'Accused Cannot Be Dismissed From Service, Presuming Conviction', Delhi High Court Quashes Dismissal Order Of Police Officer Accused Of Murder

Background:

A constable(Respondent) was working in the Delhi Police and on 21 April 2013. An FIR was lodged against him, charging him with the murder of his parents. Allegedly, he had admitted to the crime before the Investigating Officer. The Respondent was arrested on 21 April 2013 and was also suspended on the same day.

A Chargesheet was filed against the respondent before the learned Additional Sessions Judge and on 22 May 2014, the Assistance Commissioner of Police, PG Cell conducted a preliminary inquiry against the Respondents.

On 8 April 2016, an order of suspension was issued by the Additional Deputy Commissioner of Police, as the Disciplinary Authority, against the Respondent, stating that the involvement of the Respondent in such a criminal act was amounted to serious misconduct and indiscipline, totally unbecoming of a police officer. Accordingly, invoking Article 311(2) (b) of Constitution [where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry], the order stated that the Respondent could not be allowed to continue in police services and needed to be dismissed immediately without following the procedure of regular Departmental Proceedings because as per his disclosure statement and the Preliminary Enquiry, his involvement in the case was allegedly proven.

The Respondent appealed against the order before the appellate authority and it was dismissed on 26 August 2016.

Aggrieved by the order, he approached the Central Administrative Tribunal while he was in judicial custody seeking to quash the orders dated 8 April 2016 and 26 August 2016.

The Tribunal set aside both the orders on the ground that in this case, proviso (b) to Article 311 (2) of the Constitution could not be invoked. Moreover, the Petitioners were granted liberty to initiate disciplinary proceedings against the respondent in accordance with law.

The Tribunal in its order relied on the judgment in UOI v Tulsi Ram Patel wherein it was held that invoking of Article 311(2) (b) in a routine manner was bad in law. It was observed in the aforementioned judgment that,

'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.'

The Tribunal observed in the order that no reasonable ground was met in the case of the Respondent to preconceive that he would threaten or intimidate the witnesses. Even though the nature of the offence was heinous, as per the Preliminary Inquiry, there was no indication of the Respondent intimidating the witnesses, the Tribunal stated. Furthermore, on the intimation of the Counsel for the Respondent, the Trial Court proceedings were undergoing in a smooth manner and many witnesses had deposed against the Respondent. The Tribunal held that although the applicant was on bail, no threat or intimidation by the Respondent to any of the witnesses was reported. It stated that there was no apparent reason that proper disciplinary proceedings could not have been held.

The Tribunal held that the alleged misconduct was not proven and it had to be done in a departmental enquiry. Stating further that misconduct was not a contingent condition for invoking Article 311(2) (b) of the Constitution of India, the Tribunal set aside both the orders.

Dissatisfied with the decision, the Petitioners approached the High Court.

Findings of the Court:

The Court referred to the judgement in Tarsem Singh v State of Punjab and several judgements wherein it was held,

“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.

In view of the fact 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, we are of the opinion that the impugned orders cannot be sustained and they are set aside accordingly.”

While deciding the case of the Respondent, the Court relied on excerpts from several judgements including Jaswant Singh v. State of Punja, Union of India v. Tulsiram Patel, UOI v Ram Bahadur Yadav and more.

The Court ratified the observations of the Tribunal that before invoking proviso (b) to Article 311 (2) (b) of the Constitution, the Disciplinary Authority had to be satisfied on the basis of the material available on the file that the case was of such a nature where it was not practicable to hold an inquiry in view of a threat, inducement, intimidation, affiliation with criminals etc. and it was to be taken in view that specific conditions like the witnesses not deposing against the defaulter should have existed. Moreover, a preliminary inquiry was to be conducted and all the facts were to be brought on record with the prior approval of the Special Commissioner of Police. It was held that as per the Counsel for the Respondent, no such prior approval of the Special Commissioner was obtained.

Elaborating several decisions applicable to the issue, the Court upheld the decision of the Tribunal to set aside the orders of dismissal from service, observing that the orders of dismissal did not specify as to why it was not reasonably practicable to hold an inquiry. Satisfied with the approach of the Tribunal, the Court disagreed with the presumptive statement that “no witness would come forward for any inquiry”.

Referring to the decisions relied on earlier, the Court held that it had to be remembered that the respondent was still facing trial and was not convicted. Quoting the observations of the Apex Court that 'the gravity of the offence with which the respondent was charged was not a relevant consideration while examining whether such circumstances existed which justified dispensation with the requirement of holding a formal inquiry', the Court held that the petitioner was not a trial court and could not thus presume that the respondent would ultimately be convicted.

Making these observations, the Court upheld the decision of the Tribunal and dismissed the Petition.

Case Title: GOVT OF NCT DELHI AND ORS. versus NEERAJ KUMAR

Counsel for Petitioner: Ms. Laavanya Kaushik, GP

Counsel for Respondents: Mr. Sachin Chauhan, Ms. Ridhi Dua, Mr. Abhimanyu Baliyan, Mr. Himanshu Raghav, Advs.

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