Hari Om vs Govt. Of Nct Of Delhi & Ors.
2010 Latest Caselaw 2764 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      WP(C) No.3332/2010 & CM No. 6699/2010

%                            Date of Decision: 25.05.2010

Hari Om                                                      .... Petitioners
                          Through Mr. Harish Malhotra, Sr. Advocate with
                                  Mr. Tanuj Khurana, Advocate

                                      Versus

Govt. of NCT of Delhi & Ors.                        .... Respondent
                   Through Mr. Anjum Javed, Advocate
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be               YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                  NO
3.     Whether the judgment should be reported                 NO
       in the Digest?


ANIL KUMAR, J.

*

The petitioner, who is a head constable in Delhi Police, has

challenged the order dated 22nd May, 2009, passed by the Central

Administrative Tribunal, Principal Bench in OA 2134/2008 titled as Sh.

Hari Om Vs. Govt. of NCT of Delhi through its Chief Secretary & Ors.,

dismissing his Original Application filed by the petitioner challenging

the punishment of forfeiture of one year's approved service permanently

awarded to him and treating the suspension period from 14th

December, 2005 to 18th January, 2006 as 'not spent on duty' by order

dated 20th June, 2007 and dismissal of his appeal by order dated 30th

June, 2008.

Brief facts to comprehend the disputes raised by the petitioner

are that he was posted at Police Station, IGI Airport, New Delhi during

2005. On 14th December, 2005, Inspector Dharambir Singh Joshi,

SHO/IGIA called SI (Record) and other staff including the petitioner for

ascertaining certain information relating to the references which were

pending with Record Branch. Inquiries were also made about the PO

register, pending dossiers and other papers. It was alleged that the

response and behavior of the petitioner was atrocious as he claimed to

be the busiest person and stated that he could not perform his duties.

It was also alleged that, his general attitude was as whenever any duty

was assigned to him, he posed himself to be the busiest person despite

being cautioned by the SHO/IGIA to complete the job on priority.

However, there was no change in his behavior rather the petitioner told

the SHO that he could take whatever action he felt appropriate against

him but he would do things according to his pace and convenience,

which amounted to gross indiscipline and insubordination.

In view of the specific allegations against the petitioner, the

disciplinary proceedings were initiated by order dated 10th February,

2006 and an inquiry was held and after examining five witnesses for the

prosecution, the inquiry officer held that the charge leveled against the

petitioner was made out. During the inquiry, the petitioner did not

produce any witness for his defense nor did he examine himself. The

inquiry officer, in his report, held that the charge against the petitioner

was made out. On the basis of the inquiry report and the reply by the

petitioner, the disciplinary authority awarded the punishment of

forfeiture of one year's approved service permanently and the

suspension period as 'not spent on duty', which was affirmed by the

Appellate Authority.

The petitioner had challenged the punishment alleging, inter

alia, that the inquiry officer relied on the report given by PW-1, whose

copy was not given to the petitioner, which was to his prejudice

inasmuch as even the Disciplinary Authority has relied on the said

report. It was also contended that the charge comprised of two

allegations that his attitude and behavior towards his superior officers

was atrocious and the second charge was that despite the caution there

was no change in his behavior and that he asked the SHO/IGIA to take

whatever action he felt appropriate against him. It was contended that

according to the inquiry officer, the charge of atrocious behavior was

made out and regarding no change of behavior, that charge was not

made out and in the circumstances, only a part of the charge was made

out and in the circumstances, there was no application of mind by the

disciplinary authority.

The pleas and contentions were contested by the respondents

contending, inter alia, that the charge was composite and atrocious

behavior can be culled from his responses to the SHO and no change in

his behavior despite caution given by the SHO. Rather the petitioner

confronted his superior officers and challenged them to do whatsoever

they felt appropriate but he was not to change his way of working or his

attitude.

The Tribunal, after considering the pleas and contentions

repelled the plea of the petitioner that the charge comprises of two

elements and only one of the elements of the charge was made out

whereas other element of the charge was not made out. The Tribunal

also repelled the plea of the petitioner that he had been prejudiced

because the copy of the report of Inspector Dharambir Singh Joshi, the

first witness (PW-1), was not given to the petitioner while the Inquiry

Officer and the Disciplinary Authority relied on it. The Tribunal relied

on the fact while repelling the contention that the alleged report had not

been exhibited as a document and the said witness had only stated that

he had informed about the episode to the ACP. The reliance was also

placed on the fact that the petitioner had not asked about the report in

his cross-examination, although the opportunity was given to the

petitioner.

The Tribunal considered the order of the Disciplinary Authority

stipulating that though the version of Inspector Dharambir Singh Joshi,

SHO/PS-IGIA was not supported/corroborated by any other PWs

examined during the course of the departmental inquiry but the

statement of officer of the rank of Inspector could not be ruled out

lightly. It was noticed that he had called SI (Record) and other staff

including the petitioner for ascertaining the position of official papers

pending relating to replies to be sent to senior officers. The Categorical

statement of PW-1 in this respect about the petitioner that he told the

Inspector that he is very busy with other work and cannot perform his

duties and when he asked to behave properly and take up the work on

priority, the petitioner replied that he cannot do and challenged the

Inspector to do whatsoever could be possible for him to do against him.

In the circumstances, on the basis of preponderance of probability, the

Tribunal has upheld the version of the respondents is more probable

and has held that there was no illegality in the order of the Disciplinary

Authority and the Appellate Authority imposing the punishment on

account of the charge made out against the petitioner.

The learned senior counsel Mr. Harish Malhotra has very

vehemently argued that the case against the petitioner is of no evidence.

He has referred to the statements of PW 2, 3 & 4 to contend that on the

basis of the statements of PW-2 SI Narpat Singh Rathore, PW-3 HC

Hawa Singh and PW-4 HC Trilok Singh and other witnesses, it cannot

be held that the allegations against the petitioner stood corroborated as

they have categorically denied the version of the Inspector alleging that

the petitioner had challenged the SHO that he can do whatsoever he

like and take whatsoever action he has to take against the petitioner

but he will do work according to his own pace and convenience.

Though, the statements of other witnesses had not

corroborated the version of Sh. Dharambir Singh Joshi (Inspector),

SHO/IGIA Airport, however, even the Tribunal has noticed this that the

statement of the SHO though has not been corroborated but he had

categorically deposed about the behavior of the petitioner and the

rudeness shown by him when he was cautioned and asked to work

efficiently and the challenge thrown by the petitioner to the Inspector

Dharambir Singh Joshi, to do whatsoever he felt appropriate against

the petitioner and take whatsoever action he deemed appropriate. The

Disciplinary Authority has relied on statement of the Inspector on the

ground that he is a senior Inspector and his statement could not be

brushed aside and every statement does not require corroboration for

reliance. This is not disputed that no malafide has been alleged by the

petitioner against the SHO/Inspector. Perusal of the cross-examination

of Sh. Dharambir Singh Joshi by the petitioner reveals that it had not

been even suggested by him to the Inspector that the allegations made

by him against the petitioner were incorrect. The cross-examination

was restricted to whether any DD entry was made regarding the

mistakes of the petitioner earlier and whether the dossier and PO

Register were maintained earlier or not and whether any of the staff has

lodged a written complaint against him.

This Court has perused the statement of Sh. Dharambir Singh

Joshi and the statement of other witnesses also, though, in exercise of

the power of judicial review, this Court does not have to re-appreciate

the evidence nor has to arrived at its own finding of the facts and

substituted the findings arrived at by the Disciplinary Authority.

Learned counsel for the petitioner was categorically asked that

if the version of the Inspector was not correct, then how the queries

raised by the Inspector was replied by the petitioner and what is his

version and what had been disclosed before the Inquiry Officer. The

learned counsel is unable to show any such plea taken on behalf of the

petitioner. This is not the case of the petitioner that though, Inspector

Dharambir Singh Joshi had asked him to complete the work, but he did

not refuse that or did not speak rudely or that he had told him that he

would be able to complete the work after completing other pending

work. Rather different version of the episode has not been given by the

petitioner and in the circumstances, on the basis of preponderance of

probability, the only inference which can be reached is that the version

given by Dharambir Singh Joshi is correct and if that be so, then the

charge against the petitioner is made out. Merely because other staff

has not made any complaint against the petitioner would not reflect

that the complaint by the SHO against the petitioner would not be

correct. The Disciplinary Authority has also held so and this inference

of the Disciplinary Authority has also been sustained by the Tribunal.

In the circumstances, it cannot be held that the case against

the petitioner is of no evidence so as to entail any interference by this

Court. The Inquiry Officer and the Disciplinary Authority have analyzed

the evidence, and on the basis of preponderance of probability, has held

that the charge against the petitioner is made out. While doing so, they

have not taken into consideration any irregular fact nor have refused to

take into consideration of the relevant facts nor their inferences are

based on any assumptions nor had they rejected the relevant testimony

of witnesses on the basis of any surmises and conjectures.

In the circumstances, the learned counsel for the petitioner has

failed to make out any such illegality, irregularity or any perversity in

the order of the Tribunal, which will necessitate or require any

interference by this Court under Article 226 of the Constitution of India.

The writ petition, in the facts and circumstances, is without

any merit and it is, therefore, dismissed. All the pending applications

are disposed and the parties are left to bear their own costs.

ANIL KUMAR, J.

MAY 25, 2010                                     MOOL CHAND GARG, J.
'rs'