Delhi High Court
Arun Kumar Nigam vs Dig. Genl. Central Indus. ... on 30 July, 2010
Author: Gita Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : 17th March, 2010
Date of decision: 30th July, 2010
+ W.P.(C) No.2646/1990
ARUN KUMAR NIGAM ..... Petitioner
Through Mr. Rajat Aneja and Mr. Gurmeet
Singh, Advocates
versus
DIG. GENL. CENTRAL INDUS. SECURITY
FORCE & ORS. .... Respondents
Through Ms. Anjana Gosain, Adv. with
Ms.Veronica Mohan, Adv.
for Respondent Nos.1, 2 & 6.
Ms. Avnish Ahlawat, Adv. with
Ms. Latika Chaudhary, Adv. for
Respondent Nos.3 to 5.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether reporters of local papers may be allowed to
see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
GITA MITTAL, J
1. By way of the present writ petition, the petitioner has
assailed the order dated 28th July, 1989 passed by the
Commandant of the CISF Force Unit-respondent no. 2 herein
imposing the punishment of the removal from service; order
dated 16th November, 1989 passed by the respondent no. 1
dismissing the appeal filed by the petitioner against the same
as well as the order dated 26th/27th April, 1990 dismissing the
representation filed by the petitioner. The petitioner has also
sought a declaration that the disciplinary proceedings held
against him at the instance of respondent nos. 3 and 4 under
the Delhi Police (Punishment & Appeal) Rules, 1980 are wholly
illegal, invalid, incompetent and that no disciplinary action
could be taken by his employer, the Central Industrial Security
Force (`CISF' hereafter) on the basis thereof. The petitioner
prays for consequential orders for reinstatement with continuity
in service and all other attendant benefits as if he had
continued in service throughout without a break.
2. The parties are not at variance so far as the basic facts
giving rise to the instant case are concerned. The petitioner
was appointed to the CISF on 4th July, 1984 and was
telegraphically ordered on 4th November, 1985 to join the Delhi
Police on deputation. Consequently, he reported at the 1 st
Battalion, Delhi Armed Police on 6th November, 1985 and was
sent to the Delhi Armed Police, 6th Battalion with effect from 7th
February, 1986. The petitioner was deputed by the police
authorities to the office of the Foreigners Regional Registration
Office (`FRRO' hereafter for brevity) arraigned as respondent
no. 5 herein, and there he remained posted till his repatriation
to the CISF, his parent department.
3. While the petitioner was working with the respondent no.
5, an order dated 8th June, 1987 was passed placing the
petitioner under suspension with immediate effect pending
enquiry into alleged misconduct.
4. It was alleged that while the petitioner was on deputation
with the Delhi Police, he was posted at Immigration, shift `A' at
IGI Airport, New Delhi. On 8th June, 1987, he gave immigration
clearance to Palani Thurai Maheshwaran, a Sri Lankan National
on his arrival in India by flight no.AI-132, when the passenger
did not have a visa to enter into India. The petitioner was said
to have cleared the passenger and affixed a stamp bearing
no.E-7 on his passport. This very stamp had been issued to the
petitioner against his signatures as per the duty roster and the
flight chart.
It was further alleged that the clearance was granted in
return for receipt of illegal gratification amounting to 90 USD,
accepted by the petitioner. This currency was recovered from
his possession on identification by the passenger and seized by
SI Jawahar Singh of the Delhi Police. It was also alleged that
the petitioner had destroyed/misplaced the disembarkation
card of the passenger to avoid the detection.
5. Sh. Murari Lal, AFRRO/Admn. IGI Airport was ordered to
conduct a preliminary enquiry under Rule 15(1) of the Delhi
Police (Punishment & Appeal) Rules, 1980 on 15th June, 1987
into the allegations made against the petitioner.
6. Based on the aforementioned allegations and on the
completion of the preliminary enquiry, the Additional
Commissioner of Police ordered that a departmental inquiry be
initiated against the petitioner under Section 21 of the Delhi
Police Act, 1979. Thereafter, the petitioner submits that he
received a memorandum dated 18th January, 1988 from Sh.
Harbans Lal, ACP who had been entrusted with the task of
holding the departmental enquiry against the petitioner. This
memorandum was accompanied with a summary of
allegations, memorandum of evidence and a provisional list of
witnesses to be examined and documents to be relied upon.
He was also permitted to inspect the same and take extracts
from documents. The memorandum also permitted him to seek
the assistance of another police official for the purposes of
inspection. The petitioner was directed to appear before the
inquiry officer on 2nd February, 1988 to contest the allegations.
7. The summary of allegations made against the petitioner
reads as follows:-
"SUMMARY OF ALLEGATION
It is alleged against S.I. A. K. Nigam D-5102 (CISF No.
8444041) under suspension, that while he was on
duty in immigration in shift `A' at IGI Airport, New
Delhi 0n 8-6-87, in Rt. Wing arrival side and called in
Left wing arrival side, gave immigration clearance to
one Sri Lankan National Palani Thurai Maheshwaran
S/o Palani Thurai. r/o 133, Cannathiday Road, Jaffna,
holder of passport No. E- 264513 dated 12-10-78,
issued at Colombo when he arrived at the Airport by
fight No.AI-132 at 12.50 p.m from Geneva in Left
wing, while he had no visa for India. The S.I. cleared
this passenger with stamp No. E-7 issued to him as
per duty roster and flight chart register against his
signatures. When Insp.I/C shift checked the passport
of this passenger it was reported that this S.I had
accepted following 90 US dollars from him at the time
of immigration clearance. It is also alleged that when
the passenger identified SI A.K.Nigam, he produced
the said 90US dollars to Insp. Jawahar Singh which
were taken in possession vide seizure memo. It is
further alleged that SI A.K.Nigam reportedly destroy-
ed/misplaced the Dis-Embarkation card of the
passenger.
1. B-67162124-C (10 US dollars)
2. E-01832046-A ( " )
3. L-21669552-B ( " )
4. B-59309341-C ( " )
5. E-54373095-A ( " )
6. D-59985376-A ( " )
7. B-27246882-A ( " )
8. L-56066550-A ( " )
9. L-21766364-B ( " )
The above act on the part of S.I A.K.Nigam No.
D-5102 amounts to gross misconduct,
negligence and dereliction in the discharge of
his official duty, which renders him liable to be
dealt with Departmentally under section 21, of
the Delhi Police Act, 1978."
8. The petitioner submitted his written statement of defence
on 28th January, 1988 and 7th November, 1988 denying the
allegations against him.
9. The petitioner contends that the enquiry officer recorded
the statements of seven prosecution witnesses.
10. On 21st October, 1988, the enquiry officer Sh. Harbans Lal,
ACP framed the following charges against the petitioner:-
"You, S.I. A.K. Nigam No. D/5102(CSIF
No. 8444041) are hereby charged that while
on duty in Immigration in Shift 'A' at IGI
Airport, New Delhi on 8.6.87 and called from
Right Wing Arrival side to left wing arrival
side, you gave immigration clearance to one
PALANI THURAI MAHESWARAN, a Srilankan
National who arrived by flight no. A1-132 on
8.6.87 after accepting 90 US dollars from him
as illegal gratification. This passenger was
holding a Srilankan Passport No. E-264513
dt.12.10.78 issued at Colombo but he had no
visa for India. You also removed dis-
embarkation Card of the said passenger after
clearing him to avoid detection.
The above act on your part amounts to
grave misconduct, lack of absolute integrity,
dereliction of duty, unbecoming of police
officer in violation of Rule 3.1(i),(ii) & (iii) of
CCS(Conduct) Rules, 1964 and is punishable
U/s 21 of Delhi Police Act, 1978."
11. In a representation dated 29th September, 1988 the
petitioner objected to Sh. Murari Lal taking statements of
Inspector Jawahar Singh, PW-5; Sh. S.D. Sharma, ACP - PW-7
recorded in the month of August, 1987 on record after the
submission of his preliminary report. The petitioner submitted
that these statements were put on record only to use them
against the petitioner in the disciplinary proceedings held
thereafter.
12. The petitioner's evidence in defence was recorded on 24th
October, 1988. On 6th December, 1988, Sh. Harbans Lal
submitted his report recording findings against the petitioner.
13. In the meantime, the Deputy Commissioner of Police,
FRRO passed an order dated 6th April, 1989 revoking the
petitioner's suspension. The petitioner resumed his duties at
the FRRO, Office Line on 7th April, 1989.
14. A subsequent order dated 13th April, 1989 was passed by
the respondent no. 5 repatriating the petitioner to his parent
department, pursuant to the notification dated 28th March,
1989 of the Commissioner of Police. The petitioner accordingly
reported to the office of the Director General, CISF on 17th April,
1989 and was posted at the CISF Unit, ONGC, Nazira, Assam.
He formally joined this unit on 12th May, 1989.
15. The petitioner contends that he submitted further
representations dated 13th May, 1989 and 26th June, 1989 to
the respondent no. 2 making a prayer for a de novo enquiry to
be conducted into the charge against him so as to ensure
compliance with principles of natural justice and equity and
objected that the proceedings conducted at the instance of the
FRRO were not valid and proper. No orders were passed on
these representations.
16. On the contrary, the Commandant of the CISF Unit, ONGC,
Nazira proceeded to pass the impugned order dated 28th July,
1989 referring to the charge sheet (summary of allegations)
issued on 18th January, 1988 and the aforenoticed charge
framed on 21st October, 1988 finding the acts of petitioner as
amounting to "gross misconduct, negligence and dereliction in
the discharge of his official duty", which rendered him liable to
be dealt with under Section 21 of the Delhi Police Act, 1978.
17. It is noteworthy that while passing the said order, the
respondent no. 2 relied on the enquiry proceedings, the
statements of the prosecution witnesses and the cross
examination by the delinquent, prosecution exhibits and the
statements of defence witnesses recorded during the enquiry
conducted by the Delhi Police. In addition, the disciplinary
authority stated that he also examined the findings of the
enquiry officer in depth. After examination of the available
material, the respondent no. 2 concluded that the petitioner
was on duty in `A' shift at the Indira Gandhi International
Airport at the time of the incident and had affixed the clearing
stamp bearing no. `E-7' on the passport of a passenger namely
Sh. Palani Thurai Maheswaran, a Sri Lankan national upon his
arrival at the IGI Airport on 8th June, 1987 without any entry
visa for India. The respondent no. 2 basing its findings on the
statements made by the seven prosecution witnesses, the
statement of the passenger and the petitioner himself,
concluded that Inspector Jawahar Singh who was the Inspector
in charge of the shift, had detected that the petitioner had
cleared the Sri Lankan passenger after accepting a bribe of 90
US dollars from him. When confronted, the petitioner had
admitted that he put the rubber stamp on his passport for
clearance. This statement of the inspector has been held to
have also been confirmed by the said passenger. The foreign
currency was found in the possession of the petitioner by
Inspector Jawahar Singh, who recorded a seizure memo dated
8th June, 1987. The departmental enquiry report has relied on
the fact that the petitioner had himself admitted in a statement
dated 13th July, 1987 that the passport was stamped by him
and that the passenger did not have a valid visa.
18. The respondent no. 2 as the Disciplinary Authority has,
however, found that there was no direct evidence so far as the
charge of destroying/misplacing of the disembarkation card of
the passenger was concerned and held that this allegation
against the petitioner was not proved. However, removal of
the card was definitely in the interest of the petitioner as the
same was necessary to avoid detection. The only defence
witness SI Dinesh Kumar was also disbelieved by the
disciplinary authority who finally concluded that the charge
against the petitioner of giving immigration clearance to the Sri
Lankan national at the IGI Airport after accepting 90 USD by the
petitioner stood proved. For the reason that the act of taking
illegal gratification from a foreign national for illegal entry into
India and giving clearance is a serious misconduct, it was held
that the petitioner was not a fit person to be retained in an
armed force like the CISF. As such, the respondent no. 2
awarded the punishment of removal from service with
immediate effect to the petitioner.
Alongwith the order dated 28th of July, 1989, the petitioner
was served with a copy of the enquiry report.
19. The petitioner then preferred a departmental appeal
before the Deputy Inspector General, CISF dated 25th August,
1989. By the impugned order dated 16th November, 1989 the
Deputy Inspector General, CISF, Eastern Zone, dismissed the
said appeal holding the same to be devoid of merit both on
facts and in law. He held that there is no procedural
irregularity and that the inquiry had been conducted in
accordance with the rules. He also held that the punishment
awarded to the petitioner is commensurate with the proven
charge.
Petitioner's contentions
20. The petitioner has assailed the orders against him inter
alia on the ground that he being a member of the CISF, who
was sent on deputation to Delhi Police, was subject to the same
responsibilities, discipline and penalties as would have been
applicable to him under the CISF Act, 1968, even while on
deputation and that his alleged misconduct could not have
been enquired into by the Delhi Police, much less by invoking
the provisions of the Delhi Police (Punishment and Appeal)
Rules, 1980. He submits that a number of other cases of
persons from CISF, who had been sent on deputation to other
organizations and whose conduct, while on deputation, had to
be enquired into, were repatriated to the CISF and thereafter,
the departmental inquiry had been held under the CISF Rules,
1969.
21. It is urged that on account of his conduct being enquired
into by an incompetent authority and under rules not applicable
to him, he has suffered great prejudice. The specific prejudice
suffered by him, according to the petitioner, is that under the
Delhi Police (Punishment and Appeal) Rules, 1980, he was not
entitled to be represented through a defence assistant and the
request of the petitioner in this regard was also turned down by
the inquiry officer.
22. The petitioner submits that he was not served with the
preliminary enquiry report conducted by Sh. Murari Lal, AFRRO
despite request. He was also not give a copy of the
subsequent enquiry report or an opportunity to make
submissions or representations against the same by the
respondent no. 2 before passing the order dated 28th July,
1989.
23. The petitioner has further submitted that he had
requested the enquiry officer for permission to be represented
through a defence assistant but the same was not permitted for
the reason that there was no provision for the same in the Delhi
Police (Punishment and Appeal) Rules, 1980 under which the
enquiry was being conducted.
24. A vehement grievance has been made that no presenting
officer had been appointed to put up the case on behalf of the
police before Sh. Harbans Lal, ACP, during the inquiry. Placing
reliance on the pronouncement of a single judge of the Kerala
High Court reported at 1986 Lab.I.C. 980 P.P. Gopalan vs.
DIG, it is contended that the enquiry officer performed the role
of the prosecutor and judge rolled into one. The version of the
delinquent officer and the witness in defence would therefore
have been cross examined by him.
25. In this background, it is urged that the refusal of the
defence assistance caused grave and serious prejudice to the
petitioner's defence to the allegations made against him. The
contention is that placed where he was, the petitioner could not
be expected to know his rights under the rules and that a
reasonable opportunity to defend himself would include the
facility of a defence assistant for the enquiry to be fair and
proper. Such assistance was denied to the petitioner vitiating
thereby the enquiry as well as the orders passed thereon.
26. The petitioner has further submitted that he had made an
objection by way of a representation dated 9th September, 1988
to the enquiry officer Sh. Harbans Lal, ACP and also submitted a
representation dated 29th September, 1988 to the FRRO, Delhi
Police as well as the Director General of the CISF to the effect
that the petitioner could not be proceeded against by way of
disciplinary proceedings on the basis of the provisions of the
Delhi Police Rules, 1980 and a prayer was made to the enquiry
officer not to proceed with the enquiry but to repatriate the
petitioner to his parent department which was the Central
Industrial Security Force, leaving the matter with regard to
disciplinary action, if any, against the petitioner to the
discretion of the parent department. No decision on these
objections of the petitioner was ever taken.
27. The petitioner's grievance is that he has been made a
scapegoat by the police personnel especially SI Jawahar Singh
and that no fault is attributable to him. It is contended that the
passenger in question was not produced as a witness during
the enquiry, yet an alleged prior statement made by him was
relied upon. The petitioner also contends that there are
several contradictions in the evidence and that the enquiry
officer permitted the statements recorded in the preliminary
inquiry by Shri Murari Lal and his findings to be taken on record
which was contrary to the rule position and in violation of
principles of natural justice. The disembarkation card of this
passenger which could have established the innocence of the
petitioner was not produced by the respondents during the
enquiry. On the contrary, loss thereof was wrongly attributed
to him. It is further contended that the enquiry officer has also
held that there was no material to establish that the petitioner
had put the seal on the disembarkation card. The petitioner's
initials also did not appear on any document and there was no
recovery from him.
28. Apart from a challenge to the findings of the disciplinary
enquiry and the orders of the disciplinary and appellate
authority on the ground that they are based on no material or
on irrelevant material, it has been staunchly contended on
behalf of the petitioner that upon his repatriation, CISF was
bound to conduct a de novo enquiry and ought not to have
relied on the biased and prejudicial enquiry proceedings
conducted by the Delhi Police.
Respondents contentions
The respondents have disputed the correctness of the
afore-noticed submissions and their contentions are considered
and dealt with submissionwise hereafter.
Statutory provisions, rules and regulations
29. Before examining the rival contentions, we may usefully
extract the relevant statutes, rules and regulations hereafter.
Central Industrial Security Force Act, 1968 :-
"8. Dismissal, removal etc. of members of
the Force:-
Subject to the provisions of article 311 of the
Constitution and to such rules as the Central
Government may make under this Act any
supervisory officer may -
(i) dismiss (remove), [order for compulsory
retirement of], or reduce in rank, any enrolled
member of the Force whom he thinks remiss or
negligent in the discharge of his duty, or unfit
for the same; or
(ii) award any one or more of the following
punishments to any [enrolled member] of the
Force who discharges his duty in a careless or
negligent manner, or who by any act of his own
renders himself unfit for the discharge thereof,
namely :-
(a) fine to any amount not exceeding seven
days pay or reduction in pay scale;
(b) drill, extra guard, fatigue or other duty;
(c) removal from any office of distinction or
deprivation of any special emolument.
[(d) withholding of increment of pay with or
without cumulative effect;
(e) withholding of promotion;
(f) censure.]
xxx xxx xxx
14. Deputation of the Force to industrial
undertaking in public sector:-(1) Subject to
any general directions which may be issued, by
the Central Government, it shall be lawful for the
[Director General], on a request received in this
behalf from the Managing Director concerned, of
an industrial Undertaking in public sector,
showing the necessity thereof, to depute such
number of members of the Force as the [Director
General] may consider necessary for the
protection and security of that industrial
undertaking and any installations attached
thereto and the members of the Force so deputed
shall be at the charge of the Managing Director:
Provided that in the case of an Undertaking
owned, controlled or managed,--
(i) by a Government company of which the
Central government is not a member;
(ii) by a corporation established by or under a
Provincial or State Act, no such request shall be
entertained unless it is made with the consent of
the Government of the State in which the
undertaking is situate.
(2) If the [Director General] is of the opinion that
circumstance necessitating the deputation of the
members of the Force in relation to an Industrial
Undertaking under sub section (1) have ceased to
exist, or for any other reason it is necessary so to
do, he may, after informing the Managing
Director of that Industrial Undertaking, withdraw
the member of the Force so deputed:
Provided that the Managing Director may, on
giving one month's notice in writing to the
[Director General] require that the members of
the Force so deputed shall be withdrawn, and the
Managing Director shall be relieved from the
charge from the date of expiration of such notice
or from any earlier date on which the Force is so
withdrawn.
(3) Every member of the Force, while discharging
his functions during the period of deputation,
shall continue to exercise the same powers and
be subject to the same responsibilities, discipline
and penalties as would have been applicable to
him under this Act, if he had been discharging
those functions in relation to an industrial
undertaking owned by the Central Government.
Rules 30, 34, 38 & 70 of the Central Industrial
Security Force Rules, 1969 referred to during the
hearings, read as under:-
"30. Suspension.- (1) The appointing authority
or any authority to which it is subordinate or the
disciplinary authority or any other authority
empowered in that behalf by the President by
general or special order, may place a member of
the force under suspension:-
(a) where a disciplinary proceeding against him
is contemplated or is pending; or
(b) where a case against him in respect of any
criminal offence is under investigation, inquiry
or trial:--
Provided that where the order of suspension is
made by an authority lower than the appointing
authority, such authority shall forthwith report to
the appointing authority the circumstances in
which the order was made.
(2) A member of the Force shall be deemed to
have been placed under suspension by an order
of the appointing authority -
(a) with effect from the date of his detention, if
he is detained in custody, whether on a criminal
charge or otherwise, for a period exceeding
forty-eight hours;
(b) with effect from the date of his conviction, if
in the event of a conviction for an offence, he is
sentenced to a term of imprisonment exceeding
forty-eight hours and is not forthwith dismissed
or removed or compulsorily retired consequent
to such conviction.
EXPLANATION - The period of forty-eight hours
referred to in clause (b) of this sub-rule shall be
computed from the commencement of the
imprisonment after the conviction and for this
purpose, intermittent periods of imprisonment, if
any, shall be taken into account.
(3) Where a penalty of dismissal, removal or
compulsory retirement from service imposed
upon member of the Force under suspension is
set aside in appeal or on review under these
rules and the case is remitted for further inquiry
or action or with any other directions, the orders
of his suspension shall be deemed to have
continued in force on and from the date of the
original order of dismissal, removal or
compulsory retirement and shall remain in force
until further orders.
(4) Where a penalty of dismissal, removal or
compulsory retirement from service imposed
upon a member of the Force is set aside or
declared or rendered void in consequence of or
by a decision of a Court of Law and the
disciplinary authority, on a consideration of the
circumstances of the case, decides to hold a
further inquiry against him on the allegations on
which the penalty of dismissal, removal or
compulsory retirement was originally imposed,
the member of the Force shall be deemed to
have been placed under suspension by the
Appointing Authority from the date of the original
order of dismissal, removal or compulsory
retirement and shall continue to remain under
suspension until further orders:
(5)(a) An order of suspension made or deemed
to have been made under this rule shall continue
to remain in force until it is modified or revoked
by the authority competent to do so.
(b) Where a member of the force is suspended
or is deemed to have been suspended (Whether
in connection with any disciplinary proceeding or
otherwise) and any other disciplinary proceeding
is commenced, against him during the
continuance of that suspension, the authority
competent to place him under suspension, may
for reasons to be recorded by him in writing,
direct that the member of the Force shall
continue to be under suepension until the
termination of all or any of such proceedings.
(c) An order of suspension made or deemed to
have been made under this rule may at any time
be modified or revoked by the authority which
made or is deemed to have made the order or by
any authority to which that authority is
subordinate.
xxx xxx xxx
34. Procedure for imposing major
penalities - (1) Without prejudice to the
provisions of the Public Servants (Inquiries) Act,
1850 (37 of 1850), no order imposing on a
member of the Force any of the penalities
specified in clauses (a) to (d) of rule 31 shall be
passed except after an inquiry held as far as
may be in the manner hereinafter provided.
(2) The disciplinary authority shall frame
definite charges on the basis of the allegations
on which the inquiry is proposed to be held.
Such charges together with a statement of the
allegations on which they are based, shall be
communicated in writing to the member of the
Force and he shall be required to submit, within
such time as may be specified by the disciplinary
authority a written statement of his defence and
also to state whether he desires to be heard in
person.
Explanation.-- In this sub-rule and in sub-
rule (3), the expression "the disciplinary
authority" shall include the authority competent
under these rules to impose upon the member of
the Force any of the penalties specified in Cls.
(e) to (h) of rule 31.
(3) The member of the Force shall for the
purpose of preparing his defence be permitted to
inspect and take extracts from such official
records as he may specify, provided that such
permission may be refused if, for reasons to be
recorded in writing, in the opinion of the
disciplinary authority, such records are not
relevant for the purpose or it is against the
public interest to allow him access hereto.
(4) On receipt of the written statement of
defence or if no such statement is received
within the time specified, the disciplinary
authority may itself inquire into such of the
charges as are not admitted or if it considers it
necessary so to do, appoint a supervisory officer
or an officer not lower in rank than an Inspector,
or a Board of Inquiry as the Inquiry Authority to
conduct the inquiry.
(5) The member of the Force so charged may
be permitted by the Inquiring Authority referred
to above to present his case with the assistance
of any other member of the Force approved by
it.
(6) The inquiry Authority referred to above
shall, in the course of the inquiry, consider such
documentary evidence and take such oral
evidence as may be relevant or material in
regard to the charges. The member of the Force
shall be entitled to cross-examine witnesses
examined in support of the charges, to give
evidence in person and to produce defence
witnesses. If the said Inquiring Authority
declines to examine any witness on the ground
that his evidence is not relevant or material it
shall record its reasons for the same in writing.
(7) At the conclusion of the inquiry, the
inquiring authority referred to abvoe shall
prepare a report of the inquiry, recording its
findings on each of the charges together with
reasons therefor. If in the opinion of such
authority, the proceedings of the inquiry
establish charges different from those originally
framed, it may record its findings on such
charges, provided that findings on such charges
shall not be recorded unless the members so
charged has admitted the facts constituting the
said charges or has had an opportunity of finding
himself against them.
(8) The record of the inquiry shall include --
(i) the charges framed against the member of
the Force and the statement of allgations
furnished to him under sub-rule (2) of this rule;
(ii) the written statement of defence, if any,
submitted by the member of the Force;
(iii) The oral evidence taken in the course of
the inquiry;
(iv) the documentary evidence considered in
the course of the inquiry;
(v) the orders, if any, made by the disciplinary
authority and the inquiring authority referred to
above in regard to the inquiry; and
(vi) a report setting out the findings on each
charge and the reaons therefor.
(9) The disciplinary authority shall, if it is not
the Inquiring Authority referred to above,
consider the record of the inquiry and record its
findings on each charge.
(10)(i) If the disciplinary authority, having
regard to its findings on the charges, is of the
opinion that any of the penalities specified in
clauses (a) to (h) of Rule 31 should be imposed,
it shall pass appropriate orders in the case.
[(ii) If it is of the opinion that any of the
penalities specified in clauses (a) to (h) of rule 31
should be imposed, such penalty may be
imposed on the basis of evidence adduced
during inquiry and it shall not be necessary to
give the member of the Force any opportunity of
making representation on the penalty proposed.]
(11) Orders passed by the disciplinary authority
shall be communicated to the member of the
force who shall also be supplied with a copy of
the report of the Inquiring Authority referred to
above and, where the disciplinary authority is
not the said Inquiring Authority, a statement of
its findings together with brief reasons for
disagreement, if any, along with the findings of
the said Inquiring Authority shall also be supplied
to that member.
xxx xxx xxx
38. Provisions regarding members of the
Force taken from State Government, etc.-
(1) Where an order of suspension is made or a
disciplinary proceeding is taken against a
member of the Force whose services have been
borrowed from a State Government or an
authority subordinate thereto or any other
department of the Central Government, the
authority lending his services shall forthwith be
informed of the circumstances leading to the
order of his suspension or the commencement of
the disciplinary proceedings, as the case may be.
(2) in the light of the findings in the
disciplinary proceedings taken against such
member of the Force-
(a) if the disciplinary authority is of opinion
that any of the penalities specified in clauses(e)
to (h) of rule 31 should be imposed on him, it
may, after consultation with lending authority,
pass such orders in the case as it deems
necessary, provided that in the event of a
difference of opinion between the borrowing
authority and the lending authority, the services
of the member shall be replaced at the disposal
of the lending authority;
(b) if the disciplinary authority is of opinion
that any of the penalities specified in clauses (a)
to (d) of rule 31 should be imposed on him, it
shall replace his services at the disposal of the
lending authority and transmit to it the
proceedings of the inquiry for such action as it
deems necessary.
xxx xxx xxx
70. Other conditions of service- The
supervisory officers and members of the Force
shall, in respect of all other matters regarding
conditions of service for which no provision or
insufficient provisions has been made in these
rules, be governed by the rules and order for the
time being applicable to officers holding
corresponding posts in the Central Government
in respect of such matters.
30. Before us, it has been urged that for the reason that the
CISF Rules made no provision with regard to disciplinary
proceedings against deputationists, in view of Rule 70 of the
then CISF Rules, the provisions relating to a person
deputed/lent to another department in the Central Government
would apply.
31. It therefore becomes necessary to extract Rules 20 & 21
of the Central Civil Services (Classification, Conduct &
Appeal) Rules which govern these matters in the Central
Government. The same read as follows:-
20. PROVISIONS REGARDING OFFICERS LENT
TO STATE GOVERNMENTS, ETC.
(1) Where the services of a Government servant
are lent by one department to another department
or to a State Government or an authority
subordinate thereto or to a local or other authority
(hereinafter in this rule referred to as "the
borrowing authority"), the borrowing authority
shall have the powers of the appointing authority
for the purpose of placing such Government
servant under suspension and of the disciplinary
authority for the purpose of conducting
disciplinary proceeding against him:
Provided that the borrowing authority shall
forthwith inform the authority which lent the
services of the Government servant (hereinafter in
this rule referred to as "the lending authority") of
the circumstances leading to the order of
suspension of such Government servant or the
commencement of the disciplinary proceeding, as
the case may be.
(2) In the light of the findings in the disciplinary
proceeding conducted against the Government
servant -
(i) if the borrowing authority is of the opinion that
any of the penalties specified in clauses (i) to (iv)
of rule 11 should be imposed on the Government
servant, it may, after consultation with the lending
authority, make such orders on the case as it
deems necessary:
Provided that in the event of a difference of
opinion between the borrowing authority and the
lending authority, the services of the Government
servant shall be replaced at the disposal of the
lending authority;
(ii) if the borrowing authority is of the opinion that
any of the penalties specified in clauses (v) to (ix)
of rule 11 should be imposed on the Government
servant, it shall replace his services at the disposal
of the lending authority and transmit to it the
proceedings of the inquiry and thereupon the
lending authority may, if it is the disciplinary
authority, pass such order thereon as it may deem
necessary, or, if it is not the disciplinary authority,
submit the case to the disciplinary authority which
shall pass orders on the case as it may deem
necessary:
Provided that before passing any such order the
disciplinary authority shall comply with the
provisions of sub-rules (3), (4) of rule 15.
EXPLANATION - The disciplinary authority may
make an order under this clause on the record of
the inquiry transmitted to it by the borrowing
authority or after holding such further inquiry as it
may deem necessary, as far as may be, in
accordance with rule 14.
21. Provisions regarding officers borrowed
from State Governments, etc.
(1) Where an order of suspension is made or a
disciplinary proceeding is conducted against a
Government servant whose services have been
borrowed by one department from another
department or from a State Government or an
authority subordinate thereto or a local or other
authority, the authority lending his services
(hereinafter in this rule referred to as "the lending
authority") shall forthwith be informed of the
circumstances leading to the order of the
suspension of the Government servant or of the
commencement of the disciplinary proceeding, as
the case may be.
(2) In the light of the findings in the
disciplinary proceeding conducted against the
Government servant, if the disciplinary authority is
of the opinion that any of the penalties specified in
clauses (i) to (iv) of rule 11 should be imposed on
him, it may, subject to the provisions of sub-rule
(3) of rule 15 and except in regard to a
Government servant serving in the Intelligence
Bureau up to the rank of Assistant Central
Intelligence Officer, after consultation with the
lending authority, pass such orders on the case as
it may deem necessary-
(i) provided that in the event of a difference
of opinion between the borrowing authority and
the lending authority, the services of the
Government servant shall be replaced at the
disposal of the lending authority;
(ii) if the disciplinary authority is of the
opinion that any of the penalties specified in
clauses (v) to (ix) of Rule 11 should be imposed on
the Government servant, it shall replace the
services of such Government servant at the
disposal of the lending authority and transmit to it
the proceedings of the inquiry for such action, as it
may deem necessary.
(Underlining by us)
32. Reliance has been placed on provisions of the Delhi Police
Act, 1978, the Delhi Police (Appointment & Recruitment) Rules,
1980 and the Delhi Police (Punishment & Appeal) Rules, 1980.
The relevant provisions thereof read as under:-
Delhi Police Act, 1978 :-
2(g) "Delhi police" or "police force" means the
police force referred to in Section 3 and includes-
(i) all persons appointed as special police officers
under sub-section (1) of Section 17 and additional
police officers appointed under Section 18; and
(ii) all other persons, by whatever name known,
who exercise any police function in any part of
Delhi;
xxx xxx xxx
2(m). "police officer" means any member of the Delhi
Police;
"21. Powers of punishment. (1) Subject to
the provisions of Art. 311 of the Constitution
and the rules, the Commissioner of Police,
Additional Commissioner of Police, Deputy
Commissioner of Police, Additional Deputy
Commissioner of Police, Principal of the
Police Training College or of the Police
Training School or any other officer of
equivalent rank, may award to any police
officer of subordinate rank any of the
following punishments, namely:
(a) dismissal;
(b) removal from service;
(c) reduction in ranks;
(d) forfeiture of approved service;
(e) reduction in pay;
(f) withholding of increment; and
(g) fine not exceeding one month's pay.
(2) Subject to the rules- (a) any police officer
specified in sub-section (1) may award the
punishment of censure to any police officer
of subordinate rank;
(b) the Assistant Commissioner of Police may
award the punishment of censure to police
officers of, or below, the rank of Sub-
Inspectors of Police;
(c) any police officer of, and above, the rank
of Inspector may award punishment drill not
exceeding fifteen days or fatigue duty or any
other punitive duty to constables.
(3) Nothing in sub-section (1) or sub-
section (2) shall affect any police officer's
liability for prosecution and punishment for
any offence committed by him.
Delhi Police (Appointment & Recruitment) Rules,
1980 :-
3. Definitions.-- (i) `Appointing Authority' - in
relation to Inspector of Police means the
Additional Commissioner of Police and in
relation to the subordinate police officers below
the rank of Inspector means the Deputy
Commissioner of Police including the Additional
Deputy Commissioner of Police, Principal/P.T.S.
or any other officers of equal rank.
(ii) Competent authority means the
Commissioner of Police or any other police
officer specially authorized by him under these
rules to appoint a police officer of subordinate
rank of Delhi Police.
(iia) `Employees' - means non-gazetted
employees of the Delhi Police Force.
(iii) Probation means of period of trial of a
person appointed temporarily or in an officiating
capacity against temporary or permanent post
of a police of subordinate rank.
Delhi Police (Punishment & Appeal) Rules, 1980:-
3. Applicability.-- (i) These rules shall be
applicable to :
(a) All Officers and men of subordinate ranks i.e.,
Constable to Inspector.
(ii) All civilian and Class IV employees as well
as all civilian officers on deputation to the Delhi
Police e.g., teachers, internal auditors, Financial
Advisor, Senior Psychologist, Education Adviser
and other similar employees shall be governed by
the C.C.S. (CCA) Rules, 1965 or the rules
applicable in their parent departments. However,
all non-gazetted Police officers on deputation to
Delhi Police from Central/State police
organisations shall be governed by the Delhi
Police Act, 1978 and these rules.
xxx xxx xxx
15. Preliminary enquiries -(1) A preliminary
enquiry is a fact finding enquiry. Its purpose is (i)
to establish the nature of default and identity of
defaulter(s), (ii) to collect prosecution evidence,
(iii) to judge quantum of default and (iv) to bring
relevant documents on record to facilitate a
regular departmental enquiry. In cases where
specific information covering the above-
mentioned points exists a Preliminary Enquiry
need not be held and Departmental enquiry may
be ordered by the disciplinary authority
straightaway. In all other cases a preliminary
enquiry shall normally proceed a departmental
enquiry.
(2) In cases in which a preliminary enquiry
discloses the commission of a coganizable
offence by a police officer of subordiante rank in
his official relation with the public, departmental
enquiry shall be ordered after obtaining prior
approval of the Additional Commissioner of Police
concerned as to whether a criminal case should
be registered and investigated or a departmental
enquiry should be held.
(3) The suspected police officer may or may not
be present at a preliminary enquiry but when
present he shall not cross examine the witness.
The file of preliminary enquiry shall not form part
of the formal departmental record, but
statements therefrom may be brought on record
of the departmental proceedings when the
witnesses are no longer available. There shall be
no bar to the Enquiry Officer bringing on record
any other documents from the file of the
preliminary enquiry, if he considers it necessary
after supplying copies to the accused officer. All
statements recorded during the preliminary
enquiry shall be signed by the person making
them and attested by enquiry officer.
33. We may also set out the provisions incorporated in the
CISF Rules by amendment in 2001 which have been brought to
our notice. Rules 40 & 41 after the amendment of 2001 are as
follows:-
CISF Rules, 2001 :-
40. Provisions regarding enrolled
members of the Force borrowed from
State Governments etc. -(1) where an
order of suspension is made or a
disciplinary proceeding is conducted
against an enrolled member of the Force
whose services have been borrowed from
another department of the Central
Government or from a State Government
or an authority subordinate thereto, the
authority lending his
services (hereinafter in these rules
referred to as the "lending authority")
shall forthwith be informed of the
circumstances leading to the order of
suspension of the enrolled member of the
Force or the commencement of the
disciplinary proceedings, as the case may
be.
(2) In the light of the findings in the
disciplinary proceeding conducted against
such an enrolled member of the Force, if
the disciplinary authority is of the opinion
that any of the penalties specified in
clauses (vi) to (x) of rule
34 should be imposed on him, it may,
subject to the provisions of sub-rule (22)
(i) of rule 36 and after consultation with
the lending authority, pass such orders on
the case as it may deem necessary -
(i) provided that in the event of difference
of opinion between
the borrowing authority and the lending
authority, the services of such enrolled
member of the Force shall be re-placed at
the disposal of the lending authority;
(ii) if the disciplinary authority is of the
opinion that any
of the penalties specified in clauses (i) to
(v) of rule 34 should be imposed on the
enrolled member of the Force, it
shall replace the services of such enrolled
member of the Force at the disposal of the
lending authority and transmit to it the
proceedings of the enquiry for such action
as it may deem necessary.
41. Provisions regarding enrolled
member of the Force lent to state
Government etc. -(1) Where the
services of an enrolled member of the
Force are lent to another department of
the Central Government or to a State
Government or other authority
[hereinafter] in this rule referred to as
"borrowing authority" the borrowing
authority shall have the powers of the
appointing authority for the purpose of
placing such enrolled member of the
Force under suspension and of the
disciplinary authority for the purpose of
conducting a disciplinary against him;
Provided that the borrowing authority
shall forthwith inform the authority which
lent the services of such enrolled member
of the Force hereinafter in this rule
referred to as 'the lending authority' of
the circumstances leading to the order of
suspension of such enrolled member of
the Force or the commencement of the
disciplinary proceeding, as the case may
be:
(2) In the light of findings in the
disciplinary proceedings conducted
against the enrolled member of the Force;
(i) If the borrowing authority is of the
opinion that any of the panalties specified
in clauses (vi) to (x)of Rule 34 should be
imposed on such a member, it may, after
consultation with the lending authority,
make such orders on the case as it may
deem necessary;
Provided that in the event of difference of
opinion between the borrowing authority
and the lending authority, the services of
such enrolled member of the Force shall
be replaced at the disposal of the lending
authority;
(ii) If the borrowing authority is of the
opinion that any of the penalties specified
in clauses (i) to (v) of rule 34 should be
imposed on the enrolled member, it shall
replace his services at the disposal of
lending authority and transmit the
proceedings of the enquiry and thereupon
the lending authority may, if it is a
disciplinary authority, pass such orders
thereon as it may deem necessary, or if
he is not a disciplinary authority, submit
the case to the appropriate disciplinary
authority which shall pass orders on the
case as it may deem necessary;
Provided that before passing any such
order the disciplinary authority shall
comply with the provisions of sub-rule
(22) of rule 36.
Explanation - The disciplinary authority
may make an order under this clause on
the record of the inquiry transmitted to it
by the borrowing authority or after
holding such further inquiry as it may
deem necessary, as far as may be in
accordance with rule 36.
(Underlining by us)
We may now consider the challenge by the petitioner on
the contentions noticed heretofore.
Whether the Delhi Police was competent to initiate disciplinary
action against the petitioner, a CISF personnel who was on
deputation with it?
34. It is an admitted position that the petitioner was on
deputation with the Delhi Police. Reliance has been placed by
learned counsel for the petitioner on Section 14 of the Central
Industrial Security Force Act, 1968 to say that so far as
deputationists are concerned, during the period of deputation,
the member of the force shall continue to exercise the same
powers and be subject to the same responsibilities, discipline
and penalties as would have been applicable to him under the
CISF Act. The margin note to the statutory provision indicates
that the section relates to `Deputation of the Force to Industrial
Undertakings in public sector'. Sub-section (1) refers to
requests received by the Director General of the CISF from the
managing director concerned of an `industrial undertaking in
public sector' showing necessity for members of the force. The
proviso makes a reference to undertakings owned, controlled or
managed by a government company of which the central
government is not a member and to a corporation established
by or under or by a provincial or state government. So far as
sub-section (3) of Section 14 is concerned, it makes a reference
to members of the force who are discharging functions during
the period of such deputation. It is further submitted that
under sub-section (3), such deputationists would continue to
exercise the same powers and be subject to the same
responsibilities, discipline and penalties as if they had been
discharging those functions in relation to an industrial
undertaking owned by the central government. Thus, in its
application, section 14 is restricted to persons who have been
sent on deputation to Industrial undertakings in the public
sector and any installation attached thereto alone.
The petitioner was admittedly on deputation with the
Delhi Police which is not an industrial undertaking in the public
sector or any installation attached thereto. Reliance on behalf
of the petitioner on sub-section (3) of section 14 is therefore
misconceived and it has no application so far as the petitioner
who was on deputation in the Delhi Police is concerned.
35. Even if the submission of the petitioner that Section 14 of
the CISF Act was applicable to his case is accepted, in our view,
the fact that he continued to exercise the same powers and
was subject to the same responsibilities, discipline and
penalties, as applicable to the members of the CISF, does not
mean that the disciplinary enquiry could not have been
directed to be held, or held by Delhi Police with whom he was
on deputation. Merely because the petitioner was subject to
the same discipline and penalties, it does not mean that the
process of a departmental enquiry to establish the breach of
discipline could have been initiated only by the lending
authority, i.e. the CISF. That is not the purport of section 14(3).
Section 14 does not say as to who will enforce the discipline or
will enquire into the breach of discipline by a member of the
force on deputation. Section 14(3) does not denude the
borrowing authority of its power to enforce the discipline and to
enquire into breach of discipline. To us, it appears only
reasonable that the borrowing authority should enforce the
discipline and if the breach of discipline has taken place by a
member of the CISF who is on deputation, the borrowing
authority within whose jurisdiction the breach of discipline is
alleged to have taken place, should enquire into the same, as it
is the borrowing authority who would be aware of the relevant
facts and be in a position to produce and examine witnesses
and lead evidence. We, therefore, reject the submission of the
petitioner founded upon Section 14(3) of the CISF Act.
36. So far as Section 8 of the CISF Act is concerned, it
empowers the supervisory officer to impose the punishments
which are mentioned therein subject to the provisions of Article
311 of the Constitution and to such rules as the Central
Government may make under the CISF Act. In the instant case,
the respondent no. 2 was the Commandant of the formation
where the petitioner stood posted and hence as his supervisory
officer, has imposed the punishment of 'removal from service'.
For this reason, the impugned orders cannot be faulted for
violation of section 8 of the CISF Act, 1968.
37. Mr. Rajat Aneja, learned counsel for the petitioner has
also placed strong reliance on the rule 38 of the CISF Rules,
1969 which has been reproduced hereinabove. An examination
of the rule would show that the rule making authority has
thereby incorporated only a provision for initiating disciplinary
proceedings against a member of the force whose services
have been borrowed from a State Government or an authority
subordinate thereto or any other department of the Central
Government.
It is important to note that this rule makes no reference at
all to a CISF personnel whose services have been lent by the
CISF to another department or authority as in the case at hand.
38. The petitioner's representations to Sh. Harbans Lal, ACP
dated 9th September, 1988 and 29th September, 1988, also
copied to the respondent no. 1, base his objection on Section
14(3) of the CISF Act and rule 38 of the CISF rules which have
no application to the instant case.
39. On consideration of the statutory scheme, it is apparent
that the CISF Act, 1969 and the rules framed thereunder make
no provision at all with regard to disciplinary action relating to a
member of the CISF who is on deputation with regard to
misconduct committed while on deputation with another
organisation.
40. Rule 70 of the CISF Rules, 1969 clearly provides that if the
rules are silent or make insufficient provision for any
contingency, then the rules applicable to the Central
Government would have application.
41. Ms. Anjana Gosain, learned counsel appearing for the CISF
has pointed out that in this background, reference has to be
made to the Central Civil Services (Classification, Conduct &
Appeal) Rules ("CCS (CCA) Rules" for brevity). Rule 21 of these
rules makes the provision with regard to Central Government
officers lent to the State Government. It is submitted that as
per this rule when services of an enrolled member of the CISF
are lent to another department or to a State Government or
other authority, the borrowing authority has the powers of the
appointing authority for disciplinary action against such
member of the force for the purposes of conducting disciplinary
proceedings.
42. In order to buttress this submission, our attention is drawn
to the Rule 40 and 41 which have been incorporated pursuant
to the amendments effected to the CISF Rules in 2001 and
inclusion of the aforenoticed rule 41 which makes a specific
provision with regard to enrolled members of the force lent to
the State Government etc.
43. In view of the above rule position, we have no hesitation
in holding that the rules of 1969, which were in vogue at the
relevant time, made no provision for disciplinary action by the
CISF in respect of misconduct committed by a CISF personnel
who was on deputation to another department of the Central
Government or to the State Government or other authority.
Consequently, recourse was rightly had by the respondents to
the residuary provision to be found in rule 70 of the CISF Rules,
1969 read with rule 20 and 21 of the CCS (CCA) Rules which
applied. The disciplinary action in respect of a CISF
deputationist could be taken by the borrowing department.
44. So far as the petitioner as a deputationist was concerned,
by virtue of Rule 20 of the CCS (CCA) Rules, the Delhi Police
was vested with powers of the appointing authority for the
purposes of placing him under suspension and with the powers
of the disciplinary authority for the purposes of conducting the
disciplinary proceedings against him.
45. As such, the disciplinary action initiated by the Delhi
Police with whom the petitioner was on deputation was,
therefore, clearly within the four corners of law.
46. We also find that Rule 3 of the Delhi Police (Appointment
& Recruitment) Rules, 1980 governs disciplinary action so far
as a person on deputation with the Delhi Police is concerned.
As per rule 3 of the Delhi Police (Punishment & Appeal)
Rules, 1980 all non-gazetted police officers on deputation to
the Delhi Police from the Centre/State police organisation are
governed by the Delhi Police Act, 1978. Rule 15 of these rules
postulates a preliminary enquiry which is in the nature of a fact
finding enquiry with the purpose of establishing the nature of
default and identity of the defaulter; to gather prosecution
evidence, to judge quantum of default and to bring relevant
documents on record to facilitate the departmental enquiry.
In case the preliminary enquiry discloses the commission
of an offence by a police officer of subordinate rank in his
official relation with the police, it is provided that a
departmental enquiry shall be ordered after obtaining prior
approval of the Additional Commissioner of Police concerned as
to whether a criminal case should be registered and
investigated or a departmental enquiry should be held.
47. Having regard to the nature of allegations against the
petitioner, Sh Murari Lal, AFRRO was appointed to conduct the
preliminary enquiry which he conducted on 15th June, 1987.
The matter was brought before the Additional Commissioner of
Police (Operation, Delhi) for according the necessary
permission under rule 15(2) of the Delhi Police (Punishment &
Appeal) Rules, 1980 to initiate the departmental enquiry
against the petitioner. This permission was accorded by the
Addl. Commissioner of Police by an order dated 10th November,
1987.
In this background, vide an order passed on 11th
December, 1987, Sh. Harbans Lal, ACP was appointed as an
enquiry officer.
48. In view of the rules framed under the Delhi Police Act,
1978 also, the Delhi Police had the jurisdiction to initiate and
take disciplinary proceedings with regard to persons who are
on deputation with it. Therefore, no illegality can be found in
the disciplinary action which was initiated by the Delhi Police
on allegations of misconduct against the petitioner.
Whether a de novo enquiry was required to be held by CISF
upon the petitioner's repatriation to it?
49. It is submitted by Mr. Rajat Aneja, learned counsel for the
petitioner, that in view of the proceedings and action of the
Delhi Police being without jurisdiction, illegal and motivated, it
was necessary for the respondent no.1 to have considered the
matter and directed holding of a de novo enquiry. It is urged
that it was not open to the disciplinary authority to place any
reliance on either the preliminary inquiry conducted by Shri
Murari Lal or the disciplinary proceedings conducted by Shri
Harbans Lal.
50. The other leg of the submission is that the Delhi Police
revoked the petitioner's suspension and reinstated before
repatriating him in April, 1989. According to the petitioner, this
fact manifests an admission on the part of the respondents that
the disciplinary proceedings by the Delhi Police against CISF
personnel on deputation with it were without jurisdiction.
51. The respondents on the other hand contend that the de
novo enquiry which was conducted by the CISF upon the
petitioner's repatriation was from the stage of passing of the
final order. It is further defended that the proceedings were
initiated in accordance with the rules which applied and there
was no illegality in placing reliance on the enquiry proceedings
conducted by the Delhi Police prior to the repatriation of the
petitioner. The enquiry was consequently held from the stage
of passing of the order based on the departmental enquiry
initiated against him.
52. It has been explained by Ms. Avnish Ahlawat, learned
counsel appearing for Delhi Police that the enquiry was
conducted in accordance with the applicable provisions.
53. Rule 21 of the Central Civil Services (Classification,
Conduct and Appeal) Rules, 1965, prescribes the procedure to
be followed for awarding major punishments upon the
deputationist and mandates seeking of the opinion of the
lending authority.
54. Rule 21 of the CCS(CCA) Rules further requires the
borrowing department to consult with the lending department
on the issue of the action to be taken on the report of the
disciplinary proceeding which is based on allegations of
misconduct against a person who is on deputation. No
prohibition for undertaking the disciplinary proceeding by the
borrowing department so far as the CCS(CCA) Rules are
concerned has been pointed out by learned counsel for the
petitioner. Importantly, there is no conflict of these rules also
with regard to the position which subsists under the Delhi
Police Act, 1978 and the Delhi Police Rules, 1980.
55. We find that this matter was again examined by the Addl.
Commissioner of Police (Opt), Delhi. In order to avoid any
further complication in the matter, by the order dated 23rd
October, 1988 it was decided to repatriate the petitioner to his
parent department alongwith the departmental enquiry file
containing the findings of the enquiry officer for taking further
action by the disciplinary authority of the petitioner under the
CISF. This action was clearly in consonance with the applicable
rule.
56. Before repatriation, vide an order dated 6th April, 1989,
the suspension order against him was revoked and he was
reinstated in service. However, this order of reinstatement
clearly informed the petitioner that the reinstatement was
without prejudice to the departmental enquiry pending against
him and that his suspension period would be decided at the
time of decision of the enquiry against him.
In our view nothing therefore turns on the revocation of
the order of suspension.
57. In support of the same contention, the petitioner has also
set up a plea that five or seven CISF personnel against whom
allegations of misconduct were laid while they were on
deputation with the Delhi Police, were repatriated for
disciplinary action to the CISF. The contention is that the
petitioner deserved to be identically treated.
58. It is trite that the petitioner could rest a plea for
individuous discrimination only if some benefit, statutorily or
legally available to him, has been wrongly denied to him. It is
not so in the instant case. No plea for discrimination can be set
up or is made out on a bald plea that some other personnel
have been differently treated, without any further details
thereof. This is more so when the applicable rules and
regulations reflect no illegality in the action which was taken
against the petitioner by the Delhi Police, which was the
borrowing department.
59. An examination of CCS(CCA) Rules noted above would
show that rule 11 thereof provides the penalties which may be
imposed on a government servant. Sub-section (i) to (iv) of
Rule 11 provides minor penalties which may be imposed on the
government servant. However, so far as major penalities
including removal from service and dismissal from service are
concerned, the same are provided from sub-section (v) to (ix)
of rule 11. As per Rule 20 of the said rules, the borrowing
authority has the powers of the appointing authority for the
purpose of placing the government servant who is on
deputation with it under suspension and powers of the
disciplinary authority for the purposes of conducting
disciplinary proceedings against him. In view thereof, even if
the reliance on rule 3 of the Delhi Police (Punishment & Appeal)
Rules was to be ignored, the Delhi Police was adequately
empowered by virtue of Rule 20 of the CCS(CCA) Rules to
conduct disciplinary proceedings against the petitioner who
was on deputation with it in respect of allegations of
misconduct while on such deputation.
60. Having conducted such disciplinary enquiry as noted
above, so far as imposition of punishment is concerned, sub-
rule (ii) of rule 20 provides that in the light of disciplinary
proceedings conducted against such government servant, if the
borrowing authority is of the opinion that any of the major
penalties specified in clauses (v) to (ix) of rule 11 should be
imposed on the government servant, it shall place his services
at the disposal of the lending authority again and transmit to it
the proceedings of the enquiry. The manner in which the
lending authority, which is the CISF in the instant case, is
required to proceed against the deputationist is also provided
in clause (ii) of sub rule (2) of rule 20. It is stipulated that the
disciplinary authority may pass such orders thereon as it may
deem necessary.
61. It is noteworthy that the proviso to sub-rule (ii) of rule 20
provides that the disciplinary authority shall comply with the
provisions of sub-rules (3) and (4) of rule 15 of the CCS (CCA)
Rules before passing such order.
62. Sub-rule (iv) of rule 15 provides the manner in which the
disciplinary authority is to proceed in the matter on the enquiry
report when major penalty proceedings are involved. It
stipulates that having regard to the findings of the disciplinary
authority on all or any of the articles of charge and on the basis
of the evidence adduced during the enquiry, if it is of the
opinion that any of the major penalities should be imposed on
the government servant, it shall make an order imposing such
penalty and that it shall not be necessary to give the
government servant any opportunity of making representations
on the penalty proposed to be imposed.
63. It is noteworthy that an explanation has been provided to
rule 20 which provides that so far as the record of the enquiry
transmitted to the disciplinary authority by the borrowing
authority is concerned, the disciplinary authority may make an
order under Rule 20 or may make such order after holding
further enquiry as it may deem necessary, as far as may be in
accordance with rule 14.
64. The disciplinary authority has passed the order dated 28th
July, 1989 after carefully considering the summary of
allegations against the petitioner; the inquiry proceedings
including the statement of the prosecution witnesses; cross-
examination by the delinquent; prosecution exhibits; the
statement of defence witnesses and the findings of the inquiry
officer and found the petitioner guilty of the charge. In view of
the defence on a consideration of the allegations of which the
petitioner was found guilty and in view of the seriousness of the
charge against the petitioner of having taken illegal
gratification from a foreign national for entry into India without
a valid visa, the disciplinary authority was of the view that he
was not a fit person to be retained in the CISF and
consequently awarded the punishment of removal from service.
65. In the instant case, the disciplinary authority based its
orders entirely on the enquiry conducted by the enquiry officer
appointed by the Delhi Police. No further enquiry was deemed
necessary. It certainly cannot be contended that the procedure
adopted by the disciplinary authority was contrary to the
applicable statutory provisions or the rules. The objection of
the petitioner on this aspect is, therefore, hereby rejected.
66. So far as grant of an opportunity of hearing before
imposition of a punishment is concerned, the same was also
prohibited under Rule 15(iv). It was therefore unnecessary to
do so in view of sub-rule (iv) of rule 15 of the CCS(CCA) Rules
which were applicable at that stage.
67. The disciplinary authority has therefore followed the
procedure laid down under Rule 20 of the CCS (CCA) Rules.
Whether failure of the disciplinary authority to furnish a copy of
the report of the enquiry officer and an opportunity of making a
representation against the same to the delinquent employee is
violative of principles of natural justice?
68. In the above facts, the authority which conducted the
enquiry and the disciplinary authority are not one and the
same. So far as recording of evidence etc was concerned, the
enquiry was conducted by an officer of the Delhi Police and the
proceedings conducted by it were remitted to the CISF. The
petitioner has raised a plea that apart from the aforenoticed
illegalities, in any case the impugned orders are not sustainable
on grounds of violation of principles of natural justice. The
submission is that the disciplinary authority was bound to
supply a copy of the report to him before the order of
punishment could be imposed on him.
69. In (1991) 1 SCC 588 UOI vs. Mohd. Ramzan Khan
relied upon by Mr. Aneja, learned counsel for the petitioner, the
Supreme Court had occasion to consider a similar objection. It
was held that after the Constitution (42nd Amendment) Act,
1976, the second opportunity contemplated by Article 311(2) of
the Constitution had been abolished. However, the principles
of natural justice and fair play required supply of adverse
material to the delinquent who was likely to be effected by
such material. In para 18 of the judgment, the court held that
where an enquiry officer has furnished a report to the
disciplinary authority at the conclusion of the enquiry holding
the delinquent guilty of all or any of the charges, whether the
proposal for any particular punishment is made or not, the
delinquent is entitled to a copy of such report. It has also been
held that the delinquent will also be entitled to make a
representation against it, if he so desires and non-furnishing of
the report would amount to violation of rules of natural justice
and make the final order liable to change hereafter.
70. It is, however, noteworthy that in para 17 of the
pronouncement in Mohd. Ramzan Khan (supra), the court held
that any decision or conclusion to the contrary reached by any
two Judge Bench of the court would no longer be taken as
laying down law but this would have prospective application
and no punishment imposed shall be open to challenge on this
ground. The decision in UOI & Ors. Vs. Mohd. Ramzan
Khan (supra) was pronounced on 20th November, 1990.
71. The entire issue was re-visited and examined by the
Constitution Bench in its judgment reported at (1993) 4 SCC
727 Managing Director, ECIL vs. B. Karunakar & Ors. also
placed before us. It was held by the Constitutional Bench that
the right to receive the report of the inquiry officer is an
essential part of the reasonable opportunity at the first stage,
which is the inquiry stage, as the findings recorded by the
inquiry officer form important material placed before the
disciplinary authority. This inquiry report was obviously not
part of the material before the inquiry officer. It is that material
which, with the evidence, is taken into consideration by the
disciplinary authority to come to its conclusion. The court held
that the right to receive the inquiry officer's report and to show
cause against the findings in the report was independent of the
right to show cause against the penalty proposed. The right to
represent against the findings in the report is part of the
reasonable opportunity available during the first stage of
inquiry, i.e. before the disciplinary authority takes into
consideration the findings in the report. The right to show
cause against the penalty proposed belongs to the second
stage when the disciplinary authority has considered the
findings in the report and has come to a conclusion with regard
to the guilt of the employee and proposes to award a penalty
based on its conclusion. The first is the right to prove the
innocence.
72. The Supreme Court had thus laid down that the denial of
the right to copy of the enquiry report amounts to a denial of
reasonable opportunity to defend and is a violation of the rights
of the delinquent person under Articles 14 & 21 and violative of
the principles of natural justice. It has been clearly held that
this rule operates irrespective of whether the concerned statute
provides for or whether the delinquent asks for the same or
not.
Thus when the enquiry officer is not the disciplinary
authority, the delinquent employee has the right to receive a
copy of the enquiry officer's report before the disciplinary
authority arrives at this conclusion with regard to the guilt or
innocence of the employee with regard to the charges levelled
against him. Such right is a part of the employee's right to
defend himself against the charges levelled against him.
73. So far as the present case is concerned, we find that while
upholding the earlier judgment in UOI Vs. Mohd. Ramzan
(supra), the Constitutional Bench in B. Karunakar (Supra)
also approved the direction made therein that the judgment
would have prospective application. In this regard, in paras 43,
44 of B. Karunakar's case, the Constitutional Bench directed as
follows:-
"43. xxx It will, therefore, have to be held
that notwithstanding the decision of the
Central Administrative Tribunal in H.G.
Patel's case (supra) and of the Gujarat High
Court in Premnath K. Sharma's case (supra)
and of the other courts and tribunals, the law
was in an unsettled condition till at least 20th
November, 1990 on which day the Mohd.
Ramzan Khan's case was decided. Since the
said decision made the law expressly
prospective in operation made the law
expressly laid down there will only to those
orders of punishment which are passed by
the disciplinary authority after 20th
November, 1990. This is so, notwithstanding
the ultimate relief which was granted there
which, as pointed out earlier, was per
incuriam. No order of punishment passed
before that date would be challengeable on
the ground that there was a failure to furnish
the inquiry report to the delinquent
employee. The proceedings pending in
court/tribunals in respect of orders of
punishment passed prior to 20th November,
1990 will have to be decided according to the
law that prevailed prior to the said date and
not according to the law laid down in Mohd.
Ramzan Khan's case (supra). This is so
notwithstanding the view taken by the
different Benches of the Central
Administrative Tribunal or by the High Courts
or by this Court in R.K. Vashist's case (supra).
44. The need to take the law laid down in
Mohd. Ramzan Khan's case (supra)
prospective in operation requires no
emphasis. As pointed out above, in view of
the unsettled position of the law on the
subject, the authorities/managements all
over the country had proceeded on the basis
that there was no need to furnish a copy of
the report of the Inquiry Officer to the
delinquent employee, and innumerable
employees have been punished without
giving them the copies of the reports. In
some of the cases, the orders of punishment
have long since become final while other
cases are pending in courts at different
stages. In many of the cases, the misconduct
has been grave and in others the denial on
the part of the management to furnish the
report would ultimately prove to be no more
than a technical mistake. To reopen all the
disciplinary proceedings now would result in
grave prejudice to administration which will
far outweigh the benefit to the employees
concerned. Both administrative reality and
public interests do not, therefore, require
that the orders of punishment passed prior to
the decision in Mohd. Ramzan Khan's case
(supra) without furnishing the report of the
Inquiry Officer should be disturbed and the
disciplinary proceedings which gave to the
said orders should be reopened on that
account. Hence we hold as above."
74. In the instant case, the petitioner was punished by an
order passed on 28th July, 1989. His appeal and revision stand
dismissed on 16th November, 1989 and 26th/27th April, 1990
respectively, long before 20th of November, 1990 when the
decision in Union of India Vs. Mohd. Ramzan Khan (supra) was
pronounced.
No requirement under the rules in the instant case has
been pointed out which mandated furnishing a copy of the
enquiry report to the delinquent. Therefore, for all these
reasons, the challenge to the impugned orders in the instant
case on the ground that the enquiry report before imposition of
the punishment had not been furnished to the petitioner, is not
available to the petitioner.
75. However, there is another aspect to the matter.
Assuming that the impugned orders could be faulted for failure
to supply the enquiry report to the petitioner, even this fact by
itself would not be determinative of the matter or the
consequences which would follow.
76. It is trite that rules of natural justice are not embodied
rules and certainly cannot be confined within the strait jacket of
a rigid formula. The rules are flexible and their application
would depend upon the setting and the background of the
statutory provision, nature of the right which may be effected
and the consequences which may entail. Its application
depends upon the facts and circumstances of each case. [Ref :
(1986) Supp.SCC 617 R.S. Dass vs. UOI (para 25)]
77. As far back as in the case reported at (1969) 2 SCC 262
A.K. Kraipak vs. UOI, in para 20, the Supreme Court had
stated that the rules of natural justice which should apply would
depend on the facts and circumstances of the case, the
framework of the law under which the enquiry is held and the
constitution of the Tribunal or body of persons appointed for
the same. Whenever a complaint was made before a court that
a principle of natural justice had been contravened, the court
had to decide whether the observance of that rule was
necessary for a just decision on the facts of the case.
78. So far as the effect of non-supply of the enquiry officer's
report on the delinquent is concerned, in para 30 of the
pronouncement in B. Karunakar's case (supra), the majority
view was stated as follows :-
"30. xxxxxx
(v) The next question to be answered is what
is the effect on the order of punishment when
the report of the enquiry officer is not furnished
to the employee and what relief should be
granted to him in such cases. The answer to this
question has to be relative to the punishment
awarded. When the employee is dismissed or
removed from service and the inquiry is set
aside because the report is not furnished to him,
in some cases the non-furnishing of the report
may have prejudiced him gravely while in other
cases it may have made no difference to the
ultimate punishment awarded to him. Hence to
direct reinstatement of the employee with back-
wages in all cases is to reduce the rules of
justice to a mechanical ritual. The theory of
reasonable opportunity and the principles of
natural justice have been evolved to uphold the
rule of law and to assist the individual to
vindicate his just rights. They are not
incantations to be invoked nor rites to be
performed on all and sundry occasions. Whether
in fact, prejudice has been caused to the
employee or not on account of the denial to him
of the report, has to be considered on the facts
and circumstances of each case. Where,
therefore, even after the furnishing of the
report, no different consequence would have
followed, it would be a perversion of justice to
permit the employee to resume duty and to get
all the consequential benefits. It amounts to
rewarding the dishonest and the guilty and thus
to stretching the concept of justice to illogical
and exasperating limits. It amounts to an
`unnatural expansion of natural justice' which in
itself is antithetical to justice."
(Emphasis supplied)
It was therefore the majority view in B. Karunakar's
case (supra) that it was incumbent upon the delinquent
employee to show prejudice and that non-supply of the report
of the enquiry officer to the delinquent employee would not by
itself make the order of punishment null and void. The
principles in this behalf were further elaborated in para 31 of
the judgment by the majority in the following terms :-
"31. Hence, in all cases where the enquiry
officer's report is not furnished to the delinquent
employee in the disciplinary proceedings, the
Courts and Tribunals should cause the copy of
the report to be furnished to the aggrieved
employee if he has not already secured it before
coming to the Court/Tribunal and give the
employee an opportunity to show how his or her
case was prejudiced because of the non-supply
of the report. If after hearing the parties, the
Court/Tribunal comes to the conclusion that the
non-supply of the report would have made no
difference to the ultimate findings and the
punishment given, the Court/Tribunal should not
interfere with the order of punishment. The
Court/Tribunal should not mechanically set
aside the order of punishment on the ground
that the report was not furnished as is
regrettably being done at present. The courts
should avoid resorting to short cuts. Since it is
the Courts/Tribunals which will apply their
judicial mind to the question and give their
reasons for setting aside or not setting aside the
order of punishment, (and not any internal
appellate or revisional authority), there would
be neither a breach of the principles of natural
justice nor a denial of the reasonable
opportunity. It is only if the Court/Tribunal finds
that the furnishing of the report would have
made a difference to the result in the case that
it should set aside the order of
punishment.Where after following the above
procedure, the Court/Tribunal sets aside the
order of punishment, the proper relief that
should be granted is to direct reinstatement of
the employee with liberty to the
authority/management to proceed with the
inquiry, by placing the employee under
suspension and continuing the inquiry from the
stage of furnishing him with the report. The
question whether the employee would be
entitled to the back-wages and other benefits
from the date of his dismissal to the date of his
reinstatement if ultimately ordered, should
invariably be left to be decided by the authority
concerned according to law, after the
culmination of the proceedings and depending
on the final outcome. If the employee succeeds
in the fresh inquiry and is directed to be
reinstated, the authority should be at liberty to
decide according to law how it will treat the
period from the date of dismissal till the
reinstatement and to what benefits, if any and
the extent of the benefits, he will be entitled.
The reinstatement made as a result of the
setting aside of the inquiry for failure to furnish
the report, should be treated as a reinstatement
for the purpose of holding the fresh inquiry from
the stage of furnishing the report and no more,
where such fresh inquiry is held. That will also
be the correct position in law."
79. In a later judgment reported at (2008) 9 SCC 31
Haryana Financial Corporation & Anr. Vs. Kailash
Chander Ahuja, the Supreme Court had occasion to consider
the effect of violation of this rule of audi alterum partem also
for the reason that the enquiry report had not been furnished.
In para 21 of the pronouncement, the court placed reliance on
the ratio laid down in B. Karunakar's case (supra) and
stated that the doctrine of natural justice required supply of a
copy of the enquiry officer's report to the delinquent if such
enquiry officer is other than the disciplinary authority and that
non-supply would be in breach thereof. The court, however,
further stated that "it is equally clear that failure to supply a
report of the enquiry officer to the delinquent would not ipso
facto result in the proceedings being declared null and void and
the order of punishment is nonest and ineffective. It is for the
delinquent employee to plead and prove that non-supply of
such report had caused prejudice and resulted in miscarriage of
justice. If he is unable to satisfy the court on that point, the
order of punishment cannot be automatically be set aside."
The Supreme Court further explained as follows :-
"31. At the same time, however, effect of
violation of rule of audi alteram partem has to
be considered. Even if hearing is not afforded to
the person who is sought to be affected or
penalized, can it not be argued that notice
would have served no purpose" or "hearing
could not have made difference" or "the person
could not have offered any defence
whatsoever". In this connection, it is
interesting to note that under the English Law,
it was held before few years that non-
compliance with principles of natural justice
would make the order null and void and no
further inquiry was necessary.
xxx xxx xxx
36. The recent trend, however, is of `prejudice'.
Even in those cases where procedural
requirements have not been complied with, the
action has not been held ipso facto illegal,
unlawful or void unless it is shown that non-
observance had prejudicially affected the
applicant.
xxx xxx xxx
39. In B. Karunakar, this Court considered
several cases and held that it was only if the
Court/Tribunal finds that the furnishing of the
report "would have made a difference" to the
result in the case that it should set aside the
order of punishment. The law laid down in B.
Karunakar was reiterated and followed in
subsequent cases also [vide State Bank of
Patiala v. S.K. Sharma MANU/SC/0438/1996 :
(1996)IILLJ296SC MANU/SC/0438/1996 :
(1996)IILLJ296SC ; M.C. Mehta v. Union of India
MANU/SC/0982/1999 : [1999]3SCR1173 ]."
80. In Haryana Financial Corpn vs. Kailash Chander
Ahuja (Supra), the court also placed reliance on its earlier
pronouncement in (2000) 7 SCC 529 Aligarh Muslim
University vs. Mansoor Ali Khan. In this case, the relevant
rule provided automatic termination of service of an employee
on unauthorized absence for certain period. M remained absent
for more than five years and, hence, the post was deemed to
have been vacated by him. M challenged the order being
violative of natural justice as no opportunity of hearing was
afforded before taking the action. Though the Court held that
the rules of natural justice were violated, it refused to set aside
the order on the ground that no prejudice was caused to M.
Referring to several cases, considering theory of `useless' or
`empty formality' and noting 'admitted or undisputed' facts, the
Court held that the only conclusion which could be drawn was
that had M been given a notice, it "would not have made any
difference" and, hence, no prejudice had been caused to M.
81. The court also placed reliance on the pronouncement
reported at (2006) 8 SCC 76 P.D. Agarwal vs. SBI to
reiterate the principle that if there was no prejudice to the
employee, an action cannot be set aside merely on the ground
that no hearing was afforded before taking a decision by the
authority. In this case, the enquiry report was in favour of the
appellant but the disciplinary authority proposed to differ with
such conclusions.
82. On a detailed consideration of the several judicial
precedents, in Haryana Financial Corpn. Vs. Kailash
Chander Ahuja (Supra), the Apex Court clearly declared the
law that even though supply of the report of the enquiry officer
is part and parcel of natural justice and must be furnished to
the delinquent employee, failure to do so would not
automatically result in quashing or setting aside of the order or
the order being declared null and void. The court held that
"the delinquent employee has to show `prejudice'. Unless he is
able to show that non-supply of the report of the enquiry officer
has resulted in prejudice or miscarriage of justice, an order of
punishment cannot be held to be vitiated. And whether
prejudice has been caused to the delinquent employee
depends upon the facts and circumstances of each case and no
rule of universal application can be laid down" (para 44).
83. These are the principles which would guide adjudication of
the issues raised by the petitioner before us. The objection of
the petitioner based on the non-supply of the enquiry report by
the disciplinary authority has to be examined from the aspect
as to whether the petitioner has been able to show that any
prejudice or miscarriage of justice has resulted to him on
account of the failure of the service of the report of the enquiry
officer and consequently whether the order of punishment
could be held to be therefore vitiated.
84. The petitioner challenges the proceedings of the
departmental inquiry on the contention that he was not
afforded a reasonable opportunity to defend himself and that
the Delhi Police did not supply copies of the statement of
witnesses recorded ex parte at the pre-enquiry stage as well as
the documents which were relied upon to establish the charges
before commencement of the enquiry. It is further submitted
that the preliminary inquiry report was also not furnished
before the same was brought on record and thereby the
petitioner was denied a reasonable opportunity to exonerate
himself. It is contended that the enquiry proceedings were
therefore vitiated on grounds of violation of principles of natural
justice. In support of these contentions, the petitioner has
placed reliance on the pronouncement of the Apex Court
reported at (1986) 3 SCC 229 Kashinath Dikshita Vs.
Union of India & Ors.
85. The petitioner urges grave and serious prejudice to his
defence and rights on the grounds noticed hereafter. It is
submitted that under Rule 34 of the CISF Rules, 1969, a definite
charge on the basis of allegations on which the enquiry is
proposed to be held is required to be framed by the disciplinary
authority. This charge alongwith the statement of allegations is
served upon the delinquent official who is given opportunity to
submit a written statement of defence. This opportunity is
denied to the delinquent in the event of an enquiry being
conducted under the Delhi Police (Punishment & Appeal) Rules,
1980. In an enquiry conducted into the Delhi Police Rules of
1980, the enquiry officer issues a summary of allegations
without any requirement of submission of reply or explanation
or written statement of defence which could be considered
before proceeding further.
86. Mr. Aneja, learned counsel for the petitioner has further
contended that under Rule 34(6) of the CISF Act, the evidence
is required to be led in its entirety on the charges in question
and the delinquent officer has a right to cross examine the
witness(s) without any requirement of framing a charge afresh
after the evidence of the prosecution. Under the Delhi Police
Rules, a charge is framed after recording the evidence of the
prosecution and an opportunity is given to the delinquent
official to lead his evidence.
87. It is also submitted that Rule 34(5) of the CISF Rules
contains a specific provision allowing assistance of any other
member of the force to the delinquent official during the course
of enquiry which is absent under the police rules whereas no
such provision exists in the Delhi Police Rules.
88. As briefly noticed hereinabove, the petitioner has laid a
challenge to the testimony of the witnesses and the evidence
brought on record by the enquiry officer. Several
contradictions and anomalies have been suggested. The
petitioner has also assailed prior statements attributed to two
witnesses Shri S.D. Sharma and SI Jawahar Singh on the ground
that the same has been procured on 11th August, 1987 and on
10th August, 1987 respectively which is after the conclusion of
the preliminary enquiry. A very vehement argument has been
laid that the disciplinary proceedings against the petitioner
were motivated at the instance of the officials of the Delhi
Police who wished to save their own skin. A vehement
grievance has been made that the Srilankan national who was
allegedly cleared by the petitioner, was permitted to leave
without taking any action against him. It is urged that a
statement was attributed to the Srilankan passenger which was
permitted to be exhibited on the record of the disciplinary
enquiry and relied upon in finding the petitioner guilty. It is the
petitioner's submission that such statement could not have
been relied upon without production of the Srilankan in the
enquiry and without giving opportunity to the petitioner to
cross-examine him.
89. The petitioner also has challenged the preparation of the
seizure memo effected by SI Jawahar Singh and urged that the
currency allegedly recovered from the petitioner has not been
produced on record. These matters of evidence were required
to be placed before and examined during the course of the
enquiry proceedings and cannot be gone into by us at this
stage.
It has been vehemently contended that the entire action
against the petitioner is concocted and that this aspect is
manifested from the fact that no action at all was taken against
the Srilankan passenger who was permitted to return.
However, this allegation remained wholly unsubstantiated in
the enquiry proceedings.
90. We find no merit in these submissions. In the facts of this
case, it would have been unreasonable to expect the
production of a foreign national at the stage of conduct of
enquiry, since he had been permitted to leave India as he did
not have the visa to enter into India. It was not even the
petitioner's case that the statement attributed to the Sri Lankan
National was not his. No allegation of malice has been
substantiated against the Sri Lankan National.
We find that even if the statement attributed to the Sri
Lankan national was ignored the charge against the petitioner
stands substantiated and established in the other evidence led
in the enquiry. It needs no elaboration that the minimum
requirement of rules of natural justice is that there must be
some evidence which points to the guilt of the accused in
respect of the charges alleged against him. It is no doubt true
that in the disciplinary enquiry proceedings, the standard of
proof that is required is that of preponderance of probability
and not proof beyond doubt.
91. Perusal of the departmental enquiry report reveals that
the petitioner was granted an opportunity to cross-examine the
seven prosecution witnesses, namely, PW-1 Inspector Tej Ram
No.D-I/85, Immigration IGI Airport, N. Delhi, PW 2 Inspector
Budh Ram No.D/399, Immigration IGI Airport, N. Delhi, PW 3 SI
Inder Mohan No.D/5031, Immigration IGI Airport, N. Delhi, PW 4
SI Vijay Kumar Yadav No.D/5066, Immigration IGI Airport, New
Delhi, PW-5 Inspector Jawahar Singh No.D/1457, Immigration
IGI Airport, New Delhi, PW 6 Sh. Murari Lal, AFRRO, IGI Airport,
New Delhi, PW 7 Sh. S.D. Sharma, AFRRO (Retd), IGI Airport,
New Delhi.
The petitioner elected not to cross-examine PWs 1, 2 & 4
in spite of the opportunity being granted to him. The PWs 3, 5,
6 and 7 were cross-examined by him. The evidence has been
briefly summed up in the departmental inquiry report.
92. The report explicitly states that the petitioner was given
(a) a list of documents; (b) a list of witnesses; (c) the copies of
the listed documents including statements of witnesses
recorded during the preliminary enquiry; (d) copies of available
and relevant additional documents well in advance. All listed
documents including statements of PW 5 recorded during
preliminary enquiry were supplied enabling effective cross-
examination by the petitioner.
Furthermore, most of the additional documents demanded
by the petitioner vide communucation dated 28th January, 1988
were supplied to him prior to the departmental enquiry under
clear receipt. Only a few documents were not supplied for the
following reasons: (a) They were not recorded/prepared during
preliminary enquiry or otherwise. (b) Some statements not
supplied as they were not found relevant since those PWs were
not cited as PWs during the departmental enquiry. (c) Dis-
embarkation card was destroyed/misplaced by petitioner.
However a photocopy had been supplied.
It has been pointed out that all listed documents including
statement of PW 5 recorded during the preliminary enquiry
were supplied for effective cross-examination. Only the
preliminary enquiry report was not supplied as it was in the
nature of an inter-departmental communication and the
enquiry officer himself did not rely upon it.
Moreover, the respondents vide letter dated 18th January,
1988 provided the provisional list of documents relied upon to
the petitioner and also informed that he can inspect and take
extracts within three days and even could demand copies of
additional documents.
The petitioner has admitted that the statements were
provided to him concerning the preliminary enquiry along with
summary of allegations on his demand. He has relied upon the
statements recorded after Preliminary Enquiry findings to
contend his innocence in his representation dated 29th
September, 1988.
Thus on perusal of the communications dated 18th
January, 1988, 28th January, 1988 and the departmental enquiry
report, it is clear that the respondents have from time to time
provided the petitioner with all the relevant documents and
have also responded to all the demands for documents made
by him. The petitioner thus has been given reasonable
opportunity to access the documents well before the
departmental enquiry poceedings.
93. The respondents object to re-examination of the evidence
led before the enquiry officer in the present proceedings and
contend that the scope of judicial review of this court in the
enquiry proceedings is narrow and it cannot examine the
evidence as if it was examining an appeal against the order of
disciplinary authority.
There is force in this submission. (Ref.: (2000) 1 SCC
416 Government of Andhra Pradesh Vs. Mohd. Nasrullah
Khan)
94. The respondents have contended that in accordance with
the rules, the petitioner was furnished a copy of the inquiry
report along with the findings dated 28th July, 1989 passed
against him by the disciplinary authority against him.
95. We, however, find that the procedure followed by the
Delhi Police has been prescripted under the rules framed in
exercise of statutory powers applicable to the enquiry has been
followed. It has been held hereinabove that in view of the
petitioner being on deputation with the Delhi Police, he was
liable to be proceeded against in terms of the Delhi Police
(Punishment & Appeal) Rules, 1980.
96. It is contended by Ms. Anjana Gosain, learned counsel
appearing for the respondent nos. 1 and 2 that the due and fair
procedure was followed during the enquiry.
97. Copy of the summary of allegations was duly served upon
the petitioner. The petitioner was clearly put to notice of the
case against him.
98. It is noteworthy that the respondent no. 2 has noticed
that Sh. Harbans Lal, ACP was appointed enquiry officer in
accordance with Section 21 of the Delhi Police Act, 1978. It has
also been noticed that rule (3) sub-rule (ii) of the Delhi Police
Rules, 1980 provides that all non-gazetted police officers on
deputation from the Central/State police organisation shall be
governed by the Delhi Police Act, 1978.
The record laid before us would show that the petitioner
submitted a statement of defence on 28th January, 1988 and
after the closure of the prosecution evidence on 7th November,
1988 denying the charges which have been considered by the
disciplinary authority.
99. The petitioner was given full opportunity to cross examine
the witnesses. As noticed above, the petitioner took considered
decisions to cross examine some of the witnesses and not to
cross-examine others also. With his written statement dated
21st October, 1988, the petitioner submitted a list of one
defence witness who was examined by him on 24th October,
1988. It is further submitted that copies of the statements of
witnesses recorded during the preliminary enquiry were also
made available to the petitioner sufficiently in advance for his
conducting an effective cross examination of the witnesses
when they appeared in the witness box. The petitioner has
displayed familiarity with the implications of law and an
understanding of the nuances thereof as well as of all
procedural aspects. No prejudice resulted at all in the
proceedings to the petitioner for the reason that during the
enquiry proceedings, the witnesses reiterated the statements
made by them during the preliminary enquiry and the
petitioner had ample opportunity to challenge these statements
recorded at the preliminary enquiry while cross examining the
prosecution witnesses at the disciplinary enquiry. Therefore,
from the procedural angle, it cannot be held that any right of
the petitioner was violated during the enquiry or that the same
was conducted either in violation of any statutory provision or
of principles of natural justice. It is also not possible to hold
that any prejudice resulted to the petitioner in these
circumstances.
100. The petitioner does not dispute that the procedure
prescribed under the Delhi Police Rules has been followed. The
submission is that following this procedure has prejudiced the
rights and defence of the petitioner.
101. Perusal of the record would show that no such objection
has been taken by the petitioner in his communication dated
28th January, 1988 or in the revision dated 6th December, 1989.
The petitioner has cross examined the witnesses examined on
behalf of the department extensively and has at no point of
time expressed any difficulty or complained that he was
prejudiced on any count on the ground that he did not have a
defence assistant. The representations and defence statement
submitted by him, display knowledge and awareness of legal
provisions and procedure. Even before us, the petitioner has
not said anything more than what he stated before the
authorities. No prejudice to the petitioner at all by the
procedure adopted by the respondents is disclosed or made
out. Moreover, since the rules for conduct of disciplinary
proceedings under the Delhi Police Act were applicable, as the
enquiry was conducted by Delhi Police, the petitioner cannot
have a grievance that the rules under the CISF Act would have
been more favourable to him.
102. As noticed hereinabove, a person assailing the disciplinary
proceedings and action against him has to establish prejudice
which has resulted to him. Other than pointing out provisions
of the CISF Rules, and a bald assertion that he has been
seriously prejudiced by invocation of the provisions of the Delhi
Police (Punishment & Appeal) Rules, 1980, no prejudice at all is
disclosed. It needs no elaboration that bald assertions of
prejudice without anything more are not sufficient to conclude
that prejudice has resulted to the petitioner rendering the
proceedings against him illegal. (Ref.: (2008) 9 SCC 31
Haryana Financial Corporation & Anr. Vs. Kailash
Chander Ahuja).
103. It is trite that so far as assistance, legal or otherwise, is
concerned, the same has to be in terms of the rules governing
the enquiry. The petitioner has not pointed out any rule
violation. In the facts aforenoticed, in any event, the petitioner
is unable to also support the plea of prejudice by the procedure
followed in the enquiry.
104. So far as the enquiry against the petitioner is concerned,
the same was conducted in accordance with the Delhi Police
(Punishment & Appeal) Rules, 1980 by an enquiry officer
appointed by the Delhi Police. The disciplinary authority
conducted the enquiry proceedings from the stage of
consideration of the enquiry report and passing of the order
based on the proceedings of the enquiry which were
transmitted by the Delhi Police to it. There was no requirement
of furnishing the preliminary enquiry report to the petitioner.
Only such of the statements/evidence and documents on which
the Department sought to place reliance in the course of the
enquiry proceedings were required to be furnished to the
petitioner under the applicable rules. The petitioner has
neither pointed out which of those documents/evidences were
not supported to him nor has he pointed out how he has been
prejudiced due to the alleged non supply of any
documents/evidence.
105. The petitioner assailed the order dated 28th July, 1989 by
way of an appeal dated 25th August, 1989 to the Deputy
Inspector General of the CISF, Eastern Zone, Calcutta. This
appeal came to be dismissed by an order dated 16 th November,
1989. The petitioner's revision dated 6th December, 1989 was
rejected by an order passed on 26th/27th April, 1990. The
petitioner has assailed these orders dismissing the appeal and
the revision not only on the grounds of jurisdiction but on
merits as well as on the ground that the orders failed to record
reasons.
In support of these contentions, the petitioner has relied
on the pronouncement of the Supreme Court reported at AIR
1986 SC 1173 Ram Chander Vs. Union of India & Ors.
106. The petitioner has assailed the aforesaid orders also on
the ground that the same disclose no reasons. We find that
the appellate & revisional authorities have agreed with the
findings of the disciplinary authority and consequently this
objection of the petitioner is devoid of legal merit.
107. In view of the detailed discussion on the objections to
findings of the disciplinary authority, the challenge to the
orders of the appellate & revisional authority on the same
grounds noticed above is devoid of merit and is hereby
rejected.
In view of the above discussion, we find no merit in this
writ petition which is hereby dismissed.
(GITA MITTAL)
JUDGE
(VIPIN SANGHI)
July 30 th
, 2010 JUDGE
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