Jagmohan Singh vs State And Ors
2009 Latest Caselaw 4492 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C.) No.6919 of 2008

%                        Date of Decision: 05.11.2009

Jagmohan Singh                                             .... Petitioner
                        Through Mr.Anil Singal, Advocate


                                  Versus


State and Ors                                        .... Respondents
                        Through Mr.Rohit Madan, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI
1.  Whether reporters of Local papers may be                  YES
    allowed to see the judgment?
2.  To be referred to the reporter or not?                     NO
3.  Whether the judgment should be reported in                 NO
    the Digest?


ANIL KUMAR, J.

*

1. The petitioner has impugned the order dated 20th July, 2007 in

O.A No.1443/2006, Ct.Jagmohan Singh v. Government of NCT of Delhi

and Ors holding that there was no procedural infirmity in the enquiry

conducted by the respondents and partly allowing the petition to the

extent directing the respondent to make the punishment order dated

11th March, 1996 consistent with Shakti Singh's case and to issue a

corrigendum in respect thereof.

2. The petitioner is a constable in Delhi Police and a major penalty

of permanent forfeiture of three years service with reduction in pay and

also the loss of increment and postponing all future increments was

awarded to him pursuant to an enquiry conducted against him. The

petitioner while posted in VI Battalion Delhi was temporarily deputed to

E Block, Security Police line to perform the personal security officer

(PSO) duties. The petitioner was posted along with another constable

Somvir Singh and on 3rd October, 1994 when it was checked by

Inspector Bhom Singh, checking officer, constable Somvir Singh was

found absent from duty. It had transpired that he had not reported for

duty and absented himself unauthorisedly, however, the petitioner got

the pistol of constable Somvir Singh issued from the malkhana of

P.S.Vasant Vihar along with his own weapon. Constable Somvir Singh

for whom the pistol was got issued by the petitioner, when contacted

had contended that he had gone with Ms.Radhika Kapoor to her school,

however, it had also transpired that it was a holiday in the school on

that day. In the circumstances, the statements made by the petitioner

were found to be false and the falsity of the statement could also be

inferred from the entries made in the daily diary. The allegation against

the petitioner was that he tried to misguide the checking officer by

telling lies and he also tried to shield his colleague constable Somvir

Singh. Issuance of pistol of Constable Somvir Singh in addition to his

own along with 24 cartridges also could not be doubted.

3. The departmental enquiry was thus initiated against the

petitioner for major penalty and on the basis of the evidence recorded

and the documents, the charges against the petitioner were established

and punishment order dated 11th March, 1996 was issued. From 1996

till 2005 no appeal was filed by the petitioner and after about 9 years he

filed the appeal on 6th June, 2005.

4. During the pendency of the appeal, the petitioner filed a petition

being O.A No.2750/2005 before the Central Administrative Tribunal,

Constable Jagmohan Singh v. Government of NCT of Delhi contending

that his appeal is not being considered. In the appeal the petitioner had

not disclosed grounds for not filing the appeal from 1996 till 2005. The

petitioner had, however, contended that the copy of the punishment

order was not handed over to him till 2005 and, therefore, he was

prevented to file any appeal before the statutory authority.

5. Since the appeal was filed after 9 years and was pending before

the appellate authority, the Central Administrative Tribunal disposed of

the petition without expressing any opinion on the merit of the case and

directed the respondents to dispose of the appeal within the period of

three months by order dated 14th December, 2005.

6. Pursuant to the order passed by the Central Administrative

Tribunal the appeal of tth petitioner was dismissed by order dated 2nd

March, 2006 holding inter-alia that the petitioner was hand in glove

with the absentee constable Somvir Singh. While dismissing the appeal

of the petitioner, the appellate authority also noted that the petitioner

has not come out with anything relevant except seeking mercy and in

the circumstances appellate authority did not interfere with the

punishment order passed by the disciplinary authority imposing the

penalty of permanent forfeiture of three years service with reduction in

pay and also with loss of increment and postponing all future

increments.

7. The petitioner challenged the order of the appellate authority

dated 2nd March, 2006 by filing the petition being O.A No.1443/2006

before the Central Administrative Tribunal, titled Jagmohan Singh v.

Government of NCT of Delhi and ors which has also been dismissed by

the Tribunal by order dated 20th March, 2007 holding that though the

report of the Inspector Bhom Singh was allegedly not served upon the

petitioner but that report concerns only with the statement made by

PW.5 according to which the petitioner himself got issued two revolvers

and he had not seen constable Somvir Singh and the version given by

constable Somvir Singh that he had abruptly fallen ill and left the place

is not countenanced by the entries in the daily diaries. In the

circumstances, it was held that even in the absence of the report of

Inspector Bhom Singh, the testimonies of PW.5 and PW.10 clearly

indicts the petitioner and misconduct on the part of the petitioner is

established and such a misconduct does not stand negated on account

of non supply of alleged documents and did not prejudice the petitioner

in any manner and consequently on this plea the punishment imposed

against the petitioner cannot be quashed.

8. The learned counsel for the petitioner has emphasized that the

whole enquiry proceeding are vitiated as the copy of the report of

Inspector Bhom Singh was not given which has been proved as exhibit

PW.6/A which was prepared by the said constable prior to departmental

enquiry. It is asserted that the said document was not incorporated in

the list of documents nor any depositions mentioned in the list of DWs

to be relied on and consequently the material which was not relied on

has been imported during the course of departmental enquiry and the

mandatory provisions of police rules applicable to Delhi police officials

have been violated and consequently there is deprivation of right of

reasonable opportunity to the petitioner and the principles of natural

justice have been violated.

9. The learned counsel for the petitioner has also relied on a

decision of Central Administrative Tribunal reported as 2000(3) CAT 40,

Sh.Vijay Singh v. Government of NCT of Delhi and Ors holding that if

the enquiry officer disposes a case by a generalized statement and

rejects the statement of defence without considering it, the enquiry

report shall be vitiated and on the basis of such report, punishment

cannot be awarded.

10. Having heard learned counsel for the parties and perused the

record, including the original record of the Departmental Enquiry,

which has been produced by learned counsel for the respondents, we

find no merit in the submissions of the petitioner. The case of the

petitioner is distinguishable, from that of Vijay Singh (Supra) as the

enquiry officer has considered the cogent evidence which is sufficient to

prove the guilt of the petitioner and, consequently, on the basis of the

ratio of the precedent relied on by the petitioner, it cannot be held that

the order awarding punishment is vitiated in any manner. The reliance

has also been placed by the learned counsel for the petitioner on

1999(2) SCC 10, Kuldeep Singh v. Commissioner of Police and Ors

holding that Rule 16(3) of Delhi Police (Punishment and Appeal) Rules,

1980 can be invoked only when the presence of the witness cannot be

procured without undue delay, inconvenience or expenses. However, in

the case of the petitioner the witnesses were examined in the presence

of the petitioner and those witnesses have also been cross examined on

behalf of petitioner and on the basis of the testimonies of the said

witnesses, a probable finding has been arrived at which cannot be said

to be vitiated on the ground that the copy of the report which was

proved by the witness PW.6, had not been supplied to him.

11. This is not disputed that the punishment order was passed on

11th March, 1996. For about 9 years no plea was raised by the

petitioner that the enquiry against him was vitiated on account of non

supply of report prepared by PW.6. This has also not been disputed that

when the appeal was filed by the petitioner in 2005, it was found that

from the record of the enquiry proceedings, certain papers were

missing. This Court has also perused the statement of Inspector Bhom

Singh recorded on 19th August, 1995. He deposed that he had filed the

report prepared by him pursuant to the checking done at the residence

of P.P, Mrs. Kapoor. He reiterated all the statements made by him and

he also verified the report which was on the file which was exhibited as

PW.6. He stated that the said report was written on 3rd October, 1994.

The said witness was cross examined by the defence assistant on behalf

of petitioner. In the cross examination of said witness he deposed

categorically that the petitioner had accepted his guilt before him. It

was not suggested to the said witness that the copy of the report had

not been given to him or that the contents of the report were not correct

or not within his knowledge. In the written statement dated 11th

December, 1995 filed by the petitioner before the enquiry officer after

the evidence of the respondents had been recorded, he did not contend

that the report of Inspector Bhom Singh cannot be relied on as the copy

of the same was not given to him. The petitioner had rather contended

that during the course of departmental enquiry eight witnesses were

examined, however, their testimony is not sufficient to establish the

alleged misconduct of the petitioner. The enquiry officer in his report

dated 1st January, 1996 has not relied on the report exhibit PW.6 and

has rather relied on the statement of Constable Kasim PW.5 who had

deposed that the petitioner got the pistol plus twelve cartridges of

Constable Somvir Singh also issued to him, apart from his own pistol

and cartridges. Reliance was also placed on the statement of PW.10

that when Constable Somvir Singh did not report for duty and when the

checking officer had asked the petitioner he had misguided the

checking officer by telling that the defaulting constable Somvir Singh

has gone to school with his P.P, Ms.Radhika Kapoor. On checking

Radhika Kapoor was found to be present at the residence. Relying on

the testimonies of PW.5 and PW.10 the enquiry officer inferred about

the misconduct of the petitioner.

12. From the perusal of the report of the enquiry officer and the order

passed by the disciplinary authority and the appellate authority it is

apparent that the petitioner is not prejudiced on account of alleged non

supply of the report of Inspector Bhom Singh and in the circumstances

the petitioner cannot succeed on the ground, taken after 9 years of

punishment order passed against him that the copy of the report was

not supplied to him and, therefore, the principles of natural justice have

been denied and he has been prejudiced. The production of the earlier

report by Sh. Bhoom Singh was neither essential to prove that the

charge, nor was it so considered by the Enquiry Officer, in view of the

fact that PW5 and PW 10 had independently been examined in the

enquiry reproceedings. The fact that the papers from the file of the

enquiry officer were also found missing after the appeal was filed by the

petitioner after 9 years and an enquiry was initiated against him also

cannot be ignored.

13. The tribunal has considered this plea of the petitioner and has

rejected the same and in the facts and circumstances the observation of

the tribunal that since the report concerns only the defence statement

made by PW.5 and consequently the petitioner was not prejudiced

cannot be faulted. In the totality of facts and circumstances the

petition, is, therefore, without any merit and it is therefore dismissed.

Parties are however, left to bear their own costs.

ANIL KUMAR, J.

NOVEMBER 05, 2009                                      VIPIN SANGHI, J.
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