Departmental Enquiry Cannot Be Dispensed With Based On Presumption That Accused Police Personnel Would Threaten Witnesses: Delhi High Court

A division bench of the Delhi High Court comprising of Justice Rekha Palli and Justice Saurabh Banerjee while deciding a Writ Petition in the case of Commissioner of Police & Ors vs Sant Ram has held that enquiry cannot be dispensed with only on the basis of a perceived notion that the accused being a police personnel would threaten the witnesses and holding of an enquiry would cause trauma to the complainant Background Facts Sant Ram (Respondent) was appointed as a constable in Delhi Police in 2006. While he was posted at the Police Training College, New Delhi, a complaint alleging sexual harassment was filed against the him in 2017 by a trainee woman constable. A preliminary enquiry was conducted by the Chairperson of the Internal Complaints Committee (ICC) and based on her report, an FIR under sections 354(A), 294 and 509 of IPC was registered against the Respondent. The Respondent was dismissed from service by an order passed under Article 311(2)(b) of the Constitution of India. The Respondent preferred a statutory appeal against the order of dismissal which was also rejected. The Respondent filed an Original Application before the Central Administrative Tribunal (Tribunal) against the dismissal order and the order of the appellate authority. The Tribunal allowed the Original Application of the Respondent and set aside the order of dismissal. Thus, the writ petition was filed against the order of the Tribunal It was contended by the Petitioners that the Tribunal failed to appreciate the detailed reasons mentioned in the dismissal order for dispensing with the requirement of holding an enquiry against the Respondent. Considering the grave nature of charges of sexual harassment and the fact that the Respondent had threatened the complainant and witnesses during the preliminary enquiry itself, it was not practicable to hold a full-fledged enquiry which would've created fear in the mind of the complainant. On the other hand, it was contended by the Respondent that the Tribunal had quashed the dismissal order after finding that there was no justifiable reason which was provided by the Petitioners for dispensing with the departmental enquiry. The Tribunal was correct to hold that an enquiry could not be dispensed with in a mechanical manner on the mere presumption that the Respondent being police personnel will threaten the witnesses. Findings of the Court The court observed that the Tribunal had allowed the original application on the grounds that reasons given by the Petitioners for dispensing the enquiry did not fall within the ambit of Article 311(2)(b) of the Constitution of India. The Tribunal further found that bald statements by the Petitioner regarding the witnesses being threatened by the Respondent were not supported by the record and no effort was made by the Petitioner to conduct an enquiry. The court observed that the reason behind not conducting an enquiry against the Respondent was the presumption that the Respondent would threaten or intimidate the complainant and other witnesses and that a prolonged enquiry would cause more trauma to the complainant. The court held that although the charges against the Respondent are serious and the interest of the complainant needs to be protected, it does not mean that principles of natural justice and provisions of section 11 of POSH Act, 2013 should be let go merely on the basis of presumptions. Further, just because the Respondent is a Police Personnel, it cannot be presumed that witnesses will not come to depose before him in a regular enquiry. The court remarked that what emerged from the record was that the Petitioners presumed the Respondent to be guilty based on the preliminary enquiry itself. However, this is violative of Article 311(2)(b) of the Constitution of India. The Petitioners cannot dispense with the requirement of an enquiry just on the basis of the gravity of the charges levelled against the Respondent and on absolutely vague grounds. With the aforesaid observations, the court dismissed the writ petition and upheld the order of the Tribunal Case No.- W.P.(C) 5562/2024, CAV 181/2024, CM APPL. 22929/2024 -Stay. CM APPL. 22930/2024 -Ex./LLOD Case Name- Commissioner of Police & Ors vs Sant RamCitation: 2024 LiveLaw (Del) 550 Counsel for the Petitioner- Mrs. Avnish Ahlawat, SC with Mrs. Tania Ahlawat, Mr. Nitesh Kumar Singh, Ms. Laavanya Kaushik, Ms. Aliza Alam and Mr.Mohnish Sehrawat, Advocates Counsel for Respondents- Mr. Roopansh Purohit and Mr. Harsh Pahwar, AdvocatesClick Here To Read/Download Order

Departmental Enquiry Cannot Be Dispensed With Based On Presumption That Accused Police Personnel Would Threaten Witnesses: Delhi High Court

Udai Yashvir Singh

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