Maneesh Kumar vs Commissioner Of Police & Anr.
2014 Latest Caselaw 4469 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                        Date of Decision: 16.09.2014

%                           W.P.(C.) No. 2551/2014

      MANEESH KUMAR                                     ..... Petitioner
                 Through:              Mr. Arun Bhardwaj and Mr. Shekhar
                                       Kumar, Advocates

                   versus

      COMMISSIONER OF POLICE & ANR.         .....Respondents

Through: Mr. Amiet Andlay, Advocate

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (OPEN COURT)

1. The petitioner assails the order dated 12.02.2014 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short, 'the Tribunal') in O.A. No. 4248/2012, as well as the order of termination dated 03.01.2012 and the order dated 17.08.2012 rejecting the petitioner's representation, under Article 226 of the Constitution of India.

2. The petitioner had been appointed in the Delhi Police as a Constable (Executive) on 11.01.2010. After about a year and a half, on 05.06.2011, a first information report (FIR No. 190/2011) was registered at Police Station, Sadar Rohtak (Haryana), under Section 392 IPC read with Sections 25 and 54 of the Arms Act, in connection with the snatching of money of a truck driver. The FIR was against unnamed persons. The petitioner was

implicated in the said case; was arrested and lodged in judicial custody. The petitioner was placed under deemed suspension by the Deputy Commissioner of Police, Rashtrapati Bhawan, New Delhi, vide order dated 22.06.2011 consequent upon his arrest. The petitioner was granted bail by the High Court of Punjab & Haryana, on 21.05.2012. The petitioner and the other accused were not identified by the prosecution witnesses. On the basis of the evidence recorded by the trial court, the petitioner was acquitted. There was yet another FIR being case FIR No. 173 dated 15.05.2011 under Sections 392 IPC read with Sections 25/54/59 of the Arms Act, PS Sadar Rohtak, in relation to which the petitioner was arrested on 19.06.2011.

3. Vide order dated 03.01.2012, the services of the petitioner were terminated by resort to Rule 5(1) of the CCS (Temporary Service) Rules, 1965. It was directed that the period of suspension shall be treated as not spent on duty.

4. The petitioner made a representation on 06.06.2012, which too was rejected by the respondents vide order dated 17.08.2012. Consequently, the petitioner preferred the original application before the Tribunal. The submission of petitioner before the Tribunal, it appears from the impugned order, was that the termination order had been passed merely on the basis of conjectures and surmises on the presumption that the petitioner was involved in the commission of the alleged crimes. The respondent had merely relied on the contents of the two FIRs to conclude that the petitioner was a desperate character.

5. The respondents had contested the petition wherein it was stated that

the concerned police station at Rohtak (Haryana) had informed the Commissioner of Police on 17.06.2011 that the petitioner had been arrested on 16.06.2011 at 8.30 p.m. for his involvement in the case FIR No. 190/2011 dated 05.06.2011. The copy of the FIR was got collected and it transpired that the petitioner had been arrested even earlier in respect of case FIR No. 173 dated 15.05.2011 under Section 392 IPC and that one stolen motor cycle was recovered from the petitioner. Since the petitioner had not completed his period of probation, the respondents resorted to termination of the petitioner's services under Rule 5(1) of CCS (Temporary Service) Rules, 1965, as he was involved in two heinous crimes of robbery within a span of less than one month. The respondents took the stand that the petitioner appeared to be a desperate character having criminal bend of mind. Being an extremely irresponsible person, and being involved in crimes of serious nature, he was required to be dealt with, with a heavy hand.

6. The Tribunal while dismissing the petitioner's original application took note of the judgment pronounced by the Additional Sessions Judge, Rohtak, in Sessions Case No. 65 of 2011/12 on 26.03.2013, in which, the petitioner was arrayed as accused No. 3. The Tribunal also noticed the reasons why the petitioner had been acquitted, even though the stolen vehicle was recovered from him. The Tribunal also took note of the judgment of the Sessions Judge, Rohtak, in Sessions Case No. 93 of 09.09.2011/01.11.2011. After noticing several judgments, the Tribunal, inter alia, observed as follows:

"24. Here, in the instant case, there was initially

sufficient evidence collected by the prosecution against the applicant/accused No.3 in the form of the stolen motor vehicle recovered from him and its use in the crime being committed, and the recovery of snatched cash, etc., but ultimately they were unable to prove the case before the relevant criminal trial Court beyond reasonable doubt. However, as has been held by the Hon'ble Apex Court, the Disciplinary Authorities, in the departmental proceedings, are not bound by the legal dicta associated with conviction or acquittal beyond reasonable doubt, as in departmental proceedings, it is the concept of pre-ponderance of probabilities, which prevails, and not the concept of beyond reasonable doubt.

25. The applicant was only a probationer, and it is trite law that probationer does not have any right to claim that a detailed disciplinary inquiry ought necessarily to be conducted in case of any malfeasance on the part of the probationer, and that the services of a probationer can be terminated, at any time, without notice, whenever such termination is not by way of stigma.

26. Here, in the instant case, the respondent authorities are on further strong ground. The appointment of the applicant was covered under the CCS (Temporary Service) Rules, 1965, and in particular, Rule 5(2)(a) of that CCS (Temporary Service) Rules, 1965, which prescribes and provides as follows:

(2) (a) Where a notice is given by the Appointing Authority terminating the service of a temporary Government servant or where the service of any such Government servant is terminated either on the expiry of the period of such notice or forthwith by payment of pay plus allowance the Central Government or any other authority specified by the Central Government in this behalf or a Head of Department, if the said authority is

subordinate to him, may, of its own motion or otherwise, re-open the case, and after making such enquiry as it deems fit:-

(i) Confirm the action taken by Appointing Authority;

(ii) withdraw the notice :

(iii) reinstate the Government servant in service; or

(iv) make such other order in the case as it may consider proper:

Provided that except in special circumstances, which should be recorded in writing, no case shall be re- opened under this sub-rule after the expiry of three months:-

(a) (i) from the date of notice, in case where notice is given:

(ii) from the date of termination of service, in a case where notice is given.

27. It is, therefore, clear that the respondents were fully within their rights to dispense with the services of the applicant before us, by passing the impugned orders, as they have done.

28. If a person, who was still in the period of his probation, and was posted in a prestigious Police establishment like that of the Rashtrapati Bhawan, can stoop down to the level of involvement in such heinous crimes, it would not have foreboden well for as to what he would have done, or could have done, in future, just in case he had been confirmed in the Police service."

7. We have heard learned counsels for the parties. From a perusal of the impugned order, it is clear that the petitioner may have been involved in

criminal cases of extremely serious nature and though the respondents may be fully justified in taking action against the petitioner, the respondents do not appear to have taken the action in question in accordance with law. A perusal of the order dated 03.01.2012 passed by the Deputy Commissioner of police, Rashtrapati Bhawan, New Delhi, shows that the same is highly stigmatic. It is not an innocuous order which could have been passed by resorting to Rule 5(1) of CCS (Temporary Service) Rules, 1965. The order passed by the respondents terminating the petitioner's service, inter alia, reads as follows:

"On 21.6.2011, the Supdt. Of Police Rohtak, Haryana, informed the Commissioner of Police, Delhi, vide memo No. 1302/ST, dated 17.6.2011 that Constable (Exe) Maneesh Kumar, No. 380/RB (PIS No. 28106337) of Delhi Police has been arrested on 16.6.2011 at 8.30 p.m. for his involvement in case FIR No. 190 dated 5.6.201 u/s 392/397 IPC and 25/54/59 Arms Act, P.S. Sadar Rohtak. The above mentioned report was received in this office on 22.6.2011. Accordingly, Constable (Exe) Maneesh Kumar No. 380/RB (PIS No. 28106337) was placed under suspension w.e.f. 16.6.2011 i.e. his date of arrest vide this office order No. 1892-1914/HAP-DCP/RB, dated 22.6.2011 read with corrigendum issued vide No. 12-35/HAP-DCP/RB, dated 2.1.2012. SI(Exe) Vijay Kumar No. D/3276 was deputed to attend the office of SP/Rohtak and collect copy of FIR along with present position/status of the case. SI Vijay Kumar in turn visited the office of SP/Rohtak on 15.9.2011 and collected memo No. 40001 dated 15.9.2011 according to which Constable Maneesh Kumar, No. 380/RB was also found arrested in case FIR No. 173 dated 15.5.2011 u/s 392 IPC and 25/54/59 Arms Act, PS Sadar Rohtak on 19.6.2011. Further, one motor cycle had also been recovered from Constable Maneesh Kumar, No. 380/RB.

Accordingly, necessary orders of deemed to be under suspension w.e.f. 19.6.2011 i.e. date of arrest in case FIR No. 173 dated 15.5.2011 u/s 392 IPC and 25/54/59 Arms Act, PS Sadar Rohtak were also issued vide No. 2869- 90/HAP-DCP/RB, dated 21.9.2011. Constable Maneesh Kumar, No. 380/RB (PIS No. 28106337) was enlisted in Delhi Police as Constable on 11.1.2010 and has even not completed his probation period. The alarming facts of the case are that the Constable has been involved in two heinous cases of robbery within a span of less than one month and is running in judicial custody in both the cases.

The contents of both the FIR of the criminal cases shows that he is desperate having criminal bent of mind. The act of heinous crime of the accused Constable is extremely irresponsible, most abhorrent and serious in nature and requires to be dealt with a heavy hand. If such type of policeman, who is charged with a sacred responsibility of upholding the rule of law, himself indulges in such acts of heinous crime and lawlessness, the faith of the common man in Govt's authority is shattered. Such acts of misdemenour produce highly deleterious impact on the organization and directly erodes the very basis of police functioning and public trust. Without people's trust, the police as service would rather become irrelevant, its reputation and image so assiduously built on sustained and good team work suffers irreparable damage when an individual member of disciplined force indulges in such an abhorable act.

The involvement of police Constable in heinous crime like robbery in the beginning of his service career shows his desperate character and his continuation in a disciplined force is totally against public interest. The police are the protector of the citizen's rights and indulgence of a police Constable in crime of such desperate nature would destroy the faith of the people in the system. The involvement of the accused Constable in

such criminal activities is not only undesirable but also amounts to serious misconduct, indiscipline and unbecoming of a Govt. servant. The said act has rendered him unfit to be in the police force and his continuation in service would be highly prejudicial to the security of the citizens. If stern and drastic action is not taken against this Constable who is still on probation period with such a criminal bent of mind at once, it will be a disservice to the department in particular and the society, in general.

Taking a holistic view on the whole issue and the gravity of the misconduct whereby he has taken the whole department for a ride and seriously affected the credibility of Delhi Police, the department cannot keep a person with such criminal instinct as its member. Hence, it is necessary to terminate the service of this Constable. Accordingly, I, H.M.Meena, Deputy Commissioner of Police, Rashtrapati Bhawan, New Delhi hereby order that the services of Constable (Exe) Maneesh Kumar, No. 380/RB are terminated with immediate effect from Delhi Police under the provisions of Sub Rule (1) of Rule 5 of CCS (Temporary Service) Rules, 1965. His suspension period from 16.6.2011 to the date of issue this order is hereby decided as period not spent on duty and he will not draw anything else except what he had already drawn in the shape of subsistence allowance. He shall be entitled to claim a sum equivalent to the amount of his pay plus allowance for a period of one month at the same rates at which he was drawing."

8. Such an order, which stigmatizes the petitioner could not have been passed without holding an enquiry under the relevant rules, in which he would have had the opportunity to defend himself.

9. On this short ground, in our view, the impugned order dated

03.01.2012 terminating the petitioner's service cannot be sustained and is accordingly set aside. Consequently, the order dated 17.08.2012 as well as the impugned order of the Tribunal are set aside.

10. The matter is remanded back to the respondents, who are at liberty to take appropriate action against the petitioner by following the due procedure prescribed under the Delhi Police Act and the Rules framed thereunder. The petitioner's period of suspension and all other issues relating to arrears of salary and allowances shall be decided by the respondents in accordance with law.

11. We make it clear that we have not examined the merits of the allegations against the petitioner. Since the charges appear to be of a rather serious nature, we expect the respondents to closely examine the same. In view of the nature of the charges and the fact that a stolen vehicle was stated to have been recovered from the petitioner we direct that the petitioner shall be treated to be on deemed suspension henceforth till a final decision is taken in the matter.

12. The petition stands disposed of in the above terms. The parties are left to bear their respective costs.

VIPIN SANGHI, J.

S. RAVINDRA BHAT, J

SEPTEMBER 16, 2014 sl