Background:

A police constable (Respondent) was working in Delhi Police and on April 21, 2013, an FIR was lodged against him, accusing him of murdering his parents. He had allegedly confessed to the crime before the Investigating Officer. The defendant was arrested on April 21, 2013 and was suspended on the same day.

An Indictment was filed against the respondent before the learned Additional Sessions Judge and on 22 May 2014, the Police Welfare Commissioner, PG Cell, conducted a preliminary inquiry against the Respondents.

On 8 April 2016, a restraining order was issued against the Respondent by the Additional Deputy Commissioner of Police, as the Disciplinary Authority, stating that the Respondent’s involvement in such criminal activity amounted to serious misconduct and indiscipline and was completely unbecoming. of a police officer. Accordingly, resorting to Article 311(2)(b) of the Constitution (in case the authority competent to dismiss or dismiss or demote a person is of the opinion that it is not reasonable for that authority to record in writing for any reason) Conducting such an investigation The order stated that the Respondent could not be allowed to continue his police services and that, in accordance with the disclosure statement and the Preliminary Inquiry, the Respondent should be immediately dismissed without following the ordinary Departmental Procedure procedure due to his involvement in the police force. The case was claimed to have been proven.

The defendant objected to the decision in the appeal authority and the decision was rejected on 26 August 2016.

Aggrieved by the decision, the applicant applied to the Central Administrative Court for the annulment of the decisions dated 8 April 2016 and 26 August 2016, while he was in judicial custody.

The court annulled both decisions on the grounds that provision (b) of Article 311 (2) of the Constitution was not applicable in this case. Further, the Petitioners are given the liberty to initiate disciplinary proceedings against the respondent in accordance with law.

The court based its decision on the following decision: UOI and Tulsi Ram Patel where it was held that the routine application of Article 311(2)(b) was unlawful. We saw this in the mentioned decision;

‘The finality given to the decision of the disciplinary authority by Article 311(3) does not bind the court in terms of its jurisdiction of judicial review and in such a case the court shall disregard the investigation and annul the decision. ‘also an order prescribing punishment.’

In its decision, the Court observed that no reasonable justification was met if the Defendant had a preconceived notion that he would threaten or intimidate witnesses. The Court noted that, as per the Preliminary Investigation, although the nature of the crime was heinous, there was no indication that the Defendant intimidated witnesses. Moreover, upon the notice of the Defendant’s Lawyer, the First Instance Court proceedings were continuing smoothly and it was seen that many witnesses testified against the Defendant. The Court held that although the Applicant was released on bail, no threats or intimidation were reported by the Respondent towards any of the witnesses. He stated that there was no apparent reason why appropriate disciplinary proceedings could not be carried out.

The court found that the alleged misconduct had not been proven and that a department investigation should be conducted. Further stating that misconduct is not a condition for the application of Article 311(2)(b) of the Constitution of India, the Court set aside both the orders.

The plaintiffs, who were unhappy with the decision, appealed to the Supreme Court.

Findings of the Court:

The court referred to the decision Tarsem Singh – Punjab Province and where various decisions are made,

“No material has been placed or disclosed either in the said order or before us to show that the subjective satisfaction reached by the legal authority is based on objective criteria. The alleged reason for abandoning departmental cases is not supported by any documentation. Moreover, it is clear that the impugned decision to dismiss was made on the grounds, inter alia, that there was no need for a regular departmental investigation based on or based on a preliminary investigation. However, if a preliminary investigation could have been conducted, we see no reason why a formal departmental investigation could not have been initiated against the appellant. Relying on such preliminary investigation without complying with the minimum requirements of the principle of natural justice is contrary to all rules of fair play and justice.

“Considering that no material has been placed herein by the respondents to persuade the Court that a formal investigation is necessary to be dispensed with under clause (b) inserted in clause (2) of Article 311 of the Constitution of India, we are of the opinion that the impugned orders are not maintainable and are accordingly set aside.”

In deciding the defendant’s case, the Court relied on extracts from various decisions, including: Jaswant Singh – Punja State, Union of India – Tulsiram Patel, UOI – Ram Bahadur Yadav and more.

Before applying the provision (b) of Article 311 (2) (b) of the Constitution, the Court held that the Disciplinary Authority, based on the available materials in the file, should determine whether the case involved Threat, provocation, intimidation, participation in criminal, etc. It should be taken into consideration that it was not possible to conduct an investigation for certain reasons and that special conditions should exist, such as witnesses not testifying against the defaulter. Additionally, a preliminary investigation would be conducted and all facts would be recorded with prior approval of the Special Commissioner of Police. According to the Respondent’s Counsel, it was held that no such prior approval was obtained from the Special Commissioner.

Detailing various decisions on the subject, the Court upheld the Court’s decision to set aside the dismissal orders, observing that no explanation was given as to why it was not reasonably practicable to conduct an investigation into the dismissal orders. Satisfied with the Court’s approach, the Court disagreed with the following hypothetical statement: “No witnesses will come forward for any investigation.”

Referring to the previously relied upon decisions, the Court held that it should be remembered that the defendant was still on trial and had not been convicted. Referring to the observations of the Apex Court ‘The seriousness of the offense charged against the defendant was not a consideration in examining whether circumstances existed justifying exemption from the requirement for a formal investigation.’In the case, the Court held that the petitioner was not a court of first instance and therefore could not assume that the defendant would be ultimately convicted.

Having made these observations, the Court upheld the order of the Tribunal and dismissed the petition.

Case Title: GOVERNMENT OF NCT DELHI AND ORS. VS NEERAJ KUMAR

Petitioner’s Counsel: Ms. Laavanya Kaushik, GP

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

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