Central Administrative Tribunal - Delhi
Babu Lal Syag vs Gnctd on 17 September, 2024
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OA No. 2435/2023
Item No. 39/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2435/2023
Reserved on: - 06.08.2024
Pronounced on: - 17.09.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Babu Lal Syag,
Age 47 years,
S/o Sh. Bhagwan Ram,
R/o Permanent Address Village- Kerpura,
Post office- Khandela, Police Station-Khandela,
District-Sikar, Rajasthan- 332709.
Present Address
H.No. 54C, B Block, Gali No. 6,
Harijan Basti, Nasirpur,
Village Palam, Delhi-110004
Group „C‟ ... Applicant
(By Advocate: Mr. Sachin Chauhan with Ms Ridhi Dua, Mr.
Abhimanyu Baliyan and Mr. Himanshu Raghav)
Versus
1. Govt. of NCT of Delhi
Through the Chief Secretary,
Govt. of NCTD, A-Wing, 5th Floor,
Delhi Secretariat,
New Delhi-110113
2. The Commissioner of Police
Police Headquarters,
Jai Singh Road,
New Delhi.-110001.
3. The Joint Commissioner of Police,
Northern Range, Delhi
Through The Commissioner of Police
Jai Singh Road,
Delhi-110001.
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OA No. 2435/2023
Item No. 39/C-II
4. The Deputy Commissioner of Police,
Rohini District, Delhi
Through The Commissioner of Police
Jai Singh Road, New Delhi-110001. ... Respondents
(By Advocate: Mr. S. N. Verma with Ms. Rinky Negi)
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OA No. 2435/2023
Item No. 39/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present OA filed under the AT Act, 1985, the applicant has prayed for the reliefs in Para 8 of the OA, which are as follows:-
"8.1 To quash and set aside an order dated 20.1.2022 whereby the extreme punishment of dismissal from service is inflicted upon the applicant, order dated 15.07.2023 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents to reinstate the applicant back in service with all consequential benefits including seniority and promotion and pay and allowance.
And/or Any other relief that this Hon'ble Court deems fit and proper may also be awarded to the applicant."
2. Pursuant to notice, the respondents have filed their counter affidavit opposing the claim of the applicant and have prayed for dismissal of the present Original Application. The applicant has also filed his rejoinder denying the contention of the counter affidavit and reiterated his claim in the OA.
3. The brief facts of the present case are that the applicant was appointed as Constable in Delhi Police in the year 1995 and further promoted to the post of Head Constable (Exe.) on 11.11.2016. The applicant claims that he has got various commendation certificates by senior official for his good work. He claims that he had always discharged his duties with utmost 4 OA No. 2435/2023 Item No. 39/C-II sincerity and has unblemished service record. The applicant claims that he is the sole bread earner of his family. The applicant states that he was falsely implicated in criminal case FIR No. RC- DAI-2021-A-0046 dated 29.12.2021 PS CBI/ACB, New Delhi u/s 7 PC Act, 1988. The applicant states that there is no recovery of alleged bribe money from the applicant. The recovery of alleged bribe money was claimed to be made from third person „Rahul‟ who has been cited as a witness in this case by the CBI officials by threatening him of dire consequences and involving him in the conspiracy hatched at the instance of Mr. Naveen Rana. The applicant contends that that he is a victim of the entire episode. He further submits that the charges have been framed in the aforesaid criminal case and trial is going ahead. The applicant states that he was arrested on 30.12.2021 and was granted bail vide order dated 28.01.2022. It is further stated that the applicant was placed under suspension w.e.f. 29.12.2021. It is pertinent to mention that preliminary enquiry was being ordered and entrusted to ACP/Rohini, Delhi. The applicant submits that the Disciplinary Authority issued an order dated 20.01.2022 (Annexure-A/1) whereby the applicant has been dismissed from service by invoking the power under Article 311 (2) (b) of the Constitution of India that too without conducting a departmental enquiry. The reasons recorded by the Disciplinary Authority for 5 OA No. 2435/2023 Item No. 39/C-II dispensing away with the departmental enquiry are vague and based on suspicion and surmises.
4. The applicant states that he made an appeal dated 09.02.2022 against the order of punishment of dismissal from service to the Joint Commissioner of Police, Northern Range. The applicant further states that after filing of his appeal, he had to approach the Hon‟ble Tribunal after one year and three months by way of an OA No. 1482/2023, which was disposed of by this Tribunal vide order dated 19.05.2023 whereby this Tribunal has held as under:-
"4. In the facts and circumstances and with the consent of both the learned counsels for the parties and without going into the merits of the case, the present O.A. is disposed of with direction to the competent authority amongst the respondents to consider the applicant's aforesaid pending appeal dated 09.02.2023 (Annexure- A2), and to dispose of the same by passing a reasoned and speaking order as expeditiously as possible preferably within six weeks from the date of receipt of a certified copy of the order."
5. Thereafter, the Appellate Authority passed an order dated 15.07.2023 (Annexure-A/2) thereby rejecting the statutory appeal of the applicant. The applicant states that the order dated 15.07.2023 (Annexure-A/2) passed by the Appellate Authority is bad in law as the same is absolutely non-speaking and mechanical in nature and has been passed in total ignorance of the law regarding Article 311 (2) (b). The Appellate Authority failed to apply its mind that the law quoted by the applicant in the 6 OA No. 2435/2023 Item No. 39/C-II statutory appeal clearly establishes that the reasons recorded for dispensing away with the departmental enquiry are not legally sustainable in the eyes of law.
6. The applicant also states that the concurrence of the Spl. C.P., Admn. has to be taken in pursuance to the conditions laid down in the Circular dated 11.09.2007 before taking a decision to invoke the provision of Article 311 (2) (b) of the Constitution of India. The conditions mentioned in the above mentioned circular read as follows: -
"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 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.)."
7. The applicant contends that there is no concurrence of Spl. Commissioner of Police as per the requirement of the aforesaid circular and thus the present impugned order is being passed in violation of circular dated 11.09.2007 and thus the present order 7 OA No. 2435/2023 Item No. 39/C-II is bad in law being passed without jurisdiction and competence by the authorities.
8. The applicant mentions that the reasons recorded by the Disciplinary Authority to dispense away with the departmental enquiry do not withstand the scrutiny of law. The sole objective is to adopt a short cut method to avoid departmental enquiry and invoke the powers under Article 311 (2) (b) of the Constitution of India causing great prejudice to the applicant and further establishing the absolute abuse of process of law. He states that once preliminary enquiry and criminal trial are possible, then a departmental enquiry is also possible. Thus, passing the impugned order of Disciplinary Authority is bad in law. The trial is making a head way in the present case. The depositions of the witnesses are being recorded. Once the witness can depose in the trial then the same witness can depose in the DE. The presumption of the Disciplinary Authority and the Appellate Authority are proved to be wrong and thus invoking the Article 311 (2) (b) is wrong in the present case. The applicant submits that the authorities failed to acknowledge that the applicant is only Head Constable in Delhi Police. CBI is also involved in the present case, the mostly witnesses are CBI officials and thus to dispense away with the departmental enquiry on the pretext that departmental enquiry is not possible as the applicant might influence or intimidate the witness is an arbitrary act. The reasons 8 OA No. 2435/2023 Item No. 39/C-II for dispensing away with the departmental enquiry are not tenable in the eyes of law. The same are based on suspicion and surmises. The reasonable belief of authority that the witness may not come forward to depose against the applicant is based on suspicion and surmises. There is no attempt to initiate a departmental enquiry and nothing has been brought on record, subsequent to the allegations that the applicant has made any attempt to influence the witness and thus reasonable belied is based merely on suspicion and surmises.
9. The applicant contends that the Disciplinary Authority has assumed as if the allegations made in criminal case already stands proved and thus with these presumptions, the present impugned order is being passed. He mentions that once the order of Disciplinary Authority is based on assumption as if the allegations made against the applicant already stand proved that too on the basis of preliminary enquiry and FIR, the same act is enough to vitiate the order of Disciplinary Authority as being bad in law and based on assumptions, suspicion and surmises.
10. The applicant has mentioned case laws but the same have not been considered by the appellate authority. The Appellate Authority has moved on premises of gravity of misconduct and presumption that the allegation against the applicant stands proved. The Appellate Authority has totally missed out the 9 OA No. 2435/2023 Item No. 39/C-II prerequisite as per Article 311 (2) (b) of the Constitution of India for invoking the power under the said article, therefore, the order of Appellate Authority is bad in law. He contends that the Appellate Authority has blindly supported the reasons put forth by the Disciplinary Authority for dispensing away with the departmental enquiry. This establishes non-application of mind on behalf of the Appellate Authority.
11. In the present Original Application, the applicant has raised the grounds that the reasons recorded by Disciplinary Authority to dispense away with the departmental enquiry are based on suspicion and surmises. There is no occasion for the Disciplinary Authority to record that, in the present case, departmental enquiry is not reasonably practicable. The applicant contends that once the preliminary enquiry is possible then a departmental enquiry is also possible thus the reasoning recorded by the Disciplinary Authority for dispensing away the departmental enquiry is bad in law. The applicant further states that the order of Appellate Authority is absolutely non-speaking and mechanical in nature and repeats the same illegality as committed by Disciplinary Authority. The Appellate Authority also moves on suspicion and surmises and fails to apply his mind on the specific submissions made by the applicant within the body of statutory appeal and law relied in statutory appeal. He further states that no order for initiating the departmental enquiry was made by the 10 OA No. 2435/2023 Item No. 39/C-II department, thus, it is wrong to say that in the present case, departmental enquiry is not reasonably practicable. The applicant states that the authorities failed to consider that no substantial material has been collected in the preliminary enquiry to come to a conclusion that witness will be discouraged to appear in departmental enquiry.
12. Learned counsel for the applicant is placing reliance on the latest judgment of the Hon‟ble Tribunal qua the same respondent on the use of Article 311 (2) (b)of the Constitution of India i.e. OA No. 2097/2019 in the case of Neeraj Kumar Vs. Delhi Police decided on 01.11.2019, OA No. 2867/2019 in the case of Ins. Jasmohinder Singh decided on 16.10.2020, OA No. 702/2019 in the case of Ins. Dharmender Singh Dangi decided on 07.01.2021, OA No. 1912/2015 titled Kripal Singh Vs. Govt. of NCTD & Ors. decided on 11.03.2021 and OA No. 1114/2015 in the case of Tara Dutt Vs. GNCT of Delhi & Ors. decided on 17.06.2021 and connected OAs No. 1383/2020, 3508/2018, 4021/2016,. 3027/2018, 2777/2019, 3267/2019, 467/2020 and 34/2021 titled Sumit Sharma Vs. Govt. of NCT of Delhi & Ors. decided on 10.02.2022. Hence, the present O.A.
13. The applicant states that in the FIR lodged against him, criminal trial will take place in the court of law. He states that if trial is possible then departmental enquiry is also possible. He 11 OA No. 2435/2023 Item No. 39/C-II states that the Disciplinary Authority has recorded in the disciplinary order that there is no reasonable belief of authority that witness may not come forward to depose against the applicant. The said belief of Disciplinary Authority is based on suspicion and surmises. There is no attempt to initiate a departmental enquiry and nothing has been brought on record, subsequently to the allegation that the applicant has made any attempt to influence the witness and thus with this presumption, the present impugned order is being passed. He states that once the order of Disciplinary Authority is passed on assumption as if the allegations made against the applicant already stand proved that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being bad in law.
14. Counter reply has been filed by the respondents on 07.11.2023 wherein it is mentioned that on 29.12.2021, a team of ACB/CBI, Delhi led by Inspector S. K. Pandey and Inspector Vijay Desai conducted a raid on Babu Lal, HC (Exe.), PIS No. 28950779 (hereinafter called applicant) in the building of Police Station South Rohini, Delhi. The applicant was deployed in Beat No. 2, Avantika Market since 30.07.2021. As per the verbal information given by Inspector S. K. Pandey, the applicant has been trapped while accepting bribe of Rs. 25,000/- in connection with the local complaint filed by one Praveen Yadav against Naveen Rana, a Beldar in Rohini Zone, MCD, Delhi. During the enquiry, it was 12 OA No. 2435/2023 Item No. 39/C-II revealed that one Sh. Parveen Yadav S/o Sh. Raj Narayan Yadav, R/o 61, Krishi Niketan Balbir Singh Marg, A-6, Paschim Vihar, Delhi made a complaint against Sh. Naveen Rana, S/o Sh. Jai Chand, R/o V & PO- Mungeshpur, Delhi on 11.10.2021 and the same was being enquired by the applicant who in term was demanding bribe from Naveen Rana to file the complaint.
15. In report submitted by ACP/Rohini, Delhi, it was revealed that the applicant accepted Rs. 25,000/- from Sh. Naveen Rana, A beldar in Rohini Zone, MCD, Delhi and kept the same in a plastic bag and passes it on to Rahul, S/o Sh. Aman Singh, R/o Jhuggi No. 470, Sector-3, Rohini, Delhi, working as temporary sweeper in Police Station, South Rohini, since last two and a half years. The respondents state that due to indulgence of the applicant in corrupt practices of accepting the bribe money from Sh. Naveen Rana on the pretext to file the complaint made against him by one Sh. Praveen Yadav, the complainant and the CBI authorities trapped the delinquent Head Constable and subsequently, a case vide FIR No. RC-DAI-2021-A-0046 dated 29.12.2021 at PS CBI/ACB, New Delhi u/s 7 PC Act, 1988 has been registered against him by the CBI. The above mentioned Sh. Rahul has been made witness in this case and released by CBI team. Subsequently, the applicant having been involved in the aforesaid criminal FIR and the applicant was placed under suspension w.e.f. 29.12.2021 vide order dated 04.01.2022.
13OA No. 2435/2023 Item No. 39/C-II
16. The respondents state that being a member of disciplined force, the applicant has been indulged into such a shameful act of corrupt practices and violated all norms of ethics and morality. They further state that the above act of the applicant has not only tarnished the image of police department in the society but also rudely shaken the faith of the citizens in the entire police force by lowering the image and goodwill of uniformed organization which is not acceptable from a police officer whose prime duty/responsibility is to safeguard the spirit of the law.
17. The respondents state that the applicant misused his official position and extorted bribe from Sh. Naveen, a Beldar in Rohini Zone, MCD, in lieu of complaint made against him by one Sh. Parveen Yadav, S/o Sh. Raj Narayan Yadav, R/o 61, Krishi Niketan Balbir Singh Marg, A-6 Paschim Vihar, Delhi for personal/wrongful gain. There is every possibility that he may again try to influence/intimidate the witness by misusing his official position.
18. The applicant has filed rejoinder on 03.02.2024 to the reply filed by the respondents and he has reiterated the averments made by him in his pleadings to claim his innocence in this matter. In the rejoinder, it has been stated that no annexure of concurrence obtained from Spl.C.P/L&O, Zone-II vide office noting dated 23.02.2023 is annexed along with the counter 14 OA No. 2435/2023 Item No. 39/C-II affidavit and further, the respondents are to be subjected to strict proof that the concurrence has been obtained in compliance of circular dated 11.09.2007 and 18.04.2018.
19. We have heard learned counsels for the parties and have perused the pleadings available on record. Learned counsel for the applicant has placed reliance on the judgment in the cases i.e. the order passed by the Principal Bench of this Tribunal on 13.12.2023 in OA No.1019/2023 in the case of Dushyant Kumar vs. Govt. of NCT of Delhi & Ors., The judgment dated 19.02.2024 of the Hon'ble High Court of Delhi in W.P.( C) No. 2407/2024 in Govt. of NCT of Delhi and Ors. Vs. Dushyant Kumar; The order passed by the Principal Bench of this Tribunal on 16.04.2024 in OA No.542/2023 in the case of Deepak vs. Govt. of NCT of Delhi& Ors; The judgment dated 22.04.2024 of the Hon‟ble High Court of Delhi in W.P.( C) No. 1258/2023 in Commissioner of Police Delhi Police & Ors. Vs. Manjeet; & judgment dated 20.03.2024 in W.P.( C) No. 4201/2024 in Commissioner of Police & anrs. Vs. Jagmal Singh and also the judgment dated 20.03.2024 of the Apex Court in Petition for Special Leave to appeal (C) No.11681/2024 in case of Commissioner of Police & anr. Vs. Jagmal Singh; the judgment dated 23.04.2024 passed by the Hon'ble High Court of Delhi in W.P.(C) No. 15 OA No. 2435/2023 Item No. 39/C-II 5562/2024, CAV 181/2024, CM Appl. No. 22929/2024 in the case of Commissioner of Police vs. Sant Ram; and the circular dated 13.5.2024 issued by the Delhi Commissioner of Police, Legal Division dated PHQ Delhi are relevant in this case as well.
20. The learned counsel for the respondents pleaded that the respondents have given detailed justification of invocation of the Article 311 (2) (b) of the Constitution of India in their Disciplinary order and Appellate order. They repeatedly stated that further continuation of the applicant in disciplined force like Delhi Police which is responsible for protecting the society and citizens of the country from immoral and disrespectable activities, will rudely shake the faith of the citizens in Delhi Police Force. The applicant has acted highly unbecoming of Police Officer. Therefore, keeping in view the position in the matter, respondents have resorted to invocation of Article 311 (2) (b) of the Constitution of India and dismissed the applicant from the government service.
21. The Disciplinary Authority while issuing punishment order dated 20.01.2022 (Annexure-A/1) has invoked the provisions of Article 311 (2) (b) of the Constitution of India and dismissed the applicant from service. For facility of reference, the relevant portion of the disciplinary order is as follows:- 16 OA No. 2435/2023
Item No. 39/C-II "Subsequently, on having been involved/arrested in criminal case FIR No. RC-DAI-2021-A-0046, dated 29/12/2021 registered at PS CBI/ACB, New Delhi u/e 7 PC Act, 1988 as amended in 2018, the delinquent, HC Babu Lal, No. 2224/RD (PIS No. 28950779) placed under suspension w.e.f. 29/12/2021 (i.e. the date of his arrest) vide order No. 83-120/HAP/RD(P-I), dated 04/01/2022.
And whereas, HC (Exe.) Babu Lal, No. 2224/RD (PIS No. 28950779), being a member of disciplined force has indulged into such a shameful act of corrupt practices and violated all norms of ethics and morality. His above act has not only tarnished the image of police department in the society but also rudely shaken the faith of the citizens in the entire police force. By lowering the image and goodwill of uniformed organization which is not acceptable from a police officer whose prime duty/responsibility is to safeguard the spirit of the law. He has acted in the most reprehensible manner, which is unexpected from the member of the disciplined force.
And whereas, the delinquent, HC Babu Lal, No. 2224/RD (PIS No. 28950779), after having committed this gravest misconduct of involvement in a criminal case vide FIR No. RC-DAI-2021-A-0046, PS CBI/ACB, New Delhi u/s 7 PC Act, 1988 as amended in 2018 registered by CBI, if he is allowed to be continued in police force, it would be detrimental to public interest and further lower the image of the police force in the society.
And whereas, the complainant has been frustrated by the delinquent HC Babu Lal, No. 2224/RD that he got him trapped by the C.B.I. showing the severity of moral turpitude in HC Babu Lal, No. 2224/RD. The indulgence in corrupt activity by HC Babu Lal, No. 2224/RD (PIS No. 28950779) is sheer misconduct which cannot be tolerated and such activities result in distrust and indiscipline in the department as it eroded the faith of common people in the police force and his continuance in force is likely to cause further irreparable loss to the functioning and credibility of Delhi Police. Prima facie, the facts have revealed that the action of HC Babu Lal, No. 2224/RD amounts to grave misconduct and is highly unbecoming of a police official.17 OA No. 2435/2023
Item No. 39/C-II And whereas, the delinquent, HC Babu Lal, No. 2224/RD has exhibited grave misconduct as he is involved in criminal case vide FIR No. RC-DAI-2021-A- 0046; dated 29/12/2021 registered at PS CBI/ACB, New Delhi u/s 7 PC Act, 1988 as amended in 2018 and tantamount to gross moral turpitude. HC Babu Lal, No. 2224/RD misused his official position and extorted Sh. Naveen, despite being a Beldar in Rohini Zone, MCD, in lieu of file his complaint made against him by one Sh. Parveen Yadav S/o Sh. for personal/wrongful gain. There is every possibility that he may again impede the Por Dearayan ron R/ gai. There is every possiblith Marg, A-6 Paschim Vihar, Delhi enquiry process and try to influence/intimidate the witness by misusing his official And whereas, in view of the above, it is expedient in public interest that the delinquent, HC Babu Lal, No. 2224/RD (PIS No. 28950779) be dismissed from public service so as to maintain the credibility of Delhi Police. He, being a member of disciplined force was supposed to protect life and stop crime but he got himself involved/arrested in corruption case. The delinquent HC, being police official was expected to do his duties to uphold the law, but far from performing his duty, he turned out to be wolf in sheep's clothing. Despite being educated person and belonging to uniformed force, the delinquent HC demanded/accepted the illegal gratification. The uniform which the delinquent HC adorned should have made him more responsible towards the society but he rather breached the trust, misused his authority/power and conspired to satisfy his greed.
Assessing totality of the facts and circumstances of the case as mentioned above, I am of the firm view that the act of the accused Head Constable attracts the provisions of Article 311(2)(b) of the Constitution of India and makes him completely unfit for police service. The misconduct on the part of HC (Exe.) Babu Lal, No. 2274/RD (PIS No. 28950779) is of such a grave nature that his further retention in the police service would be disastrous for the force and any leniency to him, will send a wrong message to the other police officials who are performing their duties with honesty and sincerity.
Hence, considering the above facts in totality, further retention of HC(Exe.) Babu Lal, No. 2224/RD (PIS No. 18 OA No. 2435/2023 Item No. 39/C-II 28950779) in police force is undesirable and absolutely unwarranted and any leniency to him, will send a wrong message to the other police officials who are performing their duties with honesty and sincerity. He was duty bound to serve the department in accordance with the settled principle of integrity. The police officers are public servants entrusted with the responsibility of enforcing law and protecting members of society. Involvement of police personnel in corruption cases is not only undesirable but also amounts to grave misconduct and purely an act of unbecoming of a police officer and will erode the faith of common people in the department as well. A Corruption by public servant has to be dealt with heavy hand lest it destroy the trust of society in the law-enforcing agency. Therefore, keeping in view of all facts and circumstances of the case and the gravity of his misconduct, I, Pranav Tayal, IPS, Deputy Commissioner of Police, Rohini District, Delhi, being competent authority, hereby dismiss HC(Exe.) Babu Lal, No. 2224/RD (PIS No. 28950779) from Delhi Police force under Article 311(2)(b) of the Constitution of India with immediate effect. His suspension period from 29/12/2021 to the date of issue of this order is also decided as period 'Nöt Spent on Duty' for all intents and purposes."
22. The applicant has also filed an appeal against the punishment order which was decided by the Appellate Authority on 15.07.2023 (Annexure-A/2). For facility of reference, it would be appropriate to quote the relevant portion of the appellate order, the same reads as under:-
"Further, the Disciplinary Authority observed that despite being a member of disciplined force, the appellant indulged in such a shameful act of corrupt practice and violated all norms of ethics and morality. His above act not only tarnished the image of police department in the society but also rudely shook the faith of the citizens in the police force. By lowering the image and goodwill of uniformed organization which was not acceptable from a police officer whose prime duty/responsibility was to safeguard the spirit of the 19 OA No. 2435/2023 Item No. 39/C-II law, he acted in the most reprehensible manner, which was unexpected from the member of the disciplined force. After having committed this gravest misconduct of involvement in a criminal case vide FIR No. RC- DAI-2021-A-0046, PS CBI/ACB, New Delhi u/s 7 PC Act, 1988 as amended in 2018 registered by CBI, if he was allowed to continue in police force, it would be detrimental to public interest and would further lower the image of the police force in the society.
The indulgence in corrupt activity by HC Babu Lal, No. 2224/RD was sheer misconduct which could not be tolerated and such activities result in distrust and indiscipline in the department as it eroded the faith of common people in the police force and his continuance in force was likely to cause further irreparable loss to the functioning and credibility of Delhi Police. Prima facie, the facts revealed that the action of the appellant HC Babu Lal, No. 2224/RD amounted to grave misconduct and was highly unbecoming of a police official.
The appellant exhibited grave misconduct as he was involved in criminal case vide FIR No. RC-DAI-2021- A-0046, dated 29.12.2021 registered at PS ACB/CBI, New Delhi u/s 7 PC Act, 1988 as amended in 2018, which tantamounted to gross moral turpitude. The appellant misused his official position and extorted Sh. Naveen, a Beldar in Rohini Zone, MCD, in lieu of filing his complaint made against him by Sh. Parveen Yadav s/o Sh. Raj Narayan Yadav R/o 61, Krishi Niketan Balbir Singh Marg, A-6 Paschim Vihar, Delhi for personal/wrongful gain. There was every possibility that he might again impede the enquiry process and try to influence/intimidate the witness by misusing his official position. In view of the above, it was expedient in public interest that the appellant HC Babu Lal, No. 2224/RD be dismissed from police service so as to maintain the credibility of Delhi Police.
Assessing totality of the facts and circumstance of the case as mentioned above, the act of the accused HC Babu Lal, No. 2224/RD attracted the provisions of Article 311 (2)(b) of the Constitution of India and made him completely unfit for police service. The misconduct on the part of the appellant was of such a grave nature that his further retention in the police service would have been disastrous for the force and any leniency 20 OA No. 2435/2023 Item No. 39/C-II shown to him, would have sent a wrong message to the other police officials who were performing their duties with honesty and sincerity.
Therefore, keeping in view of all facts and circumstances of the case and the gravity of his misconduct, the Disciplinary Authority after obtaining prior approval of the Competent Authority awarded the punishment of "Dismissal" from service to the appellant under Article 311 (2) (b) of the Constitution of India vide order under appealed against.
The appellant Ex. HC (Exe.) Babu Lal. No. 2224/RD filed the instant appeal against the punishment awarded to him by the Disciplinary Authority.
I have gone through the facts and circumstances of the case as per record available in the concerned file. The main pleas put-forth by the appellant are that he was falsely implicated, there is no evidence suggesting his involvement in the alleged incident of corruption but the complainant Mr. Naveen Rana, who had deceived one handicapped person for a huge amount on the pretext of arranging a handicapped booth of MCD for him, stage managed a conspiracy in collusion with the CBI officials and got him trapped in false case to put pressure on Police and to save his skin, though the enquiry into the complaint was a part of his bonafide duty. There was no recovery of the alleged bribe money from the appellant. The recovery of the alleged bribe money was claimed to have been made from third person namely Rahul, who has been cited as witness in this case by the CBI Officials by threatening him for dire consequences and joining him in the conspiracy hatched at the instance of Mr. Naveen Rana. He was also heard in OR by the undersigned for the sake of nature justice. The appellant Ex. HC Babu Lal, No. 2224/RD appeared. in person before the appellate authority on 05.07.2023 and he repeated the same contents which were mentioned in his written appeal.
It has been revealed that the appellant Ex. HC (Babu Lal), No. 2224/RD was trapped while accepting bribe of Rs. 25,000/- in connection with the local complaint filed by one Parveen Yadav against Naveen Rana, a Beldar in Rohini Zone, MCD, Delhi. The appellant accepted Rs. 25000/ - From Sh. Naveen Rana and kept 21 OA No. 2435/2023 Item No. 39/C-II the same in a plastic bag and passed it on to Sh. Rahul S/o Aman Singh /o Jhuggi No. 470, Sector-3, Rohini, Delhi working as temporary sweeper in Police Station since last 2 ½ years. Subsequently, a case FIR No. RC-
DAI-2021-A-0046, dated 29.12.2021 PS ACB/CBI, New Delhi u/s 7 PC Act, 1988 as amended in 2018 was registered against the appellant by the CBI. Sh. Rahul was made witness in this case and released by CBI Team. This episode clearly proves the misconduct as well as the appellant's involvement in criminal and corrupt activities, which is highly unbecoming of a Police Official. The plea taken by the appellant that he was falsely implicated in the case is not acceptable and far from truth. The other pleas taken by the appellant in his appeal have also no weight and merit. The Court's Ruling cited by the appellant will not absolve him of his misconduct as every case is decided on its own circumstances and merits. Moreover, this type of misconduct has put the entire police force to shame and such misconduct cannot be tolerated in any disciplined organization like police whose basic duty is to protect the life of the citizen in the society. It is expected from a police official to protect the public and not to break the law bui the appeliant had induiged himself in unlawful and corrupt activity. As such the appellant does not deserve any leniency at this stage. After taking into consideration the gravity of the misconduct/ offence committed by the appellant, the Disciplinary Authority has rightly taken action competent authority by invoking Article 311 (2) (b) after obtaining necessary approval of the Thus, after considering the overall facts and circumstances, I, Vivek Kishore, Joint Commissioner of Police, Northern Range agree with the observation of Disciplinary Authority made in the punishment order and find no merit in the appeal filed by the Appellant. Hence, the appeal filed by the appellant Ex. HC (Exe.) Babu Lal, No. 2224/RD is hereby rejected.
The appellant to be informed accordingly."
23. The Disciplinary Authority and the Appellate Authority have come to the decision on the presumption that alleged offence has been committed by the applicant so there is no need to conduct 22 OA No. 2435/2023 Item No. 39/C-II the departmental enquiry. These reasons cannot stand to the scrutiny of law for invoking the power under provision of Article 311 (2) (b) of the Constitution of India. It needs to be tested whether the reasons recorded in the impugned order for imposition of Article 311 (2) (b) of the Constitution of India are justifiable or the provisions of above mentioned Article of the Constitution of India are invoked only to avoid the disciplinary enquiry and get rid of the applicant in convenient manner. The Disciplinary Authority did not mention the reasonable grounds even when Preliminary Enquiry was ordered against the applicant. It could be seen from the appellate order that Appellate Authority had rejected the appeal in a mechanical manner without addressing specific submissions of the applicant and merely on presumptions that the allegation against the applicant is presumed to be proved and the witness might not have come forward to depose against the applicant. The Appellate Authority is simply assuming that the allegations against the applicant stands proved and this justification is good enough to invoke the Article 311 (2) (b) of the Constitution of India and dismiss the applicant. The Appellate Authority did not explore in the present case that majority of the witnesses are official witnesses. If preliminary enquiry is possible, then the departmental enquiry is also possible. Similarly, if the trial is possible then the departmental enquiry is also possible. However, both disciplinary 23 OA No. 2435/2023 Item No. 39/C-II authority and appellate authority did not make any efforts to conduct departmental enquiry and resorted to invocation of provision of Article 311 (2) (b) of the Constitution of India to impose the penalty of dismissal. This could be construed as strong bias of respondents against the applicant and their disdain approach to uphold Rule of Law. The respondents being Senior Police Officer holding high position are required to run the administrative decision making lawfully. A serious course correction is needed. Leaving this argument here for pondering of competent authority, we move forward in this matter.
24. In the recent matter decided on 14.08.2024 by the Hon‟ble High Court of Delhi in W.P. (C) No. 11276/2024 and CM Appl. 46705/2024. CM Appl. 46706/2024 in the matter of The Commissioner of Police & Ors. vs OM Prakash & anr., wherein the Commissioner of Police has been directed by the High Court of Delhi to look into the matters where Article 311 (2) (b) of the Constitution of India has been invoked by the police authorities and police personnel have been removed from the service. Only on presumptions and assumptions without any material, coming to the conclusion or that it was not reasonably practicable to conduct regular departmental enquiry as witness might not come forward to decide the case and Appellate 24 OA No. 2435/2023 Item No. 39/C-II Authority depose against a police officer respondents have rejected the appeal which could be construed as bad in law.
25. It is apparent that the Disciplinary Authority has assumed as if the allegations made in criminal case (FIR) already stand proved and thus with this presumptions, the present impugned order has been passed. Once the order of Disciplinary Authority is based on assumption as if the allegations made against the applicant already stand proved that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being bad in law as being based on assumptions, suspicion and surmises. Further, the Disciplinary Authority is assuming that the offence has been committed by the applicant. Under this assumption, the present order of Disciplinary Authority is being passed invoking Article 311 (2) (b) of the Constitution of India. There are circulars, judgment of judicial forums which clearly states that if the allegations are grave then more opportunity should be provided to the delinquent official to put forward his defense. The applicant has not been subjected to a departmental enquiry and merely on assumptions the disciplinary authority adopting a short cut and has invoked the power under Article 311 (2) (b) of the Constitution of India. The reasoning recorded by Disciplinary Authority is based on suspicion and surmises. There is no occasion for the disciplinary authority to 25 OA No. 2435/2023 Item No. 39/C-II record that in the present case departmental enquiry is not reasonably practicable. The usage of expression like as there is a "reasonable belief" itself shows that the reasoning is based on suspicion and surmises. The reasoning recorded by Disciplinary Authority for dispensing away the departmental enquiry has been dealt by this Tribunal in various OAs qua the same department i.e. Delhi Police. It is observed that most of witnesses are official witness in criminal case; once the criminal trial and preliminary enquiry are possible, then departmental enquiry is also possible. There is no material in the hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in departmental enquiry. There is no clear and robust evidence in front of respondent authority that the applicant has made any attempt to influence any witness thus making the order of disciplinary authority as bad in law.
26. The applicant is Head Constable in Delhi Police. It is a lower rank among the subordinate officer, thus, it is absolutely wrong to record that applicant is in any position to influence or threaten any witness when some of the witnesses are officials of CBI. There is no admissible material or evidence before the authorities to conclude that the witness is threatened or intimidating or will not depose in departmental enquiry and thus reason recorded for dispensing the Departmental Enquiry under 26 OA No. 2435/2023 Item No. 39/C-II Article 311 (2) (b) of the Constitution of India are not tenable. As stated above, the applicant is only Head Constable in Delhi Police, if as per the allegations, the case of the department is so good on merit then come what may the applicant should be given a chance to put forward his defense in disciplinary enquiry. The preliminary enquiry was conducted by the respondents in order to construe that the allegations are true against the applicant that too at the back of the applicant. This fact clearly shows that Article 311 (2) (b) of the Constitution of India has been adopted as a convenient method in the present case. There is no material in hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in Departmental Enquiry. The impugned order is passed with the presumption that the allegations are proved against the applicant. In such a situation, Article 311 (2) (b) of the Constitution of India cannot be invoked on the same as it amounts to abuse of process of law.
27. In the public interest and even as per Rule of law, it was incumbent upon the authorities not to put to use Article 311 (2)
(b) of the Constitution of India in present case and to give opportunity to the applicant to put forward his defence in the departmental enquiry. The gravity of misconduct alleged in the present case cannot be a ground to invoke the power under Article 27 OA No. 2435/2023 Item No. 39/C-II 311 (2) (b) of the Constitution of India. The applicant as per rule of law must be given opportunity to put forward his defence in regular Departmental Enquiry until and unless the same is not reasonably practical. The reasons recorded in present impugned order to dispensing with the Departmental Enquiry are just not tenable in the eyes of law. Article 311 (2) (b) of the Constitution of India has been used as a short cut method. Admittedly in the present case a Preliminary Enquiry was conducted through ACP/Rohini, Delhi, the order of dismissal from service was passed by Disciplinary Authority, if preliminary enquiry is possible then disciplinary enquiry is also possible. The Hon‟ble Tribunal in various judgments has allowed many petitions in respect of Article 311 (2) (b) of the Constitution of India, the same ground that if PE is possible then DE is also possible.
28. The reasoning to dispense away with the departmental enquiry cannot be based on suspicion and surmises and probability. Once the Disciplinary Authority records that there is a probability that complainant and witness are put on constant fear and threat for dispensing away with departmental enquiry the onus to establish that such situation prevails is based on the efforts made by them to conduct departmental enquiry and imminent failure to hold the said departmental enquiry due to such actions of the applicant. Therefore, while taking no action to 28 OA No. 2435/2023 Item No. 39/C-II conduct disciplinary enquiry and giving threat to witnesses etc., are the reasoning based on mere probability, suspicion and surmises. There was no material placed before the authority to come on to this conclusion and to invoke Article 311 (2) (b) of the Constitution of India.
29. The power under Article 311 (2) (b) of the Constitution of India has been invoked subsequent to a preliminary enquiry. The object of conducting the preliminary enquiry for invoking the power under Article 311 (2) (b) of the Constitution of India is being laid down in circular dated 11.09.2007. The reason for dispensing the departmental enquiry are on suspicion and surmises and no such material even through preliminary enquiry is being placed before any of the authorities on the basis of which the conclusion would be drawn whether the departmental enquiry is not practicable or even remotely supports the vague reasons recorded to dispense with the departmental enquiry. The cases in which preliminary enquiry is being conducted but in absolute violation of circular dated 11.09.2007 and straightaway the Disciplinary Authority passed an order under Article 311 (2) (b) of the Constitution of India is in violation of circular dated 11.9.2007 which was framed by department in pursuance of judgment of Hon'ble Tribunal in case of Suresh Kumar Vs. GNCTD in O.A. No. 2500/2006.
29OA No. 2435/2023 Item No. 39/C-II
30. The Appellate Authority records that Preliminary Enquiry into the matter was conducted by ACP/Rohini, Delhi. The facts and circumstance of the case were such that it was not reasonably practicable to conduct a regular departmental enquiry, cannot be a ground to invoke the Article 311 (2) (b) of the Constitution of India. The copy of preliminary enquiry report is not supplied to the applicant nor the applicant has been part of the preliminary enquiry but on the contrary the law is that Preliminary Enquiry is possible then even the departmental enquiry is also possible and in such cases the Article 311 (2) (b) of the Constitution of India is not invoked. The applicant is placing its reliance on the judgment of Hon'ble Tribunal decided on 23.04.2018 whereby the Hon'ble Tribunal after relying the judgment of Tarsem Singh, Hon'ble Apex Court whereby the Hon'ble Tribunal clearly stating "29. In Tarsem Singh's case Apex Court while allowing the appeals categorically observed " if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the applicant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice'. Accordingly, in the facts of the present OAs, we hold the issue in favour of the applicant. 30. In the circumstances and for the aforesaid reasons, all the OAs are allowed and the impugned orders are set aside with all consequential benefits. Since the applicant was under suspension as on the date of passing of the impugned orders, they would thus remain under suspension and the respondents shall take an appropriate decision regarding revocation or continuation of the same. The 30 OA No. 2435/2023 Item No. 39/C-II respondents shall proceed against the applicant departmentally, as per rules and the treatment of suspension period shall be dependent on the same. No costs. "
31. In the present case, when the P.E. is possible then even a Departmental Enquiry is also possible and thus the reasoning recorded by the Disciplinary Authority for dispensing with the D.E. is bad in law. The disciplinary authority did not even make the slightest possible effort to initiate a departmental inquiry as only after initiating a departmental inquiry a disciplinary authority can come to the conclusion that departmental inquiry is not reasonably practicable. Without making any efforts and only acting on the presumption and surmises, the disciplinary authority on its own, came to the conclusion that departmental inquiry is not practicable. No order for initiating the Departmental Enquiry was made by the department thus it is wrong to say that the present Departmental Enquiry is not reasonably practicable.
32. The disciplinary authority is not able to apply its mind that the power under Article 311 (2) (b) of the Constitution of India has to be exercised with a pre-condition. The pre-condition is that if a disciplinary enquiry is not reasonably practical and to arrive at such conclusions, the Disciplinary Authority has to record reasons. The present reasoning is based on the assumption that the applicant has committed the alleged crime and thus 31 OA No. 2435/2023 Item No. 39/C-II departmental enquiry is not required. The Disciplinary Authority on the presumption that the act committed by the applicant is so grave that it is practically not feasible to conduct enquiry, hence, came to conclusion that there is no need to conduct the departmental enquiry the scrutiny of law for invoking the power under Article 311 (2) (b) of the Constitution of India. The law on the subject is that graver are the allegation then more opportunity should be provided to the delinquent official to submit the defense. The gravity of the charge will never be an imminent factor in deciding whether power under Art 311 (2) (b) of the Constitution of India is to be invoked or not.
33. The present case is a case of absolute misuse of power vested in the Disciplinary Authority under Article 311 (2) (b) of Constitution of India and hence bad in law. The reasons recorded by the authorities to dispense away with the departmental enquiry do not withstand the scrutiny of law. The so called reasons recorded by the authorities in the impugned order to invoke the power under the Article 311 (2) (b) of the Constitution of India as being mentioned are only to avoid the departmental enquiry. It is a well settled law that without conducting any departmental enquiry, if the finding of guilt against the applicant has been arrived on to, the same act is enough to vitiate the order of the disciplinary authority. There is a finding of guilt against the 32 OA No. 2435/2023 Item No. 39/C-II applicant without conducting the Departmental Enquiry and further not even giving the opportunity to the applicant to put forward his defense and the same is enough to vitiate the order of the disciplinary authority. The authorities failed to consider that no substantial material has been collected to come on to a conclusion that witness will be discouraged to appear in a D.E. Thus the order of the authorities establishes non-application of mind, bias, arbitrariness and to adopt a short cut method of dismissing the applicant by invoking the power under Article 311 (2) (b) of the Constitution of India only keeping in mind the gravity of the allegations.
34. The applicant preferred an appeal dated 09.02.2022 against the punishment order of dismissal dated 20.01.2022 (Annexure-
A/1). The Appellate Authority rejected the appeal on 15.07.2023 (Annexure-A/2) by an absolutely non-speaking and mechanical order. The Appellate Authority failed to apply its mind that the law quoted by the applicant in the statutory appeal clearly establishes that the reasons recorded for dispensing with the DE are not legally tenable in the eyes of law. The present case is not a case for invoking the power under Article 311 (2) (b) of the Constitution of India. The Hon'ble Apex court has laid down clearly that the gravity of the charge will not be a tilting factor in deciding whether a Departmental Enquiry is a reasonably 33 OA No. 2435/2023 Item No. 39/C-II practicable or not. The graver the charge the opportunity to defend him should be more.
35. The applicant has placed reliance on the order dated 13.12.2023 passed by this Tribunal in the case of Dushyant Kumar Vs. Govt. of NCT of Delhi & Ors. The relevant portion of the same is reproduced below:-
"8. A catena of cases of the Orders/Judgments of the Hon'ble Supreme Court, Hon'ble High Court of Delhi and of this Tribunal on the issue as involved in the present case were also considered by the Division Bench (consisting one of us) while deciding the case of Ct. Sumit Sharma (supra).
9. Having regard to the above, we have carefully perused the impugned order(s), we find that nothing has been recorded in the impugned order(s) or shown to us that the applicant had ever threatened or harassed any of the witness (es) and/or the prospective witness (es). From the impugned orders, it is also evident that neither any effort was made by them to conduct an enquiry, nor there is any evidence that despite their best efforts, the respondents would not have been able to produce the witness (es) to lead evidence against the applicant. Further 18 OA No.1019/2023 nothing is brought on record that witness (es) has/have been threatened by the applicant or they were too scared of the applicant to come forward in the regular enquiry proceedings. It is also found that the disciplinary authority while passing the impugned order has very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant, as no reason at all has been recorded in this regard and the applicant is guilty of committing grave misconduct and was involved in the aforesaid offences.
10. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circular dated 11.9.2007. The 34 OA No. 2435/2023 Item No. 39/C-II reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, including in one referred to hereinabove.
11. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA is squarely covered by the common 19 OA No.1019/2023 Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and hence, the same is partly allowed with the following directions:- (i) Orders dated 03.10.2022 (Annexure A/1) and dated 10.3.2023 (Annexure A/2) passed by the disciplinary and appellate authorities respectively are set aside; (ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject; (iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and (iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
12. However, in the facts and circumstances, there shall be no order as to costs."
36. The order of this Tribunal was challenged in the Hon‟ble High Court of Delhi in W.P. (C) 2407/2024 in the matter of Govt. of Delhi and Ors. Vs. Dushyant Kumar, The Honble High of Delhi dismissed the Writ Petition being meritless. The relevant portion of the said judgment is as under:-
"14. In the light of the aforesaid, we have no hesitation in concurring with the Tribunal that the petitioners' decision to dispense with the enquiry was wholly unsustainable. The petitioners appear to have proceeded on an erroneous presumption that merely because a criminal case has been registered against the respondent, he was to be treated as guilty of the misconduct. No doubt, the respondent is a police officer, whose misconduct can never be condoned, but 35 OA No. 2435/2023 Item No. 39/C-II this would not imply that the principles of natural justice should be given a complete go by. As noted hereinabove, the petitioners have not given any valid reason for dispensing with the enquiry except for repeatedly stating that the respondent is guilty of serious misconduct. This course of action, in our view, is completely impermissible.
15. Before we conclude, we may also consider the decision in Ajit Kumar Nag (supra) relied upon by the petitioners. We, however, find that instead of forwarding the case of the petitioners, the said decision supports the case of the respondent. It would, therefore, be apposite to refer to paragraph no.44 of the said decision, which reads as under:-
"44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre- decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Even before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge [(1723) 1 Str 557 : 93 ER 698] .) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated:" „To do a great right‟ after all, it is permissible sometimes „to do a little wrong‟." [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India [(1990) 1 SCC 613] (Bhopal Gas Disaster), SCC p. 705, para 124.] While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases 36 OA No. 2435/2023 Item No. 39/C-II should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "precedential"."
16. We are, therefore, of the considered view that the petitioners have not only ignored the decisions of the Apex Court laying down the parameters for applicability of Article 311(2)(b) of Constitution of India, but have also ignored their own circulars dated 21.12.1993 and 11.09.2007. We, therefore, find no infirmity with the impugned order.
17. The writ petition being meritless is, accordingly, dismissed with all pending applications."
37. In the order dated 16.04.2024 passed in OA Nos. 542/2023 &591/2023 in the case of Deepak vs. Govt. of NCT of Delhi & Ors by this Tribunal. The Tribunal held as under:-
"20. In the present case, as apparent from the reasons recorded by the respondents in the impugned order, it is apparent that the respondents have arrived at the conclusion for dispensing with the regular inquiry due to the involvement of the applicants in a grave and serious case. The respondents have jumped to the conclusion that on account of serious allegations, the applicants have become ineligible to be continued in police force. There is no finding that the 24 applicants and/or anybody on their behalf have at any point of time even attempted to influence or coerce any of the witness. Even there is no finding that the applicants in the captioned OAs who are very junior officers under the respondents were in a position to influence the witnesses who are generally senior officials working in the Government of India and particularly in CBI. It is also nowhere recorded by the respondents as to how if not only preliminary inquiry was found possible, but also the criminal trial is possible in the said case FIR with the support of more than nineteen witnesses and at no point of time the prosecution has even felt that those witnesses are not likely to turn up and regular inquiry was not possible in the matter. It is undisputed that regular inquiry is a Rule whereas dispensing with the same is only an exception. Though the respondents 37 OA No. 2435/2023 Item No. 39/C-II have recorded that if regular inquiry is initiated, the same is liable to take a long time, however, no reason has been given for the same and it is apparent that such reasoning and finding is based on surmises and conjectures.
21. In view of the aforesaid, we find that the impugned orders are not sustainable in the eyes of law. Accordingly, the OAs are allowed with the following order(s) :- (i) impugned orders dated 10.08.2022 and 25.01.2023 are set aside. The applicants shall be reinstated in service forthwith. (ii) the applicants shall be entitled for all consequential benefits in accordance with relevant rules and instructions on the subject. (iii) the aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of a copy of this order. (iv) the respondents shall be at liberty to initiate disciplinary proceedings against the applicants if they are so advised, of course in accordance with rules and instructions on the subject.
22. However, in the facts and circumstances of the case, there shall be no order as to costs."
38. In Writ Petition (C) No. 1258/2023 & CM App. No.4759/2023 in the case of Commissioner of Police Delhi Police & Ors. Vs. Manjeet; The Hon‟ble High Court of Delhi vide its judgement dated 22.04.2024 has held as under:-
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was that due to seriousness of the offence alleged to have been committed by him it would not be reasonably practicable to conduct a regular departmental enquiry. It also emerges that on the basis of the allegations levelled against the respondent in the FIR coupled with the findings of the preliminary enquiry, the petitioners presumed that the respondent was guilty of a serious offence and therefore deserve to be dismissed at the earliest. This in our considered view, as has been rightly held by the 38 OA No. 2435/2023 Item No. 39/C-II learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. The petitioners have sought to dispense with the enquiry in such a casual manner and that too only on the basis of a perceived notion that the respondent being a police personnel, an enquiry against him was likely to be difficult on account of his influence. This course of action is clearly violative of Article 311(2)
(b) of the Constitution of India.
10. We have also considered the decision in Dushyant Kumar (Supra) and find that in the said case, this Court had rejected a similar challenge by the petitioners to the Tribunal's quashing of a dismissal order passed after dispensing with the enquiry. In fact, this Court after considering the circulars dated 21.12.1993 and 11.09.2007 issued by the petitioners themselves, observed that despite there being a requirement to record cogent reasons to dispense with the enquiry, the petitioners were passing cryptic orders dispensing with the enquiry in the most mechanical manner.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, with an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry. Furthermore, it is not as if the respondent has been let off without any departmental action being taken against him, as the learned Tribunal has already granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all applications.
13. Before we conclude, we are constrained to observe that in a large number of petitions filed by the 39 OA No. 2435/2023 Item No. 39/C-II Commissioner of Police which are coming up before this Court, we are finding termination orders are being passed by the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner, Delhi Police to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons."
39. In other Writ Petition (C) No.4201/2024 on 20.03.2024 in case of Commissioner of Police and anr. Vs. Jagmal Singh. The Hon‟ble High Court of Delhi has held as under:-
"10. From a perusal of the aforesaid, we find that the petitioners have proceeded to dispense with the enquiry against the respondent only because of the grave nature of allegations levelled against him and have simply observed that since the respondent had lowered the image of the police department and goodwill of a uniformed organisation, an exemplary punishment of dismissal ought to be imposed upon him so as to send a clear message to undesirable persons and to prevent reoccurrence of such crimes. In the light of the aforesaid, we find absolutely no reason to differ with the conclusion arrived at by the learned Tribunal that the dismissal order passed by the petitioners did not contain any justifiable reason whatsoever for dispensing with the enquiry. What clearly emerges is that the petitioners have proceeded on the premise that such police officers, who are charged with serious misconduct, should be immediately dismissed from service. This approach, in our view to dispense with an enquiry, would not meet the parameters laid down under Article 311(2) (b) of the Constitution of India.
11. At the cost of repetition, we may reiterate that merely because the respondent was a police personnel, would not entitle the petitioners to give a complete go- bye to the requirement of holding a departmental enquiry against him without recording any justifiable reasons as to why departmental enquiry could not be held against him.40 OA No. 2435/2023
Item No. 39/C-II
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition, being meritless, is along with accompanying application, dismissed."
40. In the Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, The Hon‟ble Apex Court vide its judgment on 10.07.2024 has dismissed the said SLP and the judgment of Hon‟ble Court of Delhi attained finality.
41. In another matter, the Hon‟ble High Court of Delhi in W.P. (C) No. 5562/2024, CAV 181 /2024 CM Appl. 22929/2024 vide its judgment dated 23.04.2024 in the case of Commissioner of Police and ors. Vs. Sant Ram, the Hon‟ble High Court of Delhi in paras 9 to 12 has held as under:-
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was their presumption that the respondent would threaten or intimidate the complainant and other witnesses. The petitioners were further of the view that a prolonged enquiry would cause more trauma to the complainant. It is also evident from the dismissal order that the petitioners had, on the basis of the evidence led in the preliminary enquiry, already made up their mind that the respondent was guilty of serious misconduct and had lowered the image of the police force in the eyes of the public.
10. In our considered view, even though the charges against the respondent are very serious and the interest of the complainant deserves to be protected, it does not imply that the principles of natural justice as also the provisions of section 11 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 should be given a 41 OA No. 2435/2023 Item No. 39/C-II complete go by on the basis of mere presumptions. Only because the respondent is a police personnel, would in our view, not be a ground either to presume that the witnesses will not come forward to depose against him in a regular enquiry or to hold him guilty without conducting the statutorily prescribed departmental enquiry and that too in a matter like the present where the complainant and the witnesses are also police personnel. In fact, what emerges is that on the basis of the report of the preliminary enquiry itself, the petitioners presumed that the respondent was guilty of serious misconduct and therefore deserved to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. This course of action, in our considered opinion, was clearly violative of Article 311(2)(b) of the Constitution of India.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, dispense with the requirement of an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry and had also been admitted by him. We therefore have no hesitation in agreeing with the learned Tribunal that the petitioners have dispensed with the enquiry only on the basis of a perceived notion that the respondent being a police personnel, would threaten the witnesses and holding of an enquiry would cause trauma to the complainant. Furthermore, we find that it is not as if the respondent has been let off without any departmental action being taken against him. As is evident from the impugned order, the learned Tribunal, while setting aside the dismissal order, has granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition 42 OA No. 2435/2023 Item No. 39/C-II being meritless is dismissed along with all accompanying applications.
42. In pursuance to the order of this Tribunal in OA No. 14/2018 titled as Sant Ram vs. Commissioner of Police and the judgment of the Hon'ble High Court of Delhi in W.P. (C) 5562/2024, CAV 181/2024 CM Appl. No.22929/2024, the respondents reinstated the services of the applicant Shri Sant Ram in that case. The order dated 26.07.2024 is reproduced as under:-
"In pursuance of judgment dated 06.02.2024 passed by the Principal Bench of Hon'ble Mr. R.N. Singh, Member (J) & Hon'ble Mr. Sanjeeva Kumar, Member (A), Central Administrative Tribunal, New Delhi in 0.A. No.14/2018 titled Sant Ram Vs. Commissioner of Police, Delhi & Ors. and judgment dated 23.04.2024 passed by the Hon'ble Ms. Justice Rekha Palli & Hon'ble Mr. Justice Saurabh Banerjee, High Court Delhi in W.P.(C) No.5562/2024, CAV 181/2024, CM Appl.22929/2024 -
Stay, CM Appl. 22930/2024 - Ex./LLOD titled Commissioner of Police & Ors. Vs. Sant Ram as well as opinion of Ms. Aishwarya Bhati, Ld. Addl. Solicitor General of India that "this is not a fit case for filing of SLP", the order of the disciplinary authority passed vide No.1833-1900/HAP/PTC (P-II) dated 01.08.2017 vide which Const. (Exe.) Sant Ram, No.324PTC (PIS No.28060573) was dismissed from the Delhi Police force under Article311(2(b) of Constitution of India deciding his suspension period as period not spent on duty and the order passed by the Appellate Authority vide No.106-66/SO/Jt. C.P/Trg, dated 03.11.2017 rejecting his appeal, are set aside. Accordingly, Const. (Exe.) Sant Ram, No. 324/PTC (PIS No.28060573) is hereby re- instated in service from dismissal with immediate effect without prejudice to the further departmental action to be taken against him in accordance with the law. 43 OA No. 2435/2023 Item No. 39/C-II He is deemed to be under suspension from the date of his dismissal as he had already been placed under suspension vide D.D.No.29-A/PTC/JK dated 22.07.2017 and formal issued vide order No.1738-70/HAP/PTC (DA-II) dated 26.07.2017. His dismissal/suspension period will be decided later on.
Let Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) be informed accordingly.
43. In other judgment of the Hon‟ble High Court of Delhi in Writ Petition (C) No. 1258/2023 & CM Appl. No. 4759/2023 in case of Commissioner of Police, Delhi vs. Manjeet, the following circular was issued by the Office of Commissioner of Police as under:-
"No. 174/C/HC/24 5110-60 DA-III/Court Cell/PHQ dated 13.05.2024 To The Deputy Commissioner of Police, All District including Units, New Delhi.
Sub: W.P. (C) No. 1258/2023 & CM Appl. No. 4759/2023 in the matter of Commissioner of Police, Delhi vs. Manjeet.
Memo Enclosed please find here with a copy of letter No. 10264/W/DHC/ Writs/D-9/2023 dated 26.04.2024 received from the Registrar General, Delhi High Court alongwith copy of the order dated 22.04.2024 wherein the Hon'ble has observed that " in large number of petitions filed by the Commissioner of Police which are coming up before the this Court, we are finding termination orders are being passed b y the petitioners 44 OA No. 2435/2023 Item No. 39/C-II by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner of Police, Delhi to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons.
It is, therefore, requested that the aforementioned directions of the Hon'ble High Court of Delhi shall be taken into consideration before passing termination orders by dispensing with the departmental enquiries in future.
This issues with the approval of Commissioner of Police, Delhi.
(Hareesh H.P) Deputy Commissioner of Police Legal Division/ PHQ, Delhi"
Relying upon the circular issued on 11.09.2002, a similar order was passed by the respondents in the OA No. 1088/2021 as under:-
"The respondents, after considering the provisions of Article 311(2)(b) of the Constitution of India and the judgment of the Hon'ble Apex Court in the case of Tulsiram Patel (supra) and the Order(s)/Judgment(s) passed by this Tribunal have issued another circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not practicable to hold an inquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and the disciplinary authority has no option but to 45 OA No. 2435/2023 Item No. 39/C-II resort to Article 311(2)(b) of the Constitution of India. The said circular dated 11.9.2007 reads as under:-
"CIRCULAR No. /2007 An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases and only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry.
Though some cases are still pending in the Hon'ble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2)
(b) on assumptions and conjectures. No speaking orders were passed based on and supported by material/facts on record for dispensing with prior enquiry. Orders for dismissal were passed arbitrarily violating Article 311 and the principles of natural justice.
Henceforth, it has been decided that whenever any Disciplinary Authority intends to invoke Article 311 (2)
(b) of the Constitution of India, he must keep in mind the judgment in the case of UOI v. Tulsi Ram Patel, AIR 1985 SC 1416. Only in cases where Disciplinary Authority is personally satisfied on the basis of material available on file that the case is of such a nature that it is not practicable to hold an enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in view of specific circumstances of the case it is not possible that PWs will depose against the defaulter and disciplinary authority has no option but to resort to Article 311 (2) (b) should such an action be taken. Prior to such an order, a PE has to be conducted and it is essential to bring on record all such facts. It has also been decided that before passing on order under Article 311 (2) (b) of the Constitution of India, 46 OA No. 2435/2023 Item No. 39/C-II Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.
This has the approval of C.P., Delhi.
Sd/-
(S.N. SRIVASTAVA) JT. COMMISSIONER OF POLICCE:
HDQRS,: DELHI""
44. The Hon‟ble High Court of Delhi in WP(C )No. 11276/2024 and CM Appl. No.46705/2024, CM Appl. No. 46706/2024 in the matter of The Commissioner of Police & Ors. vs. OM Prakash & Anr. decided on 14.08.2024 has taken a serious cognizance of the order passed by the Disciplinary Authority in which Delhi Police resorting to invocation of Article 311 (2) (b) of the Constitution of India. For facility of reference, the relevant portion of above mentioned judgment is as follow:-
"20. Accordingly, finding no error in the impugned order passed by the learned Tribunal, the present petition is dismissed.
21. Before parting with this matter, we hereby direct the Commission of Police Delhi to personally look into such matters and take proper decision so that Courts/Tribunals are not burdened with a case where departmental inquiries can be initiated. We hereby make it clear that if such like petitions are filed in future wherein dismissal or suspension orders are passed without holding any enquiry without any plausible reasoning, certainly heavy cost will be imposed and that too, will be recovered from the Officer, who takes such type of unwarranted decision.47 OA No. 2435/2023
Item No. 39/C-II
22. A copy of this order be transmitted to the Commissioner of Delhi Police for information and compliance."
45. 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 in violation to their own circulars dated 11.09.2007 and 13.05.2024. The reasons given by the respondents for dispensing away with the enquiry are not in consonance with the law settled by the Hon‟ble Supreme Court and Hon‟ble High Court(s) and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove.
46. In view of the aforesaid facts and circumstances in the present case, we are of the considered view that the instant OA deserves to be partly allowed and the same is partly allowed with the following directions:-
i. Orders dated 20.01.2022 (Annexure-A/1) of Disciplinary Authority and dated 15.07.2023 (Annexure-A/2) of the appellate authority, are set aside;
ii. The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and instructions on the subject;
iii. The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and 48 OA No. 2435/2023 Item No. 39/C-II iv. However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
v. No order to cost. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/neetu/