under suspension vide order dated 16.5.2018. Later on, vide order dated 16.5.2018 (Annexure A/2), 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:-

"As per report of DCP/East District, on 16.05.2018 u/s 365/394/34 IPC, Police Station Ghazipur, has been registered on the statement one Tasleem s/o Samshul r/o RC-61, Gali No.2, Shankar Vihar, Khora Colony, Ghaziabad, UP against Constable (Exe.) Idreesh Khan, No.1771/SHD (PIS No. 28081158) posted at District Lines, Shahdara as he has been found involved and arrested in the present case.

On 15.05.2018, a PCR call vide DD No.35-A at

10 PM was received in P.S. Ghazipur Delhi regarding snatching of Rs.22000/- from the caller after the criminals impersonating themselves as policemen. During the course of investigation the statement of the complainant/caller Tasleem s/o Shamshul was recorded in which he stated that on 15.05.2018 at around 9.00 PM when he was coming on the footpath near Murga Mandi, two persons on Motor Cycle Passion Pro restrained his way and represented themselves as police men. They threatened him forcefully and made him sit on their Motorcycle and brought him in front of public toilet L-15, Khichri Pur, Delhi and beaten him and robbed his purse containing Rs.4000/- cash and his admit card of P.K. University. After robbing, both persons went away on their motorcycle. Further, during enquiry, an eye witness Rajender Singh was examined who identified

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the accused person as Constable (Exe.) Idreesh Khan No.1771/SHD previously posted in P.S. Kalyan Puri and one public person namely Jai Singh s/o Bhure Ram r/o 151, Village Khichri Pur, Delhi subsequently, a raid was conducted at the residences of both the accused persons and they were arrested on 16.05.2018. Further, both the accused persons confessed their involvement in the commission of crime. The case property i.e. Motor Cycle No.DL-13 SJ-5092 Passion Pro and cash Rs.2000/- was recovered from the accused Idreesh khan and black purse containing Rs.2000/- and admit card of P.K. University were recovered from the accused Jai Singh. Thereafter, Section 411 IPC has been added in the case. Both the accused persons were produced before the court and were sent to JC till 30.05.2018. As such, on his involvement/arrest in the above case he has been placed under suspension vide order No.4595-4615/HAP(P-II)/SHD, dated 16.05.2018. The content of the FIR shows the modus operandi of accused Constable (Exe.) Idreesh Khan, No. 1771/SHD. He misused his official position to intimate the complainant and succeeded alongwith his associate to rob Rs.4000/- from the complainant and also beaten him. This Constable chose to take the route of hard core criminals and carried out such a grave criminal offence. The act of heinous crime of Constable (Exe.) Idreesh Khan, No. 1771/SHD is extremely irresponsible and abhorrent and needs stern an exemplary action. If the police personnel who are responsible to uphold the rule of the law, themselves indulge in such acts of heinous crime, then the faith of citizens in criminal justice system is shattered.

Constable (Exe.) Idreesh Khan has acted in a manner which shakes the confidence of a common man in the law & order enforcement machinery. Despite being off duty he along with his associate not

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only abducted an innocent man in another district but also beat him up and robbed him of his belongings.

The involvement of accused Constable Idreesh Khan in the aforesaid heinous crime reflects his desperate character and his continuation in a disciplined force like Delhi Police is against public interest. The involvement of the Constable in the above said criminal activity is not only undesirable but also amounts to serious misconduct, indiscipline and unbecoming of a government servant. The said act has rendered him unfit to be in police force. If an immediate stern and drastic action is not taken against him, it will further erode the faith of common man in the police department and it will be a disservice to the entire society.

Keeping in view the facts and circumstances of the case mentioned above, I am of the considered view that action under Article 311 (2) (b) is warranted against Constable (Exe.) Idreesh Khan, No. 1771/SHD (PIS No. 2801158). The present scenario does not make the present case for holding a regular departmental enquiry since the victims are likely to be afraid of deposing against him due to his official position and his violent act.

Therefore, I, NUPUR PRASAD, IPS, Dy.

Commissioner of Police, Shahdara District, Delhi hereby order to DISMISS Constable (Exe.) Idreesh Khan, No.1771/SHD (PIS No. 28081158) from Delhi Police under article 311 (2) (b) of the Constitution of India with immediate effect. His suspension period from 16.5.2018 to the date of issue of this order is also decided as 'Period not spent on duty' for all intents and purposes and the same will not be regularized in any manner.

He will deposit all government belongings with the department viz. Identity Card, CGHS Card,

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Appointment Card, uniform articles etc with respective branches/stores etc. He is not in possession of Government accommodation. As per record, his particulars are as under: -

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

Idreesh Khan, No.1771/SHD (PIS No. 28081158) free

of cost. He can file an appeal against this order to the

Joint Commissioner of Police, Eastern Range, Delhi

within 30 days from the date of receipt of this order

on a non-judicial stamp paper worth Rs. 00.75, by

enclosing this order, if he so desires."

2.1 Thereafter the applicant has preferred his appeal before the Appellate Authority against the aforesaid order of the Disciplinary Authority on 13.6.2018. However, the Appellate Authority vide order dated 10.7.2019 (Annexure A/1) rejected the same. Being aggrieved by the aforesaid order, the applicant has filed the present OA for redressal of his grievances.

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3. Pursuant to the notice, the respondents have filed their counter reply wherein the respondents beside reiterating the contents of the orders passed by the disciplinary and appellate authorities, have stated that the provision of Article 311 (2) (b) of the Constitution of India was correctly implemented in the instant matter and no such violation of Article 311(1) of the Constitution of India was made out. In fact, the punishment was awarded to the applicant under Article 311((2)(b) of the Constitution of India since as the applicant had committed a serious crime and since the victims are likely to be afraid of deposing against him due to his official position and his violent act. They have further stated that in view of gravity of the applicant's misconduct, the Appellate Authority had rightly rejected the appeal of the applicant.

4. At the time of hearing of this case, 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 the said common order was implemented by the respondents vide

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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.

4.1 Learned counsel for the applicant has argued on the basis of the above submissions that disciplinary as well as appellate authorities have not correctly applied their mind to the facts of the case and, therefore, the impugned orders are absolutely illegal, arbitrary and

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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 orders, 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 prevent them from doing so or where the government servant by himself or together with

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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."

4.2 Shri Luthra has further submitted that Govt. of India as well as the respondents themselves through various instructions/circulars dated 29.12.1993, 08.11.1993 (Annexure A/5 Colly.) and 11.09.2007 provide that the

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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. On the strength of above cited ruling and rule position, Shri Luthra has further submitted that on the face of the impugned order passed by the disciplinary authority is not sustainable in law as the said FIR, suspension order as well as the impugned order passed by the respondents is of the same date, i.e., 16.5.2018, which itself proves that no efforts were made by the concerned authorities to initiate departmental inquiry or to bring the witness(es) to prove the charges against the applicant.

5. On the other hand, Shri Jha, learned counsel for the respondents with the assistance of the counter reply and by referring to the aforesaid impugned orders passed by the disciplinary and appellate authorities has submitted

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that the applicant has rightly been dismissed from the service by invoking the provisions of Article 311(2)(b) of the Constitution of India and that too, confession statement of the applicant annexed at Annexure R-3 in the interest of justice. He has also submitted that keeping in view the allegations levelled against the applicant under Sections 365/394/34 of IPC and keeping in view the facts and circumstances of the case as mentioned in the order passed by the Disciplinary Authority, it would not be reasonably practicable to conduct a regular departmental enquiry against the applicant, since the victims are likely to be afraid of deposing against him due to his official position and his violent act.

6. Shri Luthra in rebuttal has submitted that no such confession statement was made by the applicant and the same is false.

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

8. In view of the fact that the counsel for the applicant has placed reliance of the common Order/Judgment of this Tribunal in the case of Ct. Sumit Sharma (supra) in

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support of the claim of the applicant, we deem it appropriate to put a question to the learned counsel for the respondents that 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 grounds, 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 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

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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 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

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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 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

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(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. Shri Jha, learned counsel for the respondents has admitted that all the relevant judgments have been considered by this Tribunal while deciding the case of Ct. Sumit Sharma (supra). 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 of the facts and circumstances of the case, 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

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countries was likely to be adversely affected. Rather, it is pertinent to mention that on the same day, i.e., 16.5.2018 the said FIR was registered and the impugned dismissal order was also passed by the Disciplinary Authority, which shows that no efforts had ever been made by the competent authority to initiate departmental enquiry or to summon the witness(es). 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 since the victims are likely to be afraid of deposing against him due to his official position and his violent act. The same is the position when the appellate authority rejected the appeal of 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 (Annexure A5 Colly.). The confession by the applicant alleged by the respondents is not confession before the disciplinary authority or before the judicial officer having jurisdiction but admittedly before on SI of Delhi Police during investigation in the case FIR. Hence, it may not be considered as

confession/admission of delinquency. Moreover, it is

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undisputed that during the trial in the said case FIR, five prosecution witnesses appeared in the Court and lead their witness(es) by the time of filing of the OA. 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.

9. 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.

10. 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

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present OA deserves to be partly allowed and the same is partly allowed with the following directions:-

(i) Orders dated 16.5.2018 (Annexure A/2) and 10.07.2019 (Annexure A/1) passed by the Disciplinary and Appellate authorities respectively are set aside with all consequential benefits to the applicant in 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.

11. 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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