Delhi High Court

Surman Singh vs Mcd & Ors. on 21 July, 2008

Author: Pradeep Nandrajog

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     W.P.(C) No. 3939/1998


     Surman Singh                             ........ Petitioner
         Through:     Mr. J.M.Sabharwal, Sr. Adv. with
                      Ms. Seema Bhadauriya, Adv.

                                  VERSUS

     MCD & Ors.                              .......Respondents
         Through:     Mr. Amit K.Paul, Advocate for MCD


                      RESERVED ON:
                       02.07.2008

                      DATE OF DECISION:
%                       21.07.2008

     CORAM:

     Hon'ble Mr.Justice Pradeep Nandrajog

1.   Whether reporters of local papers may be allowed
     to see the judgment?

2.   To be referred to the Reporter or not?

3.   Whether judgment should be reported in Digest?

:     PRADEEP NANDRAJOG, J.

1. Petitioner, Surman Singh challenges the order dated

22.7.1997 passed by the Disciplinary Authority imposing the penalty

of dismissal from service upon him. The said order has been passed

by the Disciplinary Authority in exercise of power conferred upon

the Disciplinary Authority under Section 95(2)(b) of the Delhi

Municipal Corporation Act 1957 and Regulation 9(ii) of the Delhi

Municipal Corporation Service (Control & Appeal) Regulations 1959.

2. At the relevant time, being a permanent employee

under the Municipal Corporation of Delhi, petitioner was posted as a

rickshaw catcher in the West Zone of the Corporation. He was a

part of a team headed by one Shri Narender Singh (Supervisor)

which team was entrusted with the duty of impounding unlicensed

cycle rickshaws in the West Zone.

3. One Ram Kumar, the owner of a cycle rickshaw garage

made a complaint to the anti-corruption branch complaining that

Narender Singh and his team used to demand bribe from him to

permit him to operate his garage. He informed that the team was

demanding bribe in sum of Rs.2,000/- from him each month. Acting

upon the complaint of Ram Kumar a trap was laid by the anti-

corruption branch on 4.6.1997. Narender Singh and his team,

including the petitioner were allegedly caught red handed by the

anti-corruption branch.

4. The episode of trapping the petitioner and his colleagues

has been recorded in the FIR No. 24/97 dated 04.06.1997. Relevant

excerpts relating to the incident of demanding the bribe and it being

paid as noted in the FIR (translated version) read as under:-

"....At about 3:30 p.m. the witnesses gave a secret signal after reaching near the main gate of the office of MCD whereupon, I, the Inspector and the raiding team proceeded towards the complainant and the person stood there itself, who was stout body and whose name and address came to be known later on, on an inquiry as Surbhan Singh s/o Jeet Singh, r/o E-49, Bharat Nagar, Delhi and temporary address, village and police station Dev Prayag, Distt. Tehri Garwal (U.P), both the above said persons were standing in the courtyard of MCD Office. On seeing the raiding party the aforesaid person (Surbhan Singh) threw the currency notes which he was holding in his hand and fled from there. Thereafter, the

witnesses picked up the currency notes lying on the ground and I, the Inspector ran behind Surbhan Singh along with the accompanying staff. Thereupon, Surbhan Singh tried to flee from under the broken railing of the boundary of MCD Office but he was overpowered by us at a place situated at a distance of about 200 yds. towards north direction from the place of occurrence, with the help of accompanying staff.

xxxxxx

Time 05:15 p.m.: Surbhan Singh s/o Jeet Singh who has sustained scratches on his waist when he tried to flee from under the railing and at the time when he was overpowered (by the police officials). Head Constable...... (SIC) No. 1158/PCR has also sustained injury in his ring finger of right hand when he overpowered Surbhan Singh. Hence, the injury-sheet of both the aforesaid persons have been filled up and they have been sent to Hindu Rao Hospital under the supervision and surveillance of Head Constable Shiv Kumar No. 217/PCR and Constable Pradeep Kumar No. 1406/SD for the purpose of their medical examination. Supervisor Narender Kumar has succeeded in fleeing from there while taking the advantage of haste (prevailing at that time) after scuffing (with the police officials)."

5. For record it may be stated that it is not in dispute that

the petitioner Surman Singh S/o Jeet Singh is the same person who

is referred to as Surbhan Singh S/o Jeet Singh in the FIR.

6. Having been allegedly caught by the raiding party while

demanding a bribe in sum of Rs.2,000/- but after negotiating

accepting bribe in sum of Rs. 1,600/-, the petitioner and other

persons co-accused were charged for offences under Section 7 read

with Section 13 of the Prevention of Corruption Act, 1988 and

Sections 353/166/332 IPC read with Section 120-B IPC.

7. Taking note of this incident, exercising the power vested

under Section 95(2)(b) of the Delhi Municipal Corporation Act 1957

read with Regulation 9(ii) of the DMC Service (Control & Appeal)

Regulations 1959, dispensing with an inquiry, the disciplinary

authority passed the impugned order dated 22.7.1997 imposing the

penalty of dismissal from service upon the petitioner. The reasons

recorded for dispensing with the inquiry and imposing the penalty

are as under:-

".....I have also seen that the charged officials during the trap laid by the A.C. Branch officials had become violent and caused injuries to the public servants. The violent attitude of the officials involved in is very much evident from the obvious reason that they did not hitch in attacking the trap squad of A.C. Branch and caused hurt to a Head Constable, member of the raiding party....."

xxxxxxxx

"....That during the entire process of departmental proceedings, the complainant and other witnesses of the department would be put under the fear of threat who would not dare to depose against the charged officials and in the prevailing circumstances, conducting of departmental inquiry/proceedings has virtually become not practicable. It would be extremely difficult for the complainant and other witnesses to muster enough courage against the charged officials due to fear of severe reprisal from them."

8. Regulation 9(ii) of the Delhi Municipal Corporation

Service (Control and Appeal) Regulations, 1959 reads as under:

Regulation 9: Special Procedure in certain cases:-

Notwithstanding anything contained in regulation 8:

(i) where a municipal officer or other municipal employee is removed or dismissed on the ground of conduct which has led to his conviction on criminal charge; or

(ii) where the authority empowered to remove or dismiss an officer or other employee is satisfied for reasons to be recorded in writing that the it is not reasonably practicable to follow the procedure prescribed in these regulations;

the disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit.

9. Section 95(2)(b) of the Delhi Municipal Corporation Act,

1957 reads as under:

95. Punishment for municipal officers and other employees

(1).......

(2) No such officer or other employee shall be punished under sub-section (1) unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:

Provided that this section shall not apply-

(a) where an officer or other employee is removed or dismissed on the ground of conduct to which had led to his conviction on a criminal charge; or

(b) where the authority empowered to remove or dismiss such officer or other employee is satisfied that for some reason to be recorded by that authority, it is not reasonably practicable to give that person an opportunity of showing cause.

10. A perusal of the statutory provisions afore-noted makes

it apparent that where it is not reasonably practicable to conduct an

inquiry the disciplinary authority is competent to penalize the

employee even without an inquiry, but has to record in writing the

reasons for such dispensation.

11. Law is clear on the point that the objective facts on

which the subjective satisfaction has been arrived at by a statutory

authority have to be spelt out in the order and the same should be

sufficient to form the opinion formed by the authority. The opinion

should not be the ipse-dixit of the authority.

12. Article 311(2) of the Constitution of India has pari

materia provisions i.e. akin to Section 95(2)(b) of the DMC Act 1957

and the Regulation 9(ii) of the DMC Service (Control & Appeal)

Regulations 1959. The Hon'ble Supreme Court had an occasion to

consider the said constitutional provision in the decision reported as

AIR 1985 SC 1416, Union of India v. Tulsi Ram. In para 132 of the

report it was stated as under:-

"...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. ...."

13. In the instant case the reasons recorded by the

disciplinary authority for the dispensation of inquiry are that "the

charged officials during the trap led by the A.C Branch officials had

become violent and caused injuries to the public servants........that

they did not hitch in attacking the trap squad of A.C Branch and

caused hurt to a head constable" and that "the witnesses of the

department would be put under the fear of threat who would not

dare to depose against the charged officials".

14. Two reasons for dispensing with the inquiry have been

recorded by the disciplinary authority. The first is that the petitioner

became violent and attacked a public servant where from a

conclusion has been drawn that the petitioner is capable of using

violence even at a later stage. The second is that the witnesses of

the department would be put under a fear. The basis of said

conclusion is once again the same i.e. the basis of the first

conclusion i.e. the propensity of the petitioner even threatening

public servants.

15. From where has the disciplinary authority drawn afore-

noted conclusions? From where has the disciplinary authority noted

the fact that the petitioner became violent and attacked the police

officer? Nothing has been stated in the order. The FIR registered

nowhere mentions that anyone was attacked. The injuries sustained

by the petitioner and the constable stand recorded as being

suffered during an attempt made by the petitioner to escape from

the scene.

16. It is apparent that the disciplinary authority has given a

colour to the FIR and has twisted the facts recorded therein. A bare

perusal of the order shows that the disciplinary authority has

inserted a non-existing fact of the petitioner attacking the police

personnel who were forming the raiding team. The injuries

sustained by the police officer while apprehending the petitioner

who was attempting to flee has been wrongly treated as an injury

sustained due to an attack.

17. The same twisted version forms the basis of the second

opinion namely that the witnesses could be threatened.

18. In the decision reported as Jaswant Singh v. State of

Punjab AIR 1991 SC 385, the reasons recorded for the dispensation

of inquiry were that appellant could have caused physical injury to

the witnesses as well as the inquiry officer and he could have

allegedly instigated his fellow police officials to cause indiscipline,

show insubordination and exhibit disloyalty by inducing them to

stand against the senior officers. Setting aside the order of

dismissal, the Hon'ble Supreme Court observed as under:

"...... It was incumbent on the respondents to disclose to the Court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No. 3 in the impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry...............The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, 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 the whim or caprice of the concerned officer........It is not shown on what material the third respondent came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order.......... "

19. In the decision reported as Chief Security Officer and

ors. v. Singasan Rabi Das AIR 1991 SC 1043, the fact was that the

respondent was removed from service on the ground that while on

duty he allowed outsiders to carry the material of railways after

taking Re.1/- from each of them. The order of dismissal recited that

an enquiry was considered not practicable, because this would have

exposed the witnesses and make them ineffective for future and

they would have suffered personal humiliation and insults and their

family members may have become targets of acts of violence. The

Hon'ble Supreme Court set aside his order of dismissal and

observed as under:

"5. .....In our view these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry."

20. In the decision reported as S.J. Meshram v. Union of

India 1987 (Supp) SCC 164, the ground that the evidence may be

destroyed and the women witnesses may not appear to depose for

fear of threat and harassment was held by the Hon'ble Supreme

Court as altogether irrelevant and ex-facie inadequate for

dispensing with the inquiry against the appellant for the reason

there was no material to show that this would have happened.

21. In the decision reported as Ex. Constable Chhote lal v.

Union of India & Ors. (2000) 10 SCC 196, the Hon'ble Supreme Court

set aside an order dispensing with an inquiry which was premised

on a finding that the appellant would have influenced the witnesses

since he was a constable was set aside on the ground there was no

material to sustain said opinion and the opinion remained a mere

belief of the disciplinary authority.

22. In the decision reported as Sudesh Kumar v. State of

Haryana and Ors. (2005) 11 SCC 525, the appellant was dismissed

from service without an inquiry. The allegation was that the

appellant took bribe from a foreign national for securing extension

of visa. The reasons recorded for dispensing with the inquiry was

that it would be impracticable to secure the presence of the

complainant for the purpose of inquiry as he was a foreign national.

The Hon'ble Supreme Court set aside the order of dismissal stating

that it is not disputed that the visa of the complainant was extended

for one year and therefore there was no difficulty in securing his

presence. Thus it is apparent that the Hon'ble Supreme Court found

the reason to be inadequate.

23. In the decision reported as Kalu Prasad & Ors. v. Union

of India & Anr. 1983 (31) BLJR 277, the petitioner who had

participated in an illegal strike was dismissed without inquiry on the

ground that the petitioner would use threats or intimidation or

physical violence as against the witnesses. The Hon'ble Court set

aside the order of dismissal observing as under:

"....the mere possibility of use of violence on the part of a person who is proceeded against cannot lead to the conclusion that it was not reasonably practicable to hold an enquiry."

24. Thus, taking guidance from the afore-noted decisions,

the conclusion is inevitable. The impugned order dated 22.7.1997

has to be set aside for the reason there is no material on record to

justify the facts recorded by the disciplinary authority. In fact, the

disciplinary authority has twisted the facts to suit its convenience

and the contents of the FIR which was the only material before the

disciplinary authority have been suitably doctored by the

disciplinary authority to somehow or the other justify the impugned

order.

25. The writ petition is allowed. The impugned order dated

22.7.1997 is set aside.

26. Before concluding a caveat needs to be recorded. It