Govt. Of Nct Of Delhi & Ors. vs Ex.Constable Sudesh Pal Rana
2011 Latest Caselaw 4548 Del

                     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     W.P.(C) No.7883/2010 & CM No.20322/2010


%                           Date of Decision:   16.09.2011


Govt. of NCT of Delhi & Ors.                                  .... Petitioners


                          Through Mr.Sushil Dutt Salwan, Additional
                                  Standing Counsel and Mr. Paras Anand
                                  Advocates


                                    Versus


Ex. Constable Sudesh Pal Rana                                .... Respondent


                          Through Mr.R.S.Kundu, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether reporters of Local papers may              YES
          be allowed to see the judgment?
2.        To be referred to the reporter or not?             YES
3.        Whether the judgment should be                     YES
          reported in the Digest?


ANIL KUMAR, J.

*

1. The petitioners, Govt. of NCT of Delhi & Ors., have challenged the

order dated 5th March, 2010 passed by Central Administrative Tribunal,

Principal Bench, New Delhi in OA No.1689/2009 titled as „Ex.

Constable Sudesh Pal Rana v. Govt. of NCT of Delhi & Ors.‟, allowing

the original application of the respondent and setting aside the order of

dismissal dated 9th August, 2006 dismissing the respondent from the

service, after dispensing with the enquiry under Article 311 (2)(b) of the

Constitution of India and also setting aside the order of the Appellate

Authority dated 5th June, 2008 upholding the punishment. The

Tribunal also directed the petitioners to reinstate the respondent in

service on deemed suspension with arrears from the date of dismissal

till the reinstatement. The petitioners were held to be not precluded

from proceeding further against the respondent in accordance with law.

2. The respondent was appointed as a Constable in Delhi Police and

during his service an FIR No.383/2006, under Sections 302 and 364 of

Indian Penal Code was registered against him at PS Timar Pur, Delhi.

During the trial of the criminal case, the petitioners dispensed with the

enquiry, holding that it would not be reasonably practicable to conduct

a regular departmental enquiry on the premise that the witnesses may

not come forward to depose against the respondent and thus, by order

dated 9th August, 2006 the respondent was dismissed from the service.

3. By the order dated 9th August, 2006, it was held that on 31st July,

2006 a case was registered consequent to the firing by two criminals,

namely, Najakat S/o Babu R/o Village Haaval, PS Pilkhuwa, District

Ghaziabad (UP) and Julfikar S/o Gulam Nabi R/o Village Ajrada, PS

Mundali, District Meerut (UP) over police team comprising of ASI

Pramod Tyagi, HC Yashpal, Constable Sudesh Pal Rana, Constable

Suraj Pal, Constable Pradeep, Constable Ravinder, Constable Satish

and Constable (Driver) Naresh, a Team of Operation Cell, North District.

It was alleged that the said Najakat and Julfikar were noticed coming in

a Maruti Car bearing No.DL 3C N02304 from Wazirabad side, and on

being signaled to stop, they started firing at the police party who

retaliated in self defense, as result of which both of them were injured

and later on died and they were declared to have been brought dead

when taken to Shushruta Trauma Centre.

4. While passing the dismissal order dated 9th August, 2006, it was

noted that ASI Pramod Tyagi had not informed his supervisory officer,

i.e. Inspector Operation Cell or ACP/Operation before departing

pursuant to the information regarding the alleged movement of the

above noted criminals in the area of PS Timar Pur. The ASI also did not

inform about the involvement and criminal background of the said

deceased persons when asked by ACP/Operation /North. The order also

noted that Sh.Gulam Nabi, the father of the deceased Julfikar had

submitted a complaint to the SSP & DM/Ghaziabad, UP, and in the

preliminary enquiry on the complaint of the father of the Julfikar, a zero

FIR has been registered under Section 364/302 of Indian Penal Code, at

PS Kavi Nagar, Ghaziabad (UP) which was transferred to Delhi Police for

further action. It was further noted that besides the respondent ASI

Pramod Tyagi No.2538/N, Constables Suraj Pal No.2021/N had also

played a key role in the whole episode and other police personnel had

joined the said team on the directions of ASI Pramod Tyagi.

5. According to the petitioners, in their order dated 9th August,

2006, the above noted facts clearly show that in conducting the said

encounter without informing about their departure to the supervisory

officers and the alleged involvement of Constable Ashok Kumar in the

above noted case, the respondent and other police personnel had shown

grave misconduct, high handedness and had brought bad name to the

entire force of Delhi Police by having acted in a manner highly

unbecoming of a police personnel.

6. By said order it was held that the facts and circumstances of the

case are such that it would not be reasonably practicable to conduct a

regular departmental enquiry against the respondent and others, as

there is a reasonable belief that the witnesses may not come forward to

depose against them. The relevant observations and inferences of the

petitioners in order dated 9th August, 2006 are as under:-

" If the defaulter police personnel are allowed to be continued in police force after this act of serious misconduct, it would be detrimental to public interest. The

facts and circumstances of the case are such that it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulter police personnel, as there is a reasonable belief that the witnesses may not come forward to depose against them. It is a common experience that due to terrorizing and intimidating, the witnesses and complainant do not come forward to depose against the delinquents in the investigation/enquiry and this kind of intimidation is a common tactic adopted by the unscrupulous police personnel. It also calls for great courage to depose against the persons where the delinquents are police officials who may use their job to influence the statement/deposition of the witnesses.

In the backdrop of the position explained in the foregoing contents in this order, it is crystal clear that the said police personnel are public servant of indisciplined and there is every possibility of their influencing as well as intimidating the witnesses in the criminal case registered in this regard and also in case of enquiry initiated against them. It is under these given set of compelling circumstances, the rules under article 311 (2) (b) of Constitution of India have been invoked in this case for the sake of justice. The said police personnel have become a liability to the department and should be dismissed. It would be both in public interest as well as for the establishment of rule of law, which is expected by public at large."

7. The appeal filed by the respondent against the order dated 9th

August, 2006 was also dismissed by the order dated 5th June, 2008.

The Appellate Authority too held that the facts and circumstances of the

case are such that it would not be reasonably practicable to conduct a

regular departmental enquiry against the respondents and others as

there was reasonable belief that the witnesses may not come forward to

depose against them. The Appellate Authority almost repeated the same

language as was used by the Disciplinary Authority in dispensing with

the enquiry under Article 311 (2) (b) of the Constitution of India and

dismissed the appeal of the respondent and other defaulters. The

relevant observations and inferences drawn by the Appellate Authority

are as under:-

" The disciplinary authority in punishment order has observed that if the appellants are allowed to be continued in police force after this act of serious misconduct, it would be detrimental to public interest. The facts and circumstances of the case are such that it would not be reasonable practicable to conduct a regular departmental enquiry against the appellants, as there was a reasonable belief that the witnesses may not come forward to depose against them. It is a common experience that due to terrorizing and intimidating, the witnesses and complainant do not come forward to depose against the delinquents in the investigation/enquiry and this kind of intimidation is a common tactic adopted by the unscrupulous police personnel. It also calls for great courage to depose against the persons where the delinquents are police officials who may use their job to influence the statement/deposition of the witnesses. Under such circumstances, disciplinary authority was of the considered view that it would not be reasonably practicable to conduct a departmental enquiry against the appellants. Therefore, the appellants were dismissed from the force under article 311(2)(b) of the Constitution of India vide order under appeal."

8. The order of the Disciplinary Authority and the Appellate

Authority dismissing the respondent from service without an enquiry by

invoking the powers under Article 311 (2) (b) of the Constitution of India

was challenged by the respondent by filing an original application being

OA No.1689/2009, inter-alia, on the ground that the order of the

dismissal is in violation of the principles of natural justice and laid

down procedure under the departmental rules. It was contended that

merely on surmises and conjectures and under the garb of Article 311

(2)(b) of the Constitution of India, the regular departmental enquiry has

been dispensed with, which has caused great prejudice to the

respondent. According to the respondent, he was falsely implicated in

the criminal case and the Disciplinary Authority did not make the

slightest efforts to initiate a regular departmental enquiry. It was

contended that there was no material for subjective satisfaction of the

Disciplinary Authority to dispense with the enquiry on an objective

criteria and the decision to dispense with the departmental enquiry was

based on the presumptions and surmises. The respondent also pleaded

that no cogent reasons were recorded, based on the facts of the case, for

dispensing with the enquiry and the reasons for the same are purely

based on presumptions and assumptions. Reliance was placed on AIR

1985 SC 1416, Union of India v. Tulsi Ram Patel & Satyavir Singh &

Ors. v. Union of India & Ors. AIR1986SC555. The respondent

categorically asserted that holding of departmental enquiry is a rule and

dispensation with the enquiry is an exception and no facts and

documents were available with the Disciplinary Authority to justify the

dispensation of the regular enquiry. Reliance was also placed on the

Circular of the petitioners dated 21st December, 1993 stipulating that a

civil servant is not to be dismissed or removed without enquiry by

invoking the powers under Article 311 (2)(b) of the Constitution of India,

but only after holding the regular departmental enquiry against him. It

was also stipulated in the circular that the power under Article 311

(2)(b) of the Constitution of India is not to be used as a shortcut. The

said circular further stipulated that the police officers involved in cases

of Rape and Dacoity or any such heinous offence have been dismissed

straightway under Article 311 (2)(b) of the Constitution of India despite

the fact that the criminal case has been registered. It was also stated

that such dismissal without conducting departmental enquiry is illegal

because in such cases departmental enquiry can be conveniently held.

The relevant portion of the Circular dated 21st December, 1993

superseded earlier Circular No.25551-163-/CR-I dated 8th November,

1993 is as under:-

" The Police Officers involved in the case of rape or dacoity or any such heinous offence have been dismissed straightway under Article 311(2)(b) despite the fact that criminal cases have been registered. Such dismissals without holding D.Es are illegal because in such cases D.E can be conveniently held.

It is, once again emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) lightly but only in those cases where it is not reasonably practicable to hold the enquiry. Whenever the disciplinary authority comes to the conclusion that it is not reasonably practicable to hold an enquiry he must record at length cogent and legally tenable reasons for coming to such conclusion. In the absence of valid reasons, duly reduced in writing, no such order of dismissal etc with resort to Article 311(2)(b) can be sustained in law."

9. The original application was contested by the petitioners

reiterating the pleas stipulated in the order of the dismissal dated 9th

August, 2006 and dismissal of appeal by the order dated 5th June, 2008

without disclosing any further material or documents or cogent legally

tenable reasons for coming to such conclusions. It was categorically

asserted that the reasons for not initiating the departmental proceeding

had already been clearly discussed in the dismissal order as per the

instructions. Though the respondent had categorically relied on the

Circular dated 21st December, 1993, a copy of which was also filed

along with the original application, however, it was stated in the reply

that even the Circular dated 21st December, 1993 clearly stipulates that

there is no need to hold enquiry dismissing the police personnel under

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

petitioners, the allegations levelled against the respondents had been

proved as per investigation conducted by the Crime Branch. Para 4 (viii)

of the reply filed by the petitioners before the Tribunal is as under:-

" The contents of this paragraph are wrong and incorrect hence are disputed and denied. It is submitted that as regard the Circular dt.29.12.1993 instead of 21.12.1993 quoted in this para, it is quite clear from the last para of the Circular that there is no need to hold enquiry before dismissing the police personnel under Rule 311(2)(b) of the Constitution of India whenever the disciplinary authority comes to the conclusion that it is not reasonably practicable to hold an enquiry."

10. After considering the pleas and contentions of the parties, the

Tribunal relied on the Circular dated 21st December, 1993 and the

decision of the Apex Court in Prithvipal Singh v. State of Punjab (2006)

13 SCC 314 and Tarsem Singh v. State of Punjab (2006) 13 SCC 581

and held that there was no subjective satisfaction or sufficient material

for holding that it was not reasonably practicable to conduct the

departmental enquiry. Therefore, the Tribunal set aside the order dated

9th August, 2006 and 5th June, 2008 dismissing the respondent from

service without conducting the departmental enquiry, by invoking the

power under Article 311 (2)(b) of the Constitution of India. The Tribunal

held that the reasons recorded were neither objective nor reasonable in

the circumstances and that instead a shortcut had been adopted to

avoid the departmental enquiry which was arbitrary. It was further

held that even the Appellate Authority had without recording objective

and reasonable reasons, upheld the order of the Disciplinary Authority.

11. The order passed by the Tribunal is assailed, inter alia, on the

grounds that a preliminary enquiry was conducted by the SSP and DM

of Ghaziabad (UP) in which it was primarily found that the deceased

persons were talking to their lawyer on 31st July, 2006, in the District

Court at Ghaziabad and suddenly the respondent along with three or

four other police officials had come and asked the deceased to sit in

their vehicles, which fact had also been endorsed by the eyewitnesses.

The father of the deceased had also stated in his complaint that his

deceased son was facing a false and frivolous criminal case regarding

the murder of the brother of Ct. Ashok Kumar. Therefore, it is urged

that the respondent had planned the entire encounter along with Ct.

Ashok Kumar to eliminate the deceased. It is also contended that in the

criminal case against the respondent he has been convicted and is

serving his sentence at present, however, an appeal has been filed

against conviction and sentence which is pending adjudication.

According to the petitioners, there is enough material available on the

record and also on the basis of the criminal case registered against the

respondent as well as the fact that he has been in judicial custody, the

petitioners were justified to dispense with the enquiry and hence they

were entitled to exercise the power inscribed in Article 311(2)(b) of the

Constitution of India, to dismiss the respondent without enquiry. The

petitioners also asserted that since the respondent was in the police

force, it becomes very difficult to initiate departmental proceedings as it

is generally believed that a policeman will favour the other policeman.

It has also been contended that private witnesses might depose before

the Court or Judicial forum without any fear, however the same is not

true for the witnesses who depose before the administrative bodies. The

petitioners contended that prima facie they were only duty-bound to

look into the matter and to see whether some material is available to

proceed against the respondent. The order of the Tribunal is also

impugned on the ground that the respondent could not be deemed to be

under suspension from 9.8.2006 till 9.4.2009 as he had not provided

any services to the petitioners during the said period.

12. Reliance is also placed by the learned counsel for the petitioners

on Union Territory, Chandigarh & Ors v. Mohinder Singh, (1997) 3 SCC

68; Tarsem Singh v. State of Punjab & Ors, (2006) 13 SCC 581;

Chandigarh Administraton & Ors v. Ex.S.I.Gurdit Singh, (1997) 10 SCC

430 and Parveen Kumar v. Commissioner of Police & Ors,

MANU/DE/8251/2007 in support of pleas and contentions of the

petitioners, that the order of dismissal passed against the respondent

without conducting an enquiry under Article 311(2)(b) of the

Constitution of India is not liable to be set aside in the facts and

circumstances of the case.

13. The writ petition is contested by the respondent contending,

inter-alia, that the Disciplinary Authority has not given any cogent

reasons in the facts and circumstances for holding that it was not

reasonably practicable to hold the enquiry as contemplated under

Article 311(2)(b) of the Constitution of India. Relying on Jaswant Singh

v. State of Punjab, AIR 1991 SC 3 it was contended that mere

presumption or surmises cannot be the basis for the Disciplinary

Authority for not complying with Article 311(2) of the Constitution of

India. If the subjective satisfaction of the Disciplinary Authority is not

supported by independent material, then in the circumstances the

dismissal of the respondent without holding the enquiry would be

illegal. It was further asserted that the purported reasons for dispensing

with the departmental proceedings are not supported by any document

on the record.

14. On behalf of the respondent it was emphasized that reliance has

been placed by the Disciplinary Authority on the preliminary enquiry

conducted by the SSP & DM, Ghaziabad. Thus, it is contended that if a

preliminary enquiry could be conducted, then there was no reason as to

why a formal departmental enquiry could not have been initiated

against the respondent. Relying only on the preliminary enquiry without

complying with the minimal requirements of principles of natural

justice is against the canons of fair play and justice. Merely, on the

basis of preliminary enquiry, wherein no opportunity was given to the

respondent, the inference that the respondent was guilty of the acts,

complained against him could not be ascertained nor could it be held

that the respondent is unfit for police service. The learned counsel for

the respondent also relied on Tarsem Singh (Supra).

15. This Court has heard the learned counsel for the parties in detail

and perused the copies of record placed before the Tribunal which has

been filed along with the writ petition. This is not disputed by the

learned counsel for the petitioners that the order of dismissal of the

respondent had been passed on the complaint of Sh.Gulam Nabi, father

of deceased Julfikar, who had submitted a complaint to the SSP and

DM, Ghaziabad (U.P). Thereafter, the SSP and DM had conducted a

preliminary enquiry on the basis of which a zero FIR had been

registered under Section 364/302 of IPC at Police Station Kavi Nagar,

Ghaziabad (U.P). The said case was subsequently transferred to Delhi

Police for further action and the respondent with three other constables

was named. During the preliminary enquiry, the respondent was not

involved nor was his explanation, if any, called for or considered and in

the absence of this it was held that it had been clearly established that

while conducting the encounter no information had been given to the

supervisory officer and that the case showed grave misconduct and

highhandedness on the part of the respondent and the other delinquent

officers, who have brought a bad name to the entire force of Delhi

Police. Though it has been contended that the facts and circumstances

of the case are such that it would not be reasonably practicable to

conduct a regular departmental enquiry, as there is reasonable

apprehension that the witnesses may not come forward to depose

against the charged officers, however, no material has been shown or

placed on record on the basis of which such an inference could be

arrived at. Neither before the Tribunal nor before this Court has any

such material been placed on record or disclosed on the basis of which

it would be evident that subjective satisfaction of the Disciplinary

Authority had been arrived at, to lead to the inference that it would not

be reasonably practicable to conduct a regular departmental enquiry as

the witnesses may not come forward to depose against the charged

officer. This cannot be disputed that in the criminal case the witnesses

had deposed against the respondent, and it had ultimately culminated

in his conviction by the Sessions Court, however, the appeal of the

respondent in the matter is still pending adjudication.

16. The Appellate Authority while dismissing the appeal against the

dismissal order has also relied on the investigation conducted by the

Crime Branch and held that the allegations leveled by the father of the

deceased, Julfikar, were proved, as the eye witnesses had confirmed

that Julfikar and his friends were lifted by the respondent along with

ex Constable Ashok Kumar in their vehicle and the respondent and the

other police personnel did not inform their supervisory officer regarding

their departure before the encounter had taken place, nor had they told

about the involvement and criminal background of the deceased. If the

preliminary investigation could be conducted by the SSP and DM,

Ghaziabad on the complaint of the father of the deceased and even the

Crime Branch in Delhi could investigated the matter after the case was

transferred to Delhi and eye witnesses were examined, then it is difficult

to infer that it was not reasonably practicable to conduct a regular

departmental enquiry. If there are any other reasons for assuming the

same, then they must be spelt out and merely, stating that it is not

reasonably practicable to conduct a regular departmental enquiry is not

sufficient. It is also evident that the conclusion of the Disciplinary

Authority that it is not reasonably practicable to hold a departmental

enquiry is not supported by any material or documents on the record. If

the witnesses against the respondent could appear in the criminal trial,

then why they could not appear in the regular departmental enquiry

has not been explained. The plea of the learned counsel for the

petitioners that it is generally believed that a policeman will favour the

other policeman is also based on an assumption and a surmise and in

any case, this was not the reason given by either the Disciplinary

Authority or by the Appellate Authority in their respective orders. The

contention that private witnesses depose before the Court or judicial

forum without any fear, however, private witnesses do not depose freely

before the administrative bodies also cannot be accepted in the facts

and circumstances and in law. In any case, this contention has not

been considered by either the Disciplinary Authority or by the Appellate

Authority in their respective orders and hence such a reason cannot be

canvassed now on behalf of the petitioners. It is no more res integra

that when a statutory functionary makes an order based on certain

grounds, its validity must be adjudicated by the reasons so mentioned

therein and it cannot be supplemented by fresh reasons. The Supreme

Court in AIR 1978 SC 851, Mohinder Singh Gill v. Chief Election

Commissioner had held that the orders passed cannot be supplemented

by fresh reasons as otherwise an order bad in the beginning may, by

the time it comes to the Court on account of a challenge, get validated

by additional grounds brought out later on.

17. It is a well settled principle of law that a constitutional right

conferred upon a delinquent cannot be dispensed with lightly or

arbitrarily or out of ulterior motives or merely, in order to avoid the

holding of enquiry. The Supreme Court in Tarsem Singh v. State of

Punjab, (2006) 13 SCC 581 at page 586, after noting clause 2 of Article

311 of the Constitution of India in para 10, had held that a

constitutional right of a delinquent cannot be dispensed with lightly. It

was held in the said judgment as under:-

10. It is now a well-settled principle of law that a constitutional right conferred upon a delinquent cannot be dispensed with lightly or arbitrarily or out of ulterior motive or merely in order to avoid the holding of an enquiry. The learned counsel appearing on behalf of the appellant has taken us through certain documents for the purpose of showing that ultimately the police on investigation did not find any case against the appellant in respect of the purported FIR lodged against him under Section 377 IPC. However, it may not be necessary for us to go into the said question.

11. We have noticed hereinbefore that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of dismissal was passed, inter alia, on the ground that there was no need for a regular departmental enquiry relying on or on the basis of a preliminary enquiry. However, if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the appellant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice. The appellate authority, as noticed hereinbefore, in its order dated 24-6-1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefor was available on record. It is further evident that the appellate authority also misdirected himself in passing the said order insofar as he failed to take into consideration the relevant facts and based his decision on irrelevant factors.

12. Even the Inspector General of Police in passing his order dated 26-11-1999, despite having been asked by the High Court to pass a speaking order, did not assign sufficient or cogent reason. He, like the appellate authority, also proceeded on the basis that the appellant was guilty of commission of offences which are grave and heinous in nature and bring a bad name to the police force of the State on the whole. None of the authorities mentioned hereinbefore proceeded on the relevant material for the purpose of arriving at the conclusion that in the facts and circumstances of the case sufficient cause existed for dispensing with the formal enquiry. This aspect of the matter has been considered by this Court in Jaswant Singh v. State of Punjab wherein relying upon the judgment of the Constitution Bench of this Court, inter alia, in Union of

India v. Tulsiram Patel, it was held: (Jaswant Singh case, SCC p. 368, para 4)

"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 inquiry."

18. The plea on behalf of the petitioners that it is common experience

that due to terrorizing and intimidation, the witnesses and

complainants do not come forward to depose against the delinquents in

the investigation/enquiry and that such intimidation are common

tactics adopted by unscrupulous police personnel is also based on the

petitioners‟ assumptions and surmises. Since the eye witnesses and the

complainants had deposed against the respondent in the preliminary

enquiry conducted by SSP and DM, Ghaziabad and by the Crime

Branch at Delhi, no cogent reason or material has been disclosed as to

why the eye witnesses and complainants would not have deposed

during the Departmental Enquiry. Though the Disciplinary Authority

and the Appellate Authority had held that it is common experience that

due to terrorizing and intimidation the witnesses and complainants do

not depose against the delinquent, however not even a single such

instance has been referred to and relied on by the Disciplinary

Authority or the Appellate Authority. In the circumstances, the

petitioners have failed to establish any subjective satisfaction arrived at

by them based on any objective criterion. No reasons have also been

given regarding that if preliminary enquiries could be conducted, then

why a formal enquiry could not be initiated against the respondent.

Relying upon such preliminary enquiries without complying with the

minimal requirements of the principles of natural justice in the facts

and circumstances would be against all canons of fair play and justice,

as was also held by the Supreme Court in Tarsem Singh (Supra).

19. The precedents relied on by the petitioners‟ counsel are also

distinguishable. In Mohinder Singh (Supra) the order of dismissal was

based on the report of the Superintendent of Police made after an

enquiry into the allegations against the Charged officer of gross misuse

of power and extortion of money by illegally detaining and torturing an

innocent person. The report unequivocally had established that the

delinquent was a terror in the area and that he had intimidated the

complainant-victim and the two other persons arrested with the

complainant-victim, and that they had immediately left the office of the

Superintendent of Police terrified by the threats given by the delinquent.

Apparently, the case relied on by the petitioner is distinguishable.

20. It is no more res integra that the Court should not place reliance

on decisions without discussing as to how the factual situation in the

matter under adjudication co-relates to the factual situation of the

decision on which reliance is placed. It was held that observations of

the Court are neither to be read as Euclid‟s theorem nor as provisions

of the Statute, that too taken out of their context by the Supreme Court

in Bharat Petroleum Corporation Ltd & Ors v. N.R.Vairamaini & Anr,

AIR 2004 SC 778. The observations made by the Court are to be read in

the context in which they appear to have been stated. In P.S.Roy v.

State, JT 2002 (3) SC 1, the Supreme Court had held as under:-

" There is always a peril in treating the words of a judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between the conclusions in two cases."

21. Similarly in Rafiq v. State (1980) 4 SCC 262 it was observed as

under:-

" The ratio of one case cannot be mechanically applied to another case without having regard to the factual situation and circumstances pertaining to the two cases."

22. In Ex.S.I.Gurdit Singh (Supra) relied on by the petitioners‟

counsel having regard to the facts and circumstances of that case it was

held that the Disciplinary Authority was justified in holding that it was

not reasonably practicable to hold an enquiry as the enquiry report had

showed that the delinquent police official was a terror in the area and

was a very influential person and no person would come forward to give

any statement regarding the incident in question against him and

hence, a regular enquiry against him would serve no purpose. In the

case of the respondent there is no such report that the respondent is a

terror in the area or a very influential person and, therefore, no person

would dare to come and depose against him in a regular enquiry.

Rather, the complainant and witnesses deposed against the respondent

in the preliminary enquiry and the investigation done by the Crime

Branch and they had also deposed before the Criminal Court which has

led to the conviction of the respondent by the Sessions Court though an

appeal against the judgment of the Sessions Court is pending. If the

complainant and the witnesses could depose in preliminary enquiry no

reason has been disclosed as to why a formal departmental enquiry

could not be initiated against the respondent. The learned counsel for

the petitioners have also relied on Tarsem Singh (Supra), which is also

relied on by the learned counsel for the respondent. In this case, the

Supreme Court had rather held that if a preliminary enquiry could be

conducted, there was no reason as to why a formal departmental

enquiry could not be initiated against the delinquent and in the

circumstances, the ratio is rather against the proposition canvassed by

the learned counsel for the petitioners and on the basis of the ratio of

the said judgment it cannot be held that the order of dismissal by the

Disciplinary Authority and the Appellate Authority justifying the same,

are not liable to be set aside. Reliance has also been placed by the

petitioners on a judgment of the Division Bench of this Court in the

case of Parveen Kumar (Supra). In the said case also there was material

before the Disciplinary Authority for dispensing with the enquiry,

namely interrogation in the dacoity revealing involvement of the

delinquent and the fact that he had been involved in five other criminal

cases and the attendant circumstances. The fact pertaining to his

association with other criminals and his discharge in one case due to

non identification by the witnesses and the lack of availability of other

witnesses and the prospect of shying away from the proceedings and

not deposing due to fear of severe reprisal at his hands would be a

genuine apprehension and not a mere possibility. Therefore, the case

relied on by the petitioner is distinguishable.

23. The learned counsel for the petitioners is also unable to explain

satisfactorily for not complying with the intent of the circular dated 21st

December, 1993 stipulating that the Police Officers involved in the case

of rape or dacoity or any such heinous offence are not to be dismissed

straightway under Article 311(2)(b) as criminal cases are registered

against them. The circular directs that such dismissals without holding

D.Es are illegal as in such cases departmental enquiries can be

conveniently held. The circular thus emphasizes that the Disciplinary

Authority should not take resort to Article 311(2)(b) lightly but only in

those cases where it is not reasonably practicable to hold the enquiry.

Whenever the Disciplinary Authority comes to the conclusion that it is

not reasonably practicable to hold an enquiry, he must record at length

cogent and legally tenable reasons for coming to such conclusion. It

cannot be disputed by the petitioners that in the absence of valid

reasons, duly reduced in writing, order of dismissal resorting to Article

311(2)(b) of the Constitution of India cannot be sustained in law. From

the orders of the Disciplinary and Appellate Authority it is apparent that

no cogent and valid reasons have been given as to why the

departmental enquiry cannot be conducted. In the circumstances, the

order of dismissal of the respondent without conducting departmental

enquiry cannot be sustained in the facts and circumstances of the case.

Therefore, for the foregoing reasons the petitioners have failed to show

any such grounds against the order of the Tribunal which would show

that it is illegal or irregular or suffers from such perversity which would

require interference by this Court in exercise of its jurisdiction under

Article 226 of the Constitution of India.

24. In the totality of facts and circumstances, therefore, the order of

the Tribunal holding that the order of the petitioners dismissing the

respondent by invoking Article 311(2)(b) of the Constitution of India is

not sustainable, does not suffer from any illegality, irregularity or any

such perversity requiring any interference by this Court. The writ

petition is without any merit and it is, therefore, dismissed. Interim

order dated 1st December, 2010 is vacated and all the pending

applications are also disposed of.

25. It is, however, clarified that the petitioners are not precluded from

taking any departmental action in accordance with the rules and

regulations, if permissible in the facts and circumstances of the case,

without prejudice to the rights and contentions of the respondent. It is

further clarified that on setting aside the order of dismissal of the

respondent, he is to be reinstated, however, since he is in judicial

custody, therefore, he would be under deemed suspension and he

would be entitled for only such benefits which are available to an

employee who is under suspension.

26. Considering the facts and circumstances the parties are, however,

left to bear their own costs.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

September            16, 2011
vk