MEENA KUMARI v. COMM. OF POLICE

3

bail on 14.04.2020 and was granted regular bail by the Hon'ble High Court of Delhi, vide order dated

27.05.2020.

3. It is the case of the applicant that despite grant of regular bail by the Hon'ble High Court of Delhi, she was dismissed from service, vide impugned order dated 22.10.2020, without holding any regular departmental enquiry and affording an opportunity of hearing to defend her case, which is contrary to the settled principles of law in this regard. Being aggrieved, the applicant submitted an appeal dated 07.11.2020, and the appellate authority did not consider the grounds taken by the applicant therein, and rejected the appeal arbitrarily without application of mind, vide impugned order dated 03.06.2021. It is stated by the applicant that both the impugned orders passed by the disciplinary authority and the appellate authority are illegal and deserve to be set aside.

4. The applicant further stated that the order of the disciplinary authority is bad in law as the reasons recorded by the disciplinary authority to invoke the power under Article 311(2)(b) of the

4

Constitution of India does not withstand the scrutiny of law. It is also stated that the disciplinary authority in utter violation of the principles of natural justice; departmental rules and procedure laid down in this regard, and under the garb of Article 311(2)(b) of the Constitution of India without subjecting the applicant to departmental enquiry, straightaway dismissed the applicant from service on the basis of alleged involved in the criminal case. It is added by the applicant that the order of the disciplinary authority is vitiated as it has totally ignored the Rules 15(3) and 16(3) of Delhi Police (Punishment & Appeal) Rules, 1980 to the effect that the previously recorded statement of the witnesses can also be brought on record in case of non-availability of the witnesses to record a reason for dispensing with the departmental enquiry.

5. The respondents have filed a detailed counter affidavit stating therein that the applicant, while posted in Accounts Branch, Outer District, Delhi, was adversely noticed in the commission of an offence in case FIR No.195/2019 dated 01.10.2019 u/s 409/420/120-B, IPC, which was registered on

5

the complaint of Inspr. Ved Prakash s/o Sh. Rai Singh, Accountant, Accounts Branch, Pritam Pura Police Line, Delhi. She was arrested on 04.12.2019 and released on interim bail on 14.04.2020 whereas she was permanently bailed out on 28.05.2020. It is further stated that the applicant was also placed under suspension w.e.f. 04.12.2019, vide office order dated 12.12.2019.

6. It is averred by the respondents in their counter reply that after completing enquiry, DCP/EOW, Delhi filed the chargesheet in the concerned court on 29.12.2019 against the applicant including her associates. As per the chargesheet, she was posted as Sub Inspector in Accounts Branch, Outer District and entrusted with the job of preparation of various bills, e.g., salary, tuition fee and arrears etc. She along with one Constable Anil prepared wrong bills, thus, being a public servant, she committed criminal breach of trust while discharging official duties entrusted to her and misappropriated/embezzled of the government funds in connivance of her other associates with criminal conspiracy. It is stated that the co-accused Constable Anil Kumar was arrested

6

on the same day by EOW and after interrogation, he was sent to judicial custody. Due to grave misconduct, he was dismissed form the force under Article 311(2)(b) of the Constitution of India, vide order dated 09.10.2019. Moreover, other co-accused Constable Krishan Kumar, PS, Prem Nagar, Rohini District was also dismissed from service, vide order dated 18.03.2020. It is further stated that the applicant committed criminal act with ill intention and siphoned off above cited huge amount of money meant to be credited to concerned personal account to her near and dear ones.

7. The respondents have stated that as the applicant was holding an influential position, holding a detailed enquiry would be impracticable as the affected police personnel would not be in a position to depose against her. Her misconduct is such that if she is allowed to continue in the police force, it would be detrimental to public interest and shall further tarnish the image of the police force in the society. She has indulged herself in the most abominable act, which is not expected from an official of the uniformed force. Hence, vide order

7

dated 22.10.2020, her suspension period w.e.f. 04.12.2019 to the date of issue of dismissal order has also been decided as the period not spent on duty for all intents and purposes and the same will not be regularized in any manner.

8. Heard learned counsel for the parties at length and have carefully perused the material on record as well as the decisions relied upon by the learned counsel for the applicant.

9. During the course of arguments, learned counsel for the applicant argued that this Tribunal has decided various identical matters in favour of the applicants therein, few of which are (i) Jasmohinder Singh vs. Commissioner of Police & Anr. [OA No.2867/2019 decided on 16.10.2020]; (ii) Neeraj Kumar vs. Commissioner of Police & Anr. [OA No.2097/2019 decided on 01.11.2019]; and (iii)

Dharmender Singh Dangi vs. Govt. of NCTD & Ors. [OA No.702/2019].

10. We have thoroughly gone through the decision in Neeraj Kumar (supra) wherein this Tribunal dealt with the issue of dispensing of the departmental

8

enquiry under Article 311(2)(b) and while doing so relied upon the following decisions of the Hon'ble Apex Court:-

"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 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."

After taking shelter of the aforesaid decisions of the Hon'ble Apex Court, this Tribunal observed as under:-

"15. Article 311 provides for protection to a public servant from indiscriminate actions by the employer. Any punishment can be imposed only

9

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 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."

Finally the aforesaid OA was decided by this Tribunal in the following terms:-

"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."

11. It is also noticed that this Tribunal, taking similar view as in Neeraj Kumar (supra), decided yet another matter in Dharmender Singh Dangi (supra) holding as under:-

"12. No word is said by the respondents as to how it would not be possible to conduct an inquiry in the present episode. Conversely, if inquiry cannot be conducted, it can also be a reason, to doubt the veracity of the version presented against the applicant. The IO, in the disciplinary proceedings is given the latitude to record finding, not being regulated by any principles of evidence. Even if two views are possible either on the charges or as to the quantum of punishment decided by the DA, the Courts will permit that latitude. When such is the

10

situation, the sacrosanct requirement under the law, namely, of conducting an inquiry before imposing the punishment cannot be sacrificed on the strength of imagination. Even now the inquiry can be conducted, and till such time the applicant can be continued under suspension.

13. We, therefore, allow the OA and set aside the impugned order. The applicant shall stand reinstated into service, but shall continue under suspension. It shall be open to the respondents to initiate disciplinary proceedings by issuing a charge memo within a period of three months from the date of receipt of a copy of this order. In case no charge sheet or memo is issued within that time, the suspension of the applicant shall cease, and he shall be reinstated in service. However, he shall not be entitled to back wages. If the applicant is reinstated as above, the DA shall pass an order as to the manner in which the period of suspension shall be treated. There shall be no order as to costs."

12. Having gone through the decisions relied upon by the learned counsel for the applicant and of the Hon'ble Apex Court mentioned therein, we are of the considered opinion that this issue is no more res integra, and taking shelter of these decisions, we find merit in this OA being similar one.

13. Resultantly, the OA is allowed. The Order dated 22.10.2020 passed by the disciplinary authority dismissing the applicant and the order dated 03.06.2021 passed by the appellate authority confirming the dismissal order, are quashed and set aside, but the applicant shall be under suspension. We, however, make it clear that it shall be open to

11

the respondents to initiate disciplinary proceedings against the applicant in accordance with law.

14. There shall be no order as to costs.

(Anand Mathur) (Ashish Kalia)

Member (A) Member (J) /Nahuja/