Ex. Cont. Pawan Kumar vs Govt. Of Nct Of Delhi & Ors.
2009 Latest Caselaw 2442 Del

                                    REPORTABLE

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             WP (C) No. 991 of 2008

%                                                 Reserved on : May 11, 2009
                                               Pronounced on : July 03, 2009

Ex. Cont. Pawan Kumar                                     . . . Petitioner

                      through :              Mr. Shyam Babu, Advcoate

              VERSUS

Govt. of NCT of Delhi & Ors.                              . . . Respondents

                      through :              Ms. Anju Bhattacharya, Advocate

CORAM :-
    THE HON'BLE MR. JUSTICE A.K. SIKRI
    THE HON'BLE MR. JUSTICE SURESH KAIT

       1.     Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
       2.     To be referred to the Reporter or not?
       3.     Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. The short question which falls for consideration in this writ petition is

as to whether services of the petitioner herein could be terminated

without holding a formal inquiry by invoking the provisions of

proviso to Article 311(2)(b) of the Constitution of India. The

dismissal of the petitioner vide orders dated 22.12.2005 and

appellate order dated 14.3.2006 confirming the aforesaid order of

the Disciplinary Authority have been upheld by the learned Central

Administrative Tribunal, Principal Bench, New Delhi while dismissing

the OA filed by the petitioner herein. Judgment dated 5.2.2007

passed in this behalf is challenged by the petitioner in the form of the

present writ petition.

2. It is obvious that though there were certain allegations against the

petitioner herein, which amounted to misconduct, according to the

Disciplinary Authority, it was not reasonably practicable to conduct

the inquiry and that is why provisions of Article 311(2)(b) of the

Constitution were invoked. Following details are forthcoming

regarding the purported involvement of the petitioner in a criminal

case:

3. On 4.3.2005, at about 10.00 p.m., an information was received at

PS New Usman Pur, that a person had sustained gun-shot injuries in

School Wall Gali, Ambedkar Basti, Ghonda and he had been taken to

GTB Hospital by the PCR Staff. On receipt of the information, S.I.

Parmod Kumar of P.S. New Usman Pur reached the spot and found

HC Surender Kumar No. 204/NE and the petitioner present on the

spot. It was also learnt that the said information was given by the

petitioner. During investigation at GTB Hospital, the identity of the

injured was revealed as Anil Kumar Mahajan, s/o. late Puran Chand,

H.No. 125, Gali No.3, Shankar Nagar, who stated that he had a

dispute with his brother-in-law Parveen (his wife's brother) and his

neighbours Saurabh Gupta and Sanjay @ Sonu, with whom he had a

quarrel in School Wall Gali, Ambedkar Basti, Ghonda, on that day

and Sanjay @ Sonu fired upon him and he sustained gun-shot injuries

in his left thigh. On the statement of Anil Kumar Mahajan, case FIR

No. 74 of 2005 u/s. 307/34 IPC and 27 Arms Act was registered at

PS New Usman Pur and investigation was handed over to SI Parmod

Kumar. Accused persons were arrested on 5.3.2005 and accused

Sanjay @ Sonu was taken on one day police custody remand for the

recovery of weapon used in the crime, but no weapon could be

recovered. The interrogation of the accused persons revealed that

there was a dispute over property between Anil Mahajan, the

complainant and his wife Sushma. A civil case and a criminal case u/s

488-A, 308 IPC were got registered against Anil Mahajan by his wife.

Anil Mahajan wanted to settle the score with his wife.

4. During the course of investigation of the case, the mobile phone of

the complainant Mr. Anil Mahajan was taken into police possession

and print out of his mobile phone No. 9811768150 was taken and on

further suspicion print out of two other Mobile Phone Nos.

9811556558 and 9350578222 were also taken. On inspection of the

print out of these three phones it was revealed that phone No.

20007420, which belongs to the petitioner, was regularly in touch

with above-mentioned three phones. Prior to the incident, the

petitioner contacted with the complainant, Anil Mahajan on

3.3.2005 at 6.03 p.m. and on 4.3.2005 at 6.46 p.m. He also

contacted Phone No. 9350578222 regularly between 2.3.2005 to

4.5.2005. The owner of Mobile No. 9350578222, Gulfam S/o.

Irshand R/o F-188, Gali No.8, Subhash Mohalla, Maul Pur, Seetam

Pur was interrogated who revealed that on 2.3.2005, one Sanjay

Mishra a known criminal of PS New Usman Pur, Aftab @ Tamta,

another known criminal of PS Gandhi Nagar and one other person

to whom they introduced as Anil Mahajan approached him. Anil

Mahajan told him that he had a dispute with his wife and in-laws

and he wanted to implicate them in a false case of attempt to murder

and he wanted him (Gulfam) to be an eyewitness in this case. When

Sanjay Mishra and Aftab Tamta, would fire upon him, he will

implicate his brother-in-law and his friends in the case. Gulfam

refused to be an eye-witness in this case. He, however, introduced

them to the petitioner on 3.3.2005, who listened to them and

agreed to help them. It was decided that episode should be

committed in his beat area i.e. Ambedkar Basti during night time and

he will reach the spot and handle the situation. He was also paid for

the purpose.

5. Further, the investigation revealed that as per their conspiracy on

4.3.2005 at about 9.50 p.m. Sanjay Mishra and Aftab Tama, fired

upon Anil Mahajan on his left thigh, in Khajoor Wall Gali, Ambedkar

Basti, Ghonda and after the incident Anil Mahajan intimated Gulfam

on his mobile No. 9350578222, about the incident who instantly

informed the petitioner on his mobile No. 20007420. The

petitioner reached the spot and intimated the Police Station about

this incident. Later on, Sanjay Mishra was arrested in another case

FIR No. 150 of 2005 dated 8.5.2005 u/s. 25 of the Arms Act, PS

New Usman Pur and during investigation he admitted his

involvement in the said conspiracy and also confessed about the role

played by him and the petitioner. Mr. Gulfam vide his statement

recorded under Section 164 Cr.P.C. disclosed about the whole

conspiracy. The Metropolitan Magistrate, Karkardooma Courts, vide

his order dated 5.9.2005 discharged Praveen, Sanjay Rawat @ Sonu

and Sourab Gupta, who were falsely implicated in case FIR No. 74 of

2005 u/s 307/34 IPC PS New Usmanpur and granted permission to

initiate action u/s 182 IPC against Anil Mahajan, the complainant.

For his above said criminal conspiracy, the petitioner had been

arrested in the case u/s. 211/120-B/34 IPC and was sent to judicial

custody.

6. According to the respondent what persuaded the Disciplinary

Authority to invoke the provisions of Article 311(2)(b) of the

Constitution and dismiss the petitioner without inquiry are the

following :-

(a) The incident shows the criminal propensity and disparate

character of the petitioner. As a member of disciplined forces, the

petitioner was supposed to protect the citizens. Instead, he himself

indulged in a well planned criminal conspiracy against innocent

citizens in connivance with the criminal elements. Rather than saving

the rights of the common person, he staged this episode in his bid

and became instrumental in false implication of innocent citizens in a

case of murderous attempt of his monetary lust.

(b) Allegations against the petitioner were not without any

substance and presumptuous, but based on solid material. It was

pointed out that Gulfam, who introduced Anil Kumar Mahajan with

the petitioner and at first helped him, gave a written statement in the

Court u/s. 164 Cr.P.C. that how the petitioner had helped Anil

Kumar Mahajan to settle his scores with his relatives, the petitioner

was well aware that what he was doing and he had also been paid

by Mr. Mahajan for the same. The petitioner was, thus, dismissed

from force only after scrutinizing/considering all these circumstances,

facts and written statement of Gulfam before Court.

(c) The aforesaid act attributed to the petitioner shows that it was

an act of moral turpitude, misuse of his official power and

unbecoming of a member of a disciplined force.

(d) This act proved/established the relations of the petitioner with

the criminal elements and, therefore, the possibility of the victim

being unduly pressurized and threatened during the departmental

proceedings could not be ruled out. Fear was expressed that if the

departmental proceedings are held, the complainant and witnesses

would be put under constant fear of threat to their person from the

delinquent police official like the petitioner and they may not depose

against him.

7. The Tribunal accepted the aforesaid justification provided by the

respondent in support of the dismissal orders and, thus, dismissed the

OA.

8. Perusal of the impugned judgment of the Tribunal would show that

it thoroughly discussed the facts of the case in the light of provisions

contained in Article 311 of the Constitution of India as well as various

judgments on the issue.

9. Challenging the judgment of the Tribunal, submission of Mr. Shyam

Babu was that it was not a case where provisions of Article 311(2)(b)

could be invoked. He referred to the guidelines issued by the

Commissioner of Police, Delhi mentioning that wherever there is a

specific misconduct or any stigma attached, departmental action shall

be taken under the Delhi Police (Punishment & Appeal) Rules and a

proper inquiry held giving opportunity to the delinquent employee

to defend himself. He further submitted that apprehension of the

Disciplinary Authority was totally unfounded inasmuch as the

petitioner was only a Constable in rank and could not have

influenced or terrorized the witnesses. The reasons given were

neither good nor valid for invoking such a drastic provision as

contained in Article 311(2)(b) of the Constitution. It was submitted

that the respondents had acted merely on the basis of suspicion of

possibility of victim being unduly pressurized and threatened during

the departmental proceedings without even making an effort to

initiate the departmental action. It is more so when none of the

complainant/witnesses had ever made a complaint to the authorities

that the petitioner was threatening and putting pressure upon them.

He also referred to the following two judgments in his support :-

       (i)    Jaswant Singh v. State of Punjab & Ors.
              AIR 1991 SC 385

(ii) Chief Security Officer & Ors. v. Singasan Rabi Das AIR 1991 SC 1043

10. Learned counsel for the respondent, on the other hand, referred to

the detailed discussion in the impugned judgment itself in support of

the action taken by the respondents. Her submission was that it was

not only a case of mere suspicion, but a reasonable and possible

inference drawn from the manner in which the incident took place

implicating the petitioner and sufficient material on record to show

in nexus of the petitioner with the criminal elements.

11. We have given our due consideration to the respective submissions

and have also gone through the records.

12. Article 311(2) of the Constitution provides that no civil servant 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.

However, there are certain exceptions provided therein to this said

Article. Clause (b) of the second proviso to Article 311, which is

material for us, stipulates that this provision shall not apply where

the authority empowered to dismiss or remove a person or to reduce

him in rank is satisfied that for some reason, to be recorded by that

authority in writing, it is not reasonably practicable to hold such

inquiry. We may also take note of clause (3) of Article 311, which

reads as under :-

"(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

13. This provision has come up for consideration and interpretation at

the hands of the Apex Court on numerous occasions. In Jaswant

Singh (supra), while taking note of its earlier judgment in the case of

Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416, the legal

position was summed up in the following manner :-

"4. Article 310 of our Constitution which engrafts the pleasure doctrine of the English common law is, however, qualified by the opening words 'except as expressly provided by this Constitution'. Article 311 is one such express provision. According to Clause (1) thereof, a person who is a member of a civil service cannot be dismissed or removed from service by an authority subordinate to that by which he was appointed. Clause (2) next provides that no such person 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. Then comes the first proviso with which we are not concerned. The second proviso has three clauses but we are concerned with Clause (b) only. Clause (b) of that second proviso reads as under:

"Provided further that this clause shall not apply- *** *** *** ***

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry."

Thus the English doctrine incorporated in Article 310 which is qualified by the opening words "except as expressly provided by this Constitution" is subject to Article 311(1) and (2) which contains safeguards against termination from service. However, the second proviso to Article 311(2) is again in the nature of an exception and lays down that in cases catalogued in Clauses

(a), (b) and (c) thereof the requirement of an inquiry can be dispensed with. The scope of Articles 310 and 311 of the Constitution was examined by this Court in Union of India and Anr. v. Tulsi Ram Patel and Ors. [1985] Su. 2 SCR 131 wherein by majority this Court held that once the requirements of the relevant clause of the second proviso are satisfied, the services of a civil servant can be terminated without following the audi alteram partem rule. It was held that since the requirement of Article 311(2) was expressly excluded by the second proviso, there was no question of introducing the same by the back door. On this line of reasoning, the majority held that Challapan's case, (1976) 1 SCR 783 : (AIR 1975 SC 2216) was not correctly decided. It, therefore, took the view that it is not necessary to offer a hearing to the civil servant even on the

limited question of punishment. Insofar as Clause (b) is concerned this Court pointed out that two conditions must be satisfied to sustain any action taken thereunder. These are (i) there must exist a situation which renders holding of any inquiry "not reasonably practicable" and (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. Of course the question of practicability would depend on the existing fact-situation and other surrounding circumstances, that is to say, that the question of reasonable practicability must be judged in the light of the circumstances prevailing at the date of the passing of the order. Although Clause (3) of that Article makes the decision of the disciplinary authority in this behalf final such finality can certainly be tested in a court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquity. Also see: Satyavir Singh and Ors. v. Union of India and Ors. (1985) 4 SCC 252 : (AIR 1986 SC 555); Shivaji Atmaji SawantM. State of Maharashtra and Ors. (1986) 2 SCC 112 : (AIR 1986 SC 617) and lkramud-din Ahmed Borah v. Superintendent of Police, Darrang and Ors. 1988 (Supp 1) SCC 663 : (AIR 1988 SC 2245)."

14. When we scan through the facts of this case that have emerged on

record in the backdrop that the petitioner, though a police officer, is

stated to have been part of a conspiracy to implicate innocent

persons, that too when co-conspirators who are known criminals, the

irresistible conclusion is that opinion of the Disciplinary Authority

that inquiry was not reasonably practicable is well founded. The

opinion formed by the Disciplinary Authority was not based on mere

suspicion. Following facts appear on record :-

(a) Proximity of the petitioner with known criminals in the area is

indicated by the print of mobile phones conversations owned by him

as well as other persons who entered into this conspiracy.

(b) The conspiracy was revealed by Mr. Sanjay Mishra, another

known criminal, while he was being interrogated in another case

bearing FIR No. 150/2005 dated 8.5.2005.

(c) Another person, namely Gulfam, made a statement before the

Metropolitan Magistrate under Section 164 of the Cr.P.C. about this

conspiracy. In this statement, he categorically stated that it was

because of terror that he did not inform the police about this

conspiracy earlier. Such a statement under Section 164 Cr.P.C., on

oath, before the Metropolitan Magistrate, which is recorded after

following proper procedure to rule out any voluntariness, could not

be ignored, at least in a department action. This was not a statement

before a police officer and, therefore, argument that it was taken

under pressure is normally not available.

15. On the basis of the aforesaid, the Tribunal analysed the position in

the following manner :-

"21. These facts clearly show the criminal propensity and desperate character of Constable Pawan Kumar. It also shows that applicant is capable of misusing his official power for implicating innocent persons in criminal cases simply for making a fast buck. His relations with criminals are also established, therefore, the reasoning given by disciplinary authority that it is not safe to continue such a person in Delhi Police any longer is justifiable. If he could conspire to implicate innocent persons in criminal case, he could very well implicate the witnesses also in order to turn them hostile if he is allowed to continue in Delhi Police."

16. In Union of India v. Tulsi Ram Patel & Ors., AIR 1985 SC 1416, the

Supreme Court has held that 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 of the Constitution makes the

decision of the Disciplinary Authority final.

Applying the aforesaid principle to the facts of the present case,

we are of the firm opinion that the view taken by the Disciplinary

Authority assessing the entire position on the basis of available

records is plausible and cannot be treated as either whimsical or

arbitrary.

17. In almost similar circumstances, the Supreme Court upheld the action

against a police officer in the case of Union Territory, Chandigarh &

Ors. v. Mohinder Singh, (1997) 3 SCC 68. That was also a case

where apprehension was nurtured by the Disciplinary Authority that

witnesses would not come forward to depose against the delinquent

police officer freely and dispensing the inquiry provisions of Article

311(2)(b) of the Constitution were invoked. The Supreme Court

concluded that the reasoning given by the Disciplinary Authority was

based on a report of the Superintendent of Police regarding gross

misuse of power and extortion of money by illegally detaining and

torturing innocent persons.

18. In view of our aforesaid analysis in the present case, the judgment of

the Supreme Court in Jaswant Singh (supra) would not be of any

avail to the petitioner. In that case the Court opined that subjective

satisfaction of the concerned authority must be fructified by

independent material. That requirement is satisfied in the present

case.

19. Insofar as the judgment in the case of Singasan Rabi Das (supra) relied

upon by learned counsel for the petitioner is concerned, in that case

the Court was of the opinion that merely because the witnesses

would suffer personal humiliation and insults and their family

members might become targets of acts of violence, would not form

sufficient reason for dispensation of inquiry.

In the present case, however, while forming the opinion that

inquiry was not reasonably practicable, we find that this subjective

opinion is based upon relevant considerations, as highlighted in para

13 of the judgment above.

20. The petitioner herein belongs to the Disciplined Force. When

material has surfaced on record showing links of the petitioner with

criminal elements and also that conspiring with such hardened

criminals, the petitioner allegedly implicated innocent persons in a

false criminal case, forming an opinion that those victims would be

reluctant to depose against the petitioner in a departmental inquiry is

well founded.

21. We, therefore, do not find any merit in this writ petition and

consequently dismiss the same.

No costs.

(A.K. SIKRI) JUDGE

(SURESH KAIT) JUDGE July 03, 2009 nsk