Brahm Pal Singh vs Commissioner of Police & Ors.

O R D E R

“(a)

Quash and set aside the impugned order dated 30.3.2018 placed at Annexure A/1 and;

(b)

direct the respondents to reinstate the applicant forthwith and.

(c)

accord all consequential benefits

(d)

award costs of the proceedings ; and

(e)

pass any order/relief/direction(s) as this Hon’ble Tribunal may deem fit and proper in the interests of justice in favour of the applicant.”

On 30.03.18, SHO Police Station Sihani Gate, Distt. Ghaziabad, U.P. has informed regarding arrest of ASI (Exe.) (S.G.) Satender Kumar, No. 679/E (PIS No. 28880114) & ASI (Exe.) (S.G.) Brahmpal No. 1598/E (PIS No. 28884287) in case FIR No. 593/18 dated 19.03.2018 u/s 398/394/504/506 IPC, PS Sahibabad, Distt. Ghaziabad, U.P.

It is informed that on 19.03.18, one Rohit Jain, an employee of Union Chains and Jewellers Pvt. Ltd. (Mumbai) reported in P.S. Sahibabad, District Ghaziabad (U.P.) that on 18.03.18, he had come to Meerut from Mumbai to meet his clients. At about 8 PM, he along with Kishan, Deepak and one driver departed for Delhi from Meerut in a car. When they reached near Sahibabad Railway Station cut on the GT road, one car (Alto/ 800) stopped their way. Two police personnel came out of the car and started beating and abusing them. Both the police persons along with their two more associates who were in the car in civil dress forcefully pushed the complainant along with his 2 bags (having Jewellery) in their car and took him at an isolated place where they threatened him and fled with the bags of jewellery. Accordingly, a case vide FIR NO. 593/2018 dated 19/03/2018 U/S 394/506/504 IPC was registered at P.S. Sahibabad, Distt. Ghaziabad (U.P.). During the course of investigation, ASI Satender Kumar, No. 679/E and ASI Brahmpal No. 1598/E were arrested on 28.03.2018. and approximately 6 kg. robbed Gold and one car stolen from PS Sarita Vihar. Delhi were recovered from their possession.

It has been further revealed that accused persons, ASI Satender Kumar, No. 679/E and ASI Brahmpai No. 1598/E planned the entire crime and executed the same in connivance with other accused persons. ASI Satender & ASI Brahmpal are the master minds of this sensational robbery. Both, ASI Satender & ASI Brahmpal were wearing uniform of Delhi Police at the time of commission of crime. The involvement of ASI Satender & ASI Brahmpal in the said case shows their desperate conduct, criminal tendency and immoral character.

A preliminary enquiry into the matter has been got conducted through ACP/P.G. Cell/East District, which has corroborated the report received from UP Police. ASI Satender & ASI Brahmpal were posted in East District since 29.11.2014 and 17.06.2013 respectively, who have been arrested in case FIR No. 593/18 dated 19.03.2018 u/s 593/18 u/s 398/394/504/506 IPC, PS Sahibabad on 28.03.2018.

The above criminal act on the part of both ASI Satender & ASI Brahmpal is highly abhorrent on their part being a member of police force. It is the first and foremost duty of a policeman to protect the life and property of the citizen. This act of ASI Satender & ASI Brahmpal has not only tarnished the image of Delhi Police but has also badly shattered the faith of common man in the police. Their continuance in police force is likely to cause an irreparable loss to the functioning and credibility of Delhi Police. The fact and circumstances of the case are such that it would not be reasonably practicable to conduct a regular departmental enquiry against ASI Satender & ASI Brahmpal in view of the threat, inducement, intimidation and affiliation by himself and his associates, who are desperate criminals. The witnesses will not come forward to depose against ASI Satender & ASI Brahmpal during departmental enquiry due to the fear of their life and property and they will also intimidate the E.O, The misconduct and active criminal involvement of ASI Satender & ASI Brathmpal has been established during investigation of this heinous criminal case. They are not fit to be part of a disciplined force. Police service stands for sacrifice, dedication and honesty. Moreover, both of them committed the crime in police uniform and thereby further demeaned the very oath which every police officer takes before joining police force. As such, their heinous act is beyond pardonable capacity of any authority bound by morals and conduct rules. Their services are no more desirable in Delhi Police and they need to be dismissed immediately in the interest of public at large and prevent further loss of image and credibilty of Delhi Police. Therefore, ASI Satender & ASI Brahmpal deserve exemplary punishment i.e. dismissal from the pollce force with immediate effect under article 311 (2) (b) of the Constitution of India.

Keeping in view the overall facts and circumstances of the case, I, Omvir Singh Bishnoi, Dy. Commissioner of Police, East District, Delhi do hereby DISMISS defaulters ASI Satender Kumar, No. 679/E and ASI Brahmpal No. 1598/E from service with immediate effect under artile 311 (2) (b) of the Constitution of India. ASI Brahm Pal and ASI Satender were placed under suspension vide DD No.10-B dated 26.03.18, PS Gazipur and DD No. 36 dated 29.03.18 District Line, East District respectively. Their period of suspension from the date of their suspension till the išsue of this order is also decided as period 'not spent on duty' for all intents and purposes.”

“9.

After considering the relevant materials on the subject including circulars dated 28.12.1998 and 11.9.2007 and the case law, this Tribunal has considered the similar issue while deciding a batch of cases, OA No.1383/2020 and others, titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others, etc., vide common Order/Judgment dated 10.2.2022, paras 31, 32 and 45 to 47 read as under:-

“31.

It is not that the issue of invoking the provisions of Article 311(2)(b) of the Constitution of India came for consideration before the Hon’ble Apex Court in the aforesaid cases or any other cases before other Court(s) and/or Tribunal(s) only but the same had attracted the attention of the respondents themselves as well and the respondents have themselves emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) of the Constitution of India lightly but only in those cases where it is not reasonably practicable to hold the inquiry. The same is evident from the circular dated 21.12.1993 (Annexure A/10 to OA 467/2020) of the respondents, which reads as under:-

“The Police Officers involved in the case of rape or dacoity or any such heinous offence have been dismissed straightway under Article 311(2)(b) despite the fact that criminal cases have been registered. Such dismissals without holding D.Es are illegal because in such cases D.E. can be conveniently held.

It is, once again emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) lightly but only in those cases where it is not reasonably practicable to hold the enquiry. Whenever the disciplinary authority comes to the conclusion that it is not reasonably practicable to hold an enquiry he must record at length cogent and legally tenable reasons for coming to such conclusion. In the absence of valid reasons, duly reduced in writing, no such order of dismissal etc. with resort to Article 311(2)(b) can be sustainable in law.”

32.

The issue regarding application of the provisions of Article 311(2)(b) of the Constitution of India came before the Hon’ble Apex Court in various cases and the law stands settled by the Apex Court in the Constitution Bench decision in Tulsiram Patel (supra), the similar issue came before the Hon’ble Apex Court, the Hon’ble High Court(s) and the Tribunal(s) in many cases thereafter and after considering the issue at length, this Tribunal had made observation as in para 20 of the Order/Judgment dated 5.6.2007 in the case of Suresh Kumar (supra), noted in paragraph 16 hereinabove. The issue of termination/dismissal of the services of various employees attracted the attention of the respondents themselves. The respondents, after considering the provisions of Article 311(2)(b) of the Constitution of India and the judgment of the Hon’ble Apex Court in the case of Tulsiram Patel (supra) and the Order(s)/Judgment(s) passed by this Tribunal have issued another circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not practicable to hold an inquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and the disciplinary authority has no option but to resort to Article 311(2)(b) of the Constitution of India. The said circular dated 11.9.2007 reads as under:-

“CIRCULAR No. /2007

An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases and only one case action was upheld by the Hon’ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry. Though some cases are still pending in the Hon’ble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2) (b) on assumptions and conjectures. No speaking orders were passed based on and supported by material/facts on record for dispensing with prior enquiry. Orders for dismissal were passed arbitrarily violating Article 311 and the principles of natural justice. Henceforth, it has been decided that whenever any Disciplinary Authority intends to invoke Article 311 (2) (b) of the Constitution of India, he must keep in mind the judgment in the case of UOI v. Tulsi Ram Patel, AIR 1985 SC 1416. Only in cases where Disciplinary Authority is personally satisfied on the basis of material available on file that the case is of such a nature that it is not practicable to hold an enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in view of specific circumstances of the case it is not possible that PWs will depose against the defaulter and disciplinary authority has no option but to resort to Article 311 (2) (b) should such an action be taken. Prior to such an order, a PE has to be conducted and it is essential to bring on record all such facts. It has also been decided that before passing on order under Article 311 (2) (b) of the Constitution of India, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn. This has the approval of C.P., Delhi. Sd/-(S.N. SRIVASTAVA) JT. COMMISSIONER OF POLICCE: HDQRS,: DELHI””

“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.

46.

It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon’ble Supreme Court and Hon’ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.

47.

It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove.”