Central Administrative Tribunal - Delhi
Ex Constable Yash Pal Singh-3364/Dap ... vs Government Of Nct Of Delhi Through Chief ... on 16 October, 2006
ORDER N.D. Dayal, Member (A)
1. The applicant has assailed order dated 16.7.2004 whereby he has been dismissed from service with immediate effect by dispensing with the condition of holding of enquiry by exercise of powers under the provisions of Article 311(2)(b) of the Constitution of India. He has also assailed order dated 24.12.2004 upholding the punishment in appeal.
2. The facts of the case reveal that an FIR No.619 dated 15.7.2004 under Sections 341/366/384/511/376-G/34/109/120-B IPC P.S. Kalkaji, New Delhi, was registered against the applicant along with four others, who were arrested on the same date. The allegation against the applicant as evident from the order of punishment appears to have been that he was involved in the incident of alleged extortion and rape in connivance with the others named in the FIR. The applicant did not report for duty on the day following the incident. The disciplinary authority found the involvement of the applicant in such anti social and illegal activities to be most reprehensible and damaging to the image of Police thereby eroding public trust in the service and such crime showed his desperate character amounting to serious misconduct and indiscipline rendering him unfit for service. It was noticed that he had a previous record as per FIR No. 216/03 under Sections 452/307/120-B/34 IPC and 21/54/59 Arms Act P.S. Shahdara, Delhi, and it was held that in the facts and circumstances, it would not be reasonable or practical to hold departmental enquiry as the witnesses would be under fear and threat and such proceedings would not be practicable. It was observed that people would not depose against a police officer who was capable of terrorizing them. In this background, the applicant was dismissed from service by invoking the provisions of Article 311(2)(b) of the Constitution.
3. The aforesaid order was assailed in appeal. The appellate authority reiterated the observations of the disciplinary authority but noted that the pleas put forward were vague and the applicant had indulged in criminal case, which was a heinous crime of rape and extortion thereby lowering the reputation of Delhi Police and his continuance would be prejudicial to the safety and security of the citizens and Delhi Police as well.
4. Learned Counsel of the applicant states that reasoning stated by the authorities is on ipsi dixit and as an exception to Article 311(2), the enquiry has been dispensed with being not reasonably practicable without making any efforts by the respondents to hold the D.E. which cannot be countenanced in light of the decision of the Apex Court in Jaswant Singh v. State of Punjab as well as the decision in Chief Security Officer v. Singasan Rabbi Dass , where it is ruled that non-appearance of the witnesses does not stand as a valid reason to dispense with the enquiry as not reasonably practicable.
5. Shri Shyam Babu, learned Counsel of the applicant has also relied upon the decision of the co-ordinate Bench in Mahesh Kumar v. UOI and Ors. OA 254/2003 dated 15.4.2004 to substantiate his plea.
6. Shri Shyam Babu, learned Counsel further stated that there is absolutely no material to conclude that the witnesses, when called in the enquiry, have refused to come because of fear or threat extended by the deceased Constable. Accordingly, denial of the reasonable opportunity to the applicant in the matter of holding him guilty of the allegations without following due procedure in law would be illegal and the orders now being sought to be quashed, be quashed.
7. On the other hand, respondents' counsel Ms. Rashmi Chopra vehemently opposed the contentions of the counsel for the applicant and stated that the act of the delinquent official shows his criminal background, as he was having nexus with the criminals and it would not have been reasonably practicable to hold an enquiry and rightly for the good reasons the same having been dispensed with under Article 311(2)(b) of the Constitution of India, the decisions of the disciplinary authority as well as appellate authority are with reasons and cannot be successfully assailed by the applicant.
8. We have carefully considered the rival contentions of the parties and perused the material on record.
9. While a government servant has a right to continue in service till his tenure lasts as per rules but the government has a right to dispense with the services by following due procedure of law envisaged under Article 311(2) of the Constitution of India. Article 311(2)(b) of the Constitution of India ibid is an exception to Article 311(2) according to which if the disciplinary authority is of the view that the enquiry is not reasonably practicable, the same can be dispensed with and one can be dismissed from service.
10. In so far as the orders passed dispensing with the enquiry is concerned, a Constitution Bench of the Apex Court in UOI and Ors. v. Tulsi Ram Patel ruled that in a judicial review disciplinary authority is not expected to dispense with the enquiry arbitrarily merely in order to avoid the enquiry on merely its ipsi dixit. The Tribunal or the Court is not precluded in a judicial review to examine the reasoning arrived at and in such an event appropriate legal consequences ensue.
11. In Singasan Rabbi Dass' case supra when RPF personnels have been dismissed under Article 311(2)(b), on the ground that the witnesses would be exposed to threat & fear etc. and would not come forward to depose against the concerned because of threat and humiliation, has been held to be an arbitrary and unjustifiable ground to dispense with the enquiry.
12. Apex Court in Ex. Constable Chotte Lal v. UOI and Ors. has held that in a case where a Constable has been dismissed on resort to Article 311(2)(b) on the ground that the witnesses would be influenced and shall not depose in the departmental enquiry has been ruled as neither reasonable nor fair conclusion.
13. In the above position of law, what has been recorded by the disciplinary authority in the order is that the applicant is involved in the criminal case, the witnesses would not come forward to depose against the applicant as being dangerous and of desperate character. However, an FIR is not a proof of guilt of a person in a criminal offence. If FIR culminates into a conviction, only then one can held in law to be a criminal and of a desperate character.
14. In the above backdrop, in so far as, heinous offence of rape is concerned, competent Court of criminal jurisdiction in SC No. 93/2004 by a judgment dated 4.4.2005 acquitted not only the applicant but others as the prosecution has miserably failed to prove its case. In such view of the matter being acquitted from the criminal case, the allegations against applicant of his either being involved in criminal case or having nexus with the criminals is obliterated. However, we are not sitting as an appellate authority over the implication of law. Moreover, ipsi dixit of the disciplinary is apparent as well as non-application of mind that while exercising jurisdiction under Article 311(2)(b) of the Constitution of India, it is recorded that it is not practicable to hold a departmental enquiry. When a public functionary acts as an administrative or quasi-judicial authority, he is legally obligated to act judiciously. A judicious exercise on discretion would not be apparent if the reasoning is not in accordance with law. The only ground to dispense with the enquiry is involvement in the criminal case and that witnesses would not come forward is only on presumptions, surmises and conjectures. Firstly no departmental enquiry has been ordered. Had there been a complaint from the witnesses of threat or fear extended by concerned, then the action of the disciplinary authority to record such findings would be justifiable, otherwise it is trite that such findings when supported with no material is on the ipsi dixit of the authorities. To such a thing, law not only deprecates on the principle of fairness but deprivation of reasonable opportunity would also be deemed.
15. Of late it has been seen that in Delhi Police if an official is involved either in a criminal case or in any misconduct when reported by the media, only exercise undertaken from the side of authorities is to justify by dismissing the official under Article 311(2)(b) of the Constitution of India not with a view that the enquiry is not reasonably practicable but to save their own dignity and to uphold the reputation of Delhi Police. If such a latent reason is behind in justifying their action, we are sorry to state that such a finding and reasoning would not stand scrutiny of law, held in the case of Tulsi Ram Patel (supra). Nobody can take the Constitution for granted by misusing it without any justification or reasonable conclusion arrived at.
16. In such view of the matter, when the matter has reached the appellate authority, the authority has not only reiterated the disciplinary authority's order but failed to apply its own mind as to holding of an enquiry as per the dicta laid down in Tulsi Ram Patel's case. Even at that stage, orders passed clearly show non-application of mind.
17. In the result, for the forgoing reasons, we do not find that the orders passed by the respondents are legally sustainable. Accordingly, OA is allowed. Impugned orders are set aside. The applicant be reinstated within a period of two months from the date of receipt of a copy of this order, and would be entitled to all consequential benefits. No costs.