribunals are not burdened with a case where departmental inquiries can be initiated. We hereby make it clear that if such like petitions are filed in future wherein dismissal or suspension orders are passed without holding any enquiry without any plausible reasoning, certainly heavy cost will be imposed and that too, will be recovered from the Officer, who takes such type of unwarranted decision.
22. A copy of this order be transmitted to the Commissioner of Delhi Police for information and compliance."40 OA No. 3055/2023
Item No. 75/C-II
32. Recently, the Hon'ble High Court of Delhi in the matter of GNCTD & Ors. Vs. Amar Singh Chauhan decided on 20.09.2024 recorded the following order:-
"1. Learned counsel for the petitioner, on instructions, submits that in view of judgment dated 14.08.2024 passed by this Court in W.P. (C) 11276/2024 titled as The Commissioner of Police & Ors. vs OM Prakash & anr., petitioners may be allowed to withdraw the present petition.
2. Accordingly, the present petition is dismissed as withdrawn.
3. Petitioners are directed to examine all such petitions pending before this Court which are falling under similar circumstances and to file application to withdraw the said petitions, if they consider it necessary."
33. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circulars dated 11.09.2007 and 13.05.2024. The reasons given by the respondents for dispensing away with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Court(s) and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove.
34. In view of the aforesaid facts and circumstances in the present case, we are of the considered view that the instant OA deserves to be partly allowed and the same is partly allowed with the following directions: -
41OA No. 3055/2023
Item No. 75/C-II
(i) Orders dated 12.11.2021 (Annexure-A/1) of the Disciplinary Authority and dated 21.04.2023 (Annexure-A/2) of the Appellate Authority, are set aside;
(ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and instructions on the subject;
(iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
(v) No order to cost. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/neetu/