Delhi District Court
Ct. Raj Kumar vs Union Of India on 5 December, 2009
1
IN THE COURT OF SH. AJAY GOEL, LD. SCJ CUM RC (CENTRAL)
DELHI
S1043/06/93
In the Matter of :
Ct. Raj Kumar,
D Coy VIII Bn.
I.T.B. Police, P O Sunil (Joshimath)
District Chamoli (UP)
Now R/o H.No. 3452,
Sector23D, Chandigarh. ...............Plaintiff.
VERSUS
Union of India,
through Secretary,
to Government of India,
Ministry of Home Affairs,
New Delhi. .............Defendant.
Date of Institution: 25.5.1993
Date of Assignment to this court: 25.11.2008
Date of Arguments: 02.12.2009
Date of Decision: 05.12.2009
JUDGMENT
1. This is a suit for declaration filed by the plaintiff against the defendant. As stated the plaintiff was appointed as constable/GD in the Indo Tibetan Border Police w.e.f. 10.3.1986 and on his transfer to Mussorie to VIII Bn. 2 ITB Police, Sunil(Joshimath), the plaintiff joined the VIII Bn. on 5.12.1991 and was assigned the duty of Runner in the office of 2nd in command of the Battalion. As stated before his transfer to VIII Bn. ITBP, Sunil the plaintiff remained admitted in Military Hospital, Dehradun w.e.f. 11.6.91 to 13.8.91 on account of the disease of both knees Arthitis and was placed in Low Medical Category CEE(T) for 6/12 months w.e.f. 17.8.91 and it was recommended by the Hospital authorities that the plaintiff be not posted in extremely cold climate and then plaintiff was transferred to VIII Bn. IT Police, sunil against the advice of the Military Hospital authorities, Dehradun i.e. an extremely cold climate station and request of plaintiff to transfer to a hot station was ignored. As stated that the Battalion Havildar Major Sh. Mohan Badola assigned the plaintiff the hardest of the duties of Runner, grazing goats in the jungle and the regimental police duty during the period from 5.12.91 to 20.1.92. It was further stated that on 12.12.91, the BHM ordered that henceforth, the plaintiff will go for Nilkanth Exercise, the plaintiff approached all the 3 lower officers against this order on health grounds but none came to his rescue and then plaintiff approached the adjutant Sh. Rawat for sparing him of the Nilkanth Exercise on health grounds. As stated one day there was a drama in the camp, the floor being very cold, the plaintiff sought the permission of the BHM to sit on a chair but he was very rude in his behaviour with the plaintiff and he even went to the extent of saying that he would give a slap on his face if he persisted for sitting on the chair and plaintiff left the drama and about the misconduct and misbehaviour of the BHM, the plaintiff filed a complaint to the commandant on 12.12.91 but he did not take any action against him. It was further stated that on 20.1.92, the BHM announced in the Roll Call that on 21.1.1992, the plaintiff is to appear before the acting commandant in the orderly room and on 21.1.92 when plaintiff appeared before the acting commandant at 12.00/1.00 A.m., he was not told any charge against him and the acting commandant enquired from the plaintiff if he wanted to do, the plaintiff thought that the acting commandant might be inquiring about the duty 4 and he , therefore, replied that he is doing the duty which is assigned to him and this angered him and he retorted as to why was the plaintiff speaking loudly and the acting commandant announced the punishment of confinement to quarter guard for 7 days without telling the plaintiff as to what was the charge against him. As stated plaintiff refused to accept the punishment so long he was not told about the charge and he given an opportunity of defence. As stated plaintiff also insisted about the action taken on his complaint and at this the acting commandant passed the order of suspension of the plaintiff. As stated the acting commandant again forced the plaintiff to obey his order but plaintiff refused the same to accept without telling him the reason. The acting commandant summoned sentries from the quarter guard and got the plaintiff handcuffed. As stated when condition of plaintiff deteriorated then he was taken to Unit hospital but after few days he was discharged as acting commandant forced the doctor to discharge the plaintiff and was kept in confinement. Thereafter, the acting commandant charge sheeted the 5 plaintiff vide his order dated 5.2.92 on some charges levelled against the plaintiff. It was further stated that vide order No. VIII Bn/ITBP/EC II/D.E./923473 dated 1.8.92, the commandant dismissed the plaintiff from service, the dismissal from service order was delivered to the plaintiff on 2.8.92 alongwith the copy of the inquiry report. It was further stated that during the pendency of the departmental inquiry, the Chief Judicial Magistrate and commandant, VIII Bn. ITBP, Sunil Ilam Singh AC/Commandant against the plaintiff to the court of Sh. K.S. Rawat, Judicial Magistrate 1st class, Astt. Commandant vide no. 1275 dated 23.3.92 and ordered the plaintiff to appear in the court as and when directed to do so. It was stated that Sh. K.C. Rawat, Judicial Magistrate 1st Class vide his judgement dated 15.6.92, the judicial magistrate 1st class and asst. commandant VIII Bn., Sunil acquitted the plaintiff of all the charges levelled against him. As stated the plaintiff filed a complaint against Madan Mohan Badola for forcing the plaintiff for Nilkanth exercise but commandant did not take any action on this complaint. It 6 was stated that plaintiff also filed one more complaint on 25.1.92 against punishment of confinement to Q.G, but acting commandant did not take any action on it. It was further stated that appeal against the order of dismissal from service was sent to competent authority through proper channel under registered post but the competent authority did not consider the appeal and then notice U/s 80 CPC was sent to the defendant on 2.3.93 but defendant did not take any action on the notice. Hence it was prayed that the suit of the plaintiff for a declaration that dismissal from service of the plaintiff by commandant, VIII Bn. ITBP, Sunil (UP) vide order No. VIII Bn/ITBP/ECII/D.E./923473 dated 1.8.92, is wrong, arbitrary, malafide, null and void and plaintiff is entitled to the reinstatement in service with all consequential benefits including interest on back wageas @ 24 % p.a. be decreed with costs.
2. Written Statement was filed on behalf of defendants in which contents of plaint were denied and it was stated that plaintiff has not come with clean hands and has suppressed the material facts from this court and hence the 7 present suit is liable to be dismissed. On merits it was stated that though the medical officer recommended that the plaintiff should not be posted in extreme cold climate, but he was not exempted to perform any other kind of duty and he was assigned the lightest and easiest duty of office of Runner. It was further stated that there is no place within the operational area of 8th Bn. which is less colder than Joshi Math where the plaintiff should have been transferred and plaintiff was transferred on the orders of the higher Hqrs. It was further submitted that whenever any film or drama is being arranged in the camp, all the Cts and Uos except Hcs are supposed to sit on darries laid down on the ground and chairs are only being provided to officers and if the plaintiff was not in a position to sit on darries or to bear cold, he would have opted not to attend th drama since it was not compulsory to see drama. As stated when officiating commandant was explaining the plaintiff that the what offence he has committed, the plaintiff started speaking loudly and arguing with officiating commandant. It was further submitted that when the 7 days 8 quarter guard was awarded to the plaintiff by the officiating commandant, the commandant was on leave for 36 days w.e.f. 8.1.92 to 12.2.92, therefore the contention of the plaintiff that the officiating commandant could not give the punishment of quarter guard in absolutely wrong and when in orderly room, the plaintiff was told about the offences committed by him and was asked to give his defence, then he started asking the commandant about some report and when commandant asked about the contents of the said report, the plaintiff said nothing. It was further submitted that whatever charges were framed against the plaintiff, the same were communicated to him vide office order No. 709, dated 5.2.92 which were received and signed by the plaintiff on 8.2.92.
3. Replication was filed by the plaintiff in which contents of plaint were reiterated and reaffirmed and those of WS were denied.
4. Vide order dated 23.1.1995, the following issues were framed:
1) Whether the plaintiff is entitled to the relief of declaration as prayed for?
9
2) Whether the plaintiff has got no cause of action?
3)Whether the plaintiff has not come to the court with clean hands?
4) Relief.
5. In evidence the plaintiffs examined himself in support of his case as PW 1 and reiterated the contents of the plaint.
6. In defence, defendants examined two witnesses namely DW1 Sh. Ilam Singh and DW2 Sh. Bhupinder Kotnala in support of defence.
7. I have gone through the record and have heard the counsels for both parties. My issuewise finding is given below:
8. Issue No. 1. Whether the plaintiff is entitled to the relief of declaration as prayed for?: During the course of arguments, the counsel for defendant has argued regarding the maintainability of the suit also. The counsel for plaintiff has refuted the arguments and submitted that PW1 has appeared as a witness and he deposed before the court regarding the manner in which the inquiry was conducted and relied upon Executive Committee of UP Warehousing Corp. Vs. Chandra Kiran Tyagi AIR 10 1970 SC 1244 and submitted that in relation to the master and servant whenever statutory status is given to an employee and there is violation of the provisions of statute while terminating the services of the said employee, then suit for declaration is maintainable. To the same effect he has also relied upon Dr. S.B. Dutt Vs. University of Delhi AIR 1958 SC 1040 and S.R. Tewari Vs. District Board Agra AIR 1964 SC 1680. The proposition of law laid down in the judgment Supra is deemed to be existing today. The arguments of the defence is that it has to be seen whether the statute rights have been violated is to be proved and then only it can be seen whether the suit for declaration is maintainable, but I am not in agreement to this argument as to show that provisions of statute has been violated, one has to file a suit and in these circumstances it is held that the suit is maintainable, but if plaintiff fails to show any reasonable ground for having a decree for declaration then his suit will automatically fails. Ld. Cl. has relied upon AIR 1999SCpg.677 and argued that when there is no evidence in support of charge framed against 11 the delinquent officer the judicial review is always available. The concept of reasonable opportunity was discussed in AIR 1958SC300 wherein it was observed that " To summarise the reasonable opportunity envisaged by the provisions under consideration include: (a) An opportunity to deny his guilt and establish his innocence which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based. (b) An opportunity to defend himself by cross examination the witnesses produced against him and by examining himself or any other witness in respect of his defence and finally (c ) An opportunity to make his representation as to why the proposed punishment should not be inflicted on him which he can only do if the competent authority after the inquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict only of the three punishments and communicates the same to the Govt. Servant. The principal of natural justice has to be followed at all stages of departmental proceedings as it 12 has been held by Supreme Court in Bhim Singh vs. UOI AIR 1970SC150. In departmental proceedings the authority has to follow fair procedure confirming the principles of natural justice at all stages and if there is any lapse at any stage it vitiates the entire proceedings. Thus, now I have to see as to whether principles of natural justice have been violated or not in the present case. The plaintiff has assailed the punishment on many grounds as detailed in plaint. The plaintiff has submitted that he could have not given punishment of 7 days by Acting Commandant which have been assailed by Counsel for defendant on the ground that 7 days punishment is covered as minor punishment and as per rule 11 subrule 3, Assistant Commandant could give confinement up to 7 days. It is also confirmed as per section 27 of CRPF Act, 1949. Though the procedure as mentioned is formally departmental inquiry but the defendant has produced DW1 as witness who has simply stated that plaintiff has committed an offence and awarded him 7 days quarter guard but how he came to the conclusion is not made out and it seems to have 13 been without any formal departmental inquiry thus, though the Assistant Commandant would give the punishment but he did not follow the procedure established by Act and on his whims and wishes had awarded the punishment. The plaintiff was suffering with disease is duly admitted and it seems that the disciplinary authority/competent authority and superior authority has one motive in mind i.e. discipline in the force and have totally ignored the apathy of the plaintiff and has resorted to inhuman attitude towards him. They have admitted that he could not have worked in cold and incident had happened in cold weather and plaintiff had simply asked a chair but his plea was ignored and rather he was made to suffer. It is not disputed that he could not sit at floor and similarly he was the person from lower rank does not mean that basic humanity should be done away with. The Assistant Commandant/DW1 has admitted that no explanation of plaintiff was called on the receipt of the complaint. He had no knowledge of the previous complaints. He has admitted that chair was asked by plaintiff to see the cultural show and he 14 was not eligible for sitting in chair. He admitted that plaintiff was taken to the hospital for treatment. He admitted that plaintiff was not given the copies of preliminary inquiry report and court inquiry report. He also admitted that plaintiff was acquitted in judicial trial where his statement was also recorded on the alleged charges. He could not explain as to if the person is acquitted in judicial trial, how those charges could be proved in D.E. DW2 has admitted that from the given record, the medical authority has recommended the plaintiff not to be posted in extremely cold climate. He also admitted that copies were not supplied to the plaintiff. He could not show any proof on the record which could show that copy of departmental inquiry was supplied to the plaintiff. He admitted the leave application Ex. P13 and in WS, defendants have admitted that charges in criminal court and D.E. were having similarity. The plaintiff has mentioned in plaint that name of so many witnesses were not recorded in list of witnesses but the same could not be denied by defendant in the WS meaning thereby the same is deemed to be admitted. 15 The defendants have mentioned simply in the WS that the plaintiff has refused to be assisted by any person but the same could not be substantiated before the court. The counsel for the plaintiff has relied upon Rule 27(CCC) of CRPF Rules 1955 that when the member of force have been tried and acquitted by criminal force, he shall not be punished departmentally under this rule on the same charge or on similar charge upon the evidence cited in criminal case, whether actually led or not except with the prior sanction of the IG. Thus, rules are well settled and defendant could not prove before this court as to why the D.E. was conducted in violation of this rule. The defendant has taken another objection that plaintiff could have filed the appeal to which plaintiff submitted that he has filed appeal which is denied by defendant and they have only argued that the same was not addressed to the competent authority, hence, it was returned. It is really amazing on the part of department that though they are legally trained sound persons still the appeal was not entertained and was not sent to competent authority 16 though it should have been done at their end as plaintiff cannot be having knowledge as must be belonging to the meagre background and cannot be legally sound. Thus in these circumstances, from the observation made above, it is clear that principles of natural justice have been violated and plaintiff is entitled to the relief. Hence, issue no.1 is decided in favour of the plaintiff and against the defendant.
9. Issue No. 2. Whether the plaintiff has got no cause of action?: Plaintiff has been able to prove that his principles of natural justice have been violated and he was removed from the services illegally in the findings of issue No.1 hence he had no other alternative except to approach the competent authority of law. Hence the present suit was filed and cause of action exists. Accordingly, issue No. 2 is decided in favour of the plaintiff and against the defendant.
10. Issue No. 3. Whether the plaintiff has not come to the court with clean hands?: No evidence has been led on this issue. There is no whisper of single word in evidence regarding this averment Accordingly, this issue 17 is also decided in favour of the plaintiff and against the defendant.
11. Relief: In view of the findings on all issue, the suit of the plaintiff succeeds. It is held that principles of justice has been breached and due opportunity was not granted to the plaintiff by the disciplinary authority to represent him properly before imposing the penalty and thus this denial has resulted in miscarriage of justice and dismissal order is wrong and consequently I set aside order of removal from service by deciding issue no. 1, 2 and 3 in favour of plaintiff and against the defendant and it is also held that order of competent authority is wrong and is in violation of rules of natural justice and is not sustainable in law in the eyes of law. In view of the above findings with respect to the abovesaid issues I order that plaintiff is entitled for reinstatement alongwith all benefits till date deeming him still in service. The suit of the plaintiff is decreed accordingly with costs. Decree sheet be prepared. File be consigned to record room.
Announced in the open court on AJAY GOEL 05.12.09 SCJ CUM RC(Central)Delhi.