Delhi District Court
C.I.S.F vs Kiran Singh on 9 February, 2011
IN THE COURT OF SH. A.K. CHAWLA, ADJ1 (CENTRAL),
DELHI.
RCA : 14/09
Unique ID No. 02401C0434062009
C.I.S.F.
Through its Inspector General
Delhi Sector
CISF Head Quarter
Lodi Road Block13,
CGO Complex New Delhi .....Appellant
Versus
Kiran Singh
S/o Sh. Ram Chander
R/o Village Lakar Pur
District Faridabad
Haryana .....Respondent
Date of Institution : 18.09.2009
Date of reserving the Judgment : 27.01.2011
Date of Judgment : 09.02.2011
JUDGMENT
Aggrieved of the decree dated 15.7.2009 passed by the Ld. Sr. Civil Judge, Tis Hazari, whereby the final order dated 16.12.1992 passed by the appellant imposing penalty of dismissal from service RCA No.14/09 Page 1/14 against the respondent was set aside and the respondent was held entitled for reinstatement with all benefits deeming him still in service but the Department was given liberty to award minor punishment by withholding the increments, hereinafter referred to as 'the impugned decree', the appellant has preferred the appeal in hand.
2. Succinctly, the facts relevant for the disposal of the appeal are that the respondent was appointed as Head Constable (Driver) on 19.6.1984 and in May, 1992, was serving at Unit Dadri, CISF. On 3.5.92 at 2000 hrs. (8.00 p.m.), the respondent was allegedly found under the influence of liquor and assaulted HC K.K. Singh besides creating nuisance in the unit lines and unauthorizedly withdrew from duty from 2100 hrs. to 0500 hrs. on 3/4.5.1992 and remained absent from duty upto 26.5.1992, having absented without leave on two earlier occasions despite opportunity given to improve himself and had so proved to be incorrigible. Vide memo dated 6.8.1992, the respondent was chargesheeted on such four counts. On 23.10.1992, the respondent during the course of the preliminary enquiry, accepted all the charges. Enquiry Officer recorded findings on all the four charges against the respondent. Vide final order dated 16.12.1992, the respondent was awarded the penalty of 'dismissal from service'. RCA No.14/09 Page 2/14 Appeal preferred thereagainst, was dismissed by the appellate authority but on a revision preferred thereagainst, the penalty of 'dismissal from service' was modified to 'removal from service'. Thereagainst, the respondent preferred Civil Writ No.324/95 before the Hon'ble High Court but it was dismissed with the liberty to respondent to take any other remedy available to him in law. Thereupon, the suit, out of which instant appeal arises, came to be filed seeking declaration that the order dated 16.12.1992 was illegal, invalid and inoperative in law and that the respondent continued to be in service and that, the appellant be directed to take back the respondent in service with full back wages. It proceeded on the premises that the respondentplaintiff was not afforded reasonable opportunity to defend himself and the enquiry officer putting him under pressure had forced confessions and was also not provided any defence assistant. Appellant filed the written statement and contested the suit filed. Vide impugned judgment and the decree, the trial Court set aside the order of penalty, holding that the order dated 16.12.1992 and the order of the appellate authorities were wrong and in violation of rules of natural justice and not sustainable in law and ordered that the respondent was entitled for reinstatement alongwtih all benefits till date, deeming him still in service but the appellant was given liberty to RCA No.14/09 Page 3/14 award minor punishment by withholding the increments. Aggrieved thereof, the appellant has preferred the appeal in hand.
3. I have heard the ld. Counsel for the parties and perused the record carefully.
4. Articles of charges, which resulted into passing of the order dated 16.12.1992, whereby the respondent was imposed penalty of 'dismissal from service' which on revision was modified to 'removal from service', are as follows :
"ARTICLE I Gross misconduct and an act of indiscipline in that No.8448011 HC/Dvr Kiran Singh of CISF Unit, NCPP Vidyut Nagar (Fire Wing) Dadri under the influence of liquor on 3.5.91 at around 2000 hrs. assaulted HC/GD K.K. Singh, CHM, in the unit lines and created nuisance in unit lines. Hence the charge.
ARTICLEII Gross misconduct and an act of indiscipline in that No.8448011 HC/Dvr Kiran Singh of CISF Unit, NCPP Vidyut Nagar (Fire Wing) Dadri was detailed for 'C' shift duty on 3/4.5.92 from 2100 hrs. to 0500 hrs. He did not attend the same and unauthorisedly withdrew from duty without any information and RCA No.14/09 Page 4/14 permission from the competent authority. Hence the charge.
ARTICLEIII Gross misconduct and an act of indiscipline in that No.8448011 HC/Dvr Kiran Singh of CISF Unit, NCPP Vidyut Nagar (Fire Wing) Dadri deserted from CISF Unit Lines on 4.5.92 and remained absent from duty upto 26.5.92. Hence the charge.
ARTICLEIV Gross misconduct and an act of indiscipline in that No.8448011 HC/Dvr Kiran Singh of CISF Unit, NCPP Vidyut Nagar (Fire Wing) Dadri is a habitual of over staying and had earlier been OSL/AWL for two times and despite being given an opportunity to improve upon himself he proved to be incorrigible. Hence the charge."
5. At the onset, Ld. counsel for the appellant referring to the representation dated 20.11.1992 of the respondent, which is in Hindi, strenuously contended that the Ld. Trial Judge failed to appreciate that the respondent had not only admitted his guilt before the enquiry officer but also, the findings of the enquiry officer vide the said representation dated 20.11.92. In his submissions therefore, the enquiry proceedings cannot be said to be improperly conducted.
It is not in dispute that on being served with the said RCA No.14/09 Page 5/14 charges, the respondent joined the enquiry proceedings. It is also not in dispute that the enquiry officer gave his report on the admission of charges by the respondent. Final order dated 16.12.1992 Ex. PW1/G came to be passed inter alia observing that the delinquent official had accepted the findings of the enquiry officer vide his representation dated 20.11.92. In other words, the respondent not only accepted the procedure of enquiry but also reaffirmed the admission of guilt, even on the receipt of enquiry report. It is only sinceafter the final order dated 16.12.1992 imposing penalty of 'dismissal from service' came to be passed against him that he took a plea of having been not provided with any defence assistant or breach of procedure that he did not know English and the enquiry officer had conducted the proceedings in English. Facts and circumstances and the material on record only go to show that such a somersault came to be taken by the respondent, only after the final order imposing penalty of dismissal from service came be passed against him. Relevant portions of the final order dated 16.12.1992 referring to such representation dated 20.11.92, are as follows :
"4. A copy of enquiry report was supplied to the delinquent official for submission/representation against the enquiry report vide letter No.V15014/ GHD/Disc/92/2461 RCA No.14/09 Page 6/14 dated 27/28.10.92 which was served upon delinquent official on 5.11.92. The delinquent official submitted his representation dated 20.11.92 wherein he accepted the findings of Enquiry Officer.
5. The undersigned has gone through the entire proceeding file, findings of the Enquiry Officer and representation dated 20.11.92 submitted by the delinquent official. ......................................... ................................................................................."
The respondent on his part however, even at the stage of filing the suit, out of which the instant appeal arises, has not made any challenge to the representation dated 20.11.92 accepting the findings of the enquiry officer. The ld. Trial Judge equally not adverted to this vital aspect of the matter. In my considered view, it clinches the issue and repels any contention of the respondent to the contrary, for any breach of procedure in holding enquiry on the Article of Charges against him. Had he been aggrieved of any breach of procedure in holding of enquiry by the enquiry officer, there is no reason as to why he submitted his representation dated 20.11.92 accepting findings of the enquiry officer. Representation dated 20.11.92 given by the respondent admitting the findings by the enquiry officer, vindicates the fact that he had himself and voluntarily waived his procedural right of RCA No.14/09 Page 7/14 any defence assistant or the defence. Any plea taken by the delinquentrespondent to the contrary, after the passing of the final order dated 16.12.92, I have therefore no hesitation in concluding to be only an afterthought. Needless to say, principles of natural justice are meant to achieve the ends of justice and cannot be perverted to achieve the other end, as it would be a counterproductive exercise. I have therefore, no hesitation in concluding that the enquiry conducted by the enquiry officer does not suffer from any procedural defect and/or suffering from any irregularity, resulting into failure of justice. In the given facts and circumstances, in my considered view, the reliance placed upon 172 (2010) DLT 200 (DB) Balwinder Singh Vs. Union of India & Ors.; AIR 1999 SC 677 Kuldeep Singh Vs. The Commissioner of Police & Ors.; and AIR 1958 SC 300 Khem Chand Vs. Union of India & Ors. by the ld. Counsel for the respondent, is misconceived. Balwinder Singh's case (Supra), was a case in which the delinquent having been served with the chargesheet on 27.9.1997, was kept in close arrest between 3.10.1997 when the proceedings began, till 17.10.1997 when the findings of guilt on charges against him was returned. In other words, there was nothing on record to show that he was given an opportunity to exercise his legal right of fair opportunity to defend himself. In Kuldeep Singh's case (supra), the enquiry RCA No.14/09 Page 8/14 officer gave his findings in the absence of any evidence led in support of the charges during the enquiry proceedings and therefore, it was held perverse. Khem Chand's case (supra), was a case where the delinquent entitled to have a further opportunity to show cause as to why particular punishment should not be inflicted, was not afforded such an opportunity. None of the said judgments relied upon by the Ld. counsel for the respondent are applicable in the given facts and circumstances of the case. In that view of the matter, the findings arrived at by the Ld. Trial Judge cannot be sustained and are set aside.
6. As for the penalty imposed, Ld. Counsel for the appellant contended that the respondent was a member of Armed Force and assault on senior was a serious offence and such offender cannot be allowed to escape with minor penalties, as the discipline of the force will crumble. In his submission, the penalty of 'dismissal from service', which was later revised to 'removal from service', was therefore, just. To the contrary, the Ld. Counsel for the respondent strenuously contended that in view of the charges, the penalty imposed was disproportionate. In his submissions, the offences for which the respondent was charged and held guilty, did not attract penalty more than the minor penalty, as observed to by the Ld. Trial Judge. In RCA No.14/09 Page 9/14 support of his submissions, the Ld. Counsel for the respondent placed reliance upon (2008) 3 SCC 273 State of Madhya Pradesh & Ors. Vs. Hazarilal and (1991) 3 SCC 213 ExNaik Sardar Singh Vs. Union of India & Ors. In Hazarilal's (Supra), the Hon'ble Supreme Court held as under :
"Power conferred on the disciplinary authority to dispense with enquiry against a government servant and to impose penalty under the relevant Rule "on the ground of conduct which has led to his conviction on a criminal charge" does not mean that irrespective of the nature of the case in which he is involved or the punishment which has been impose on him, an order of dismissal must be passed. Such a construction is not warranted.
An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of he case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. The respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence. The Administrative Tribunal rightly held that department penalty was excessive as compared to conduct for which the respondent was convicted RCA No.14/09 Page 10/14 and sentence imposed on him."
In ExNaik Sardar Singh's case (supra), where the delinquent Army Jawan carrying more than the permitted quota of wine bottles issued from Army Canteen had proceeded for home town on leave and en route passing through an area under prohibition, was handed over by civil police to unit authorities for action and liquor bottles confiscated, punishment of three months RI and dismissal from service was held to be severely excessive, observing as follows :
"Having regard to the nature and the degree of the offence in the instant case, it must be held that the punishments awarded to the appellant namely, three months' RI and dismissal from service are severe and are also violative of Section 72. There is an element of arbitrariness in awarding these severe punishments to the appellant. Ends of justice will sufficiently be met if a lesser punishment as provided under Section 71(f) is awarded to the appellant."
7. In the case in hand, penalty of 'dismissal from service', which was revised to 'removal from service', has come to be awarded to the respondent on the charges being under the influence of liquor; having assaulted another HC; having created nuisance; did not attend the 'C' RCA No.14/09 Page 11/14 shift duty on 3/4.5.92 from 2100 hrs. to 0500 hrs. and having unauthorizedly withdrawn from duty without information and permission from the competent authority, deserted CISF unit lines on 4.5.92 and remained absent from duty upto 26.5.92; and habitually over staying and having been OSL/AWL for two times and therefore, being incorrigible. Respondentdelinquent is a HC (Driver). Though, he is said to be under the influence of liquor and under such influence assaulted HC/GD K.K. Singh, as per the own case of the appellant, the Doctor on medical examination only reported for 'consumed alcohol but not under effect'. In other words, it was not the case that the respondent was inebriated. What was the nature of assault is also no where explained by the appellant. Did he inflict slap only or assaulted with a fist or some weapon, there was nothing on record before the enquiry officer. What kind of nuisance he created in unit lines, is also nowhere explained in the enquiry report. The other two charges are in effect of absentism. As per the written submissions filed on behalf of the appellant for his earlier overstay from leave and absentism/desertion for the period from 25.12.90 to 2.4.1991 (91 days) and 1.5.1991 to 21.6.1991 (52 days) respectively, the delinquent was imposed penalties of withholding one increment for one year without cumulative effect and reduction in time scale of pay by one stage for a RCA No.14/09 Page 12/14 period of one year with cumulative effect, respectively. Both the said penalties as such have been minor. If for such overstay and/or absentism, the appellant by itself had imposed minor penalties only, was the other conduct of the respondent of such a nature that he could be imposed the harshest penalty of 'dismissal from service', later revised to 'removal from service'? In my considered view, certainly not. Respondentdelinquent official is not charged with misconduct of either for corruption or moral turpitude. As said earlier, he was neither inebriated while being on duty nor there is any material to show, as to the extent of assault or causing nuisance in the unit. As for the assault, the incident is said to be with a colleague and not a senior and of course, no criminal case came to be lodged against him. As for the charge of being habitual of overstaying and being OSL/AWL for two times, suffice to say, he was penalised for the same and he cannot be subjected to double jeopardy for the same charges. Attending facts and circumstances, do not make out a case of imposition of penalty of 'dismissal from service' or 'removal from service'. In my considered view therefore, the imposition of penalty of 'dismissal from service' or 'removal from service' was disproportionate to the offences, with which the respondent was charged and pleaded guilty. The penalty of 'dismissal from service' or 'removal from service' to the respondent RCA No.14/09 Page 13/14 therefore, cannot be sustained. Respondent is therefore, entitled to the declaration to the said effect. Matter for reconsideration on the extent of penalty, which is proportionate or commensurate with the misconduct is however, kept open to be considered afresh by the competent authority of the appellant.
8. In view of the foregoing, appeal is partly allowed and setting aside the impugned decree and the penalty of 'dismissal from service' later revised 'removal from service' imposed upon the respondent, the matter is remanded back to the disciplinary authority of the appellant for awarding punishment, which is proportionate to the gravity of the misconduct of the respondent. Appeal stands disposed off accordingly.
Announced in the open Court (A.K. Chawla)
on 9th day of February, 2011 Addl. Distt. Judge 1 (Central)
Delhi.
RCA No.14/09 Page 14/14