G.D.Wazir vs Uoi & Ors.
2011 Latest Caselaw 1906 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: March 28, 2011
                    Judgment Delivered on: April 01, 2011

+                         WP(C) 4154/1995

        G.D.WAZIR                                 ..... Petitioner
                    Through:     Mr.Pankaj Vivek, Advocate.

                                 versus

        UOI & ORS.                                 .....Respondents
                  Through:       None.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.

1. The petitioner was enlisted in the Indo-Tibet Border Police Force (ITBPF) as a constable on 25.11.1983. He earned a promotion to the post of L/Naik in the year 1991 and to the post of Naik in the year 1993. On 7.2.1993 he was deputed to the 11th Bn. ITBP and was attached to the „B‟ coy. On 27.2.1993 he received an office order suspending him from duty w.e.f. 27.2.1993 and informing him about an inquiry being contemplated against him.

2. On 18.03.1993 the petitioner was served with a Memorandum of Charge wherein 4 articles of charge levied upon the petitioner were listed as under:

"Statement of Articles of charges framed against No.837040429 NK/GD Wazir of „B‟ Coy 11th Bn. ITB Police Ludhiana (PB)

ARTICLE - I

That the said No.837040429 NK/GD Wazir (Under Suspension) „B‟ Coy 11th Bn, while holding the post of NK/GD left the Unit lines at 2300 hours on 27.1.93, in a state of intoxication willfully and without sufficient cause. Thus committed an offence of misconduct, in the capacity as a member of the Force, punishable under section 11(1) of the CRPF Act, 1949.

ARTICLE - II

That during the aforesaid period and while posted as NK/GD in 11th Bn, the said NK/GD Wazir, in a state of intoxication, committed criminal trespass by enterin into a house (hut) of labour of CPWD contractor, who was residing in the campus for construction of ITBP works on 27.1.93 at 2300 hours. Thus committed an offence of misconduct punishable under section 11(1) of CRPF Act 1949.

ARTICLE - III

That the said NK/GD Wazir, while holding the post of NK/GD in 11th Bn. ITB Police on 27.1.93 trespass the house of labour at 2300 hours, in their lines, he tried to molest lady wife of labour. Thus committed an offence of misconduct punishable under Section 11(1).

ARTICLE - IV

That the said NK/GD Wazir while holding post of NK/GD in 11th Bn. ITB Police, consumed liquor, left from Unit lines with the pretext of un-natural call subsequently appeared in labour huts in a state of intoxication, where he caused annoyance to labour and as well as to Unit personnel. Thus committed offence of misconduct in his capacity as a member of the Force."

3. Officers and jawans of ITBP were governed by the CRPF Act 1949 which was made applicable to the said Force. Thus the main charge levied upon the petitioner was that of

misconduct in his capacity as a member of the Force, punishable under Section 11(1) of the CRPF Act.

4. The petitioner filed a reply to the Memorandum and the charges stating that on 27.1.1993 he was attached to the 10 th Bn. and not the 11th and the question of his committing any misdemeanour while attached to the 11th Bn. on 27.1.1993 could not arise. He stated that it was an apparent attempt to falsely implicate him in the matter.

5. Realizing that the incident in question had actually taken place on 25.2.1993 and not 27.1.1993, the Disciplinary Authority amended the charge-sheet by correcting the date of the incident from 27.1.1993 to 25.2.1993 and issued a corrigendum dated 21.4.1993 informing the petitioner that the date 27.1.1993 be read as 25.2.1993. The petitioner was intimated to appear before the Inquiry Officer on the same day i.e. 21.4.1993.

6. There is a dispute as to what happened on 21.4.1993. Whereas the petitioner alleges that the Inquiry Officer did not allow him to participate at the inquiry, the respondents allege to the contrary and rely upon the proceedings recorded by the Inquiry Officer wherein it is recorded that the petitioner refused to participate in the inquiry and even refused to sign the proceeding-sheet.

7. There is further dispute between the parties as to what happened on the various dates thereafter. As per the petitioner no proceedings were conducted before him on 22.4.1993, 23.4.1993, 24.4.1993, 29.4.1993, 1.5.1993 and 14.5.1993; the respondents assert to the contrary by pleading that the petitioner stubbornly and obstinately refused to participate at the inquiry and sign the order-sheet.

8. Record of the inquiry shows that of the 3 witnesses, 2 were examined on 1.5.1993 and the 3rd was examined on 14.5.1993.

9. Randhir Singh witness No.1, deposed that he was on patrolling duty on 25.2.1993 along with GD Ramesh Kumar and that at about 11:00 PM when they reached near Barrack No.120, he heard a noise which was coming from near the huts (jhuggis) of the labourers. On reaching the spot he saw one lady labourer along with 3 other labourers quarrelling with the petitioner who was in a drunken condition. That he along with Ramesh Kumar took the petitioner away from the spot and left him in the courtyard of D coy. That he had heard the labourers say as to why the petitioner had come near their huts at such late hour and that the petitioner was misbehaving with them.

10. On being questioned by the Inquiry Officer he stated that he had not reported the matter to a senior officer; that the petitioner was drunk but was able to walk and that he had heard the lady labourer say as to why had the petitioner entered the hutment area.

11. Ramesh Kumar witness No.2 corroborated witness No.1 to the extent that he too deposed that while on patrolling duty on 25.2.1993 he along with witness No.1 heard a noise coming from the huts of the labourers and that on reaching the spot he saw a lady labourer along with 3 labourers standing with the petitioner. That he and witness No.1 caught the petitioner and took him to the lines after which they left for their duties.

12. On being questioned by the inquiry officer he stated that the petitioner was drunk and had to be held by them and brought to the lines as he was staggering.

13. Dhani Ram witness No.3 deposed that he had seen the petitioner drink before dinner and that at about 9:30 pm he had gone off to sleep. That at about 12:00 midnight he had heard a child cry behind the barracks. He further deposed that on 26.2.93 a check roll call was conducted wherein a bed sheet was shown to the jawans and an enquiry was made in regards to its‟ owner. Later that day he came to know that MM had called petitioner for interrogation. That he was asked to submit a written statement which he did and that the petitioner acknowledged his mistake in a written application.

14. On being questioned by the Inquiry Officer he stated that he had gone off to sleep before the petitioner slept and that before going to sleep he had seen the petitioner gossiping with other jawans. He further stated that since meat was cooked for dinner that day the petitioner had taken liquor and that he had not reported against the petitioner to a senior officer as the petitioner had not consumed excessive alcohol. He clarified that the lavatory where the jawans went to ease themselves was near the barracks.

15. On 17.08.1993 the Inquiry Officer submitted his report to the Commandant wherein he held/found the charges proved against the petitioner on the basis of the depositions of witnesses examined and in view of an apology letter dated 27.2.93 given to the commandant by the petitioner. The said letter, in verbatim, is reproduced below:

"To The Commandant 11th Bn ITB Police, ......... Camp Ludhiana, (Pb)

(Through proper channel)

Subject : Application requesting forgiveness.

Sir,

With due respect it is requested that the applicant, No.837040929 NK/GD Wazir, that on 25.2.93 at 11 PM was going towards the toilet when he saw a civilian woman standing outside her „jhuggi‟ with her child. She called the applicant who went to her. As her husband got up (from sleep) she beat the child make him weep and begin to shout loudly that her child was being kidnapped.

The applicant requests that he had made a mistake by going to the woman at her call and asks forgiveness. He further says that he will not commit such a mistake in future.

Therefore, Sir, it is requested that applicant‟s mistake may be excused for which he will be very thankful.

Yours faithfully, 27.2.93

Sd/-

NK Wazir B Coy 11th Bn. ITBPF"

16. Under cover of letter dated 27.5.1993 copy of the inquiry report was furnished to the petitioner requiring him to submit his response within 15 days, if he desired one. On 31.5.1993 the petitioner requested that since the inquiry report furnished to him was in English, its translation in Hindi be provided to him. On 3.6.1993 a translated copy of the inquiry report was submitted and no response being received till 16.6.1993 the Commandant imposed the penalty of removal from service.

17. We may note, as would be evident from hereinafter, an issue has been raised by the petitioner that 15 days‟ time granted to him under cover of letter dated 27.5.1993 had to

reckon with effect from 3.6.1993 inasmuch as on said date a translated copy of the inquiry report was furnished to him and thus for all intentional purposes 3.6.1993 became the date when he would be deemed to have received a copy of the inquiry report.

18. The petitioner claims to have filed an appeal against the penalty order dated 16.6.1993 and as per averments made in the writ petition, states that the appeal was rejected vide order dated 24.3.1995. As per the respondents the petitioner never filed any appeal against the order dated 16.6.1993. According to the respondents the petitioner had filed an application dated 24.8.1994 praying that he be reinstated in service and the said application was disposed of vide order dated 24.3.1995, which reads as under:-

"1-29020/3/95 Chief Directorate, ITB Police (MHA) Government of India, Block-2, CGO Complex, Lodhi Road, New Delhi-110003

Dt.24.03.1995

Memorandum

With regard to your application dated 24.08.1994 regarding your termination dated 17.06.1993 from the 11th Battalion and regarding your reinstatement in service, you are hereby informed that a detailed enquiry was made in this connection by the Chief Directorate and it was found that the decision of the Commandant 11 th Battalion, terminating your services, was correct and according to rules because all the charges framed against you in the departmental enquiry have been proved to be correct, and you have yourself admitted the said charges in writing in the departmental enquiry. Therefore no further action is required in this regard.

(K.B.L.Dubey) Additional Deputy Director,

(Establishment) To Ex.Nayak Wazir, Village & P.O. Kabulpura, Teh. & Distt. Rohtak, HARYANA."

19. We note that in the rejoinder filed, the petitioner has taken a somewhat summersault by stating that the appeal was filed on 12.7.1993 which was rejected vide order dated 22.7.1993, an order which we note has not even been challenged. Since aforesaid changed stand was taken by the petitioner in the rejoinder affidavit, the respondents produced the memorandum/letter dated 22.7.1993, which reads as under:-

"No.I-48022/Estt./II/Dis.Misc.(7)93-1552 Office of the D.I.G (Pb.), Indo-Tibetan Border Police, MHA/Govt. of India

P.O.-Airport, Chandigarh-3 Dtd.-22-7-93

MEMORANDUM

Please refer to your application dtd. 12-7-93 regarding reinstatement in the Govt.service again.

In this context is it stated that action taken by 11 th Bn. on your suspension case was scrutinized and it was found that your are guilty.

Therefore, the said memo is issued to your information.

Sd/-

Comdt. Staff (Pb.) ITB Police"

20. It is apparent that the stand of the respondent is correct. The memorandum dated 22.7.1993, as per its language, is clearly indicative of the fact that it refers to an application for reinstatement and not an appeal filed.

21. Petitioner claims to have filed a revision on 10.4.1995 against the order dated 24.3.1995, which we note is an order rejecting the request of the petitioner to be reinstated and is not the order in appeal. Be that as it may, as per respondents no such revision was filed and we note that the petitioner has given no proof of having filed any revision petition on 10.4.1995. We may note that the petitioner has annexed a stated revision filed on 10.4.1995, but has furnished no proof that it was ever filed.

22. We proceed now to deal with the submissions urged and shall be noting each followed by dealing with the same and not the conventional method of first noting the submissions urged followed by our discussion thereon.

23. The first submission urged was that Article I and Article IV of the charges stood contradicted by Article II. It was highlighted that the gravamen of Article I and Article IV of the charge was of having left the Unit lines without sufficient cause. With reference to Article II of the charge it was highlighted that it was stated therein that the petitioner had entered into a hut of a labour contractor who was residing within the campus for construction of ITBP works.

24. It may be highlighted that this plea has not been raised in the pleadings and thus there is no response in writing by the respondents thereto. But we would be failing not to note that dealing with cases relating to Central Para Military Forces, this Court has been explained the concept of Unit line in other

matters. On a parcel of land allotted to a Central Para Military Force various Unit lines may exist. A Unit line consists of the Unit mess, barracks for jawans to reside, offices of the Unit officers, quarter guards and residential block of officers. In other words it is possible for a person to leave a Unit line without a sufficient cause and enter upon an adjoining area which would be that of a different Unit i.e. would be a different Unit line. Thus a campus would consist of various blocks and movement from one to the other may be restricted or in the alternative may require a justification to move from one block to the other.

25. Since the petitioner has not laid a foundation in the pleadings and the issue raised is one of fact and conduct, it would be impermissible for the petitioner to score a point thereon.

26. We may only highlight that the core of Article I and Article IV of the charge is to leave his Unit line at an unearthly hour i.e. 23:00 hours on 25.2.1993. It is not only fairly cold but pitch dark at said time in the month of February. Further, it is not a case of simple leaving of a line, but leaving the line in a state of intoxication and entering the area of labour huts.

27. The second argument was that by alleging the incident to be of 27.1.1993 and when petitioner informed that he was not even attached to the battalion concerned on said date, the respondents very merrily shifted the date of the incident to 25.2.1993. Therefrom it was sought to be urged that it is a frame up.

28. Now, who does not commit typing mistakes and hence 27.1.1993 being a mistake cannot be ruled out. In any case, as is evident from the facts noted hereinabove, the record

shows the obstinacy of the petitioner who stubbornly and obstinately refused to participate in the inquiry and if it would be held that the stand of the petitioner, that he was not associated with the inquiry is incorrect, it would stand out that the petitioner himself by not participating in the inquiry has chosen not to cross-examine any witness of the prosecution to clarify upon how the date 27.1.1993 got typed in the charge sheet. Thus, this issue gets dovetailed to the third issue raised of denial of a fair hearing.

29. It was urged by learned counsel for the petitioner that he was just made to hang around and the Inquiry Officer did not permit him to participate at the inquiry. We have noted hereinabove in para 7, the various dates on which the Inquiry Officer required petitioner to participate in the inquiry proceedings. We have noted that the record shows that the petitioner refused to sign the proceeding sheets or cross- examine any witness. It needs to be highlighted that the first date on which proceedings were conducted was 22.4.1993 and the last date was 14.5.1993. In this context it becomes relevant to note that on 26.4.1993 a written notice was served upon the petitioner which reads as under:-

"NOTICE Kindly peruse Ist notice number 1687 dated 23.04.1993 in which you were asked to appear on 24.04.1993 for the preliminary hearing. You appeared in the office but you did not co-operate with the enquiry officer during the aforesaid hearing and also did not reply to any question because of which the Subedar Major was called in the office on 24.04.1993 to look into your conduct. In his presence you left the office stating that you would take the decision from the civil court.

You are given one more opportunity to appear on 29.04.1993 at ten for regular hearing in the office of the departmental enquiry officer, otherwise you will be proceeded ex-parte. As per the letter No.1710-11 dated 24.04.1993 of the commandant XIth Battalion, the departmental enquiry has to be concluded by 27.04.1993.

You are intentionally delaying the departmental enquiry and are not co-operating with the enquiry officer. Kindly peruse your application dated 03.04.1993 in which you have mentioned above the date being false, regarding which the amendment has already been notified vide memorandum No.45, dated 21.04.1993. According to the same you are advised to proceed."

30. It is apparent that the petitioner has denied to himself the opportunity to participate in the inquiry. He has obstructed the inquiry. He has deliberately chosen to sit/stand by. The notice dated 26.4.1993 conclusively establishes that the petitioner, in spite of being granted full opportunity to participate at the inquiry, deliberately chose to stand by. That apart, the conduct of the petitioner of not having written a single letter to a superior officer that the Inquiry Officer was not permitting him an opportunity to participate at the inquiry also establishes the contrived design of the petitioner to try and create a ruse to question the fairness of the inquiry. The petitioner has set a trap in which he has got entrapped himself and thus cannot complain on the issue.

31. It was then urged that as per Rule 27(c)(2)(i) of the CRPF Rules 1965 the evidence at an inquiry could be either oral or documentary and if oral, it had to be direct. Counsel urged

that the indictment against the petitioner is on the testimony of the witness No.1 and witness No.2 who merely stated that they heard noise from near the labour huts and on reaching, heard the labourers say why had the petitioner come near their huts at such late hour and why was the petitioner misbehaving with them; witness No.2 stated that he saw a lady labourer along with 3 other labourers standing with the petitioner. Counsel urged that by not examining the labourers, what actually transpired was not brought out.

32. As noted by us hereinabove witness No.1, while deposing did not state the complete truth, which emerged when the Inquiry Officer asked questions by way of clarification and it emerges from said answers given that not only was the petitioner drunk but had entered the precincts of the labour huts and he heard a lady labourer question why had the petitioner entered the hutment area. Witness No.2 also did not state the complete truth and on being questioned by the Inquiry Officer brought out that the petitioner was staggering. Witness No.3 has stated that he had seen the petitioner drink alcohol. A co-joint reading of the testimony of 3 witnesses brings out that the petitioner had a sinister motive to enter the hutment area; the contemporaneous utterances of a lady labourer would bring out that the intention of the petitioner was to satisfy his lust vis-à-vis a female labourer. These utterances heard by the witnesses are percipient evidence and would be admissible under Section 6 of the Evidence Act. In the decision reported as AIR 1977 SC 1512 State of Haryana Vs. Rattan Singh, it was held that: „in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All Materials which are logically

probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it had reasonable nexus and credibility.‟ Such kind of evidence was held to be akin to direct evidence and admissible in evidence at a domestic inquiry.

33. It was then urged that the evidence led simply reveals petitioner having entered the hutment area of a labour and not a hut.

34. What turns thereon? Quibbling with words in our opinion. The testimony of witness No.1 and witness No.2 brings out that the petitioner entered the hutment area and tried to act fresh with a woman labourer. What difference would it make if the petitioner entered the hut or a hutment area? None at all. It was nearing midnight and any female could have fallen prey to the lust of the petitioner. The testimony of witness No.3 brings out that the toilet block for the jawans was near the barracks and thus the petitioner claiming to have strayed across to answer the call of nature is obviously a false justification for his being found in the labour hutment area.

35. We now bring in our discussion, the justification as per the letter dated 27.2.1993 written by the petitioner giving his version of the incident. The contents of the letter have been reproduced by us hereinabove in para 15 above. The petitioner admits going to the hutment area of the labour at around 11:00 PM on 25.2.1993 and claims that he went there because a woman carrying a child called him.

36. Why would the woman call the petitioner? We find no answer. As per the petitioner when he reached the hutment area, the husband of the woman got up and she started beating the child and started saying that the child was being

kidnapped. We find the version utterly gibberish. It is a flight of imagination of the petitioner which has made him fantasize a make belief story which on the face of it is preposterous. It raises more questions than it answers.

37. In any case, the petitioner has chosen not to co-operate at the inquiry and not to cross-examine the witnesses of the prosecution. Thus, we have no option but to accept their version.

38. The last but one submission that the charge of being intoxicated, in the absence of any medical examination of the petitioner having got conducted, is without any evidence is rejected for the reason this is not a criminal trial. It is a departmental inquiry. The testimony of witness No.3 establishes that the petitioner was seen drinking at 9:30 PM. The testimony of witness No.2 establishes that the petitioner was staggering. It is not the case of the petitioner that he was injured or was tizzy due to a particular reason. In a drunken condition a person staggers. Within the parameters of quality of evidence required to sustain an inference of fact at a domestic inquiry, the evidence on record justifies the inference drawn by the Inquiry Officer.

39. The last submission urged was that the Disciplinary Authority levied the penalty vide order dated 16.6.1993 without awaiting the 15 days‟ time given to the petitioner to furnish a response to the inquiry report. The basis for the plea was that the inquiry report was furnished to the petitioner on 21.5.1993 and being in English the petitioner wanted a translated copy thereof. In the memo under cover of which the Inquiry Report was furnished required petitioner to submit response within 15 days. Petitioner asked for a translated

copy and the same was supplied on 3.6.1993 and that 15 days‟ time had to commence from said date, which would be over on 18.6.1993. Thus, petitioner asserts that he was denied an opportunity to reply to the report of the Inquiry Officer.

40. Relevant would it be to note that the petitioner has simply stated the facts of the inquiry report being submitted to him and he having asked for a translated copy thereof and the same being supplied to him on 3.6.1993 and the Disciplinary Authority passing the order on 16.6.1993, without further pleading that a right of the petitioner has been denied to him. Had the petitioner pleaded inferences from the facts stated by him, we would have had the benefit of a counter response from the respondents.

41. From the facts which we have noted in the first 10 paragraphs of our decision it is apparent that the Rules of writ pleading requiring the pleadings to be of fact, law and evidence has been violated by the petitioner and for which we blame his counsel.

42. It is trite that unless it is shown that a procedural violation or even a substantive violation of a service rule has caused prejudice, it would not be sufficient to hold against the department. In the instant case, the petitioner was granted 15 days‟ time to file a response to the inquiry report vide memorandum dated 21.5.1993. While giving him a translated copy of the inquiry report time was not extended and thus petitioner cannot draw much advantage of the Disciplinary Authority passing the order on 16.6.1993. That apart, as we have noted from the facts hereinabove the petitioner never filed any appeal nor did he file any revision petition. What he

claims as an appeal and a revision petition are actually applications seeking reinstatement and not questioning the penalty order. The petitioner could have availed the right to question the report of the Inquiry Officer before the Appellate Authority and/or the Revisional Authority. He did not do so. We have noted hereinabove in paras 18 and 19 the summersault taken by the petitioner on the issue of what he claims to be his appellate and the revisional remedy and in view of the vacillating stand taken by the petitioner it is apparent that he neither filed an appeal nor a revision.

43. We find no merit in the writ petition which is dismissed.

44. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE April 01, 2011 dk/mm