Naurang Singh (Ex- Constable ) vs The Director General
1998 Latest Caselaw 543 Del

ORDER

K. Ramamoorthy, J.

1. The petitioner has challenged the order of removal dated 01.04.1992 which was confirmed in appeal by order dated 24.12.1992 and the order by the Revisional Authority dated 22.09.1993.

2. The case of the petitioner could be stated tersely in the following terms. Since July 1985 the petitioner was serving in Central Reserve Police Force. After completing requisite training, the petitioner reported for service in 78 Bt. He worked there till 1989. In May/June 1989 he was transferred to E Company 38 Bt.

3. On 25.03.1991, E Company 38 Bt was in Agra in connection with the visit of a VIP. The petitioner had done his duty. Afterwards for a short-while he went outside the camp to purchase soap in a nearby shop. The sentry on the gate had allowed him to go outside and the sentry - if it may be noticed here has stated in his evidence that he did not stop anybody from going outside because there was no order to that effect. Therefore, it is clear that there was no impediment from any constable going outside for the purpose of making purchase. At about that time when his Company was at Agra the petitioner received information that his father was involved in a road accident. He wanted to go on leave for one or two days to see his ailing father and he requested the Commandant to grant him leave and that was not granted. The Commandant got annoyed with the petitioner because the petitioner requested for leave.

4. When the petitioner was outside the camps a check roll was called. The moment he heard the check roll being called he swung into action and rushed to the spot. At about that time when he was inside the camp he was beaten up by some constables. He sustained injury and he had to be admitted in the hospital. The fact that he was in hospital for seven days, according to the petitioner, cannot be disputed by the respondents. He returned to the Company in or about 1.4.1991. He was suspended immediately on his return. He was sent to Battalion Headquarters in the evening on 4.4.1991. At about 8 O'clock he left the place to meet his brother-in-law (sister's husband) to know about the condition of his father who was injured in an accident. He came back about at 5.30 a.m. next morning that is on 5.4.1991. This he did without the permission of the Commandant and this was when he was under suspension which was not authorised. On 5.4.1991 he was handcuffed and put in quarter guard which was in custody, on 26.6.1991, the petitioner was handed over to Delhi Police. The petitioner was prosecuted for an offence of rape alleged to have been committed by him on 3.6.1991 when he was in close arrest. After a long trial he was acquitted by the Sessions Court in Delhi. He was released on 4.5.1995.

5. When he was in custody the departmental inquiry was conducted against him and he was removed from service.

6. The petitioner issued notice through his counsel to the Director General of Central Reserve Police Force on 15.10.1995.

7. According to the petitioner, the inquiry report was not given to him. The evidence recorded at the time of inquiry was sent to him and that was not clear and zerox copies were not legible.

8. In the charge-sheet three charges are levelled against the petitioner:

i) The petitioner left the coy lines/camp at Agra on 25.3.1992 at about 2000 hours without obtaining prior permission of the competent authority.

ii) After leaving the camp on 25.3.91 without permission consumed liquor outside the camp. He was brought back to camp by a search party around 2200 hours on 25.3.1991. The petitioner act against the camp standing order.

iii) While under suspension he left the Battalion Headquarters, Mehrauli at about 1950 hours without prior permission from the competent authority. He came back at his own accord on 5.4.91 at about 0530 a.m. Thereby violated the provisions of rule 27 (b)(2) of Central Reserve Police Force Rules, 1955.

9. The learned counsel for the petitioner Lt. Col C.M. Khanna broadly submitted (1) inquiry report was not given to the petitioner; (2) no evidence had been made out under Section 11 of the C.R.P.F Act, 1949; (3) under Section 10 assuming minor offence had been made out, minor punishment should have been made out; (4) the matter is covered by the judgment of this court reported in Som Beer Singh (Ex.CT) Vs. Union of India 1997 (6) AD Delhi 159.

10. The charged issued was barred under Section 17(3) of the Army Act 185. On a reading of the evidence it could be seen that there is no evidence to support the finding of guilt.

11. The inquiry officer had not even perused the medical certificate to show the nature of the ailment when he was in hospital for 7 days. According to the petitioner, he was beaten up and he was injured by the C.R.P.F. men. But according to the respondents it was an admitted because of intoxication. According to Mr. Khanna, the learned counsel for the petitioner, non-production of the medical certificate is fatal of the case of the petitioner.

12. Ms. Alpanna Poddar the learned counsel for respondents 1 to 3 submitted that the petitioner was issued with a chargesheet, he was given sufficient opportunity to defend himself and the inquiry officer on the basis of evidence had come to the right conclusion and the imposition of punishment of removal was fully justified. The learned counsel Ms. Alpana Poddar submitted that the appellate authority and the revisional authority had considered the matter in great detail and the petitioner has not made out any case for interference under Article 226 of the Constitution of India.

13. In the counter affidavit, it is stated that the petitioner is guilty of laches. The petitioner was put under suspension from 25.3.1991 to 01.04.1992. The petitioner left the Coy line/camp whether he was then stationed without obtaining necessary sanction from the competent authority. The petitioner was found in an intoxicated stage by a search party.

14. On 20.06.1991, the Additional Deputy Commissioner of Police (South Delhi) informed the respondents that FIR under Section 376 read with Section 34 of the Indian Penal Code had been registered against the petitioner at the police station Malviya Nagar, New Delhi. According to the FIR the petitioner along with two non-C.R.P.F. men had allegedly committed rape on3.6.1991 at about 930 a.m The petitioner was handed over to the police on 20.06.1991. A departmental inquiry was also initiated against the petitioner in ;which the petitioner was found guilty. In the reply on merits the respondents had stated "the petitioner was guilty of offence under Section 11(1) of the CRPF Act, 1949.

He was also found guilty under Section 11(1) of the Act read with Rule 27 of the CRPF Rules. The appeal preferred by the petitioner is concerned by the Appellate authority and his revision also was considered by the revisional authority and on this ground the respondents pray for dismissal of the writ petition.

15. The first question that has to be decided is whether the petitioner left the Coy line/camp on 25.3.1991 and whether he was under intoxication and why he was admitted to the hospital. The theory that the petitioner was so intoxicated that he had to be admitted in the hospital and was to be kept in hospital for nearly a week appears to be not true.

16. A very curious procedure had been adopted by the inquiry officer. On 04.12.1991 the inquiry officer questioned the petitioner. Questions and answers are as follows:

Q.1 No.850835862 Ct. Naurang Singh has been informed by me that the Commandant has detailed by as Enquiry Officer of Departmental Inquiry. Does he have any objection?

Ans.1 No.850835862 gave the reply that he has no objection to Departmental Inquiry by Shri Gajraj Singh, A/c.

No.850835862 Ct. Naurang Singh, the delinquent was called and asked the following questions:-

Q.1 Did you receive the memorandum of charges given under office order P VIII-4/91-EC-II dated 27-4-91 or not?

Ans.1 Yes, I received it on 27-4-91.

Q.2 Have I explained to you the contents of memorandum of charges with Annexure I, II, III, IV in the language you understand and have you understood them?

Ans.2.Yes. I have fully understood them.

Q.3 Has the Enquiry Officer explained to you in simple language what you can understand, the all things written in Article of Charges and when.

Ans.3 Today, on 4-12-91, EO has explained to me in simple language which I can understand everything written in the memorandum of charges, and I have understood them.

Q.4 Do you plead guilty or not to the charges in Articles I, II, III of the memorandum?

Ans.4. No, I do not plead guilty to the charges in Articles I, II, III of the memorandum.

17. On 6.12.1991, five witnesses were examined. On the same day the petitioner was asked to give a statement and he is stated to have given the following statement:

Statement of No. 850835862 Ct. Naurang Singh, E. Coy. 38 Bn C.R.P.F. Mehrauli, Delhi - 30.

No 850835862 Ct. Naurang singh having been duly warned to speak the truth, states that :-

I was enrolled on 1.7.85 in 83 Bn CRPF and after training, I was transferred to 70 Bn CRPF. After spending about two years with 70 Bn. on 2.10.88, I was posted with E Coy 38 Bn. where I am continuing to serve. On 25.3.1991, after having breakfast in the morning, I went on duty with the platoon in police line area of Agrs. After doing the duty the whole day, I returned from duty in the evening at about 1700 hrs. After my return, I deposited the weapon in the kot and then had barrack and drank one ounce of English Wine, and after taking dinner, returned to my bed. After that, since my uniform had become dirty, at about 8 pm (2000 hrs) I went shop. The shop was located outside the gate. In the meantime, check roll-call took place. I was not present in the check roll call. Therefore, to search me, a party was sent and I had returned back. When I was returning back, I met Nk Amoros Yadav and Ct. P. Jagat Singh outside the Camp gate, who told me that I was being called inside in the Coy line. At about 2145 hrs, along with them I went to see OC E/38. OC inquired as to where I had gone. I informed him that after taking dinner, I had gone to purchase washing soap. OC asked me if I had taken liquor. I told him that I had taken one ounce of English Wine on my bed. I told him that I was not in state of intoxication. He further asked me as why I had gone out in the state of intoxication. I accepted my fault and requested to be pardoned. After that, OC directed me to go to line when I was going towards the line, from behind I was hit on the head by a lathi by Ct. Sugriv Pandey. I reported this matter to OC and told him that I will have no regret if I am beaten by him, but I have been greatly aggrieved due to beating given by a constable. OC directed CHM Brijraj Singh to take Ct Naurang Singh to Hospital. thereafter I was taken to Hospital by CHM Brijraj Singh. I was admitted in the Emergency Ward by the Doctor on duty and told the guard jawans and CHM to go back to the unit. On 2.4.1991, I was discharged from the Hospital and returned to Company Line. On 3.4.1991, I was called by the OC to office and he made inquiries from me. OC told me that for incident of 25.3.1991, I have been placed under suspension. In office itself, OC took away my belt, on 4.4.1991, along with guard, from 'E' Coy at Agra, I was sent to 38 BN HQ. On 4.4.91, in the evening at about 1900 hrs, I reached BN HQ at Mehrauli, and attended the roll call. After that, I had my dinner in the mess of HQ. Thereafter, I went to the barrack. Since, there was no space inside the barrack to spread my bedding, I brought my bedding roll into the verandah and spread it there. At this time, my mind was not working, because for many days I had not gone home on leave and my father had also met with an accident. Therefore, to find out about the condition of my father, I went out from the 38 Bn line to see my brother-in-law ASI Ram Dev Singh at about 2100 hrs, who was posted on duty with Police Station Haus Khas. After finding out the information about my Father, at about 0100 hrs on 5.4.91, I returned back to my unit line. At about 0530 hrs, on inquiry by Hav Lal Singh, I informed him that I was sleeping in my bed in the verandah. Havildar asked me to tell him the truth and I informed him that my father had met with an accident and to find out about his condition, I had gone to see my brother-in-law in Hauz Khas Police Station. Havildar Lal Singh asked my why I did not obtain the permission to go out. I replied that I was not sure of getting the permission and therefore did not seek the same.

QUESTIONS BY THE E.O

Q.1 On 25.3.91 at 2000 hrs, whose permission you sought to go out of Bazar Gate.

Ans.1 Sir, I did not obtain anybody's permission or inform anybody.

Q.2 At 8.p.m. what was the necessity to go out of the Camp?

Ans.2 Sir, my uniform had become dirty and therefore, I went to purchase the washing soap.

Q.3 Why did you not go and purchase the washing soap during day time?

Ans.3. During day time, I was on duty and could not find opportunity.

Q.4 As your duty was in Bazar only, why did you not seek permission of your Commander and purchase the washing soap?

Ans.4 I was kept in Reserve for duty in the unit line and I had sought permission to go to Bazar of Subedar Govind Singh, who said that it is not certain when you may be called for duty, therefore, I was not allowed to go out to Bazar.

Q.5 When the Platoon was returning back from duty to unit line, why you did not seek permission to purchase material for cleaning?

Ans.5 Since, I was refused permission by Commander earlier, I did not seek his permission again.

Q.6 Did you consume liquor? why, how much and at what place?

Ans.6 Yes, I consumed liquor, one ounce in my bed, as I am fond of it.

Q.7 Are you habitual of Drinks?

Ans.7 No Sir, I am not habitual, sometimes I am fond of it.

Q.8 In your statement you have said that you had taken one ounce of English Wine in your bed, from where did you get it?

Ans.8 On the occasion of Holi, SHO Loha Mandi had given two bottles of English Wine for distribution among Jawans of Platoon. That day, since I was on duty, I kept my share with me. On 25.3.91, I consumed one ounce which was kept with me.

Q.9 Did you get intoxicated after consuming one ounce of liquor?

Ans.9 No Sir, I did not get intoxicated.

Q.10 Is there any earlier incident also connected with consuming liquor?

Ans.10 No Sir.

Q.11 At 8 p.m. (2000 hrs), which brand of soap did you purchase and what is the amount of money shown in the bill. Can you produce the bill?

Ans.11 At 8.p.m. (2000 hrs) I had purchased RIN soap for Rs.6.50. No bill was obtained for it and now, no bill can be produced by me.

Q.12 In your statement, you have said that soap was purchased from a shop which is located opposite the place of taking bath/washing clothes. How far is the place and how much time it takes to go there and come back?

Ans.12 Company line/Camp was located in the Hostel. Outside the camp gate is the place located for taking bath/washing clothes. The shop is opposite that place and it takes only 10 minutes to go there and come back.

Q.13 In your statement, you have said that at 8.p.m (2000 hrs) you went out of line to purchase soap from a nearby shop and returned at 2145 hrs. where were you for 1 hrs and 35 mts?

Ans.13 I was sitting and talking at the Pan Shop in front of the hostel.

Q.14 In your statement, you have stated that you were hit on the head by Ct. Sugriv Pandey. Why did he hit you, did he have any earlier enmity with you? did you abuse him?

Ans.14 Sir, I did not have any old enmity with him and I don't know the reason for his hitting me. I had not abused him.

Q.15 On 4.4.1991, you reported from 'E' Coy to 38 Bn HQ at Mehrauli at 1900 hrs and at about 2100 hrs you went out of the unit line. Did you seek anybody's permission or inform anybody?

Ans.15 No, I did not seek anybody's permission or inform anybody.

Q.16 Were you aware that you were under suspension and without the permission of suspending authority, leaving the unit line was an offence?

Ans.16 Yes, I was aware of suspension and knew that it was offence to go out without permission of suspending authority, and I have committed an offence by going out of camp without permission of suspending authority.

Q.17 By which route, you went out of Bn HQ Lines?

Ans.17 I had gone out from the route of 70 Bn.

Q.18. Did at 0100 hrs on 5.4.1991, when you came back to unit line, you reported to Havildar Major or B.H.M. or J.A.?

Ans.18 No Sir, at that time everybody was sleeping, therefore, I did not report to anybody and went to sleep.

Q.19 Do you plead guilty or not to the charges contained in Articles I, II, III of the charge sheet?

Ans.19 No, I do not plead guilty.

I have read the statement and understood it correctly.

I have received copy of my statement and statement of witnesses 1 to 5.

      Sd/-                          Sd/-
     Ct. Naurang Singh             Gajraj Singh Yadav
     6-12-91                       6-12.91

18. On the basis of the material available on 1.4.1992 the Commandant passed the order removing the petitioner from service holding that the charges levelled against him stands fully proved beyond any doubt. The report of the enquiry officer was not given to the petitioner.

It was held "on Article I the petitioner left the company line on 25.3.1992 without any permission also stands proved.

On Article II the petitioner left the camp on 25.3.91 without permission consumed liquor outside the camp, the Commandant held that offence proved.

On Article III the Commandant found that the petitioner left in the night and he returned back next day morning on 5.4.1991 at about 5.30 a.m. The Commandant came to this conclusion without giving any reason and reference to any evidence.

19. By an order dated 24.12.1992, the Deputy Inspector General of Police, Calcutta passed the order confirming the order of the disciplinary authority. Though the Deputy Inspector General of Police C.R.P.F had referred to the facts there is no discussion or analysis of the evidence on record.

20. The petitioner took up the matter in revision. The Inspector General of Police C.R.P.F. Calcutta by an order dated 22.09.1993 confirmed the order of the appellate authority and the disciplinary authority. The Inspector General of Police (Revision Authority) had narrated the facts but the case has not been considered in the way in which the appellate and revisional authority is expected to consider. The revisional authority had observed that the petitioner admitted in hospital on 25.3.1991 with alchololic intoxication and this conclusion the revisional authority arrived on the basis of the discharge slip of the Sarojini Naidu Hospital. The authorities had not noted the facts. The inquiry was held against him when he was in jail and was facing prosecution before a criminal court. He was acquitted by the Sessions Court in Delhi and was released on 4.5.1995.

21. The medical certificate of the Sarojini Naidu Hospital has not been produced. The concerned medical officer had not been examined. If a person was intoxication it was not explained as to why he was in hospital for nearly a week. The case of the petitioner that he was beaten up and there-fore he was admitted to the hospital has to be accepted in the absence of necessary evidence coming forth from the respondents.

22. When the petitioner heard about the accident in which his father was involved he wanted to go to see his brother-in-law to ascertain the position. He left the camp on 4.4.1991 at about 1950 hours and returned back on 5.4.1991 at about 5.30 a.m. and it was at that time he was unauthorised suspension. The respondents had not acted in accordance with law and they have merely persecuting the petitioner. The hospital record had not been produced. The Commanding officer who was conducting the enquiry had acted in flagrant gross violation of the principle of natural justice. It is well settled that when authorities dealing with the rights of parties decide matters on the basis of facts which are wholly irrelevant and no authority properly instructed in law would take the view that has been taken by the authorities and the orders passed by the authorities are contrary to law they cannot be sustained.

23. In my view, the respondents have not proved the charges against the petitioner and the whole procedure adopted by the respondents is contrary to law and therefore, the petitioner is entitled to succeed. Accordingly, the writ petition is allowed. The orders dated 1.4.1992, 24.12.1992 and 22.9.1993 are quashed and the petitioner shall be reinstated in service with all consequential benefits on or before 30.09.1998.