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Judgment
R.N. Singh, Member (J)
By way of the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the Order dated 17.11.2014 (Annexure-A-1) passed by the Disciplinary Authority dismissing him from service by invoking power under Article 311 (2) (b) of the Constitution of India and also the order dated 29.10.2015 (Annexure-A-2) passed by the Appellate Authority rejecting his appeal preferred against the aforesaid order of the Disciplinary Authority. The applicant has prayed for setting aside of the aforesaid impugned orders passed by the Disciplinary and Appellate Authorities and for his reinstatement in service with immediate effect with all consequential benefits.
Briefly, the facts of the present case are that the applicant, who was working as Constable in Delhi Police, while posted temporarily in P.S. Badarpur, South-East Distt, Delhi, was alleged to be found involved in Commission of a robbery committed by him along with his associates in the area of P.S. Hauz Qzai. The Anti Robbery Cell Crime Branch, Delhi arrested him under Section 41.1 (A) Cr.P.C. vide DD No.6 dated 18.4.2014, ARC, Crime Branch, Delhi and was later on arrested in case FIR No.86/14 dated 8.4.2014 registered under Sections 393/365/34 of IPC at P.S. Hauz Qazi, Delhi and cash of Rs.15.5 lacs (part of booty) was recovered from his house at his instance. However, after holding a preliminary enquiry and on the basis of report of the said preliminary enquiry, the Disciplinary Authority vide impugned order dated 17.11.2014 (Annexure-A-1) dismissed the applicant from service by invoking the power under Article 311 (2) (b) of the Constitution of India without conducting a departmental enquiry. The relevant portion of which reads as under:-
“The undersigned orders a preliminary enquiry into the matter to be conducted by Shri Bharat Singh Jakhar, ACP/DIU/South Distt. under Rule – 15 (1) of Delhi Police (Punishment & Appeal) Rules, 1980 vide order No.4717/SD(P-II), dated 24.04.2014. Shri Bharat Singh Jakhar conducted the preliminary enquiry and submitted his enquiry report on record and the evidence as discussed in the P.E. report, it is fully established that Ct. Yash Vir Singh, No. 1218/SD (PIS No.28910918) committed grave misconduct by involving himself in commission of offence of robbery with other criminals, whereas he was duty bound to prevent commission of crime and nab the criminals. Sufficient evidence has been brought on record to prove his misconduct as above. Since Const. Yash Vir has committed a grave misconduct, it renders him unfit for police service. Thus Const. Yash Vir may be dealt with through regular Departmental Enquiry, for which sufficient documentary evidence has been brought on record.
Const. Yash Vir Singh No. 12118 No.28910918) was placed under suspension w.e.f. 18.04.2014 i.e. the date of his arrest in case FIR No.86/14, dated 08.04.2014 u/s 392/365/34 IPC, P.S. Hauz Qazi, Delhi, vide this office order No. 4642-92/HAP/SD(P-II) dated 23.04.2014.
The above said act on the part of Const. Yash Vir Singh, No. 1218/SD (PIS No. 28910918) shows his criminals propensity and immoral attitude. He, being member of disciplined force, is responsible for protecting the society and citizens of this country from immoral and illegal activities, but instead of discharging his duty honestly and sincerely, he has not only tarnished the image of Delhi Police but also has rudely shaken the faith of the citizens on the entire police force, which is supposed to be their protector. He has acted in a most reprehensible manner, which is unexpected from the members of the disciplined force and which is undoubtedly extremely prejudicial to the personal safety and security of the citizens.
The involvement of Const. Yash Vir Singh, No.1218/SD in such a shameful act has eroded the faith of common people in police force and his continuance in the force is likely to cause irreparable loss to the functioning and credibility of Delhi Police. The defaulter Const. has acted in a manner highly unbecoming of a police official.
After such act of serious misconduct, if the defaulter Const. Yash Vir Singh, No.1218/SD is allowed to be continued in police force, it would be detrimental to public interest. The facts and circumstances of the case are such that it would not be reasonable practicable to conduct a regular departmental enquiry against the defaulter Const. as there is a reasonable belief that no witness/complainant would come forward to depose against him.
In the backdrop of the position explained in the foregoing paras, it is crystal clear that Const. Yash Vir Singh, No.1218/SD is public servant of immoral bent of mind and there is every possibility that the witnesses/ complainant would not come forward to depose against him in case a departmental enquiry is initiated against him. Under these compelling circumstances, the rules under Article 311(2)(b) of Constitution of India are invoked in this case for the sake of justice. Const. Yash Vir Singh, No.1218/SD has become a liability to the department and should be dismissed. It would be both in the interest of general public and society as well as for the establishment of rule of law, which is expected by public and society at large. In my opinion he is unfit to be retained in the police force any more.
Therefore, I P.S. Kushwah, Addl. Dy. Commissioner of Police, South Distt., New Delhi do hereby DISMISS defaulter Const. Yash Vir Singh, No. 1218/SD (PIS No. 28910918) from service with immediate effect under article 311(2)(b) of the Constitution of India. His suspension period from the date of suspension to the date of issue of this order is treated as ‘period not spent on duty’ for all intents and purposes. He will deposit all Government belongings i.e. Identity Card, CGHS Card and uniform articles with the department forthwith. He is not in possession of Govt. accommodation.”
(emphasis supplied)
Aggrieved of the aforesaid order of the Disciplinary Authority, the applicant has submitted his appeal to the Appellate Authority, which was rejected by the Appellate Authority vide order dated 29.10.2015 (Annexure-A-2). In such circumstances, the applicant has filed the present OA for redressal of his grievances.
Pursuant to the notice, the respondents have filed their counter reply. The applicant has also filed his rejoinder.
During the course of hearing, Shri Gupta, learned counsel for the applicant has submitted that although a preliminary enquiry in terms of provisions of Rule 15(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 was conducted into the above mentioned alleged incident. The applicant was not given opportunity to participate in such enquiry and cross examine the witnesses and/or lead his evidence. However, on the basis of the report of such preliminary enquiry submitted by the inquiry officer, the Disciplinary Authority dismissed the applicant by invoking the provisions of Article 311(2)(b) of the Constitution of India. Learned counsel has further submitted that in the said criminal trial, witnesses are coming forward to depose and hence, the findings of the disciplinary authority as accepted by the Appellate Authority that the witnesses/complainant will not come forward to depose against the applicant is farce. Learned counsel has also submitted that in the said criminal trial, complainant has already been examined and cross examined. Learned counsel has also submitted that the appeal preferred by the applicant was rejected by the Appellate Authority vide order dated 29.10.2015 (Annexure-A-2) without dealing with the contentions put forth by the applicant in his appeal. He has further submitted that the impugned orders are not only in violation of the respondents own instructions issued vide various circulars on the subject but also contrary to the dicta laid down by the Hon’ble High Court of Delhi as well as this Tribunal in a catena of similar cases. Learned counsel has further submitted that in the cross examination of Samim Sultani, who has been arrayed as witness No.1 in the list of witnesses of the challan, the said witness has specifically stated that he has not signed the complaint which was the basis of FIR being lodged against the applicant and others. Learned counsel has also drawn our attention to the grounds taken for passing the aforesaid impugned order by the Disciplinary Authority from which it is evident that in the Disciplinary Authority’s order itself, it is recorded that ‘Const. Yash Vir Singh, No.1218/SD is public servant of immoral bent of mind and there is every possibility that the witnesses/complainant would not come forward to depose against him in case a departmental enquiry is initiated against him. Under these compelling circumstances, the rules under Article 311(2)(b) of Constitution of India are invoked in this case for the sake of justice. Const. Yash Vir Singh, No.1218/SD has become a liability to the department and should be dismissed. It would be both in the interest of general public and society as well as for the establishment of rule of law, which is expected by public and society at large. In my opinion he is unfit to be retained in the police force any more.’
Shri Gupta, learned counsel for the applicant has further reiterated that the reasons recorded by the disciplinary and appellate authorities to dispense with the departmental enquiry are based on suspicion and surmises and in the facts and circumstances of the case, the reasons recorded by the respondents for invoking the provisions of Article 311 (2)(b) of the Constitution of India to dispense with the disciplinary proceedings are not tenable in the eyes of law and the said provisions are being used as a short cut method.
On the other hand, Shri Puneet Rathi learned counsel, appearing for Mrs. Rashmi Chopra, learned counsel for the respondents with the assistance of the counter reply, has vehemently argued and opposed the claim by submitting that the disciplinary authority has rightly dismissed the applicant from the service by invoking the provisions of Article 311(2)(b) of the Constitution of India after holding a preliminary inquiry in the matter in the interest of justice and the appeal of the applicant was rightly rejected by the appellate authority as the gravity of the offence committed by the applicant is higher. In support of the stand of the respondents, reliance has been placed on the decision of the Hon’ble Delhi High Court in Writ Petition (Civil) No.1309/2023, titled Manohar Lal vs. Commissioner of Police, decided on 2.2.2023 as well as of this Tribunal in the case of Rishi Pal Singh vs. Govt. of NCTD and others in OA No.1293/2014 decided on 21.11.2017.
We find that dismissal by invoking the provisions of Article 311(2)(b) of the Constitution of India has been considered by a Division Bench consisting one of us (R.N. Singh) of this Tribunal in a common Order/Judgment dated 10.2.2022 in the case of Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others in OA No.1283/2020 and a batch of cases, we deem it appropriate to refer to the relevant paras of the same, i.e., paras 45 to 48 thereof, which read as under:-
“45. In the cases in hand, it is evident that in most of the cases preliminary inquiry had admittedly been done and regular enquiry had been dispensed with on the ground of possibility of witnesses likely to be unduly harassed or pressurized by the delinquent(s). In all the case FIRs, chargesheet had been filed, list of witnesses had been filed, a few witnesses had been examined or after tiral the accused(s) had been acquitted. In a few cases, the reason for dispensing with the enquiry had been given that the material had come on record to prove the criminal acts of the applicants. The reason had been also of threat to discipline, integrity and morality of the entire police force. On perusal of the impugned orders, it is evident that either the authorities have passed the orders of dispensing with the enquiry on jumping to the conclusion that delinquency or guilt of the applicants as alleged in the case FIRs stood proved even without regular enquiry in the departmental proceedings or trial in the concerned learned court(s). In most of the cases, conclusion about delinquency and commission of the offence(s) by the applicant(s) had been arrived merely on the basis of the preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made to summon the witness(es) to lead the evidence against the applicant(s) or anything was found that on regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) to lead evidence against the applicant(s). Rather the respondents have themselves filed the final challan(s) with a list of witness(es) before the concerned learned Court(s) and in a few cases, the accused(s) had been acquitted as well. In a few cases, witnesses have been examined before the concerned learned Court(s). Moreover, co-delinquent in the cases of Neeraj Kumar (supra) and Ramesh Kumar (supra), the similar impugned orders have been set aside by the Tribunal and the orders of the Tribunal have also attained finality.
It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon’ble Supreme Court and Hon’ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove.
In view of the aforesaid, we are of the considered view that the aforesaid OAs deserve to be partly allowed and the same are partly allowed with the following directions:-
(i) Order(s) passed by the disciplinary and appellate authorities in the aforesaid OAs are set aside with all consequential benefits to the applicants in accordance with the relevant rules and law on the subject; and
(ii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant(s) in accordance with the law.”
We further find that disciplinary and appellate authorities have not correctly applied their mind to the facts of the case as Govt. of India vide OM dated 11.11.1985 as well as the respondents themselves through their own circulars dated 21.12.1993 and 11.9.2007 which provide that the disciplinary authority should not take resort of Article 311(2)(b) of the Constitution of India lightly and should take action only in rarest of rare case where it is not reasonably practicable to hold departmental enquiry and that a Govt. servant is entitled to have an opportunity to defend himself when there are allegations against him and only in exceptional circumstances law permits the department to dispense with the enquiry and other legal formalities. However, the present case is not of such nature. We also find that the impugned orders are passed without complying the requirements of various circulars, which categorically stipulates that dismissal of the Police Officers involved in the cases of Rape and Dacoity and any such heinous offences by resorting to the provisions of Article 311(2)(b) of the Constitution of India is illegal and such dismissal without conducting departmental enquiry is illegal, as in such cases departmental enquiry can be conveniently held having regard to the charges levelled against delinquent, like the case of the applicant.
So far as reliance placed by the learned proxy counsel for the respondents’ counsel on the decision of this Tribunal in the case of Rishi Pal Singh (supra) is concerned, the said order/judgment has also been considered while passing the order/judgment in the case of Ct. Sumit Sharma (supra) and, therefore, we need not record details thereof.
We have also gone through the judgment dated 2.2.2023 of the Hon’ble High Court of Delhi in the case of Manohar Lal (supra). In the said case, under challenge was the order dated 29.11.2022 passed by this Tribunal in OA No.744/2020 whereby the Tribunal dismissed the aforesaid OA filed by the petitioner challenging the action of the respondents in dismissing him from service under Article 311(2)(b) of the Constitution of India. In para 15 of the judgment dated 2.2.2023, the Hon’ble High Court has recorded the reasons for dismissing the said Writ Petition. Para 15 of the judgment of the Hon’ble High Court of 2.2.2023 reads as under:-
“15. We are of the view that the learned Tribunal is justified in dismissing the petition for the reasons stated as under:
(i) The charges against the petitioner are of very serious nature.
(ii) The allegations which had already been reproduced above is that the petitioner, who was holding the position of constable along with two Sub-Inspectors posted in the Special Cell of Delhi Police forcibly entered into a godown by breaking open the room where sandalwood logs were kept and loaded approx. 1355 Kg. of sandalwood logs into a tempo and took away the SIM card from the mobile phone of Guard Maniram.
(iii) That apart during the preliminary inquiry it transpired that the complainant / witness of the case was severely traumatised by this egregious act of criminals, especially the police personnel involved therein due to their close association with hardened criminals.
(iv) A charge sheet has been filed against the petitioner in connection with FIR No.390/2017 registered at PS Bhalswa Dairy, showing a prima facie case against the petitioner.
(v) In the appeal filed by the petitioner, he has not denied that he is not involved in the alleged offence.
(vi) Insofar as the plea of the learned counsel for the petitioner that there is another witness, i.e. the nephew of the guard namely Mohit is concerned, we note that the FIR records that the guard Maniram and his nephew Mohit were cooking food when he heard a knock at the door, pursuant to which Maniram opened the door to see a person in a police uniform. Further, it records that at 06:45 A.M. on the next day when the contractor had reached the premises, the guard’s nephew Mohit arrived and stated that he had slept on the terrace of another godown, on being scared of the men who had come wearing police uniform. Suffice to state, the nephew of the guard being a child of 11 years upon being scared of the men in police uniform, had left the godown and went to the terrace of another godown. If that is indeed the case, it is not known as to how much weight his deposition may carry. That apart, there may arise an apprehension that the charged persons including the petitioner being police officer who are well versed in criminal proceedings, may try to intimidate or influence this witness as well, more so, when he is a minor.”
However, nothing has been recorded in the impugned order(s) or shown to us that the applicant had ever threatened or harassed any of the witness(es) and/or the prospective witness(es) and further there is no evidence or document to indicate that in view of the facts and circumstances of the case, any efforts was made by them to summon the witness(es) to lead the evidence. It is also not the case of the respondents that resorting to regular enquiry, the relation with foreign countries was likely to be adversely affected. From the impugned orders, it is evidently clear that neither any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their best efforts, the respondents had not been able to produce the witness(es) to lead evidence against the applicant and further nothing is brought on record that witness(es) has/have been threatened by the applicant or they are too scared of the applicant to come forward in the regular enquiry proceedings. It is also found that the disciplinary authority while passing the impugned order has very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant and there being a possibility that witness(es) may not come forward to depose against the applicant despite the facts that the relevant witnesses are participating in the criminal trail initiated pursuant to the said FIR case.
In view of the aforesaid, the reliance placed by the respondents on the decision of the Hon’ble High Court of Delhi in Manohar Lal (supra) is of no help to them as in the said case during the preliminary inquiry, the complainant/witness of the case was severely traumatized by the egregious act of criminals, especially the police personnel involved therein due to their close association with hardened criminals and in the appeal filed by the petitioner therein, he has not denied that he is not involved in the alleged offence of robbery-cum-burglary, which is not the case in hand.
In view of the above, impugned orders of the respondents are not only in violation of the settled law but also of the respondents’ own instructions on the subject. The reasons given by the respondents for dispensing with the enquiry are not also in consonance with the law settled by the Hon’ble Supreme Court and Hon’ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
Having regard to the aforesaid facts and circumstances of the present case, we are of the considered view that this case is squarely covered by a catena of cases, including the common Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 17.11.2014 (Annexure-A-1) and dated 29.10.2015 (Annexure-A-2) passed by the disciplinary and appellate authorities respectively are set aside;
(ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject;
(iii) The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order; and
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
However, in the facts and circumstances, there shall be no order as to costs.