Chukhan Singh vs Govt. Of Nct Of Delhi And Anr.
2009 Latest Caselaw 3328 Del

*              HIGH COURT OF DELHI: NEW DELHI

+      Writ Petition (Civil) No. 7585/1999

                   Judgment reserved on: 11th August, 2009
%                  Judgment delivered on: 24th August, 2009

       CHUKHAN SINGH                      ..... Petitioner
                   Through: Mr.P.P.Khurana, Sr.Adv. with
                            Ms.Seema Pandey and
                            Mr.Birender Singh, Advd.
              Versus

       GOVT. OF NCT OF DELHI AND ANR. ..... Respondents
                    Through: Mr.Amiet Andley with
                             Mr.Arun K.Sharma, Advs.
       Coram:
       HON'BLE MR. JUSTICE MADAN B. LOKUR
       HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers may
          be allowed to see the judgment?           Yes

       2. To be referred to Reporter or not?               Yes

       2. Whether the judgment should be reported
          in the Digest?                                   Yes

A.K. PATHAK, J.

1. The Petitioner has filed this writ petition praying

therein that order dated 7th September, 1999 passed by

Principal Bench of Central Administrative Tribunal, New

Delhi (hereinafter referred to as the "Tribunal") in O.A. No.

2628/1993 as well as dismissal order dated 27th July, 1993

of the Disciplinary Authority and the appellate order dated

3rd November, 1993 be quashed.

Page 1 of 16 W.P. (C) No. 7585/1999

2. Brief background of the case, which led to passing of

the impugned order, is that the Petitioner joined Delhi Police

on 1st April, 1986 as a Constable. On 11th May, 1992 he

was placed under suspension pending departmental

enquiry. Summary of allegations was served on the

Petitioner on 1st August, 1992 and thereafter enquiry

proceedings commenced.

3. The allegations against the Petitioner read as under:-

"I, Inspector Sita Ram SHO, Kalyan PUri, E.I. Charge you constable Chukhan Singh, No.763-E that you while posted at Distt. Line East Distt. on 6.5.92 submitted a recommendation roll to the ACP/HQ/E directly by making forged signatures of Sh.Shiv Kumar Sharma, RI/East Distt. The ACP/HQ found the signature suspicious and ordered an enquiry into it and sent the same to RI/East, Distt. with the query:- (1) whether these signatures are of RI/East or otherwise?

(2) If these signatures are not of RI/East, then who put up these papers in the dak file. The RI/East showed this R.R. to SHO/Preet Vihar, SHO/G.Nagar. and Insp. Vigilance East Distt. who were sitting in his room on the next day i.e. 8.5.92. This R.R. was lifted from the table of RI/East by you when you came to know about the enquiry which was being conducted by RI/East Distt. Delhi. It is also alleged that a telephone call from Mr. Gautam (Attached with Hon'ble M.P. Sh.

Paswan) was received by ACP/HQ/East, not Page 2 of 16 W.P. (C) No. 7585/1999 to take any action against (the constable) you. In this way you tried to give extra departmental pressure, which is totally in violation of Rule 13 of Delhi Police (General Conditions of Service) Rules, 1980.The above act of yours, amounts to grave misconduct, malafide intention and unbecoming of a member of disciplined force which renders you liable to be dealt with departmentally u/s. 21 of Delhi Police Act, 1978".

4. During the enquiry proceedings eight witnesses were

examined before the Enquiry Officer. Initially, Petitioner

participated in the enquiry proceedings, however,

subsequently he left the enquiry proceedings midway and

was proceeded ex-parte. Petitioner stopped appearing with

effect from 18th March, 1993. PW5 to PW8 were examined

after the Petitioner stopped appearing. So far as PW1 to

PW4 are concerned, they were examined in presence of the

Petitioner. PW4 was even cross examined by the Petitioner.

After concluding the enquiry proceedings Enquiry Officer

gave his report dated 15th May, 1993 thereby holding that

the charges against the Petitioner stood substantiated.

5. Disciplinary Authority gave a show cause notice dated

8th July, 1993 to the Petitioner. Written statement was

submitted by the Petitioner on 11th July, 1993. Thereafter,

Page 3 of 16 W.P. (C) No. 7585/1999 Disciplinary Authority vide order dated 27th July, 1993

dismissed the Petitioner from the police force. Petitioner

filed an appeal against the order of the Disciplinary

Authority. The Appellate Authority also afforded personal

hearing to the Petitioner on 11th October, 1993. Thereafter,

vide order dated 3rd November, 1993 appeal was dismissed.

Aggrieved by the orders passed by the Disciplinary Authority

and Appellate Authority Petitioner filed O.A. No. 2628/1993

before the Tribunal which has been dismissed vide the

impugned order dated 7th September, 1999.

6. Petitioner assailed the penalty order as well as

appellate order on the ground that the summary of

allegations were not accompanied with list of witnesses and

list of documents; the documents required for his defence

were not furnished; that the enquiry was conducted in a

language with which Petitioner was not proficient; Enquiry

Officer did not read over and explain the summary of

allegations; Enquiry Officer did not allow the Petitioner to

cross examine the witnesses; Enquiry Officer conducted the

departmental proceeding ex-parte; Enquiry Officer

misbehaved and humiliated the Petitioner and his defence

Page 4 of 16 W.P. (C) No. 7585/1999 assistant; Approval of charges were not obtained from the

Competent Authority; Petitioner was denied reasonable

opportunity to defend his case; ACP, who had allegedly

received the telephone call from an official attached to

Member of Parliament, was not examined, therefore, the

charge that the Petitioner had put extra departmental

pressure on his superior officer and thereby violated Rule

13 of Delhi Police (General Conditions of Service) Rules,

1980, remained unproved.

7. Learned Tribunal considered these grounds of

challenge but did not find any force therein. Tribunal held

that the Petitioner had been given lot of opportunities to

defend himself but the same were not availed by him.

Summary of allegations was duly explained to the Petitioner

in Hindi language thus there was no violation of any Rule.

Petitioner attended the departmental enquiry up to 5th

February, 1993 but thereafter, did not cooperate and

subsequently he stopped appearing and was rightly

proceeded ex-parte. Documents were duly supplied to the

Petitioner and he was even assisted by a defence assistant,

who was conversant with the English language.

Page 5 of 16 W.P. (C) No. 7585/1999 Opportunity to cross examine the witnesses was afforded to

the Petitioner but he did not fully avail the same. Tribunal

also held that no prejudice was caused to the Petitioner.

8. We find no reason to interfere with the findings of the

Tribunal which is in consonance with the material on

record. We do not find any jurisdictional error in the

impugned order.

9. We do not find any force in the contentions of the

learned Senior Counsel for the Petitioner that the

documents were not supplied during the enquiry

proceedings and that the principles of natural justice were

not followed. We also do not find force in his argument that

the opportunity was not granted to the Petitioner to defend

himself during the enquiry proceedings or that opportunity

to cross examine the witnesses was not afforded. Perusal of

enquiry report shows that the documents were duly

supplied to the Petitioner on more than one occasion.

Copies of documents were provided to the Petitioner on 13 th

September, 1992 against receipt. On his insistence

photocopies of documents were again supplied to him by the

Enquiry Officer. Disciplinary Authority and Appellate Page 6 of 16 W.P. (C) No. 7585/1999 Authority have categorically mentioned in their orders that

the documents were supplied to the Petitioner and that the

principles of natural justice were followed inasmuch as

enquiry was held as per the rules. The Tribunal also came

to the same conclusion. Thus, there is no reason to take a

divergent view than what has been taken by the Tribunal.

10. We also find that the Petitioner participated during the

enquiry proceedings and was even given opportunity to

cross examine PWs in his presence. The Petitioner had even

cross examined PW4. However thereafter he stopped

appearing and was proceeded against ex-parte. He did not

participate in the enquiry proceedings thereafter. In these

circumstances, testimonies of PW5 to PW8 have remained

unchallenged and the Petitioner has to blame himself for

this. He himself chose to abandon the enquiry proceedings

midway, therefore, he is precluded from alleging that

opportunity to cross examine all the witnesses was not

given to him.

11. Learned senior counsel for the Petitioner has next

contended that the charges framed are vague and imprecise

and were, therefore, beyond comprehension of the Page 7 of 16 W.P. (C) No. 7585/1999 Petitioner. Accordingly, whole enquiry proceeding stood

vitiated. It was not specified in the charge sheet as to which

conduct rule was violated by the Petitioner and which act of

the Petitioner constituted misconduct on his part. Since

charges are vague and imprecise, therefore, Petitioner was

denied opportunity to defend himself against such charges.

The whole enquiry proceedings and the orders passed by the

Disciplinary Authority, Appellate Authority and Tribunal

are, therefore, liable to be quashed. Reliance has been

placed on G. Chandrakant versus Guntur Distt. Milk

Producers' Union Ltd. reported in 1994 (4) SLR 397.

According to him only specific charge mentioned in the

charge sheet was that the Petitioner tried to put extra

departmental pressure on the ACP and which act of his was

in violation of Rule 13 of Delhi Police (General Conditions of

Service) Rules, 1980. This charge had remained unproved

as the ACP, who had allegedly received call from Mr.

Gautam attached with Member of Parliament Shri Paswan

was not produced in the witness box. To buttress his this

argument learned senior counsel has placed reliance on

Page 8 of 16 W.P. (C) No. 7585/1999 Kuldeep Singh versus Commissioner of Police and

Others reported in (1999) 2 SCC 10.

12. As against this, learned counsel for the Respondent

has contended that the charges are clear and specific and

disclose that the Petitioner had committed "grave

misconduct". He has contended that the dictionary

meaning of word "misconduct" has to be borrowed for

forming an opinion as to whether the acts of the Petitioner

as defined in the charge sheet constitute "misconduct" or

not. According to him, if a government servant behaves in

an unlawful manner in relation to discharge of his duties

while in service wilfully the same would amount to

"misconduct". The Petitioner had submitted a

recommendation roll to the ACP directly on 6th May, 1992

with forged signatures of Shri Shiv Kumar Sharma, RI (East)

and when this fact came to light he lifted recommendation

roll from the table of RI (East) to screen himself from the

punishment and his this act constitutes misconduct on his

part. Not only this, he also got a telephone call made to

ACP (East) from one Mr.Gautam in order to put extra

departmental pressure and his this act was in violation of

Page 9 of 16 W.P. (C) No. 7585/1999 Rule 13 of Delhi Police (General Conditions of Service)

Rules, 1980, which was sufficient to form an opinion, that

the aforesaid conduct of the Petitioner was unbecoming of

member of a disciplined force. Reliance has been placed on

Inspector Prem Chand versus Govt. of NCT of Delhi and

Others reported in 2007 (4) SCC 566.

13. We have considered the rival contentions of both the

parties and have perused the charges which have been

reproduced in para No. 2 hereinabove. We do not find

charges to be vague and imprecise. The offending acts of

the Petitioner have been categorically specified. Charges can

be summarised as under:-

"(a) Petitioner had submitted a recommendation roll to the ACP (East) directly on 6th May, 1992 with forged signatures of Shri Shiv Kumar Sharma, RI (East).

(b) Petitioner lifted recommendation roll from the table of RI (East) when he came to know that the matter was being enquired by RI East in this regard

(c). Petitioner got a telephone call made to ACP, from Mr. Gautam not to take action against the

Page 10 of 16 W.P. (C) No. 7585/1999 Petitioner and his this act was in violation of Rule 13 of Delhi Police (General Conditions of Service) Rules, 1980."

14. In our opinion all the charges are unambiguously clear

and specific. By no stretch of imagination charges can be

termed as imprecise or vague. So far as charge No. 3 is

concerned, it was categorically mentioned that the said act

of the Petitioner was in violation of Rule 13 of Delhi Police

(General Conditions of Service) Rules, 1980. So far as

charges Nos. 1 and 2 are concerned, the same are also

serious in nature. The act of forgery by a public servant

would certainly be a misconduct on his part. Similarly, act

of causing disappearance of the paper containing forged

signatures in order to screen himself from the punishment

is also very serious in nature. The gravity of aforesaid

unlawful conducts become more serious and assumes

greater significance in view of the fact that the Petitioner is a

police official and is responsible to maintain law and order.

The aforesaid actions of the Petitioner, in our view, would

certainly fall within the ambit of "grave misconduct", even

though such acts of forgery and removal of documents from

the record may not have been specifically defined as

Page 11 of 16 W.P. (C) No. 7585/1999 "misconduct" in the Delhi Police Act or the rules framed

thereunder.

15. In Inspector Prem Chand's case (supra) Supreme Court

has held as under :-

"9. Before adverting to the question involved in the matter, we may see what the term "misconduct" means.

10. In State of Punjab v. Ram Singh, Ex-Constable it was stated (SCC pp. 57-58, para 5) "5. Misconduct has been defined in Black's Law Dictionary, 6th Edn. at p. 999, thus:

'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour; its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as:

'Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office- holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act.'"

11. In P. Ramanatha Aiyar's Law Lexicon, 3rd Edn., at p. 3027, the term "misconduct" has been defined as under:

"The term 'misconduct' implies a wrongful intention, and not a mere error of judgment.

Page 12 of 16 W.P. (C) No. 7585/1999 Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word 'misconduct' is a relative term, and has to be construed with reference to the subject- matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. 'Misconduct' literally means wrong conduct or improper conduct."

12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character. No such finding was arrived at. An error of judgment as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India v. J. Ahmed whereupon Mr. Sharan himself has placed reliance, this Court held so stating: (SCC pp.292- 93, para 11) "11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow the conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur Division, Nagpur and Satubha K. Vaghela v. Moosa Raza. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:

Page 13 of 16 W.P. (C) No. 7585/1999 'Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.'"

16. From the above, it is clear that dictionary meaning of

the word "misconduct" can be adopted in a case pertaining

to departmental enquiry, if misconduct is not specifically

defined under any particular act or the rules by which

concerned employee is governed. In this case the Petitioner

had submitted a recommendation roll to the ACP directly

under the forged signatures of Shri Shiv Kumar Sharma, RI

(East). When ACP (East) became suspicious, he asked the RI

(East) to confirm about his suspicion, Petitioner caused

disappearance of the recommendation roll by removing it

from the table of RI (East), apprehending a departmental

enquiry against him. His these acts were wilful and

deliberate as he was to be benefited out of it. His aforesaid

conduct was unlawful and forbidden by the law and in our

view, tantamounts to "grave misconduct" on his part.

17. So far as plea of non production of ACP (East) and its

consequence is concerned, same also has no force in it.

PW4 produced the noting of the ACP during enquiry

proceedings. PW4 was even cross examined by the

Page 14 of 16 W.P. (C) No. 7585/1999 Petitioner. This document was taken on record in presence

of the Petitioner. Petitioner did not raise any objection when

this document was taken on record. He did not ask the

department for production of the ACP in the witness box by

challenging the authenticity of this document. Rather he

stopped appearing after cross examining PW4. This noting

was made by the ACP, who was superior officer of the

Petitioner, in normal course. It was duly proved during the

enquiry proceedings and in these circumstances this

document has been rightly read.

18. Kuldeep Singh's case (supra) is in different facts and is

of no help to the Petitioner. In the said case allegation

against the delinquent was that he had collected Rs. 1000/-

from one Smt. Meena Mishra for paying the complainants

Radhye Shyam, Rajpal Singh and Shiv Kumar. However, he

paid only Rs. 800/- to the complainants and pocketed Rs.

200/-. Smt. Meena Mishra who appeared as a witness in

the departmental enquiry, denied that she had paid Rs.

1000/- to the delinquent. So far as complainants are

concerned they were not produced in the witness box.

Instead their previous statements recorded by SHO, namely,

Page 15 of 16 W.P. (C) No. 7585/1999 Mr. D.D. Sharma was taken on record and relied upon. In

this context it was held that previous statements of

complainants could have been taken on record under Rule

16(3) of Delhi Police (Punishment and Appeal) Rules 1980,

only when the department succeeds in showing that the

presence of complainants could not have been secured

during the enquiry. It is not the case where earlier

statement of ACP has been brought on record on the ground

of his non availability. It is the office noting made by him in

normal course of his official duties have been brought on

record through PW4. In our view such office noting can be

read in the departmental proceedings more so, when

Petitioner did not raise any objection during the enquiry

proceeding in this regard.

19. In the light of the above discussions, we are of the view

that the writ petition is devoid of merits.

20. Dismissed.

                                          A.K. PATHAK, J


                                         MADAN B. LOKUR, J


August 24, 2009
ga


Page 16 of 16                                 W.P. (C) No. 7585/1999