Ct Mukesh Kumar Yadav vs Gnct Of Delhi And Ors. on 20 September, 2017

$~3.
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Date of Decision: 20.09.2017

% W.P.(C) 6005/2017 and C.M. No.24898/2017

CT MUKESH KUMAR YADAV ….. Petitioner
Through: Ms. Jyoti Singh, Senior Advocate
along with Mr. Sourabh Ahuja
Ms.Tinu Bajwa, Advocates.

versus

GNCT OF DELHI AND ORS ….. Respondents
Through: Mr. Satyakam, ASC along with ASI
Tarun ASI Balwinder Singh, Crime
Branch, for the respondent/ GNCTD.

CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MS. JUSTICE REKHA PALLI

VIPIN SANGHI, J. (ORAL)

1. The petitioner has preferred the present writ petition to assail the
order dated 31.05.2016 passed by the Central Administrative Tribunal
(CAT/ Tribunal) in O.A. No.3548/2015. The Tribunal has dismissed the
said OA preferred by the petitioner. The petitioner had assailed the order
dated 05.09.2012 passed by the respondents dismissing him from service by
resort to clause (b) of the 2nd proviso to Article 311 (2) of the Constitution of
India, as well as the appellate order dated 26.08.2015, and the order dated
08.09.2015 directing the petitioner to vacate the government

W.P.(C) 6005/2017 Page 1 of 44
accommodation. The petitioner sought a direction to the respondents to
reinstate him back in service from the date of his dismissal with all
consequential benefits and to treat his suspension period between
08.08.2012 to 05.09.2012 as spent on duty.

2. The petitioner was serving as a constable in the Delhi Police. On
07.06.2012, the petitioner was absent from duty purportedly on account of
medical rest. The petitioner and one other constable, namely, Ajeet Singh,
while they were posted in Special Unit, Crime Branch were arrested along
with two civilians, namely, Harender Yadav of Distt. Muzaffar Nagar, U.P.
and Baldev Singh of Distt. Bharat Pur (Rajasthan) by U.P. police in the
night of 7/8.08.2012 for kidnapping for ransom, forgery and impersonation
and also under the Arms Act. Three criminal cases were registered against
them. It was alleged against the accused – including the petitioner, that they
had kidnapped one Sushil Bansal, Executive Engineer, Jal Board from his
residence for ransom, for which FIR No.692/2012 u/s 364A IPC was
registered at PS Kotwali, Bijnour. During personal search of the petitioner,
one identity card of Delhi Police and one fake identity card of CBI
No.28882452 having his photograph and identity as Rajender Kumar, SI,
CBI and four bank ATM cards, two vehicles registration certificates and two
driving licenses, were seized from him. The petitioner was placed under
suspension on 08.08.2012.

3. A fact finding inquiry headed by Sh. M.C. Katoch, ACP/Crime
Branch was ordered by the Delhi Police. The said ACP/ Crime Branch went
to Bijnour to conduct the inquiry. Post his inquiry, Mr. Katoch made his
report and opined that it was not practicable to hold departmental inquiry

W.P.(C) 6005/2017 Page 2 of 44
against the petitioner, as no one came forward to depose against him and the
other co-accused for fear. He also observed that retention of a criminal like
the petitioner in Delhi Police would be unjustifiable. Acting on the said
report, the Disciplinary Authority i.e. the Deputy Commissioner of Police
(Crime and Railways) vide the impugned order dated 06.09.2012 dismissed
the petitioner, as well as the co-accused Ajeet Singh, from service of Delhi
Police without holding an inquiry and by resort to clause (b) of the 2nd
proviso to Article 311 (2) of the Constitution of India with immediate effect.
The period of suspension between 08.08.2012 and 06.09.2012 was directed
to be treated as period not spent on duty for all intents and purposes. The
petitioner and the co-accused Ajeet Singh – who was also similarly
dismissed, preferred departmental appeals before the appellate authority,
namely, the Additional Commissioner of Police. By the impugned order
dated 26.08.2015, the same was also dismissed. Consequently, the
petitioner preferred the aforesaid O.A.

4. The Tribunal, as aforesaid, did not find merit in the petitioner’s O.A.
and dismissed the same. In the course of its decision, the Tribunal examined
a host of decisions of the Supreme Court. The relevant discussion found in
the impugned order reads as follows:

“11. We have considered the arguments put forth by the
learned counsel for the parties and have also perused the
pleadings and the documents annexed thereto. The Hon’ble
S.C. in a catena of judgment has laid down essential conditions
for dispensing with the holding of departmental enquiry. The
names of the cases and the principles laid down by the Hon’ble
Apex Court are mentioned below:-

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(i) Satyavir Singh Others vs. UOI Others [1985(4)SCC
252]

(ii) Chief Security Officer Others Vs. Singasan Rabi Das
[1991 (1) SCC 729]

(iii) Jaswant Singh vs. State of Punjab Others [1991(1) SCC
362]

(iv) UOI Others Vs. R.Reddappa Another [1993 (4) SCC
269]

(v) Kuldip Singh Vs. State of Punjab Others [1996 (10) SCC
659]

(vi) Sudesh Kumar Vs. State of Haryana Others [2005 (11)
SCC 525]

(vii) Ikrammuddin Ahmed Borar Vs. Superintendent of Police.
Darrong and other [ AIR 1988 SC 2245]

(viii) Onkar Lal Bajaj Others Vs. UOI Others [(2003) 2
SCC 673]

(ix) Ajit Kumar Nag vs. General Manager (PJ), IOC Ltd.
Haldia other [ (2005) 7 SCC 764]

(x) Chandigarh Administration, UT Chandigarh vs. Ajay
Manchanda [1996 (3) SCC 753]

(xi) Ram Chander vs. UOI Others (AIR 1986 SC 1173]

(xii) Sahadeo Singh Other Vs. UOI Others [(2003) 9 SCC
75]

Essential conditions for dispensing with the holding of
Departmental Enquiry laid down by the Supreme Court

1. Reasons for dispensing with the regular departmental
enquiry must be established by holding that it is not reasonably
practicable to do so and reasons for this must be recorded in
writing.

W.P.(C) 6005/2017 Page 4 of 44

2. Disciplinary enquiry should not be dispensed with lightly
or arbitrarily or out of ulterior motive

3. Disciplinary enquiry should not be dispensed with to
avoid holding of an enquiry or because the department’s case
against the government servant is weak and must fall.

4. The reasons for dispensing with enquiry need not contain
detailed particulars, but the reason must not be vague or just a
repletion of the language of clause (b) of second proviso.

5. The authority is obliged to show that his satisfaction is
based on objective facts. The decision to dispense with the
departmental enquiry cannot be rested solely on ipse dixit of
the concerned authority.

6. The subjective satisfaction must be fortified by
independent material to justify dispensing with the enquiry
envisaged by Article 311(2) (b); recourse to Article 311 (2) (b)
can be taken even after enquiry has been started, the gravity of
offence is not a ground for dispensing with regular
departmental enquiry and involving Article 311 (2) (b)

7. Courts can interfere with such orders on grounds well
established in law for the exercise of power of judicial review in
matters where administrative discretion is exercised;
notwithstanding clause (3) of Article 311.

8. In examining the relevance of reasons, the court will
consider the situation, which led the disciplinary authority to
conclude that it was not reasonably practicable to hold enquiry.

9. Court should examine whether the reasons are relevant
and in order to do that the court must put itself in place of
disciplinary authority and consider what is the prevailing
situation a reasonable person acting reasonably would have
done. When two view are trouble, the court will decline to
interfere; when the satisfaction of the concerned authority is
questioned in the court of law; it is incumbent on those who
support the order to show that the satisfaction is based on

W.P.(C) 6005/2017 Page 5 of 44
certain objective facts and is not the outcome of which or
caprice of the concerned officers. Subjective satisfaction
recorded in the order has to be fortified by an independent
material to justify the dispensing with the enquiry envisaged by
Article 311(2) of the Constitution; and that the appellate
authority must not only give a hearing to the Government
servant concerned but also pass a reasoned order dealing with
the contentions raised by the concerned officer in the appeal.

12. The Hon’ble Supreme Court in the case of UOI and Anr.
Vs. Tulsiram Patel [1985 (2 )SLR 576] on the issue of removal
under Article 311(2)(b) of the Constitution has held as under:-

” having examined the proviso to Article 311(2)
and principles of natural justice, it was ruled that
dispensing of enquiry takes away the right to make
representation consideration of fair play and
violation of natural justice requiring an
opportunity of hearing to be given before major
penalty is imposed and exercise of power under
Article 311(2)(b) is not legally permissible under
given set of circumstances.”

5. The Tribunal then proceeded to examine the merit of the petitioner’s
case in the light of the above stated principles. The relevant discussion in
the impugned order reads as follows:

“13. In view of the above principles laid down in Apex court
in the above Cases, let us now examine as to whether the
competent authority was justified to invoke its powers under
311(2)(b) of the Constitution to dismiss the applicant.

14. The fact that the applicant and other co-accused were
arrested in the Distt. Of Bijnour, UP and kept under judicial
custody cannot be denied. Shri Katoch ACP/Crime Branch who
had gone to Bijnour for conducting a fact finding enquiry on
behalf of the Delhi Police, has reported that for fear of the
applicant and other criminals no one came forward to depose

W.P.(C) 6005/2017 Page 6 of 44
against them. The applicant was reported to be on medical rest
since 07.06.2012 but his arrest by the UP Police in night of 7/8
August,2012 in Bijnour District raises enormous doubt his
conduct. The recovery of a false Identity Card having the
photograph of the applicant but containing the name of
Rajender Kumar SI, CBI would cause genuine shadow of doubt
with regard to the conduct of the applicant. His acquittal by the
Session Judge from the charge cannot be construed as an
honorable acquittal since crucial prosecution witnesses had
turned hostile in the court. The fact finding report of Shri
M.C.Katoch ACP/Crime Branch indicated that for sheer fear
no one came forward to depose against the applicant. This itself
would suffice to describe the gravity and enormity of the then
prevailing situation. We are, therefore in agreement with the
assessment of the DA that conduct of department enquiry under
the prevailing situation would not have possible. When the
crucial witnesses turned hostile in the criminal court for
understandable reasons, the same conduct they would have
exhibited even in the departmental enquiry proceedings.
Needless to say that when the Police constables who are in-
charge of prevention and control of crimes themselves indulge
into such criminal acts, the faith of general public in police
would definitely get shaken. It is settled law that unlike in the
criminal court where the charge against the accused is to be
proved beyond and reasonable doubt, whereas in case the
departmental proceedings, preponderance of evidence is
sufficient to take action against the delinquent official. In the
instant case, as described in forgoing paras, preponderance of
evidence against the applicant is there in abundance. The DA
has convincingly described the extra ordinary situation in
which the conduct of DE proceedings could not had been
possible and have rightly decided to invoke its power under
311(2)(b) of the Constitution of India for dismissing the
applicant from the service of Delhi Police. The said resolute
action is fully justified. Only such actions can deter the police
officials from indulging into criminal acts and restore faith of
the common public in the law enforcing agency. We would not
like to discuss the case of Const. Ashok Kumar(supra) as the

W.P.(C) 6005/2017 Page 7 of 44
judgment of Hon’ble Delhi High Court in that case is not a
judgment in rem”.

6. The submission of learned senior counsel for the petitioner is that
invocation of clause (b) of 2nd proviso to Article 311 (2) of the Constitution
of India in the facts of the present case was completely unjustified. Ms.
Singh submits that the valuable rights of the petitioner to defend himself in
departmental proceedings has been taken away very lightly, and without any
basis or material being available on the record-which could have formed the
basis of the satisfaction of the Disciplinary Authority that it was not
reasonably practicable to hold a disciplinary proceedings against the
petitioner, he has been summarily dismissed from service.

7. Learned counsel submits that the petitioner and the other accused
have already been acquitted by the trial Court, since the prosecution
witnesses including the victim did not support the case of the prosecution.
There was no basis for the ACP (Crime) M.C. Katoch to claim that no one
would come forward to depose against the petitioner and the other accused,
for fear. She submits that Sh. Katoch did not state in his report that he tried
to contact any witnesses to record their statements, or that they refused to
give their statements out of fear of retribution by the petitioner and the other
accused.

8. Ms. Singh has sought to place reliance on several decisions in support
of her aforesaid plea. She, firstly, refers to Tarsem Singh v. State of Punjab
Ors., (2008) 2 SCC (LS) 140. In this case, the appellant – a police
constable, was charge sheeted for commission of misconduct, namely,
outraging the modesty of a woman by entering her house along with his

W.P.(C) 6005/2017 Page 8 of 44
accomplices; having carnal intercourse against the law of nature with a
migrant labourer, and; issuing threats of dire consequences to anyone
deposing against him in an inquiry/ investigation. The competent authority
recorded his satisfaction that the appellant could win over the aggrieved
people as well as the witnesses from giving evidence, by threatening and
other means and, on that premise, held that formal departmental proceedings
need not be initiated. He took into consideration the preliminary inquiry
report prepared by the Deputy Superintendant of Police and, on that basis,
concluded that there was no need to hold a regular departmental inquiry
against the appellant. Consequently, by resort to clause (b) of the 2nd
proviso to Article 311(2) of the Constitution of India, the appellant was
dismissed from service. His appeal was also dismissed by the appellate
authority, taking note of the fact that a FIR u/s 377/34 IPC had been
registered against him. He was of the view that the appellant was guilty of
the gravest acts of misconduct, proving complete unfitness for police service
and that the punishment awarded to the appellant was commensurate with
his misconduct. The appellant’s representation made to the Inspector
General was also rejected. Having failed in his challenge at lower rungs,
the appellant approached the Supreme Court.

9. The Supreme Court allowed the appeal preferred by the appellant.
While doing so, the Supreme Court, inter alia, observed:

“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

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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”. (emphasis
supplied)

10. Ms. Singh has also placed reliance on a decision of a learned Single
Judge of this Court in Rajinder Singh Negi v. Municipal Corporation of
Delhi Anr., (2006) 128 DLT 133. In this case, the petitioner was arrested

W.P.(C) 6005/2017 Page 10 of 44
on 11.03.2005 for having committed offences u/s 6 and 13 of the Prevention
of Corruption Act, 1988. Soon thereafter, he was dismissed from service on
14.03.2005 without holding an inquiry against him. Defending their action,
the MCD contended that since the petitioner had been caught red handed
accepting a bribe, the MCD was of the opinion that larger public interest
demanded dismissal of the petitioner to convey to the people at large that
corrupt officers and employees would have no place in the MCD. The
learned Single Judge held that the normal rule is that every executive action
which is adverse, or results in evil consequences for a person, should be
preceded by compliance of the principles of natural justice and a fair
procedure. An exception to this rule is carved out to cater to exceptional
cases i.e. where the nature of the charge is so conclusive as to justify not
holding of an inquiry in compliance with principles of natural justice, or
where public interest warrants that an inquiry would not be either
practicable, or would lead to unfair results. The learned Single Judge placed
reliance on the decision of the Supreme Court in Union of India v. Tulsi
Ram Patel, (1985) 3 SCC 398. In Tulsi Ram Patel (supra), the Supreme
Court interpreted Article 311 of the Constitution of India. The extracted
portion from Tulsi Ram Patel (supra) reads as follows:

“7. ……

“The condition precedent for the application of Clause (b) is
the satisfaction of the disciplinary authority that ‘it is not
reasonably practicable to hold’ the inquiry contemplated by
Clause (2) of Article 311. What is pertinent to note is that the
words used are ‘not reasonably practicable’ and not
‘impracticable’. According to the Oxford English Dictionary
‘practicable’ means ‘Capable of being put into practice,

W.P.(C) 6005/2017 Page 11 of 44
carried out in action, effected, accomplished, or done; feasible.
‘Webster’ Third New International Dictionary defines the word
‘practicable’ inter alia as meaning ‘possible to practise or
perform: capable of being put into practice, done or
accomplished: feasible’. Further, the words used are not ‘not
practicable’ but ‘not reasonably practicable’. ‘Webster’ Third
New International Dictionary defines the word ‘reasonably’ as
‘in a reasonable manner: to a fairly sufficient extent’. Thus,
whether it was practicable to hold the inquiry or not must be
judged in the context of whether it was reasonably practicable
to do so. It is not a total or absolute impracticability which is
required by Clause (b). What is requisite is that the holding of
the inquiry is not practicable in the opinion of a reasonable
man taking a reasonable view of the prevailing situation. It is
not possible to enumerate the cases in which it would not be
reasonably practicable to hold the inquiry, but some instances
by way of illustration may, however, be given. It would note
reasonably practicable to hold an inquiry where the
Government servant, particularly through or together with his
associates, so terrorizes, threatens or intimidates witnesses
who are going to give evidence against him with fear of
reprisal as to prevent them from doing so or where the
Government servant by himself or together with or through
others threatens, intimidates and terrorizes the officer who is
the disciplinary authority or members of his family so that he
is afraid to hold the inquiry or direct it to be held. It would
also not be reasonably practicable to hold the inquiry where an
atmosphere of violence or of general indiscipline and
insubordination prevails, and it is immaterial whether the
concerned Government servant is or is not a party to bringing
about such an atmosphere. In this connection, we must bear in
mind that numbers coerce and terrify while an individual may
not. 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 makes the decision
of the disciplinary authority on this question final. A

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disciplinary authority is not expected to dispense with a
disciplinary inquiry lightly or arbitrarily or out of ulterior
motives or merely in order to avoid the holding of an inquiry or
because the Department’s case against the Government servant
is weak and must fail. The finality given to the decision of the
disciplinary authority by Article 311(3) is not binding upon the
Court so far as its power of judicial review is concerned and in
such a case the Court will strike down the order dispensing
with the inquiry as also the order imposing penalty.” (emphasis
supplied)

11. Jaswant Singh v. State of Punjab, (1991) 1 SCC 362 was also
referred to by the learned Single Judge, wherein it was held that a decision
to dispense with domestic inquiry cannot be rested solely on the ipse dixit of
the competent authority. If the satisfaction of impracticability of holding an
inquiry is questioned in Court of law, it is incumbent on the authority
forming the opinion to show that the satisfaction is based on certain
objective facts, and is not the outcome of the whim or caprice of an official.
For the same proposition, reliance was also placed on Chief Security Officer
v. Singasan Rabi Das, (1991) 1 SCC 729.

12. In Indian Railway Construction Co. Ltd. v. Ajay Kumar, (2003) 4
SCC 579 relied upon by the learned Single Judge, the obligation to follow
an objective standard for dispensing with the requirement of holding an
inquiry was emphasized. The learned Single Judge then proceeded to apply
the rule laid down in Tulsi Ram Patel (supra) and the subsequent decisions,
and to examine whether the reasons adduced for not holding an inquiry were
justified in the facts of the case. In the course of his reasoning, the learned
Single Judge observed:

W.P.(C) 6005/2017 Page 13 of 44

“14. The impugned order does not disclose as to why
witnesses would not come forward; whether such opinion is
based on an objective and fair Assessment or the ipse dixit of
the authority issuing the order. The intention in not holding the
inquiry is not that public interest, about the sensitive nature of
the subject is involved, or that disclosure of evidence would be
violative of public interest, but that holding of departmental
enquiry would involve a long drawn procedure. The opinion
as to why witnesses would not come forward has not been
shown as based on any, much less relevant factors. The
reference to giving strong signals, though laudable, is hardly a
supportive reason to dispense with inquiry, which can
otherwise be conveniently held. No material was disclosed to
the court as to whether any witness had apprehended some
threat, or perceived injury if he deposed in a normal
proceeding. The order, not to hold enquiry, essentially means
that it would not be convenient to the authority to do so. Such a
view is fraught with danger. The procedure prescribed is a
matter of public policy, and the exception to be resorted to
sparingly, in exceptional situations, under circumstances which
have been clearly prescribed”. (emphasis supplied)

13. Ms. Singh has also relied upon the decision of the Division Bench of
this Court in Ex-Constable Mahabir Singh Anr. v. Union of India
Ors., 2009 SCC Online Del 2712 (W.P.(C.) No.7068/2000 decided on
02.09.2009). This case too related to two constables of Delhi Police. It was
alleged that in the evening of 25.11.1994, they had raped one lady and also
assaulted her husband. The said information was passed on to the
Disciplinary Authority by one MLA. The Disciplinary Authority visited the
site where the offence was alleged to have been committed. He was
accompanied by the SHO PS Shalimar Bagh, Insp. P.T. Rana as well as the
Superintendant of Police Badli, Inspector Ravi Shankar apart from the MLA
and the complainant – the husband of the prosecutrix. When the party

W.P.(C) 6005/2017 Page 14 of 44
reached the spot at about 10:15 p.m., i.e. one hour after the MLA had passed
on the information to the Disciplinary Authority, the prosecutrix was heard
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 the other person had escaped in the dark. Subsequently,
the other person was caught and identified. The prosecutrix claimed that the
petitioners assaulted her husband, 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 six hours. On the basis of her statement, a FIR was
lodged and the prosecutrix and the petitioners were sent for medical
examination. 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 2nd proviso to Article
311(2) of the Constitution of India, concluding that it was not reasonably
practicable to hold a departmental inquiry against the petitioners and
dismissed them from service.

14. The Division Bench took notice of the fact that the petitioners had
been arrested on the date of the alleged incident and granted bail on
17.01.2015. Thus, while passing the impugned order dispensing with the
holding of a departmental inquiry, the petitioners were in judicial custody.
The Division Bench also took note of the fact that in the criminal trial, the
prosecutrix did not implicate the petitioners. Consequently, the learned ASJ
acquitted the petitioners. The Division Bench also referred to the judgment
of the learned ASJ from which it appeared that even at the stage of recording

W.P.(C) 6005/2017 Page 15 of 44
of her statement u/s 164 Cr PC, the prosecutrix completely exonerated the
petitioners. The Division Bench, inter alia, observed:

“10. … … 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”.

15. The Division Bench observed that for the purpose of a disciplinary
inquiry:

“11. … … 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

W.P.(C) 6005/2017 Page 16 of 44
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.”

16. The Division Bench then considered the decision in Tulsi Ram Patel
(supra) and observed:

“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

W.P.(C) 6005/2017 Page 17 of 44
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.” (emphasis supplied)

17. Consequently, the order passed by the Disciplinary Authority was
quashed; the petitioners were reinstated in service (for a limited purpose of
holding an inquiry), and; the Disciplinary Authority was directed to take
steps to conduct a departmental inquiry against the petitioners in respect of
the allegations made.

18. Ms. Singh has also relied upon the decision of a Division Bench of
this Court in Govt. of NCT of Delhi Ors. v. Ex. Constable Ashok Kumar
Anr., W.P.(C.) No. 10866/2009 decided on 16.09.2011. In this case, the
Tribunal had allowed the O.A. preferred by the respondent, thereby setting
aside his dismissal from service by resort to clause (b) of 2nd proviso to
Article 311 (2) of the Constitution of India. While the respondent was
serving as a constable in Delhi Police, one FIR No.359/2006 was registered

W.P.(C) 6005/2017 Page 18 of 44
at P.S. Timarpur u/s 186/353/ 307/34 IPC read with Section 27 of the Arms
Act in relation to an encounter involving two persons, namely, Najakat and
Zulfikar, who were claimed to have been injured and subsequently died in
retaliatory fire by the police. Thereafter, a complaint was received alleging
that Delhi Police personnel-including the respondent, had taken the said
persons to their vehicle and on the next day morning it came to notice that
they had been killed in an encounter. On the basis of the said complaint,
FIR No.383/2006 u/s 302/34 IPC was registered at PS Timarpur, wherein
the respondent was also an accused. The respondent was dismissed from
service without holding an inquiry under Article 311(2)(b) of the
Constitution on 09.08.2006, holding that it was not reasonably practicable
to conduct a departmental inquiry as there was a reasonable belief that the
witnesses may not come forward to depose against them.

19. As aforesaid, the Tribunal quashed the said order of the Disciplinary
Authority which had also been upheld by the appellate authority. The
Division Bench while dismissing the writ petition preferred by the State,
held that there was no document or material shown on the basis of which the
inference could be drawn that there was a reasonable apprehension that the
witnesses may not come forward to depose against the charged officers. No
such material had been placed either before the Tribunal, or before this
Court in support of the subjective satisfaction arrived at by the Disciplinary
Authority with regard to the reasonable impracticability of holding a regular
departmental inquiry, on the ground that the witnesses may not come
forward to depose against the charged officers. The Division Bench
observed that in the criminal case the witnesses had deposed against the

W.P.(C) 6005/2017 Page 19 of 44
respondents, which had ultimately culminated in their conviction by the
Sessions Court, and the appeals of the respondents in the matter were still
pending adjudication. The Division Bench also observed that the plea of the
petitioner that it is common experience that due to terrorizing and
intimidation, the witnesses and the complainant do not come forward to
depose against the delinquents in investigation/ inquiry, and that such
intimidation are common tactics adopted by unscrupulous police personnel,
was based on assumptions and surmises. The Division Bench observed that
in the same case, the eye witnesses and the complainant had deposed against
the respondents in the preliminary inquiry conducted by the D.M.
Ghaziabad as well as by the Crime Branch, Delhi. Consequently, the
Division Bench dismissed the writ petition preferred by the State.

20. Premised on the aforesaid decisions, the submission of Ms. Singh is
that the impugned orders passed by the respondents and by the Tribunal are
unsustainable.

21. On the other hand, Mr. Satyakam, learned counsel for the respondent-
GNCTD has submitted that the impugned order has considered practically
all the relevant decisions rendered by the Supreme Court on the subject and
after examining the same, the conclusions drawn from the said decisions
have also been set out in the impugned order itself. The said principles have
been applied in the facts of the case. Learned counsel submits that this
Court should, therefore, not exercise its discretionary jurisdiction while
conducting judicial review of the order of the Tribunal, which appears to be
reasonable and correct.

W.P.(C) 6005/2017 Page 20 of 44

22. Learned counsel for the respondent has also produced the record
before us. Learned counsel submits that the petitioner and the other
constable Ajeet Singh were both caught red handed while committing the
crime of kidnapping for ransom of Sh. Sushil Bansal, Executive Engineer
from his residence. Consequently, the aforesaid FIR was registered. They
were also found to be in possession of their ID cards, apart from one fake
identity card of CBI having the photograph of the petitioner and fake
identity as Rajender Kumar, SI/ CBI.

23. Mr. Satyakam submits that the petitioner and constable Ajeet Singh
appear to be desperate criminals. In this regard, he has referred to the order
passed by the Disciplinary Authority on 05.09.2005, which records the facts
on the basis of which the said order was passed. The same, inter alia, reads:

“The two constables namely Constable Ajeet Singh, No.1645/
Crime (PIS No.29990041) and Constable Mukesh Yadav,
No.730/ Crime (PIS No.28900968) posted in Special unite,
Crime Branch (here-in-after called the accused Constables)
alongwith two civilians namely Harender Yadav, r/o Distt.
Muzaffer Nagar, UP and Baldev Singh, r/o Distt Bharat Pur,
Rajasthan were arrested by U.P. police on the intervening
night of 7/8 August, 2012 in connection with the kidnapping
for ransom case, forgery, impersonation and Arms Act. Three
criminal cases vide FIR Nos.692/12 u/s 364-A IPC PS
Kotwali, Bijnour, UP, 741/2012 u/s 171/420/467/468/471 IPC
PS Milak, Distt Rampur, UP and 742/2012 u/s 25 Arms Act,
PS Milak, Distt Rampur, UP were registered against them.
They were caught red handed by UP Police. It was found that
Constable Ajeet Singh was found absent vide D.D. No.4 dated
07.08.2012, Spl. Unit/ Crime Branch and other accused
Constable Mukesh Yadav was also found absent on the
pretext of medical rest since 7.06.2012 from their duty. From
the perusal of FIR, it revealed that they along with their two

W.P.(C) 6005/2017 Page 21 of 44
known persons kidnapped Shri Sushil Bansal, Executive
Engineer, Jal Board, Bijnour, U.P. aged 57/58 years from his
residence for the purpose of seeking ransom. A case FIR
No.692/12 u/s 364A IPC, PS Kotwali, Bijnour has also been
registered into the matter. On personal search of Constable
Ajeet Singh, one fake identity card, bearing his photograph and
identity as Amit Rana, SI, CBI No.28961331 was seized. His
original identity card of Delhi Police, cash Rs.860/-, two
mobile phones make Carbon and Nokia were also seized.
During personal search of Constable Mukesh Yadav, one
identity card of Delhi Police, one fake identity card of CBI
No.28882452 having his photograph and identity as Rajender
Kumar, SI, CBI, cash Rs.8340/-, four bank ATM cards, two
vehicle registration certificate, two driving licenses were
seized. During search of seized car, one set of number plates
having No. HR 51 AC 6188 was found. One file cover having
written Central Bureau of Investigation, in which letter
addressed to SSP Bijnour, UP was found, wherein action was
sought against Shri Sushil Bansal. One official diary of CBI,
one official diary of Delhi Police was also recovered from
seized car along with one set of handcuffs. One illicit firearm
(9 mm pistol) with 16 live cartridges was also recovered from
the possession of Constable Ajeet Singh.

Both accused Constables had hatched a well planned
conspiracy with their associates to extort money from a Govt.
Official for which they even prepared forged documents and
impersonated themselves as CBI officials. To carry out their
nefarious design, they also produced an illegal weapon. This
shows a deep rooted criminal bent of their minds. In order to
execute their plans, accused Constable Ajeet Singh absented
himself from his official duty and accused Constable Mukesh
Yadav purposely proceeded on medical leave. They had even
future plans to extort money from other Govt. officials also as
revealed in the disclosure of accused. Such indulgence in
criminal activities by police officials not only brings bad name
to the department but also distort the image of police in the
entire society. It also shakes the faith of peace loving citizens
in law enforcing agency”. (emphasis supplied)

W.P.(C) 6005/2017 Page 22 of 44

24. Mr. Satyakam submits that looking to the very serious nature of the
offence in which the petitioner and constable Ajeet Singh were involved,
namely, kidnapping for ransom – which reflects on the desperate and daring
mindset of the two constables; the fact that they were caught red handed
with two other civilians while they were moving with the victim Sushil
Bansal in a vehicle, and; the fact that they were also possessed with fake
identity cards of CBI and other documents of CBI, itself shows that the
conclusion drawn by the respondents with regard to impracticability of
holding a fair disciplinary inquiry – since the witnesses would not depose in
any such departmental enquiry for fear of their safety and retribution, was
based on material. Mr. Satyakam submits that the assessment made by the
Disciplinary Authority on the basis of the report of Sh. M.C. Katoch, ACP/
Crime Branch made after his visit to Bijnour, that considering the desperate
criminal act of the petitioner and Ajeet Singh, it was not likely that the
witnesses would depose against them in a disciplinary inquiry was
completely justified. He further submits that the fact that the petitioner and
Ajeet Singh have been acquitted in the said case on account of the
independent witnesses – including the complainant turning hostile, only
shows that the conclusion drawn by the Disciplinary Authority on the basis
of the report of Sh. M.C. Katoch was entirely justified.

25. Apart from distinguishing the decisions relied upon by the petitioner,
learned counsel for the respondent has also placed reliance on the following
two decisions of this Court.

26. In Parveen Kumar v. Commissioner of Police Ors., 2007 (98) DRJ
433 (DB), this Court upheld the order of the Tribunal dismissing the O.A.

W.P.(C) 6005/2017 Page 23 of 44

preferred by the petitioner to assail his dismissal from service by resort to
clause (b) of the 2nd proviso to Article 311 (2) of the Constitution. The
petitioner Parveen Kumar had joined Delhi Police as a constable in the year
1998. On 05.09.2003, he was arrested for his alleged involvement in several
criminal cases. FIRs were registered in various police stations against him.
He was booked under various provisions of IPC and the Arms Act. In one
of the cases filed u/s 395 IPC vide FIR 171/2003 at PS Daurala, UP, he was
released by the CJM, Meerut on 15.03.2004 due to non-identification by the
witnesses in TIP, and also on account of there being no evidence against
him.

27. The petitioner had assailed his dismissal from service on the plea that
the criminal cases were still pending against him. Charges had been framed
against him in those cases, which were fixed for prosecution evidence. He
was dismissed from service on 20.09.2003 on the ground of his involvement
with a gangster in a dacoity case, and also on account of pendency of
criminal cases against him.

28. The respondent had claimed that during the interrogation of notorious
gangster Vikrant @ Vicky, it came to be known that the petitioner was also
an accomplice and was identified with the gangster in a police raid against
the said gangster. The Disciplinary Authority also claimed to have learnt
about the petitioner’s involvement in a number of cases in Haryana and U.P.

– in respect whereof, cases were registered under various sections of IPC
and Arms Act against him. While passing the order of dismissal, the
Disciplinary Authority had, inter alia, observed:

W.P.(C) 6005/2017 Page 24 of 44

“During the entire process of departmental proceedings the
witnesses would be put under constant fear of threat to their
person and property from the delinquent Police officer”.

29. The Division Bench took note of Tulsi Ram Patel (supra). The
Division Bench also relied upon S.R. Bommai v. Union of India, (1994) 3
SCC 1. While observing that even though the Disciplinary Authority was
well within its right to dismiss the petitioner, the Division Bench observed
that the only question that remained to be answered was whether the said
decision was in accordance with the provisions of law, and whether grounds
to dispense with the inquiry were present. The Division Bench observed
that in S.R. Bommai (supra) the Supreme Court had:

” … … held that realms of judicial review are limited to the
decision-making process and not open to the merits of the
decision. The courts can look into the material on the basis of
which a particular decision has been reached however since the
decision arrived at is under exclusive domain of the decision
making authority which in turn is based on subjective
satisfaction of the authority, therefore, in view of lack of
judicially manageable standards to scrutinize the decision, the
courts refrain from transgressing into administrative domain of
decision making. This Court is in agreement with the aforesaid
observations”.

30. The Division Bench then proceeded to examine the merits of the case
in the light of Tulsi Ram Patel (supra) and S.R. Bommai (supra) and
observed:

“18. From the foregoing, it is apparent that the Disciplinary
Authority on the basis of the material on record, namely,
interrogation in the dacoity case revealing petitioner’s
involvement as also the factum of his facing five criminal
cases in which charges have been framed and also the

W.P.(C) 6005/2017 Page 25 of 44
attendant circumstances reached the conclusion that
petitioner was a desperate person having criminal
propensities. Further on account of his association with other
criminals and the discharge of the petitioner in one case due
to non identification by the witnesses and lack of availability
of other evidence, the prospect of witnesses shying away from
proceedings and not deposing due to fear of severe reprisal at
his hands would be a genuine apprehension and not a mere
possibility.

19. Further the petitioner, being a Constable of Delhi Police
having sanctimonious duty to protect the citizens and maintain
law and order, has in violation of his sworn obligation involved
himself in most heinous and reprehensible acts of lawlessness.
The Disciplinary Authority on the basis of the facts borne from
records and attending circumstances dispensed with the
enquiry and dismissed the petitioner from Force. The said
decision of the Disciplinary Authority is based on material
record and not on assumptions or conjectures. A police
Constable or an official who is found to have strayed from his
obligation and duty ought to be dealt with sternly in
accordance with law. The petitioner in present case is a
delinquent who has been involved in heinous act of crime and
has associations with people having criminal propensity. If the
law keeper becomes lawbreaker, quick and expedient action
ought to be taken, to maintain transparency, accountability and
above all to maintain public trust and faith in the Police. This is
an imperative requirement of a civilized society. The decision to
dispense with the enquiry and proceedings was taken having
regard to the gravity of offence and its possible and probable
fall-outs. To our mind, this is a fit case for invoking Article
311(2) (b) of the Constitution”. (emphasis supplied)

31. In Ex. Ct. Jasminder Singh v. Union of India Anr., 2009 (113)
DRJ 11 (DB), the petitioner was similarly dismissed from service by
invoking clause (b) of the 2nd proviso to Article 311 (2) of the Constitution
while dispensing with the departmental inquiry. The petitioner too was a

W.P.(C) 6005/2017 Page 26 of 44
police constable. The allegation against the petitioner was that there was a
gang of criminals consisting of one Sandeep, Jitender Rathi @ Kala, Sanjay,
Virender etc., which was involved in several heinous crimes including
murder, armed dacoity etc. Nine members of the gang had been caught by
the Crime Branch of North Distt. Their interrogation had revealed that the
petitioner was an associate of the gang. Specific instances of the
involvement of the petitioner with the members of the said gang – known as
Bhoori gang, were narrated in the order of dismissals. The petitioner had
not reported at the concerned police station about the involvement of gang
members in heinous offences. Instead, he had assisted the criminals. The
involvement of the petitioner had been revealed during the interrogation of
various persons, namely, members of the Bhoori gang. The competent
authority concluded that none of these criminals are going to depose against
the petitioner if a departmental inquiry is conducted against him. For this
reason, and other reasons recorded in the order, the holding of an inquiry
against the petitioner was dispensed with as it was not considered reasonably
practicable, and he was dismissed from service. The appeal preferred by the
petitioner before the appellate authority was also dismissed and his revision
before the Commissioner of Police was also rejected. The O.A. was
dismissed by the Tribunal leading to the filing of the writ petition before this
Court. Similar arguments were raised in this case, as the petitioner has
raised in the present case. It was argued that there was no material to show
that the petitioner was in a position to influence or terrorize the witnesses;
holding of the disciplinary inquiry was the rule, and dispensing with the
holding of the same is the exception. Sufficient reasons for dispensing with
the disciplinary inquiry have to exist, and should be recorded so as to

W.P.(C) 6005/2017 Page 27 of 44
conclude that it was not reasonably practicable to hold the inquiry in the
given facts and circumstance of the case. The petitioner placed reliance on
the following decisions in support of his submission:

a) Sahadeo Singh vs. Union of India, (2003) 9 SCC 75;

b) Delhi Administration Vs. Ex. Constable Inderjit, 2003 Vol. I
AD (Delhi) 32;

c) Tarsem Singh vs. State of Punjab Ors., 2006 (11) SCALE
104;

d) Chief Security Officer Ors. vs. Singasan Rabi Das, (1991) 1
SCC 729;

e) Jaswant Singh vs. State of Punjab Ors., 1991 (1) SCC 362;

f) Chandigarh Administration, Union Territory, Chandigarh
Ors. vs. Ajay Manchanda etc. JT 1996 (4) SC 113; and

g) Sudesh Kumar vs. State of Haryana Others, (2005) 11 SCC
525.

32. While rejecting the writ petition, the Division Bench, inter alia,
observed:

“10. … … In the judgments relied by the Petitioner,
complaints of bribery were made against the delinquent police
officials. Enquiry was dispensed with, on the ground that the
witnesses may not come forward to depose against the police
official during enquiry proceeding, either due to fear of the
uniformed force or on account of probable threats to be
extended by the delinquent police official. In these facts it was
held that since there was no material available before the
Disciplinary Authority regarding threats extended by the
delinquent police official, therefore, the orders passed in these
cases dispensing with the enquiry, by invoking Article 311(2)(b)
of the Constitution, were perverse and based on no material. In

W.P.(C) 6005/2017 Page 28 of 44
our view, the judgments relied upon by the learned counsel
for the Petitioner are of no help to the Petitioner, as the same
are in different facts.

11. In the present case, Petitioner was hobnobbing with the
criminals and was providing help to them. During
interrogation of the members of Bhoori Gang Petitioner’s name
surfaced as the person, who had been meeting them and was
providing them help. Not only this, Petitioner despite having
knowledge about their criminal activity did not take any step to
inform his superiors. He being a police official was under legal
and moral obligation to see that the persons carrying on
unlawful activities are brought to book and are punished in
accordance with law of the land. In spite of the fact that
Petitioner was having information regarding the involvement of
the Bhoori Gang in the murder of K.S. Rana, he did not bring
this fact to the notice of his superior officers. In fact, during the
personal hearing given by the Appellate Authority to the
Petitioner, he had admitted that he was having knowledge of
the accused persons involved in the murder of late Mr. K.S.
Rana and also about their plans to commit more murders. A
categorical reference in this regard has been made by the
Appellate Authority in his order. Perusal of appeal also shows
that the accused persons were known to the Petitioner and he
had been meeting them. This fact itself reflects on his conduct
and shows his association with the Bhoori gang thereby
lending support to the confessional statements made by the
accused persons in certain criminal cases. We have also
perused the memorandum of appeal filed by the Petitioner
before the Appellate Authority and we find that submissions
made therein clearly indicate that the Petitioner had been
hobnobbing with the criminals. Not only this, he was also
meeting with them off and on. In these facts it was not expected
from the members of the Bhoori gang to depose against the
Petitioner in enquiry. In view of the above discussion, we are
of the opinion that Disciplinary Authority has rightly
concluded that it was not reasonably practicable to hold a
departmental enquiry against the Petitioner and has rightly

W.P.(C) 6005/2017 Page 29 of 44
passed the order of dismissal, by invoking Article 311 (2) (b)
of the Constitution.” (emphasis supplied)

33. We have considered the rival submissions of learned counsels and
given due considerations to the decisions relied upon by them in support of
their contentions.

34. It is well settled that a constitutional right conferred upon a delinquent
employee cannot be dispensed with lightly or arbitrarily, or out of ulterior
motive, or merely in order to avoid the holding of an inquiry. This was so
held in Tarsem Singh (supra). The Constitution provides security of tenure
to the government servants so that they can discharge their functions and
duties without fear or favour. The constitutional protection granted by
Article 311 saves government servants from hire and fire and, as a matter of
rule, a government servant cannot be dismissed, removed or reduced in rank
except after an inquiry in which he has been informed of the charges against
him and given reasonable opportunity of being heard in respect of those
charges. However, the Constitution itself carves out an exception in the 2nd
proviso to Article 311(2), and enumerates situations wherein the holding of
an inquiry under sub Article (2) of Article 311 may be dispensed with. The
three situations wherein the holding of the inquiry may be dispensed with
are the following:

“(a) where a person is dismissed or removed or reduced in
rank on the ground of conduct which has led to his conviction
on a criminal charge; or

(b) where the authority empowered to dismiss or remove a
person or to reduce him in rank is satisfied that for some

W.P.(C) 6005/2017 Page 30 of 44
reason, to be recorded by that authority in writing, it is not
reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be,
is satisfied that in the interest of the security of the State it is
not expedient to hold such inquiry.” (emphasis supplied)

35. In the present case, we are concerned with clause (b) aforesaid, since
it is this clause which has been invoked by the respondent to dismiss the
petitioner from service. The disciplinary authority has while dismissing the
petitioner observed that he was satisfied, for the reasons contained in the
impugned order, that it is not reasonably practicable to hold an inquiry
against the petitioner. Sub Article (3) of Article 311 states that if a question
arises whether it is reasonably practicable to hold such an 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.
Thus, the decision of the competent authority on the issue: whether, or not, it
is reasonably practicable to hold an inquiry under clause (2) is his subjective
decision – based on objective criteria, and the same is final, meaning
thereby, there is no appeal from the said decision. However, the said
subjective satisfaction would be open to judicial review, and the concern of
the court would be to see whether the said subjective satisfaction is premised
upon relevant and cogent material, i.e. upon an objective criteria.

36. The decisions cited by the parties bring out that the judicial approach
has been to examine whether, or not, there was material to support the said
subjective satisfaction arrived at by the competent authority. Clause (b) of
the 2nd Proviso to Article 311 itself casts a duty on the competent authority
to reduce in writing his reasons for his satisfaction that it is not reasonably

W.P.(C) 6005/2017 Page 31 of 44
practicable to hold an inquiry against the delinquent employee. Thus, it is
open to the Court, while undertaking judicial review of the administrative
action undertaken by resort to clause (b) of the 2 nd Proviso to Article 311(2),
to examine whether the said administrative action is founded upon relevant
and cogent materials; whether the reasons recorded by the competent
authority are reasonable and emerge from the materials available on record;
whether the administrative action appears to be mala fide, or arbitrary, or
whimsical, or; whether the reasons recorded by the competent authority are
so perverse as not to appeal to any reasonable mind. At the same time, if it
appears that the reasons recorded are founded upon materials and
considerations which are germane and relevant, and the reasons recorded by
the competent authority contain a plausible view, the subjective satisfaction
of the competent authority-that it is not reasonably practicable to hold the
inquiry, would not be open to judicial review, merely because the Court may
have a different view – which may be an alternate plausible view in the
matter.

37. One other important aspect which emerges from the analysis of the
decisions cited before us, is that the Courts while testing the order passed
under clause (b) of 2nd Proviso to Article 311(2) of the Constitution, in most
of the cases, took into account the nature of the offence/wrong doing in
which the delinquent employee was embroiled, and invariably took into
account even those circumstances which unfolded after the passing of the
order – so as to judge whether the subjective satisfaction of the competent
authority was justified, or not.

38. Having made the aforesaid observations on our reading of the

W.P.(C) 6005/2017 Page 32 of 44
aforesaid decisions, we may now proceed to deal with the cases cited by the
petitioner.

39. Tarsem Singh (supra) was, undoubtedly, a case involving a police
constable who was accused of a very serious and heinous offence of
outraging the modesty of a woman by entering her house along with his
accomplices, and having carnal intercourse against the law of nature with a
migrant labourer. He was accused of issuing threats of dire consequences
to anyone deposing against him in an inquiry/investigation, and even
extracted money.

40. A preliminary inquiry followed wherein it was opined that there
seems no need of a regular departmental inquiry against Tarsem Singh.
Pertinently, the order passed by the disciplinary authority did not record that
the holding of the inquiry was impracticable. Paragraph 3 of the said order
reads as follows:

“(3) He along with his other two accomplices further caused
threats of dire consequences to anyone deposing against him in
an enquiry/investigation which has further caused a scare
amongst colleagues and citizens. That in the public and
administrative interest the retention of the abovesaid Constable
Tarsem Singh No. 4C/371 is considered wholly undesirable.”

41. The appellate order passed by the appellate authority took note of the
FIR registered against the appellant under Section 377/34 IPC, which was
still under investigation. The appellate authority, in view of the “guilt” of
the appellant of ‘gravest acts of misconduct proving complete unfitness for
police service’ held that the punishment awarded to the appellant was
commensurate with his “misconduct”. Therefore, the appeal was rejected.

W.P.(C) 6005/2017 Page 33 of 44

On the directions of the Punjab Haryana High Court in writ proceedings
initiated by the appellant, the Inspector General of Police, Commando
Battalion, Bahadurgarh, Patiala, passed an order on 26.11.1999, dismissing
the appellant’s representation. He stated that he was satisfied:

“that the nature of the misconducts committed by the petitioner
which are proved from the statements of various persons
recorded by Shri Gurbachan Singh DSP/Adjutant during the
preliminary enquiry conducted by him under the orders of the
Commandant are of a very grave and heinous nature and bring
a bad name to the police force of the State on the whole, and
there is every likelihood that none of the said witnesses may
come forward to depose against the petitioner in a regular
enquiry due to the fear of injury to their lives. Thus, I am of the
considered view that in view of the abovesaid facts, it was not
reasonably practical to hold a regular enquiry before passing
the dismissal order by the Commandant and that the dismissal
order dated 6-11-1997 passed by the Commandant, 4th
Commando Battalion, Bahadurgarh, Patiala is perfectly in
order and has been passed on the basis of the record available
on the file and also by keeping in view that image of whole of
the police force of the State shall be tarnished in a regular
enquiry and also that the witnesses may not come forward to
depose against the petitioner for fear of any injury or danger to
their lives. The said order has been correctly passed under
Exception (b) to second proviso to Article 311(2) of the
Constitution of India. Vide order dated 24-6-1998, the
appellate authority has rightly dismissed the appeal. Hence,
finding no force in the revision petition, I dismiss the same
being without merit.”

42. What weighed with the Supreme Court while allowing the appeal of
the appellant Tarsem Singh, was the fact that, ultimately, the police on
investigation did not find any case against the appellant, in respect of which
the FIR was lodged against him under Section 377 IPC.

W.P.(C) 6005/2017 Page 34 of 44

43. The Supreme Court observed that the order of dismissal was passed,
inter alia, on the ground that there was no need of a regular departmental
inquiry. For this, reliance was placed on the preliminary inquiry report. The
Supreme Court observed that if preliminary inquiry could be conducted –
wherein statements of witnesses were recorded, there was no reason why a
formal departmental inquiry could not have been initiated against the
appellant. The Supreme Court also observed that the appellant authority had
jumped to the conclusion that the appellant was “guilty” of grave acts of
misconduct, proving complete unfitness for police service and that 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 considerations. Even the Inspector General of Police
while passing his order dated 26.11.1999, 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 as a whole.
None of the authorities mentioned hereinabove 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.

44. The Supreme Court, therefore, held that the concerned authorities,
namely, the disciplinary authority, the appellate authority as well as the
Inspector General of Police did not proceed on the relevant material for the
purpose of arriving at the conclusion that, in the facts and circumstances of

W.P.(C) 6005/2017 Page 35 of 44
the case, sufficient cause existed for dispensing with the formal inquiry.
The Supreme Court also observed that the formal inquiry 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 had been placed, or disclosed, either in the said order or before
the Court to show that subjective satisfaction arrived at by the statutory
authority was based upon objective criteria. Thus, in judicial review, the
material – to show that the subjective satisfaction was arrived at by the
statutory authority on the basis of objective criteria, could be examined by
the courts itself.

45. In para 14, the Supreme Court observed;

“that no material had been placed by the respondents herein to
satisfy the Court that it was necessary to dispense with a formal
enquiry in terms of proviso (b) appended to Clause (2) of
Article 311 of the Constitution of India.”

46. The aforesaid observation again shows that the competent authorities
would be entitled to justify their administrative action by producing the
relevant and cogent material before the Court which is undertaking judicial
review of the administrative action under clause (b) of the 2 nd proviso to
Article 311 of the Constitution of India.

47. The distinguishing features of Tarsem Singh (supra) from the facts of
the present case are that the appellant Tarsem Singh was not caught red
handed – like in the present case. Secondly, though the nature of the offence
in which Tarsem was allegedly involved was also serious and heinous, in
our view, the offence in which the petitioner was embroiled, was

W.P.(C) 6005/2017 Page 36 of 44
qualitatively even more serious and dangerous. To execute the offence of
kidnapping for ransom in a pre-meditated and planned manner, by resort to
impersonation as an officer of another investigating agency, namely, the
CBI; the recovery of the arms from the vehicle in which the kidnapped
person – who was no less than an Executive Engineer of the Jal Board i.e. a
government servant was kidnapped for ransom, unquestionably exhibits a
desperate and scheming mind. It also reflects on the extent to which the
petitioner was prepared to go to execute his plan, and achieve his objective.
Thirdly, in Tarsem Singh (supra), even though the FIR was registered in
view of the serious allegations made against him, even the charge-sheet was
not eventually filed against the appellant Tarsem Singh in the said FIR
lodged against him under Section 377 IPC. Thus, upon investigation, even a
prima facie case was not found to have been made out. Fourthly, the
disciplinary inquiry was dispensed with by the disciplinary authority on the
premise that there was “no need” of a regular departmental inquiry, and not
on the premise that it was not reasonably practicable to hold such an inquiry.
The appellate authority rejected the appeal of Tarsem Singh by observing
that, “the appellant is guilty of gravest acts of misconduct proving complete
unfitness for police service……..”. Thus, the appellate authority proceeded
on the assumption that the appellant was “guilty” of gravest act of
misconduct when, as a matter of fact, even the charge-sheet was not filed by
the police, eventually. The Inspector General of Police had also proceeded
on the same basis, in view of the preliminary inquiry report. It was only the
Inspector General of Police who recorded in his order, for the first time, that
it was not reasonably practicable to hold a regular inquiry, since there was
every likelihood that one of the witnesses may come forward to depose

W.P.(C) 6005/2017 Page 37 of 44
against the petitioner. Even this reason was belied by the fact that witnesses
were examined in the preliminary inquiry, which formed the basis of the
appellant’s dismissal.

48. The facts of the present case are, however, starkly different. The
offence in which the petitioner was embroiled was committed outside the
jurisdiction of respondent-Delhi Police. It was in the State of Uttar Pradesh.
The petitioner along with constable Ajeet Singh and others were caught red
handed while transporting the kidnapped person on the road. They were
both absent from duty on purported medical grounds. Even a fire arm was
recovered from the party. The fake identity card of the petitioner and other
papers were also recovered, through which the petitioner faked his identity
as Rajinder Kumar, SI/CBI. The fact that none of the material witnesses, in
fact, deposed against the petitioner and the other accused in the criminal trial

– and they turned hostile, fortifies the subjective satisfaction arrived at by
the competent authority that the witnesses would not depose in a regular
departmental inquiry out of fear of retribution.

49. The petitioner has placed on record the judgment delivered by the
Sessions Judge, Bijnaur, in S.T. No. 646 of 2012 (Crime No. 692/2012)
titled, ‘State Vs. Ajeet Singh and others’ registered at police station Kotwali
City Bijnor, wherein Ajeet Singh is shown as first accused and the
petitioner-Mukesh Yadav as the second accused. A perusal of the said
judgment shows that the complainant Tek Bahadur – who was the domestic
servant of Shri Sushil Bansal i.e. the person kidnapped for ransom, contrary
to his earlier statement, stated that he had never seen the accused persons,
and did not know them; that his earlier statement recorded before the

W.P.(C) 6005/2017 Page 38 of 44
Magistrate was not out of his own free will but given under pressure of
police. He retracted from his earlier statement recorded before the learned
Magistrate. The kidnapped person Sushil Kumar Bansal also made
statements in favour of the accused persons. He stated that the accused
persons had not taken him forcibly, nor abducted him. He also stated that
they did not demand anything as ransom amount. He stated that the accused
were apprehended by the police at check-post, PS Milak, Distt. Rampur, on
account of some altercation which had taken place between the accused
persons and the police at the check-post. The victim disowned his own
statement recorded under Section 161 Cr.P.C. by the investigating officer.
He also disowned his statement recorded before the Magistrate by stating
that the same was recorded under pressure of police. Similarly, the other
public witnesses also turned hostile. The judgment shows that not only the
public witnesses but even PW5-SI Shambhu Dayal did not support the case
of the prosecution.

50. Thus, the decision in Tarsem Singh (supra), in our considered view,
is not of any avail to the petitioner in view of the materially different facts of
the present case.

51. There can be no quarrel with the legal propositions laid down by the
Supreme Court in Tarsem Singh (supra). However, before the ratio of a
judgment is applied to any case, the facts of the decided case, and of the case
in hand, would have to be carefully examined and appreciated. Having done
the aforesaid exercise, we are of the view that Tarsem Singh (supra) does
not advance the petitioner’s case.

W.P.(C) 6005/2017 Page 39 of 44

52. On the contrary, as noticed hereinabove, it shows that the order
passed under clause (b) of the 2nd Proviso to Article 311 of the Constitution
would be tested by taking into account all the relevant facts and
circumstances, including, the nature and gravity of the offence/misconduct
in which the government servant/delinquent is stated to be involved, and
also the facts which may unfold even after the passing of the order and
which support/ negate the reasoning adopted in the order.

53. So far as Rajinder Singh Negi (supra) is concerned, we need not
detain ourselves by undertaking a detailed examination. This is for the
simple reason that the nature of offence/misconduct in a case under Sections
6 and 13 of the Prevention of Corruption Act, is starkly different from a case
like the present. Rajinder Singh Negi (supra) was a case of an officer of
MCD, and not an officer of police force – who wields much more power and
authority. In fact, in Ex Ct Jasminder Singh (supra), the Division Bench
also noticed the fact that the petitioner was relying upon a case relating to a
complaint of corruption made against the delinquent police official. The
Division Bench observed that in such a case, it could not be said that there
was material available for the disciplinary authority to support the
conclusion that threats would be extended by the delinquent police official
to the witnesses.

54. Ex. Ct. Mahabir Singh (supra) was a case wherein the petitioner-
police constable of Delhi Police, was alleged to have raped a woman and
was allegedly apprehended, partially clad, while he was running away from
the spot of the crime. The Division Bench held that the reason given for
concluding that it was not reasonably practicable to hold a departmental

W.P.(C) 6005/2017 Page 40 of 44
inquiry – as the witnesses may be threatened by the petitioner, could not be
said to be a valid reason because of the nature/ stature of witnesses involved.
The witnesses were the disciplinary authority himself, the SHO of PS
Shalimar Bagh Inspector P.T. Rana, Superintendent of Police, Badli,
Inspector Ravi Shankar and the MLA concerned, apart from the husband of
the prosecutrix. Thus, a constable of Delhi Police could not have exercised
such influence over his superiors in the same force, or against a politician
MLA. Moreover, the Division Bench also took note of the fact that in the
criminal trial, the prosecutrix did not implicate the petitioner. The
prosecutrix did not implicate the petitioner even while recording her
statement under Section 161 Cr.P.C. and completely exonerated the
petitioner. The petitioner was acquitted by the learned ASJ. It was in these
peculiar facts and circumstances that the Division Bench upset the order
passed by the disciplinary authority under clause (b) of 2nd Proviso to Article
311 (2) of the Constitution.

55. The Division Bench also took note of the fact that the petitioner was
not a notorious criminal, who could operate even while in judicial custody.
The petitioner was in judicial custody when the order of dismissal was
passed. As noticed hereinabove, the facts of the present case are starkly
different in view of the nature of offence alleged against the petitioner, and
the surrounding circumstances in which he along with the other co-accused
were apprehended and recoveries made from them.

56. In our view, the decision in Ex-Constable Mahabir Singh (supra),
therefore, does not advance the submission of the petitioner. The decision in
Ex. Constable Ashok Kumar (supra) is also clearly distinguishable on facts.

W.P.(C) 6005/2017 Page 41 of 44

That was a case where the delinquent was not only charged, inter alia, under
Section 302/34 IPC but he was also convicted and his appeal against his
conviction was pending before the High Court. Thus, there was no premise
for the competent authority to assess the reasonable impracticability of
holding a regular departmental inquiry, on the ground that the delinquent
may terrorise or intimidate the witnesses and the complainant from deposing
against him in the disciplinary inquiry. In this case, eye witness and the
complainant had not only deposed in the preliminary inquiry conducted by
the D.M., Ghaziabad, but also before the Crime Branch, Delhi. Thus, there
was no basis to even reasonably apprehend that the said witness would not
depose in the disciplinary proceedings.

57. As it turns out, the position is entirely to the contrary in the present
case. As noticed hereinabove, the complainant, the victim and other
independent witnesses turned turtle and retracted from their earlier
incriminating statements, including, those which were made before the
Magistrate, on the ground that the same had been made under police
pressure. It appears from the record that, at no stage, the petitioner
disclosed any reason as to why the police in the State of Uttar Pradesh
would falsely frame and implicate the petitioner. There was no explanation
offered at any stage, including before us, as to what the petitioner was doing
in Uttar Pradesh when he was apprehended red handed with the kidnapped
person; co-delinquent/co-accused; with fire arm, and; with false identity
documents, when he was supposed to be on sick leave.

58. On the other hand, we find that the case of the petitioner is
comparable with the two decisions relied upon by the respondent in the

W.P.(C) 6005/2017 Page 42 of 44
cases of Parveen Kumar (supra) and Ex. Constable Jasminder
Singh(supra). Whereas, in Ex. Constable Jasminder Singh (supra), the
petitioner was found to be hobnobbing with criminal who were members of
a notorious gang, in the facts of the present case, it appears that the
petitioner was himself a member of the gang.

59. We cannot lose sight of the fact that the impugned order was passed
by a high ranking police officer, namely, the Deputy Commissioner of
Police (Crime and Railways), Delhi. The opinion formed and assessment
made by high ranking police officers-who have risen in rank over the years,
cannot be lightly brushed aside, particularly, when there is no material to
suggest to the contrary i.e. that it would not be practically reasonable to hold
an inquiry against the delinquent police official. As it turns out, the said
opinion/assessment has been proved to be entirely well founded since the
complainant, the victim and other witnesses turned hostile in the criminal
trial against the petitioner and the co-accused Constable Ajeet Singh. As it
is said “The proof of the pudding lies in its eating”. What better evidence or
material could there be to justify the opinion/assessment made by the
competent authority with regard to the impracticability of holding an
enquiry against the petitioner, then to demonstrate that, as a matter of fact, in
the criminal trial, the victim and the witnesses turned hostile and did not
support their earlier statements made against the accused persons, including,
the petitioner.

60. For all the aforesaid reasons, we are of the view that the order dated
05.09.2012 passed by the competent authority dismissing the petitioner by
resort to clause (b) of the 2nd proviso to Article 311(2) of the Constitution of

W.P.(C) 6005/2017 Page 43 of 44
India is unexceptionable and it was completely justified in the facts and
circumstances of the present case. We are of the view that the Tribunal
correctly rejected the petitioner’s original application by invoking the
correct principles laid down by the Supreme Court in several decisions.
Accordingly, the present writ petition is dismissed leaving the parties to bear
their respective costs.

VIPIN SANGHI, J

REKHA PALLI, J
SEPTEMBER 20, 2017
sr

W.P.(C) 6005/2017 Page 44 of 44

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