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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)No.3238/1996
% Date of decision: 12th January, 2012
EX. HC/DVR ATTAR SINGH ..... Petitioner
Through : Mr. Atha Sagar Verma, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through : Dr. Ashwani Bhardwaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R. MIDHA
J.R. MIDHA, J.
* CM Nos.113-14/2012
1. For the reasons stated in the applications, the delay in filing the application for restoration is condoned and the writ petition is restored to its original number.
2. The applications are disposed of.
W.P.(C)No.3238/1996
1. The petitioner has challenged the order dated 22nd September, 1992 whereby he was removed from service and the order dated 9th March, 1993 whereby his appeal against the removal order was dismissed.
2. On 7th October, 1990, a chargesheet was issued to the petitioner containing the following six charges:- W.P.(C)No.3238/1996 Page 1 of 7
"ARTICLE OF CHARGE NO.1 That No.841540020 HC/Dvr Attar Singh of CISF Unit HWP Manuguru was absent from Mallaram Camp lines on 25.9.90 (Night) without any permission or any authority. He was absent from the lines upto 2030 hrs it was a serious misconduct on his part.
ARTICLE OF CHARGE NO.2 That No.841540020 HC/Dvr Attar Singh went to the Bandaragudam Market and consumed intoxicated drinks or materials or substances and became unconscious. He was found lying unconscious on the road side in the Bhandragudem Market area. It was noticed by a Civilian and it was reported to the CISF lines. No.8650125 Const. Om Prakash rushed to the spot and collected HC/DVR Attar Singh in unconscious condition and brought to the Mallaram Camp lines on 25.9.90 at about 2030 hrs with the help of Auto Rickshaw. HC/DVR Attar Singh made a serious lapses and showed indiscipline conduct consuming intoxicated materials/liquor in public place. He had destroyed the image of CISF by doing such acts.
ARTICLE OF CHARGE NO.3 That No.841540020 HC/Dvr Attar Singh was taken to the HWP (M) Aswapuram Hospital for medical treatment and to bring him back into senses. The Medical Officer of HWP (M) Hospital examined him and opined that the driver had consumed intoxicated substances which made him unconscious. However his case was referred by him to Civil Hospital, Badrachalam for further investigation and treatment. The individual had made serious lapses by consuming liquor in the public place and becoming unconscious due to consumption of excessive quantity of intoxicated materials. He brought a bad name to the CISF and proved himself unbecoming of a good member of Force.W.P.(C)No.3238/1996 Page 2 of 7
ARTICLE OF CHARGE NO.4 That No.841540020 HC/Dvr Attar Singh was given General Shift duty at Main Gate wef. 27.09.90. He never reported for duty at Main gate and not given any attendance to the duty officer. On 1.10.90 he was found in a very nasty dress at main gate. He replied in arrogant manner to the DC that he had only one set of dress. Whereas he failed to produce his kit book for verification. He was awarded physical punishment by the DC in orderly room for his lapses. He refused to carry out the order issued by the DC in the orderly room and argued with him in most indisciplined manner. It was a show of serious indiscipline conduct, dereliction of duties and insubordination.
ARTICLE OF CHARGE NO.5 That No.841540020 HC/Dvr Attar Singh was asked to shift from Mallaram Camp to Aswapuram Camp on administrative ground. The individual disobeyed the instructions and refused to shift from Mallaram Camp to Aswapuram Camp. He acted in derogatory manner and showed indiscipline conduct and insubordination to his superiors.
ARTICLE OF CHARGE NO.6 That No.841540020 HC/Dvr Attar Singh was awarded petty punishment under CISF Rules 36. He refused to carry out the order issued by the DC in orderly room and disobeyed the lawful order issued by the DC. The individual has shown serious indiscipline conduct and insubordination which proved himself unbecoming of a good member of the force."
3. A departmental enquiry was conducted in respect of the aforesaid charges. Vide report dated 18th May, 1991, the petitioner was held guilty of charges No.1 to 4 and 6. Based on the enquiry report, the punishment of removal from service was imposed vide order dated 27th July, 1991. W.P.(C)No.3238/1996 Page 3 of 7
4. The petitioner filed an appeal against the aforesaid order which was allowed vide order dated 8th May, 1992 whereby the petitioner was reinstated and de novo enquiry was directed to be conducted against the petitioner.
5. During the de novo enquiry, 21 witnesses were examined by the prosecution. The petitioner did not produce any witness to prove his case despite sufficient opportunity granted to him. It was proved in the enquiry that the petitioner was absent from Mallaram Camp Lines on 25th December, 1990. He was later found lying in a complete unconscious state on the roadside of Bandaragudem area by PW-16, Constable Om Prakash who took him in an auto rickshaw to Coy Lines. He was taken to the hospital by PW-3, Inspector S.N. Singh where the Medical Officer found alcoholic smell from his mouth. Ex.P- 5 is the medical certificate issued by the Medical Officer, Dr. M. Lakshmaiah. In the de novo enquiry, charges No.1 to 3 and 6 were proved whereas charge No.4 was partially proved against the petitioner and he was awarded punishment of removal from service vide order dated 22nd September, 1992.
6. The petitioner preferred an appeal against the order of removal which was rejected by the appellate authority on 9th March, 1993.
7. The petitioner filed this writ petition after more than W.P.(C)No.3238/1996 Page 4 of 7 three years on 21st August, 1996. The learned counsel for the petitioner has urged that the statement of the witnesses ought not to have been examined afresh in the de novo enquiry. The learned counsel for the petitioner refers to and relies upon the judgment of the Supreme Court in the case of State Bank of Bikaner and Jaipur v. Ajay Kumar Gulati, 1996 (5) SCALE
226. It is further submitted that the petitioner had gone to the market where he had taken some medicine for headache and malaria due to which he fell down on the roadside due to giddiness, became unconscious and after that, he did not know anything till 26th September, 1990 when he regained consciousness at Bhadrachalem Hospital.
8. The original record of the enquiry conducted against the petitioner has been perused. The petitioner had challenged the first enquiry report on the ground that the enquiry was conducted by the Deputy Commandant, S.B. Choudhury, who was also the complainant. The Appellate Authority allowed the appeal holding that the departmental enquiry proceedings have not been conducted in accordance with the procedure laid down in the CISF Rules. The Appellate Authority, however, directed the disciplinary authority to conduct de novo proceedings afresh against the petitioner. In terms of the said order, a new enquiry officer was appointed and the de novo W.P.(C)No.3238/1996 Page 5 of 7 enquiry was conducted from the stage of examination of the prosecution witnesses and the petitioner was given reasonable opportunity to cross-examine the prosecution witnesses. S.B. Choudhury, Deputy Commandant was cited as a witness in the de novo enquiry but was not examined as alleged by the petitioner. In the case of State of Bikaner and Jaipur (supra) relied upon by the petitioner, the petitioner therein had not been given proper opportunity to lead the documentary and oral evidence and the de novo enquiry was ordered to provide an opportunity to the petitioner therein to lead the documentary/oral evidence and also consider recalling any witness of the petitioner for further cross-examination. There was no objection by the petitioner to the authority or competence of the enquiry officer. In that view of the matter, the Court held that an enquiry officer should proceed from the stage of evidence. The facts of the present case are entirely different inasmuch as the petitioner had challenged the competence of the enquiry officer to conduct the enquiry, being the complainant. In that view of the matter, the proceedings conducted by the earlier enquiry officer were vitiated and, therefore, a new enquiry officer had to commence the proceedings from the stage the infirmity crept in. No prejudice has been caused to the petitioner who cross- W.P.(C)No.3238/1996 Page 6 of 7 examined the witnesses and was also granted opportunity to lead evidence but the petitioner chose not to lead any evidence to prove his defence. The petitioner also did not avail the defence assistance despite opportunity granted. The charge against the petitioner has been proved by sufficient evidence. There is no violation of principles of natural justice in the de novo enquiry. The charge against the petitioner is grave enough and the punishment of removal awarded to the petitioner cannot be said to be disproportionate.
9. In the totality of facts and circumstances and for the foregoing reasons, there are no grounds to interfere with the decision of the respondents as the petitioner has failed to make out any illegality, irregularity, perversity or any jurisdictional error to warrant any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The writ petition is, therefore, dismissed.
ANIL KUMAR, J.
J.R. MIDHA, J JANUARY 12, 2012 aj W.P.(C)No.3238/1996 Page 7 of 7