Central Administrative Tribunal - Delhi
Manish Kumar vs Gnctd on 17 July, 2023
1 O.A. No.1318 of 2022
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1318 of 2022
Orders reserved on : 31.05.2023
.2023
Orders pronounced on : 17.07.2023
.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Shri Sanjeeva Kumar, Member (A)
Manish Kumar
Age 31 years
S/o Sh. Hagsharan Singh,
R/o 229/28J, Street No.21,
Mandawali, Fazalpur, Railway Colony,
Delhi-93
93
Group 'C'
Constable in Delhi Police
...Applicant
(Advocate : Shri Sachin Chauhan)
Versus
1. Government of NCT of Delhi
through the Chief Secretary,
Govt. of NCTD,
A
A-Wing, 5th Floor, Delhi Secretariat,
New Delhi-110003.
Delhi
2. The Commissioner of Police,
Police Headquarters,
Jai Singh Road, New Delhi-
Delhi-110001.
3. The Joint Commissioner of Police
Eastern Range,
Range Delhi
Through its Commissioner of Police
Jai Singh Road, New Delhi-
Delhi-110001.
4. The Deputy Commissioner of Police,
East District, Delhi
Through its Commissioner of Police
Jai Singh Road, New Delhi-
Delhi-110001.
... Respondents
(Advocate Shri Amit Yadav with Ms. Radhi DuaDua)
2 OA No.1318/2022
ORDER
Hon'ble Mr. R.N. Singh, Member (J) :
In the instant OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the Order dated 16.9.2021 (Annexure A-1) vide which the Disciplinary Authority dismissing him from service by invoking the power under Article 311 (2) (b) of the Constitution of India and also the order dated 14.3.2022 (Annexure A-2) vide which the Appellate Authority has rejected his appeal preferred against the aforesaid order of the Disciplinary Authority. The applicant has prayed for setting aside of the aforesaid impugned orders passed by the Disciplinary and Appellate Authorities and for his reinstatement in service with all consequential benefits, including seniority & promotion and pay & allowance.
2. Pursuant to notice, the respondents have filed their counter reply. The applicant has filed his rejoinder.
3. We have heard the learned counsels for the parties and perused the pleadings on records.
4. Brief facts of the instant case as apparent from the pleadings on record are that the applicant was appointed 3 OA No.1318/2022 as a Constable in Delhi Police on 03.05.2018. A PCR call was received in PS Mandawali area that the applicant, a police official from PS Preet Vihar, is threatening to commit suicide and comes to the house of lady caller. SHO/PS Mandawali, INspr. Kashmiri Lal also came to PS Preet Vihar for verification of facts with team and watched CCTV footage. A report vide DD No.9-A dated 08.09.2021 was lodged in this regard in PS Preet Vihar after verification of facts. The applicant was placed under suspension w.e.f. 08.09.2021 vide DD No.29-A dated 08.09.2021 PS Preet Vihar Read with Office Order dated 8.9.2021. A preliminary enquiry was also ordered into the matter under Rule 15 (1) of the Delhi Police (Punishment & Appeal) Rules, 1980 vide Office Order dated 8.9.2021 and entrusted to Shri Rajender Kumar, ACP/DIU /East District which revealed that the applicant was on sentry duty at the main gate of PS Preet Vihar on 08.09.2021 since 12.00 AM to 8.00 AM along with MP-5 & 20 live cartridges. He took over as sentry at 23:49:16 hours (07.08.2021) vide DD No.97-A dated 07.09.2021 PS Preet Vihar. At 00:01 AM, he went out of PS Preet Vihar on his motorcycle with sentry weapon (MP-5 & 20 rounds) in uniform without informing anyone and reached the 4 OA No.1318/2022 premises D/327-A, Ganesh Nagar, Pandav Nagar Complex, Delhi, i.e., the residence of the lady caller Smt. Gayatri Singh. He threatened the caller's family and told them to give in writing that Anju Singh (caller Gayatri's daughter) was not living in relationship with him. He threatened the caller's family to commit suicide with the service weapon which he was having with him. He arrived back to the Police Station at 00.51 AM on the same motorcycle with sentry weapon in uniform and sat on sentry duty. Meanwhile, a PCR call was received at PS Mandawali area that the applicant, police personnel from PS Preet Vihar, is threatening to commit suicide and had come to the house of lady caller. SHO PS Mandawali, Inspr. Kashmiri Lal came to PS Preet Vihar with staff for verification of the facts and watched CCTV footage with SHO Preet Vihar and IP/ASI Naveen Kumar of PS Mandawali. SHO/PS Mandawali revealed that at 12:40 AM dated 08.09.2021, a call was received that "D-327, Ganesh Nagar, Pandav Nagar Complex, called lady keghar pe Manish Kumar jo ki Preet Vihar PS se haiapni service pistal le karaayahai aur suicide karne ki dhamiki de rahahai aur kabhibhi called lady kegharghusjathahai." Acting upon the PCR call, SHO/Mandawali along with his 5 OA No.1318/2022 staff had reached PS Preet Vihar. All these facts are completedly corroborated with the official record of PS Mandawali & PS Preet Vihar. As such the allegations levelled against the applicant for unauthorisedly leaving his duty point with the service weapon/ammunition at 00.01 AM and coming back at PS at 00:51 AM (i.e. after a gap of 50 minutes) is completely proved by the said CCTV footage. His presence at the residence of the lady calle4r during this period is completely proved by the versions of the caller Smt. Gayatri Singh, her daughter Anju Singh and CCTV footages. It is alleged that the applicant himself admitted the same during enquiry. His unauthorised absence from the duty point with the govt. weapon/ammunition is a serious misconduct on his part. During the preliminary enquiry, it has been observed that the facts and circumstances of the case are so serious and it will not be reasonably practicable to conduct a regular departmental enquiry against the applicant as there is a reasonable belief that the witnesses may not come forward to depose against him owing to his influential position. It also calls for great courage to depose against the official person and the task becomes more acute and difficult where the police personnel could use his job to influence 6 OA No.1318/2022 the statement/deposition of the witnesses. It is also highly probable that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant fear of threat to their person and property from the defaulter. Under these circumstances, the disciplinary authority personally satisfied that conducting a regular D.E. against the applicant is not practicably possible. After completing the preliminary enquiry into the matter, in compliance of circulars issued from the PHQ dated 11.9.2007 and 18.4.2018, the enquiry report was forwarded to the competent authority for seeking necessary concurrence to dismiss the applicant by invoking the provisions of Article 311 (2)(b) of the Constitution of India, which has been approved by the competent authority. Thereafter a punishment of dismissal from Delhi Police was awarded to the applicant under Article 311(2) (b) of the Constitution of India vide impugned order dated 16.9.2021. The appeal preferred by the applicant was rejected by the appellate authority vide impugned order dated 14.3.2022. Being aggrieved by the said impugned orders, the applicant has filed the present OA for redressal of his grievances. 7 OA No.1318/2022
5. During the hearing, Shri Chauhan, learned counsel for the applicant has submitted that vide the impugned order dated 16.9.2021, the Disciplinary Authority has awarded extreme punishment of dismissal from service to the applicant and the appeal preferred by the applicant has been rejected by the Appellate Authority in a mechanical manner.
5.1 Learned counsel has further argued that the reasons recorded in the impugned order passed by the disciplinary authority for dispensing with the regular D.E. are vague, evasive and false as the sole object is to adopt the short cut method with the sole intent to avoid D.E. and thus the power under Article 311(2)(b) has been exercised causing great prejudice to the applicant which establishes the absolute abuse of the process of law. He has further argued that the allegations against the applicant are also vague and evasive and also the fact that the reasons recorded, as quoted above, for dispensing with the D.E. will not withstand the scrutiny of law as the applicant only being a Constable in Delhi Police and that too, a post lowest in the hierarchy. He has argued that on a mere perusal of the impugned order of the Disciplinary 8 OA No.1318/2022 Authority, it is evident that there was no material or evidence on the basis of which any inference could be drawn that witness(es) were not in a position to depose against the applicant.
5.2 Learned counsel for the applicant has further argued that in the present case, the power exercised by invoking the provisions of Article 311(2)(b) of the Constitution of India by the Disciplinary Authority is only to deny the applicant his rightful claim under Article 311 of the Constitution of India. Learned counsel has further emphasised that the reasons for dispensing with the regular D.E. are based on suspicious and surmises and no such material, except P.E. report, is being placed before any of the authorities on the basis of which the conclusion would be drawn whether the D.E. is not practicable or and nothing on record even remotely supports the vague reasons recoded to dispense with the D.E. In support of the claim of the applicant, learned counsel for the applicant has placed reliance on the following decisions:-
(i) OA No.2500/2006, titled Suresh Kumar vs. GNCT of Delhi and others decided by this Tribunal on 5.7.2017;9 OA No.1318/2022
(ii) OA No.1912/2015, titled Kripal Singh vs. GNCTD decided by this Tribunal on 11.3.2021;
5.3 On the strength of the aforesaid judgments, learned counsel for the applicant has argued that provisions of circular dated 11.9.2007 have been violated by the Disciplinary Authority, which was issued by the respondents - PHQ in pursuance of the orders/judgments of this Tribunal in a catena of cases, including in the case of Suresh Kumar (supra). Learned counsel for the applicant has also submitted that admittedly a preliminary enquiry was conducted and once a PE is possible then D.E. is also possible, moreso in absence of any reason recorded by the respondents, regular enquiry is not found feasible. He has submitted that in similar fcts and circumstances, a catena of cases had been allowed by the Hon'ble Delhi High Court and by this Tribunal. Some of such cases are as under:-
(i) WP(C) No.4078/2017, titled Commissioner of Police and others vs. Ashwani Kumar and others, decided on 11.12.2019 by the Hon'ble High Court of Delhi;10 OA No.1318/2022
(ii) WP(C) No.11694/2018, titled Commissioner of Police and others vs. Kaushal Singh, decided on 16.5.2019 by the Hon'ble High Court of Delhi;
(iii) OA No.2097/2019, titled Neeraj Kumar vs. Commissioner of Delhi Police and others, decided on 1.11.2019 by this Tribunal;
(iv) OA No.2867/2019, titled Jasmohinder Singh vs. Commissioner of Delhi Police and others, decided on 16.10.2020 by this Tribunal;
(v) OA No.702/2019, titled Dharmender Singh Dangi vs. Govt. of NCTD and others, decided on 7.1.2021 by this Tribunal;
(vi) OA No.4246/2014, titled Rajbir Singh vs. Commissioner of Police and others, decided on 4.1.2017 by this Tribunal;
(vii) OA No.1102/2015, titled Vikas vs. GNCT of Delhi and others, decided on 27.11.2017 by this Tribunal;&
(viii) OA No.1124/2019, titled Tara Dutt vs. GNCT of Delhi, decided on 17.6.2021 by this Tribunal. 5.4 Lastly learned counsel for the applicant has submitted that besides the aforesaid orders/judgments, 11 OA No.1318/2022 the case of the applicant is squarely covered by the common order/judgment dated 10.2.2022 in OA No.1383/2020 and other connected OAs, titled Sumit Sharma vs. Govt. of NCT of Delhi and others in which this Tribunal has very elaborately decided the issue. He has also submitted that recently also this Tribunal in OA No.1038/2017, titled Neeraj Kumar vs. Govt. of NCTD and others, decided on 27.4.2023, decided the similar issue in favour of the applicant therein, which decision also squarely applies to the applicant's case herein.
6. Per contra, Shri Amit Yadav, learned counsel for the respondents with the assistance of the counter reply, has submitted that on the aforesaid grounds, 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 after obtaining the approval of the competent authority and that too, after holding a preliminary inquiry in the matter in the interest of justice and the appeal of the applicant was rightly rejected by the appellate authority. Learned counsel for the respondents has also submitted that the applicant has himself admitted the same during enquiry. However, nothing has 12 OA No.1318/2022 been shown to us which may be construed as admission of his misconduct/guilt by the applicant. In support the stand of the respondents, learned counsel for the respondents has placed reliance on the following decisions:-
(i) Civil Appeal No.3194/2015, titled Ved Mitter Gill vs. Union Territory Administration, Chandigarh and others, decided on 26.3.2015 by the Hon'ble Supreme Court;
(ii) WP(C) No.6005/2017, titled Ct. Mukesh Kumar Yadav vs. GNCT of Delhi and others, decided on 20.9.2017 by the Hon'ble High Court of Delhi;
(iii) Chandigarh Administration vs. Ex. S.I. Gurdit Singh, reported in (1997) 10 SCC 430;
(iv) W.A. No.5651/2016 (S-DIS) and other connected cases, titled Sri. Vikas Verma and others vs. Union of India and others, decided on 15.6.2022 by the Hon'ble High Court of Karnataka at Bengaluru; &
(v) WP(C) No.1309/2023, titled Manohar Lal vs. Commissioner of Police, decided on 2.2.2023 by the Hon'ble High Court of Delhi;
13 OA No.1318/2022
7. In rebuttal to the contentions and arguments advanced by the learned counsel for the respondents, learned counsel for the applicant besides reiterating his above noted arguments has submitted that there is no admission on the part of the applicant as alleged and recorded by the respondents in the impugned order passed by the Disciplinary Authority.
8. We have considered the submissions made by the learned counsels for the parties and have also gone through the orders/judgments relied upon by them.
9. Since the issue as involved in the present case has already been decided by the Division Bench of this Tribunal by a common order/judgment while decided the case of Sumit Sharma (supra), in which one of us, namely, Shri R.N. Singh, is a Member, we put to the learned counsel for the respondents that as to why the instant case be not decided on the basis of the aforesaid common Order/Judgment passed by this Tribunal, as the similar 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 14 OA No.1318/2022 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 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 15 OA No.1318/2022 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 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 16 OA No.1318/2022 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 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."
10. However, no cogent reason has been given on behalf of the respondents as to why the Order/Judgment in the case of Ct. Sumit Sharma (supra) is not applicable in the present case. The learned counsel for the respondents has merely reiterated his submissions as noted above and placed reliance upon the judgments as mentioned in para 5 above.
11. So far as the decision of the Hon'ble Supreme Court in the case of Ved Mitter Gill (supra) is concerned, it is true that Hon'ble Apex Court has held that under Article 311(2)(b) of the Constitution, the competent authority should be satisfied that it is not possible to hold enquiry. But in our opinion, in the present case, the authority 17 OA No.1318/2022 though might have given reasons, even the same is vitiated as discussed herein above and, therefore, the said judgment would not be applicable in the facts of the present case.
12. Further reliance has been placed by the learned counsel for the respondents on the decision of the Hon'ble Supreme Court in the case of Chandigarh Administration (supra). In the said case, respondent - a Sub-Inspector was a terror in the area and was a very influential person. No person was likely to come forward to give any statement regarding the incident against him and therefore it was found that no purpose will serve to have any departmental enquiry against him. Hence, it was recommended that stern disciplinary action be taken against him, as reported by the DSP in the said case. But the applicant in the instant case was a Constable and there is no such kind of report against the applicant in the said case. As such, the instant case is distinguishable on facts. Further the said decision of the Hon'ble Supreme Court in the case of Chandigarh Administration (supra) as well as the decision of the Hon'ble High Court of Delhi in the case of Ct. Mukesh Kumar Yadav (supra) had also been considered by this Tribunal while passing the 18 OA No.1318/2022 common order/judgment in the case of Sumit Sharma (supra).
13. We have also gone through the judgment dated 2.2.2023 of the Hon'ble High Court of Delhi in the case of Manohar Lal (supra) on which the reliance has been placed by the learned counsel for the respondents. In the said case, under challenge was the order dated 29.11.2022 passed by this Tribunal in OA No.744/2020 whereby the Tribunal dismissed the OA filed by the said petitioner challenging the action of the respondents in dismissing him from service under Article 311(2)(b) of the Constitution of India. In para 15 of the judgment dated 2.2.2023, the Hon'ble High Court has recorded the reasons for dismissing the said Writ Petition. Para 15 of the judgment of the Hon'ble High Court of 2.2.2023 reads as under:-
"15. We are of the view that the learned Tribunal is justified in dismissing the petition for the reasons stated as under:
(i) The charges against the petitioner are of very serious nature.
(ii) The allegations which had already been reproduced above is that the petitioner, who was holding the position of constable along with two Sub-
Inspectors posted in the Special Cell of Delhi Police forcibly entered into a 19 OA No.1318/2022 godown by breaking open the room where sandalwood logs were kept and loaded approx. 1355 Kg. of sandalwood logs into a tempo and took away the SIM card from the mobile phone of Guard Maniram.
(iii) That apart during the preliminary inquiry it transpired that the complainant / witness of the case was severely traumatised by this egregious act of criminals, especially the police personnel involved therein due to their close association with hardened criminals.
(iv) A charge sheet has been filed against the petitioner in connection with FIR No.390/2017 registered at PS Bhalswa Dairy, showing a prima facie case against the petitioner.
(v) In the appeal filed by the petitioner, he has not denied that he is not involved in the alleged offence.
(vi) Insofar as the plea of the learned counsel for the petitioner that there is another witness, i.e. the nephew of the guard namely Mohit is concerned, we note that the FIR records that the guard Maniram and his nephew Mohit were cooking food when he heard a knock at the door, pursuant to which Maniram opened the door to see a person in a police uniform. Further, it records that at 06:45 A.M. on the next day when the contractor had reached the premises, the guard's nephew Mohit arrived and stated that he had slept on the terrace of another godown, on being scared of the men who had come wearing police uniform. Suffice to state, the nephew of the guard being a child of 11 years upon being scared of the men in police uniform, had left the godown and went to the terrace of another godown. If that is indeed the case, it is not known as to how much 20 OA No.1318/2022 weight his deposition may carry. That apart, there may arise an apprehension that the charged persons including the petitioner being police officer who are well versed in criminal proceedings, may try to intimidate or influence this witness as well, more so, when he is a minor."
14. However, on a perusal of the impugned orders, 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) and further there is no evidence or document to indicate that in view of the facts and circumstances of the case, any efforts was made by the respondents to summon the witness(es) to lead the evidence. It is also not the case of the respondents that resorting to regular enquiry, the relation with foreign countries was likely to be adversely affected. From the impugned orders, it is evidently clear that neither any effort was made by the respondents to conduct the enquiry nor there is any evidence that in spite of their best efforts, the respondents had not been able to produce the witness(es) to lead evidence against the applicant and further nothing is brought on record that witness(es) has/have been threatened by the applicant or they are too 21 OA No.1318/2022 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 conclusion that it would not be possible to conduct the departmental enquiry against the applicant and there is a possibility that witness(es) may not come forward to depose against the applicant.
15. In view of the aforesaid, the reliance placed by the respondents on the decision of the Hon'ble High Court of Delhi in Manohar Lal (supra) is of no help to them as in the said case during the preliminary inquiry, the complainant/witness of the case was severely traumatised by the egregious act of criminals, especially the police personnel involved therein due to their close association with hardened criminals and in the appeal filed by the petitioner therein, he has not denied that he is not involved in the alleged offence of robbery-cum-burglary, which is not the case in hand.
16. So far as the decision of the Hon'ble High Court of Karnataka in the case of Sri. Vikas Verma (supra), relied upon by the respondents, is concerned, the Hon'ble High Court in paras 15 and 16 observed as under:- 22 OA No.1318/2022
"15. In the backdrop of well settled legal principles, we may advert to the facts of the case in hand. The complainant filed a complaint on 02.07.2015 alleging that she was blackmailed, raped and sexually abused by the appellants. Thereafter, a preliminary enquiry was conducted and the statements of the appellants were recorded between 02.07.2015 to 05.07.2015, which were duly signed by the appellants. Thereafter preliminary enquiry report dated 10.07.2015 was submitted, in which inter alia it was found that appellant No.1 viz., Vikas Verma had attempted to steal the affection of lady wife of Constable / G.D. Pradeep S and had later tried to blackmail the complainant and sexually abuse and exploit her. Similar misconducts of blackmailing, sexual harassment and abuse was done by 7 other Constables viz., appellant Nos.2 to 5. Accordingly, it was concluded that a prima facie case exists against the appellants.
16. The disciplinary authority by an order dated 02.08.2015 in para 8 recorded the reasons for arriving at a conclusion that it is not reasonably practicable to hold an enquiry. Para 8 of the order passed by the disciplinary authority reads as under:
And whereas, in the facts and circumstances of the case, which is one of the rarest of rare cases in any Armed Police Force like CISF where discipline & morale are of paramount importance. I am of the considered view that conducting enquiry into the incident is not reasonably practicable for the following reasons.
Unlike civilian Government employees, all CISF personnel live inside the Unit campus. Within the Unit campus, personnel living with their family are allotted government accommodation and the bachelors are accommodated in 23 OA No.1318/2022 barracks under single roof. Only about 50% of the personnel in a Unit are allowed to keep their family at duty station as per authorization. Therefore 50% of the personnel stay as bachelors in every CISF Unit. CISF personnel are often required to stay away from their place of posting on official duty, leaving behind their family alone at the Unit campus. In the instant case, the charged official along with 7 other Constables have indulged in an inhumanly act of blackmailing/threatening the wife of a fellow Constable and have sexually abused her one after the other, when her husband was away from the Unit. All the accused personnel in the case are bachelors and they live together with other bachelor members of the force inside the barracks. Therefore, if enquiry is conducted the information relating to the heinous crime meted out to a lady wife, whose husband was away from the station, is bound to spread to every rank and file of the and file of the force which will not only have serious psychological impact resulting in insecurity in the minds of CISF personnel and their families, but will also seriously undermine the efficiency of the force deployed in vital installations as well as on Internal Security/Election Duties away from the Unit. Moreover, it will also lead to administrative difficulties whenever a family member is to be deployed for night duty/temporary duty away from the unit. Further, it will also have adverse ramification on the discipline of the force in general."
From the above quoted paras, it is apparent that the case of the applicant herein is distinguishable. As such the said 24 OA No.1318/2022 decision is of no help to the respondents in the present case.
17. Keeping in view the above observations, such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid instructions/ dated 11.9.2007 (Annexure A-4). 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 herein above.
18. 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 a catena of cases relied on behalf of the applicant, including the common Order/Judgment dated 10.2.2022 in Sumit Sharma (supra) and a batch of cases as well as order dated 27.4.2023 in Neeraj Kumar (supra). Therefore, the present OA deserves to be partly allowed and the same is partly allowed with the following directions:- 25 OA No.1318/2022
(i) Orders dated 16.9.2021 (Annexure A-1) and dated 14.03.2022 (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 direction 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.
19. However, in the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /ravi/