Sarabjeet Singh vs Uoi & Ors.
2010 Latest Caselaw 3283 Del

1
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +    W.P.(C)No.7717/2009


                                    Date of Decision : 15th July, 2010
%

      SARABJEET SINGH                           ..... Petitioner
                    Through : Mr. S.P. Kalra, Sr. Adv. with
                              Mr. Arvind Sharma and
                              Mr. Sanjay Kalra, Advs.
               versus

      UOI & ORS.                               ..... Respondents
                          Through : Mr. Ankur Chhiber, Adv.


CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                 NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                NO

3.      Whether the judgment should be                        NO
        reported in the Digest?


GITA MITTAL, J. (Oral)

1. The present writ petition manifests completely

unnecessary litigation which has been necessitated on account

of the failure of the respondents to comply with an order dated

31st March, 2008 passed by this Court in WP(C)No.4560/1993

filed by the petitioner. To the extent necessary, the facts are

briefly noted hereafter.

2. A disciplinary inquiry was held against the petitioner on

the following charges:-

"ARTICLE - I

That the said SI Sarbjit Singh (U/S) while attached with

Central Basket Ball Team as a player during the period from

March to September 1990, committed an offence of

misconduct in his capacity as a member of the force under

Section 11(1) of the CRPF Act, 1949 in that he after having

been relieved from the Central Basket Ball team overstayed

from leave w.e.f 23/5/90 to 7/9/90 (108) days without any

permission and sufficient cause.

ARTICLE - II

That during the aforesaid period the said SI Sarabjit Singh

(U/S) committed an offence of misconduct in his capacity as a

member of the force under section 11(1) of the CRPF Act, 1949

in that he suppressed the facts regarding his involvement in a

criminal case on 27/6/90 which had been registered at Police

Station Prasad Nagar, New Delhi vide FIR No.164 dated 27/6/90

under section 307/452/506/427/323/34 of IPC and section

27/54/59 of Arms Act.

ARTICLE III

That during the aforesaid period the said SI Sarabjit Singh

(U/S) committed an offence of misconduct and misbehavior in

his capacity as a member of the force under section 11(1) of

CRPF Act 1949 in that he was found involved in a criminal case

on 27/6/90 which has been registered at Police Station Prasad

Nagar, New Delhi vide FIR No.164 dated 27/6/90 under section

307/452/506/427/323/34 of IPC and section 27/54/59 of Arms

Act."

3. The D.I.G.P., Central Reserve Police Force, Rampur, the

Disciplinary Authority accepted the inquiry report by an order

passed on 25th June, 1991 imposing upon the petitioner the

punishment of removal from service. The petitioner's appeal

assailing this order was rejected by the I.G.P. C/S of the C.R.P.F.

by an order passed on 10th December, 1991 holding that the

same was devoid of merit.

4. Aggrieved by these two orders against him, the petitioner

had filed WP(C) No.4560/1993 in this Court assailing the

findings of the Inquiry Officer and the conclusions of the

Disciplinary and appellate authority as well as his removal from

service. This writ petition remained pending in this Court for a

long period of almost fifteen years. In the final judgment dated

31st March, 2008, this Court recorded several observations with

regard to the discussions and findings of the Inquiry Officer on

the evidence which was placed before him in relation to the

specific charges. It was also found that the Appellate order was

cryptic and non-speaking and that none of the contentions

raised by the petitioner had been dealt with in a proper

manner.

5. In this background, this Court had disposed of

WP(C)No.4560/1993 by a judgment dated 31st March, 2008

directing as follows:-

"7. Having regard to the judgment of this court in WP(C)No.9427/2005 Constable Hansraj Singh Vs. UOI dated 16.1.2006 followed by another Division Bench judgment of this court in WP(C)No.3935/1995 titled Brij Mohan Sharma Vs. UOI. While setting aside the order of the Appellate Authority, we direct the Appellate Authority to decide the appeal of the petitioner on merits, particularly, keeping in view the infirmities as pointed out by the petitioner in the Enquiry Report as noted above. The appellate Authority shall give personal hearing to the petitioner as well before deciding the appeal and passing the speaking order. Appeal shall be decided within three months from today."

6. Mr. S.P. Kalra, learned Senior Counsel appearing for the

petitioner has submitted that after passing of the aforesaid

judgment of this Court dated 31st March, 2008, the petitioner

had approached the Inspector General, CRPF, Central Sector,

Gomti Nagar (Lucknow) with a copy of the order under the

cover of a letter dated 21st April, 2008. It is submitted that the

sole purpose of this communication was to put the respondents

to notice with regard to the passing of the judgment and to

seek personal hearing in the matter as directed. Learned

Senior Counsel has contended that on the date when the

petitioner presented this representation and copy of the order,

the Inspector General, who was also the appellate authority,

did not have the record of the petitioner's appeal before him

and that other than service of the communication dated 21st

April, 2008 and the copy of the order, no hearing at all of any

kind was afforded by the appellate authority to him.

7. It is pointed out that despite the directions of this Court

dated 31st March, 2008 without hearing the petitioner, the

appellate authority passed an order afresh on 30th June, 2008.

Our attention is drawn to the last para of the order dated 30th

June, 2008 wherein the appellate authority has recorded as

follows:-

"20. It is further certified that as per the orders of the Hon'ble High Court, I had heard the appellant in person on 21.4.2008, the date he presented the papers and the orders of the court before me."

The learned Senior Counsel for the petitioner assails this

certification of a hearing on 24th April, 2008 in the aforenoted

circumstances.

8. Aggrieved by the order dated 30th June, 2008 which was

passed by the appellate authority, the petitioner filed

WP(C)No.7817/2008 in this Court inter alia challenging the

same on the ground that the respondent had failed to comply

with the clear directives made in the previous order and had

not afforded a hearing in accordance therewith. This writ

petition came to be disposed of by order dated 5th November,

2008 wherein the Court noticed that the petitioner's grievance

against the appellate authority was capable of being remedied

by filing a Revision Petition in terms of Rule 29 of the CRPF

Rules 1955. In this background, the court disposed of

WP(C)No.7817/2008 by an order passed on 5th November, 2008

directing that the pleading in the writ petition be treated by the

Competent Authority as a Revision Petition and the decision be

taken on the same on merits within the maximum period of

three months from the date of passing of that order. We may

notice that the court had waived the objection of limitation so

far as maintainability of the revision is concerned.

9. Our attention is drawn to a legal notice dated 11th

November, 2008 issued by learned counsel for the petitioner to

the Director General of CRPF who was the Revisional Authority

specifically requesting him to give a personal hearing on a

suitably convenient date so that the matter could be disposed

of on merits. However, no hearing was afforded and the

revision of the petitioner was dismissed by an order dated 12th

January, 2009 which has been assailed before us by way of

present writ petition. Apart from the several grounds on which

the orders of the appellate authority and the Revisional

Authority are challenged in the present writ petition, the

primary ground of challenge which has been pressed today is

the failure of the appellate authority to give a hearing in terms

of the order of this court dated 31st March, 2008 in

WP(C)No.4560/1993. Learned Senior Counsel has urged that

the non compliance thereof is not only in violation of principles

of natural justice but also the failure to consider the various

aspects pointed out in the order dated 31st March, 2008 on

merits of the matter has worked tremendous injustice to the

petitioner. It is urged that having regard to the delay which

has occurred since 1990, when the charges were framed, this

court heard the objection of the petitioner relating to the merits

of the disciplinary proceedings and the conclusions and

findings drawn by the disciplinary, appellate and revisional

authorities.

10. On the other hand, Mr. Ankur Chhiber, learned counsel

appearing for the respondents has vehemently urged that the

respondents have complied with the directions made by this

Court on 31st March, 2008 and reliance is placed on the original

record of the appellate authority to urge that the personal

hearing has been afforded to the petitioner on 21st April, 2008.

11. Having regard to the fact that the order passed by the

appellate authority was set aside by this Court on 31st March,

2008 and a hearing in terms directed on this date, we are of

the view that the contention of the petitioner that he was not

afforded a hearing goes to the root of the matter and deserves

to be considered first. We have for this reason examined the

record of the appellate authority which has been placed before

us by Mr. Ankur Chhiber, learned counsel for the respondents.

It is not disputed that the copy of the order dated 31st March,

2008 was brought to the notice of the appellate authority for

the first time only when the petitioner had tendered the

communication dated 21st April, 2008 enclosing the same. This

communication along with the copy of the order was served by

the petitioner on the ADIG(ADM), O/o The IGP, C/S, CRPF who

was working in the office of Inspector General of Police in the

Central Secretariat of the C.R.P.F. in Lucknow. The record

which has been placed before us contains a slip with the

following noting recorded by the ADIG(ADM):-

"I.G. may like to see him in view of the Court judgment at flag (A) Submitted Sir (Sd/-) 21/4"

12. This slip was marked to the Inspector General. The

endorsement recorded by the Inspector General would reflect

what had transpired when the petitioner was called before the

Inspector General of Police on 21st April, 2008. The same reads

as follows:-

"ADIG ADM

Please open file & put up.

The SI appeared before me and gave me his version of events. Please get the punishment file from 8th Bn (if not weeded out) and put up so that the orders of the Court can be complied with in the stipulated time.

(sd/-) 21/4/08"

13. We may at this stage also extract the representation

dated 21st April, 2008 submitted by the petitioner which was to

the following effect:-

"Inspector General, C.R.P.F.

Central Sector, Gomti Nagar (Lucknow) Dated 21-04-2008

SUBJECT:- REPRESENTATION OF SARABJIT SINGH SUB. INSPECTOR NO.861680114

SIR,

This is to humbly submit and inform that I am Sarabjit Singh S.I.No.861680114 was removed from service on 25-06-91. There

were 3 charges leveled against me at the time of my removal. My appeal against the order of removal from service too was rejected. I challenged the said order of removal by filling a writ petition in the High Court of Delhi in the year 1993. The Justices of Delhi High Court Sh. A.K. Sikri and J.M. Malik on 31-03-08 while allowing the Writ Petition and setting aside the order of the Appellate Authority of CRPF was pleased to request you're good self to reconsider my appeal and decide it afresh in the light of the observation made by the High Court of Delhi in the said judgment dated 31-03-08 by passing a speaking order after giving me a personal hearing and deciding the appeal within a period of three months.

The copy of the writ petition along with judgment/order of the High Court in the writ petition 4560/93 and the acquittal order of the applicant from the criminal court, copy of the appeal are attached herewith.

Requested accordingly Thanking you

Yours faithfully

Sarabjit Singh S.I. No.861680114 R/o AB-209, Shalimar Bagh Delhi-110088 Mobile 09910179522 Resi-No-011-27485546"

14. The above noting of the appellate authority clearly

manifests that the record of the appeal filed by the petitioner

or the Disciplinary Authority was not before the Inspector

General of Police when the petitioner was presented before him

on 21st April, 2008. The sole purpose of the petitioner's visit to

the office of the appellate authority was to serve a copy of the

order and to seek compliance with the directions made by the

court.

15. We have examined the record of the authorities. It does

not disclose any opportunity of hearing to the petitioner. The

direction by the Court was specifically relating to the objections

of the petitioner on merits including submissions on the

documents which had been filed by him in support of his

defence. The observations of this court in the order dated 31st

March, 2008 reflect several issues including those relating to

the validity and authenticity of medical records including OPD

slips which had been produced before him. Hearing in the true

sense as envisaged by the order dated 31st March, 2008 would

require submissions to be made by the petitioner when the

record of the inquiry of the Disciplinary Authority was placed

before the appellate authority so that the petitioner's

objections with regard to the findings recorded could be

pointed out by him. The noting which has been endorsed on

21st April, 2008 by the appellate authority does not disclose

that any hearing was conducted by him or any objections were

placed by the petitioner. We remain in dark as to whether the

version of events relating to the proceedings which had been

taken by the petitioner were informed to the Inspector General

or there were any submissions on the merits of the matter.

The fact of the matter, as is manifested by the note of the

Inspector General, is that no record was before him when the

petitioner went to tender the copy of the court order. The

appellate authority was admittedly not even aware of the

directions by the court. In this background, the authority was

in no position to consider the various objections of the

petitioner on merits especially those noted in the court order.

In the given circumstances, we are unable to agree with the

contention of learned counsel for the respondents that any

meaningful or appropriate hearing as envisaged by the order

dated 31st March, 2008 could have been or was afforded to the

petitioner when he went to serve the copy of the order.

16. It has been pointed out by the learned Senior Counsel

appearing for the petitioner that the discussion and findings in

the order dated 30th June, 2008 are reiteration of the order

dated 10th December, 1991 which was set aside by this Court

on 31st March, 2008. It is urged that the same reflects no

application of mind to the various objections of the petitioner

which were noticed by this Court in the order dated 31st March,

2008.

17. Our attention is also drawn to the order dated 12th

January, 2009 whereby the revision of the petitioner has been

dismissed. It is pointed out that revisional authority has

returned a finding that on 21st April, 2008, the appellate

authority had heard the petitioner in person. In our view, this

finding is erroneous and is not sustainable.

18. We have held hereinabove that the appellate authority

could not have and had not afforded a hearing to the petitioner

as was envisaged by the order dated 31st March, 2008. We find

force in the submission of learned Senior Counsel for the

petitioner that in case the petitioner was afforded the hearing

in the true sense, he may have been able to persuade the

appellate authority to arrive at a conclusion different from what

has been reached by him. We see no reason as to why the

specific directions made by the Court in the order dated 31st

March, 2008 have not been complied with. We also find that

the several observations made in the merits of the matter

specially relating to the documentary evidence have not been

considered in the order dated 30th June, 2008 and 12th June,

2009.

19. In this background, it now becomes necessary to consider

as to the appropriate directions which would be required to be

made. Undoubtedly, there is an extreme delay in finalization of

the matter. The charges against the petitioner relate to

allegations pertaining to the year 1990 and thereafter. The

order made by the Disciplinary Authority directing the removal

of the petitioner from service was passed as back as on 25th

June, 1991. This Court had passed order on 31st March, 2008

remanding the matter for hearing afresh by the appellate

authority. We have found today that the hearing as directed

was not afforded to the petitioner. In this background, we are

not inclined to hear the objections of the petitioner on merits

for the reasons that the same deserves to be placed and

considered by the appellate authority in accordance with law.

In view of the above, the order dated 30th June, 2008

passed by the appellate authority and order dated 12th January,

2009 passed by the Revisional Authority cannot stand as being

violative of principles of natural justice.

20. Accordingly, in view of aforegoing discussion, we direct as

follows:-

(i) The order dated 30th June, 2008 by the appellate

authority and the order dated 12th January, 2009 by

the revisional authority are hereby set aside. The

matter is remanded for hearing and consideration

afresh by the appellate authority who shall ensure

the compliance of the directions made by this Court

on 31st March, 2008 before taking a considered view

and passing a reasoned order on the appeal of the

petitioner.

(ii) In order to obviate any ambiguity and delay in the

matter, we direct that the petitioner shall appear

before the Inspector General, Central Sector,

Lucknow on 10th August, 2010 at 11:00 a.m. for the

hearing in terms of the order dated 31st March,

2008. The respondents shall ensure that the record

of the case including the appeal is placed before

him.

(iii) In case the Inspector General, Central Sector,

Lucknow is unable to hear the matter due to some

prior commitment and a date is given on that date

or the hearing is not completed on 10th August,

2010, the petitioner shall be intimated with notice in

writing.

(iv) In order to facilitate the hearing, we permit the

petitioner to file written submissions and copies of

any judicial precedents which he relies upon in

support of his objections before the appellate

authority when he appears before him.

(v) The appellate authority shall pass a reasoned and

considered order on the appeal of the petitioner

within a period of four weeks from the date of

conclusion of the hearing(s) in terms of the order

dated 31st March, 2008 and the present order.

We also make it clear that the appellate

authority shall pass an order afresh uninfluenced by

the previous orders of the appellate authority or the

revisional authority.

(vi) The order which is passed shall be positively

communicated forthwith to the petitioner upon its

passing.

(vii) Needless to say, it shall be open to the petitioner, if

still aggrieved by the order passed, he can assail the

same by proper legal proceedings and in

accordance with the applicable law.

21. This writ petition is allowed in the above terms.

CM No.3940/2009

In view of the orders passed in the writ petition, this

application does not survive for consideration and is disposed

of.

DASTI.

GITA MITTAL, J

J.R. MIDHA, J JULY 15, 2010 mk