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Delhi High Court
Commissioner Of Police And Ors vs Sanjay Kumar on 22 April, 2025
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19.03.2025
Pronounced on: 22.04.2025
+ W.P.(C) 10175/2023 & C.M. APPL. No. 39434/2023
COMMISSIONER OF POLICE AND ORS .....Petitioners
Through: Ms. Archana Sharma, SPC
versus
SANJAY KUMAR .....Respondent
Through: Mr. Puneet Singh Bindra, Mr.
Vivek Kadyan, Ms. Charu
Modi, Mr. Rishabh Gupta, Ms.
Kriti Dang, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
JUDGMENT
RENU BHATNAGAR, J.
1. The present writ petition has been filed on behalf of the
petitioners under Article 226 read with Article 227 of the Constitution
of India against the Order dated 28.04.2023 passed by the learned
Central Administrative Tribunal, Principal Bench, New Delhi
(hereinafter referred as ‘Tribunal’) in Original Application (‘OA’)
1909/2018 titled Sanjay Kumar v. Government of NCTD, through
the Chief Secretary, Govt. of NCTD and Ors., whereby the learned
Tribunal, while partly allowing the OA set aside the Orders dated
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09.07.2016, and 27.11.2017, by which the petitioner had been
dismissed from service and his appeal against the same had also been
dismissed, giving directions to the petitioners to reinstate the
respondent from the date of his dismissal alongwith all consequential
benefits in accordance with law. However, the learned Tribunal
granted liberty to the petitioners to initiate the disciplinary
proceedings against the respondent in accordance with law.
FACTS OF THE CASE
2. In a nut shell, the background of the case is that the
respondent/Sanjay Kumar was appointed as a Constable in Delhi
Police on 11.09.1989.
3. On 03.07.2016, a complaint was made by Mrs. Jyoti w/o Sh.
Vijender Singh, r/o M-34, New Mahabir Nagar, New Delhi, alleging
that on 03.07.2016, she was at her residence along with her mother-in-
law and daughter, while her husband and father-in-law had gone to the
office. On the said day at around 12:30 pm, a lady wearing a blue suit
alongwith a boy aged about 20 -25 years rang the doorbell of the
house and claimed to be conducting a population census. As soon as
Ms. Jyoti opened the door of the house, three more men alongwith the
lady and boy forcefully entered her house and pointed a pistol (katta)
to her head and threatened to shoot her if she made any noise. The
group of 5 then proceeded to tie Ms. Jyoti and her mother-in- law, and
forcefully snatched the keys of the almirah from her mother-in-law at
gunpoint. The robbers then took gold ornaments, Fixed Deposit
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certificates, cash amounting to Rs. 1,32,000/-, title documents of
properties, and LIC documents from the said almirah. In pursuance to
the complaint, FIR No. 572/2016 dated 03.07.2016 u/s 392/394/34
Indian Penal Code was registered at P.S. Tilak Nagar. It is further
alleged that during investigation it was revealed that the Respondent
was one of the accused persons and he had conspired with co-accused
Ajay Chaudhary (Ex DHG) with whom he shared a longstanding
relationship since he was his informer during his posting in Crime
Branch.
4. The Respondent was arrested on 07.07.2016 and was suspended
from service.
5. When the other co-accused were interrogated, it was revealed
that the stolen car allegedly used in the crime was provided by the
Respondent and it has been categorically mentioned in the chargesheet
that the said car was recovered at the instance of the Respondent. The
chargesheet also mentions the role of the Respondent as the Chief
Conspirator along with co-accused Ajay Chaudhary in planning the
robbery.
6. The Disciplinary Authority concluding that it would not be
reasonably practical to conduct a regular departmental enquiry of the
respondent given his position and potential influence over witnesses,
invoked Article 311(2)(b) of the Constitution of India and dismissed
the Respondent from service vide the Order dated 09.07.2016 without
holding an enquiry.
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7. On 08.08.2016, the Respondent preferred an appeal, which was
rejected by the Appellate Authority vide the Order dated 27.11.2017.
8. Thereafter, on 11.05.2018, the Respondent preferred the subject
OA seeking setting aside of the Orders dated 09.07.2016 and
27.11.2017, which came to be allowed by the learned Tribunal vide
the Impugned Order dated 28.04.2023 holding as under:-
“17. Having regard to the aforesaid, impugned orders
of the respondents are not only in violation of the
settled law but also of their own aforesaid
instructions/ dated 11.9.2007. The reasons given by
the respondents for dispensing with the enquiry are
not in consonance with the law settled by the Hon’ble
Supreme Court and Hon’ble High Courts and
followed by this Tribunal in a catena of cases, a few of
which cases are referred to hereinabove.
18. In view of the aforesaid facts and circumstances of
the present case, we are of the considered view that
this case is squarely covered by a catena of cases
relied on behalf of the applicant, including the
common Order/Judgment dated 10.2.2022 in Ct.
Sumit Sharma (supra) and a batch of cases.
Therefore, the present OA deserves to be partly
allowed and the same is partly allowed with the
following directions:-
(i) Orders dated 9.7.2016 (Annexure A-1)
and dated 27.11.2017 (Annexure A-2) passed
by the disciplinary and appellate authorities
respectively are set aside;
(ii) The applicant shall be entitled to all
consequential benefits in accordance with the
relevant rules and law on the subject;
(iii) The respondents shall implement the
aforesaid direction within eight weeks of
receipt of a copy of this order; and
(iv) However, the respondents shall be at
liberty to initiate disciplinary proceedings
against the applicant in accordance with theSignature Not Verified
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law.
19. However, in the facts and circumstances, there
shall be no order as to costs.”
9. The aforesaid Impugned Order dated 28.04.2023 of the learned
Tribunal passed in OA 1909/2018 is the subject matter of the present
Writ Petition.
CASE OF THE PETITIONERS
10. The challenge by the petitioners to the Impugned Order passed
by the learned Tribunal is on the ground that the learned Tribunal has
wrongly relied upon the Judgment passed in OA 1383/2020 and has
failed to appreciate that in the present case disciplinary proceedings is
not viable as the witness are friends/co-accused with the Respondent
and are themselves accused of criminal intimidation, and armed
robbery, because of which they are not going to depose against the
Respondent. The victim is also likely to intimidated due to the
position that the respondent held in the police.
11. The Disciplinary Authority, while passing the Order dated
09.07.2017, gave a plausible view and provided subjective satisfaction
that it is not reasonably practicable to hold the inquiry, and therefore
passed a detailed speaking order dismissing the Respondent under
Article 311(2)(b) of the Constitution of India. The same should,
therefore, not have been interfered with by the learned Tribunal.
12. This is a case where the Respondent, inspite of being an official
of Delhi Police has planned and committed an armed robbery.
Moreover, the fact that the Respondent has, by exercising undue
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influence managed to get his name removed from the list of accused,
even though a detailed chargesheet was filed against him is testament
to the fact that it is not reasonably practicable to conduct a regular
enquiry. The learned Tribunal failed to appreciate the law laid down
by the Constitutional Bench of the Supreme Court in Union of India
v. Tulsiram Patel, (1985) 3 SCC 398, as followed in Ikramudin
Ahmed Bohra v. Superintendent of Police, Darrang & Ors., 1988
(Supp) SCC 663.
13. It is further stated on behalf of petitioners that the learned
Tribunal failed to appreciate that the effective thumb rule prescribes
that whenever the Disciplinary Authority comes to the conclusion that
it is not reasonably practicable to hold an enquiry, he must record at
length, cogent and legally tenable reasons for coming to such
conclusion. It further states that only in the absence of valid reasons,
duly reduced in writing, will the Order of dismissal under Article
311(2)(b) of the Constitution of India be unsustainable in law.
14. The learned Tribunal failed to appreciate that that the decision
to dispense with the departmental enquiry is subject to the satisfaction
of the concerned authority, and it is incumbent on those who support
the Order to show that the satisfaction is based on certain objective
facts and is not the outcome of the whim or caprice of the concerned
officer. Reference in this regard was made to the decision of the
Supreme Court in Jaswat Singh vs. State of Punjab & Ors., (1991) 1
SCC 362. In the present case, it is clear from the Impugned Order and
reply filed by the petitioners before the learned Tribunal that the
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decision of the Disciplinary Authority is substantiated by the objective
facts.
15. Reference has also been made to the Judgment of the Apex
Court in Ved Mitter Gill vs. Union Territory Administration and Ors.
(2015) 8 SCC 86, wherein it has been held that the reasons for
dispensing with the departmental enquiry cannot be dependent upon
the holding or not holding of criminal proceedings against the
petitioners therein. It is also stated that learned Tribunal did not
consider the fact that the disciplinary authority while passing the
Order dated 09.07.2016 gave a plausible view and subjective
satisfaction that it is not reasonably practicable to hold the inquiry,
and the Appellate Authority gave a categorical findings that after
registration of the FIR, the Respondent and co-accused were arrested
and taken to judicial custody, charge sheet has been filed and criminal
proceedings are still pending against the Respondent and that none of
the accused persons are going to depose against the respondent as it
will amount to accepting their guilt.
16. Hence, it is prayed to set aside the Impugned Order dated
28.04.2023 passed by the learned Tribunal in OA 1909/2018.
CASE OF THE RESPONDENT
17. On the other hand, it is pleaded on behalf of the respondent that
respondent was falsely implicated in criminal case FIR No. 572/2016
dated 03.07.2016 under Sections 392/394/34 IPC registered at Tilak
Nagar.
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18. It is contended that during the pendency of the Impugned OA
filed before the learned Tribunal against the Orders dated 09.07.2016
and 27.11.2017 of the Disciplinary Authority and the Appellate
Authority respectively, the respondent stands discharged in the
aforesaid FIR vide the Judgment dated 02.12.2021 (pronounced on
04.12.2021) of the learned Addl. Sessions Court, Tis Hazari, in S.C.
No. 58212/2016 titled State vs. Sanjay and Ors., and he is also
acquitted in the second criminal case bearing FIR No. 276/2010 which
is an offshoot of the 1st criminal case, vide the Judgment of the
Metropolitan Magistrate, Karkardooma Courts in CIS No. 1712/2018
dated 06.03.2023, though the same was not the basis of invoking of
power under Article 311(2)(b) of the Constitution of India.
19. It is stated that the plea of the petitioners that witnesses would
not come forward to depose against the respondent owing to his
influential position, is unfounded and without any basis and in fact,
most of the witnesses in criminal case are much higher rank than of
the respondent. Further, no material is placed on record to suggest that
witnesses/material witness/complainant were directly or indirectly
intimidated, induced or influenced by the respondent. It is further
stated that there is no reason for not holding the departmental enquiry
or coming to the conclusion that a Departmental Enquiry is not
reasonably practicable. It is contended that graver the allegations
against the respondent, more opportunity should be given to him to
defend himself. It is further stated that it is settled law that gravity of a
misconduct may have a nexus with the quantum of punishment but the
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gravity of a misconduct cannot form basis to come to a conclusion that
a regular departmental enquiry is reasonably practicable or not.
20. The learned counsel for respondent has further placed reliance
on Judgments passed by the Supreme Court in Tarsem Singh (supra),
Jaswant Singh v. State of Punjab, (1991) 1 SCC 362; and Union of
India & Anr. v. Ram Bahadur Yadav, 2022 (1) SCC 389; and by this
Court in Commissioner of Police v. Kaushal Singh, W.P. (C) No.
11694/2018; Commissioner of Police v. Ashwani Kumar, W.P.(C)
No. 4078/2017; Commissioner of Police v. Daya Nand, W.P.(C)
3940/2008; Ex-Constable Mahabir Singh & Anr. v. Union of India
and Ors., W.P.(C) 7068/2000; and by High Court of Allahabad in
Lokendra Pal Singh v. State of U.P. and Ors., W.P.(C) No.
25018/2018 in support of his submissions.
21. It has also been contended that as per the Circular of the Joint
Commissioner of Police dated 11.09.2007 as was further clarified on
18.04.2018, it was mandatory for the Disciplinary Authority to
conduct a preliminary enquiry and to take the consent of the Spl.
Commissioner of Police prior to resorting to its powers under Article
311(2)(b) of the Constitution of India. The said procedure was not
followed in the present case.
ANALYSIS AND FINDINGS
22. Submissions of the learned counsel for parties have been
considered. We have perused the material placed on record as well as
the Impugned Order.
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23. In this case, the Disciplinary Authority dismissed the
respondent without holding an enquiry, referring to Article 311(2)(b)
of the Constitution of India. Article 311(2)(b) has been reproduced
below for ready reference:
“(2)No such person as aforesaid shall be
dismissed or removed or reduced in rank
except after an inquiry in which he has been
informed of the charges against him and given
a reasonable opportunity of being heard in
respect of those charges:
Provided that….
Provided further that this clause shall not
apply-
xxx
(b) 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,
or”.
24. The Disciplinary Authority has passed the Order dated
09.07.2016, wherein it was observed as under:
“After having committed above gravest
misconduct of criminal activity, if the defaulter
Const. (Exe.) Sanjay Kumar, No.6158/Sec.
(posted in E-Block/Security unit) is allowed to
continue in police force, it would be
detrimental to public interest and further
tarnish the image of the police force in the
society. His misconduct has put the entire
police force to shame. Such misconduct cannot
be tolerated in a disciplined organization like
police whose basic duty is to protect the life of
citizens in the society. The facts and
circumstances of the case are that it would not
be reasonably practicable to conduct a regular
departmental enquiry against the defaulter
Const. (Exe.) Sanjay Kumar, No. 6158/Sec. as
there is a reasonable belief that the witnessSignature Not Verified
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would not come forward to depose against him
due to intimidation, inducement and affiliation
of material PWs by the defaults Const. (Exe.)
It also calls for great courage to depose
against desperate person and that task
becomes more acute and difficult were the
defaulter is police official who may use his job
to influence the statement/deposition of the
witnesses. Further an extended enquiry would
only cause more trauma to the victim.
The misconduct of accused Const. (Exe.}
Sanjay Kumar, No.6158/Sec. who has been
arrested in a case of robbery is of such a grave
nature that warrants an exemplary punishment
of dismissal in order to send a clear message
to such undesirable person and to prevent the
recurrence of such crimes. Taking into
account the holistic facts and circumstances of
the case as mentioned above, the undersigned
is of the firm opinion and satisfied that the acts
and grave misconduct of accused Const. (Exe.)
Sanjay Kumar, No.6158/Sec. attract the
provisions of Article 311(2) (b) of the
Constitution of India and make him completely
unfit for police service.
Keeping in view the facts of the case and
overall implication of such misconduct for
disciplined force and sensitivity of the matter,
I, Parwaiz Ahmed, Dy. Commissioner of
Police, Security (SG), New Delhi do hereby
DISMISS Const. (Exe.) Sanjay Kumar, No.
6158/Sec. (PIS No.28890545 from service
under clause (b) of Second Provision of Article
311(2) of the Constitution of India with
immediate effect. His suspension period from
07.07.2016 (date of arrest) to the date of this
order is hereby decided as not spent on duty
for all intents and purposes which may not be
regularized in any manner.”
(Emphasis supplied)
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25. Before reaching the above conclusion for invoking Clause (b)
of the second Proviso to Article 311 of the Constitution of India, the
Disciplinary Authority is not stated to have conducted any
preliminary inquiry on the availability of the witnesses and whether
they are willing to depose against the petitioner. The above
conclusion has been reached by the Disciplinary Authority on basis
of presumption and surmises.
26. The Appellate Authority before whom respondent no. 1 had
preferred the Statutory Appeal, rejected the appeal and upheld the
Order of dismissal passed by the Disciplinary Authority holding as
below:-
“I have carefully perused the contents of the
appeal submitted by the appellant, impugned
order issued by the Disciplinary Authority and
the material evidence on record. I have also
heard the appellant in O.R. on 20/11/2017, in
accordance with principle of natural justice.
During O.R, the appellant reiterated the plea
taken in the appeal. He says that the car which
has been shown to have been recovered at his
instance was actually recovered somewhere
else and he has CCTV footage to prove the
same. Also, he does not know any of the 9 co-
accused except Ajay Choudhary, ex-HDG who
was his informed during his posting in Crime
Branch. There is nothing on record to show
that he was in contact with them.
I have gone through the chargesheet filed by
West Distt. in the case. The chargesheet
clearly mentions the role of the appellant
which has been revealed during the
interrogation of other accused persons and the
stolen car allegedly used in the crime was
provided by the appellant and it has also beenSignature Not Verified
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shown to have been recovered at the instance
of the appellant. The chargesheet also
mentions the role of the appellant as the chief
conspirator alongwith accused Ajay
Choudhary and planned the crime.
The case is pending trial in the trial court and
arguments on charge are currently going on.
At this stage, accepting the plea of the
appellant and debunking the entire police
investigation is not possible. The appellant has
not presented any compelling proof to show
his complete innocence and non-involvement
in the crime. The reason given by the appellant
that he had enmity/differences with SI Charan
Singh and that is why he was falsely
implicated as an accused is also not found
convincing. SI Charan Singh was not the IO of
the case and the reason behind the differences
with him (disagreement and heated arguments
on asking for fair treatment to an accused) is
also not found convincing.’
27. A reading of the above would show that the defence of the
petitioner was rejected without giving him an opportunity to lead
evidence or be subjected to a disciplinary inquiry. It is settled law that
a subjective satisfaction is to be arrived at by the Disciplinary
Authority for dispensing with an enquiry and the reasons should be
based on objective criteria and not on the whims and fancies of the
Disciplinary Authority. The concerned Authority is required to come
to a subjective satisfaction that it is not reasonably practical to hold a
Departmental Enquiry against the respondent justifying the exercise of
powers under Article 311(2)(b) of the Constitution of India. Reliance
to this effect can be placed on the Judgements of the Supreme Court in
Jaswant Singh v State of Punjab, (1991) 1 SCC 362, Reena Rani v.
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State of Haryana, (2012) 10 SCC 215. This view is also reiterated by
the Co-ordinate Bench of this Court in The Commissioner of Police v.
Om Prakash and Anr., W.P.(C) 11276/2024, wherein the
observations made in another Judgement of this Court in
Commissioner of Police and Ors v. Ashwani Kumar And Ors.,
2019:DHC:6865-DB, were also quoted.
28. In the present case, at hand, there is no evidence or document
on the record before the learned Disciplinary Authority to indicate that
the respondent had ever threatened or harassed any of the witnesses or
the prospective witnesses. Further, no effort was made to conduct the
enquiry nor were any evidences collected by the Disciplinary
Authority that despite best efforts, the witnesses could not be
produced against the respondent or that the witnesses have been
threatened by the respondent or they are scared of respondent to come
forward in the enquiry proceedings to depose against respondent.
Except writing a passage on corruption of Police, nothing substantial
has been stated in the Order passed by the Disciplinary Authority to
justify how it was not reasonably practicable to hold a Departmental
Enquiry against the respondent.
29. The Circular dated 11.09.2007 sets out the relevant
circumstances which have to be borne in mind while invoking proviso
(b) to Article 311(2) of the Constitution of India. The same have been
reproduced below:
“…Only in cases where Disciplinary Authority is
personally satisfied on the basis of material available on
file that the case is of such a nature that it is notSignature Not Verified
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practicable to hold an enquiry in view of threat,
inducement, intimidation, affiliation with criminals etc.
and keeping in view the specific circumstances of the case
it is not possible that PWs will depose against the
defaulter and disciplinary authority has no option but to
resort to Article 311(2)(b) should such an action be taken.
Prior to such an order, a PE has to be conducted and it is
essential to bring on record all such facts. It has also been
decided that before passing an order under Article
311(2)(b) of the constitution, Disciplinary Authority has to
take prior concurrence of Spl. CP/Admn.”
30. The same was again reiterated in the Circular dated 18.04.2018.
31. In the present case, no prior approval from the Spl. CP/Admn.
was sought nor was any preliminary enquiry conducted. It has been
held by this Court in Govt. of NCT and Ors. vs. Neeraj Kumar, 2024
SCC OnLine Del 7472, that in such situations the government is
bound by the circulars issued by it and that it is mandatory for the
petitioners to follow the conditions laid down in the same.
32. Admittedly, when the Disciplinary Authority has passed the
Order of dismissal, the proceedings in the FIR were pending (in which
respondent is discharged by the Court, as is claimed by the
respondent) and so the opportunity should have been given to the
respondent to put forth his defence by holding an enquiry instead of
exercising the powers under Article 311(2)(b) of the Constitution of
India. The petitioners cannot be permitted to hold the officers posted
in Delhi Police guilty of the offence charged without an opportunity of
being heard and without holding any enquiry and only on the ground
that the witnesses would not be willing to depose against them.
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33. Accordingly, finding no error in the Impugned Order passed by
the learned Tribunal, the present petition along with the pending
application is dismissed.
RENU BHATNAGAR, J.
NAVIN CHAWLA, J.
APRIL 22, 2025/p
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