3

3. It is contended that he has been dismissed from service by the Disciplinary Authority without holding a regular departmental enquiry and without affording an opportunity to defend himself. Aggrieved, the applicant submitted an appeal on 18.07.2017 which was rejected on 30.07.2018. He has thus approached this Tribunal challenging the said order of rejection of appeal.

4. Notices were issued to the respondents who put their appearance through Sh Amit Yadav, learned counsel. He filed reply opposing the OA, stating in paras 4 (i), (ii), (iii) and (iv) as under:-

(i) Maniram reported that he has been working as a Guard for last 18/20 years in the Godown of one Mohd. Ikhlakh at Khasra No. 14/7, Godown No. C- 33, Gali No. 8, Swaroop Nagar Extension, Delhi. He further reported that on 27.6.2017 at about 6.00 P.M., four persons, two of whom were in Police Uniform came to his Godown and made enquiry about the owner and details of goods/articles stored in godown. After making enquiry they left the spot and at about 8.30-9.00 PM all of them returned with a tempo and a car and forcibly broke open the room where sandalwood logs were kept. They loaded approx. 1355 Kg. of sandalwood logs into their tempo and also took away SIM card from the mobile phone of Guard Maniram (Complainant) and fled away. During investigation of the case, the accused persons were traced as SI Gaurav, SI Anuj (both posted at PS Kashmiri Gate, Delhi), Ct. Manohar Lal, No. 362/Spl. Cell posted in Spl. Cell, Delhi Police and their associates. Later, section 392/412/120 B IPC were added and Ct. Manohar Lal, No. 362/Spl. Cell posted in Spl. Cell and SI

4

Anuj, No. D/5333 were arrested on 30.06.2017. This information was received in this office vide letter No. 445/SO/DCP/NW Distt., dated 1.7.2017. Accordingly, Ct. Manohar Lal, No. 362/Spl. Cell was placed under suspension w.e.f. 30.06.2017 (date of his arrest) vide order No. 1292-1325/HAP (P-II)/Spl. Cell dated 03.07.2017.

(ii) The preliminary enquiry was entrusted to Sh. Govind Sharma, ACP/SR, to ascertain the facts against Ct. Manohar Lal, No. 362/Spl. Cell (PIS No. 28070974). The enquiry report of Sh. Govind Sharma, ACP/SR revealed that Ct. Manohar Lal, No. 362/Spl. Cell was on earned leave w.e.f. 12.06.2017 and despite being on leave he alongwith his associates under the garb of police uniform had intentionally committed the robbery- cum-burglary of 1355 Kg. Sandalwood logs from the godown of Mohd. Ikhlakh at Swaroop Nagar, Delhi. His act was detrimental and unbecoming of a member of the police force. It further revealed from the preliminary enquiry conducted by ACP/SR that the complainant/witness of the case were severely traumatized by this egregious act of criminals especially the police personnel involved therein and due to their close association with hardened criminals there was every possibility that Ct. Manohar Lal, No. 362/Spl. Cell might approach the complainant/witness through his associates to threaten him or to intimidate him or to induce him to withdraw from the case or to turn hostile during case trial.

(iii) The above act of Constable Manohar Lal, No. 362/Spl. Cell in connivance with other associates in the aforementioned matter/case was a most degradable, abominable and egregious act of crime. He flouted all ethical and moral values by indulging himself into such offence which amounts to awful professional misconduct. He had tarnished the image of Police Department in the society, which was endowed with the prime and supreme duty to serve and protect the citizen and safeguard the spirit of law. His criminal conduct was such as would definitely and rudely shatter the faith of any citizen which normally subsists in the ideal police force. Ct. Manohar Lal, No. 362/Spl. Cell instead

5

became nemesis upon the department and hence deserved an exemplary punishment in this case was sufficed to spread deterrent effect upon other such miscreants of the society.

(iv) Ordinarily a departmental enquiry should be conducted before imposing major punishment including dismissal against the defaulter but the facts and circumstances of the instant case and the preliminary enquiry report of Sh. Govind Sharma, ACP/SR were such that it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulter as there was reasonable belief of threat, intimidation and inducement to the victim and thereby creating the possibility of tampering of the vital evidence. Therefore, holding the regular departmental enquiry in this case might create fear in the mind of the complainant, witness/es and discouraged him/them from deposing against the defaulter during the enquiry. Further, an extended enquiry was only caused more trauma to the

complainant/victim. It was under these given set of compelling circumstances that the Article 311 (2)

(b) of "The Constitution of India" was invoked in this case by the disciplinary authority, i.e., DCP/Spl. Cell, and Ct. Manohar Lal, No. 362/Spl. Cell was dismissed from service vide this office order No. 1511-90/HAP/Spl. Cell/(P-II) dated

5. The applicant has also filed rejoinder relying therein on the judgment of the Hon'ble Apex Court in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Another, Civil Appeal No. 1906/1999, 1999 (3) SCC 679 stating therein that on applying the law laid down in the said judgment, it would be necessary and in the interest of justice to stay the

6

departmental proceedings till the conclusion of the criminal case.

6. Heard learned counsel for the parties at length. The short question raised before this Tribunal is whether the invocation of Article 311 (2)(b) is justifiable in the present case or not ?

7. In order to decide this question, it is imperative to look at the provisions of Article 311 (2) (b). The same are reproduced below:-

(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 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

7

(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."

8. Learned counsel for the respondents submitted and emphasized that it is the competent authority who has to decide whether it would be reasonably practicable to hold an inquiry under the circumstances at that time or not. The act performed by the applicant was detrimental for the image of the police force inasmuch as it was the most degradable, abominable and egregious act of crime. His continuance in service was likely to cause an irreparable loss to the functioning and credibility of the police force and also erode the faith of common people in police.

9. Learned counsel for the respondents also drew our attention to a judgment passed by the Hon'ble High Court of Delhi in the case of Ct Mukesh Kumar Yadav vs. GNCT of Delhi & Ors., decided on 20.09.2017, wherein, after a detailed discussion, it has been observed as under:.

"59. We cannot lose sight of the fact that the impugned order was passed by a high ranking police officer, namely, the Deputy Commissioner of Police (Crime and Railways), Delhi. The opinion formed and assessment made by high ranking police officers-who

8

have risen in rank over the years, cannot be lightly brushed aside, particularly, when there is no material to suggest to the contrary i.e. that it would not be practically reasonable to hold an inquiry against the delinquent police official. As it turns out, the said opinion/assessment has been proved to be entirely well founded since the complainant, the victim and other witnesses turned hostile in the criminal trial against the petitioner and the co-accused Constable Ajeet Singh. As it is said "The proof of the pudding lies in its eating". What better evidence or material could there be to justify the opinion/assessment made by the competent authority with regard to the impracticability of holding an enquiry against the petitioner, then to demonstrate that, as a matter of fact, in the criminal trial, the victim and the witnesses turned hostile and did not support their earlier statements made against the accused persons, including, the petitioner.

60. For all the aforesaid reasons, we are of the view that the order dated 05.09.2012 passed by the competent authority dismissing the petitioner by resort to clause (b) of the 2nd proviso to Article 311(2) of the Constitution of India is unexceptionable and it was completely justified in the facts and circumstances of the present case. We are of the view that the Tribunal correctly rejected the petitioner's original application by invoking the correct principles laid down by the Supreme Court in several decisions. Accordingly, the present writ petition is dismissed leaving the parties to bear their respective costs.

9. In another case, before the Hon'ble Delhi High Court in

Parveen Kumar vs. Commissioner of Police and Ors., decided on 13.07.2007, relied upon by the respondents, the petitioner therein had challenged the judgment passed by this Tribunal in OA No. 2320/04. The petitioner therein was also an

9

accomplice and identified along with the gangster in a police raid and a case of attempt to dacoity and robbery was also registered. The said gangster and his accomplices made confessional statements that the petitioner therein was also one of them. The Disciplinary Authority after invoking Article 311(2)(b) of the Constitution of India, dismissed the petitioner therein from the Force with immediate effect. The appeal filed by him was dismissed and the Appellate Authority came to the following conclusion:

"it is, thus certain that the witnesses would not be in a position to muster enough courage to depose against the appellant during DE proceedings due to fear of severe reprisal at his hands. Under these circumstances, it was reasonably found not practical to conduct a departmental enquiry against the appellant and the disciplinary authority dismissed the appellant from the force under Article 311(2)(b) of the Constitution of India."

The Hon'ble High Court, after much discussion on law, observed as under:

"19. Further the petitioner, being a Constable of Delhi Police having sanctimonious duty to protect the citizens and maintain law and order, has in violation of his sworn obligation involved himself in most heinous and reprehensible acts of lawlessness. The Disciplinary Authority on the basis of the facts borne from records and attending circumstances dispensed with the enquiry and dismissed the petitioner from Force. The said decision of the Disciplinary Authority is based on material record and not on assumptions or conjectures. A police Constable or an official who is found to have strayed from his obligation and duty

10

ought to be dealt with sternly in accordance with law. The petitioner in present case is a delinquent who has been involved in heinous act of crime and has associations with people having criminal propensity. If the law keeper becomes lawbreaker, quick and expedient action ought to be taken, to maintain transparency, accountability and above all to maintain public trust and faith in the Police. This is an imperative requirement of a civilized society. The decision to dispense with the enquiry and proceedings was taken having regard to the gravity of offence and its possible and probable fall-outs. To our mind, this is a fit case for invoking Article 311(2)(b) of the Constitution.

10. Learned counsel for the applicant relied upon the order passed by this Tribunal in OA No. 2295/2021, Bhopal Singh vs. Commissioner of Police & others, decided on 02.08.2022 and Meena Kumari vs. Commissioner of Police & others, decided on 06.10.2022. These two OAs are on a different footing.

11. In the instant OA, all the accused persons are police officials and the lone witness is the Security Guard. Ordinarily, an inquiry should be held and due opportunity should be given to the employee against whom allegations of misconduct have been raised. But in the present case, the only witness is a security guard and all the charged officials are police officials and there is every possibility that the lone witness may be

11

intimidated or influenced by these officials who are well versed with the day to day procedure adopted in these criminal cases. The witness, may out of fear, due to such intimidation or inducement may not be in a position to muster enough courage to depose against them. Thus, in our opinion, keeping in view the gravity of the misconduct, it would not be practicable to conduct a departmental enquiry against the applicant. The Disciplinary Authority is the best judge to decide whether it is practicable to hold an inquiry or not. Thus, in view of the above mentioned legal pronouncements and observations, we do not find merit in the present OA and the same is liable to be dismissed. Hence, dismissed.

There shall be no order as to costs.

(Tarun Shridhar) (Ashish Kalia) Member (A) Member (J)

/NS/