Central Administrative Tribunal - Delhi
Akash vs Delhi Police on 16 April, 2025
1
OA No. 645/2024
OA No. 579/2024
Item No.16/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 645/2024
with
O.A. No. 579/2024
Reserved on: 17.03.2025.
Pronounced on: 16 .04.2025.
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
O.A. No. 645/2024
Akash
S/o Sh. Ajeet Singh
R/o Village- Dabra,
P.O.- Mayncha,
P.S.- Dadri,
District- Gautambudh Nagar,
Uttar Pradesh-203207
(aged about 34 years)
(Group „C‟)
(Dismissed Constable, Delhi Police) ... Applicant
(By Advocate: Mr. Ajesh Luthra)
Versus
1. Commissioner of Police
Delhi Police Hdqrs. (New Building),
Behind Parliament Street Police Station,
New Delhi-110001
2. Joint Commissioner of Police (Eastern Range)
Delhi Police Hdqrs. (New Building),
Behind Parliament Street Police Station,
New Delhi-110001
3. Deputy Commissioner of Police
East District
Office at Bhola Nath Nagar,
Shalimar Park Extension, Shahdara,
Delhi, 110032 ... Respondents
(By Advocate:Ms. Priyanka Swami)
2
OA No. 645/2024
OA No. 579/2024
Item No.16/C-II
O.A. No. 579/2024
Mangtu
S/o Sh. Babu Lal
R/o Qtr. No. 19, Type-I, Police Colony,
Paschim Vihar,
Delhi 110063
(aged about 37 years)
(Group „C‟)
(Dismissed Head Constable, Delhi Police)
... Applicant
(By Advocate: Mr. Ajesh Luthra)
Versus
1. Commissioner of Police
Delhi Police Hdqrs. (New Building),
Behind Parliament Street Police Station,
New Delhi-110001
2. Joint Commissioner of Police (Eastern Range)
Delhi Police Hdqrs. (New Building),
Behind Parliament Street Police Station,
New Delhi-110001
3. Deputy Commissioner of Police
East District
Office at Bhola Nath Nagar,
Shalimar Park Extension, Shahdara,
Delhi, 110032
4. Deputy Commissioner of Police
(General Administration)
Delhi Police Headquarter
Behind Parliament Street Police Station,
New Delhi-110001
... Respondents
(By Advocate: Ms. Priyanka Swami)
3
OA No. 645/2024
OA No. 579/2024
Item No.16/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A): -
The learned counsels for the parties submit that issue involved in both the captioned O.As. is identical and both the applicants are aggrieved by a common impugned order dated 22.07.2023 (Annexure-A/1) issued by the respondents. In such view of the matter and with the consent of the learned counsels for the parties, the captioned O.As. have been taken up for final disposal.
Accordingly, both the captioned O.As. are being adjudicated vide a common order. For convenience, O.A. No. 645/2024 has been taken as a lead case.
2. By way of the present O.A. filed u/s 19 of the AT Act, 1985, the applicant, in Para 8 of the O.A., which were subsequently amended as per MA No. 2226/2024 in OA No. 645/2024 and MA No. 2231/2024 in OA No. 579/2024, has prayed for the following reliefs: -
"(a) Quash and set aside the impugned order dated 22.07.2023 (Annexure A/1) and order dated 18.03.2024 (Annexure A/1A) alongwith order dated 12.10.2023 (Annexure-A/2).
(b) Direct the respondents to forthwith reinstate the applicant in service.
(c) accord all consequential benefits including seniority and back wages.
(d) Award costs of the proceedings in favour of the applicant.4 OA No. 645/2024 OA No. 579/2024
Item No.16/C-II
(e) Any other relief which this Hon'ble Tribunal deems fit and proper in favour of the applicant."
3. 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.
4. The brief facts of the present case are that the applicant was appointed as Constable in Delhi Police on 13.07.2016 and later promoted as Head Constable. The applicant contends that upon false allegations an FIR No. 0260 dated 12.07.2023 u/s 392/34 IPC P.S. Kanjhawala, was registered against him along with other Police Staff. Thereafter, the applicant was dismissed vide impugned order dated 22.07.2023 (Annexure-A/1) without conducting regular departmental enquiry which is necessary under law to establish the allegations and without affording any opportunity to the applicant to defend himself.
5. The applicant submits that the impugned order dated 22.07.2023 (Annexure-A/1) does not contain any valid or justified reason to dispense away with a regular departmental enquiry. The DE has not been conducted on the grounds that there is a reasonable belief that the witnesses may not come forward to depose against them. It is submitted that this reason is not valid, true and genuine. This is only a surmise.
5OA No. 645/2024 OA No. 579/2024 Item No.16/C-II
6. Feeling aggrieved by the aforesaid act of the respondents, the applicant preferred an appeal dated 01.09.2023 (Annexure A/3) to the Joint Commissioner of Police which appears to have not been considered because the dismissal order was issued under approval of still higher authority i.e. Special Commissioner of Police.
7. In these facts and circumstances, the applicant is left with no other legal efficacious remedy except to approach this Tribunal on following grounds: -
a. The impugned orders/actions of the respondents are highly illegal, arbitrary, unjust, unfair and unconstitutional.
b. The applicant is entitled to the Constitutional protection as envisaged under Article 311 of the Constitution. It is trite in law that dispensation of departmental enquiry is an exception whereas holding of a departmental enquiry is a rule. Vide impugned orders the applicant has been condemned unheard. The allegations against the applicant have not established by way of a regular departmental enquiry and the applicant has been denied reasonable opportunity to defend himself. The applicant is a regular employee and cannot be just thrown out of service without any enquiry. The enquiry has been dispensed with merely 6 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II on unfounded apprehensions. The reason is too general.
Because it is relevant to reproduce the Constitutional guarantee contained under Article 311 of the Constitution of India which reads as follows:-
"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (1) No person who is a member of a civil service of the Union or an all India service or a civil service or a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply-
a. where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or b. where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or c. where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."
c. Even if the Disciplinary Authority did not feel to conduct regular departmental enquiry, the Appellate Authority can 7 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II consider whether there is possibility of holding disciplinary enquiry at the time of deciding the present appeal as per the judgment of Hon‟ble Supreme Court in the matter of Tulsi Ram Patel's Case.
d. The action of the respondents is contrary to their own instructions contained in circular dated 29.12.1993 (Annexure- A/4).
e. The case of the applicant is squarely covered by various judgments of this Hon'ble Tribunal.
f. The impugned order dated 22.07.2023 (Annexure-A/3) does not contain any valid or justified reason to dispense with a regular departmental enquiry. The holding of regular departmental enquiry has been dispensed with on surmises and conjectures.
g. The DE has not been conducted on the grounds that there is a reasonable belief that the witnesses may not come forward to depose against them. It is submitted that this reason is not valid, true and genuine. This is only a surmise. h. This Tribunal in OA 4351/2018 titled Satyendra Kumar Vs. Commissioner of Police & Ors. vide order dated 06.02.2024 (Annexure-A/5) allowed similar OA.
7. Learned counsel for the applicant has placed reliance on the order/judgment of the Hon‟ble High Court of Delhi in W.P. (C) No. 12573/2024 in the matter of GNCTD & Ors. Vs. Amar 8 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II Singh Chauhan decided on 20.09.2024 wherein the applicant (GNCTD) withdrew the aforesaid petition in view of judgment dated 14.08.2024 passed by the Hon‟ble High Court in W.P. (C) 11276/2024 titled as The Commissioner of Police & Ors. Vs OM Prakash & anr., Learned counsel for the applicant further places reliance on the following orders/judgments namely; (i) W.P (C) 10572/2023 in the matter of Govt. of NCT of Delhi & Ors. Vs. Neeraj Kumar decided by Hon‟ble High Court on 24.10.2024; and (ii) OA No. 3055/2023 in the matter of Rohit Vs. Delhi Police & Ors. decided by this Tribunal on 08.10.2024.
7.1 Learned counsel for the respondents, in the additional affidavit filed by them on 15.01.2025, has placed reliance upon the following orders/judgments namely; (i) Union of India Vs. Tulsiram Patel [(1985) 3 SCC 398]; (ii) The Commissioner of Police, Delhi Vs. Mehar Singh [(2013) 7 SCC 685] and
(iii) The Deputy Inspector General of Police Vs. S. Samuthiram [(2013) 1 SCC 598].
8. Feeling aggrieved by the aforesaid act of the respondents, the applicant approached this Tribunal by way of the present OA.
9. Counter reply has been filed by the respondents on 30.05.2024 wherein they have stated that on 04.07.2023, a complaint of Guddu Mahto r/o 18-C Pocket-4 MIG Flats, New Kondli, Delhi 9 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II was received in PS New Ashok Nagar wherein complainant hasalleged that he has lend Rs. 50,000/- cash to Imran r/o A-583 Sarda JJ Colony, Gehvra, Delhi but now he is extending life threats to him when he asks to refund back his money. The complaint was marked to HC Mangtu No. 841/E being beat HC of the concerned beat area. On 11.07.2023, Insp. Surender, Inspr. Investigation from Kanjhawla, Delhi came to PS New Ashok Nagar & informed SHO/NAN that a PCR call has received in PS Kanjhawla on 11.07.2023 regarding robbery of Rs. 28,50,000/- cash by two police officials and two persons in civil dress, who came in a Ertiga car. They have identified the car based on the CCTV camera installed at the place of incident. They have also identified HC Mangtu & Ct. Akash during enquiry into the PCR call. Inspr. Surender took HC Mangtu& Ct. Akash along-with him for enquiry.
10. They further state that an enquiry into the matter was conducted by SHO/New Ashok Nagar which emerged that on enquiry from Inspr. (Inv.) Surender, PS Kanjhawala, it revealed that a case vide FIR No.260/23, dated 12.07.2023 u/s 392/34 IPC was registered at PS Kanjhawla on the complaint of Imran, wherein he has alleged that he used to play betting. On 09.07.2023, between 7:30 AM to 8:30 AM, four persons two in police uniform and two in civil dress came to his residence and took away Rs. 28,50,000/-cash after beating him. During 10 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II investigation, both the police officials have admitted taking money from Imran. Moreover Rs. 26 lacs have been recovered from them. The other persons (public persons) involved in the crime were Aman (driver) and Dheeraj, both residents of Laxmi Nagar, Delhi. During enquiry, it has also been revealed that on 09.07.2023, HC Mangtu and Constable Akash has lodged a departure DD entry vide No.20 A for enquiry into the complaint at 07:08 AM but they did not lodge the arrival entry. Both police officials joined the morning briefing in Police Station at 10:00 AM but did not disclose the entire incident to SHO/NAN. They went for enquiry of the complaint without his knowledge and permission and did not bring anything relating to the incident to his knowledge.
11. On 12.07.2023, HC Mangtu and Constable Akash No. 1957/E were arrested in case FIR No.260/23 dated 12.07.2023 u/s 392/34 IPC PS Kanjhawala, Delhi. For the above misconduct, HC Mangtu and Constable Akash were placed under suspension vide order dated 12.07.2023 PS New Ashok Nagar read with order dated 19.07.2023 from the date of their arrest in the above mentioned case i.e. 12.07.2023. They also mention that from the above, it is evident that HC Mangtu and Constable Akash have violated all norms of ethics and morality. Such acts of obsessive corruption and misuse of powers speaks volumes about debauched character, which should not be tolerated in any 11 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II disciplined force. This is a case where protectors of law have turned into robber and have abused the power they were bestowed with. They instead of performing their lawful duties robbed Rs. 28,50,000/- from the complainant Imran s/o Farid with malafide intentions. Showing even a tad bit of leniency towards them would be a bad precedent and would encourage other members of the force in believing that these acts are minor delinquencies, which would be eventually overlooked. Robbery is eating away the roots of our society and if the guardians of law themselves indulge in such nefarious activities in flagrant violation of law, it becomes all the more important to check them for future.
12. The respondents contend that they, being member of disciplined force instead of discharging their duties honestly and sincerely, have indulged themselves in corrupt practice and robbed money to fulfill their never ending greed of money. They have violated all norms of ethics and morality by indulging themselves into such grave crime. They have tarnished the image of Police Department among the society. They have lowered down the image and goodwill of uniformed organization which is not acceptable from the police officers whose prime duty/responsibility is to protect the common citizen and safeguard the spirit of law. But their conduct has also rudely shaken the faith of the citizens which they have posited in the 12 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II police force and its members. They have acted in a most reprehensible manner which is unexpected from the members of the disciplined force and extremely prejudicial to the personal safety and security of the citizen.
13. The respondents also contend that after having committed this gravest misconduct of involvement in case FIR No. 260/23 dated 12.07.2023 u/s 392/34 IPC PS Kanjhawala, Delhi, if the defaulters are allowed to continue in police force, it would be detrimental to public interest and further lower down the image of police force in the society. The facts and circumstances of the case are such that it would not be reasonably practicable and justified to conduct a regular departmental enquiry against the defaulters as there is a reasonable belief that the witnesses may not come forward to depose against them. It is a common experience that due to influencing position of the delinquents, witnesses and complainant do not come forward to depose against the delinquents in the departmental enquiry. It also calls for great courage to depose against such a desperate person and the task becomes more acute and difficult where the delinquents are police officials as they may use their job to influence the statement/deposition of the witnesses. In view of the above facts and in compliance of Circular issued from PHQ into the matter vide Nos. 5545-645/P. Cell/Vig. dated 11.09.2007 and 2513- 2612/P. Cell (P. Misc.)/Vig. Dated 18.04.2018, the enquiry report 13 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II was forwarded to Spl. CP/L&O (Zone-l) for seeking necessary concurrence to dismiss the defaulters under Article 311 (2) (b) of the Constitution of India and the same has been approved by the Competent Authority. Therefore, keeping in view the sensitivity of the matter, a punishment of DISMISSAL from Delhi Police was awarded to the applicant under Article 311 (2) (b) of the Constitution of India vide office order dated 22.07.2023 (Annexure-A/1). The respondents admit that the contents of para 4.2 of the OA are admitted to the extent that the applicant was appointed as Constable in Delhi Police on 13.07.2016. It is denied that he was promoted as Head Constable. Initially the applicant i.e. Ct. Akash was enlisted in Delhi Police as a Constable and remained on the same rank till the date his dismissal from service vide order dated 22.07.2023 (Annexure-A/1).
13. The Disciplinary Authority while issuing punishment order dated 22.07.2023 (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:-
"On 11.07.2023, Insp. Surender, Inspr. Investigation from Kanjhawla, Delhi came to PS New Ashok Nagar & Informed SHO/NAN that a PCR call has received in PS Kanjhawla on 11.07.2023 vide DD No. 81A, regarding robbery of Rs.28,50,000/- cash by two police officials and two persons in civil dress, who came in a Ertiga car. They have identified the car based on the CCTV camera Installed at the place of incident. They have also identified HC Mangtu & Ct. Akash during enquiry into 14 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II the PCR call Inspr. Surender took HC Mangtu & Ct Akash along with him for enquiry.
An enquiry into the matter has been got conducted by SHO/New Ashok Nagar which emerged that on enquiry from Inspr. (Inv.) Surender, PS Kanjhawala, it revealed that a case vide FIR No.260/23, dated 12.07:2023 u/s 392/34 IPC has been registered at PS Kanjhawla on the complaint of Imran, wherein he has alleged that he used to play betting. On 09.07,2023, between 7.30 AM to 8.30 AM, four persons two in police uniform & two in civil dress came to his residence and took away Rs. 28,50,000/- cash after beating him. During investigation, both the police officials have admitted taking money from Imran. Moreover Rs. 26 lacs have been recovered from them. The other persons (public persons) involved in the crime are Aman (driver) & Dheeraj, both are residents of Laxmi Nagar, Delhi.
During enquiry, it has also been revealed that on 09.07.2023, HC Mangtu & Ct. Akash has lodged a departure DD entry vide No:
20A for enquiry of complaint at 07:08 AM but they did not lodge the arrival entry. Both police officials joined the morning briefing in police station at 10.00 AM but did not disclose the entire incident to SHO/NAN. They went for enquiry of the complaint without his knowledge & permission and have not brought anything relating to the incident to his knowledge.
On 12.07.2023, HC Mangtu No. 841/E & Ct. Akash Kumar No. 1957/E have been arrested in case FIR No.260/23 dated 12.07.2023 u/s 392/34 IPC PS Kanjhawala, Delhi.
For the above misconduct, HC Mangtu No. 841/E (PIS No. 28093589) & Ct. Akash Kumar No. 1957/E (PIS No.28161000) have been placed under suspension vide DD No.26A dated 12.07.2023 PS New Ashok Nagar read with this office order No.9022-9045/HAP(P-I)/East District dated 19.07.2023 from the date of their arrest in the above mentioned case i.e. 12.07.2023.From the above, it is evident that HC Mangtu, No. 841/E & Ct. AkashKumar, No. 1957/E delinquents have violated all norms of ethics and morality. Such acts of obsessive corruption and misuse of powers speaks volumes about debauched character, which should not be tolerated In any disciplined force. This is a case where protectors of law have turned into robber and have abused the power they were bestowed with. They instead of performing their lawful duties robbed Rs.28,50,000/- from the complainant Imran s/o Farid with malafide intentions. Showing even a tad bit of leniency towards them would be a bad precedent and would encourage other members of the force in believing that these acts are minor delinquencies, which would be eventually overlooked. Robbery is eating away the roots of our society and if the guardians of law themselves indulge in such nefarious activities in flagrant violation of law, it becomes all the more important to check them for future.
15OA No. 645/2024 OA No. 579/2024 Item No.16/C-II They being member of disciplined force instead of discharging their duties honestly and sincerely have indulged themselves in corrupt practice and robbed money to fulfill their never ending greed of money. They have violated all norms of ethics and morality by indulging themselves into such grave crime.They have tarnished the Image of Police Department among the society. They have lowered down the image and goodwill of uniformed organization which is not acceptable from the police officers whose prime duty/responsibility is to protect the common citizen and safeguard the spirit of law. But their conduct has also rudely shaken the faith of the citizens which they have posited on police force and its members. They have acted in a most reprehensible manner which is unexpected from the members of the disciplined force and extremely prejudicial to the personal safety and security of the citizen.
After having committed this gravest misconduct of involvement in case FIR No.260/23 dated 12.07.2023 u/s 392/34 IPC PS Kanjhawala, Delhi, if the defaulters are allowed to continue in police force, it would be detrimental to public interest and further lower down the image of police force in the society.The facts and circumstances of the case are such that it would not be reasonably practicable and justified to conduct a regular departmental enquiry against the defaulters as there is a reasonable belief that the witnesses may not come forward to depose against them. It is a common experience that due to influencing position of the delinquents, witnesses and complainant do not come forward to depose against the delinquents in the departmental enquiry.It also calls for great courage to depose against such a desperate person and the task becomes more acute and difficult where the delinquents are police officials as they may use their job to influence the statement/deposition of the witnesses.
In view of the above facts and in compliance of Circular issued fromPHQ into the matter vide Nos.5545-645/P. Cell/Vig. dated 11.09.2007 and 2513-2612/P. Cell (P. Misc.)/Vig. Dated 18.04.2018, the enquiry report was forwarded to worthy Spl. CP/L&O (Zone-I) for seeking necessary concurrence to dismiss the defaulters under Article 311 (2)(b) of the Constitution of India and the same has been approved by the Competent Authority, Therefore, keeping In view the sensitivity of the matter, I, Amrutha Guguloth, IPS, Deputy Commissioner of Police, East District, Delhi, hereby order to DISMISS defaulters HC Mangtu No. 841/E (PIS No. 28093589) & Ct. Akash Kumar No. 1957/E (PIS No.28161000) from the service of Delhi Police under Article 311(2)(b) of the Constitution of India with immediate effect. They will deposit all government belongings i.e. Identity Card, CGHS Card and uniform articles with Department forthwith. Their suspension period from 12.07.2023 to the date of issue of this order is decided as period not spent on duty for all intents and purposes."
16OA No. 645/2024 OA No. 579/2024 Item No.16/C-II
14. The applicant states that he received the punishment order on 05.08.2023 and filed an appeal dated 01.09.2023 (Annexure-A/3) against punishment order to the Joint Commissioner of Police. However, Appellate Authority vide order dated 18.03.2024 (Annexure-A/1A) decided his appeal. For facility of reference, it would be appropriate to quote the relevant portion of the appellate order, the same reads as under:-
"An enquiry into the matter has been got conducted by SHO/New Ashok Nagar which emerged that on enquiry from Inspr. Invest./PS Kanjhawala, it revealed that a case vide FIR No.260/23 dated 12.07.2023 u/s 392/34 IPC PS Kanjhawla has been registered on the complaint of Imran, wherein he has alleged that he used to play betting. On 09.07.2023, between 7:30 AM to 8:30 AM, 04 persons 02 in police uniform and 02 in civil dress came to his residence and took away Rs. 28,50,000/- cash after beating him. During Investigation, both the police officials have admitted taking money from Imran. Moreover Rs. 26 lacs have been recovered from them. The other persons (public persons) involved in the crime are Aman (driver) and Dheeraj, both are residents of Laxmi Nagar, Delhi.
During enquiry, it has also been revealed that on 09.07.2023, the appellants had lodged a departure DD entry vide No. 20A for enquiry of complaint at 07:08 AM but they did not lodge the arrival entry. Both police officials joined the morning briefing in police station at 10 AM but did not disclose the entire incident to SHO/New Ashok Nagar. They went for enquiry of the complaint without his knowledge/permission and have not brought anything relating to the incident to his knowledge.
On 12.07.2023, the appellants have been arrested in case FIR No.260/23 dated 12.07.2023 u/s 392/34 IPC PS Kanjhawala, Delhi.
For the above misconduct, the appellants have been placed under suspension from the date of their arrest in the above mentioned case, i.e. 12.07.2023 vide DD No. 26A dated 12.07.2023, PS New Ashok Nagar read with order No. 9022- 9045/HAP (P-I)/East District dated 19.07.2023.17 OA No. 645/2024 OA No. 579/2024
Item No.16/C-II From the above, it is evident that the appellants have violated all norms of ethics and morality. Such acts of obsessive corruption and misuse of powers speaks volumes about debauched character, which should not be tolerated in any disciplined force. This is a case where protectors of law have turned into robber and have abused the power they were bestowed with. They instead of performing their lawful duties, robbed Rs. 28,50,000/- from the complainant Imran S/o Farid with malafide intentions. Showing even a tad bit of leniency towards them would be a bad precedent and would encourage other members of the force in believing that these acts are minor delinquencies, which would be eventually overlooked. Robbery is eating away the roots of our society and if the guardians of law themselves indulge in such nefarious activities in flagrant violation of law, it becomes all the more important to check them for future.
They being member of disciplined force Instead of discharging their duties honestly and sincerely have indulged themselves in corrupt practice and robbed money to fulfill their never ending greed of money. They have violated all norms of ethics and morality by indulging themselves into such grave crime. They have tarnished the Image of Police Department among the society. They have lowered down the image and goodwill of uniformed organization which is not acceptable from the police officers whose prime duty/responsibility is to protect the common citizen and safeguard the spirit of law. But their conduct has also rudely shaken the faith of the citizens which they have posited on police force and its members. They have acted in a most reprehensible manner which is unexpected from the members of the disciplined force and extremely prejudicial to the personal safety and security of the citizen.
After having committed this gravest misconduct of Involvement in case FIR No.260/23 dated 12.07.2023 u/s 392/34 IPC PS Kanjhawala, if the appellants allowed to continue in police force, it would be detrimental to public interest and further lower down the image of police force in the society. The facts and circumstances of the case are such that it would not be reasonably practicable and justified to conduct a regular departmental enquiry against the appellants as there Is a reasonable belief that the witnesses may not come forward to depose against them. It Is a common experience that due to Influencing position of the appellants, witnesses and complainant do not come forward to depose against them in the departmental enquiry. It also calls for great courage to depose against such desperate persons and the task becomes more acute and difficult where the appellants are police officials as 18 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II they may use their job to influence the statement/deposition of the witnesses.
In view of the above facts and in compliance of Circular Issued from PHQ into the matter vide Nos.5545-645/P. Cell/Vig, dated 11.09.2007 and 2513-2612/P. Cell (P. Misc.)/Mg. Dated 18.04.2018, the enquiry report was forwarded to the Sp. CP/L&O (Zone-I) for seeking necessary concurrence to dismiss the defaulters under Article 311 (2) (b) of the Constitution of India and the same has been approved by the competent authority.
Therefore, keeping in view the sensitivity of the matter, a punishment of dismissal from Delhi Police was awarded to the applicants under Article 311(2)(b) of the Constitution of India vide order No.9140-9240/HAP/ED (P-III) dated 22.07.2023.
Following the appeal, I have duly considered the submission of the appellants and also heard them in O.R. on 14.03.2024 wherein they stated that the facts of the case are completely different from the allegations mentioned in the above FIR by complainant Imran. On 04.07.2023, the appellant HC was marked complaint of Guddu Mehto for inquiry and necessary action. It was alleged in the complaint that Guddu Mehto had given Rs.50,000/- as loan to Imran but Imran was not returning the loan amount and threatening him for dire consequences and also switched off his mobile phone. It is further mentioned that Imran is engaged In Satta Gambling. Complainant Guddu Mehto had proved the involvement of Imran in illegal acts of Satta gambling. Besides, in the above FIR Imran has himself admitted that he is engaged in IPL cricket match satta gambling and won Rs.28,50,000/- in IPL Cricket match Satta gambling. The above evidence clearly proved that Imran is a criminal and person of shady character and on relying allegations leveled by him against the appellants, the disciplinary authority is completely wrong and erroneous. The appellants had no malafide intention or ill motive so the appellants were wearing proper police uniform with proper name plates of identity. It is clear that the person engaged in criminal activity will always conceal his true identity to escape from fixing his or her identity and it is common in all type of crimes. The above facts clearly prove that the allegations of taking Rs. 28,50,000/- from the almirah of Imran against the appellants are false and motivated. The appellants had visited the house of Imran on 09.7.2023 for inquiry into about the complaint of Guddu Mehto and Imran was found present in his house. He was informed of the complaint of Guddu Mehto and allegations leveled by Guddu Mehto against him. He has admitted this fact in his FIR that he 19 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II was informed about the complaint. He was directed to join the Inquiry PS New Ashok Nagar on 10.07.2023 at 6 PM and proper Pabandinama was got signed from him in this regard. These facts clearly proved bonafide and following lawful procedure by the appellants in the Inquiry, As complainant Imran Is a criminal, he knowing all the police procedure, he would have Immediately made a PCR call or file a complaint in PS Kanjhawala on 09.07.2023 Itself but he neither made any PCR call nor filed any complaint on 09,07.2023. The complainant is engaged in IPL cricket match satta at high level and earning Rs.28,50,000/- In series of match as admitted by him in the FIR, so it is beyond imagination that the local police of PS Kanjhawala may not mixed up with him in this Illegal activates. It is certain that Imran has got registered the above false case and also got planted the recovery with the help of local police officials who has been hand in glove with him in the IPL cricket satta. The appellants did not know alleged Anudeep and Dheeraj and have no connection or association with them.
I have gone through the submissions of the appellants and the other file records. The case is still not charge-sheeted. The matter pertains to extreme levels of disruption viz probit. The undersigned has not found any ground to interfere in the punishment awarded to the appellants by the disciplinary authority. Therefore, the appeals filed by them are hereby rejected being devoid of merit and substance.
Let the appellants be informed accordingly."
15. We have perused the pleadings available on record and considered the submissions made by the learned counsels for the parties and have also gone through the Orders/Judgments referred to and relied upon by the learned counsels for the respective parties carefully.
16. 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 20 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II 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 in a manner which is highly unbecoming of a Police Officer. Therefore, keeping in view the position in the matter, the respondents have resorted to invocation of Article 311 (2) (b) of the Constitution of India and dismissed the applicant from the government service.
17. 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 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 21 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II 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 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 towards 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. Earlier also while deciding other matters we have pointed out that a serious course correction is needed in the respondent Department while handling such cases and it is for their betterment if they take 22 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II effective steps in that direction. We need not further ponder upon this point and leave it here.
18. 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 Hon‟ble 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 Authority depose against a police officer respondents have rejected the appeal which could be construed as bad in law.
19. 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 issued. 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 23 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II the same being bad in law and being based on assumptions, suspicion and surmises. Further, the Disciplinary Authority is assuming that the offence has been committed by the applicant and 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 state 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 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 24 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II 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.
20. The applicant is Head Constable/Constable in Delhi Police. Both are 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. There is no admissible material or evidence before the authorities to conclude that any witness is threatened or intimidated or will not depose in departmental enquiry and thus reason recorded for dispensing the Departmental Enquiry under Article 311 (2) (b) of the Constitution of India are not tenable. As stated above, the applicant is only Head Constable/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 tool to dismiss the applicant method in the present case. There is 25 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II no material in hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in the 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.
21. In the public interest and even as per Rule of law, it was incumbent upon the respondent 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 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 away 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. It is not known as to why DE which was ordered in this case was not conducted and respondents suddenly decided to invoke provisions of Article 311 (2) (b) of the Constitution of India. 26 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II
22. 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 as a reason to dispense 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, on the one hand taking no action to conduct disciplinary enquiry and while on the other citing the imaginary reasons of giving threat to witnesses etc., are the reasoning based on mere probability, suspicion and surmises and cannot be attached any credence. No material is placed before the authority to come to the conclusions that Departmental Enquiry is not possible and invocation of Article 311 (2) (b) of the Constitution of India is the only solution available to the respondents.
23. It is also observed that 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 cases in which preliminary enquiry is being conducted but in absolute violation of circular dated 11.09.2007 27 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II 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.
24. The decision of the Disciplinary Authority dispensing away with the Departmental Enquiry is bad in law. As also stated above, 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.
25. 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 28 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II reasons. The present reasoning is based on the assumption that the applicant has committed the alleged crime and thus 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 defence. 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.
26. 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 29 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II disciplinary authority. There is a finding of guilt against the applicant without conducting the Departmental Enquiry and further the disciplinary authority has come to such conclusions without even giving the opportunity to the applicant to put forward his defence, hence, 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 to the 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.
27. The applicant preferred an appeal 01.09.2023 (Annexure- A/3) against the punishment order of dismissal dated 22.07.2023 (Annexure-A/1). The Appellate Authority rejected the appeal on 18.03.2024 (Annexure-A/1A). 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 practicable or not. The graver the charge the opportunity to defend him should be more.
30OA No. 645/2024 OA No. 579/2024 Item No.16/C-II
28. We place reliance on the following judgements/orders:-
(i) 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 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;31 OA No. 645/2024 OA No. 579/2024
Item No.16/C-II
(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."
(ii) 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 Hon‟ble 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 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 32 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II 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 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."
(iii) 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 33 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II 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 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."
(iv) 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 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 34 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II 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 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."
(v) 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 35 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II 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.
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition, being meritless, is along with accompanying application, dismissed."
(vi) In the Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, the Hon‟ble Supreme Court vide its judgment on 10.07.2024 has dismissed the said SLP and the judgment of Hon‟ble Court of Delhi attained finality.
29. 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 36 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II 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 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.37 OA No. 645/2024 OA No. 579/2024
Item No.16/C-II
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 accompanying applications.
30. 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 O.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.
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.38 OA No. 645/2024 OA No. 579/2024
Item No.16/C-II Let Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) be informed accordingly.
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 along with 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 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) 39 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II Deputy Commissioner of Police Legal Division/ PHQ, Delhi"
Relying upon the circular issued on 11.09.2007, 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 11.09.2007 (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 resort to Article 311 (2) (b) of the Constitution of India. The said circular dated 11.09.2007 reads as under:-
"CIRCULAR No. 5545-645/P. Cell/Vig. Dated 11.09.2007 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 40 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II 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, 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 POLICE:
HDQRS,: DELHI""
31. 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 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 41 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II recovered from the Officer, who takes such type of unwarranted decision.
22. A copy of this order be transmitted to the Commissioner of Delhi Police for information and compliance."
32. Recently, the Hon‟ble High Court of Delhi in the matter of GNCTD & Ors. Vs. Amar Singh Chauhan decided on 20.09.2024 recorded the following order:-
"1. Learned counsel for the petitioner, on instructions, submits that in view of judgment dated 14.08.2024 passed by this Court in W.P. (C) 11276/2024 titled as The Commissioner of Police & Ors. Vs. OM Prakash &anr., petitioners may be allowed to withdraw the present petition.
2. Accordingly, the present petition is dismissed as withdrawn.
3. Petitioners are directed to examine all such petitions pending before this Court which are falling under similar circumstances and to file application to withdraw the said petitions, if they consider it necessary."
33. Having regard to the above, we are of the considered view that impugned order passed by the respondents is not only in violation of the settled law but also of 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.
34. 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: -
42OA No. 645/2024 OA No. 579/2024
Item No.16/C-II
(i) The impugned order dated 22.07.2023 (Annexure-A/1) passed by the Disciplinary Authority and the order dated 18.03.2024 (Annexure-A/1A) passed by the Appellate Authority are quashed and set aside. In so far as order dated 12.10.2023 (Annexure-A/2) is concerned, interim relief was granted to the applicant i.e. HC Mangtu by this Tribunal vide order dated 19.02.2024. Interim order granted by this Tribunal vide order dated 19.02.2024 is made absolute.
(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
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
(v) In view of the judgment dated 14.08.2024 of the Hon‟ble High Court of Delhi in WP (C) 11276/2014 in the matter of The Commissioner of Police & Ors. Vs. Om Prakash and Anr., we do not find any improvement in the manner of working of the respondents and come to the conclusion that this 43 OA No. 645/2024 OA No. 579/2024 Item No.16/C-II Tribunal cannot remain a mute spectator to such inactions of the respondents. We are of the firm view that inaction on the part of respondents deserves to be dealt with seriously and accordingly, a cost of Rs. 50,000/- (Rs. Fifty Thousand) each is imposed upon the respondents nos. 2 & 3. The cost shall be paid in the Prime Minister‟s Relief Funds within above mentioned period of eight weeks. The respondent no. 1 is further directed to record inaction on the part of the Respondents nos. 2 & 3 in their APAR for the year 2025-26.
(vi) Pending MAs, if any, stand closed.
(vii) A copy of this common order be placed on record of both the captioned O.As.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/neetu/