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

A division Bench of the Delhi High Court comprising Justices C Hari Shankar and Sudhir Kumar Jain dismissed a Petition seeking to set aside the order of the Central Administrative Tribunal. The Tribunal had quashed the orders dismissing the Respondent from service on the grounds of being accused of murder and lodgement of FIR against him. The Court observed that the Respondent was not convicted yet and thus could not be dismissed from service on the presumption of conviction against him. 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 ...

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

Syed Nazarat Fatima

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