Sh.Devender Singh vs Union Of India & Ors
2011 Latest Caselaw 973 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (Civil) No. 5108 of 2010

%                           Date of Decision: 18.2.2011

Sh.Devender Singh                                           .... Petitioner
                Through            Mr.Randhir Jain with Ms.Ruchika Jain,
                                   Advocates.


                               Versus


Union of India & Ors                                       .... Respondents
                 Through           Ms.Sangeeta Bharti with Ms.Nidhi
                                   Minocha, Advocates for the respondent-
                                   UOI.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

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 in                 NO
       the Digest?


ANIL KUMAR, J.

*

1. The petitioner has challenged the order dated 10th November,

2009 of the Director General, Central Industrial Security Force

imposing the penalty of compulsory retirement on the petitioner.

2. The petitioner was posted and functioning as Deputy

Commandant, CISF Unit IISCO, Burnpur when during 2002, a

Seesham tree fell in his residential compound. He got the tree cut it into

small pieces through CISF personnel and got the logs made through the

saw mill at Kulti on 13th and 14th October, 2003 and finally transported

them to his native place on 18th October, 2003 instead of intimating the

authorities about felling of tree.

3. The act of the petitioner was perceived as misconduct and a

charge sheet dated 7th April, 2005 was issued to him, after conducting a

preliminary inquiry, stipulating that an enquiry is proposed to be held

against him under Rule 14 of CCS (CCA) Rules, 1965. The article of

charge categorically stipulated that he cut a Seesham tree, that had

fallen in his residential compound, cut it into small pieces through CISF

personnel and got the logs made thereof through saw mill, Kulti and

transported the logs to his native place on 18th October, 2003 and thus

he misused the manpower for his private work and dishonestly took the

Seesham logs to his native place for personal use and thereby caused

loss to the management and thus he failed to maintain absolute

integrity, devotion to duty and acted in a manner unbecoming of an

officer of his status and service in an armed force of the Union like

CISF.

4. It was also communicated to the petitioner that he brought the

cut logs from the saw mill to his residence on 13th and 14th October,

2003 in Jeep No.WMP-3130 and paid Rs.250/- to the owner of the saw

mill through HC/Dvr. V. Durgaprasad as cutting charges. On 17th

October, 2003 he got the logs wrapped with jute bags by CISF personnel

and on 18th October, 2003 when the petitioner proceeded on leave he

took these logs to Asansol Railway Station in truck No.WB-37-0146

driven by HC/Dvr.Bajrangi Singh and got them loaded in the Poorva

Express in which he was going to Delhi.

5. In the report dated 13th December, 2004 submitted by

Sh.I.R.Uppal, Deputy Inspector General, enquiry officer, the article of

charge framed against the petitioner was proposed to be sustained. The

report also categorically revealed that petitioner had taken the wooden

pieces with the help of Constable Raj-Nath Singh, Vikram Singh, Tilak

Raj, Constable Rajesh Kumar and HC/GD D.K.Dutta (CHM) which

personnel were shown in the CISF general shift duty on 18th October,

2003. Constable Rajesh Kumar who was on leave had also accompanied

the petitioner for carrying the Seesham wood. The statements of 14

persons were recorded and Sh.I.R.Uppal, DIG, CISF who had conducted

the preliminary enquiry considered the statements of all the 14

witnesses who were examined by him. After considering the statements

recorded in the preliminary enquiry the findings arrived at were that a

Seesham tree had fallen at the residence of the petitioner which had

been cut by CISF party as per the orders and instructions by the

petitioner and three logs were taken to sawmill, Kulti by Jeep No.WMP-

3130 on 12th October, 2003 and 13th October, 203. Petitioner had

visited saw mill, Kulti on 13th October, 2003 and the cut pieces of

woods were brought by jeep No.WMP-3130 which were unloaded at the

residence of the petitioner. The cut log pieces were then transported to

Railway station and were loaded into the Poorva Express and constable

Rajesh Kumar also proceeded on leave in the same train along with the

petitioner.

6. Pursuant to this, the charge sheet memorandum dated 7th April,

2005 along with the copy of the preliminary report dated 13th

December, 2004 and the list of witnesses on which the department

wanted to rely were served upon the petitioner. In reply, the petitioner

had sent communication dated 25th May, 2005 demanding the copy of

the original complaint of the owner of the impugned property, as well as

any report/checking by any competent authority during transportation

of household articles was also demanded. To the demand made by the

petitioner, to supply the required documents, a reply was sent on 8th

July, 2005 stipulating that the documents demanded by the petitioner

had already been supplied to him.

7. Aggrieved by the decision of the respondent to not supply any

further documents, a writ petition being W.P(C) No.2755/2006 was filed

by the petitioner which was disposed of by order dated 1st November,

2007 whereby direction was given to supply the copies of the

documents demanded by the petitioner and dispose of the enquiry

within eight weeks. The order dated 1st November, 2007 passed by this

Court is as under:-

" We have heard learned counsel for the parties. There are two prayers, one of which is for quashing the Enquiry proceedings altogether. It is contended that before an Enquiry Officer earlier appointed, several witnesses have been examined. Thereafter, it was allegedly realised that, that Enquiry Officer was junior to the Petitioner and hence the Respondents decided to put an end to the Enquiry. Thereafter, a second Enquiry Officer was appointed. The Management, on a perusal of his Report, came to the conclusion that the Enquiry Officer ought to have examined witnesses from the Saw Mill where the fallen tree had allegedly been cut into pieces allegedly at the instance of the Petitioner. Learned counsel for the Respondents states, on ipse dixit, that this was in order to ensure fair play against the Petitioner. We wonder what the finding of that Enquiry was. Possibly, it may have been in favour of the Petitioner. Be that as it may, a third Enquiry Officer has now been appointed.

It is brought to our notice that Shri I.R. Uppal has also been appointed as the third Enquiry Officer to which the Petitioner remonstrated as they were inimical towards each other.

We are of the view that the Petitioner is fully entitled to copies of the documents prayed for by him in Annexure P-7. Jurisprudence has travelled much beyond the earlier position where a person was considered entitled only to documents relied upon by the Management. Learned counsel for the Respondents states that the interim Orders may be recalled and that the documents shall be supplied immediately, and furthermore the Departmental Enquiry shall be expeditiously completed.

In view of the numerous Enquiry Officers appointed previously, we direct the Respondents to complete the pending Enquiry within eight weeks from today. Needless to say, the Petitioner shall co-operate in the said Enquiry. Interim Orders dated 27.2.2006 are recalled in the above terms.

Writ Petition stands disposed of. Pending applications also stand disposed of. Dasti to both the parties."

8. During the enquiry, the petitioner had sought production of

Sh.Vinay Singh, Sh.P.Bauri and Const Vikram Singh as defence

witnesses by his communication dated 23rd February, 2008, however,

later on the petitioner on his own had dropped these witnesses.

9. During the pendency of the departmental proceedings, the

petitioner had also filed a contempt petition in W.P(C) No.2756/2006,

however, contempt petition was dismissed. A further direction was given

to the enquiry officer to conduct the enquiry on a day to day basis and

the petitioner was directed to appear before the enquiry officer on 12th

February, 2008. On 12th February, 2008 a request was made by the

petitioner that since PWs were recorded in his absence he may be

allowed to cross examine said witnesses before submitting his

statement and he nominated Insp./Exe. R.S.Sanger as defense

assistant. All the PWs thereafter appeared before the enquiry officer

and they were cross examined by the petitioner. The petitioner also

sought summoning of Sh.N.M.Gon, DGM (Power) Kulti, ISP (B) and

Sh.S.D.Tonk, Retd.AGM (Town) as Court witness and Sh.Vijay Singh,

Sh.P.Bauri and Constable Vikram Singh as defence witnesses.

10. Some witnesses appeared on 3rd March, 2008 and were cross

examined by the petitioner through his defence assistant. Though

Sh.N.M.Gon, DGM (Power), Kulti, ISP (B) and Sh.S.D.Tank, Retd.AGM

(Town), Kulti, ISP (B) were summoned as Court witnesses, they did not

appear before the enquiry officer. However, the presenting officer and

the petitioner categorically agreed to drop them and not to issue further

summons to them.

11. On 3rd March, 2008 the petitioner had also given an application

to examine Sh.Vijay Singh, Sh.P.Bauri and Constable Vikram Singh to

as defense witnesses before recording his statement in defence. As the

said witnesses had not appeared before the enquiry officer, the

petitioner categorically and specifically agreed to drop these witnesses

and also stipulated that there was no need to issue further notices to

these defence witnesses. Consequently, on 26th March, 2008 the

statement of the petitioner was recorded.

12. The enquiry officer considered the statements of 10 witnesses

recorded before it and also considered the documents exhibited as well

as the defence statement of the petitioner and on the basis of a detailed

report after discussing the above noted statements and documents,

held that the petitioner did not inform the concerned authority of Kulti

about the falling down of Seesham tree at his residence; that the fatigue

party of CISF personnel had cut the fallen Seesham tree into pieces and

had stacked them at the residence of the DCs bungalow as had been

directed by the charged officer; that the petitioner's plea that he had

purchased 3-4 numbers of wooden logs from his friend/neighbour

Sh.Bipin/Vinay Singh by paying Rs.400/- for the purpose of packing

his household article was held to be an attempt by the petitioner to

mislead the enquiry proceedings by giving false information and thus he

had brought forth an imaginary and cooked story which was an

afterthought; that the wooden logs which were examined and assessed

by Sh.Ram Chander Yadav (PW-1) by IISCO Burnpur at the residence of

DC's Bungalow were of fallen Seesham tree; that the logs which were

sent to the saw mill for sawing into usable pieces were of the seesham

tree which had fallen at the residence of the petitioner; that the wooden

logs were packed by CISF personnel along with household articles of the

petitioner and were loaded on trucks for taking to Asansol Railway

Station as the petitioner had proceeded on leave along with the logs of

the fallen tree. The statement of the petitioner and the declaration made

by him that the management had transferred the logs on 24th

November, 2003 was found to be false. It was held that the petitioner

had misused the CISF manpower for his private purpose that is getting

the household goods packed and getting items loaded on trucks and

transporting them to Railway station and, therefore, concluded that the

charge framed against the petitioner has been fully proved beyond any

doubt and consequently awarded the punishment of compulsory

retirement in accordance with law by order dated 10th November, 2009

which is challenged by the petitioner on the ground that there is no

complaint made by IISCO and consequently no loss has been caused to

IISCO. According to the learned counsel, Mr.Jain no action could be

taken against the petitioner without the complaint from IISCO who was

the owner of the tree.

13. The learned counsel has also emphasized that the material had

been taken away by the management on 24th November, 2003 and in

the circumstances no lapse on the part of the petitioner can be

attributed for misappropriating the logs for personal use. Reliance has

also been placed on the observation of the preliminary enquiry by

Sh.Uppal stipulating that there is no evidence of transportation of the

Seesham logs to the native place of the petitioner and consequently no

inference of misappropriation can be drawn.

14. Regarding the advice of the UPSC it is asserted that it reflects

complete non application of mind and an allegation of corruption has

been made which is different from misappropriation. According to the

petitioner pursuant to the enquiry report, the representation made on

behalf of petitioner had not been considered and consequently the

punishment could not be awarded to the petitioner.

15. The petitioner has also challenged punishment imposed upon

him on the ground that the charge sheet served upon him was defective

and untenable not being in conformity with the CCS (CCA) Rules and

the enquiry was not committed in a sincere and honest manner and the

directions made by this Court on 1st November, 2007 were not complied

with. Grievance is also made that no personal hearing was given while

imposing the punishment and the acts of CVC and UPSC are a mockery

of the system and their advice can only be termed to be perverse.

Grievance is also made regarding the statement of the witnesses

recorded by the respondent behind his back and hence such a

statement could not be relied on.

16. The learned counsel for the petitioner has also contended that the

petitioner has served for 34 years, with a meritorious record of service

without any blemish on his career and the compulsory retirement has

been imposed upon him just 9 months before the date of his

superannuation which is disproportionate and the order of punishment

is contrary to the letter and spirit of law and violative of the

fundamental and legal rights of the petitioner.

17. The respondents have contested the petition contending inter-alia

that the petitioner never intimated about the falling of tree in his

residential house till 24th November, 2003 though he had already lifted

all the cut pieces of Seesham tree on 18th October, 2003. Even on 24th

November, 2003 intimation about falling of the tree was given by the

petitioner after Mr.Muneshwar Mishra, Assistant Commandant, CISF

was deputed on 22nd November, 2003 to conduct a preliminary enquiry.

Regarding the complaint being made by the IISCO the respondents have

contended that the terrain of Kulti has thick vegetation and it may not

be possible for the management to keep track of all the trees, however,

as the trees had fallen in the residential compound of the petitioner, it

was his duty to intimate about the fallen trees rather than getting it cut

into pieces, misusing the CISF Personnel and then transporting them to

his hometown. Since the tree had fallen in 2002, instead of intimating

about it, the petitioner had misappropriated the same.

18. The certificate of Assistant Manager (Town) Sh.S.D.Tank dated

29th October, 2004 would not absolve the petitioner of his misconduct

as that certificate has not been established. The petitioner himself had

given up Sh.S.D.Tank as a witness. The certificate relied on by the

petitioner has not been proved and in the circumstances on the basis of

said certificate the petitioner cannot absolve himself of the misconduct

attributed to him. Even the certificate dated 29th October, 2004 only

stipulates that on 24th November, 2003 the petitioner had told Mr. Tank

that some pieces of Seesham trees were left in his bungalow. However,

he had requested to sign on a receipt with the assurance that he will

send the wood after arranging the vehicle and consequently he had

signed the letter and had only indicated the location where the woods

could be kept. In the said certificate dated 29th October, 2004 even

Mr.Tank has stated that he doesn't know whether the wood was sent

inside or not. From the said certificate it is not established that the

wood was returned to the management of IISCO.

19. Regarding the preliminary report of Mr.Muneshwar Mishra it is

contended that even he had submitted the report holding the petitioner

guilty of charges. Since Mr.Muneshwar Mishra was junior to the

petitioner his report was not taken into consideration. Even this

preliminary report would not change the inferences drawn, after a

regular enquiry was conducted against the petitioner in accordance

with law. After Mr.Muneshwar Mishra, Mr.D.C.Suraj was appointed to

conduct a preliminary enquiry, however, he also did not proceed

properly and, therefore, Mr.I.R.Uppal, DIG was entrusted to conclude

the preliminary enquiry and it was only on the basis of the preliminary

enquiry of Mr.I.R.Uppal that a prima facie opinion was made out about

the misconduct of the petitioner entailing issuance of memorandum of

charge sheet against the petitioner for a major penalty proceeding. The

purpose of the enquiry conducted by Mr.I.R.Uppal was to ascertain

prima facie facts whether further proceedings could be initiated and

continued or not.

20. The respondents have also asserted that the petitioner was a

Group A Gazetted officer and, therefore, he was covered under

CCS/CCA Rules and, therefore, the major penalty proceedings were

initiated under Rule 14 of CCS (CCA) Rules, 1965. Documents as

demanded by the petitioner were supplied and in any case pursuant to

the order of this Court dated 1st November, 2007 all the documents

were given and the directions were complied with. All the grievances

which the petitioner had till filing of W.P(C) No.2755/2006 were agitated

and directions given to the respondents, which were duly complied with.

The contempt petition filed by the petitioner was also dismissed. The

grievances which were raised in the earlier writ petition cannot be re-

agitated again now by the petitioner.

21. After hearing the learned counsel for both parties in great detail

and perusing the entire record, it is apparent that the petitioner has

failed to point out any such illegality or perversity in the order of the

disciplinary authority which would entail interference by this Court

while exercising its writ jurisdiction. The plea of the petitioner that the

enquiry proceedings conducted against him is in violation of the

principles of natural justice, as the statements of the witnesses were

taken in his absence and his defense witnesses were also not allowed to

be taken on record cannot be sustained. From the record it is apparent

that the petitioner had been given the opportunity to cross examine the

witnesses pursuant to the order of this Court and the cross

examination of witnesses was done on behalf of the petitioner. The

witnesses which the petitioner wanted to examine in his defense were

given up by him. Earlier the Enquiry officer was forced to record the

statements of the witnesses ex parte only because the petitioner had

refused to participate in the proceedings on the ground that certain

documents were not provided to him. Later on pursuant to the direction

by the High Court in another writ petition filed by the petitioner, by

letter dated 19th December 2007 the statements of all the 10 PWs were

provided to the petitioner and he was given opportunity to cross

examine them. These facts are reflected from the order sheet dated 3rd

March 2008 and these grievances of the petitioner are not sustainable

in the facts and circumstances.

22. The petitioner has also contended that certain documents have

not been provided to the petitioner, one of such document is the

preliminary report dated 24th November 2003 by Mr. Muneshwar

Mishra. The petitioner alleged that this was not given to him as the

said report was in favor of the petitioner. However on the contrary this

initial report too concluded about the guilt of the petitioner, but since

the enquiry officer was junior to the respondent the same was not

considered. As the said report was not considered by the enquiry officer

and the petitioner had not been penalized on the basis of the same but

on the basis of regular departmental enquiry conducted against him,

the non communication of the first preliminary report does not import

much relevance. In any case the preliminary inquiry was concluded by

Mr. Uppal and the copy of his report was provided to the petitioner. In

the circumstances, the petitioner cannot make the grievance that the

copy of the preliminary report was not provided to him.

23. Ample opportunity was afforded to the petitioner to defend his

case, as after the preliminary enquiry conducted by Sh. I.R. Uppal, all

the evidence collected along with the charge sheet was given to the

petitioner, in order to enable him to defend himself effectively. However

the petitioner still contended that all the relevant documents were not

supplied to him and even moved a contempt petition No. 46/2008

alleging that the respondents had not complied with the direction of the

Court in WP (C) 2755/2006 by order dated 1st November, 2007. The

Court on hearing both the parties had concluded by order dated 22nd

January 2008 that some of the documents sought by the petitioner

were not in existence and hence the same could not be given to the

petitioner. The inquiry officer too has not considered the said

documents in reaching its findings. In these facts and circumstances

this Court does not find any irregularity or illegality in the manner the

departmental proceedings were conducted against the petitioner and

awarding the punishment.

24. The plea that the petitioner had timely informed the concerned

department of Kulti management about the Seesham tree which had

fallen down at his residence in the month of August /September, 2003

as per the laid down procedure also has not been established in the

facts and circumstances. The enquiry officer has concluded that the

petitioner had not informed the concerned department of Kulti

management as it has been inferred that the petitioner had only

intimated the matter on 24th November, 2003 after Mr. Muneshwar

Mishra, Assistant Commandant CISF was deputed on 22nd November

2003 to conduct the preliminary enquiry. While it is an admitted fact

that the Seesham tree had fallen in the premises of the petitioner's

Bungalow much earlier and prior to the 18th October 2003 when the

petitioner had taken leave and proceeded to his native place along with

the logs made from the wood of the tree. The findings of enquiry officer

that the petitioner had mis-appropriated the Seesham tree and

informed the officials only in anticipation of an enquiry being conducted

against him cannot be termed to be unsustainable or illegal in any

manner.

25. Also with regard to the contention that there had been no

complaint lodged by the IISCO who is the owner of the property,

allegedly mis-appropriated by the petitioner, will not absolve the

petitioner of his misconduct. The terrain of Kulti has thick vegetation

and it was not possible for the management of IISCO to account for all

the uprooted trees. The petitioner had a duty to inform the management

of any fallen tree especially as the tree was in his residential compound.

Instead of informing the concerned authorities, the petitioner used the

force of CISF illegally in cutting the tree to small pieces and used saw

mills to make logs from it and transported them to his native village

after taking leave. The enquiry officer has dealt with the plea of the

petitioner that the wooden logs were purchased by the petitioner from

his neighbour and friend Shri Vinay Singh for the amount of Rs 400/-.

This was a false plea which could not be established. Mr. Vinay was not

examined by the petitioner in support of his defense. This was also an

afterthought as the said plea was not even taken by the petitioner

during the preliminary enquiry. Thus this plea also does not absolve the

petitioner from his misconduct.

26. The petitioner has also claimed that the Seesham logs were

actually taken by the concerned department of Kulti Growth Works

from the residence of the petitioner. However there is no evidence on

record to support the same. This is also corroborated by the statement

of Sh. SD Tank recorded on 29th October. 2004 stating that petitioner

on 24th November, 2003 had informed him about some pieces of

Seesham Tree lying in his Bungalow. He had also requested him to sign

on a letter (receipt) and told him that he would send the wood after

arranging for a vehicle. However pursuant to this, he was unaware if

any wood was sent by the petitioner. Also there is no record in the

material of the incoming register at Kulti Main Gate about

transportation of wood of the fallen Seesham tree from the petitioner's

bungalow to Kulti works as per the report of Sh. IR Uppal dated 13th

December 2004. This plea of the petitioner is not sustainable in the

facts and circumstances.

27. The mere reading of the article of charge makes it clear that it

included both misuse of manpower for his private work as well as

dishonest, misappropriation of the Seesham tree, imputed against the

petitioner. The plea of the petitioner that he has been tried for charges

not framed against him cannot be sustained.

28. Even the advice of UPSC is in accordance with Article 320(C) of

the Constitution of India read with Regulation 5(1) of UPSC (Exemption

from Consultation) Regulations 1958. The UPSC after duly considering

all the material on record including the representations of the petitioner

tendered the advice dated 15th October, 2009 recommending the

imposition of punishment of compulsory retirement on the petitioner.

The UPSC also observed that the evidence of the department is very

detailed and well supported whereas the evidence produced by the

petitioner was found to be very weak, unreliable and of doubtful

evidentiary value. Since the conduct of the petitioner was a very serious

act of indiscipline the punishment of compulsory retirement was

imposed. This Court too is in consonance with the observations of the

UPSC. As stated by the petitioner himself, he having served 35 years in

the service, there could have been no excuse for not following the proper

procedure for handling contingencies such as a tree fallen during the

storm. In any case the major penalty could also be dismissal from

service, however, the petitioner has been imposed the punishment of

compulsory retirement only and it cannot be held to be disproportionate

to the misconduct committed by the petitioner.

29. On perusal of the enquiry report, the statements of the witnesses

and the evidence on record this court concurs with the findings of the

Enquiry officer, the observations made by the UPSC and the consequent

decision of the Directorate General imposing the penalty of compulsory

retirement on the petitioner. In any case the administrative action is

subject to control by judicial review in case there is "illegality";

"irrationality" and "procedural impropriety". None of these grounds have

been made out by the petitioner. The decision of the respondents

cannot be termed to be so outrageous as to be in total defiance of logic

or moral standards. It has also not been shown by the petitioner that

the petitioner has been punished on the basis of facts which do not

exist or on the basis of any manifest error. The petitioner has also failed

to make out that any relevant facts had been left out while arriving at

the decision about the misconduct of the petitioner.

30. In the circumstances there are no grounds to interfere with the

order of the Director General imposing the penalty of compulsory

retirement on the petitioner. The petitioner has failed to point out any

illegality, irregularity or any perversity in the order dated 10th November

2009 requiring any interference by this Court in exercise of its writ

jurisdiction. The writ petition in the facts and circumstances is without

any merit and it is, therefore, dismissed. Parties are, however, left to

bear their own costs.

ANIL KUMAR, J.

February 18, 2011. VEENA BIRBAL, J.

'k'