Ex-Constable Mahabir Singh And ... vs Union Of India And Others
2009 Latest Caselaw 3501 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+    Writ Petition (Civil) No. 7068 of 2000

%                                   Decided on: September 02, 2009

1.   Ex-Constable Mahabir Singh
     No. 828/NW
     S/o Shri Kedar Singh
     r/o Village & PO Sisana
     P.O. Kharkhoda
     District Sonepat (Haryana)

2.   Ex-Constable Mahabir Singh
     No. 1158/NW
     S/o Shri Perma Nand
     R/o Village & P.O. Jakhuli
     P.S. Rai
     District Sonepat (Haryana)                      ..... Petitioners

                          Through   Mr. Anil Mittal with
                                    Mr. Gagandeep Singh, Advs.

                 versus


1.   Union of India
     PHQ MSO Building
     I.P. Estate
     New Delhi-110002
     (Through Commissioner of Police)

2.   The Additional Commissioner of Police
     Northern Range
     Police Head Quarters
     M.S.O. Building, I.P. Estate
     New Delhi-110002.

3.   The Additional Deputy Commissioner of Police
     Northern West District
     P.S. Ashok Vihar
     Delhi-110052.                            ..... Respondents

                               Through   Mr.V.K. Tandon, Adv.

Coram:
HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE A.K. PATHAK



WP (C) No.7068/2000                                  Page 1 of 9
 1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                Yes

2. To be referred to Reporter or not?                             Yes

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


MADAN B. LOKUR, J. (ORAL)

The Petitioners are aggrieved by an order dated 24th April, 2000

passed by the Central Administrative Tribunal, Principal Bench in OA

No. 1876/1996.

2. Both the Petitioners were working as Constables with the Delhi

Police. It was alleged that in the evening of 25th November, 1994 they

had raped one lady (the prosecutrix) and also assaulted her husband

Dharam Singh. This information was passed on to the Disciplinary

Authority of the Petitioners at about 9.15 p.m. by one Chand Ram,

M.L.A.

3. The Disciplinary Authority visited the site where the offence was

alleged to have been committed. He was accompanied by the SHO of

P.S. Shalimar Bagh, Inspector P.T. Rana as well as the

Inspector/Superintendent of Police Badli, Inspector Ravi Shankar. The

Disciplinary Authority was also accompanied by Chand Ram, M.L.A.

and Dharam Singh, the complainant.

4. When the party reached the spot at about 10.15 p.m., they heard

the prosecutrix screaming in the bushes adjacent to the police picket.

The party rushed and caught hold of one person (one of the Petitioners)

who was only in his underwear while another person escaped in the dark.

Later on, the other person was caught and identified as the other

Petitioner.

5. According to the prosecutrix, the Petitioners assaulted her

husband Dharam Singh and told him to run away from the spot. Later

on both the Petitioners made her drink liquor, molested and raped her

continuously for about 6 hours. On the basis of her statement, a First

Information Report was lodged and the prosecutrix and the Petitioners

were sent for a medical examination.

6. Subsequently, a preliminary inquiry was conducted by the Delhi

Police which implicated the Petitioners. Around the same time, the

Disciplinary Authority passed an order under clause (b) of the second

proviso to Article 311(2) of the Constitution on 30th November, 1994

concluding that it is not reasonably practicable to hold a regular

departmental enquiry against the Petitioners and then ordering their

dismissal from service. At this stage, it is necessary to reproduce the

view expressed by the Disciplinary Authority in the order dated 30 th

November, 1994. It is stated in the order as follows:-

"..... After considering all the facts and circumstances, I am of firm view that it is not at all reasonably practicable to hold a regular Departmental Enquiry against these two constables because if they could have terrorised the lady while on duty and in the police picket and going to the extent of assaulting her husband for realizing their illegal, immoral goal than I have reason to believe that they would resort to the same tactics during the DE and thereby terrorise the lady and her husband who are the only witness to the whole agony/and shall not stand to the brutal force of these two highly undesirable police personnel."

7. We have been told by learned counsel for the Petitioners that his

clients were arrested on the day of the alleged incident and granted bail

by the Additional Sessions Judge on 17th January, 1995. In other words,

when the order dispensing with the departmental enquiry was passed,

both the Petitioners were in judicial custody.

8. Be that as it may, upon receipt of the order dated 30 th November,

1994 the Petitioners preferred a departmental appeal which came to be

dismissed on 15th July, 1996. Against that decision the Petitioners

preferred an original application before the Tribunal which came to be

dismissed by the impugned order dated 24 th April, 2000. This is why the

matter is now before us.

9. In the criminal trial, the prosecutrix entered the witness box but

did not implicate any of the Petitioners. On the basis of her statement as

well as the other evidence on record, by a judgment and order dated 17 th

May, 1999 the learned Additional Sessions Judge acquitted the

Petitioners.

10. We have been taken through the decision rendered by the learned

Additional Sessions Judge which notes that the statement of the

prosecutrix was recorded under Section 164 of the Cr.P.C. Although

the text of this statement is not on record, it appears that the prosecutrix

completely exonerated the Petitioners. Under the circumstances, it is

quite clear that both at the stage of recording her statement under Section

164 of the Cr.P.C. as well as when she entered the witness box in the

criminal trial, the prosecutrix did not implicate any of the Petitioners.

However, we need not go into the merits of the case because that is not

an issue before us. We have merely given these background facts to

better appreciate the issue before us, which is the validity of the order

dated 30th November, 1994 dispensing with the departmental enquiry.

11. Insofar as this issue is concerned, we find from the above

narration that the principal witnesses in the disciplinary inquiry would be

the Disciplinary Authority himself, the two police officials and the

M.L.A. apart from the prosecutrix and her husband. It is not possible for

us to accept the view that the Disciplinary Authority (who himself is a

senior police officer) as well as the two police officials would not have

supported the case of the prosecution in the departmental enquiry. Nor

is it possible for us to accept the view that Chand Ram, M.L.A. a

political leader, could have been terrorized by the two Petitioners so as

not to give a statement in the departmental enquiry. This, coupled with

the fact that at the time when the order dated 30th November, 1994 was

passed, both the Petitioners were in judicial custody makes it difficult to

accept the view that these Petitioners could have spread terror so as to

make it reasonably impracticable to hold a disciplinary inquiry.

12. However, the Disciplinary Authority has noted that the Petitioners

could have terrorized the prosecutrix and her husband who were the

main witnesses. In our opinion, it was rather hasty to come to that

conclusion on 30th November, 1994 considering the fact that on that day

the Petitioners were in judicial custody and given the nature of the

alleged crime, it was unlikely that they would soon be given bail. There

was, therefore, little factual basis for the Disciplinary Authority to come

to that conclusion.

13. To what extent can the court interfere with the opinion formed by

the Disciplinary Authority that it is not reasonably practicable to hold a

disciplinary enquiry? This question is required to be answered in the

light of Article 311 (3) of the Constitution which places the seal of

finality on the decision of the Disciplinary Authority whether or not it is

reasonably practicable to hold an inquiry. This question is also to be

answered in the light of the decision of the Constitution Bench in Union

of India and another v. Tulsiram Patel and others, (1985) 3 SCC 398.

14. The Supreme Court observed in Tulsiram Patel that whether it is

reasonably practicable to hold an enquiry is a matter of assessment to be

made by the Disciplinary Authority. This is because the Disciplinary

Authority is generally on the spot and knows what is happening. The

Supreme Court also observed that finality given to the decision of the

Disciplinary Authority is not binding upon the Court so far as its power

of judicial review is concerned. In an appropriate case the Court may

strike down the order dispensing with the enquiry as also the order

imposing penalty.

15. On the scope of interference by the Court, the Supreme Court held

that interference is permissible on grounds well established in law in the

exercise of the power of judicial review in matters where administrative

discretion is exercised. For example, interference is permissible when

clause (b) of the second proviso to Article 311(2) of the Constitution has

not been properly applied, as also in a case when there is a charge of

mala fides. Similarly, the Court can examine the relevancy of the

reasons given by the Disciplinary Authority for holding that it is not

reasonably practicable to hold an enquiry. However, the Court will not

sit in judgment like a Court of first appeal over the relevancy of the

reasons. The Court may also judge the reasonableness of the decision in

the light of the then prevailing situation rather than in the cool and

detached atmosphere of the court room, removed in time from the actual

situation. In a case where two views are possible, the Court will decline

to interfere.

16. Considering the law laid down by the Supreme Court, we have

gone through the reasons given by the Disciplinary Authority of the

Petitioners to conclude that it is not reasonably practicable to hold a

disciplinary enquiry. On a perusal thereof, it appears to us that what

weighed with the Disciplinary Authority was the seriousness of the

alleged crime; that the Petitioners were caught "red handed"; that the

Petitioners were implicated in the preliminary enquiry; and that despite

all this the Petitioners might be let off if the prosecutrix and her husband

turn hostile. It appears that on a cumulative assessment and to prevent a

"not guilty" decision of the enquiry officer, in the event of the

prosecutrix and her husband turning hostile, that apparently prompted

the Disciplinary Authority to take precipitate action.

17. We say this because the Disciplinary Authority has stated in the

order dated 30th November, 1994 that the Petitioners may so terrorize the

prosecutrix and her husband who may not be able to withstand the brutal

force of the "two highly undesirable police personnel". This clearly

suggests that the application of mind by the Disciplinary Authority was

to the ultimate outcome of the disciplinary enquiry and not to the

reasonable practicability of holding a disciplinary enquiry. In other

words, it appears from a reading of the order dated 30th November, 1994

that it might have been possible to hold a departmental enquiry, but the

Petitioners may not be found guilty in that enquiry because of their

ability to terrorize the prosecutrix and her husband who were the only

witnesses to the alleged offence. In our opinion, the application of mind

by the Disciplinary Authority was not to the reasonable practicability of

holding an enquiry, but to the result of the enquiry. Therefore, the

reason given for dispensing with the inquiry was neither relevant nor

germane to the issue.

18. We are also of the opinion that the Disciplinary Authority

misunderstood the then prevailing situation. On 30th November, 1994

the Petitioners were in judicial custody and, therefore, could not terrorize

the prosecutrix or her husband. It is not as if the Petitioners were

notorious criminals who could operate even while in judicial custody.

Moreover, the Disciplinary Authority seems to have completely

overlooked the fact that apart from the prosecutrix and her husband the

main witnesses were the Disciplinary Authority himself (a senior police

officer), two other police officers and an MLA. Surely, these persons

could not have been prevented by the Petitioners (who were only

Constables) from giving evidence in the disciplinary enquiry, for

whatever it is worth. If these material and relevant facts were taken into

consideration by the Disciplinary Authority, perhaps his view may have

been different.

19. Under the circumstances, we are of the opinion that the order

dated 30th November, 1994 passed by the Disciplinary Authority

deserves to be quashed on the ground that it was based on reasons which

were not relevant or germane to the reasonable practicability of holding

a departmental enquiry and because the Disciplinary Authority did not

take into consideration all the relevant and material facts pertaining to

the then prevailing situation. The Disciplinary Authority appears to have

adopted a convenient short cut. There is, therefore, no option but to

quash the order passed by the Tribunal on 24 th April, 2000 as well as the

order passed by the Disciplinary Authority on 30th November, 1994

dispensing with the departmental enquiry. We do so accordingly.

20. The Disciplinary Authority will now take steps to conduct a

departmental enquiry against the Petitioners in respect of the allegations

made. For this limited purpose, the Petitioners will be deemed to be

reinstated, but they will not be entitled to any benefits on account of the

deemed reinstatement. On conclusion of the departmental enquiry, the

Disciplinary Authority will pass appropriate orders regarding the period

that the Petitioners have been out of service.

21. With these observations, the writ petition stands disposed of.

                                                 MADAN B. LOKUR, J




SEPTEMBER 02, 2009                               A.K. PATHAK, J
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