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Judgment
O R D E R
Hon’ble Mr. R.N. Singh, Member (J) : In the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the Order dated 29/12/2016 (Annexure A/1) vide which the Disciplinary Authority has dismissed the applicant from service by invoking their power under Article 311 (2) (b) of the Constitution of India and also the order dated 13.09.2017 (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 with all consequential benefits.
The relevant facts leading to filing of the instant OA are that the applicant was appointed as Sub-Inspector in Delhi Police in the year 2008
While the applicant was working as Sub Inspector, a case FIR No.782/16 dated 22.11.2016 under Sections 420/411/120B/34 of IPC was registered at PS Tilak Nagar, West District, Delhi. The applicant was arrested in the aforesaid case on 27.11.2016. Thereafter he was placed under suspension vide order dated 01.12.2016. Later on, vide order dated 29.12.2016 (Annexure A/1), the applicant was dismissed from service without holding a regular departmental enquiry and without affording any opportunity to defend, by the Disciplinary Authority, the contents of which reads as under:-
“On 27.11.16, I.O. of case FIR No. 782/16 u/s 420/406/411/120-B/34 IPC, PS Tilak Nagar, West District, Delhi got lodged a DD No. 34-B at PS Kalyan Puri regarding arrest of SI (Exe.) Sudhir Rathi, No. D/4070 (PIS No. 16080057) in the above said case on 27.11.2016, which was registered on the complaint of businessman Mohd. Saifuddin r/o A-2/372-73, Mål Sabha, Punrwaas Colony, Bhalaswa Dairy, Delhi.
A detail report regarding arrest of SI Sudhir Rathi, No. D/4070 alongwith copies of disclosure statements were received from DCP/West District vide memo. No. 26694/HAP/West District dated 05.12.16 mentioning therein that a case vide FIR No. 782/16 dated 22.11.16 u/s 420/406/411/120-B/34 IPC, PS Tilak Nagar was registered on the complaint of Mohd. Saifuddin alleging that on 17.11.2016, he had given a sum of Rs. 18,00,000/- (Eighteen lac) in cash to one Sailender Singh r/o house No. G-5/A, Sant Nagar, Tilak Nagar, Delhi through his relative Amantullah for exchanging with new currency notes. The complainant was assured that the old notes would be exchanged by evening on the same day but even after elapse of several days, the receiver did not respond and started avoiding his calls. Therefore, the complainant approached the local police of PS Tilak Nagar and the case was registered and investigation was taken up accordingly.
During the course of investigation, three persons namely (i) Ran Vijay Singh s/o Ramyad r/o 1356, Noor Nagar, Raj Nagar Extn., Ghaziabad, U.P., (ii) Ankur Kumar s/o Anil Bhardwaj r/o B-493, Gali No.2, Subhash Mohalla, Bhajanpura, Delhi and (iii) Rohit Arora s/o Late Gulshan Arora r/o 343/2-B/3, First floor, Shalimar Park, Extn. Bhola Nath Nagar, Delhi were arrested on 26.11.16. During interrogation, these accused persons disclosed that one S1 Sudhir Rathi of PS Kalyan Puri is involved in the crime and further told that he had received a sum of Rs. 8,00,000/-(Eight Lac) as his share and the remaining Rs. 10,00,000/-(Ten Lac) were distributed among them. Consequently, SI Sudhir Rathi, No. D/4070 posted at PS Kalyan Puri was arrested on 27.11.16 and Rs. 1,00,000/- were recovered from him. "On 28.11.16, the Hon'ble Court granted one day police custody for SI Sudhir Rathi and the remaining three accused persons were sent to judicial custody. Further at the instance of SI Sudhir Rathi, Rs. 1,00,000/- were recovered from the I.O. room of PS Kalyan Puri.
As per the statements of the accused persons, SI Sudhir Rathi planned the entire crime and executed the same in connivance with the accused persons. SI Sudhir Rathi is the master mind in the crime. Section 13.1 (c & d) of POC Act has been invoked in the case. The involvement of SI Sudhir Rathi in the said case, shows his desperate conduct, criminal tendency and immoral attitude.
On having been arrested in case FIR No. 782/16 dated 22.11.16 u/s 420/406/411/120-B/34 IPC, PS Tilak Nagar, Delhi SI (Exe.) Sudhir Rathi, No.D/4070 has been placed under suspension w.e.f. 27.11.2016 i.e. from the date of his arrest in the said criminal case vide this office order No. 7534-52/HAP (P-III)/East District dated 01.12.2016.
A preliminary enquiry into the matter has been got conducted through ACP/P.G. Cell/East District, which revealed the following facts:-
1.On 22.11.2016, a case vide FIR No. 782/16 u/s 420/406/34 IPC was registered at PS Tilak Nagar on the complaint of Mohd. Saifuddin. The complainant has alleged that on 17. 11.16, he had given a sum of Rs.18,00,000/- (Eighteen Lac) in cash to Shailender Singh through his relative Mr. Amantullah for exchanging with new currency notes. The complainant was assured that the old notes would be exchanged by evening on the same day but even after lapse of several days, the receiver did not respond. Therefore, the complainant approached the local police of PS Tilak Nagar and the case was registered and investigation was taken up accordingly.
2.During the course of investigation, three persons namely Ran Vijay Singh, Ankur Kumar and Rohit Arora were arrested on 26.11.16 in this case.
3.That the three accused disclosed in their interrogation that SI Sudhir Rathi of PS Kalyan Puri was involved in the crime and he had received a sum of Rs. 8,00,000/- (Eight lac) as his share and remaining Rs. 10,00,000/- (Ten Lac) was distributed among other three accused persons namely Ran Vijay Singh, Ankur Kumar and Rohit Arora.
4.That SI Sudhir Rathi was arrested on 27.11.2016 in this case and his one day police custody remand was obtained on 28.11.16 from the Court. Rs.1,00,000/- (one Lac) was recovered from the car of SI Sudhir Rathi and Rs.1,00,000/- (one Lac) was recovered from the I.O. room of PS Kalyan Puri at his instance.
5.That as per interrogation of three accused persons namely Ran Vijay Singh, Ankur Kumar and Rohit Arora, it revealed that SI Sudhir Rathi hatched the conspiracy and executed the crime in connivance with the three accused persons.
6.That SI Sudhir Rathi, No. D/4070 was the master mind in this criminal act. Hence, section 13.1 (c & d) of POC Act have also been invoked in this case.
7.That SI Sudhir Rathi, No. D/4070 is posted in PS Kalyan Puri, East District since 17.04.15 vide order No. 13452-79/Estt. (E-I)/East District who has been arrested in case FIR No. 782/16 dated 22.11.16 u/s 420/406/41/120-B IPC, PS Tilak Nagar on 27.11.2016.
The above criminal act on the part of SI (Exe.) Sudhir Rathi, No. D/4070 (PIS No. 16080057) shows his criminal tendency, desperate character and immoral attitude, which is highly abhorrent on his part being a member of police force. It is first and foremost duty of a policeman to protect the life and property of the citizen. This act of SI (Exe.) Sudhir Rathi, No. D/4070 has not only tarnished the image of Delhi Police but also badly shattered the faith of common man in the police. His 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 SI (Exe.) Sudhir Rathi, No.D/4070 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 SI (Exe.) Sudhir Rathi, No. D/4070 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 involvements of SI (Exe. Sudhir Rathi, No. D/4070 is established during investigation in this heinous criminal case. He is not a fit person for the disciplined force. Moreover, his services are no more required in Delhi Police and needs to be dismissed in the interest of public at large and further to save the image and dignity of Delhi Police. Therefore, SI (Exe.) Sudhir Rathi, No. D/4070 deserves for exemplary punishment i.e. dismissal from the police force with immediate effect under article 311 (2) (b) of the Constitution of India in the interest of public at large and further to save the image and dignity of Delhi Police.
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 defaulter SI (Exe.) Sudhir Rathi, No. D/4070 (PIS No. 16080057) from service with immediate effect under article 311 (2) (b) of the Constitution of India. His suspension period from 27.11.2016 to the date of issue of this order is also decided as period 'not spent on duty' for all intents and purposes.
He will deposit all his Govt. belongings in his possession i.e. Identity Card, CGHS Card, Clothing articles etc. with the respective stores/Branches of East District. He is not in possession of Govt. accommodation.
The particulars of SI (Exe.) Sudhir Rathi, No. D/4070 (PIS No.160800O57) as per his service record are as under: -
1. Name, Rank & No. SI (Exe.) Sudhir Rathi, No. D/4070 2. PIS No. 16080057 3. Father's Name Sh. Mangey Ram 4. Date of Birth 12.02.1972 5. Date of enlistment 21.07.2008 6. Identification Mark A mole on left shoulder. 7. Caste OBC/Jat 8. Present Address. H. No. A-11/A, 25 Foota Road Meet Nagar, PS Nand Nagari, Delhi 9. Permanent Address. H. No. A-11/A, 25 Foota Road Meet Nagar, PS Nand Nagari, Delhi A copy of this order be given to SI (Exe.) Sudhir Rathi, No. D/4070 (PIS No. 16080057) free of cost. He can file an appeal against this order to the Joint Commissioner of Police, Eastern Range, Delhi within 30 days from the date of receipt of this order on a non-judicial stamp paper worth Rs. 00.75 paise by enclosing a copy of this order, if he so desires.”
The appeal preferred by the applicant against the aforesaid order of the disciplinary authority was rejected by the Appellate Authority vide order dated 13.09.2017(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 Luthra, learned counsel for the applicant has submitted that the present 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, and that the said common order was implemented by the respondents vide order dated 29.3.2022. He has also submitted that the case of the applicant is also squarely covered by the Order/Judgment dated 11.12.2019 of the Hon’ble Delhi High Court in Writ Petition (Civil) No.4078/2017, titled Commissioner of Police and others vs. Ashwani Kumar and others, in view of the fact that reasons deducted by the disciplinary authority while passing the aforesaid 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 in which this Tribunal has also taken note of the aforesaid Order/Judgment of the Hon’ble Delhi High Court besides considering plethora of judgments.
Learned counsel for the applicant has argued on the basis of the above submissions that disciplinary and appellate authorities have not correctly applied their mind to the facts of the case and therefore, the impugned orders are absolutely illegal, arbitrary and unconstitutional. He has further submitted that the applicant is entitled to the Constitutional protection as envisaged under Article 311 of the Constitution as it is trite in law that dispensation of departmental enquiry is an exception whereas holding of a departmental enquiry is a rule. On the face of the above impugned orders, it is clear that the applicant has been condemned unheard as the allegations against the applicant have not been established by way of a regular departmental enquiry and the applicant has been denied reasonable opportunity to defend himself. He has further submitted that the applicant is a regular employee and therefore, he cannot be just thrown out of service without any enquiry. Shri Luthra by referring to the provisions of the Article 311 of the Constitution of India has submitted that the Hon’ble Supreme Court in Tulsiram Patel’s case, reported in AIR 1985 SC 1416, has held as follows:-
“It would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere.
In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311 (3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty.”
Shri Luthra has further submitted that Govt. of India as well as the respondents themselves through various instructions/circulars dated 29.11.1993, 08.11.1993 and 11.09.2007 (Annexure A/9 (Colly.)) 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 the case of the applicant.
Learned counsel for the applicant has further submitted that in compliance of the order dated 28.7.2021, he has filed a copy of acquittal order dated 30.11.2018 passed by the learned trial court in the said FIR case on 28.7.2021. By referring to the said judgment of the learned Trial Court dated 30.11.2018, learned counsel has further argued that learned Trial Court after having considered the pleadings as well as the depositions and submissions of 17 PWs, in the concluding para held that ‘prosecution failed to prove its case against the accused for the offences punishable under section 13(I)(c) and section 13(1)(d) of the Prevention of Corruption Act, 1988 beyond reasonable doubt, so the accused Sudhir Rathi, Ranvijay Singh, Rohit Arora and Ankur Kumar are given benefits of doubt and acquitted of above offences...” 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 report(s) coming during course of the investigation in the said case FIR. Further, it is argued that the Appellate Authority has passed the appellate order in a mechanical manner.
On the other hand, Mrs. Sharma, learned counsel for the respondents with the assistance of the counter reply, especially by referring to the order passed by the disciplinary authority (supra), 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.
We have heard the learned counsels for the parties and perused the material placed on record.
We have put it to the learned counsel for the respondents that as to why the present case be not decided on the basis of the aforesaid 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.”
Moreover, the aforesaid Common Order/Judgment has attained finality, as the respondents therein have implemented the same by passing the order dated 29.3.2022. Mrs. Sharma, the learned counsel for the respondents has not been able to give any cogent reason. However, she has reiterated that there is no infirmity in the aforesaid impugned orders. We find that nothing has been recorded in the impugned orders 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(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 28.12.1998. 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 is also relevant to mention that the learned Trial Court in the said FIR case had examined so many prosecution witnesses and thereafter acquitted the applicant along with other co-accused vide judgment dated 30.11.2018, a copy of which is placed on record by the learned counsel for the applicant in which there was no finding that the said prosecution witnesses were ever threat, induced, intimidated and affiliation by himself and his association, who are desperate criminals.
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. Therefore, the present OA deserves to be partly allowed and the same is partly allowed with the following directions:-
Orders dated 29.12.2016 (Annexure A/1) and dated 13.09.2017 (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.