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Smart Summary

Structured Summary of the Opinion — OA No. 1114/2018

Factual and Procedural Background

The applicant, Tara Dutt, an Assistant Sub Inspector in the Delhi Police, was the subject of a criminal case registered as FIR No.215/17 dated 27.08.2017 at PS Sabzi Mandi under Section 12 of the Prevention of Corruption Act and Section 120-B IPC. The FIR arose from a complaint made by Shri Chander Shekhar, an Assistant Sessions Judge (ASJ) of Tis Hazari Court. The factual narrative in the impugned order alleges that a Head Constable named Surender Kumar entered the ASJ's chamber to check whether the ASJ knew a person named Daya Nand Sharma. The ASJ is said to have indicated he did not know anyone by that name. It is alleged that the applicant attempted to contact the ASJ (including making a phone call to Daya Nand Sharma in Surender Kumar's presence), showed a visiting card, and handed an envelope to Surender Kumar to deliver to the ASJ. When the envelope was later opened on the ASJ's instructions, it allegedly contained a photocopy of an interview letter for a candidate named Mukul Kumar and 25 currency notes of Rs.2,000 each (totaling Rs.50,000). The ASJ forwarded these materials to the SHO and an FIR was registered.

The Deputy Commissioner of Police (Special Branch) dismissed the applicant from service on 29.10.2017 by invoking Article 311(2)(b) of the Constitution of India, observing that the applicant's acts were shameful and tarnished the police department's image. The applicant's appeal was rejected by the Joint Commissioner of Police (the appellate authority) by order dated 16.02.2018. The applicant filed this Original Application challenging both the dismissal order and the appellate order.

Legal Issues Presented

  1. Whether the dismissal of the applicant under Article 311(2)(b) of the Constitution was justified when no charge memo was issued and no departmental inquiry (even a preliminary inquiry or recording of material witness statements) was conducted.
  2. Whether the authority correctly satisfied the requirement of recording reasons in writing to justify dispensing with a departmental inquiry under Article 311(2)(b).

Arguments of the Parties

Applicant's Arguments

  • The allegations against the applicant are baseless and lack any semblance of evidence.
  • The complaint was based on hearsay and the complainant (a judicial officer) did not verify facts before submitting it.
  • No reasons were given to explain why the disciplinary inquiry (the constitutional protection for an employee) was dispensed with; no charge memo was issued.
  • The appellate authority exceeded the scope of its power in upholding the dismissal and tried to justify an untenable order.

Respondents' Arguments

  • The allegations are serious in nature and, given the status of the complainant (a sitting judge) and gravity of allegations, the impugned order of dismissal was justified.
  • The acts attributed to the applicant tarnished the image of the police, and the authorities lawfully invoked Article 311(2)(b) to dispense with inquiry.
  • Various contentions raised by the applicant were denied in the respondents' counter-affidavit.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Tarsem Singh v. State of Punjab, Criminal Appeal No.476/2005 (dated 12.12.2008) The Supreme Court cautioned against indiscriminate invocation of Article 311(2)(b), particularly where allegations do not concern the security of the State. Even grave allegations ordinarily require a disciplinary inquiry; the provision cannot be used merely because the department is not confident of proving charges through evidence. The Tribunal relied on this caution to conclude that invocation of Article 311(2)(b) in the present case—without conducting even a preliminary fact-finding or recording key statements—was improper, and thus set aside the dismissal.
OA No.702/2019 (Dharmender Singh Dangi v. Govt. of NCT & Ors.), dated 07.01.2021 Illustrative tribunal authority dealing with similar situations where disciplinary procedure and the caution in invoking Article 311(2)(b) were considered. The Tribunal cited this OA as a similar instance handled by the Tribunal to support the view that disciplinary inquiry cannot be dispensed with routinely and to reinforce the approach adopted in the present case.

Court's Reasoning and Analysis

The Tribunal set out the legal framework under Article 311(2) of the Constitution, noting that normally a government servant cannot be dismissed except after an inquiry in which he is informed of charges and given a reasonable opportunity to be heard. Article 311(2)(b) creates a limited exception permitting dismissal without inquiry where the authority is satisfied that it is "not reasonably practicable to hold such inquiry" and records reasons in writing.

The Tribunal observed that in the present matter no charge memo was issued to the applicant and the dismissal order was passed directly by invoking Article 311(2)(b). The impugned order relied essentially on the FIR and on the complaint by the ASJ; there was no attempt to verify critical facts before dispensing with inquiry. In particular, although the impugned order recounts the role of Head Constable Surender Kumar as the person who delivered the envelope to the ASJ, no effort was made to record Surender Kumar's statement or to conduct even a preliminary inquiry. Nor did any officer approach the ASJ to record his statement for purposes of disciplinary inquiry.

The Tribunal emphasized that the stature of a complainant does not remove the need for verification and procedural fairness. It noted that the single sentence in the impugned order purporting to justify dispensing with inquiry—"The facts and circumstances of the case are such that it would not reasonably practicable to conduct a regular departmental inquiry against the defaulter."—was insufficient. The Tribunal applied the principle from Tarsem Singh that cautions against indiscriminate use of Article 311(2)(b) and held that the departmental authority abdicated its responsibility to ascertain basic facts before invoking extraordinary powers.

On these grounds the Tribunal concluded that the invocation of Article 311(2)(b) was unjustified in this case and that the dismissal must be set aside. The Tribunal nevertheless left open the option for respondents to initiate proper disciplinary proceedings by issuing a charge sheet following reinstatement.

Holding and Implications

Holding: The Tribunal allowed the Original Application and set aside the impugned order of dismissal passed under Article 311(2)(b). The applicant is to be reinstated.

Direct consequences ordered by the Tribunal:

  • The applicant shall be reinstated into service within four weeks from receipt of a copy of the Tribunal's order.
  • The respondents are permitted to initiate disciplinary proceedings by issuing a charge sheet; a decision whether to initiate such proceedings must be taken within four weeks after the applicant's reinstatement.
  • The manner in which the period from the date of the impugned order until reinstatement is to be treated shall depend upon the outcome of any disciplinary proceedings initiated.
  • If no decision is taken to initiate disciplinary proceedings within the specified period, the applicant shall be extended all consequential benefits within six weeks thereafter.
  • There shall be no order as to costs.

Implications beyond the parties: The opinion reaffirms the settled caution against casually invoking Article 311(2)(b) to bypass departmental inquiry. The Tribunal did not indicate that it was setting a novel legal precedent; rather it applied Supreme Court guidance and prior tribunal consideration to the facts and remedied procedural unfairness in the individual case.

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    TARA DUTT v. GOVT. OF NCTD

    1

    OA No. 1114/2018

    CENTRAL ADMINISTRATIVE TRIBUNAL

    PRINCIPAL BENCH, NEW DELHI

    OA No. 1114/2018

    This the 17thday of June, 2021 (Through Video Conferencing) Hon'ble Mr. Justice L. Narasimha Reddy, Chairman Hon'ble Mr. Mohd. Jamshed, Member (A) Tara Dutt, Age - 38 years,

    S/o Tika Ram,

    R/o-H. no. 1/190, Khichri pur,

    PS Kalya puri, Mayur Vihar-91.

    … Applicant

    (By Advocate : Mr. Sachin Chauhan) Versus

    1. Govt. of NCTD through, The Chief Secretary, Govt. of NCTD,

    A-Wing, 5thFloor,

    Delhi Secretariat, New Delhi - 110113.

    2. The Commissioner of Police, Police Headquarters, MSO Building, I.P. Estate, New Delhi.

    3. The Joint Commissioner of Police, Special Branch, Delhi,

    Police Headquarters, MSO Building, I.P. Estate, New Delhi.

    4. The Dy. Commissioner of Police, Special Branch,

    Delhi.

    … Respondents

    (By Advocate : Ms. Harvinder Oberoi)

    >

    2

    O R D E R (ORAL)

    Justice L. Narasimha Reddy, Chairman :

    The applicant is working as Assistant Sub Inspector in the Delhi Police. A criminal case was registered against him in FIR No.215/17 dated 27.08.2017 U/s 12 of Prevention of Corruption Act & 120-B IPC PS Sabzi Mandi, Delhi, on the basis of a complaint made by one Shri Chander Shekhar, Assistant Session Judge, (ASJ) Tis Hazari Court. It was alleged that one Head Constable by name Surender Kumar, Court, Naib entered the chamber of learned ASJ and verified that whether he knows someone by name Daya Nand Sharma; and when the learned ASJ told that he does not know anyone by that name, Surender Kumar is said to have informed him that the applicant wants to contact him i.e. ASJ on the directions of Shri Daya Nand Sharma.

    2. Learned ASJ is said to have refused to meet the applicant and went for lunch, in the chamber of Shri Rakesh Kumar Sharma, learned CBI Judge, Tis Hazari Court and told Surender Kumar that the applicant may have come to meet someone else. The applicant is said to have made a phone call to Shri Daya Nand Sharma in the presence of Surender Kumar

    3

    and wanted to know whether he should contact the learned ASJ or someone else. The applicant is said to have shown visiting card of Daya Nand Sharma to Surender Kumar and thereafter handed over an envelope to him, to be delivered to Learned ASJ.

    3. At about 4.00 p.m. Surender Kumar is said to have informed of these developments to the learned ASJ, and the latter asked the former to open the cover. It is stated that when the envelope was opened, a photocopy of the interview letter in respect of a candidate by name Mukul Kumar S/o Ramesh Kumar and 25 currency notes in the denomination of Rs.2,000/- each (aggregating to Rs.50,000/-) were found. The learned ASJ is said to have forwarded the same to SHO/PS Sabzi Mandi and accordingly a case was registered.

    4. The Deputy Commissioner of Police, special branch passed an order dated 29.10.2017, dismissing the applicant from service by invoking the power under Article 311(2)(b) of the Constitution of India. It was observed that the acts of the applicant are shameful and have tarnished the image of police department; and that he cannot be allowed to continue in the Police Force. The appeal preferred by the applicant against

    4

    the said order was rejected by the Joint Commissioner of Police i.e. the 3rdrespondent through order dated 16.02.2018. This OA is filed challenging the order of dismissal as well as the order passed by the Appellate Authority.

    5. The applicant contends that the allegations made against him are totally baseless and that there is not even an iota or semblance of evidence, to prove the said allegation. He contends that the complaint submitted against him was on the basis of a hearsay and even the complainant, a Judicial Officer, did not verify the facts before submitting a complaint. He submits that the impugned order was passed just on the face value of the complainant. It is also urged that no reason whatever is mentioned as to how the disciplinary inquiry, the only protection given to an employee by the Constitution of India, is dispensed with and the impugned order is liable to be set aside. He contends that the appellate authority has travelled beyond the scope of the impugned order and tried to justify, an otherwise untenable order.

    6. Respondents filed a detailed counter affidavit. According to them, the allegations made against the applicant are serious in nature and if one takes into account, the status of the complainant and the gravity of the allegations made against

    5

    the applicant, the impugned order is very much justified. It is stated that the acts attributed to the applicant have tarnished the image of the police and the procedure under Article 311 (b) was taken recourse to. Various allegations made by the applicant are denied.

    7. Today, we heard Shri Sachin Chauhan, learned counsel for the applicant and Ms. Harvinder Oberoi, learned counsel for the respondents.

    8. If any acts or omissions, on the part of an employee, constituting misconduct are noticed, the ordinary course is to initiate disciplinary proceedings under the relevant provisions of law. For a Government Servant, this protection is accorded under Article 309 and 310 of the Constitution of India. An exception is carved out under Article 311 (2)(b), where the disciplinary inquiry can be dispensed with in certain cases. The Article 311(2), reads as under:

    (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 that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making

    6

    representation on the penalty proposed: Provided further that this clause shall not apply

    (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

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

    (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.

    9. No charge memo was issued to the applicant. On the other hand the order of dismissal was straightway passed by invoking the power under Article 311(2)(b).

    10. In Tarsem Singh Vs. State of Punjab Criminal Appeal No.476/2005 dated 12.12.2008, Hon'ble Supreme Court cautioned against the indiscriminate invocation of power under Article 311 (2)(b), particularly, where the allegations made against the employee are not of security of State. Howsoever, grave the allegations of the misconduct can be, the ordinary course of conducting disciplinary inquiry cannot be short circuited, simply because the department is not confident of proving the charges by adducing oral or documentary evidence. This Tribunal also has dealt with the

    7

    cases of similar nature such as OA No.702/2019 (Dharmender Singh Dangi Vs. Govt. of NCT & Ors. ) dated

    07.01.2021.

    11. The basis for passing the impugned order against the applicant is contained in the order itself. One Head Constable by name Surender Kumar is said to have entered the chamber of learned ASJ of Tis Hazari Court, stating that the applicant wants to meet him on the directions of one Daya Nand Sharma. The learned ASJ is said to have stated that he does not know Daya Nand Sharma and the same is said to have been conveyed to the applicant. It is thereafter, that the applicant is said to have handed over an envelope to Surender Kumar, who in turn is said have handed over the same to the learned ASJ.

    12. The truth or otherwise of these allegations could have been verified if only the statement of Surender Kumar was recorded, even by conducting a preliminary inquiry. No effort was made to take that step. No officer has contacted the learned ASJ to know the circumstances that led to filing of

    FIR.

    13. Howsoever serious the allegation may be, the course of law does not depend upon the stature of the person who

    8

    complains. Before law, everyone is equal. The complaint is emanated from a learned sitting judge of the Tis Hazari Court. The steps contemplated under law such as recording of statement of the complainant cannot be dispensed with. It is a different matter that the statement recorded from such authorities carry weight. All the same, they are also amenable for verification in accordance with the procedure, prescribed under law. If that is not done, the very basis of law , namely, fair play comes to be compromised.

    14. This is not a case in which the applicant is said to have entered the chambers of learned ASJ and the envelope containing the currency notes were handed over to him. Even according to the impugned order, the so called envelope was handed over to the learned ASJ by Surender Kumar. In all fairness, Surender Kumar should have been shown as an accused, particularly when he is not an employee of the Court. There is no special law which exempts the actual participants in the crime, to be exempted from being shown as accused and permits an unknown person, to be implicated as an accused.

    15. Whatever be the form of FIR or the circumstances under which it was registered the disciplinary authority cannot

    9

    abdicate its responsibility to get hold of the basic facts. It is only when one makes an attempt to know the relevant facts and finds in the process, that the situation is so grave that it is not possible to conduct inquiry in the ordinary course, that the power under Article 311(2)(b) should have been invoked. The FIR was taken on its face value and straightaway, the impugned order was passed. The only sentence in the impugned order which is employed to justify the extraordinary powers, reads as under :-

    "The facts and circumstances of the case are such that it would not reasonably practicable to conduct a regular departmental inquiry against the defaulter."

    16. The applicant is not a terrorist posing any threat, in the course of the inquiry. The Learned ASJ who is the complainant is not above law and his statement could have been recorded, duly extending him, the privilege, commensurate with the position held by him. Atleast, a responsible officer could have gone to the learned judge and ascertain the facts, from the point of view of disciplinary inquiry. Things would have been different, had it been a case where applicant met the learned ASJ and handed over the envelope. The alleged link between the applicant on the one

    10

    hand and the learned ASJ on the other hand is Mr. Surender Kumar. It was his act that resulted in registration of an FIR as well as the dismissal of the applicant. Not a word is said as to why no effort was made to ascertain the facts from Surender Kumar, an employee of the Police department. The whole episode is in a very poor taste. Howsoever tempting it may be, for a superior official, to avoid the prescribed procedure, law does not permit the termination of service of a civil servant by denying him, the protection accorded under Constitution.

    17. Therefore, we allow the OA and set aside the impugned order. The applicant shall be reinstated into service within a period of four weeks from the date of receipt of a copy of this order. We, however, leave it open to the respondents to initiate disciplinary proceedings against the applicant by issuing a charge sheet. A decision in this behalf shall be taken within four weeks after the reinstatement of the applicant. The manner in which the period from the date of impugned order till the date of reinstatement is to be treated, shall depend upon the outcome of the disciplinary proceedings, if initiated. If no decision is taken for initiation of the disciplinary proceedings, within the period referred to above, the applicant shall be extended all the consequential

    11

    benefits, within six weeks thereafter. There shall be no order as to costs. (Mohd. Jamshed) (Justice L. Narasimha Reddy) Member (A) Chairman

    /Lg/rk/ankit/sd

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    TARA DUTT v. GOVT. OF NCTD
    (Jun 17, 2021)