Central Administrative Tribunal - Delhi
Pardeep vs Comm. Of Police on 23 February, 2024
1 O.A. No.3487/2017
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3487of 2017
Orders reserved on : 16.02.2024
Orders pronounced on : 23rd.02.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Pardeep, Age-27 years, Group C
S/o Jai Veer Singh,
R/o VPO Farmana, Tehsil - Kharkhoda,
Distt-Sonepat, Haryana.
...Applicant
(By Advocate: Shri Sachin Chauhan)
VERSUS
1. Govt. of NCTD through
the Chief Secretary,
Govt. of NCTD,
A-Wing, 5th Floor, Delhi Secretariat,
New Delhi-110113.
2. The Commissioner of Police,
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
3. The Spl. Commissioner of Police
Police Headquarter, MSO Building,
I.P. Estate, New Delhi.
4. The Joint Commissioner of Police,
Central Range through
the Commissioner of Police,
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
5. The Dy. Commissioner of Police,
North District through
the Commissioner of Police,
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
...Respondents
(By Advocate: Shri Amit Yadav)
2 OA No.3487/2017
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
In way of the present OA, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following reliefs:-
"i) To set aside the impugned order dated 04.01.2017 whereby the extreme punishment i.e. dismissal from service is being imposed and order dated 24.08.2017 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents to reinstate the applicant in service with all consequential benefits including seniority and promotion and pay and allowance.
Or/and
ii) Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant."
2. Pursuant to notice, the respondents have filed their counter reply opposing the claim of the applicant. The applicant has filed rejoinder, besides reiterating the contentions made in the OA, refuting the contents of the counter reply.
3. The facts in brief leading to the present case are that the applicant was appointed as Constable in Delhi Police on 7.6.2010. while he was working as such was implicated in criminal case FIR No.201/16 dated 16.12.2016 under Section 384/120-B of IPC, which was registered at PS 3 OA No.3487/2017 Crime Branch, Delhi and the applicant was arrested on 19.12.2016 and also placed under suspension vide an order dated 19.12.2016. Thereafter, the applicant was dismissed from service by the disciplinary authority by invoking the provisions of Article 311 (2) (b) of the Constitution of India vide impugned order dated 04.01.2017 (Annexure A-1). The relevant portion of the said order of the disciplinary authority dated 04.01.2017 reads as under:-
"A report has been received from ACP/Civil Lines that Constable Pradeep, No.2944/N (PIS No.28108290) has been arrested on 19.12.16 in case FIR No.201/16, dt. 16.12.16 u/s 384/120-B IPC, PS Crime Branch, Delhi. Accordingly, he was placed under suspension vide this office order No.11233- 59/HAP/P-I/N dt. 19.12.16.
The above mentioned case has been registered on the statement of Sh. Pawan s/o Rohtash Singh r/o Sonepat, Haryana that one girl namely Priya called him on his mobile No. for friendship and requested to meet at A-Block, Sant Nagar, Burari, Delli. Initially, the complainant avoided her but on 17.12.16, he fall prey to alleged girl and came to A- Blcok, Sant Nagar, Burari. She further told him that she is in deep trouble and he bas to come immediately. The complainant reached at the said address where he met with the alleged girls, namely Priya, Pooja & Pinki. They bolted the house from inside despite his resistance. Suddenly three male & one female entered in the flat and posed themselves as policemen & press reporter. They told that he(complainant) is running a sex racket at this flat. As per statement of the complainant, they started beating him up and demanded Rs. 25 lacs. They threatened him to book him in a rape case. He got frightened and at that very moment, they started 4 OA No.3487/2017 demanding money. The complainant showed his inability to pay the huge amount of Rs. 25 lacs. On this, they all again beaten him and also threatened to publish/show this news on TV channels. Due to fear, the complainant asked his friends to arrange Rs. 15 lacs as agreed upon amount. The place for delivering of demanded money was fixed at Mukund Pur chowk and Bhalswa Diary. Thereafter, the complainant met with senior officers and got registered the aforesaid case against Ct. Pardeep, No. 2944/N at Crime Branch, Delhi on.16.12.16. Further SI Vineet (member of Crime team of Inspr. Ashish Kumar Dubey) informed that Ct. Pradeep has admitted to provide the mobile No. of his relative(cousin brother in law) to this racket. The Constable has been taken to the office of Crime branch at Darya Ganj for further interrogation.
After having committed the above gravest misconduct of criminal activity, if the defaulter Ct. Pardeep, No. 2944/N is allowed to continue in the police force, it would be detrimental to public interest and further tarnish the image of the police force in the society. His misconduct has put the entire police force to shame. Such misconduct cannot be tolerated in disciplined organization like police whose basic duty is to protect the life of citizens in the society. The facts and circumstances of the case are that it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulter Ct. Pardeep, No. 2944/N, as there is a reasonable belief that the witnesses would not come forward to depose against him due to intimidation, inducement and affiliation of material PWs by the defaulter Constable. The complainant is relative of the Constable who has been arrested. This fact has come to light during the interrogation and investigation. The chances of the complainant turning hostile during DE proceedings are quite high being relative of delinquent. It also calls for great courage to depose against desperate person and that task becomes more acute and difficult where the defaulter is police official who may use his job to influence the statement/deposition of the witnesses. Further an extended enquiry would only cause more trauma to the victim.
The misconduct of accused Ct. Pardeep, No. 2944/N who has been arrested in a case of extortion 5 OA No.3487/2017 of money is such a grave nature that warrants an exemplary punishment of dismissal, in order to send a clear message to such undesirable person and to prevent the recurrence of such crimes. Taking into account the holistic facts and circumstances of the case as mentioned above, the undersigned is of the firm opinion and satisfied that the acts and grave misconduct of accused Constable Pardeep, No. 2944/N attract the provisions of article 311(2)(b) of the constitution of India and make him completely unfit for police service.
Keeping in view the facts of the case and overall implication of such misconduct for disciplined force and sensitive of the matter, I, Jatin Narwal, IPS, Dy. Commissioner of Police/North Distt. do hereby dismiss Constable Pardeep, No. 2944/N from service under article-311(2)(b) of Constitution of India with immediate effect. His suspension period from 19.12.16 (i.e. date of arrest) to the date of this order is hereby decided as not spent on duty for all intents and purposes which may not be regularized in any manner."
4. Aggrieved by the aforesaid impugned order of the disciplinary authority, the applicant has submitted his appeal to the Appellate Authority. However, the Appellate Authority after giving O.R. to the applicant rejected the appeal of the applicant vide impugned order dated 24.08.2017 (Annexure A/2). Hence, the applicant has filed the present OA for redressal of his grievances.
5. We have heard learned counsels for the parties and have perused the pleadings available on record as well as the Order/judgments relied upon by the learned counsels for the parties.
6 OA No.3487/2017
6. When this case was taken up for hearing, Shri Chauhan, learned counsel for the applicant has argued that on a plain reading of the contents of the orders passed by the disciplinary and the appellate authorities, it is apparent that the said authorities did not even make the slightest possible effort to initiate a departmental enquiry as only after initiating a departmental inquiry or finding sufficient materials and reasons, an authority can come to a conclusion that departmental enquiry is not reasonably practicable, however, only acting on the presumption and surmises, the respondents came to the conclusion vide the impugned orders that departmental inquiry was not practicable, which is not sustainable in the eyes of law.
6.1 Learned counsel for the applicant has also submitted that the disciplinary authority has failed 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 that a D.E. is not reasonably practical and to conclude that the disciplinary authority has to record reason but the reasons given in the impugned order are based on the assumption that the applicant has committed the alleged 7 OA No.3487/2017 crime despite the fact that the said FIR stands quashed by the Hon'ble Delhi High Court vide Order/Judgment dated 23.2.2017 passed in Writ Petition (Crl.) No.578/2017 and otherwise also no departmental enquiry was conducted into the matter. As such it is evident that the disciplinary authority on the presumption that some grave offence was being committed by the applicant so there is no need to conduct the departmental enquiry, is a reason which cannot withstand on the scrutiny of the law for invoking the power under Article 311 (2)(b) of the Constitution of India. The learned counsel has further submitted that the law on the subject is that when more grave are the allegations, more opportunity should be provided to the delinquent official to submit the defense. The gravity of the charge will never be tilting factor in deciding for invoking power under Article 311 (2)(b) of the Constitution or not. In this regard, he has drawn our attention of circular dated 11.09.2007 (Annexure A-4) issued by the respondents, relevant portion of which reads as under:-
"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 8 OA No.3487/2017 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) 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 an order under Art. 311 (2) (b) of the Constitution, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.)"
6.2 He has further contended that there is no approval/concurrence of Spl. Commissioner of Police as per the requirement of the aforesaid circular and thus the same is bad in law being passed without jurisdiction and competence by the authorities.
6.3 Learned counsel has further argued that the present case is a case of no evidence and no misconduct, but on the contrary mere on probability and on suspicion and surmise, the present allegations are made and also taken to stand proved against the applicant and further to avoid the disciplinary proceedings, a short cut method has been adopted by invoking the provisions of Article 311 (2) (b) of the Constitution of India. Further the appellate authority without applying its mind rejected the appeal of the applicant and as such the aforesaid orders of the disciplinary and appellate authorities are not sustainable. 9 OA No.3487/2017 In support of this contention, learned counsel for the applicant has placed reliance on the decisions of the Hon'ble Supreme Court and of this Tribunal in the following cases:-
(i) Chief Security Officer and others vs. Singhasan Rabi Das, reported in AIR 1991 SC 1043,
(ii) OA No.2837/2009, titled Ex-Constable (Driver) Satyawan Vashist vs. Government of N.C.T.D. and others, decided on 26.5.2010;
(iii) OA No.2500/2006, titled Head Constable Suresh Kumar No.2067/W vs. Govt. Of N.C.T.D. and others, decided on 5.6.2007;
6.4 Learned counsel for the applicant has further argued that in the facts and circumstances of the present case, the satisfaction of the disciplinary authority is not based on any cogent reason as the reasoning of the disciplinary authority in the impugned order that 'it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulter Ct. Pardeep, No.2944, as there is a reasonable belief that the witnesses would not come forward to depose against him due to intimidation, inducement and affiliation of material PWs by the accused ASI. The complainant 10 OA No.3487/2017 is relative of the Constable who has been arrested. This fact has come to light during the interrogation and investigation. The chances of the complainant turning hostile during DE proceedings are quite high being relative of delinquent. It also calls for great courage to depose against desperate person and that task becomes more acute and difficult where the delinquent is police official who may use his job to influence the statement/deposition of the witnesses. Further an extended enquiry police official who may would only cause more trauma to the victims', is not sustainable in the eyes of law as the applicant, being a Constable, was holding a lower post in the department. Therefore, the impugned order passed by the disciplinary authority is in utter violation of principles of natural justice and laid down departmental rules and procedure on the subject.
6.5 Learned counsel for the applicant has submitted that extreme punishment of dismissal from service has been imposed upon the applicant by invoking the provisions of the Article 311 (2) (b) of the Constitution of India and further the appellate authority has rejected the appeal of the applicant without considering the specific submissions and pleas raised in the statutory appeal and as such the impugned orders are wrong, illegal, and arbitrary. 11 OA No.3487/2017 Learned counsel for the applicant has further emphasized that both the authorities have not applied their mind as there is a pre-condition for invoking the provisions of Article 311 (2) (b) of the Constitution of India, is a finding to the effect that enquiry is not reasonably practical and to conclude that the disciplinary authority has to record reason(s) in this regard. However, the reasons recorded in the impugned order dated 4.1.2017, as quoted above, are based on the surmises and conjectures.
6.6 Lastly, learned counsel for the applicant has submitted that similar issue as involved in the instant case has elaborately been considered by this Tribunal in OA No.1383/2020 and a batch, titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others, which was decided by this Tribunal vide common Order dated 10.2.2022 by referring to and relying on a catena of Orders/Judgments of the Hon'ble Supreme Court, Hon'ble High Court(s) and of this Tribunal. The similar contentions as raised in the present case had already been dealt with by this Tribunal in the aforesaid common Order/Judgment dated 10.2.2022. He has drawn our attention to the grounds taken for passing the aforesaid impugned order(s) as is 12 OA No.3487/2017 evident from the impugned disciplinary authority's order itself. Learned counsel for the applicant has submitted that on the same terms as given the case of Ct. Sumit Sharma (supra), the present OA may be decided. The learned counsel for the applicant has also submitted that subsequently a catena of cases placing reliance of the decision of this Tribunal in Ct. Sumit Sharma (supra) have been decided by this Tribunal, including the OA No.1038/2017, titled Neeraj Kumar vs. Govt. of NCTD and others, decided on 27.4.2023.
7. Per contra, Shri Yadav, learned counsel for the respondents with the assistance of the counter reply, has submitted that the disciplinary authority is the master of facts and was in a position to decide on the basis of material available before him whether D.E. should have been initiated or power under Article 311(2)(b) of the Constitution of India needed to be exercised and further having regard to the gravity of the offence alleged against the applicant, 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 as the witness(es) may get hostile as later the applicant and complainant may arrive at settlement, which led to the quashing of the disciplinary proceedings, if initiated, 13 OA No.3487/2017 and the appeal of the applicant was rightly rejected by the appellate authority. He has also referred to the order/judgment dated 20.9.2017 rendered by the Hon'ble Delhi High Court in the case of Ct. Mukesh Kumar Yadav vs. Govt. of NCT of Delhi and others (W.P. (C) No.6005/2017) in support of the stand of the respondents.
8. Before adverting to the case in hand, it is pertinent to mention that similar issue had been considered by this Tribunal in Ct. Sumit Sharma (supra), paras 45 to 48 thereof 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 14 OA No.3487/2017 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 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 15 OA No.3487/2017 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 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."
9. The judgment of the Hon'ble High Court in the case of Ct. Mukesh Kumar Yadav vs. GNCTD & others in WP (C) No.6005/2017, on which reliance has been placed by the learned counsel for the respondents, has been considered and dealt with by this Tribunal in Ct. Sumit Sharma (supra).
10. Keeping in view 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 16 OA No.3487/2017 applicant had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). 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 despite their best efforts, the respondents would not have been able to produce the witness(es) to lead evidence against the applicant. Further nothing is brought on record that witness(es) has/have been threatened by the applicant or they are 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 conclusion that it would not be possible to conduct the departmental enquiry against the applicant and there being a possibility that witness(es) may not come forward to depose against the applicant.
11. 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 17 OA No.3487/2017 Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove.
12. 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 a catena of cases relied on behalf of the applicant, including 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 4.1.2017 (Annexure A-1) and dated 24.8.2017 (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 18 OA No.3487/2017
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
13. However, in the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/