Sukhdev Singh vs Uoi & Ors.
2010 Latest Caselaw 4513 Del

      *IN THE HIGH COURT OF DELHI AT NEW DELHI


                 +     W.P.(C)No. 7624/2009


                         % Date of Decision : 24th September, 2010


     SUKHDEV SINGH                         ..... Petitioner
                  Through Mr. H.S. Kathuria, Adv.
                        versus
     UOI & ORS.                                 ..... Respondents
                  Through Mr. Sachin Datta and Mr. Manikya
                  Khanna, Advs. for R-1
     CORAM :-
     HON'BLE MS. JUSTICE GITA MITTAL
     HON'BLE MR. JUSTICE J.R. MIDHA

       1.     Whether Reporters of Local papers may
              be allowed to see the Judgment?      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. (Oral)

1. This writ petition has been filed assailing the orders dated

28th June, 2006 of the disciplinary authority; the order dated 12th

September, 2006 of the appellate authority and the order dated

19th December, 2006 of the revisional authority.

2. It appears that disciplinary proceedings were conducted

against the petitioner based on the following charges :-

" Charge-01 That Force No. 901310208 Constable Sukhdev Singh, CISF Unit, GAIL Pata on dated 12.02.2006 at about 2115 hours in the Family Residential

W.P.(C) No.7624/2009 page 1 of 7 Complex of the Unit GAIL at H.No. 622 fought with his wife and abused filthy language loudly. On hearing the loud voice of his wife, the neighbourer constable Ombir Singh and the constable at that time present At the house of constable Ombir Singh i,e. Constable Sanjeev Kumar went to the house of constable Sukhdev Singh and they tried to make understand constable Sukhdev Singh, but constable Sukhdev Singh also misbehave with them and abused them in loud oice. Being a member of disciplined armed force, the aforesaid act done by the constable Sukhdev Singh Shows his indiscipline,mis-behave and misconduct.

Charge-02

"That the force No.901310208 constable Sukhdev Singh, CISF Unit, Gail Pata dated 12.02.2006 at about 2120 hours armed with knife went to the house of force No.854360345 constable Ombir Singh at the family residential complex and pushed the doors of his house with force, create nuisance and called him to come out by abusing filthy language in the name of his mother (Madarchod) etc. Being a member of disciplined armed force, the force member went to the house of his colleague force member armed with knife and pushed the door of his house and openly abused filthy language, which shows the indiscipline, misconduct, irresponsible and indiscipline towards his duty rather it shows his criminal mentality.

Charge-03

" That the force No. 9013110208 constable Sukhdev Singh, CISF Unit, AIL Pata on 12.02.2006 from 2115 hours to 2145 hours created nuisance and abused filthy language in the family residential complex of the unit and due this reason, the family members residing in the family residential complex of unit faced difficulties in taking rest, he broke the peace of colony and polluted the environment of the family residential complex. Being a member of disciplined armed force, the aforesaid act done by the constable Sukhdev Singh shows his indiscipline, mis-behave and misconduct.

Charge-04

" That the force No.901310208 constable Sukhdev

W.P.(C) No.7624/2009 page 2 of 7 Singh, Unit, CISF Unit, GAIL Pata, as per the detail of service record, during his very small service period he has been punished twice with major punishment for abusing his colleagues and senior force members as well as misbehave and due to absent from the duty he has been punished twice with minor punishment. Therefore, the aforesaid member has been provided opportunity to amend his behaviour, but despite of this he did not amend in his nature, behave and discipline, which shows his great irresponsibility.

3. The petitioner contested the proceedings and has alleged that

the incident on 12th February, 2006 was completely misinterpreted

by the respondents in initiating the disciplinary proceedings. The

petitioner, on 12th February, 2006 contends that there was a

private quarrel between the petitioner and his wife within the

precincts of family quarter without any disturbance to any other

person. In breach of privacy of the couple, Ct. Ombir Singh and Ct.

Sanjeev Kumar, two of colleagues of the petitioner, entered the

petitioner's quarter, without any provocation and authority Ct.

Ombir Singh slapped the petitioner. Provoked by this action and

the violence against him after the unwarranted intrusion, the

petitioner was angered and followed Ct. Ombir Singh to his quarter

with a knife from his kitchen. Before he could reach the quarter,

another person came and dissuaded the petitioner not to pursue

the matter. In this background, the petitioner had thrown the knife

on the ground.

4. The petitioner has further submitted that in this incident Ct.

W.P.(C) No.7624/2009 page 3 of 7 Ombir Singh had also come out armed with a lathi to attack the

petitioner but was not allowed to do so. The petitioner submits that

he had placed all these facts before the authorities in answer to the

notice to show cause which was issued to him. It is contended that

instead of the proceeding against the petitioner, the respondents

ought to have proceeded against the two constables who had

intruded into the petitioner's private quarter without any reason

and beaten him up.

5. Mr. H.S. Kathuria, learned counsel for the petitioner has

drawn our attention to the proceedings recorded by the inquiry

officer. It is submitted that the only material witness to the

incident was the petitioner's wife who was not permitted to be

examined on the pretext that she was not a serving personnel.

Certainly, there could have been no other witness of the alleged

incident of violence by the petitioner. It is well settled that in

matrimonial affairs, it is only the parties who are within the four

walls of the house who would be the only effective and material

witnesses to the incident. Mr. Kathuria contends that the

petitioner's request to examine his wife was denied on the ground

that she was not a serving personnel of the force. The submission

is that this denial has resulted in grave injustice to the petitioner

having regard to the nature of allegations against the petitioner.

6. Learned counsel for the petitioner has also drawn our

attention to the statements recorded by the inquiry officer of the

W.P.(C) No.7624/2009 page 4 of 7 prosecution witnesses. It is submitted that there is no evidence

that there was any disturbance of any kind on 12 th February, 2006

relating to any incident from the petitioner's quarter.

7. We also find that there is not a wit of an explanation for the

intrusion into the petitioner's quarter and invasion of his privacy.

Even assuming there was a quarrel between the petitioner and his

wife, it was obviously in the realm of a private personal dispute to

which no other outsider could certainly claim entitlement to

intervene, the impugned orders placed before us do not consider

this aspect of the matter. No explanation has also been rendered

as to why the petitioner's wife was not examined. This in our view

an important omission inasmuch as, in view of the nature of

allegations against the petitioner to the effect that on 12 th

February, 2006 he had fought with his wife and was abusing her

loudly in filthy language. The entire intrusion into the petitioner's

quarter by Ct. Ombir Singh and Sanjeev Kumar is premised on this

allegation. Her testimony is extremely material so far as the

finding of culpability of the petitioner in respect of the charges is

concerned. If this allegation were untrue, the reaction of the

petitioner in retaliation to the provocation by such intrusion cannot

be faulted.

8. Inasmuch as there is no credible evidence of the incident as

has been made the basis of the charge against the petitioner, we

find that the respondents were bound to have considered the

W.P.(C) No.7624/2009 page 5 of 7 matter from the perspective of the petitioner which was faced with

the unwarranted intrusion. This has not been done.

9. Looked at from any angle, there is substantial doubt in the

portrayal of the incident by Ct. Ombir Singh and Sanjeev Kumar.

Given the provocation meted out to the petitioner, certainly any

reasonable person would have reacted. The question then would

be as to whether the extent of his reaction to the intrusion was

reasonable or justified. The same is, however, not the subject

matter of the charge. We find that the order dated 28th June, 2006

of the disciplinary authority as well as that of the appellate

authority dated 12th September, 2006 and the revisional authority

dated 19th December, 2006 have failed to take into consideration

the petitioner's contention that he had been slapped by these

constables as well as the fact that they had unwarrantedly intruded

into the petitioner's personal family matter. The orders also do not

take into consideration the effect of the failure of the prosecution to

examine the petitioner's wife who was the most material witness.

In this view of the matter, we find that the orders have ignored

relevant material. Even assuming that the petitioner was to be

found guilty of the allegations which have been levelled against

him, in the given facts and circumstances noticed hereinabove,

certainly the punishment of removal from service which has been

imposed upon the petitioner in the order dated 28 th June, 2006 and

sustained by the appellate and revisional authorities is grossly

W.P.(C) No.7624/2009 page 6 of 7 disproportionate to the nature and gravity of the allegations with

which he was charged.

10. Taking into consideration the totality of the facts and

circumstances noted hereinabove, the orders dated 28 th June,

2006, 12th September, 2006 and 19th December, 2006 are not

sustainable and are hereby set aside and quashed. As a

consequence, the petitioner shall be reinstated into service subject

to the petitioner being otherwise fit. On a consideration of the

matter in totality, it is directed that the petitioner would not be

entitled to back wages for the period from 12 th February, 2006 till

his reinstatement. So far as the period of suspension, if any, is

concerned, the petitioner will also not be entitled to any arrears of

wages for the period. The necessary order in terms of the above

directions shall be passed within two months from today.

This writ petition is, accordingly, allowed in the above terms.

                                                      GITA MITTAL, J



                                                         J.R. MIDHA, J


                                           September 24, 2010(kr)




W.P.(C) No.7624/2009                                      page 7 of 7