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Judgment
O R D E R
Hon’ble Mr. R.N. Singh, Member (J) :
By filing the instant Original Application under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the Order dated 5.12.2018 (Annexure A-1) passed by the Disciplinary Authority dismissing him from service by invoking their power under Article 311 (2) (b) of the Constitution of India and also the order dated 17.7.2019 (Annexure A-2) passed by the Appellate Authority rejecting his appeal preferred against the aforesaid order of the Disciplinary Authority. The applicant has prayed for setting aside of the aforesaid impugned order(s) passed by the Disciplinary and Appellate Authorities and has also prayed for his reinstatement in service with consequential benefits including promotion/seniority and arrears of pay since the applicant is not able to get job despite his best efforts and is unemployed.
Brief facts leading to filing of the present OA are that while the applicant was working as Asst. Sub Inspector, a case FIR No.643/18 dated 5.12.2018 under Sections 341/342/365/384/34 IPC was registered at PS Maurya Enclave, Delhi. The applicant was arrested in the aforesaid case on 5.12.2018 and released on bail on 28.5.2019. However, without holding a regular departmental enquiry and without giving any opportunity to defend, the Disciplinary Authority has dismissed the applicant from service vide impugned order dated 5.12.2018 (Annexure A-2), the contents of which reads as under:-
“Whereas it is alleged against HC Indu Panwar, No. 910/OD (PIS No. 28961311) that while being posted in PS Ranhola, a case vide FIR No. 643/18 dt. 05.12.2018 u/s 341/342/365/384/34 IPC, PS Maurya Enclave, Delhi has been registered against him on the complaint of Smt. Sneha Pradhan w/o Pradeep r/o D-29/1, Mahavir Vihar Colony, Kanjhwala, Delhi. Therein she alleged that her husband Pradeep Kumar is having business of Insurance at Sec.3, Rohini and was implicated in a false case of fraud at Chattisgarh by his colleagues namely Rajiv Sharma, Shakti Panwar, Sanjay Gupta and Ashish Kumar due to which Chattisgarh police was in search of her husband Pradeep. On 02.12.2018, one Sachin Verma @ Ashu had called her husband Pradeep at his office in Uttam Nagar in connection with the case registered with Chattisgarh Police. Later on, her husband Pradeep called on the mobile phone of her father-in-law and asked to arrange a sum of Rs. 50 Lakhs as he had been abducted by three police personnel of PS Ranhola who at later stage were identified as ASI (Exe) Sube Singh, No. 5186/OD; (PIS No. 28870935), HC Indu Panwar, No. 910/OD (PIS No. 28961311) & Ct. Ajay, No. 2475/OD (PIS No. 28081014).
On 03.12.2018, the complainant arranged a sum of Rs. 5.75 Lakhs by mortgaging her jewellery at Muthoot Finance which she handed over to three persons who were sitting in XUV Car bearing No. HR 51AQ 2450, near DC Office, Kanjhawala. During the whole episode she was in conversation with her husband Pradeep on mobile phone who told her to arrange remaining money. Further she withdrew a sum of Rs. 5 Lakhs from Kotak Mahindra Bank and handed over the same to above persons who were still sitting in above mentioned XUV Car near Panasonic Showroom, Sec-3, Rohini on the telephonic direction of her husband. After that her husband again told her to arrange remaining amount at the earliest. Subsequently, she arranged a sum of Rs. 15 Lakhs but she was not able to withdraw the amount from the bank.
On the next day she alongwith her relatives came to Kotak Mahindra Bank to handover the amount where HC Indu Panwar, No. 910/OD came to collect the money. But they felt suspicious and a scuffle took place between her relatives and HC Indu Panwar, No. 910/OD and they caught hold of him. A PCR call was also made in the matter and HC Indu Panwar, No. 910/OD was handed over to the local police alongwith pistol and 10 live cartridges.
However, HC Indu Panwar, No. 910/OD (PIS No. 28961311) and others who were sitting in the Wagor R car bearing No. 3441 managed to escape from the spot. She further alleged that ASI (Exe) Sube Singh, No. 5186/OD, (PIS No. 28870935), HC Indu Panwar, No. 910/OD (PIS No. 28961311) & Ct. Ajay, No. 2475/0D (PIS No. 28081014) had abducted her husband Pradeep and kept him in unlawful custody and extorted money from their family. On having been arrested in above criminal case all the above accused police personnel were also placed under suspension vide this office order No. 23991-24017/HAP (P-IVOD dt. 05.12.2018.
The above act of HC Indu Panwar, No. 910/OD (PIS No. 28961311) has put the entire police force to shame especially when the force is responsible for the safety and security of the citizen. What will be the fate of the society, if the custodian of law becomes law breaker? This criminal act of HC Indu Panwar, No.910/OD (PIS No. 28961311) is not only reprehensible but has also tarnished the image of the entire police force in the eyes of the law abiding citizens of the country. Such misconduct cannot be tolerated in any disciplined organization Ike police whose basic duty is to protect the safety and security of citizen in the society. The act of HC Indu Panwar, No. 910/OD (PIS No. 28961311) is extremely dangerous, shameful, and the most deplorable act of moral turpitude. Even after having committed such a grave misconducts, if the defaulter ASI is allowed to continue in the police force, it would be detrimental to public interest and further tarnish the image of the police force in the society. Besides, if he is allowed to continue in the service on the basis of prolonged process of DE, he may also hamper investigation and the judicial trial by intimidating the witnesses and victim.
A preliminary enquiry into the matter was ordered vide No. 15283/SO Branch/DCP/Outer Distt. dt. 05.12.2018. Prima facie the facts of the incident registered U/s 341/342/365/384/34 IPC, PS Maurya Enclave, Delhi and the facts revealed during the preliminary enquiry, suffice to prove the criminality of the accused Head Constable. Ordinarily, a regular departmental enquiry should follow before taking disciplinary action against the defaulter Head Constable. But holding a long and tedious enquiry shall discourage the complainant from deposing against the delinquent. The alleged persons being uniformed police personnel are in a position where they can intimidate and threaten the complainant and other witnesses from deposing. Taking into consideration all the facts and circumstances of the present case, I am of the considered view that it is not reasonably practicable to hold a departmental enquiry. Hence, in compliance to Circular issued from PHQ into the matter vide No. 5545-645/P.Cell/Vig. Dt. 11.09.2007, the above enquiry report was forwarded to Spl.CP/L&O (S), Delhi for seeking his concurrence to dismiss the defaulters under Article 311 (2) (b) of Constitution of India and the same has been approved by the competent Authority.
Whereas, the undersigned is of the opinion that the misconduct of HC Indu Panwar, No. 910/OD (PIS No. 28961311) is extremely dangerous, more so because he dons a uniform. The police force is entrusted with the primary responsibility of maintaining the Rule of Law, catching criminals and bringing them to trial so as to ensure justice & peace to the public citizens whose rights and liberties are violated by criminals. But in this current instance the protectors & preservers of rule and law became the violators themselves.
Whereas, such instance would shake the very foundations of the trust that the society deposes in the police force, that innocent public are safe in the hands of the police and it is only the criminals who should fear the police force. From the instances enumerated in the preceding paras, a situation is revealed wherein the police officials themselves posed an immense risk to the safety and well- being of a public person. A Police Officer like HC Indu Panwar, No. 910/OD (PIS No. 28961311) is a threat to the discipline, integrity and morality of the entire police force and a huge threat to the public at large because the uniform that he dons bestows a huge authority on him which he has misused to indulge in acts completely unbecoming of a government servant. He has acted in a most reprehensible manner which is unexpected from a member of the uniformed force and undoubtedly extremely prejudicial to personal safety and security of the citizen. The above misconduct on the part of HC Indu Panwar, No. 910/OD (PIS No. 289613 H1) reflects his criminal tendency. The misconduct of the kind committed by HC Indu Panwar, No. 910/OD (PIS No. 28961311) if left unpunished in the strongest possible manner will send a very wrong signal to the rest of the police department and will be extremely demoralizing for those police officials who discharge their duties with utmost responsibility and sincerity. The further retention of HC Indu Panwar, No. 910/OD (PIS No. 28961311) in the public service is extremely undesirable and the ends of justice would be met if a major penalty of dismissal from service, which shall ordinarily be a disqualification for future employment under the government, is imposed on HC Tndu Panwar, No. 910/0D (PIS No. 28961311).
Now, therefore, 1, Seju P. Kuruvilla, Dy. Commissioner of Police, Outer Distt., Delhi, the disciplinary authority of HC Indu Panwar, No. 910/OD (PIS No. 28961311) in exercise of the powers vested in me by virtue of the Provisions of Second Proviso to Article 311(2) of The Constitution of India do hereby impose the punishment of dismissal from service with immediate effect. He will deposit all his government belongings including identity card and clothing /store articles. He is not in possession of govt. quarter.
His particulars are as under:
1.Name Indu Panwar
2.Rank & No. HC, 910/OD
3.PIS No. 28961311
4.Father's Name Shri Dharam Pal Singh
5.Date of Birth 20.06.1976
6.Date of Enlistment 15.07.1996
7.Caste Jat/General
8.Height 180 cms
9.Present Address VPO Ailam, Teh. Budhana, Distt. Muzaffar Nagar, UP
10.Permanent Address VPO Ailam, Teh. Budhana, Distt. Muzaffar Nagar, UP
Let a copy of this order be given to HC Indu Panwar, No. 910/OD (PIS No. 28961311) free of cost. He can file an appeal against the this order to the Joint Commissioner of Police/Western Range, Delhi within 30 days from the date of receipt of this order on a non Judicial stamp paper worth Rs. O.75 paise by enclosing a copy of this order, it so desire.”
The appeal preferred by the applicant against the aforesaid order of the disciplinary authority was rejected by the Appellate Authority vide order dated 17.7.2019 (Annexure A-2). Being aggrieved by the aforesaid order, the applicant has filed the instant OA for redressal of his grievances.
Pursuant to the notice, the respondents have filed their counter reply. The applicant has filed his rejoinder.
When this matter was taken up for hearing, at the outset, Shri Singal, learned counsel for the applicant has submitted that the instant case is squarely covered by the common Order/Judgment dated 10.2.2022 passed in the case of Ct. Sumit Sharm vs. Govt. of NCT of Delhi and others in OA 1383/2020 and a batch of cases, which was implemented by the respondents vide order dated 29.3.2022, in view of the fact that reasons deducted by the disciplinary authority while passing the aforesaid impugned order, as noted hereinabove, are not sustainable in law as the similar grounds have already been considered and held to be not justified by this Tribunal while deciding the aforesaid cases.
On the strength of the aforesaid, learned counsel for the applicant has argued that disciplinary and appellate authorities have not applied their mind to the facts of the case. He further submitted that charge-sheet has already been filed in the aforesaid FIR before the learned competent court and as such there is no question of upholding dismissal from service under Article 311(2)(b) of the Constitution of India in appeal as on 17.7.2019 when the same witnesses are going to be examined in the criminal case. He has further submitted that the reasons recorded by disciplinary authority to dispense with enquiry are vague and totally unsustainable in law as the Disciplinary Authority has nowhere pointed out any evidence as to how holding of DE is not reasonable practical, which is the condition precedent for invoking the powers under Article 311 (2) (b) of the Constitution of India. He has also submitted that there is no material with the Disciplinary Authority which could show that the witnesses were threatened by the applicant or there is any complaint by the witnesses regarding threatening notes/calls by the applicant. Rather the Disciplinary Authority even without making any efforts to initiate the DE, call the witnesses by way of notices, presumed the applicant guilty of the charges levelled against him in the criminal case to be true, which shows that that conclusion of the disciplinary authority is based on merely presumptions. Even otherwise the dispensing of the enquiry for even non-deposition of witnesses due to fear was held to be illegal by the Hon’ble Supreme Court in the case of Chief Security Officer vs. Singasan Rabidas, reported in 1991 (5) J.T. 117.
Shri Singal, learned counsel for the applicant, has further submitted that Govt. of India as well as the respondents themselves through various circulars 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, which is not case of the applicant.
Learned counsel for the applicant has further argued that the disciplinary and appellate authorities have ignored the circulars dated 8.11.1993 and reissued on 31.12.1998, 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 because in such cases departmental enquiry can be conveniently held. He has further emphasised that this case is of such a nature in which departmental enquiry can be initiated and the reasons as given by the disciplinary authority for dispensing with the departmental enquiry vide impugned order are contrary to the law on the subject. Moreover, the respondents cannot held the applicant guilty of the misconduct without affording him opportunity of defence at his back and that too on the basis of preliminary enquiry report and facts recorded in the said case FIR. Further, it is argued that the Appellate Authority has passed the appellate order in a mechanical manner.
Shri Singal, learned counsel for the applicant has further submitted that applicant’s co-delinquents in the said case FIR, namely, Ajay and Sube Singh cases were decided by this Tribunal vide aforesaid common Order/Judgment dated 10.2.2022 and in compliance of the same, the respondents have passed the orders dated 6.6.2022 vide which the said co-delinquents were re-instated in service from the date of dismissal with immediate effect under the status of suspension w.e.f.5.12.2018 (i.e. date of dismissal) without prejudice to the departmental enquiry to be initiated against them and the intervening period from the date of dismissal from service to the date of joining the service in the department will be decided later on. Copies of the said compliance orders are placed on record.
Per contra, Shri Sharma, learned counsel for the respondents with the assistance of the counter reply, has submitted that the disciplinary authority has rightly dismissed the applicant from the service by invoking the provisions of Article 311(2)(b) of the Constitution of India and that too, 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.
On our query to the learned counsel for the respondents that as to why the instant case be not decided on the basis of the common Order/Judgment passed by this Tribunal (authored by one of us, namely Shri R.N. Singh, Member (J)), while deciding a batch of cases titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi (supra) as the similar kind of grounds, as taken by the Disciplinary Authority for invoking the provisions of Article 311(2)(b) of the Constitution of India in the case of the applicant, have already been dealt with by this Tribunal, paras 45 to 48 of 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.
46.It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon’ble Supreme Court and Hon’ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
47.It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove.
48.In view of the aforesaid, we are of the considered view that the aforesaid OAs deserve to be partly allowed and the same are partly allowed with the following directions:-
(i)Order(s) passed by the disciplinary and appellate authorities in the aforesaid OAs are set aside with all consequential benefits to the applicants in accordance with the relevant rules and law on the subject; and
(ii)However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant(s) in accordance with the law.”
and that the aforesaid Common Order/Judgment has attained finality as the respondents therein have implemented the same by passing the orders dated 6.6.2022, copies of which are placed on record by the learned counsel for the applicant, and the fact that the said orders were passed by the respondents in the case of co-delinquents of the applicant, the learned counsel for the respondents has not disputed the fact that in the case of co-delinquents of the applicant, the respondents have implemented the aforesaid common Order/Judgment of this Tribunal but he has submitted that the facts of the case of the applicant are entirely different from his co-delinquents as the applicant was handed over to the local police along with pistol and 10 live cartridges and as such applicant’s case comes under the ambit of grave and serious misconduct. This contention of the learned counsel for the respondents is not tenable in the eyes of law. Further, counsel for the respondents has not been able to give any cogent reason as to why the ratio of the aforesaid common Order/Judgment in Ct. Sumit Sharma (supra) does not mutatis mutandis apply in the case of the applicant. We also find that no such evidence/material had been brought before us to indicate that the applicant was having terror in their area and/or were having link with the terrorist(s), criminal(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 by them to summon the witness(es) to lead the evidence against the applicant 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. It is also 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 and there being a possibility that witness(es) may not come forward to depose against the applicant. Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 8.11.1993 and 31.12.1998. 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.
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 the common Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases, vide which the applicant’s two co-delinquents cases were also decided by this Tribunal. Therefore, the present OA deserves to be partly allowed and the same is partly allowed with the following directions:-
Orders dated 5.12.2018 (Annexure A-1) and dated 17.7.2019 (Annexure A-2) passed by the Disciplinary and Appellate Authorities respectively are set aside with all consequential benefits to the applicant in accordance with the relevant rules and law on the subject;
The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order; and
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.