Delhi Administration And Ors. vs Ex. Constable Inderjit And Anr.
2002 Latest Caselaw 1639 Del

JUDGMENT

S.B. Sinha, C.J.

1. Respondent No.1 herein was a Constable. A First Information Report (in short, 'FIR') was lodged against him on 19.06.1992 for alleged offence under Section 384/506 of the Indian Penal Code (in short, I.P.C.'). Prior thereto, he was charge-sheeted for absenting from duty without delivering certain important papers to the Government counsel wherefor he was marked absent on 19.06.1982 w.e.f. 18.06.1982. Changes levelled against him were:-

"That he along with some other persons went to the residence of one Shri R.K. Aggarwal, a Ghaziabad Development Authority Contractor, in a Maruti Van and demanded Rs. 90,000/- from him at gun point and threatened that failing which his son would be kidnapped. They also left a telephone NO. 722848 on which Shri Aggarwal had to contact them. The matter was reported by Shri Aggarwal to the Police Station Kavi Nagar who traced the telephone to that of a property dealer based in Sector 23, Sanjay Nagar, Ghaziabad. The premises of the said property dealer were raided by the Police and five persons, including Constable Inderjit Singh, respondent No.1 herein, were apprehended and an FIR was registered."

2. On or about 29.06.1992, the disciplinary authority passed an order of dismissal holding that a regular disciplinary proceeding is not reasonably practicable to be held inasmuch as in a case of this nature, it was not uncommon to find the complaints and witnesses turning hostile due to fear of reprisals. It was observed:-

"3. The circumstances of the case are such that holding of an enquiry against Const. Inderjit No. 1192/NW is not reasonably practical because it is not uncommon in such cases to find the complaints and witnesses turning hostile due to fear of reprisals. A lot of courage is required to depose against an ordinary criminal. Much more guts have to be shown a depose against a criminal in the robes of a police man who may lose his job on their statements. It will be too much to except ordinary citizens show this much of courage."

3. The respondent No.1 herein did not prefer any statutory appeal against the said order, but filed an Original Application before the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter for the sake of brevity to be referred as, 'the Tribunal'), which was marked as O.A. No. 2021 of 1982.

The writ petitioner did not bring on record any material to show as to why it was not practicable to hold an enquiry against the respondents and an order in terms of proviso 2(b) appended to Article 311 of the Constitution of India was required to be passed.

4. The learned Tribunal, however, by reason of the impugned order dated 07.11.1997 held that no sufficient material had been brought on record to justify such a stand taken by the petitioners therein. It was observed:-

"6. We have considered the rival contentions of both parties and we are of t he opinion that the impugned order passed under proviso (2)(b) to Article 311 of the Constitution of India is illegal and deserves to be set aside. The impugned order on the face of it clearly shows that the decision arrived at, namely, not to hold an enquiry, is not based on any material relevant to the case, available for the disciplinary authority, rather it was based on extraneous material, namely, the past experience of the disciplinary authority in other cases. The Hon'ble Supreme Court in Jaswant v. State of Punjab (para 5) has stated that in order to apply the protection available under proviso 2(b) of the said Article to the order of dismissal, 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 whim or caprice. It is an essential requirement that the decision of the disciplinary authority must have independent material to justify the dispensing with the enquiry, envisaged under Article 311(2)."

The learned Tribunal satisfied itself that the order impugned before it was passed on no material germane to the case and as such the same was illegal. It was further found that requirements of Clause 2(b) of the proviso appended to Article 311 of the Constitution of India had not been fulfillled insofar are no sufficient or cogent reasons had been assigned therefore.

5. It is not in dispute that the respondent has been acquitted in the criminal case.

6. Ms. Avnish Ahlawat, the learned counsel appearing on behalf of the petitioner, would submit that the disciplinary authority has exercised its power bona fide inasmuch as in a case where the respondent who was a constable himself was allegedly committed a heinous crime, it was not practicable to hold an enquiry.

The learned counsel, in support of the said contention, has placed strong reliance upon Chandigarh Administration, Union Territory, Chandigarh and Ors. v. Ajay Manchanda, etc. .

7. Mr. Shyam Babu, the learned counsel appearing on behalf of the respondent, on the other hand, would contend that there was no reason as to why a disciplinary proceeding was not practicable to hold so far as the respondent is concerned, but also without there being any material on record to show and without assigning sufficient reason as to why such an enquiry is not reasonably practical to be held, the impugned order has been passed.

8. The power of judicial review of this Court under Article 226 of the Constitution is limited. In view of the binding authorities, the law as well settled that:-

"(i) The High Court is not an appellate authority over the decision of the Administrative Tribunals;

(ii) While exercising the power of judicial review, the High Court cannot be oblivious to the conceptual difference between appeal and review;

(iii) The petition for a judicial review would lie only on ground of grave errors of law apparent on the face of the record and not on the ground of error of fact, however grave it may appear;

(iv) When the Tribunal renders a decision after determining the facts, no application for judicial review could be maintainable only on the ground that the Tribunal committed an error of fact, however grave it may appear, unless it is shown that such a finding of the Tribunal is based on no evidence and the error of fact itself can, be regarded as error of law in the sense that admissible evidence was rejected and inadmissible evidence was relied on;

(v) The orders passed by the Tribunal by exercising discretion which judicially vests in it cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal in the sense the Tribunal did not follow an earlier decision of the Tribunal or binding authority of the High Court or the Supreme Court with reference to finding of facts and law;

(vi) When the Tribunal disposes of the original application by applying the binding precedents of the High Court as well as the Supreme Court, it cannot be said that the Tribunal has committed any error of law apparent on the face of the record; in such case the limited review before the High Court would be whether the binding principle has been appropriately applied or not; the Tribunal's decision which is rendered in ignorance of the statutory law including subordinate legislation as well as the law laid down by the Supreme Court must be held to suffer an error apparent on the face of the record and requires judicial review;

(vii) Whether or not an error is error of law apparent on the face of the record must always depend upon the facts and circumstances of each case and upon the nature and scope of legal provision which is alleged to have been misconstrued or contravened;

(viii) The three parameters of judicial review of administrative action-illegality, irrationality and procedural impropriety with necessary changes are equally applicable to cases of judicial review of the Tribunal's decision; and

(ix) A mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 227; the Supervisory jurisdiction conferred on High Court is limited to seeing that Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice."

9. The only question, which, therefore, arises for consideration in this writ petition is, "Can the impugned order of the Tribunal be said to be suffering from the vices of illegality, irrationality or procedural impropriety in its decision-making process?"

10. The order of the disciplinary authority impugned before the Tribunal disclosed serious allegations made against the respondent. The conclusion has been arrived at, that such an activity on the part of the police man shows that he is a man of desperate character and his continuance in Police would be hazardous to the public. It was interred:-

"2....The Police is the protector of citizens and indulgence of Police Officer in such crimes will destroy the faith of the people in the system. The involvement of the Constable in these criminal activities is not only undesirable but also amounts to serious misconduct and indiscipline. He has acted in a manner unbecoming of a Police Officer and highly prejudicial to the security of the citizens."

The reason as to why the disciplinary proceeding is not reasonably practicable to be held is only stated in para 3, as quoted supra.

The said order was passed on 29.06.1992. The FIR was lodged against the petitioner on 19.06.1992. He was placed under suspension with effect from the said date. Except ipse dixit on the part of the disciplinary authority, nothing has been brought on record to show as to whether any complaint has been received by the witnesses or from the first informant.

11. Holding of a disciplinary enquiry is the Rule. Taking recourse to the proviso appended to Article 311(2) of the Constitution of India is exception.

A case, thus, must be made out, which would make the said provision applicable. If no material has been brought on record to show that as to why such an enquiry is not reasonably practicable to be held and if sufficient and cogent reasons are not assigned in support thereof, the order would be a nullity. Even a case where the order does not reveal or disclose existence of sufficient material, it becomes obligatory on the part of the Department to produce such material(s) before the appellate court in the event an appeal is filed.

The Apex Court in no uncertain terms in a serious of decisions has laid down the aforementioned law. (See Union of India & Anr. v. Tulsiram Patel Bakshi Sardari Lal (dead) through L.R.s and Ors. v. Union of India and Anr. ; Workmen of Hindustan Steel Ltd. and Ors. v. Hindustan Steel Ltd. and Ors. 1984 (Supp) SCC 554 ; Chief Security Officer and Ors. v. Singasan Rabi Das ; and Ex. Constable Chhote Lal v. Union of India and Ors .

12. In Chandigarh Administration (Supra), whereupon Ms. Ahlawat has placed a strong reliance, the factual situation in that case was entirely different. The Apex Court, thus, observed:-

"One has to keep in mind the situation obtaining in the year 1993 and must appreciate order passed by the SSP in that context."

The Apex Court agreeing with the following submission of the learned counsel appearing on behalf of the respondents in that case observed:-

"The learned counsel finally submitted that in such matters the courts/tribunals are the only protection for the persons proceeded against and that unless strict standards are adopted for judging the "satisfaction", the government officials will have no protection against the arbitrary acts and orders of the superior officers who may succumb to the temptation of adopting the easier course of dismissing/removing/reducing in rank the lower officer without holding an enquiry instead of following the regular procedures prescribed by the rules".

However, it was further observed that each case has to judged on its own merits.

Disbelieving that the Enquiry Officer was also a party to extortion, the Apex Court upon perusal of the file, which was produced, noticed:-

"Many be that the complaint had made an allegation against Jagbir Singh but there is no reference to it in the D.S.P. (enquiry officer's) report and we do not know the circumstances in which Jagbir Singh was not proceeded against for extortion. This plea was not raised by the respondent before the Tribunal. It has been raised for the first time before us. Since the allegation is factual in nature, we are not inclined to entertain the same at this stage. In any event, as stated above, we have perused the file concerning Jagbir Singh also, and are satisfied that the charge against Jagbir Singh was altogether different."

13. In the aforementioned situation, the Apex Court disagreed with the findings of the learned Tribunal that no material existed whereupon the SSP could be satisfied that it was not reasonably practicable to hold the disciplinary enquiry against the respondent.

14. This aspect of the matter has also been considered by a Division Bench of this Court in Govt. of National Capital Territory of Delhi & Ors. v. Ram Sagar Singh, CWP No. 61 of 2000 decided on 18.10.2001.

15. For the reasons aforementioned, there is no merit in this writ petition, which is accordingly dismissed. However in the facts and circumstances of the case, there shall be no order as to costs.