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IN THE HIGH COURT OF DELHI
Anil Kumar and Sudershan Kumar Misra, JJ.
Govt. of NCT of Delhi and Ors.
Vs.
Ex. Constable Sudesh Pal Rana
W.P. (C) No. 7883/2010 and CM No. 20322/2010
Decided On: 16.09.2011
Article 311(2)(b) - Dismissal Without Enquiry - Circular No. 25551-163-/CR-I dated 8th November, 1993, AIR 1985 SC 1416, Union of India v. Tulsi Ram Patel & Satyavir Singh and Ors. v. Union of India and Ors. AIR 1986 SC 555 - No subjective satisfaction or sufficient material for holding that it was not reasonably practicable to conduct the departmental enquiry. The reasons recorded were neither objective nor reasonable in the circumstances and a shortcut had been adopted to avoid the departmental enquiry which was arbitrary. The witnesses had deposed against the Respondent in the criminal trial, and it had ultimately culminated in his conviction by the Sessions Court, however, the appeal of the Respondent in the matter is still pending adjudication. The order of dismissal of the Respondent without conducting the departmental enquiry by invoking the power under Article 311 (2)(b) of the Constitution of India was set aside by the Tribunal.
Fact of the Case:
The Respondent, a Constable in Delhi Police, was dismissed from service without a departmental enquiry after being implicated in a criminal case. The dismissal was based on the premise that it was not reasonably practicable to conduct a regular departmental enquiry due to the belief that witnesses may not come forward to depose against the Respondent.
Finding of the Court:
The Tribunal held that there was no subjective satisfaction or sufficient material for holding that it was not reasonably practicable to conduct the departmental enquiry. The reasons recorded were neither objective nor reasonable in the circumstances and a shortcut had been adopted to avoid the departmental enquiry which was arbitrary.
Issues: The main issue was whether the dismissal of the Respondent without conducting a departmental enquiry by invoking the power under Article 311 (2)(b) of the Constitution of India was justified.
Ratio Decidendi: The Court found that there was no valid reason for not initiating a departmental proceeding and that the dismissal without a departmental enquiry was not supported by any material or documents. The Court emphasized that a constitutional right conferred upon a delinquent cannot be dispensed with lightly or arbitrarily or out of ulterior motives or merely to avoid the holding of an enquiry.
Final Decision: The order of dismissal of the Respondent without conducting the departmental enquiry by invoking the power under Article 311 (2)(b) of the Constitution of India was set aside by the Tribunal. The Respondent was to be reinstated and deemed under suspension, entitled to benefits available to an employee under suspension. The Petitioners were not precluded from taking any departmental action in accordance with the rules and regulations, if permissible.
Anil Kumar, J.
1. The Petitioners, Govt. of NCT of Delhi and Ors., have challenged the order dated 5th March, 2010 passed by Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 1689/2009 titled as "Ex. Constable Sudesh Pal Rana v. Govt. of NCT of Delhi and Ors., allowing the original application of the Respondent and setting aside the order of dismissal dated 9th August, 2006 dismissing the Respondent from the service, after dispensing with the enquiry under Article 311 (2)(b) of the Constitution of India and also setting aside the order of the Appellate Authority dated 5th June, 2008 upholding the punishment. The Tribunal also directed the Petitioners to reinstate the Respondent in service on deemed suspension with arrears from the date of dismissal till the reinstatement. The Petitioners were held to be not precluded from proceeding further against the Respondent in accordance with law.
2. the Respondent was appointed as a Constable in Delhi Police and during his service an FIR No. 383/2006, under Sections 302 and 364 of Indian Penal Code was registered against him at PS Timar Pur, Delhi. During the trial of the criminal case, the Petitioners dispensed with the enquiry, holding that it would not be reasonably practicable to conduct a regular departmental enquiry on the premise that the witnesses may not come forward to depose against the Respondent and thus, by order dated 9th August, 2006 the Respondent was dismissed from the service.
3. By the order dated 9th August, 2006, it was held that on 31st July, 2006 a case was registered consequent to the firing by two criminals, namely, Najakat S/o Babu R/o Village Haaval, PS Pilkhuwa, District Ghaziabad (UP) and Julfikar S/o Gulam Nabi R/o Village Ajrada, PS Mundali, District Meerut (UP) over police team comprising of ASI Pramod Tyagi, HC Yashpal, Constable Sudesh Pal Rana, Constable Suraj Pal, Constable Pradeep, Constable Ravinder, Constable Satish and Constable (Driver) Naresh, a Team of Operation Cell, North District. It was alleged that the said Najakat and Julfikar were noticed coming in a Maruti Car bearing No. DL 3C N02304 from Wazirabad side, and on being signaled to stop, they started firing at the police party who retaliated in self defense, as result of which both of them were injured and later on died and they were declared to have been brought dead when taken to Shushruta Trauma Centre.
4. While passing the dismissal order dated 9th August, 2006, it was noted that ASI Pramod Tyagi had not informed his supervisory officer, i.e. Inspector Operation Cell or ACP/Operation before departing pursuant to the information regarding the alleged movement of the above noted criminals in the area of PS Timar Pur. The ASI also did not inform about the involvement and criminal background of the said deceased persons when asked by ACP/Operation /North. The order also noted that Sh.Gulam Nabi, the father of the deceased Julfikar had submitted a complaint to the SSP & DM/Ghaziabad, UP, and in the preliminary enquiry on the complaint of the father of the Julfikar, a zero FIR has been registered under Section 364/302 of Indian Penal Code, at PS Kavi Nagar, Ghaziabad (UP) which was transferred to Delhi Police for further action. It was further noted that besides the Respondent ASI Pramod Tyagi No. 2538/N, Constables Suraj Pal No. 2021/N had also played a key role in the whole episode and other police personnel had joined the said team on the directions of ASI Pramod Tyagi.
5. According to the Petitioners, in their order dated 9th August, 2006, the above noted facts clearly show that in conducting the said encounter without informing about their departure to the supervisory officers and the alleged involvement of Constable Ashok Kumar in the above noted case, the Respondent and other police personnel had shown grave misconduct, high handedness and had brought bad name to the entire force of Delhi Police by having acted in a manner highly unbecoming of a police personn
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