Central Administrative Tribunal - Delhi
Intikhab Alam vs Comm. Of Police on 2 August, 2022
1 O.A. No1570 of 2019
Central Administrative Tribunal
Principal Bench,, New Delhi
O.A. No.1570
1570 of 201
2019
Orders reserved on : 21.07.2022
.07.2022
Orders pronounced on : 2.8.2022
.2022
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Shri Tarun Shridhar
Shridhar, Member (A)
Intikhab Alam
S/o Sh. Shafiq Ahmad Khan,
R/o C--28, Street No. 2 and 6,
100 Ft. Road, Jyoti Colony,
Shahdara, Delhi.
...Applicant
(through Advocate Shri Ajesh Luthra
Luthra)
Versus
1. Commissioner of Police,
PHQ, MSO Building,
I.P. Estate, New Delhi.
2. Special Commissioner of Police,
(Special Cell & Technological Cell)
Police Headquarter, I.P. Estate,
New Delhi.
3. Deputy Commissioner of Police,
Special Cell, 6th Floor, PHQ, MSO Building,
I.P. Estate, New Delhi.
... Respondents
(through Advocate Shri Sameer Sharma
Sharma)
2 OA No.1570 of 2019
ORDER
Hon'ble Mr. R.N. Singh, Member (J) :
By filing the instant Original Application under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the Order dated 26.2.2018 (Annexure A/2) passed by the Disciplinary Authority dismissing him from service by invoking their power under Article 311 (2) (b) of the Constitution of India and also the order dated 25.4.2019 (Annexure A/1) passed by the Appellate Authority rejecting his appeal preferred against the aforesaid order of the Disciplinary Authority. The applicant has prayed for setting aside of the aforesaid impugned order(s) passed by the Disciplinary and Appellate Authorities and has also prayed for his reinstatement with all consequential benefits.
2. Brief facts leading to filing of the present OA are that the applicant was initially appointed as Constable in Delhi Police w.e.f. 15.7.1996 and thereafter got two promotions and reached to the rank of Assistant Sub Inspector in Delhi Police.
2.1 While the applicant was working as Asst. Sub Inspector, a case FIR No.77/2018 dated 25.2.2018 under Sections 336/337/307 IPC and 27 Arms Act, PS Khajuri 3 OA No.1570 of 2019 Khas, North East District, Delhi was registered. The applicant was arrested in the aforesaid case on 25.2.2018 despite his name not mentioned in the said FIR and released on bail on 12.3.2018. However, without holding a regular departmental enquiry and without giving any opportunity to defend, the Disciplinary Authority has dismissed the applicant from service vide impugned order dated 26.2.2018 (Annexure A/2), the contents of which reads as under:-
"A case FIR No.77/2018 dated 25.2.2018 US 336/337/307 IPC and 27 Arms Act, PS Khajuri Khas, North East District, Delhi was registered against Const. Nameem Khan, No.822/Spl. Cell (PIS No.28104052) on the complaint of Sh. Manoj Gupta S/o Shri Mohan Lal Gupta R/o H. No. J-4, New Seelam Pur, Delhi. The complainant has stated that on 24.02.2018, when he was attending marriage reception party of his cousin brother Mohan Gupta at BR Vatika, Main Road Karawal Nagar, Near Sherpur Chowk, Delhi at about 10.30 PM to 11.00 PM, a police person named Naeem started quarrelling with the photographer. The complainant further stated that at one moment, the quarrel was somehow, pacified but Naeem went away and threatened the complainant of dire consequences. After sometime, Naeem returned armed with a postal and fired openly in the air. Thereafter, he put the pistol over the complainant's temple and extended life threat. The complainant in order to avert the imminent danger pushed away his hand but still received bullet injuries on his left palm. During interrogation, the I.O. of the case arrested Ct. Naeem Khan and ASI Intikhab Alam in above cited case. The service pistol Glock having number AADP 068 was seized. This pistol was issued to ASI Intikhab Alam for official purposes.4 OA No.1570 of 2019
The preliminary enquiry was entrusted to ACP/SWR/Spl. Cell, to ascertain the facts against ASI (Exe.) Intikhab Alam, No.1137/Spl. Cell (PIS No. 28961036) (allocated to North District, Delhi for pay purposes).The enquiry report of ACP/SWR reveals that on 24/02/2018, a PCR call was received at PS Khajuri Khas vide DD No. 102-B at 11.10 PM. The contents of PCR Call are as "there is quarrel at B.R. Vatika near Sherpur Chowk Khajuri and firing is going on. Information received by phone number 9650257925." Another PCR call was received at PS Khajuri Khas at 11.40 PM vide DD NO. 104-B. The contents of the PCR call are as "ASI Intikhab Alam Spl. Cell has informed with phone No. 784089978 that 4-5 people have quarreled with him and snatched his service pistol and he is injured." It has been revealed that a reception party of the marriage of Mohan Gupta was solemnised at B.R. Vatika near Sherpur Chowk main Road Karawal Nagar. Ct. Naeem Khan was also an invitee in this function who is presently posted in Special Cell and undergoing a refresher course at PTS Warirabad vide DD No.6 dated 04/02/2018. He along with ASI Intikhab Alam had gone to attend the reception party. At about 10.15 PM to 10.30 PM, Ct.Naeem had a brawl with one photographer over the issue of photography and Manoj Gupta s/o Sh. Mohan Lal Gupta r/o J-4 New Seelam Pur Delhi, intervened to cool down the matter. But still Ct. Naeem Khan in high temper went to ASI Intikhab Alam and took his pistol from him and opened fired in the air. Further Ct. Naeem Khan put this pistol over the temple of Manoj Gupta and extended life threat to him. Manoj Gupta in order to avert the imminent danger from Const. Naeem Khan pushed away his hand but still received bullet injuries on his left palm. Complainant Manoj Gupta was admitted to GTB hospital vide MLC No. 781/6/18. Doctor has confirmed gunshot injury on his left arm. During this incident, Mrs. Pooja Gupta w/o Sh. Ankit Gupta r/o 1/21 Ghonda, Delhi also received fire arm injury on her left thigh. She was admitted to JPC hospital vide MLC No. 12712. Doctor has confirmed gunshot injury over the left thigh of Mrs.Pooja Gupta.5 OA No.1570 of 2019
From the enquiry conducted so far it revealed that Ct. Naeem Khan No. 822/Spl. Cell, PIS No. 28104052 and ASI Intikhab Alam No. 1137/Spl. Cell PIS No.28961036 have deliberately, intentionally brawl with photographer and fired rounds in the reception party, resulted in injuries the complainant and his sister. Ct. Naeem Khan has misused the service pistol, issued to ASI Intikhab Alam. This incident has created terror in general public and brought bad name to Delhi Police.
The act of Ct. Naeem Khan No. 822/Spl. Cell, PIS No.28104052 and ASI Intikhab Alam No.1137/Spl.Cell PIS No.28961036 are of gross misconduct unbecoming of police personnel. Their wilful and deliberate involvement in criminal case has brought bad name to entire police force and retention of such police personnel in service will be detrimental to the department and would adversely affect the maintenance of discipline, command and control in the police force. Further, a secret enquiry conducted revealed that Ct. Naeem Khan & ASI Intikhab Alam have close association with criminal elements of North East Distt., Delhi and there is every possibility that they may approach the complainant through local criminals to threaten him or to induce him to withdraw from case or to turn hostile during the trial.
The above act of ASI (Exe.) Intikhab Alam, No. 1137/Spl.Cell and Const. (Exe.) Naeem Khan, No.822/Spl.Cell in the aforementioned matter/case is a most degradable abominable and egregious act of crime. They flouted all ethical and moral values by indulging themselves into such offence which amounts to awful professional misconduct. Instead of making proper reasonable and justifiable use of the official weapon, both the above delinquents have deliberately misused the official weapon to create unnecessary terror and extended life threat to the complainant and others. They have tarnished the image of Police Department in the society, which is endowed with the prime and supreme duty to serve and protect the citizen and safeguard the spirit of law. Their criminal conduct is such as would 6 OA No.1570 of 2019 definitely and rudely shatter the faith of any citizen which normally subsists in the ideal police force. ASI (Exe.) Intikhab Alam, No. 1137/Spl. Cell and Const. (Exe.) Naeem Khan, No. 822/Spl. Cell have instead become nemesis upon the department and hence deserve an exemplary punishment in this case which would suffice to spread deterrent effect upon other such miscreants of the society.
Ordinarily a departmental enquiry should be conducted before imposing major punishment including dismissal against the defaulters but the facts and circumstances of the present case along with the preliminary enquiry report of Sh. Akhleshwar Sawrup, ACP/SWR/Spl. Cell are such that it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulters as there is a reasonable belief of threat, and inducement to the victim and thereby creating the possibility of influencing any further enquiry including tempering of the vital evidence. Therefore, holding the regular departmental enquiry in this case shall create fear in the mind of the complainant, witness/es and discourage him/them from deposing against the defaulters during the enquiry. Further, an extended enquiry would only cause more trauma to the complainant/victim. It is under these given set of compelling circumstances that action under Article 311 (2) (B) OF "The Constitution of India" has been invoked against ASI (Exe.) Intikhab Alam, No.1137/Spl.Cell and Const. (Exe.) Naeem Khan, No.822/Spl.Cell in this case.
Therefore, I, Sanjeev Kumar Yadav, Deputy Commissioner of Police, Special Cell, New Delhi do hereby order to DISMISS ASI (Exe.) Intikhab Alam, No.1137/Spl. Cell (PIS No.28961036) and Const. (Exe.) Naeem Khan, No.822/Spl. Cell (PIS No. 28104052) from service with immediate effect, under Article 311(2) (b) of "The Constitution of India".
They will deposit all government belongings i.e. identity card CGHS card and uniform articles with department, forthwith. They are not in possession of govt. quarter.
7 OA No.1570 of 2019
The particulars of ASI (Exe.) Intikhab Alam, No. 1137/Spl. Cell and Const. (Exe.) Naeem Khan, No.822/Spl. Cell as per their service record are as under:
1. Name. Intikhab AlaM Naeem Khan
2. Rank, No. Assistant Sub. Constable (Exe.) & PIS No. Inspector (Exe.), 822/Spl. Cell, 1137/Spl. Cell, (28104052) (28961036)
3. Father Shafiq Ahmad Sh. Meharban Ali Name
4. Caste Genl./Rajput OBC/Naddaf (Muslim) (Muslim)
5. Date of 14.01.1975 01.10.1990 Birth
6. Date of 15.07.1996 04.01.2010 enlistment
7. Height 176.8 Cms. 172 Cms.
8. Permanent Qtr. No. 1, PS A-461, Gali No. Address Kashmere Gate, 22, Brijpuri, Delhi Delhi-110094.
9. Present C-28, Street No. A-461, Gali No.22, Address 2 & 6, Jyoti Brijpuri, Delhi-
Colony, 110094.
Shahdara, Delhi-
42.
Let, a copy of this order be given to them free of cost.
They can file appeal against this order to the Special Commissioner of Police, Special Cell & Technology Cell, Delhi within 30 days from the date of receipt of this order on a non-judicial stamp paper worth 0.75 paisa by enclosing a copy of this order if, they so desire."
2.2 The appeal preferred by the applicant against the aforesaid order of the disciplinary authority was rejected by the Appellate Authority vide order dated 25.4.2019 (Annexure A/1). Being aggrieved by the aforesaid order, 8 OA No.1570 of 2019 the applicant has filed the instant OA for redressal of his grievances.
3. Pursuant to the notice, the respondents have filed their counter reply. The applicant has filed his rejoinder.
4. During the hearing, at the outset, Shri Luthra, learned counsel for the applicant has submitted that the instant case is squarely covered by the common Order/Judgment dated 10.2.2022 passed in the case of Ct. Sumit Sharm vs. Govt. of NCT of Delhi and others in OA 1383/2020 and a batch of cases, which was implemented by the respondents vide order dated 29.3.2022. He has also submitted that the case of the applicant is also squarely covered by the Order/Judgment dated 11.12.2019 of the Hon'ble Delhi High Court in Writ Petition (Civil) No.4078/2017, titled Commissioner of Police and others vs. Ashwani Kumar and others, in view of the fact that reasons deducted by the disciplinary authority while passing the aforesaid order, as noted hereinabove, are not sustainable in law as the similar grounds have already been considered and held to be not justified by this Tribunal while deciding the aforesaid cases in which this Tribunal has also taken note of the 9 OA No.1570 of 2019 aforesaid Order/Judgment of the Hon'ble Delhi High Court besides considering plethora of judgments. 4.1 On the strength of the aforesaid, learned counsel for the applicant has argued that disciplinary and appellate authorities have not correctly applied their mind to the facts of the case and therefore, the impugned orders are absolutely illegal, arbitrary and unconstitutional. He has further submitted that the applicant is entitled to the Constitutional protection as envisaged under Article 311 of the Constitution as it is trite in law that dispensation of departmental enquiry is an exception whereas holding of a departmental enquiry is a rule. On the face of the above impugned orders, it is clear that the applicant has been condemned unheard as the allegations against the applicant have not been established by way of a regular departmental enquiry and the applicant has been denied reasonable opportunity to defend himself. He has further submitted that the applicant is a regular employee and has also earned two promotions in his service career due to efficiency and honesty and therefore, he cannot be just thrown out of service without any enquiry. Shri Luthra by referring to the provisions of the Article 311 of the 10 OA No.1570 of 2019 Constitution of India has submitted that the Hon'ble Supreme Court in Tulsiram Patel's case, reported in AIR 1985 SC 1416, has held as follows:-
"It would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere.
In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The 11 OA No.1570 of 2019 finality given to the decision of the disciplinary authority by Article 311 (3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty."
4.2 Shri Luthra has further submitted that Govt. of India as well as the respondents themselves through various circulars provide that the disciplinary authority should not take resort of Article 311(2)(b) of the Constitution of India lightly and should take action only in rarest of rare case where it is not reasonably practicable to hold departmental enquiry and that a Govt. servant is entitled to have an opportunity to defend himself when there are allegations against him and only in exceptional circumstances law permits the department to dispense with the enquiry and other legal formalities, which is not case of the applicant.
4.3 Learned counsel for the applicant has further argued that the disciplinary and appellate authorities have ignored the circular dated 28.12.1998, which categorically stipulates that dismissal of the Police Officers involved in the cases of Rape and Dacoity and any such heinous offences by resorting to the provisions of Article 311(2)(b) 12 OA No.1570 of 2019 of the Constitution of India is illegal and such dismissal without conducting departmental enquiry is illegal because in such cases departmental enquiry can be conveniently held. He has further emphasised that this case is of such a nature in which departmental enquiry can be initiated and the reasons as given by the disciplinary authority for dispensing with the departmental enquiry vide impugned order are contrary to the law on the subject. Moreover, the respondents cannot held the applicant guilty of the misconduct without affording him opportunity of defence at his back and that too on the basis of report(s) coming during course of the investigation in the said case FIR. Further, it is argued that the Appellate Authority has passed the appellate order in a mechanical manner.
5. Per contra, Shri Sharma, learned counsel for the respondents with the assistance of the counter reply, has submitted that the disciplinary authority has rightly dismissed the applicant from the service by invoking the provisions of Article 311(2)(b) of the Constitution of India and that too, after holding a preliminary inquiry in the 13 OA No.1570 of 2019 matter in the interest of justice and the appeal of the applicant was rightly rejected by the appellate authority.
6. On our query to the learned counsel for the respondents that as to why the instant case be not decided on the basis of the common Order/Judgment passed by this Tribunal (authored by one of us, namely Shri R.N. Singh, Member (J)), while deciding a batch of cases titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi (supra) as the similar kind of grounds, as taken by the Disciplinary Authority for invoking the provisions of Article 311(2)(b) of the Constitution of India in the case of the applicant, have already been dealt with by this Tribunal, paras 45 to 48 of which read as under:-
"45. In the cases in hand, it is evident that in most of the cases preliminary inquiry had admittedly been done and regular enquiry had been dispensed with on the ground of possibility of witnesses likely to be unduly harassed or pressurized by the delinquent(s). In all the case FIRs, chargesheet had been filed, list of witnesses had been filed, a few witnesses had been examined or after tiral the accused(s) had been acquitted. In a few cases, the reason for dispensing with the enquiry had been given that the material had come on record to prove the criminal acts of the applicants. The reason had been also of threat to discipline, integrity and morality of the entire police force. On perusal of the impugned orders, it is evident that either the 14 OA No.1570 of 2019 authorities have passed the orders of dispensing with the enquiry on jumping to the conclusion that delinquency or guilt of the applicants as alleged in the case FIRs stood proved even without regular enquiry in the departmental proceedings or trial in the concerned learned court(s). In most of the cases, conclusion about delinquency and commission of the offence(s) by the applicant(s) had been arrived merely on the basis of the preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made to summon the witness(es) to lead the evidence against the applicant(s) or anything was found that on regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) to lead evidence against the applicant(s). Rather the respondents have themselves filed the final challan(s) with a list of witness(es) before the concerned learned Court(s) and in a few cases, the accused(s) had been acquitted as well. In a few cases, witnesses have been examined before the concerned learned Court(s). Moreover, co-delinquent in the cases of Neeraj 15 OA No.1570 of 2019 Kumar (supra) and Ramesh Kumar (supra), the similar impugned orders have been set aside by the Tribunal and the orders of the Tribunal have also attained finality.
46. It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
47. It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove.
48. In view of the aforesaid, we are of the considered view that the aforesaid OAs deserve to be partly allowed and the same are partly allowed with the following directions:-
(i) Order(s) passed by the disciplinary and appellate authorities in the aforesaid OAs are set aside with all consequential benefits to the applicants in accordance 16 OA No.1570 of 2019 with the relevant rules and law on the subject; and
(ii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant(s) in accordance with the law."
and that the aforesaid Common Order/Judgment has attained finality as the respondents therein have implemented the same by passing the order dated 29.3.2022, a copy of which is placed on record by the learned counsel for the applicant, the learned counsel for the respondents has not been able to give any cogent reason. However, he has reiterated that the aforesaid impugned orders are in order. We find that no such evidence/material had been brought before us to indicate that the applicant was having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made by them to summon the witness(es) to lead the 17 OA No.1570 of 2019 evidence against the applicant or anything was found that on regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) to lead evidence against the applicant. It is also found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent and there being a possibility that witness(es) may not come forward to depose against the applicant. Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 28.12.1998. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
7. It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public 18 OA No.1570 of 2019 service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove.
8. Having regard to the aforesaid facts and circumstances of the present case, we are of the considered view that this case is squarely covered by the common Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 26.2.2018 (Annexure A/2) and dated 25.4.2019 (Annexure A/1) passed by the Disciplinary and Appellate Authorities respectively are set aside with all consequential benefits to the applicant in accordance with the relevant rules and law on the subject;
(ii) The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order; and 19 OA No.1570 of 2019
(iii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
9. However, in the facts and circumstances, there shall be no order as to costs.
(Tarun Shridhar) (R.N. Singh) Member (A) Member (J) /ravi/