NEERAJ KUMAR v. COMM. OF POLICE

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posted as Station House Officer (SHO), Police Station, Saket, an FIR No. RC/DAI-2018-A-0023 u/s 7/7A/8/9/10/12/13 (1) (B) of Prevention of Corruption (PC) Act was registered against him on 31.07.2018 by CBI/ACB/New Delhi. It was alleged inter alia that he received illegal gratification from M/s Unitech. It was also alleged that he has been receiving undue advantage and illegal gratification from the said party against which many criminal cases were registered. Applicant was also arrested by CBI on 31.07.2018. The Appointing Authority placed him under suspension vide order dated

31.07.2018.

2. A preliminary enquiry was ordered by the second respondent. The preliminary enquiry report was submitted on 01.08.2018 stating that the applicant has committed grave offence and serious misconduct. It was observed that the facts and circumstances of the case were so serious that it will not be reasonably practicable to conduct a regular Departmental Enquiry (DE) against the applicant as there is a reasonable belief that the witnesses may not come forward to depose against him owing to his influential position. Having considered the facts of the case and preliminary report, the Disciplinary Authority

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(DA) passed an order dated 01.08.2018 dispensing with the DE and imposing the punishment of dismissal from service, in exercise of power under Article 311 (2) (b) of the Constitution of India; upon the applicant.

3. An appeal was preferred against these orders by the applicant. That was considered by the Appellate Authority (AA), and through a detailed speaking order the same was rejected vide order dated 08.07.2019.

4. Aggrieved by the decision of the DA and AA, the applicant filed this O.A. He prayed for quashing and setting aside of the impugned orders dated 08.07.2019 and 01.08.2018 and for reinstatement, together with consequential benefits.

5. The applicant feels aggrieved by the fact that no DE has been conducted, to prove the charges/allegations. He contends that his appeal was rejected in a casual manner. The applicant submits that the Constitution of India under Article 311 guarantees that no person, who is a member of Government service, can be dismissed or removed, except after an enquiry, in which he has been proved guilty and that Article 311(2)(b) was invoked against him, without any basis.

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6. The respondents have filed a counter affidavit opposing the OA. It is stated that the applicant was arrested while receiving illegal gratification by the CBI and a case was registered against him under PC ACT. It is also stated that he was arrested on 31.07.2018 and a preliminary enquiry was ordered. According to him, in the preliminary enquiry it emerged that the facts and circumstances of the case were so serious that it will not be reasonably practicable to conduct a regular Departmental Enquiry (DE) against the Inspector as there is a reasonable belief that the witnesses may not come forward to depose against him owing to his influential position. It is stated that the DA was satisfied that conducting DE was not possible and in view of the grave misconduct of the applicant and his indulgence in moral turpitude, the DA dismissed him after dispensing with the DE by taking recourse to Article 311 (2) (b) of the Constitution. Reliance is placed upon the judgments of Hon'ble Delhi High Court in WP (C) No. 991 of 2008 (Pawan Kumar Vs. Govt. of NCT of Delhi and Ors.) and W.P. (C) No. 6005/2017 in (CT Mukesh Kumar Yadav Vs.

GNCT of Delhi & Ors). Learned counsel for the applicant too has relied upon the Hon'ble Apex Court judgment in

Tarsem Singh Vs. State of Punjab and Ors. (2006) 13

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SCC 581 and the judgment of Hon'ble High Court of Delhi

Commissioner of Police & Ors. Vs. Kaushal Singh, W.P.

(C) 11694/2018.

7. We heard Mr. Ajesh Luthra, learned counsel for the applicant and Ms. Esha Mazumdar, learned counsel for the respondents, perused the records and relied upon judgments.

8. The applicant joined Delhi Police as SI in the year 1994 and was promoted to the post of Inspector (Executive) on 27.01.2010. While he working as SHO, PS Saket, the applicant was entrusted with pending criminal cases against a firm, called M/s Unitech. It was also alleged that he has been receiving undue favour and illegal gratification from M/s Unitech and has been acting in connivance with the said agency. During a CBI raid Rs. Two Lakh were recovered from him. The statement given by the Trap Team of CBI in the court of District and Session Judge, reads as under:-

" The Trap team of CBI reached the vicinity of police station Saket where at about 11.30 a.m, co-accused Neeraj Walia came. He went inside the police station. After 15 minutes, both applicant and co-accused came out. The trap team intercepted both of them. Money was recovered from the coat of the applicant/accused kept in the almirah."

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9. On this serious professional misconduct, the Appointing Authority placed the applicant under suspension vide order dated 31.07.2018. Preliminary enquiry under Rule 15 (1) of Delhi Police (Punishment and Appeal) Rules, 1980 was ordered. The preliminary report was submitted on 01.08.2018 indicating that the applicant was apprehended during the raid by the CBI on 31.07.2018; he was arrested and FIR was filed against him. It was alleged that he was in regular connivance with M/s Unitech, against whom various criminal cases were registered and has been receiving illegal gratification and undue from that Company. It was also alleged that the conduct of the applicant was unbecoming of a police officer and it has brought disgrace to the organization, and that the applicant should not be allowed to continue in the police force. It was recommended by the IO in the preliminary enquiry, that exemplary punishment should be imposed on the applicant. The IO, further, recommended as under:-

"The overall assessment and evaluation of available record and reports received from the concerned authority have revealed that Inspector Neeraj Kumar No. D-1/840 has committed a grave offence and serious misconduct. Under these given sets of compelling circumstances, in the public interest as well as for the establishment of rule of law which is expected by public at large, I am of the view that stern disciplinary action may be taken against Inspector Neeraj Kumar No. D-I/840 as per law."

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10. Having gone through the report of the preliminary enquiry, the DA decided to dispense with the DE in view of the grave misconduct and indulgence in moral turpitude and dismissed him from service, by invoking Article 311

(2) (b) of the Constitution; vide order dated 01.08.2018. The applicant filed an appeal against these orders pleading that he was placed under suspension on 31.07.2018 and on the very next day of his arrest i.e. 01.08.2018, he was dismissed from service. He submitted that he was not given adequate opportunity to deny the allegations, which are vague and unspecific. The appeal was considered by the AA and through a detailed speaking order passed on 08.07.2019, his appeal was rejected.

11. The main plea of the applicant in this OA is that the DA did not afford him reasonable opportunity to defend himself, which is against the principles of natural justice. Reliance was placed by the applicant on Hon'ble Apex court judgment in Tarsem Singh Vs. State of Punjab and Ors. (2006) 13 SCC 581. That was also a case in which, the DA dismissed an employee by invoking Article 311(2)(b). After discussing the matter at length, the Hon'ble Supreme Court held as under:-

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"9. It is not disputed before us that in awarding the punishment of dismissal from service upon the appellant no formal enquiry was held purportedly on the ground that the same enquiry could be dispensed with, under proviso (b) appended to Clause (2) of Article 311 of the Constitution of India, which reads as under:

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-

(1) * * *

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

* * *

Provided further that this clause shall not apply-

(a) * * *

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry;"

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.

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

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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. Hon'ble Apex Court's judgment in Jaswant Singh

Vs. State of Punjab, (1991) 1 SCC 362, had also ruled as under:-

"5.......The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."

13. In Union of India & Anr. Vs. Tulsiram Patel & Ors.

(AIR 1985 SC 1416) also the Hon'ble Supreme Court observed as under:-

"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

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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."

14. In the instant case, the applicant was placed under suspension vide order dated 31.07.2018 due to his involvement in a criminal case and lodging of a FIR against him. Subsequently, preliminary enquiry was ordered. In the preliminary enquiry it was recommended that exemplary punishment should be given. It was also indicted that there is a possibility that no witness would come forward in view of the influential position held by the delinquent and, therefore, it would not be reasonably appropriate to conduct regular DE. The DA noted the observations and dispensed with the enquiry and ordered dismissal of the applicant under Article 311 (2) (b) of the Constitution of India. The AA considered the appeal of the applicant and dismissed the same. In none of the orders, there is any mention of details of raid conducted by the CBI and any recovery of cash during this raid has also not been mentioned in the preliminary enquiry report. The apprehension that the applicant may influence the witnesses, due to which it was decided to dispense with the DE are merely based on surmise and conjectures. The

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criminal proceedings are pending in the Court wherein also witnesses would be produced and cross examined. The apprehension of the witnesses turning hostile in the DE is not tenable as no such instance had come to the notice or specifically mentioned during the preliminary enquiry.

15. Article 311 provides for protection to a public servant from indiscriminate actions by the employer. Any punishment can be imposed only after conducting inquiry. That cannot be dispensed with indiscriminately. It is only in rare cases such as where security of State is involved, that recourse can be taken to Article 311(2)(b) of the Constitution. In this case, the preliminary inquiry itself has virtually declared that the applicant is guilty of grave misconduct. At the same time, regular inquiry is dispensed with. The whole exercise is not only opposed to the law laid down by the Hon'ble Supreme Court, but also is a contradiction in terms.

16. In view of the Hon'ble Apex Court's judgments, the DE can be dispensed with only on the grounds which are robust, clear and substantial. We do not find any such ground or fact which has been brought on record. We are not commenting on acts and omissions alleged against the

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applicant. It is only about the denial of reasonable opportunity for presenting his case to the applicant in a DE and denial of natural justice.

17. In view of the above, the OA is allowed. The order of dismissal is set aside. The applicant shall, however, be under suspension. It shall be open to the respondents to initiate disciplinary proceedings in accordance with law. There shall be no order as to costs.

(Mohd. Jamshed) (Justice L. Narasimha Reddy) Member (A) Chairman

/ankit/