Central Administrative Tribunal - Delhi
Santra Devi vs Comm. Of Police on 7 October, 2021
1 O.A. No.3170 of 2019
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3170
3170 of 2019
Orders reserved on : 22.09.2021
.09.2021
Orders pronounced on :07.10.2021
.2021
(Through Video Conferencing)
Hon'ble Mr. A. K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
Santra Devi
Widow
dow of ASI (Exe.) Satbir Sing
(PIS No. 28823839), Belt No:-2705
No: 2705-D
R/o 19/310 Sant Swami Bagh,
Daya Basti, Old Rohtak Road,
Near Inderlok Metro Station, Daya Basti, Delhi-110035.
Age : 57, Group 'C'
... Applicant
(through Advocate Shri Sourabh Ahuja)
Versus
us
1. GNCT of Delhi
Through its Chief Secretary,
Delhi Secretariat,
Near ITO, New Delhi.
2. Commissioner of Police (Delhi Police)
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
3. Joint Commissioner of Police,
New Delhi Range, Delhi
Through Commissioner of Police (Delhi Police)
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
4. Deputy Commissioner of Police,
New Delhi Range, Delhi
Delh
Through Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
... Respondents
(through Advocate Shri Sameer Sharma
Sharma)
2 OA No3170 of 2019
ORDER
Hon'ble Mr. R. N. Singh, Member (J):
In the present OA, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant - widow of late Shri Satbir Singh, ASI (Exe.) in Delhi Police, has challenged the order dated 6.2.2019 (Annexure A/1) whereby the said late Shri Satbir Singh was dismissed from service by the respondents without conducting the regular departmental inquiry by invoking the provisions of Article 311 (2) (b) of the Constitution of India. The applicant has further challenged the order dated 8.4.2019 (Annexure A/2) vide which the appellate authority has rejected the appeal preferred by the applicant against the said impugned order dated 6.2.2019.
2. The brief facts leading to the present OA, precisely derived from the pleadings on record, are that the husband of the applicant was appointed to the post of Constable (Exe.) in Delhi Police on 14.9.1982. He was further promoted to the post of Head Constable and thereafter to the post of ASI (Exe.) keeping in view his eligibility and suitability therefor. The applicant's husband 3 OA No3170 of 2019 was implicated in case FIR No.0030/2019 dated 21.1.2019 under Sections 302 IPC read with Sections 25/54/59 of Arms Act registered at Police Station Asauda, District Jhajjar (Haryana). He was placed under suspension w.e.f. 21.01.2019 vide order dated 22.01.2019. The applicant's husband was arrested in the said case FIR and the effective date of suspension of the applicant's husband is from the date of such arrest. A preliminary inquiry was got conducted by the respondents and taking into account the allegations levelled against the applicant's husband in the said case FIR and the preliminary inquiry report, the respondents have dismissed him from service by dispensing with the departmental inquiry by invoking the provisions of Article 311 (2) (b) of the Constitution of India. The applicant's husband preferred an appeal against the said order of dismissal and the same has been rejected by the impugned order dated 8.4.2019 (Annexure A/2). On 8.6.2019, the applicant's husband is stated to have committed suicide while in judicial custody.
3. In the present OA, the applicant has asserted violation of the constitutional provisions as well as law laid 4 OA No3170 of 2019 down by the Hon'ble Apex Court, Hon'ble High Courts and followed by this Tribunal in catena of cases and has prayed for the following reliefs:-
"(a) Quash and set aside the impugned orders dated 06.02.2019 and 08.04.2019 (referred in Para-1 of OA) whereby the Applicant's husband was dismissed from service under Article 311 (2) (b) of the Constitution of India, and
(b) Direct the respondents to release/ grant death-cum-retirement benefits (family pension, DCRG, leave encashment etc.) to the Applicant with all consequential benefits viz. arrears of pension/family pension, interest @ 18% p.a. on the delayed payment etc. And
(c) Award cost in favour of the Applicant and against the respondents. And/Or
(d) Pass any further order, which this Hon'ble Tribunal deem fit, just equitable in the facts and circumstances, of the case."
4. Pursuant to notice from this Tribunal, the respondents have filed their counter reply and the applicant has filed rejoinder.
5. In the counter reply, the respondents have defended the impugned orders and have urged dismissal of the present OA with cost.
5 OA No3170 of 2019
6. Per contra, the applicant in the rejoinder has reiterated the facts and law laid down and has also relied upon a few subsequent Orders/Judgments of this Tribunal stating that the claim of the applicant is squarely covered in view of those Orders/Judgments.
7. Shri Sourabh Ahuja, learned counsel for the applicant, has argued that the applicant's husband was falsely implicated in the said case FIR. The respondents have admittedly conducted a preliminary inquiry and have heavily relied upon the report of the said preliminary inquiry as well as the allegations levelled against the applicant's husband in the said FIR, though a copy of the said report was never served to the applicant's husband and so the applicant's husband was deprived of an opportunity to refute the said report, findings in the said preliminary inquiry report and/or the allegations levelled against him in the said FIR and, therefore, in view of the Order/Judgment dated 30.08.2019 (Annexure A/5) of the Hon'ble High Court of Allahabad in Writ -A No. 25018 of 2018, titled Lokendra Pal Singh vs. State of U.P. and three others, the impugned orders are illegal, bad in the eyes of law and not sustainable. He has further argued 6 OA No3170 of 2019 that the law is settled to the effect that the graver is the charge and, resultantly, more severe consequences of the findings on the person's guilt of the charge, the stricter has to be the standard for dispensing with the provisions of principles of natural justice. In this regard, he referred to the judgment of the Full Bench of this Tribunal in the case of Jagdish v. Union of India & Ors., [2003 (2) [(CAT (PB)-Full Bench)] ATJ 5]. He has further argued that in view of the judgment of the Hon'ble Jammu & Kashmir High Court in Writ Petition No.1386/1993, title Mohd. Maqbool vs. State of Jammu and Kashmir and another, dated 24.7.1997 (Annexure A/6), the gravity and seriousness of the allegations do not furnish basis for doing away with the constitutional guarantee of inquiry. Learned counsel for the applicant has further placed reliance on the judgment of the Hon'ble Apex Court in the case of Jaswant Singh v. State of Punjab & Ors., 1991 (1) SCC 362, to contend that the subjective satisfaction of dispensing with the inquiry was not supported by any independent material and dismissal without holding the inquiry would be illegal. He has further placed reliance upon the law laid down by the Hon'ble Apex Court in the case of Union of India and others vs. Tulsi Ram Patel, AIR 1955 SC 1416, and has submitted that it has been held therein in Tulsi Ram Patel (supra) by the Hon'ble Apex 7 OA No3170 of 2019 Court that the disciplinary authority must record its reasons in writing for dispensing with the inquiry and the reasons recorded by the disciplinary authority and the appellate authority are open to judicial review in view of the judgment of Full Bench of this Tribunal in Jagdish (supra). He has further contended that in the present case, the applicant's late husband was dismissed vide impugned orders without holding any inquiry and the reasons for dispensing with the inquiry is the findings of the preliminary inquiry and seriousness of the allegations levelled against the applicant's husband in the said FIR, however, there is nothing on record to show that the respondents have made any effort to conduct the inquiry and in spite of the efforts, the inquiry was found not feasible for whatsoever reasons less to say inadequate reason or reasons in writing. Learned counsel has further submitted that the applicant's husband had 37 years of unblemished service under the respondents and was to retire on attaining the age of superannuation on 31.5.2021. Moreover, keeping in view the facts noted hereinabove, he committed suicide while in judicial custody on 8.6.2019 and whatever the applicant would have got as retirement/terminal benefits have also been taken away in view of the orders passed by the respondents which are impugned herein in the present OA.
8 OA No3170 of 2019
8. Learned counsel for the applicant has also placed reliance upon the law laid down by the Hon'ble Apex Court in Jaswant Singh (supra) and Tulsi Ram Patel (supra), to reiterate that when subjective satisfaction of dispensing with the inquiry is not supported by any independent material, dispensing with holding the inquiry would be illegal and if a preliminary inquiry could be conducted, there may not be any reason as to why formal departmental inquiry could not have been initiated against the delinquent.
9. In the counter reply, the respondents have given the facts of the said case FIR, admitted the preliminary inquiry and other factual matrix and disputed the claim of the applicant that the impugned orders are violative of any provision of the Constitution of India or the law on the subject. They have also relied upon a few judgments, including the judgment of the Hon'ble High Court of Delhi in the case of Constable Mukesh Kumar Yadav vs. GNCTD and others in Writ Petition (Civil) No.6005/2017 dated 20.09.2017.
10. In the rejoinder, the applicant has reiterated the facts and grounds for relief(s) in the OA and has placed further 9 OA No3170 of 2019 reliance upon the Order/Judgment dated 1.11.2019 of this Tribunal in OA 2097/2019, titled Neeraj Kumar vs. Commissioner of Police and another and further on the Order/Judgment dated 16.5.2019 of the Hon'ble High Court of Delhi in W.P.(C) No.11694/2018, titled Commissioner of Police and others vs. Kaushal Singh, etc., another Order/Judgment dated 11.12.2019 in W.P.(C) No.4078/2017, titled Commissioner of Police and others vs. Ashwani Kumar and others and also on the Order/Judgment dated 30.11.2018 of this Tribunal in OA 2712/2017, titled Ravinder Singh Bisht vs. Govt. of NCT of Delhi and another. Shri Ahuja, learned counsel for the applicant, has further submitted that if the impugned orders are quashed in view of unfortunate demise of the applicant's husband, the matter cannot be remitted to the department for any inquiry etc. in as much as no more inquiry can be held against him and directions should be given to the respondents to release the admissible benefits to the applicant, who is deceased's legal heir. He has also submitted that law laid down on the issue has been considered by this Tribunal in catena of cases and recently vide Order/Judgment dated 1.11.2019 (Annexure A/11) in the case of Neeraj Kumari 10 OA No3170 of 2019 (supra) and another Order/Judgment 11.3.2021 (Annexure MA/2) in OA No.1912/2015, titled Kirpal Singh vs. Govt. of NCT of Delhi and others. When it was put to the learned counsel for the applicant, as to whether prayer in para 8 (b) of the present OA can be granted to the applicant, he has placed reliance upon the Division Bench judgment of the Hon'ble High Court of judicature at Madras dated 24.7.1985 in Writ Appeal No.267/1980, titled Marimuthu (K.P.) (deceased) (by legal representatives) and others vs. Superintendent of Police, Dharmapuri and others and further on the Order/Judgment of the Larger Bench of this Tribunal at Calcutta dated 23.11.2001 in OA 501/1994, titled Mrs. Chandra Kala Pradhan vs. Union of India and others, para 4 thereof reads as under:-
"4. We have considered the aforesaid decision rendered on 22.11.2001 and we fully endorse the same. In the circumstances, we hold that the right to sue under service jurisprudence devolves upon the legal heirs after the death of the Government employee. We further hold that the Tribunal has jurisdiction to entertain such an application which has been filled by legal heirs after the death of the Government employee. The present reference is answered accordingly. Present O.A. will now be placed before the appropriate Division Bench for decision in terms of the present order in accordance with law."
11 OA No3170 of 2019
11. Shri Sameer Sharma, learned counsel for the respondents, at the outset, has very fairly submitted that the issues involved in the present OA are squarely covered in view of various decisions, particularly Order/Judgment dated 1.11.2019 of this Tribunal in the case of Neeraj Kumar (supra) and Order dated 11.3.2021 in the case of Kripal Singh (supra).
12. The Order/Judgment dated 11.03.2021 of this Tribunal in Kripal Singh (supra) has been passed by this very Bench in which various judgments, referred to and relied upon on behalf of the applicant and those on behalf of the respondents, have been referred to and considered, including the judgment in the case of Neeraj Kumar (supra), and paras 20, 22 and 23 of the said Order/Judgment dated 11.03.2021 read as under:-
"20. In view of various judgments and the rules, referred to hereinabove, it is evident that before dispensing with an inquiry subjective satisfaction is to be arrived at by the disciplinary authority that it is not reasonably practicable to hold a regular departmental inquiry. The reasons must be recorded which must be based on objective criterion and not on the whims and fancy of the disciplinary authority. The reasons given by the disciplinary authority must reflect the actual ground reality which makes it impossible for the disciplinary authority to order 12 OA No3170 of 2019 departmental inquiry. The inquiry cannot be dispensed with lightly or arbitrarily or out of ulterior motive or merely in order to avoid holding of a departmental inquiry. If it is a case that preliminary inquiry has been conducted, statements there from may be brought on record of the departmental proceedings when the witnesses are no longer available. The Enquiry Officer may bring on record any other document from the file of the preliminary enquiry, if he considers it necessary after supplying copies to the accused officer. However, in absence of any document to support that the witnesses are not traceable, they are not willing to come forward to adduce their evidence or the said witnesses are threatened, intimidated or coerced, terrorised, influenced by and/or on behalf of the delinquent for leading their evidence or security of the State is likely to put under danger etc., it may not be sufficient to say that the departmental proceeding is not reasonably practicable. However, it may suffice in saying that departmental inquiry is not probable whereby an atmosphere of violence or of any general indiscipline and insubordination prevails or the delinquent is in affiliation with criminals. Furthermore, the provisions of Rule 15 of the Delhi Police (Punishment & Appeal) Rules, 1980 clearly indicate that the purpose is not only to judge acquaintance of default but also to collect prosecution evidence and to bring on record relevant documents to facilitate a regular departmental inquiry. Mere gravity of the allegations against the defaulter shall not be sufficient and good reason not to hold that the enquiry is not reasonably practicable. The word 'Practicable' has been considered and explained by the Hon'ble High Court of Delhi in the case of R.K. Mishra (supra)."
"22. In view of the facts and circumstances of the case in hand, we are of the considered view that reasons assigned by the respondents for coming to the conclusion that it was not reasonably practicable to hold departmental inquiry are not at all satisfactory. The reasons
13 OA No3170 of 2019 recorded by the disciplinary authority for dispensing with the departmental inquiry are not convincing and the same do not connect with any material on record and accordingly, the same are not acceptable in the eyes of law.
23. In the result and for the reasons recorded hereinabove, the OA deserves to be allowed. Accordingly, the same is allowed and the impugned penalty order dated 2.12.2014, passed by the disciplinary authority and the appellate authority's order dated 22.9.2015 are set aside with all consequential benefits to the applicant in accordance with the relevant rules. Since the applicant was under suspension as on the date of passing of the impugned orders, the applicant shall thus remain under suspension and the respondents shall take an appropriate decision regarding revocation or continuation of the same. The respondents shall be at liberty to proceed against the applicant departmentally as per the relevant rules and the treatment of period of suspension of the applicant shall be depending upon the same. However, in the facts and circumstances, there shall be no order as to costs."
13. In view of the aforesaid facts and circumstances, the present OA deserves to be allowed and the same is accordingly allowed with the following orders:-
(i) The impugned orders dated 6.2.2019 and 8.4.2019 (Annexure A/1 and A/2 respectively) are set aside;
(ii) The respondents are directed to grant and release death-cum-retirement dues, viz., family pension, DCRG, leave encashment etc. as admissible under
14 OA No3170 of 2019 the relevant rules with all consequential benefits family pension, arrears of family pension and interest on family pension, gratuity, etc. as per rules as admissible on the GPF from the date the same became due till the payment thereof;
(iii) The respondents are also directed to issue a due and drawn statement;
(iv) The respondents are directed to complete the aforesaid exercise as expeditiously as possible and in any case within 10 weeks of receipt of a copy of this Order.
14. However, in the facts and circumstances of the case, there shall be no order as to costs.
(R.N. Singh) (A. K. Bishnoi) Member (J) Member (A) /ravi/