Om Prakash Jat Constable vs Uoi &Ors.
2010 Latest Caselaw 5096 Del

6
*IN THE HIGH COURT OF DELHI AT NEW DELHI
                       +   W.P.(C)No.19726/2004
                             Date of Decision : 9th November, 2010

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      OM PRAKASH JAT CONSTABLE      ..... Petitioner
                    Through : Mr. P.S. Bindra and
                              Mr. Harish Sharma, Advs.
              versus
      UOI &ORS.                             ..... Respondents
                           Through : Dr. Ashwani Bhardwaj, Adv.
CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                 YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                YES

3.      Whether the judgment should be                        YES
        reported in the Digest?

GITA MITTAL, J. (Oral)

1. The petitioner challenges the final order dated 10th

October, 2002 terminating the services of the petitioner, order

dated 5th November, 2003 rejecting his appeal and order dated

13th August, 2004 dismissing the revision petition filed by him

by this writ petition.

2. A disciplinary inquiry was proposed against the petitioner

by the memorandum dated 10th September, 1999 under Rule

34 of the Central Industrial Security Force Code Act 1969 and

the amended Rule 36 of the Act of 2001 on the following

charges:-

"CHARGE That on 29.06.99 at 1115 hrs. CISF No.884656887 Const. O.P. Jat of CISF Unit OCs Shakurbasti, Delhi was intercepted by Delhi Police SI Hem Raj and Constable

Rajender Singh near cement siding of IOC Complex while moving in that area. On questioning by Police to show the bag he was carrying in this hand, he ran towards IOC Complex along railway lines at the back of IOC Complex. Having been checked by Delhi Police for allegedly in possession of opium, Constable O.P. Jat was apprehended inside the IOC Complex on the stairs leading to the plant control room where he entered through the back gate. He escaped from Police custody no sooner SI Hem Raj was taken by the plant STM to his office. The said Constable O.P. Jat deserted from Unit lines and absented from shift duty from the same date and is still absenting himself from duty.

This act of said constable O.P. Jat has thus brought a bad name and tarnished the image of the force, which amounts to grave misconduct, gross negligence, indiscipline and un-becoming of a member of the disciplinal force like CISF. Hence, the charge."

3. It is noteworthy that the petitioner had failed to respond

to the notice to show cause, the charge sheet and order of

suspension which were duly received by his father on his behalf

on 24th September, 1999. In view thereof, by an order passed

on 18th October, 1999, Sh. N.C. Pathak on that date the

Additional Commandant was appointed as the Inquiry Officer to

conduct the enquiry against him.

4. It is evident from the charge noticed hereinabove, the

petitioner had deserted the service on the 29th of June, 1999.

After service of the said order on 18th of October, 1999, the

petitioner reported to the unit on the 23rd of October, 1999

when he was handed over to the Delhi Police in the case

registered as FIR No.529/1999 dated 29th June, 1999 under

Sections 18/61/95 of Narcotic Drugs and Psychotropic

Substance Act.

It appears that the petitioner had made a representation

dated 16th March, 2000 from the Tihar Jail stating that since he

has been implicated in a false criminal case, therefore, the

departmental inquiry should be initiated after disposal of the

criminal case in the Court. The disciplinary proceedings were

kept pending as the case was sent to the higher authority vide

letter dated 28th March, 2000 to get directions in this regard.

Subsequently, a decision was taken to proceed with the inquiry

against the petitioner which so proceeded. In these

proceedings, a report dated 10th November, 2001 was

submitted by the inquiry officer which was sent to the

petitioner by the disciplinary authority.

5. The petitioner filed an application dated 20th November,

2001 requesting for a fresh copy of these documents for the

reasons that the same was missing during cleaning of the

barrack. It was further contended that the investigating officer

had recorded statements ex-parte without giving opportunity

to the petitioner to cross-examine the witnesses. An

explanation was sought to be rendered by the petitioner that

he ran away from the unit because he feared that he would be

arrested despite his innocence and that the case against him

was false. The petitioner stated that fear of such arrest kept

him away from the inquiry. In this background, the disciplinary

authority took a decision to give an opportunity to the

petitioner to defend himself and a direction was issued

permitting him to cross-examine the witnesses.

6. In the meantime, the then inquiry officer Sh. N.C. Pathak

was transferred and Sh. Shyam Lal, Additional Commandant

was appointed as an inquiry officer by an order dated 16th

January, 2002 of the Commandant, Oil Complex Shakurbasti,

Delhi. The inquiry officer had proceeded de novo on 29th April,

2002 and sent a copy of the notice to show cause to the

petitioner. The petitioner submitted a fresh reply on 8th May,

2002 denying the charges levelled against him. On 22nd April,

2002, the petitioner had stated that he wanted to defend the

case by himself without any assistance.

7. It is an admitted position that the inquiry proceedings

were conducted in the presence of the petitioner who defended

the case himself. Adequate opportunities have been given to

the petitioner to cross-examine the witnesses produced by the

prosecution ensuring all rights of the petitioner. In this

background, the inquiry officer forwarded his report under the

letter dated 28th August, 2002 finding the petitioner guilty of

the charge for which the enquiry had been conducted.

8. The petitioner received a copy of the inquiry report from

the disciplinary authority on the 4th of September, 2002 and

filed his response thereto on the 25th of September, 2002

through the office of the Deputy Superintendent, Central Jail

No.4.

9. The original record of the inquiry has been produced

before us. We find that inquiry officer has recorded the

statement of 13 witnesses and afforded full opportunity to the

petitioner to cross-examine them. The record produced before

us shows that the petitioner had addressed a letter dated 17 th

June, 2002 citing the names of certain doctors who had

purportedly examined and treated him at the government

hospital, Chirawa in District Jhunjhunu, Rajasthan between 29th

June, 1999 to 3rd October, 1999 and prayed for permission to

produce them as witness. The petitioner also sought to

examine one Sri Chand and Sh. Rajender. This application was

considered and rejected by the inquiry officer by a

communication dated 15th July, 2002 whereby the petitioner

was informed that the allegation against him with regard to

absence without leave from the unit line of the CISF Unit, OCS

Shakurbasti and consequently, evidence of persons from his

village in Rajasthan which had no connection with the unit at

Shakurbasti, was totally irrelevant.

10. It is, therefore, apparent that there is no denial by the

petitioner that he had absconded from the unit line on the 29 th

of June, 1999 and had set up the excuse that he was in fear of

arrest and ran away for the reason of such apprehension. It

also remains undisputed that the petitioner was absent without

any sanctioned leave from 29th June, 1999 to 23rd October,

1999.

In this background, the finding of the inquiry officer and

disciplinary authority to the effect that the petitioner had

absconded from his duty without prior information and

dismissal from the unit remain factually unassailable.

11. The petitioner's contention that he had been prejudiced

and not been given adequate opportunity to defend by the first

inquiry officer stood accepted. Thereafter the matter was

conducted by the second inquiry officer.

12. So far as the contention that the petitioner was unable to

effectively defend himself is concerned, we find that the

respondent had taken a careful view in the matter and the

petitioner has been given complete and effective opportunity

to defend himself by the inquiry officer. It has been submitted

before us that the petitioner was in Jail and for this reason the

inquiry has been proceeded. It needs no elaboration that the

fact that the petitioner was in jail would by itself not be

sufficient to arrive at a conclusion that the petitioner's defence

has been prejudiced.

13. The petitioner has placed on record the documents which

manifest that the petitioner was duly served with all the

documents and was given complete and effective opportunity

to defend himself in the inquiry. There is nothing placed before

us which could even remotely suggest the petitioner's

contention that the respondents action was malicious for the

reason that he was in custody. There is no challenge to the

appointment of the inquiry officer or the conduct of the inquiry

officer on behalf of the petitioner. No violation of any statutory

rule or principle of natural justice has either been pleaded or

contended before us.

14. Learned counsel appearing for the petitioner has

vehemently contended that given the nature of allegations

against the petitioner, it would be illegal and improper for the

respondents to proceed with the disciplinary proceedings on a

charge which was identical to the charge against which the

petitioner was defending himself before the Criminal Court. It

has further been submitted that by the judgment dated 15th

April, 2004 passed by the Learned Additional Sessions Judge,

Delhi, the petitioner has been acquitted for the reason that the

prosecution could not succeed in bringing home the guilt of the

petitioner beyond any reasonable doubt.

15. So far as the charges with which the inquiry was

conducted against the petitioner necessitating the disciplinary

proceeding is concerned, we find that the same is restricted to

the allegation that the petitioner had absconded from duties

from 29th June, 1999 and remained absent without any sanction

of leave till 23rd October, 1999.

16. The criminal trial on the other hand related to the

allegation that there were recovery of opium from the

petitioner and the petitioner was tried for commission of

offence under Section 18/61/85 of the Narcotic Drugs and

Psychotropic Substance Act which had resulted in registration

of FIR No.529/1999 by the police station Punjabi Bagh, New

Delhi.

17. We may note that the charge levelled against the

petitioner in the disciplinary proceedings was limited to the

factum of his unauthorized absence from duty and nothing

more. For this reason as well, we are unable to return a finding

in favour of the petitioner. We are unable to hold that there

was parity of charges on which the petitioner was tried before

the criminal court and those on which the disciplinary

proceedings were conducted against him.

18. In this background, the petitioner's acquittal by the

judgment dated 15th April, 2004 by the learned Special Judge

would be irrelevant so far as the disciplinary proceedings are

concerned.

19. In any case, it needs no elaboration that even if the

charges were similar, the standard of proof in the two

proceedings is different. Whereas in the criminal trial, the

prosecution is required to prove criminal charges beyond

reasonable doubt against the accused person. So far as the

disciplinary proceedings are concerned, the inquiry officer is

required to test the evidence and material placed before it on

the standard of preponderance of probabilities.

20. For this reason as well, there is no merit on the

submissions made on behalf of the petitioner. The report of the

inquiry was placed before the disciplinary authority, who after

careful consideration thereof passed an order dated 10th

October, 2002 finding that the petitioner absconded from his

duty and unit without prior permission and information which

was not only negligence but gross misconduct. After finding

the petitioner guilty of the charge, in exercise of powers under

Rule 32 Schedule 1 and Rule 34 (ii) of the CISF Act, 2001, the

disciplinary authority imposed the punishment of removal from

service. The petitioner made an appeal dated 2 nd January, 2003

to the Deputy Inspector General, North Zone of CISF, which was

rejected by a reasoned order dated 5th November, 2003. The

petitioner also availed the statutory remedy by way of a

revision assailing two orders against him which was rejected by

an order dated 13th August, 2004.

21. The above discussion shows that the departmental

inquiry was conducted as per the prescribed procedure. No

violation of any principle of natural justice has been argued or

made out. The findings against the petitioner are supported by

the evidence available on record.

22. A plea has been taken by learned counsel for the

petitioner that he was prevented by circumstances and reasons

beyond his control and, therefore, could not join duty between

29th June, 1999 to 4th October, 1999. In this regard, reliance is

placed on certain medical certificates produced before this

court to justify his absence. It has been urged that petitioner

was suffering from Depressive Neurosis. In this regard, learned

counsel for the petitioner has placed reliance on certain

documents relating to the period 1993-94 to contend that the

petitioner had received a head injury and, therefore, had been

under psychological treatment earlier as well. The certificates

produced before this court do not inspire any confidence. The

petitioner relies on a medical board on the 30th of September,

1999 of three doctors constituted by the Chief Medical and

Health Officer Jhunjhunu. This certificate states that after

careful examination of the petitioner, the board considered that

the period of absence from 29th June, 1999 to 3rd October, 1999

was necessary for restoration of the petitioner's health and

that he was suffering from said Neurosis. We are unable to

comprehend as to how on a medical examination of a person in

September, 1999, a doctor could positively certify his state of

health for the period prior to such examination. There is

nothing on record to show that the petitioner has ever been

examined either by a psychiatrist or Neurologist who could

authoritatively give an opinion that the petitioner was suffering

from such Neurosis and was unable to rejoin his duty. The

respondents have placed further reliance on several notices

given to the petitioner to join duties to which the petitioner did

not respond. On the contrary, it has been contended that the

petitioner was keeping away because of his fear of being

arrested. For this reason, nothing would turn on the claim of

the petitioner's sickness. The medical certificates which have

been relied upon by the petitioner do not inspire confidence.

23. We are also unable to hold that the punishment imposed

on the petitioner was grossly disproportionate to the series of

the charges levelled against him and proven the misconduct.

24. For all the foregoing reasons, we find no merit in the writ

petition which is hereby dismissed.

25. At this stage, learned counsel for the petitioner submits

that there would be certain financial dues of the petitioner

which are lying unpaid with the respondents. In case, there is

any amount which is legally admissible to the petitioner for the

service which he has rendered or as a consequence thereof, we

direct that the same shall be computed and paid to the

petitioner within a period of eight weeks from today. The

respondents shall also inform the petitioner with regard to the

computation of the dues, if any, to which he is entitled within

the same period. In case, the petitioner is found disentitled to

any amount, the respondents shall also send intimation in this

regard to the petitioner during the same period.

GITA MITTAL, J

J.R. MIDHA, J NOVEMBER 09, 2010 HL