Jaibir Singh, Ex.Hc/Gd ... vs Director General, Cisf
2011 Latest Caselaw 3898 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Order Reserved on: August 01, 2011
                       Order Pronounced on: August 11, 2011

+                      W.P.(C) 4300/1998

JAIBIR SINGH, EX.HC/GD NO.7008200-CISF ..... Petitioner
                Through: Mr.R.K.Saini,Mr.Sitab A.Chaudhary
                         & Mr.Vikas Saini, Advocates

                             versus

DIRECTOR GENERAL, CISF                  ..... Respondent
             Through: Mr.Jatan Singh & Mr.Ashish Kumar
                       Srivastava, Advocates for UOI with
                       Mr.Abdus Salam,
                       Asstt.Commandant/CISF


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR

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?

SUNIL GAUR, J.

1. Punishment of compulsory retirement awarded to the petitioner, an Assistant Sub Inspector (A.S.I.) of Central Industrial Security Force (CISF) for overstaying leave and being involved in a criminal case during leave period, is questioned in this writ petition.

2. Petitioner was a permanent employee of CISF and was on deputation with CBI when on the occasion of Raksha Bandhan, on 12.8.1995, he proceeded to his native village in

Distt. Ghaziabad, UP after taking permission from the competent authority concerned in CBI, and on that day, a scuffle is said to have taken place between two parties in petitioner's native village and amongst other persons the petitioner was arrested by the local police upon registration of an FIR for offences punishable under Section 323/326/336 IPC read with Section 149 IPC. The petitioner remained in judicial custody and was released from jail on 29.8.1995.

3. Repatriated by CBI to CISF, a charge sheet was served upon the petitioner on 20.6.1997 listing 2 charges as under:-

Article-I

"Prejudicial to good orders and discipline in that CISF NO.7008200 HC/GD Jaibir Singh of CISF I Reserve Battalion, Barwaha overstayed from permission leave (10.8.95) w.e.f. 11.8.95 to 10.9.95 without any leave or permission of the Competent Authority. This amounts to indiscipline, dereliction of duty on the part of No.7008200 HC/GD Jaibir Singh." Hence, the charge.

Article. II

"Prejudicial to good orders and discipline in that CISF No.7008200 HC/GD Jaibir Singh of CISF I Reserve Battalion, Barwaha during permission leave on 10.8.95 created nuisance in the public. Subsequently, he was arrested by UP Police and remained in judicial custody from 11.8.95 to 29.8.95. This amount to gross misconduct and unbecoming of a good member of an Armed Force." Hence, the charge.

4. It may be noted that at the trial before the criminal court, the petitioner was acquitted.

5. Petitioner submitted a written representation to the Memorandum of Charge which was found to be unsatisfactory

and thus an Inquiry Officer was appointed to record evidence and submit a report. Upon pleading not guilty to the aforesaid two charges, evidence was led by the department.

6. Record of evidence reveals that out of the deposition of 8 witnesses, the crucial evidence is of PW-3 - Shri R.P.Singh, DSP, HQrs CBI, Spl. Unit, who had deposed that on 10.8.1995 the petitioner was permitted to proceed to his native place on the occasion of Raksha Bandhan and on 11.8.1995 he received an information that the petitioner was arrested by local police in a case of scuffle between 2 parties in his native place whereupon he directed HC Ish Kumar and Attar Singh to visit the native place of the petitioner to ascertain the facts. Both the head constables informed him that the petitioner was arrested by Pilkuwa Police and he was under judicial custody and was reportedly released on bail w.e.f. 29.8.1995. The petitioner explained verbally that he was falsely implicated in the case of local police and PW-3 justified that the petitioner has no role in the case of property dispute. He also deposed that the petitioner was in judicial custody for more than 48 hours and deemed to have been placed under suspension from the date of arrest and the petitioner was not taken on duty.

7. PW-5 - Shri N.N.Singh, DSP, CBI SCB-1, Block 4, CGO Complex, New Delhi corroborated the deposition of PW-3 - Shri R.P. Singh.

8. Shri Yogesh Kumar (PW-6), UDC, CBI, SU,10/6 Jam Nagar House New Delhi had deposed that the petitioner attended office of CBI SU on 30.8.1995 and explained that he was under judicial custody on account of criminal case and

intimated the same to higher authorities. During that time PW-6 was functioning as UDC in CBI. He also deposed that there was no letter/documentary proof regarding information of the petitioner's arrest and subsequent judicial custody.

9. Rest of the evidence is not being adverted to, being of formal nature.

10. On the strength of the aforesaid evidence, the Inquiry Officer had concluded that both the charges do not stand proved against the petitioner. However Disciplinary Authority disagreed with the Inquiry Officer while giving the following reasons:-

i) The charged official was not acquitted honourably and completely exonerated under Sections 147, 148, 149, 307, 452, 323 & 336 of IPC. But, the PWs had gone hostile and there was lack of evidences.

ii) No documentary evidence has been brought out by the Enquiry Officer substantiating presence of charged official in the office of his employer i.e., CBI, Spl. Unit 10/6 Jam Nagar House, Akbar Road, New Delhi from 30.8.1995 to 10.9.1995.

iii) No documentary evidence has been produced by the charged official as well as Enquiry Officer regarding charged official's presence in his employer's office from 30.8.1995 to 10.9.1995.

iv) The charged official did not report to his employer/parent department regarding his arrest and judicial custody and subsequent release on bail from 11.8.1995 to 10.9.1995, which is substantiated vide SP/CBI, SU New Delhi

letter No.PF/J-2/89/SU/5906 dated 13.9.1995.

v) The contention of the then employer i.e., CBI/SU, New Delhi that they did not know regarding charged official's arrest and judicial custody, is not expedient as the Enquiry Officer has brought out in his findings that CBI officials visited charged official's native place and enquired about the case."

11. On 16.10.1997 Inquiry Report with aforesaid 5 points of disagreement was forwarded to the petitioner to enable him to make a representation against it and the petitioner had responded to it. However, Disciplinary Authority had passed final order on 15.11.1997 imposing the penalty of compulsory retirement from service upon the petitioner. An appeal was preferred by the petitioner against the final order which was dismissed by the Appellate Authority vide order of 13.5.1998.

12. At the outset, we find that scope for interference with the impugned order is limited to finding out as to whether there is any perversity in the reasoning adopted by the Disciplinary Authority while discarding the Inquiry Report. A finding is said to be perverse when it based on no evidence or inadmissible evidence or is such that no prudent person would have ever come to the said conclusion.

13. So far as the first charge is concerned, we find that the Disciplinary Authority has disagreed with the Inquiry Officer because of lack of documentary evidence regarding petitioner being on duty from 30.8.1995 up to 10.9.1995. Disciplinary Authority has proceeded on the assumption that the documentary evidence about the presence of the petitioner in

the office was to be led by the petitioner. On this aspect, learned counsel for the petitioner has drawn our attention to the deposition of PW-3 Sh.R.P.Singh, Deputy S.P. (Head Quarters), CBI, which is as under:-

Q.No.1 Whether Head Constable Jaibir Singh was absent from his duty from 30.8.95 to 10.9.95?

Ans.: As already explained he had been attending office during the said period but, was not formally taken on duty as he was deemed to be under suspension.

14. Faced with the aforesaid evidence, learned counsel for the respondent could not justify the findings of the Disciplinary Authority of petitioner failing to lead evidence regarding his being present on duty during the aforesaid period. After having perused the evidence on record, we find that the finding of the Inquiry Officer regarding first charge being not proved is well justified in view of the evidence of PW-3 Sh.R.P.Singh, Deputy S.P. (Head Quarters), CBI and the view taken by the Disciplinary Authority is clearly erroneous. The blame for not recording the presence of the petitioner for the aforesaid period cannot be legitimately put upon the petitioner and if at all there is any lapse, it is on the part of employer of the petitioner, for which the petitioner cannot be blamed.

15. The employer- CBI Head Quarters was not intimated by the U.P. police regarding petitioner being in custody and about his subsequent release on bail. How can the petitioner be held responsible for it, especially when, petitioner upon his

arrest had immediately informed the DIG, CBI on phone through his son. Having accepted this factual position, the Disciplinary Authority had unreasonably held against the petitioner that information about petitioner's arrest was not officially conveyed by the local police to petitioner's employer. We find it manifestly unjust on the part of the Disciplinary Authority to have drawn adverse inference on this account and to have gone to the extent of upsetting Inquiry Officer's report exonerating the petitioner, which is well reasoned one and is based upon the evidence on record.

16. We find it quite surprising that the Disciplinary Authority has sat over the judgment of the criminal court to arrive at a specious conclusion that the petitioner has not been exonerated honourably and the acquittal of the petitioner was due to lack of evidence. In fact, we find that the criminal court in its order of 9.12.1996 has given a clean acquittal to the petitioner and not by extending benefit of doubt. The aforesaid order of the criminal court has been misread by the Disciplinary Authority as it was not a case of no evidence. In fact the evidence was led which was found by the criminal court not to be incriminating the petitioner.

17. In fact, initiation of disciplinary proceedings against the petitioner on the second charge after having perused the judgment of acquittal of the criminal court, was an exercise in futility by the Disciplinary Authority. It is being so said because the Disciplinary Authority could not have independently enquired into the conduct of the petitioner of creating nuisance in public in his native village while on leave on 10.8.1995 and simply because the petitioner was arrested

in a criminal case pertaining to the incident of 10.8.1995 and had remained in custody, it could not be possibly said that this by itself amounted to misconduct. After permitting the local police to try the petitioner for the aforesaid offence without success, now the Disciplinary Authority cannot legitimately turn around and say that the said incident per se though not proved, reflects upon the conduct of the petitioner. There was no material available with the Inquiry Officer or the Disciplinary Authority to have so independently concluded.

18. In this view of the matter, we find that there was no justification whatsoever with the Disciplinary Authority to have disagreed with the well considered findings of the Inquiry Officer of the charges having been not proved. It is not the stand of the Disciplinary Authority or the Appellate Authority that the findings of the Inquiry Officer are contrary to the evidence on record. Rather we find that the evidence on record clearly exonerates the petitioner and the Inquiry Officer's report is well founded and has been unduly interfered with by the Disciplinary Authority without any valid justification. Consequently, we hold that the final order of 15.12.1997 Annexure P-1 imposing penalty of compulsory retirement as well as the Appellate order of 13.5.1998 upholding it, are patently perverse and are accordingly quashed.

19. Writ petition is disposed of quashing the penalty imposed upon the petitioner with a direction that the petitioner would be forthwith reinstated in service and qua the period post levy of penalty of compulsory retirement till

reinstatement we direct the competent authority to pass necessary orders in terms of F.R.54 and FR 54-A within 12 weeks from today and since we do not know on what date the petitioner would be superannuating and if the date is in the past, it is apparent that the reinstatement would be till said date.

20. No costs.

(SUNIL GAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE August 11, 2011 pkb