Commissioner Of Police & Anr vs Daya Nand No. 4696/Pcr
2009 Latest Caselaw 3498 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      W.P.(C) 3940/2008 & CM 7635/2008 (stay)


                                    Date of Decision: 02nd September, 2009


COMMISSIONER OF POLICE & ANR                                 ..... Petitioner
        Through  Mr. Rohit Madan, Adv.

                     versus


DAYA NAND NO. 4696/PCR                ..... Respondent
        Through   Ms. Ritika for Mr. Sachin Chauhan, Adv.

CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MS. JUSTICE REVA KHETRAPAL


1.     Whether the Reporters of local papers

       may be allowed to see the judgment?            Yes

2.     To be referred to the Reporter or not?         Yes

3.     Whether the judgment should be
       reported in the Digest?                         Yes



%                    J U D G M E N T(Oral)

MUKUL MUDGAL,J.

1. With the consent of the learned counsel for the parties this writ

petition is taken up for hearing.

2. This writ petition challenges the judgment of the Central

Administrative Tribunal (hereinafter referred to as "the Tribunal") dated

Writ Petition(C) No.3940/2008 Page 1 3rd October, 2007 allowing the OA filed by the respondent herein

Constable Dayanand, who was a driver in Delhi Police. The allegation

against the appellant arose from an incident where certain allegations

were made against the respondent upon the recovery of the gold

ornaments from his person, while chasing certain robbers. The question

involved in the OA in fact relates to the dispensation of the departmental

inquiry under Article 311 (2) (b) of the Constitution of India. The said

provision of the Constitution reads as follows:

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State -

(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(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-]

(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."

Writ Petition(C) No.3940/2008 Page 2

3. The reasoning by the respondent no.3, the Deputy Commissioner of

Police, Police Headquarters for invoking the above provision of the

Constitution reads as follows:

"In this circumstance of the case, the possibility of the victim being unduly pressurized and threatened duly (sic) the departmental proceeding cannot be ruled out. It is probable that in a regular DE, the defaulter will overawe the witnesses who out of the fear may not depose against him. This is one of those glaring official grave misconduct which erode the faith of public in the criminal justice system.

Therefore, under these circumstances, I am of the considered view that for the reasons mentioned above, it is not practicable to hold a regular DE against him for establishing the truth.

In view of over all circumstances of the case, I Ajay Kumar, Dy. Commissioner of Police, Delhi hereby order dismissal of Const. (Dvr) Daya Nand No.4696/PCR (PIS No.28970052) from the force immediate effect under article 311 (2)

(b) of the Constitution of India."

4. The above order of dispensation of the departmental inquiry under

Article 311 (2) (b) was challenged before the appellate authority and the

appellate authority while reproducing largely the reasoning of the

Disciplinary authority gave the following reasoning for dismissing the

departmental appeal preferred by the respondent/appellant:

"I have carefully gone through the appeal of the appellant as well as relevant record on file. The appellant was also heard in orderly room on 21.2.2007 and he reiterated the pleas already taken in his appeal. After hearing the appellant and verifying the facts from ASI Virender Singh No.1069/D and Head Const. Parshu Ram, No.1441/PCR, who were on duty on the van at that relevant time, and also perusing the record available on file, it appears that the action taken

Writ Petition(C) No.3940/2008 Page 3 against the appellant by the disciplinary authority is justified. There is no reason to interfere with the order passed by the disciplinary authority. The appeal of the appellant is rejected."

5. The Tribunal has in the impugned judgment dated 3rd October 2007

felicitously summed up the law laid down by the Hon‟ble Supreme Court

in the cases of Union of India & Anr. V. Tulsi Ram Patel etc., (1985) 3

SCC 398 and Satyavir Singh & ors. V. Union of India & ors. (1985) 4

SCC 252. The Tribunal further relied on the judgment of this Court in

the case of R.K. Mishra v. G.M.N. Railway, 1977 Lab. IC 643, where the

following position of law has been laid down:

"The word „practicable‟ in the context of the disciplinary rule would imply some „physical or legal impediment‟ to the holding of enquiry, such as a situation may arise where it is not reasonably practicable to secure the attendance of the delinquent or the persons who are to conduct the enquiry or those who are to give evidence. The mere anxiety to take drastic or swift action, however, expedient from the point of view of administration, could not be said to have rendered the holding of an inquiry impracticable."

6. The Tribunal had relied upon several other judgments of the

Hon‟ble Supreme Court to arrive at its conclusion.

7. The settled position of law emerging from the judgments of the

Hon‟ble Supreme Court is as under:

In Ikramuddin Ahmed Borah v. Superintendant of Police,

Darrang & ors., AIR 1988 SC 2245, it was held that in order to decide

whether it was practicable to hold an enquiry or not, the test to be applied

Writ Petition(C) No.3940/2008 Page 4 is that of a reasonable person taking a reasonable view of a prevailing

situation. However, in a situation where two points of view are possible,

a court will decline to interfere. Also, in Chief Security Officer & ors. v.

Singasan Rabi Das, AIR 1991 SC 1043 , the respondent was removed

from service for misconduct, stating that an enquiry was not reasonably

practicable on the basis that it might cause personal humiliation, insults or

threat to witnesses, the court, however, held that in light of total absence

of sufficient material, dispensing with the enquiry was not justified.

Further, in Jaswant Singh v. State of Punjab & ors., AIR 1991 SC 385, it

was held that the concerned authority cannot dispense with the department

enquiry merely based on its ipse dixit (which would imply something

being asserted but not duly proved). In another decision, it was held by

the Hon‟ble Supreme Court in Union of India and ors. v. R. Reddappa &

anr., (1993) 4 SCC 269, that cases, the outcome of which would result in

injustice or arbitrary exercise of power, recourse cannot be taken to

Article 311(2)(b).

Further, it was held in the case of Kuldip Singh v. State of Punjab

& ors. (1996) 10 SCC 659, that when there is sufficient material before

the appropriate authority the same can be relied upon to conclude that it

was not reasonably practicable to hold an enquiry, as contemplated under

Article 311 (2)(b).

In Chandigarh Administration, Union Territory, Chandigarh and

Writ Petition(C) No.3940/2008 Page 5 ors. v. Ajay Manchanda etc., AIR 1996 SC 3152, it was held that in order

to satisfy the grounds for invoking Article 311 (2)(b) and dispensing with

the disciplinary enquiry, some independent material should be relied

upon. Also, in Onkar Lal Bajaj etc. v. UOI & anr., AIR 2003 SC 2562, it

was laid down that keeping in mind the greater objective of public

interest, each case dealing with Article 311 (2) must be ascertained under

its own relevant facts, circumstances and merits.

The Hon‟ble Supreme Court in the case of Sudesh Kumar v. State

of Haryana & ors., (2005) 11 SCC 525, held that a reasonable

opportunity of being heard must be afforded in cases involving Article

311 (2), wherein Article 311 (2) (b) acts as an exception to the said rule.

It was also enunciated in Ajit Kumar Nag v. General Manager (P.J.)

Indian Oil Corpn. Ltd. Haldia & ors., AIR 2005 SC 4217, that reasons

for dispensing with enquiry should be recorded in writing and

communicated to the delinquent, being a mandate of the Constitution.

8. It has also been held that Article 311(2)(b) can be invoked even

after the enquiry has started and we are in entire agreement with the

aforesaid position of law culled out by the Tribunal and endorse the same.

We are of the view that dispensation of the departmental inquiry seriously

affects the respondent as his right to repel the allegations against him is

totally taken away and ought not to be resorted to in a cavalier fashion, as

has been held by this Court in the case of Satish Chand Gupta & ors.,

Writ Petition(C) No.3940/2008 Page 6 Hari Om & ors. and Amit Kumar v. MCD & ors., Writ Petition (C)

Nos.8268-85, 8379-99 and 9576/2006, decided on 9th July 2007 as

follows:

"Where the authority is satisfied for some reason to be recorded that it is not reasonably practicable to give the employee an opportunity of showing cause, or where the employee is removed or dismissed on the ground of conduct which led to his conviction, the procedure of imposing any penalty on such an employee by holding an enquiry can be dispensed with."

9. In an another decision of this Court in Delhi Administration & ors.

v. Ex-constable Inderjit & anr., CWP No.4196/1998 decided on 17th

September 2002 it was held as follows:

"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 materials(s) before the appellate court in the event an appeal is filed."

10. In our view, the Tribunal has rightly held that there was a gross

abuse of the constitutional provision to hold that the delinquent officer

may overawe the witnesses, most of whom would be police officers senior

in rank to him.

Writ Petition(C) No.3940/2008 Page 7

11. We entirely agree with the said reasoning of the Tribunal. It is not

in dispute that in the present case the respondent is a constable and even

the appellate authority noted that the facts were verified from Assistant

Sub Inspector Virender Singh and the Head Constable Parshu Ram, who

were on duty in the van, and since both such police officers are senior in

rank to the respondent, who was only a constable, the Tribunal was

absolutely justified in quashing the order of dispensation of the

departmental inquiry against the respondent. Accordingly, we see no

reason to interfere with the impugned judgment and the writ petition is

thus dismissed along with CM 7635/2008 with no order as to costs.

                                             MUKUL MUDGAL,J



                                             REVA KHETRAPAL, J
SEPTEMBER 02, 2009
dr




Writ Petition(C) No.3940/2008                                   Page 8