West District). Thereafter he was placed under suspension w.e.f. 25.8.2015 vide order dated 31.08.2015. Later on, vide order dated 11.09.2015 (Annexure A/1) passed by the disciplinary authority, 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:-

"Case FIR No.729 dated 25.08.2015 u/s 384/411/120-B/34 IPC and 25/54/59 Arms Act, PS Mahendra Park (North West District) was registered on the complaint of Shri Hasrat Ali S/o Abdul Aziz R/o E-64, Vijay Vihar, Phase-I, Delhi. In the complaint it is alleged that during the intervening night of 24-25/08/2015, his driver Rinku who was carrying liquor from Haryana in a Tempo Tata 407, called up on his mobile and told him that his tempo had been stopped by one police officer ASI Tejveer Singh along with one Ct. Jagvir Pal Singh of Crime Branch and HC Narender from Excise Department GNCTD and they are demanding Rs.3 lacs to release the tempo. Hasrat Ali could arrange only Rupees One Lac Sixty Three Thousands and went to Jahangir Puri Metro Station as directed by Rinku. There he met ASI Tejveer Singh alongwith staff on the service lane near Jahangir Puri Metro Station and handed over the money to ASI Tejveer Singh. In his presence, ASI Tejvir Singh gave rupees twenty five thousand each to HC Narender and Ct. Jagvir Pal Singh while keeping the remaining with him. ASI Tejvir Singh further asked him to arrange the remaining amount. In the meanwhile, SHO/PS Mahindra Park who was on night patrolling along with staff reached there and after knowing the facts, he recovered Rs. One Lac Thirteen thousand and a country made pistol loaded

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with 5 live cartridges, from the possession of ASI Tejveer Singh. But, his associates HC Narender and Ct Jagvir Pal Singh managed to escape from the spot. ASI Tejveer Singh No.352/Crime was arrested in this case from the spot on 25.08.2015. Ct. Jagvir Pal Singh, No.1385/Crime is absconding since the registration of the case. The case is pending investigation in North-West District. Both the police personnel had hatched a well planned conspiracy with their associates to extort money of Rs. 1.63 Lac from the complainant Sh. Hasrat Ali S/o Abdul Aziz R/o E-64, Vijay Vihar, Phase-I, Delhi by stopping his vehicle Tata-407 containing illicit liquor. This shows criminal bent of their mind. Such blatant and desperate indulgence in criminal activity by serving police official not only brings bad name to the department but also distorts the image of police in the entire society. It also shakes the faith of peace loving citizens in the law enforcement agency.

Both police personnel were placed under suspension w.e.f. 25.08.2015 by ACP/NR/Crime vide DD No.19 dated 31.08.2015 and the same has been regularized/approved vide order No. 4864- 4904/HAP/P-DCP/Crime(North) dated 25.08.2015. A preliminary enquiry has been conducted by Sh. Ranbir Singh, ACP/Spl. Team. During enquiry no one has come forward from public to depose against them for fear of adverse consequences of deposing against such a ruthless and desperate police officers. Considering their desperate and bold criminal acts, there is every likelihood that they will not hesitate to threaten the complainant and the witnesses. Considering the facts and circumstances, the enquiry officer has reached the conclusion that a free and fair departmental enquiry could not be conducted against such criminals in uniform. After due deliberations, I am of the considered view that it would not be practicable to hold a departmental enquiry against them as no one would come forward to depose against them for fear of his life from such rogue and desperate policemen involved in criminal activities.

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Considering their drastic act, there further retention in the department is totally undesirable. Keeping in view the facts of the case, the undersigned is personally and fully satisfied with the report of ACP/Crime along with the FIR which discloses the sequence of events while committing Crimes. Both police personnel have committed criminal acts which is highly reprehensible and absolutely unbecoming of police personnel. They, being a member of disciplined force are having the responsibility to protect the life and property of the citizen of this country but they them self indulged in dastardly criminal acts. As such, they have not only tarnished the image of the Delhi Police but have also rudely shaken the faith of the citizens in the entire police force. While being a member of disciplined police force they acted in a manner which was undoubtedly extremely prejudicial to the personal safety and security of the citizens of this country. Their criminal acts put a blot on the police force and shaken the confidence of the public in the police force.

The act and conduct of the accused ASI. Exe. Tejveer Singh, No.352/Crime (PIS No.28861858) and Ct. Jagvir Pal Singh No. 1385/Crime (PIS No.28950914) warrants their dismissal from the service under article 311 (2)(b) of the Constitution of India at first instance without following the procedure of regular departmental proceedings, although the purpose for fact finding is really not needed as FIR No.729/15 dated 25.08.2015 u/s 384/411/120-B/34 IPC and 25/54/59 Arms Act, PS Mahendra Park, North West District and the report of ACP/Spl. Team Crime makes the sequence of events and the grave and desperate nature of the accused person crystal clear. In order to send a clear message to such undesirable persons and to maintain discipline as well as to prevent the recurrence of such an incident, it has become absolutely necessary to dismiss these police personnel namely ASI. Exe. Tejveer Singh, No.352/Crime (PIS No.28861858) and Ct. Jagvir Pal Singh No. 1385/Crime (PIS No.28950914) from

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service. Assessing the totality of the facts and circumstances of the case as mentioned above, I am of the firm view that the act of the accused ASI. Exe. Tejveer Singh, No.352/Crime (PIS No.28861858) who is presently in judicial custody and and Ct. Jagvir Pal Singh No. 1385/Crime (PIS No.28950914) who is absconding since the registration of the case i.e. 25.08.2015 attracts the provisions of Article 311 (2)

(b) of 'Constitution of India' with immediate effect. Their suspension period from 25.08.2015 to the date of issue of this order is also decided as "period not spent on duty" for all intents and purposes. They will deposit all their Govt. belongings i.e. identity cards, appointment cards, CGHS Cards, Genl. Store/Clothing Store articles etc. to the concerned authority at once. Both of them are not in possession of Govt. accommodation.

Their particulars as per service record are as under: -

xxx xxx xxx xxx xxx xxx

Let a copy of this order be given to ASI. (Exe.) Tejveer

Singh, No.352/Crime (PIS No.28861858) and Ct.

(Exe.) Jagvir Pal Singh No.1385/Crime (PIS

No.28950914) free of cost. They can file an appeal

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against this order to the Commissioner of Police, Delhi within 30 days from the date of receipt of this order on a non-judicial stamp paper worth Rs. 00.75, by enclosing a copy of this order, if they so desires."

2.2 Aggrieved by the aforesaid order of the disciplinary authority, the applicant has preferred an appeal dated 5.10.2015 (Annexure A/2) to the appellate authority. When the said appeal was not decided by the appellate authority even after lapse of more than 2 and half months, the applicant has filed the present OA for redressal of his grievances.

3. Pursuant to the notice, the respondents have filed their counter reply. The applicant has also filed his rejoinder.

4. In the counter reply, the respondents have averred the facts as mentioned in the aforesaid impugned order passed by the disciplinary authority and quoted above and have also stated that the aforesaid appeal preferred by the applicant is pending consideration of the appellate authority and hence, it is not an appropriate time for invoking the jurisdiction of this Tribunal in the instant case.

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5. In rejoinder, the applicant has refuted the averments made by the respondents in their counter reply and has submitted that it is admitted fact that a preliminary enquiry has been conducted by the respondents. In the said PE, six persons have been stated to be examined and their statements were recorded where the said persons have supported the allegations levelled against the applicant. It is further submitted that all the above six persons are police personnel of which three are Inspectors as such it is arbitrary and unreasonable to say that the police personnel are afraid of applicant and will not depose in departmental enquiry. Furthermore, according to the Preliminary Enquiry officer, the complainant could not be examined as he was not available despite best efforts. This is vague and strange as there is no evidence to show that any effort has been made by them to contact him.

6. 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 Sharma vs. Govt. of NCT of Delhi and others in OA 1383/2020 and a batch of cases, and that

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the said common order was implemented by the respondents vide order dated 29.3.2022. He has further submitted that catena of cases were decided by this Tribunal on the basis of the aforesaid common Order/Judgment of this Tribunal dated 10.2.2022. 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.

6.1 Learned counsel for the applicant has argued on the basis of the above submissions that disciplinary authority has not correctly applied its mind to the facts of the case and, therefore, the impugned order is absolutely illegal,

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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 order, 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

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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."

6.2 Shri Luthra has also submitted that Govt. of India as well as the respondents themselves through various instructions/circulars dated 29.11.1993, 08.11.1993 and

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11.09.2007 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.

7. On the other hand, Shri Yadav, learned counsel for the respondents with the assistance of the counter reply, especially by referring to the aforesaid order passed by the disciplinary authority 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. He has also submitted that keeping in view the allegations levelled against the applicant under Sections 384/411/120-B/34 IPC and 25/54/59 of Arms Act, there is every likelihood of threat or harassment to any of the

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witness(es) and/or the prospective witness(es) by the applicant and as such the departmental enquiry is not reasonably practicable in the case of the applicant. He has further submitted that since the aforesaid appeal of the applicant is pending consideration with the appellate authority, the present OA is pre-mature and deserves to be dismissed by this Tribunal.

8. We have heard the learned counsels for the parties and perused the material placed on record.

9. So far as the contention of the learned counsel for the respondents that the present OA is pre-mature in view of the fact that the applicant's aforesaid appeal dated 11.9.2015 is pending consideration with the appellate authority and the same will be decided shortly is concerned, the same is not sustainable at this stage since the instant OA was filed by the applicant way back on 25.1.2016, the counter reply has been filed by the respondents on 8.7.2016, this matter is taken up for final hearing in October 2022 and till date they have not placed on record any order on the aforesaid pending appeal of the applicant. Moreover, the counter reply is filed on behalf of

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the respondents, i.e., Appellate Authority amongst the respondents and the said counter reply indicates the mind of the respondents, as such no useful purpose would be served to remit the matter at this stage to the Appellate Authority for taking decision on the applicant's appeal. Having regard to the reliance placed by the learned counsel for the applicant on the decision of this Tribunal in Ct. Sumit Sharma (supra), we deem it appropriate to put to the learned counsel for the respondents 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 ground(s), 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

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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

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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

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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 are stated to have implemented the same. No cogent reason has been given on behalf of the respondents as to why the Order/Judgment in the case of Ct. Sumit Sharma (supra) is not applicable in the case in hand. However, the learned counsel for the respondents has reiterated his submissions as noted above. We find that nothing has been recorded in the impugned order 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

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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, 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 disciplinary authority while passing the impugned order has very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant 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 instructions/circulars dated 29.11.1993, 08.11.1993 and 11.09.2007. 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

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High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.

10. 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.

11. 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:-

(i) Order dated 11.09.2015 (Annexure A/1) passed by the Disciplinary Authority is set aside with all consequential benefits to the applicant in

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accordance with the relevant rules and law on the subject;

(ii) The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order; and

(iii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.

12. However, in the facts and circumstances, there shall be no order as to costs.

(Tarun Shridhar) (R.N. Singh)

Member (A) Member (J)

/ravi/

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