Central Administrative Tribunal - Delhi
Rajesh Kumar vs Comm. Of Police on 23 May, 2023
1 O.A. No.2580/2017
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2580
2580 of 2017
Orders reserved on : 15.05.2023
Orders pronounced on: 23.05.2023
3
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Shri Sanjeeva Kumar
Kumar, Member (A)
Rajesh Kumar
Ex Constable of Delhi Police
PIS No.28104927
Aged about 27 years
s/o Sh. Suraj Bhan,
R/o VPO : Tosham,
Ward No.15, Near Herbal Park,
Distt: Bhiwani, Haryana.
...Applicant
(through Advocate Shri Anil Singal)
Versus
1. Govt. of NCT of Delhi
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. Add. C.P. (Armed Police)
PHQ, IP Estate, New Delhi
3. D.C.P./3rd Bn. DAP
Vikas Puri Lines, New Delhi.
4. Sh. S.K. Tewari (DANIPS)
Then C.C.P./3rd Bn. DAP
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
... Respondents
(through Advocate Ms. Vatsala C. Chaturvedi for Mrs.
Rashmi Chopra)
Chopra
2 OA No.2580/2017
ORDER
Hon'ble Mr. R.N. Singh, Member (J) :
By way of the instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the Order dated 18.11.2015 (Annexure A-1) passed by the Disciplinary Authority dismissing him from service by invoking the power under Article 311 (2) (b) of the Constitution of India and also the order dated 29.01.2016 (Annexure A-2) passed by the Appellate Authority rejecting his appeal preferred against the aforesaid order of the Disciplinary Authority. The applicant has prayed for setting aside of the aforesaid impugned order(s) passed by the Disciplinary and Appellate Authorities and has also prayed for his reinstatement in service with all consequential benefits including promotion/seniority and arrears of pay since the applicant is not able to get job despite his best efforts and is unemployed.
2. Briefly the facts leading to filing of the present OA are that the applicant while working as Constable in the office of the respondents was allegedly implicated in the case FIR No.874/15 dated 17.11.2015 under Sections 392/394/397/34 IPC read with 25, 27, 54 & 59 of Arms 3 OA No.2580/2017 Act, which was registered at PS Timar Pur. The applicant was arrested on 17.11.2015 and was remanded to three (03) days of police custody. While the applicant was in judicial custody, the respondent no.4, according to the applicant, who was not competent to act as the disciplinary authority against the applicant being only JAG Grade DCP, vide order dated 18.11.2015 (Annexure A-1) dismissed the applicant from service under Article 311(2)(b) of the Constitution of India with immediate effect on the basis of allegations on which the said FIR was registered. The relevant contents of the said order of the disciplinary authority read as under:-
"The brief facts of the incident are that Pinky s/o Mahesh, the complainant in the FIR was driving his vehicle No.DL-1LS-4444, carrying a cargo of Dalda Ghee etc. to Tarkman Gate for delivery. At around 0400 Hours while he was near CNG Station, Gandhi Vihar, Outer Ring Road, he was stopped by two persons on a motorcycle on the grounds that he was escaping after committing an accident. As soon as he stopped, the pillon rider hit him with the butt of country made weapon. The motorcyclist who was later identified as Rajesh s/o Sooraj Bhan r/o VPO Tosham, Distt. Bhiwani, Haryana, put a 'Katta' on Pinky's temple and snatched his wallet. The pillion rider took his cell phone, which was kept on the dashboard and was conducting a searchy of his vehicle. In the meanwhile, a one uniformed police personnel, Const. Devender, during the course of his patrolling reached the spot & apprehended Rajesh. While he also 4 OA No.2580/2017 tried to overpower the pillion rider (who was subsequently identified as Rahul @ Yogesh), the latter acting swiftly pointed his 'Katta' at the head of Const. Devender & demanded that he should release Rajesh forthwith else, he would kill him. Rajesh on the other hand, started instigating Rahul to shoot & kill Const. Devender. A Police Officer ASI Narain Singh, travelling in a DTC bus saw the uniformed police personnel grappling with two persons. He immediately got down to assist Const. Devender. The complainant Pinky also pitched in to help. In the ensuing melee, Rahul @ Yogesh managed to escape in the darkness leaving behind his motorcycle. Rajesh was nabbed on the spot itself.
This dastardly act of the Constable has put the entire police force to shame, especially when such a force is responsible for the safety and security of the citizens. What will be the fate of the society, if the custodian of law becomes marauder? Being a policeman, his criminal conduct has also violently shaken the faith of the citizens from the police force. This illegal and criminal act of Const. Rajesh Kumar is not only reprehensible, but has also tarnished the image of the 4entire police force in the eyes of the law abiding citizens of Delhi and that of the country. The act of robbing an innocent civilian and the act of provoking his "partner-in-crime" to shoot & kill the uniformed police personnel in furtherance of his illegal act, would have surely shattered even the last vestiges of faith, that the civilian would have had for the protectors of law. His brutal & merciless provocation to his partner to kill the police personnel, who as such is his "brother-in-arms" & "colleague", clearly exhibits the amount of bestiality that has come into him, and all for greed. The grotesque actions, bereft of any feeling/concern for a human being, of this delinquent Constable clearly shows that he has abdicated the solemn vow that he took at the time of passing 5 OA No.2580/2017 out ceremony and also that he has become a complete criminal, who has no compulsion in killing someone, for material gains. This has also shocked other sincere & dedicated personnel of the force. The act of the Constable is a shameful, most deplorable, abominable and disgusting act of moral turpitude.
Prima facie the act and conduct of accused Constable warrants his dismissal from the service as such a criminal has no place in the organization whose primary task is to provide safety and security to the citizens. The facts of the incident registered vide FIR No.874/2015 u/s 392/394/397/34 r/w 25, 27, 54 & 59 of Arms Act, PS Timar Pur makes the sequence of events and the criminality of the accused Constable crystal clear. Ordinarily, a departmental enquiry should follow before taking disciplinary action against the said Ct. Rajesh Kumar No.6857/DAP, PIS no:28104927. However the same will require detailed and time taking necessitating the complainant Pinky, a delivery van driver to depose against Constable Rajesh Kumar. It is a well-known fact that the d3elivery van driver has to spend most of the time on the road driving his vehicle to deliver goods. It is unreasonable to expect that he will, in all probability, depose freely and fairly, without fear. The arrival of Constable Devender and later, ASI Narain Singh was mere coincidence and to the good luck of the complainant as well as the Police department's that such a black sheep was identified and acted upon under the laws of the Land. However holding the long and tedious enquiry shall discourage the complainant from deposing against the delinquent Constable. After all he will avoid going against the person in authority, not withstanding that he will be placed under suspension during the period. The possibility of intimidation, inducement of 6 OA No.2580/2017 the victim, who is also the sole civilian witness, by the accused Constable cannot be ruled out. In view of his criminal conduct, his continued retention in the police force would be detrimental to the public interest.
Hence, considering the above facts of the case, continued presence of the accused Constable in Police force is totally undesirable and absolutely unwarranted, keeping in view of his criminal conduct. Therefore, I, S.K. Tewari, Deputy Commissioner of Police, III Bn. DAP, Delhi, being competent authority hereby dismiss Const. Rajesh Kumar, No.6857/DAP from Delhi Police force under Article - 311 (2)
(b) of Constitution of India with immediate effect. Upon his arrest/involvement in criminal case, Const. Rajesh Kumar, No.6857/DAP was also placed under suspension vide DD No.61-B of Central Jail dated 17.11.2015 read with order No.14500-14560/HAP (P-II)/III Bn. DAP dated 18.11.2015. His suspension period from 17.11.2015 to the date of issue of this order is also decided as period "not spent on duty", which shall not be regularized in any manner."
(Emphasis added) 2.1 While in judicial custody, the applicant submitted his appeal to the respondent no.2 against the aforesaid order of dismissal dated 18.11.2015 (Annexure A-1), passed by the disciplinary authority, which was rejected by the Appellate Authority vide order dated 29.1.2016 (Annexure A-2). Feeling aggrieved of the aforesaid orders, the applicant has filed the instant OA for redressal of his grievances.
7 OA No.2580/2017
3. Pursuant to the notice, the respondents have filed their counter reply opposing the claim of the applicant and prayed for dismissal of the OA. The applicant has filed his rejoinder in which besides refuting the contentions of the respondents as averred in the counter reply, the applicant has reiterated his claim as set out in the OA.
4. During the course of hearing, Shri Singal, learned counsel for the applicant has submitted that in the order passed by the Disciplinary Authority, there is no mention of the fact that the respondents had ever tried to hold a departmental enquiry on the allegations/misconduct on the basis of which the applicant was dismissed from service by invoking the powers under Article 311(2)(b) of the Constitution of India and that too, without concluding that holding of a departmental enquiry is not reasonably practicable, which amounts to colourable exercise of power by the respondents. He has further submitted that the aforesaid reasons, as quoted above, recorded by the disciplinary authority to dispense with the enquiry are vague and totally unsustainable in law and even the disciplinary authority has nowhere concluded that holding of DE is not reasonably practicable, which is a condition 8 OA No.2580/2017 precedent for invoking the powers under Article 311(2)(b) of the Constitution of India. Learned counsel has also argued that no material has been brought on record by the respondents to show that the witnesses were threatened by the applicant and further the disciplinary authority even without making any efforts to initiate the DE, presumed the applicant guilty of the charges levelled against him in the said FIR case to be true, which shows that the opinion of the disciplinary authority is merely based on presumptions and as such the same is illegal and is not sustainable in the eyes of law. Learned counsel for the applicant has further argued that even otherwise dispensing with the enquiry for even non-deposition of witness due to fear was held to be illegal by the Hon'ble Supreme Court in the case of Chief Security Officer vs. Singasan Rabidas, reported in 1991 (5) J.T. 117. Learned counsel for the applicant has also submitted that the respondents have failed to appreciate that the order of dismissal by dispensing with the enquiry is in violation of Explanation (b) to Rule 17 of the D.P. (P&A) Rules 1980, which categorically provides that the procedure laid down with regard to the conduct of departmental enquiry can be dispensed with, if Police Officer charged with misconduct 9 OA No.2580/2017 refuses or fails to attend the enquiry without reasonable excuse or has absconded or has deserted or cannot be found without inordinate delay, which is not the position/grounds taken by the disciplinary authority for dispensing with the enquiry. As such the order passed by the disciplinary authority is violative of the aforesaid explanation. Learned counsel for the applicant has also submitted that the gravity of the allegations levelled against the applicant cannot be tilting factor in order to decide whether the departmental inquiry is reasonably practicable or not. He has further emphasised that there is no evidence brought on record by the respondents to show that that the witnesses were threatened by the applicant or there is any complaint by the witnesses regarding threatening notes/calls by the applicant. 4.1 Shri Singal, learned counsel, has further submitted that the impugned orders are also in clear violation of the respondents' own circular dated 29.12.1993 and reissued on 31.12.1998, which categorically provides that the powers under Article 311 (2)(b) is not to be used as a short-cut and instructions contained in the said circular has to be strictly followed, which has not been done by the 10 OA No.2580/2017 respondents in the instant case, as there is no proof on record to say that the applicant is in a position to influence the witnesses and further there is no reason given by the respondents that when the same witnesses can appear before the learned Trial Court to depose against the applicant, as to why they will not appear in the departmental inquiry. Rather the disciplinary and the appellate authorities have passed the impugned orders without application of mind to the conditions as contained in the aforesaid OM. Reliance has been placed by the applicant on the law laid down by the Hon'ble Supreme Court in the case of Union of India and others v. Tulsi Ram Patel, reported in AIR 1985 SC 1416. Learned counsel for the applicant has also submitted that on 9.8.2016, the complainant Mr. Pinki himself deposed nothing against the applicant during trial in FIR No.875/15 while the applicant was still in judicial custody. Further, it is argued that the Appellate Authority has passed the appellate order in a mechanical manner.
5. Per contra, Ms. Vatsala C. Chaturvedi, learned counsel appearing for Mrs. Rashmi Chopra, learned counsel for the respondents with the assistance of the 11 OA No.2580/2017 counter reply, has submitted that the disciplinary authority has rightly dismissed the applicant from the service by invoking the provisions of Article 311(2)(b) of the Constitution of India and the appeal of the applicant was rightly rejected by the appellate authority having regard to the gravity of offence committed by the applicant.
6. We find that dismissal by invoking the provisions of Article 311(2)(b) of the Constitution of India has been considered by a Division Bench consisting one of us (R.N. Singh) of this Tribunal in a common Order/Judgment dated 10.2.2022 in the case of Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others in OA No.1283/2020 and a batch of cases, where the aforesaid OMs as well as besides other the judgment of the Hon'ble Apex Court in Tulsi Ram Patel (supra) and various judgments of this Tribunal and of the Hon'ble High Court(s) were considered, we deem it appropriate to refer to the relevant paras of the same, i.e., paras 45 to 48 thereof, which read as under:-
"45. In the cases in hand, it is evident that in most of the cases preliminary inquiry had admittedly been done and regular enquiry had been dispensed with on the ground of possibility of witnesses likely to be unduly harassed or pressurized by the delinquent(s). In all the case FIRs, chargesheet had been filed, list of witnesses had been filed, a few witnesses had been 12 OA No.2580/2017 examined or after tiral the accused(s) had been acquitted. In a few cases, the reason for dispensing with the enquiry had been given that the material had come on record to prove the criminal acts of the applicants. The reason had been also of threat to discipline, integrity and morality of the entire police force. On perusal of the impugned orders, it is evident that either the authorities have passed the orders of dispensing with the enquiry on jumping to the conclusion that delinquency or guilt of the applicants as alleged in the case FIRs stood proved even without regular enquiry in the departmental proceedings or trial in the concerned learned court(s). In most of the cases, conclusion about delinquency and commission of the offence(s) by the applicant(s) had been arrived merely on the basis of the preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made 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 13 OA No.2580/2017 and the orders of the Tribunal have also attained finality.
46. It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
47. It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove.
48. In view of the aforesaid, we are of the considered view that the aforesaid OAs deserve to be partly allowed and the same are partly allowed with the following directions:-
(i) Order(s) passed by the disciplinary and appellate authorities in the aforesaid OAs are set aside with all consequential benefits to the applicants in accordance 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."
7. We further find that disciplinary and appellate authorities have not correctly applied their mind to the facts 14 OA No.2580/2017 of the case as Govt. of India vide OM dated 11.11.1985 as well as the respondents themselves through their own circulars dated 21.12.1993 and 11.9.2007 which provide that the disciplinary authority should not take resort of Article 311(2)(b) of the Constitution of India lightly and should take action only in rarest of rare case where it is not reasonably practicable to hold departmental enquiry and that a Govt. servant is entitled to have an opportunity to defend himself when there are allegations against him and only in exceptional circumstances law permits the department to dispense with the enquiry and other legal formalities. However, the present case is not of such nature. We also find that the impugned orders are passed without complying the requirements of various circulars, which categorically stipulates that dismissal of the Police Officers involved in the cases of Rape and Dacoity and any such heinous offences by resorting to the provisions of Article 311(2)(b) of the Constitution of India is illegal and such dismissal without conducting departmental enquiry is illegal, as in such cases departmental enquiry can be conveniently held having regard to the charges levelled against delinquent, like the case of the applicant.
15 OA No.2580/2017
8. We also find that nothing has been recorded in the impugned order(s) or shown to us that the applicant had ever threatened or harassed any of the witness(es) and/or the prospective witness(es) and further there is no evidence or document to indicate that in view of the facts and circumstances of the case, any efforts was made by them to summon the witness(es) to lead the evidence. It is also not the case of the respondents that resorting to regular enquiry, the relation with foreign countries was likely to be adversely affected. From the impugned orders, it is evidently clear that neither any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their best efforts, the respondents had not been able to produce the witness(es) to lead evidence against the applicant and further nothing is brought on record that witness(es) has/have been threatened by the applicant or they are too 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 16 OA No.2580/2017 the applicant despite the facts that the relevant witnesses are participating in the criminal trial initiated pursuant to the said FIR case.
9. In view of the above, impugned orders of the respondents are not only in violation of the settled law but also of the respondents' own instructions on the subject. The reasons given by the respondents for dispensing with the enquiry are also not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
10. Having regard to the aforesaid facts and circumstances of the present case, we are of the considered view that this case is squarely covered by a catena of cases, 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 18.11.2015 (Annexure A-1) and dated 29.01.2016 (Annexure-A-2) passed by the 17 OA No.2580/2017 disciplinary and appellate authorities respectively are set aside;
(ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject;
(iii) The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order; and
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
16. However, in the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /ravi/