Ex Sepoy/Gd Anmol Kumar vs Uoi & Anr.
2010 Latest Caselaw 3303 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


                            Date of decision:      16th July, 2010

+                      W.P.(C) No.4668/2010



     Ex SEPOY/GD ANMOL KUMAR         ..... Petitioner
                  Through: Mr.S.S.Deswal, Advocate

                             versus


     UOI & ANR.                           ..... Respondents

Through: Ms.Rajdipa Behura, Advocate

CORAM:

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

1. Whether reporters of local papers may be allowed to see the Judgment? No

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

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

GITA MITTAL, J(ORAL)

1. The petitioner assails an order of dismissal dated 1st

November, 2008 passed by the Disciplinary Authority; an order

dated 12th March, 2009 and order dated 8th March, 2010 passed

by the Appellate and the Revisional Authority affirming the

orders of dismissal from services of the respondents.

2. So far as the facts giving rise to the present petition are

concerned, a Disciplinary Inquiry against the petitioner was directed

by the Commandant of 124th Battalion CRPF by an order dated 12th

August, 2008 on the following charges:-

"Charge No.1 That Force No.921290043 Sep/G.D.

Anmol Kumar E/124, acting as Sepoy/G.D. being member of the Force under Section 11(1) of Central Reserve Police Force Act, 1949 committed misconduct that being on extremely sensitive duty, he went out of camp at about 11:30 hours on 03.08.08 without out pass and did not come back till evening roll-call, which is against good order and discipline of the Force.

Charge No.2 That Force No.921290043 Sep/G.D. Anmol Kumar E/124, acting as Sepoy/G.D. being member of the Force under Section 11(1) of Central Reserve Police Force Act, 1949 committed misconduct that in the night of 03.08.08, he was found in naked condition with a local tribal lady in extremely sensitive area in village Shankar Senapati Tribal basti, Limbuchera situated at a distance of 16km from the camp which is against good discipline of the Force.

That Force No.921290043 Sep/G.D. Anmol Kumar E/124, acting as Sepoy/G.D. being member of the Force under Section 11(1) of Central Reserve Police Force Act, 1949 committed misconduct that flouting camp standing orders and all guidelines and endangering his personal security, went to village Shankar Senapati tribal basti, Limbuchera situated 16 K.M. away from the camp and endangered his security. In the result Company Commander E/124 had to go by self with the escort in the night of 03.08.08 to the said village to bring him back. In this way, he endangered the security of Company Commander and escort endangering his life with others life unnecessarily, which is against good discipline of the Force."

3. The petitioner was recruited as a Sepoy/G.D. under the CRPF

on 10th February, 1992 at Group Centre CRPF Gandhi Nagar. After

completion of his basic training, he was posted at different places.

On 5th March, 2008, the petitioner was assigned the duty of Mess

Sepoy. The respondents submit that the petitioner sought

permission from Mess Commander to bring eggs from outside, which

was not granted to him. On the pretext that he wanted to go to

meet Sepoy Ravindra in Head Quarter to bring his money from him.

The petitioner was permitted to leave the camp after distributing

lunch and making proper entry in the out-pass Register. At about

1500 hours, the petitioner was required to perform certain mess

duties but he was not available. The petitioner also did not report in

the evening roll-call. The information of his absence was given to

the higher authorities. Search of the whole camp to trace out the

petitioner was futile. A check roll call at 2000 hours by the Company

Commander was also called but of no avail. In this background, the

Company Commander and other personnel of the force searched for

the petitioner at nearby places including the bus stand, market,

hospital etc., but the petitioner was not traceable anywhere.

4. In this background, at about 2200 hours, the Company

Commander with other Jawans was compelled to visit the tribal

village Shankar Senapati, Limbuchera and make enquiries there. On

receipt of information, of the possibility of petitioner's presence in a

nearby house, SI /GD Khageshwar Dass and Sepoy/GD Rajendra

Parasad Swamy opened the door of this house. The petitioner was

found in a state of undress in a compromising position with a tribal

lady under influence of intoxication. The Company Commander

along with the other Jawans put him in the vehicle. After sometime,

the petitioner dressed himself. The petitioner was medically

examined in Group Centre Agartala Hospital and brought to the

Battalion Headquarter. He was confined in the quarter guard.

5. In view of the seriousness of the issue, a preliminary inquiry

was conducted into the whole matter and based thereon disciplinary

proceedings into the aforestated charges were proposed.

6. The Commandant passed an order dated 26th September,2008

appointing Sh. Vijay Kumar Verma, Second in-Command Officer as

the Inquiry Officer. A detailed disciplinary inquiry was conducted

against the petitioner who denied the charges levelled against him

and pleaded not guilty thereto. The respondents have drawn our

attention to the fact that four prosecution witnesses were examined

in respect of the charges laid against the petitioner. It is not disputed

that the petitioner received a copy of the statement of each of the

witnesses. After completion of the prosecution evidence, the Inquiry

Officer gave an extra period of fifteen days by 18th September, 2008

to the petitioner by communication dated 3rd September, 2008 to

produce any document and evidence in his defence.

7. The records produced by the petitioner show that the

petitioner refused to produce any documentary evidence or witness

in his defence and filed a written reply denying the charges. The

petitioner set up a defence of having been authorised to leave the

camp for the purpose of purchasing eggs. He feigned ignorance of

the circumstances in which he was located in the tribal village in a

compromising position in the state of inebrication.

8. The Inquiry Officer disbelieved the defence set up by the

petitioner and held that the charges have been proved in testimony

of the four prosecution witnesses.

9. We may also notice that the Inquiry Officer has carefully

considered the statement of the prosecution witnesses laid before

him. So far as the defence of the petitioner with regard to securing

money from Sepoy Ravindra is concerned, Sepoy Ravindra has

appeared in the witness box and made a statement that the

petitioner did not meet him. The Inquiry Officer has examined the

out-pass register and has found that the petitioner left the CRPF

camp without making any entry of his departure in the out-pass

register or signing the same. The detailed reference of the manner in

which the Jawans have to leave the camp has been recorded by the

Inquiry Officer. On a consideration of the prescribed procedure and

the documentary evidence laid, the Inquiry Officer has found that the

petitioner has left the camp without authorisation and did not follow

the prescribed procedure. He made no entry in the out-pass register.

10. We also find that the Inquiry Officer recorded the statements of

prosecution witnesses and documentary evidence in the presence of

the petitioner and gave full opportunity to him to cross-examine the

witnesses.

11. The petitioner has carefully conducted his defence and cross-

examined the witnesses.

12. The petitioner gave no explanation at all for the circumstance

and reason for not following the prescribed procedure and not

signing the out-pass register prior to his departure from the CRPF

camp.

13. The Inquiry Officer has found that the petitioner was out of the

camp unauthorisedly for a long period of eight hours in an extremely

sensitive area endangering his own personal security. It was found

that the petitioner has not complied with the camp's standing orders

and guidelines which apply to a CRPF personnel desirous of leaving

the camp for any reason. It was also found that the conduct of the

petitioner necessitating the Company Commander and other jawans

to conduct his search in the extremely sensitive area thereby

endangering their personal security. In this background, the inquiry

office recommended that the petitioner was guilty of the charges

and had thereby committed offences punishable under the

provisions of Rule 27 of the CRPF Rules, 1955.

14. The inquiry report was placed for consideration of the

Commandant 124th Battalion who was the disciplinary authority of

the petitioner.

15. It may be noted that the disciplinary authority has served a

copy of the findings of the Inquiry Officer in the inquiry report upon

the petitioner under cover of the letter No. P-eight-9/08 dated

14.10.2008 and gave him a period of 15 days till 29.10.2008 to

submit his representation, explanation or report, if any, against the

findings recorded against him. The petitioner made a representation

dated 23rd October, 2008 against the findings of the Inquiry Officer.

The disciplinary authority has considered the proceedings of the

Inquiry Officer as well as the inquiry report and the representation

dated 23rd October, 2008 submitted by the petitioner. On a careful

consideration of the entire material, we find that the disciplinary

authority has passed an order dated 1st November, 2008 finding the

petitioner guilty of the three afore noticed charges. The order of the

disciplinary authority records a detailed discussion and charge wise

findings. So far as the petitioner's representation is concerned, it is

noteworthy that the petitioner was assailing the testimony of the

prosecution witnesses only on matters of detail and pointing out

such contradiction which were not on any discrepancies or

contradiction of material facts but were of no consequence. The

disciplinary authority exercised its jurisdiction and passed an order

under Section 11(1) of CRPF Act, 1949 and Rule 27 of CRPF Rules,

1955 accepting the findings of the Inquiry Officer of guilt of the

petitioner and ordered his dismissal from the force w.e.f. 1st

November, 2008. Other consequential directions with regard to the

pay and allowances, for the period of suspension were also recorded.

Directions that awards given to the petitioner would be treated as

seized and recovery of the amounts outstanding against the

petitioner were also made in the same order.

16. Aggrieved by the findings of the disciplinary authority and

punishment imposed upon him, the petitioner had filed an appeal

under Rule 28 of the CRPF Rules, 1955 before the Deputy Inspector

General of Police inter alia challenging the proportionality of the

sentence of dismissal from the service which was imposed upon him

by an order dated 1st November,2008 passed by the Commandant

E/124 Battalion. The appeal was rejected by the appellate order

dated 12th March, 2009 passed by the Deputy Inspector General of

police.

17. We find that the petitioner thereafter exercised his statutory

right of filing a revision petition under Rule 29 of the CRPF Rules,

1955 which was considered by the Inspector General of Police, who

was the revisional authority, and rejected by a detailed order dated

8th March, 2010.

18. We have carefully considered every ground of challenge by

the petitioner by way of the present writ petition to the orders dated

1st November, 2008; 12th March, 2009 and 8th March, 2010. The

challenge in the writ petition to the impugned order is premised only

on alleged contradictions in the evidence of two of the witnesses

that too with regard only to the permission to leave the camp. In our

view, nothing turns on these contradictions which are only in matters

of detail and not on issues of consequences or in material

particulars. Even if the witnesses were to be disbelieved there is no

explanation at all so far as the documentary evidence is concerned

or why the relevant out-pass register does not contain the

petitioners signatures.

19. It is trite that the jurisdiction of this Court in exercise of power

under Article 226 of the Constitution of India, so far as a challenge

the disciplinary proceedings is concerned, is circumscribed by a well

established principles and is extremely limited. It is not open to this

court to examine the evidence which was led in the inquiry as if this

Court was sitting in an appeal or exercising the appellate jurisdiction.

20. The petitioner was a member of a disciplined force serving in

a sensitive area. He was bound to carefully discharge the

responsibility cast upon him, conduct himself with circumspection

and ensure that he did not violate the prescribed rules relating to the

discipline for leaving a camp. The charges against the petitioner

were of a serious nature and stand established in view of the

evidence which was led against him. The petitioner has been unable

to shake the testimony of the Company Commander or the jawans

who had found him in the compromising position. The story and

explanation set up by the petitioner is not supported by the oral and

documentary evidence led during the inquiry and is clearly unworthy

of any credence.

21. The proceedings of the Inquiry Officer and the impugned

orders reflect that the statutory provisions and rules and regulations

therein were carefully considered by the disciplinary authority. No

objection of violation of any statutory provisions or principles of

natural justice has been laid before us. We also find that there is no

challenge to the orders which have been passed against the

petitioner on grounds of illegality, arbitrariness or mala fide. In view

of the above discussion, in our view, the writ petition has not been

filed on such grounds on which such challenge could be sustained.

22. We accordingly find no merit in this writ petition which is

hereby dismissed.

GITA MITTAL,J

J.R. MIDHA, J JULY16, 2010 sv