IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.10866/2009 & CM No.9987/2009
% Date of Decision: 16.09.2011
Govt. of NCT of Delhi & Ors. .... Petitioners
Through Mr.Sushil Dutt Salwan, Additional
Standing Counsel and Mr. Paras Anand,
Advocates
Versus
Ex. Constable Ashok Kumar & Anr. .... Respondents
Through Mr.R.S.Kundu, Advocate
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
ANIL KUMAR, J.
*
1. The petitioners, Govt. of NCT of Delhi & Ors., have challenged the
order dated 5th February, 2009 passed by the Central Administrative
Tribunal, Principal Bench, New Delhi in OA No.1516/2008 titled as „Ex.
Constable (Executive) Ashok Kumar & Anr. v. Govt. of NCT of Delhi &
WP (C) 10866 of 2010 Page 1 of 27
Ors.‟, allowing the original application of the respondent and setting
aside the order of dismissal dated 9th August, 2006 dismissing the
respondents from the service, after dispensing with the enquiry, by
invoking Article 311 (2)(b) of the Constitution of India and also setting
aside the order of the Appellate Authority dated 5th June, 2008
upholding the punishment in appeal and dismissing the appeal of the
respondent. The Tribunal also directed that the respondents would be
deemed as undergoing suspension from 9th August, 2006 to 9th April,
2009. The petitioners were held to be not precluded from proceeding
further against the respondent in accordance with law.
2. The brief facts to comprehend the disputes between the parties
are that the respondents were appointed as Constables in the Delhi
Police on 12th November, 1990. During their service, on 31st July, 2006,
a case by FIR No. 359/2006 was registered at PS Timar Pur under
sections 186/353/307/34 of the IPC & 27 of the Arms Act, consequent
to the firing by the two criminals namely Najakat and Julfikar, over the
police team comprising of ASI Pramod Tyagi, HC Yashpal, Ct. Sudesh
Rana, Ct. Suraj Pal (respondent), Ct. Pradeep, Ct. Ravinder, Ct. Satish
and Ct. (Dvr.) Naresh- a team of Operation Cell, North District. It was
alleged that the said Najakat and Julfikar were noticed coming in a
Maruti Car bearing No.DL-3C NO2304 from Wajirabad side, and on
being signaled to stop, they started firing at the police party who
WP (C) 10866 of 2010 Page 2 of 27
retaliated in self defence, as a result of which both of them were injured
and later on died. However, on clarification, it was revealed that ASI
Pramod Tyagi did not inform his supervisory officers, i.e. Inspr.
Operation cell or ACP/Operation Cell North Distt, before departing on
the said information regarding the alleged movements of the criminals
in the area of P.S. Timar Pur.
3. Thereafter, on 10th August, 2006 another FIR was registered
bearing no. 383/2006 u/s 302/364 of the IPC, PS Timar Pur, Delhi on
the complaint of one Sh. Gulam Nabi. In the said complaint it had been
alleged that the complainant had been informed by Irfan and Jamashed
Ali that the respondent no.1 along with three other Delhi Police
personnel, which included respondent no. 2, had come to the District
Court, Gaziabad and started talking to Julfikar and Nazakat. Thereafter
they asked them to come to their vehicle for talking further and the next
day in the morning it came to the notice of the complainant through the
news paper that Delhi Police personnel had killed Julfikar and Nazakat
in an encounter.
4. The petitioners, taking into consideration the gravity of the
allegations made against the respondents and holding that it was not
reasonably practicable to conduct a departmental inquiry as there was
a reasonable belief that the witnesses may not come forward to depose
WP (C) 10866 of 2010 Page 3 of 27
against them, decided to dispense with the same by invoking the power
under Article 311(2)(b) of the Constitution of India and straightaway
dismissed them from service by order dated 9th August, 2006.
5. While passing the dismissal order dated 9th August, 2006, it was
noted that ASI Pramod Tyagi had not informed his supervisory officer,
i.e. Inspector Operation Cell or ACP/Operation before departing
pursuant to the information regarding the alleged movement of the
above noted criminals in the area of PS Timar Pur. The ASI also did not
inform about the involvement and criminal background of the said
deceased persons when asked by ACP/Operation /North. The order also
noted that Sh.Gulam Nabi, the father of the deceased Julfikar, had
submitted a complaint to the SSP & DM/Ghaziabad, UP, and in the
preliminary enquiry on the complaint of the father of Julfikar, a zero
FIR had been registered under Section 364/302 of Indian Penal Code,
at PS Kavi Nagar, Ghaziabad (UP) which was transferred to Delhi Police
for further action. It was further noted that besides the respondents,
ASI Pramod Tyagi No.2538/N and Constables Sudesh Pal Rana had
also played key roles in the whole episode and the other police
personnel had joined the said team on the directions of ASI Pramod
Tyagi
WP (C) 10866 of 2010 Page 4 of 27
6. According to the petitioners, in their order dated 9th August,
2006, the above noted facts clearly show that in conducting the said
encounter without informing about their departure to the supervisory
officers and the alleged involvement of Constable Ashok Kumar in the
above noted case, the respondents and other police personnel had
shown grave misconduct, high handedness and had brought bad name
to the entire force of Delhi Police by having acted in a manner highly
unbecoming of a police personnel. The relevant observations and
inferences of the petitioners in order dated 9th August, 2006 are as
under:-
“If the defaulter police personnel are allowed to be
continued in police force after this act of serious
misconduct, it would be detrimental to public interest. The
facts and circumstances of the case are such that it would
not be reasonably practicable to conduct a regular
departmental enquiry against the defaulter police
personnel, 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 terrorizing and
intimidating, the witnesses and complainant do not come
forward to depose against the delinquents in the
investigation/enquiry and this kind of intimidation is a
common tactic adopted by the unscrupulous police
personnel. It also calls for great courage to depose against
the persons where the delinquents are police officials who
may use their job to influence the statement/deposition of
the witnesses.
In the backdrop of the position explained in the
foregoing contents in this order, it is crystal clear that the
said police personnel are public servant of indisciplined and
there is every possibility of their influencing as well as
intimidating the witnesses in the criminal case registered in
this regard and also in case of enquiry initiated against
them. It is under these given set of compelling
circumstances, the rules under article 311 (2) (b) ofWP (C) 10866 of 2010 Page 5 of 27
Constitution of India have been invoked in this case for the
sake of justice. The said police personnel have become a
liability to the department and should be dismissed. It
would be both in public interest as well as for the
establishment of rule of law, which is expected by public at
large.”
7. Aggrieved by the said order, the respondents preferred an appeal
dated 8th September, 2006. Meanwhile, the respondents also
approached the Tribunal with an original application bearing O.A. No.
93/2008, which was disposed of by order dated 22nd May, 2008 with
the directions to the petitioners to dispose of the appeal within three
months. Thereafter, the appellate authority by order dated 5th June,
2008 rejected the appeal of the respondents and upheld the order of the
Disciplinary Authority.
8. The Appellate Authority almost repeated the same language as
was used by the Disciplinary Authority in dispensing with the enquiry
under Article 311 (2) (b) of the Constitution of India and dismissed the
appeal of the respondents and other defaulters. The relevant
observations and inferences drawn by the Appellate Authority are as
under:-
” The disciplinary authority in punishment order has
observed that if the appellants are allowed to be continued
in police force after this act of serious misconduct, 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 appellants, as there is a reasonable
belief that the witnesses may not come forward to deposeWP (C) 10866 of 2010 Page 6 of 27
against them. It is a common experience that due to
terrorizing and intimidating, the witnesses and complainant
do not come forward to depose against the delinquents in
the investigation/enquiry and this kind of intimidation is a
common tactic adopted by the unscrupulous police
personnel. It also calls for great courage to depose against
the persons where the delinquents are police officials who
may use their job to influence the statement/deposition of
the witnesses. Under such circumstances, disciplinary
authority was of the considered view that it would not be
reasonably practicable to conduct a departmental enquiry
against the appellants. Therefore, the appellants were
dismissed from the force under article 311(2)(b) of the
Constitution of India vide order under appeal.”
9. The order of the Disciplinary Authority and the Appellate
Authority dismissing the respondents from service without an enquiry,
by invoking the powers under Article 311 (2) (b) of the Constitution of
India, was challenged by the respondents by filing an original
application being OA No.1516/2008, inter-alia, on the grounds that the
petitioners had completely violated the principles of natural justice and
the departmental rules by dispensing with the departmental inquiry
under the garb of Article 311(2)(b). As per the respondents, by
dismissing them without initiating a departmental inquiry and giving
them a reasonable opportunity of defending themselves, they have been
greatly prejudiced and hence the order of dismissal is liable to be set
aside.
10. It was also urged that the disciplinary authority had arbitrarily
dispensed with the departmental inquiry without recording sufficient
WP (C) 10866 of 2010 Page 7 of 27
reasons and the rationale behind the decision, that conducting the
departmental inquiry would not be reasonably practicable as against
the respondents, was unsupported by any material on record. Instead it
was merely based on surmises and conjectures on the part of the
Disciplinary Authority. It was also submitted that the reasons recorded
by the Disciplinary Authority for dispensing with the departmental
inquiry were vague and flimsy as no summons or notices to the
complainant had been sent despite being in possession of his
permanent address and there was absolutely no material on record that
any of the witnesses or the complainant had been terrorized by the
respondents. The observation of the Disciplinary Authority that due to
terrorizing and intimidating, the witnesses and the complainant do not
come forward to depose against the unscrupulous police personnel and
that there was every possibility to influence as well as intimidate the
statements in the criminal case registered in this regard, were
unsupported by anything on the record and was merely based on the
surmises and conjectures of the Disciplinary Authority. In any case, it
was contended that the above noted reasons cannot be the grounds for
dispensing with the departmental inquiry. Reliance was also placed on
the Delhi Police (Punishment & Appeals) Rules, 1980 in Rules, 15(3)
&16(3) contemplating that in case the witnesses are no longer available,
then their previously recorded statements during preliminary enquiry
can be taken on record during the departmental enquiry. The order of
dismissal was further assailed on the ground that no prior approval of
WP (C) 10866 of 2010 Page 8 of 27
the Additional Commissioner of Police was taken as per Rule 15(2) of
the Delhi Police (P&A) Rules, 1980 before passing the order of dismissal
of the respondents.
11. According to the respondents, even the order of the Appellate
Authority rejecting the appeal of the respondents clearly show that the
Appellate Authority neither applied its mind to the facts and the legal
points raised in the appeal nor did it take into consideration the
representation of the respondents. Instead it only mechanically
endorsed the illegal and perverse findings of the Disciplinary Authority.
Reliance was placed on AIR 1985 SC 1416, Union of India v. Tulsi Ram
Patel & Satyavir Singh & Ors. v. Union of India & Ors. AIR1986SC555.
The respondents categorically asserted that holding of departmental
enquiry is a rule and dispensation with the enquiry is an exception and
no facts and documents were available with the Disciplinary Authority
to justify the dispensation of the regular enquiry. Reliance was also
placed on the Circular of the petitioners dated 21st December, 1993
stipulating that a civil servant is not to be dismissed or removed
without enquiry by invoking the powers Article 311 (2)(b) of the
Constitution of India, but only after holding the regular departmental
enquiry against him. It was also stipulated in the circular that the
power under Article 311 (2)(b) of the Constitution of India is not to be
used as a shortcut. The said circular further stipulated that the police
WP (C) 10866 of 2010 Page 9 of 27
officers involved in cases of Rape and Dacoity or any such heinous
offence have been dismissed straightway under Article 311 (2)(b) of the
Constitution of India despite the fact that the criminal case has been
registered against them. It was also stated that such dismissal without
conducting departmental enquiry is illegal because in such cases
departmental enquiry can be conveniently held. The relevant portion of
the Circular dated 21st December, 1993 superseding earlier Circular
No.25551-163-/CR-I dated 8th November, 1993 is 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 sustained in law.”
12. The original application of the respondents was contested by the
petitioners contending, inter alia, that none of the grounds urged by the
respondents before the Tribunal are tenable in the eyes of the law. It
was also contended that the respondents are public servants of
undisciplined nature and that there was every possibility of their
WP (C) 10866 of 2010 Page 10 of 27
influencing as well as intimidating the witnesses if the departmental
inquiry was initiated against them. Thus, under these circumstances,
the provisions of Article 311 (2)(b) of the Constitution of India was
invoked to do justice and that they have been dismissed from the force
due to the gravity of the misconduct committed by them and also since
they had become a liability on the department.
13. The Tribunal had carefully considered the pleas and contentions
of both the parties and came to the conclusion that the exercise of the
powers under Article 311(2)(b) of the Constitution could not be
supported. It was observed that a civil servant is entitled to have an
opportunity to defend himself and that it is only in exceptional
circumstances that law permits the department to dispense with the
enquiry and other formalities. It was further held that the dismissal
order of the petitioners‟ appears to be arbitrary in nature. The relevant
portion of the Tribunal‟s judgment is as under:
“3. On an anxious consideration of the rival contentions,
we have come to the conclusion that the exercise of powers
under Article 311(2)(b) of the Constitution cannot be
supported. A civil 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
formalities. The impugned order to which reference is made
earlier does not disclose any sufficient or satisfactory
reason, and practically a short cut method is seen to have
been adopted which in its turn has made inroads to the
substantive rights of the applicants. This appears to be
arbitrary.”
WP (C) 10866 of 2010 Page 11 of 27
14. The order passed by the Tribunal is assailed, inter alia, on the
grounds that a preliminary enquiry was conducted by the SSP and DM
of Ghaziabad (UP) in which it was allegedly primarily found that the
deceased persons were talking to their lawyer on 31st July, 2006, in the
District Court at Ghaziabad and suddenly the respondents along with
three or four other police officials had come and asked the deceased to
sit in their vehicles, which fact had also been endorsed by the
eyewitnesses. The father of the deceased had also stated in his
complaint that his deceased son was facing a false and frivolous
criminal case regarding the murder of the brother of Ct. Ashok Kumar.
Therefore, it is urged that the respondents had planned the entire
encounter along with Ct. Ashok Kumar to eliminate the deceased. It is
also contended that in the criminal case against the respondents they
have been convicted and are serving their sentence at present.
According to the petitioners, there is enough material available on the
record and also on the basis of the criminal case registered against the
respondents as well as the fact that they have been in judicial custody,
the petitioners were justified to dispense with the enquiry and thus they
were entitled to exercise the power contemplated under Article 311(2)(b)
of the Constitution of India, by dismissing the respondents without
enquiry. The petitioners also asserted that since the respondents were
in the police force, it becomes very difficult to initiate departmental
proceedings as it is generally believed that a policeman will favor the
WP (C) 10866 of 2010 Page 12 of 27
other policeman. It has also been contended that private witnesses
might depose before the Court or Judicial forum without any fear,
however, the same is not true for these witnesses to depose before the
administrative bodies without being influenced and intimidated. The
petitioners contended that prima facie they were only duty-bound to
look into the matter and to see whether some material is available to
proceed against the respondent. The order of the Tribunal is also
impugned on the ground that the respondents could not be deemed to
be under suspension from 9.8.2006 till 9.4.2009 as they had not
provided any services to the petitioners during the said period.
15. Reliance is also placed by the learned counsel for the petitioner
on Union Territory, Chandigarh & Ors v. Mohinder Singh, (1997) 3 SCC
68; Tarsem Singh v. State of Punjab & Ors, (2006) 13 SCC 581;
Chandigarh Administraton & Ors v. Ex.S.I.Gurdit Singh, (1997) 10 SCC
430 and Parveen Kumar v. Commissioner of Police & Ors,
MANU/DE/8251/2007 in support of pleas and contentions of the
petitioners, that the order of dismissal passed against the respondents
without conducting an enquiry under Article 311(2)(b) of the
Constitution of India is not liable to be set aside in the facts and
circumstances of the case.
16. The writ petition is contested by the respondents contending,
inter-alia, that the disciplinary authority has not given any cogent
WP (C) 10866 of 2010 Page 13 of 27
reasons in the facts and circumstances for holding that it was not
reasonably practicable to hold the enquiry as contemplated under
Article 311(2)(b) of the Constitution of India. Relying on Jaswant Singh
v. State of Punjab, AIR 1991 SC 3 it was contended that mere
presumption or surmises cannot be the basis for the Disciplinary
Authority for not complying with Article 311(2) of the Constitution of
India. If the subjective satisfaction of the Disciplinary Authority is not
supported by independent material, then in the circumstances the
dismissal of the respondents without holding the enquiry would be
illegal. It was further asserted that the purported reasons for dispensing
with the departmental proceedings are not supported by any documents
on the record nor any other material has been relied except making
bald allegation that it is not reasonably practicable to hold the enquiry.
17. On behalf of the respondents it was emphasized that reliance has
been placed by the Disciplinary Authority on the preliminary enquiry
conducted by the SSP & DM, Ghaziabad. Thus, it is contended that if a
preliminary enquiry could be conducted, then there was no reason why
a formal departmental enquiry could not be conducted against the
respondents. Relying only on the preliminary enquiry without complying
with the minimal requirements of principles of natural justice is against
the canons of fair play and justice. Merely on the basis of preliminary
enquiry, in which no opportunity was given to the respondents, the
inference that the respondents were guilty of the acts complained
WP (C) 10866 of 2010 Page 14 of 27
against them could not be drawn nor could it be held that the
respondents are unfit for police service. The learned counsel for the
respondents also relied on Tarsem Singh (Supra).
18. This Court has heard the learned counsel for the parties in detail
and perused the copies of record placed before the Tribunal which has
been filed along with the writ petition. This is not disputed by the
learned counsel for the petitioners that the order of dismissal of the
respondents had been passed on the complaint of Sh.Gulam Nabi,
father of deceased Julfikar, who had submitted a complaint to the SSP
and DM, Ghaziabad (U.P). Thereafter, the SSP and DM had conducted a
preliminary enquiry on the basis of which a zero FIR had been
registered under Section 364/302 of IPC at Police Station Kavi Nagar,
Ghaziabad (U.P). The said case was subsequently transferred to Delhi
Police for further action and the respondents with three other
constables were named. During the preliminary enquiry, the
respondents were not involved nor were their explanations, if any,
called for or considered and in the absence of this it was held that it
had been clearly established that while conducting the encounter no
information had been given to the supervisory officer and that the case
showed grave misconduct and highhandedness on the part of
respondents and the other delinquent officers, who have brought a bad
name to the entire force of Delhi Police. Though it has been contended
that the facts and circumstances of the case are such that it would not
WP (C) 10866 of 2010 Page 15 of 27
be reasonably practicable to conduct a regular departmental enquiry, as
there is reasonable apprehension that the witnesses may not come
forward to depose against the charged officers, however, no documents
or any other material has been shown on the basis of which such an
inference could be drawn. Neither before the Tribunal nor before this
Court has any such material been placed on record or disclosed on the
basis of which it would be evident that subjective satisfaction of the
Disciplinary Authority had been arrived at, to lead to the inference that
it would not be reasonably practicable to conduct a regular
departmental enquiry as the witnesses may not come forward to depose
against the charged officers. This cannot be disputed that in the
criminal case the witnesses had deposed against the respondents, and
it had ultimately culminated in their conviction by the Sessions Court,
and the appeals of the respondents in the matter are still pending
adjudication.
19. The Appellate Authority while dismissing the appeal against the
dismissal order has also relied on the investigation conducted by the
crime branch and held that the allegations leveled by the father of the
deceased, Julfikar, were proved, as the eye witnesses had confirmed
that Julfikar and his friends were lifted by the respondents along with
ex Constable Sudesh Pal Rana in their vehicle and the respondents and
the other police personnel did not inform their supervisory officer
regarding their departure before the encounter had taken place nor had
WP (C) 10866 of 2010 Page 16 of 27
they told about the involvement and criminal background of the
deceased. If the preliminary investigation could be conducted by the
SSP and DM, Ghaziabad on the complaint of the father of the deceased
and even the Crime Branch in Delhi had investigated the matter after
the case was transferred to Delhi and eye witnesses were examined,
then it is difficult to infer that it was not reasonably practicable to
conduct a regular departmental enquiry. If there are any other reasons
for assuming the same, then they must have been spelt out, and merely
stating that it is not reasonably practicable to conduct a regular
departmental enquiry is not sufficient. It is also evident that the
conclusion of the Disciplinary Authority that it is not reasonably
practicable to hold a departmental enquiry is not supported by any
material or documents on the record. If the witnesses against the
respondents could appear in the criminal trial, then why they could not
appear in the regular departmental enquiry has not been explained. The
plea of the learned counsel for the petitioners that it is generally
believed that a police man will favor the other police man is also based
on an assumption and a surmise and in any case this was not the
reason given by either the Disciplinary Authority or the Appellate
Authority in their respective orders. The contention that private
witnesses depose before the Court or judicial forum without any fear,
however, private witnesses do not depose freely before the
administrative bodies also cannot be accepted in the facts and
circumstances and in law. In any case, this contention has not been
WP (C) 10866 of 2010 Page 17 of 27
considered by either the Disciplinary Authority or the Appellate
Authority in their respective orders and hence such a reason cannot be
canvassed by the petitioners as well. It is no more res integra that when
a statutory functionary makes an order based on certain grounds, its
validity must be adjudicated by the reasons so mentioned therein and it
cannot be supplemented by fresh reasons. The Supreme Court in AIR
1978 SC 851, Mohinder Singh Gill v. Chief Election Commissioner had
held that the orders passed cannot be supplemented by fresh reasons
as otherwise an order bad in the beginning may, by the time it comes to
the Court on account of a challenge, get validated by additional grounds
brought out later on.
20. The Supreme Court in Tarsem Singh v. State of Punjab, (2006) 13
SCC 581 at page 586 after noting clause 2 of Article 311 of the
Constitution of India in para 10, had held that a constitutional right of
a delinquent cannot be dispensed with lightly. It was held in the said
judgment as under:-
10. It is now a well-settled principle of law that a
constitutional right conferred upon a delinquent cannot
be dispensed with lightly or arbitrarily or out of ulterior
motive or merely in order to avoid the holding of an
enquiry. The learned counsel appearing on behalf of the
appellant has taken us through certain documents for the
purpose of showing that ultimately the police on
investigation did not find any case against the appellant in
respect of the purported FIR lodged against him under
Section 377 IPC. However, it may not be necessary for us to
go into the said question.
WP (C) 10866 of 2010 Page 18 of 27
11. We have noticed hereinbefore that the formal enquiry
was dispensed with only on the ground that the
appellant could win over aggrieved people as well as
witnesses from giving evidence by threatening and
other means. No material has been placed or disclosed
either in the said order or before us to show that
subjective satisfaction arrived at by the statutory
authority was based upon objective criteria. The
purported reason for dispensing with the departmental
proceedings is not supported by any document. It is further
evident that the said order of dismissal was passed, inter
alia, on the ground that there was no need for a regular
departmental enquiry relying on or on the basis of a
preliminary enquiry. However, if a preliminary enquiry
could be conducted, we fail to see any reason as to why a
formal departmental enquiry could not have been initiated
against the appellant. Reliance placed upon such a
preliminary enquiry without complying with the minimal
requirements of the principle of natural justice is against all
canons of fair play and justice. The appellate authority, as
noticed hereinbefore, in its order dated 24-6-1998 jumped
to the conclusion that he was guilty of grave acts of
misconduct proving complete unfitness for police service
and the punishment awarded to him is commensurate with
the misconduct although no material therefor was available
on record. It is further evident that the appellate authority
also misdirected himself in passing the said order insofar as
he failed to take into consideration the relevant facts and
based his decision on irrelevant factors.
12. Even the Inspector General of Police in passing his
order dated 26-11-1999, despite having been asked by the
High Court to pass a speaking order, did not assign
sufficient or cogent reason. He, like the appellate authority,
also proceeded on the basis that the appellant was guilty of
commission of offences which are grave and heinous in
nature and bring a bad name to the police force of the State
on the whole. None of the authorities mentioned
hereinbefore proceeded on the relevant material for the
purpose of arriving at the conclusion that in the facts and
circumstances of the case sufficient cause existed for
dispensing with the formal enquiry. This aspect of the
matter has been considered by this Court in Jaswant Singh
v. State of Punjab wherein relying upon the judgment of the
Constitution Bench of this Court, inter alia, in Union ofWP (C) 10866 of 2010 Page 19 of 27
India v. Tulsiram Patel, it was held: (Jaswant Singh case,
SCC p. 368, para 4)“Although Clause (3) of that article makes the
decision of the disciplinary authority in this behalf
final such finality can certainly be tested in a court
of law and interfered with if the action is found to
be arbitrary or mala fide or motivated by extraneous
considerations or merely a ruse to dispense with the
inquiry.”
21. The plea on behalf of the petitioners that it is common experience
that due to terrorizing and intimidation, the witnesses and
complainants do not come forward to depose against the delinquents in
the investigation/enquiry and that such intimidation are common
tactics adopted by unscrupulous police personnel is also based on the
petitioners‟ assumptions and surmises. Since the eye witnesses and the
complainants had deposed against the respondents in the preliminary
enquiry conducted by SSP and DM, Ghaziabad and by the Crime
Branch at Delhi, no cogent reason or material has been disclosed as to
why the eye witnesses and complainants would not have deposed
during the Departmental Enquiry. Though the Disciplinary Authority
and Appellate Authority had held that it is common experience that due
to terrorizing and intimidation the witnesses and complainants do not
depose against the delinquent, however not even a single such instance
has been referred to and relied on by the Disciplinary Authority or the
Appellate Authority. In the circumstances the petitioners have failed to
establish any subjective satisfaction arrived at by them based on any
WP (C) 10866 of 2010 Page 20 of 27
objective criterion. Relying upon such preliminary enquiries without
complying with the minimal requirements of the principles of natural
justice in the facts and circumstances would be against all canons of
fair play and justice, as was also held by the Supreme Court in Tarsem
Singh (Supra).
22. The precedents relied on by the petitioners‟ counsel are also
distinguishable. In Mohinder Singh (Supra) the order of dismissal was
based on the report of the Superintendent of Police made after an
enquiry into the allegations against the Charged officer of gross misuse
of power and extortion of money by illegally detaining and torturing an
innocent person. The report unequivocally had established that the
delinquent was a terror in the area and that he had intimidated the
complainant-victim and the two other persons arrested with the
complainant-victim, and that they had immediately left the office of the
Superintendent of Police terrified by the threats given by the delinquent.
Apparently, the case relied on by the petitioners is distinguishable.
23. It is no more res integra that the Court should not place reliance
on decisions without discussing as to how the factual situation in the
matter under adjudication co-relates to the factual situation of the
decision on which reliance is placed. It was held that observations of
the Court are neither to be read as Euclid‟s theorem nor as provisions
of the Statute, that too taken out of their context, by the Supreme Court
WP (C) 10866 of 2010 Page 21 of 27
in Bharat Petroleum Corporation Ltd & Ors v. N.R.Vairamaini & Anr,
AIR 2004 SC 778. The observations made by the Court are to be read in
the context in which they appear to have been stated. In P.S.Roy v.
State, JT 2002 (3) SC 1, the Supreme Court had held as under:-
” There is always a peril in treating the words of a
judgment as though they are words in a legislative
enactment and it is to be remembered that judicial
utterances are made in setting of the facts of a particular
case. Circumstantial flexibility, one additional or different
fact may make a world of difference between the
conclusions in two cases.”
24. Similarly in Rafiq v. State (1980) 4 SCC 262 it was observed as
under:-
“The ratio of one case cannot be mechanically applied
to another case without having regard to the factual
situation and circumstances prevailing in the two cases.”
25. In Ex.S.I.Gurdit Singh (Supra) relied on by the petitioners‟
counsel having regard to the facts and circumstances of that case it was
held that the Disciplinary Authority was justified in holding that it was
not reasonably practicable to hold an enquiry as the enquiry report had
showed that the delinquent police official was a terror in the area and
was a very influential person and no person would come forward to give
any statement regarding the incident in question against him and
hence, a regular enquiry against him would serve no purpose. In the
case of the respondents there is no such report that the respondents
WP (C) 10866 of 2010 Page 22 of 27
are a terror in the area or they are very influential persons and
therefore no person would dare to come and depose against them in a
regular enquiry. Rather, the complainant and the witnesses had
deposed against the respondents in the preliminary enquiry and the
investigation done by the Crime Branch and they had also deposed
before the Criminal Court which had ultimately lead to the conviction of
the respondents by the Sessions Court, though appeals against the
judgment of the Sessions Court are pending. If the complainant and the
witnesses could depose in a preliminary enquiry then why they could
not depose in a formal enquiry has not been satisfactorily explained by
the petitioners‟ counsel. The learned counsel for the petitioners has also
relied on Tarsem Singh (Supra) which is relied on by the learned
counsel for the respondents as well. In this case, the Supreme Court
had rather held that if a preliminary enquiry could be conducted, there
was no reason as to why a formal departmental enquiry could not be
initiated against the delinquent and in the circumstances the ratio is
rather against the proposition canvassed by the learned counsel for the
petitioners and on the basis of the ratio of the said judgment it cannot
be held that the orders of dismissal by the Disciplinary Authority and
the Appellate Authority dispensing with regular enquiry are not liable to
be set aside. Reliance has also been placed by the petitioners on a
judgment of the Division Bench of this Court in the case of Parveen
Kumar (Supra). In the said case also, there was material before the
Disciplinary Authority for dispensing with the enquiry, namely
WP (C) 10866 of 2010 Page 23 of 27
interrogation in the dacoity revealing the involvement of the delinquent
and the fact that he had been involved in five other criminal cases and
the attendant circumstances. The fact pertaining to his association with
other criminals and his discharge in one case due to non identification
by the witnesses and the lack of availability of other evidence and the
prospect of witnesses shying away from the proceedings and not
deposing due to fear of severe reprisal at his hands was considered to
be a genuine apprehension and not a mere possibility. Therefore, the
cases relied on by the petitioner are distinguishable.
26. Thus, in light of the pleas and contentions made, it is clear that
the petitioners have failed to show any material or disclose any such
fact on the basis of which a subjective satisfaction had been arrived at,
based upon the objective criterion that the respondents could influence
or terrorize the aggrieved people as well as the witnesses from giving
any evidence by threatening them or by other means. Since it is also
clear that the witnesses as well as the complainant had deposed against
the respondents in the preliminary inquiry conducted by the SSP and
DM, Ghaziabad, and in the investigation conducted by the Crime
Branch as well as in the criminal trial which also culminated in a
conviction and against which even appeals are pending, there is no
reason to infer that they would not have deposed during a formal
enquiry. Therefore, the justification of the petitioners for dispensing
WP (C) 10866 of 2010 Page 24 of 27
with the enquiry is unfounded and therefore the Tribunal has rightly set
aside the order of dismissal passed by the petitioners.
27. The learned counsel for the petitioners is also unable to explain
satisfactorily for not complying with the intent of the Circular dated 21st
December, 1993 stipulating that the Police Officers involved in the case
of rape or dacoity or any such heinous offence are not to be dismissed
straightway under Article 311(2)(b) as criminal cases are registered
against them. The circular directs that such dismissals without holding
departmental enquiries are illegal as in such cases departmental
enquiries can be conveniently held. The circular thus emphasizes that
the Disciplinary Authority should not take recourse 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. It cannot be disputed by the petitioners that in the
absence of valid reasons, duly reduced in writing, order of dismissal
resorting to Article 311(2)(b) of the Constitution of India cannot be
sustained in law. From the orders of the Disciplinary and Appellate
Authority it is apparent that no cogent and valid reasons have been
given as to why the departmental enquiry could not be conducted. In
the circumstances, the order of dismissal of the respondents without
conducting departmental enquiry cannot be sustained in the facts and
WP (C) 10866 of 2010 Page 25 of 27
circumstances of the case. Therefore, for the foregoing reasons the
petitioners have failed to show any such grounds against the order of
the Tribunal which would show that it is illegal or irregular or suffers
from such perversity which would require interference by this Court in
exercise of its jurisdiction under Article 226 of the Constitution of India.
28. In the totality of facts and circumstances, therefore, the order of
the Tribunal holding that the order of the petitioners dismissing the
respondent by invoking Article 311(2)(b) of the Constitution of India is
not sustainable, does not suffer from any illegality, irregularity or any
such perversity requiring any interference by this Court. The writ
petition is without any merit and it is, therefore, dismissed. Interim
order dated 11th November, 2009 is vacated and all the pending
applications are also disposed of.
29. It is, however, clarified that the petitioners are not precluded from
taking any departmental action in accordance with the rules and
regulations, if permissible in the facts and circumstances of the case,
without prejudice to the rights and contentions of the respondents. It is
further clarified that on setting aside the order of dismissal of the
respondents, they have to be reinstated, however, since they are in
judicial custody, therefore, they would be under deemed suspension
and they would be entitled for only such benefits which are available to
an employee who is under suspension.
WP (C) 10866 of 2010 Page 26 of 27
27. Considering the facts and circumstances the parties are, however,
left to bear their own costs.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
September 16, 2011
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WP (C) 10866 of 2010 Page 27 of 27
