Sanjay Kumar vs Uoi & Ors.
2011 Latest Caselaw 3147 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved on : 27th May,2011
                        Judgment delivered on : 6th July, 2011

+                           W.P.(C) 3488/1999

        SANJAY KUMAR                            ..... Petitioner
                 Through:        Mr.Zafar Sadique, Advocate

                                 versus

        UOI & ORS.                              ..... Respondents
                  Through:       Mr.M.K.Bhardwaj, Advocate

         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. Charge-sheet dated 8.10.1997 was served upon the petitioner Ct.Sanjay Kumar on 9.10.1997 alleging the following misdemeanour:

"931404115 Constable Sanjay Kumar is charged that while on duty in CISF Unit RDM, Rajsamand (Rajasthan) during his suspension period on 02.12.96 at about 1645 hours had beaten 833190057 Constable Anil Kumar Incharge of the Office of Unit Store while on duty and

quarreled as a result of which he sustained the injuries. He caused the damage to the Register and the Government cycle kept in the office of the Unit Store alongwith two other members of CISF. The above action of Constable Sanjay Kumar is gross indiscipline and misbehaviour."

2. To save on paper, we note at the outset the statement made by the petitioner before the Inquiry Officer in his defence as the same would help us in focusing on the issue. He said that on 2.12.1996 at about 17:00 hours he was coming from his quarter towards the unit lines when he heard commotion from the Quarter Master store. He reached the store, followed by other personnel, amongst which HC.C.M.Sharma and Ct.C.P.Yadav were present. With the help of personnel gathered there, Ct.Anil Kumar was saved from Ct.Hori Lal and Ct.Dilip Kumar.

3. Thus, we highlight that petitioner admitted his presence in the unit lines, but claims to have reached the spot where Ct.Anil Kumar was beaten, after the assault on him had commenced.

4. Insp.M.S.Siddiqui, the Inquiry Officer examined 6 prosecution witnesses. Petitioner made a statement in defence and tendered 3 documents in defence at the inquiry.

5. SI Nahar Singh PW-1 deposed that on 2.12.1996 he was performing the duty of Coy Commander in the absence of the Regular Coy Commander and that at about 17:10 hours, Ct.Anil Kumar came to the office of Coy Commander and told

him that when he was on duty at Quarter Master Store, Ct.Hori Lal, Ct.Dilip Kumar and petitioner came there and physically assaulted him. They also destroyed the documents and other property of the store and damaged a cycle. He saw injury marks on Ct.Anil Kumar‟s face and body, and thus told him to go to the hospital for medical treatment. Thereafter, he went to the unit lines. There, SI Ram Lal, Quarter Master, was present with other personnel and he i.e. SI Nahar Singh enquired from them about the incident. He instructed SI Deep Singh Rathore to get Ct.Hori Lal and Ct.Dilip Kumar medically examined as he came to know that both were drunk. Then he went to the Quarter Master store and saw that register and files were scattered and a cycle was lying in a damaged condition. SI Ram Lal told him that he was not present at the spot when the incident commenced and he reached at the spot after hearing the commotion. SI Deep Singh told him i.e. PW-1, that Ct.Hori Lal and Dilip Kumar were missing from the unit lines. The said two constables were searched and were found at the bus stop with some luggage. Thereafter he i.e. SI Nahar Singh made entry into the Daily Diary about the said incident and about the aforementioned two constables being missing from the unit lines. On being examined by the Inquiry Officer he stated that SI Dhanraj told him that he witnessed the entire incident.

6. Ct.Anil Kumar i.e. PW-2 deposed that on 2.12.1996 at about 16:45 hours when he was doing clerical work at Quarter

Master Store, SI Dhanraj came there to get some papers for mess work. At the same time Ct.Hori Lal, Ct.Dilip Kumar and petitioner came inside the Quarter Master Store. Petitioner and Ct.Dilip Kumar asked him as to why their kit had been deposited at which he answered that their kit has been deposited at the instructions of the Assistant Commandant and that they should speak to the Quarter Master in this regard. At this, Ct.Dilip Kumar punched him on his face and abused him. Ct.Dilip Kumar again punched him at which he fell down on the floor. When he tried to save himself, Ct.Hori Lal picked up a stick and tried to hit him on his head and in the process he received injuries on his head and hands. SI Dhanraj tried to save him, but Ct.Hori Lal pushed him i.e. SI Dhanraj and he too fell on the floor. When he tried to run from the room, the petitioner caught hold of his hands and pushed him. He fell on the floor and all three accused assaulted him. He shouted „Bachao Bachao‟. He saw SI Ram Lal come towards the Quarter Master Store along with other personnel. At that point of time along with Ct.Hori Lal and Ct.Dilip Kumar, the petitioner threw a cycle on him, but he saved himself and then all three started jumping on the cycle. The other personnel intervened and saved him and took the three constables to the unit lines. SI Ram Lal saw him in an injured condition and told him to go to the hospital. Before going to the hospital he went to the office of the Coy Commander and reported the incident. On being cross-examined by the petitioner he stated that only Ct.Dilip

Kumar had asked him about the „KIT‟. He also confirmed that petitioner‟s „KIT‟ was not deposited in the store.

7. SI Dhanraj PW-3 deposed that on 2.12.1996 at about 16:40 hours he went to the Quarter Master Store to get some stationary for mess work. Ct.Anil Kumar asked him to wait for 2 minutes, at which he sat down on a chair kept nearby. At about 16:50 hours Ct.Hori Lal and Ct.Dilip Kumar entered the store and tried to hit him from behind at which he turned around and in that process his chair slipped and he fell on the floor. Thereafter the two constables pounced on Ct.Anil Kumar and physically assaulted him. In the meanwhile he got up from the chair to save Ct.Anil Kumar but then petitioner entered the store and caught hold of the Ct.Anil Kumar from behind. When he saw that three personnel were beating Ct.Anil Kumar he came outside the store to call for help at which many personnel came there. HC C.M.Sharma was one of them. They saved Ct.Anil Kumar from the said three constables who were then brought outside the store. Ct.Dilip Kumar picked up the cycle and threw it on the floor and started jumping on the cycle. At that time SI Ram Lal who was the Quarter Master reached at the spot and when he saw the condition of the store and scattered documents, he ordered Ct.Anil Kumar to shut down the Quarter Master Store. He i.e. SI Ram Lal said that he would inform the Coy Commander about the incident and then he will take Ct.Anil Kumar to hospital. A little while later SI Ram Lal took Ct.Anil Kumar to hospital in a car. On

being questioned by the petitioner he stated that the petitioner did not enter the store along with Ct. Hori Lal and Ct.Dilip Kumar and was standing outside the gate. He also stated that he was not sure whether the petitioner was involved in damaging the cycle.

8. SI Ram Lal PW-4 deposed that on 2.12.1996 when he was returning after inspecting the quarters at about 16:45 hours he saw SI Dhanraj shouting „Bachao Bachao‟ from the verandah of the Quarter Master Store. He ran towards the store with other personnel who were also running towards that direction. He saw that Ct.Hori Lal and Ct.Dilip Kumar were beating Ct.Anil Kumar and the petitioner was holding the hands of Ct.Anil Kumar from behind. With the help of personnel the fight was topped and he saw that the whole store was in disarray and registers, files etc. were scattered. He saw a broken „Y‟ shaped stick lying on the floor. Then he instructed the injured to shut down the store. He told Ct.Anil Kumar to go to the hospital. Thereafter he went to inform the Coy Commander telephonically about the incident but could not contact him. In the meanwhile the Coy Commander came to the Unit and he opened the Quarter Master Store to show him the condition of the store. On being questioned by the petitioner he stated that HC C.M.Sharma and Ct.C.P.Yadav were ahead of him and reached at the spot just before him. On being examined by the Inquiry Officer he stated that the petitioner was not involved in destroying the cycle.

9. HC C.M.Sharma PW-5 deposed that he reached the spot after the incident and saw files scattered on the floor and a broken cycle at the spot. He saw Ct.Dilip Kumar and Ct.Hori Lal being confined in a barrack.

10. Ct.C.P.Yadav PW-6 apparently turned hostile and stated that when he reached the spot he saw Ct.Hori Lal fighting with Ct.Anil Kumar and that Ct.Hori Lal was out of control. That Ct.Hori Lal threw the cycle at Ct.Anil Kumar and later on started jumping on the cycle. Apparently, Ct.C.P.Yadav exonerated the petitioner. He stated that SI Ram Lal was not to be seen by him.

11. Since at a preliminary inquiry he had claimed to be an eye witness and had indicted the petitioner as also Ct.Dilip Kumar and Ct.Hori Lal, questioned by the Inquiry Officer with reference to his previous statement, Ct.C.P.Yadav stated that he had made the statement under duress and threat of the Platoon Commander SI Noor Mohammad. Questioned as to why he did not report the said duress to a senior officer, Ct.C.P.Yadav said that the senior officer was Insp.M.Hassan and since SI Noor Mohammad and Insp.M.Hassan were Muslims he thought it useless to complain.

12. Relevant would it be to note that there are variations in the testimony of Ct.Anil Kumar PW-2, SI Dhanraj PW-3 and SI Ram Lal PW-4 regarding the exact point of time when they saw the petitioner at the spot, although each one of them inculpates the petitioner along with Ct.Hori Lal and Ct.Dilip

Kumar. We may highlight that PW-1 never claimed to be an eye witness and deposed to facts soon after the incident. Likewise, PW-5 never claimed to be an eye witness and deposed to of what he saw after the incident. As noted above, Ct.C.P.Yadav PW-6 turned hostile.

13. Whereas PW-2 is the injured eye witness and deposed about the entire incident and while so deposing stated that Ct.Hori Lal, Ct.Dilip Kumar and the petitioner came to the store together, PW-3 stated that Ct.Hori Lal and Ct.Dilip Kumar entered the store and started the fight and when the fight was on, petitioner entered and joined company with Ct.Hori Lal and Ct.Dilip Kumar. PW-4 has stated that when he reached he saw all three i.e. Ct.Hori Lal, Ct.Dilip Kumar and the petitioner assaulting Ct.Anil Kumar.

14. It is apparent that PW-4 had reached the spot when he heard the cries of distress and thus would be a useless witness with respect to the origin of the fight. The origin of the fight has been deposed to only by PW-2 and PW-3. The only variation in their testimony is regarding the petitioner entering the store room along with Ct.Hori Lal and Ct.Dilip Kumar or entering soon thereafter.

15. Surprisingly enough the Inquiry Officer treated the same to be a major contradiction as also on the presence of SI Ram Lal, whose time of arrival at the spot was deposed to with a slight variation in the testimony of the said two witnesses as also that of SI Ram Lal himself. The Inquiry Officer referred to

the testimony of PW-5 and PW-6 who stated that they did not see SI Ram Lal at the spot and used the same to punch a hole in the testimony of PW-2, PW-3 and PW-4. The result was that Inquiry Report dated 30.1.1998 in which the petitioner was exonerated.

16. The Disciplinary Authority did not agree with the report of the Inquiry Officer and penning a note of disagreement dated 7.2.1998, forwarded the same for the petitioner to respond. Reasons for disagreement were clearly recorded and we may only highlight that the same are that the so-called variations, treated as major contradictions by the Inquiry Officer, are natural variations in the testimony of different persons who speak on the same incident. Considering the reply filed by the petitioner and rejecting the same, vide order dated 5.3.1998 penalty of removal from service was inflicted upon the petitioner against which appeal filed was rejected vide order dated 24.8.1998.

17. Instant writ petition lays a challenge to the order dated 5.3.1998 and the order dated 24.8.1998.

18. It is settled law that where a Disciplinary Authority disagrees with the findings returned by the Inquiry Officer, it must pen down a note of disagreement recording the reasons for disagreeing with the report of the Inquiry Officer and must give an opportunity to the delinquent to furnish a response thereto. Thus, the Disciplinary Authority, in the instant case, has complied with the procedures of the law.

19. Learned counsel for the petitioner had urged that the Inquiry Officer had given cogent reasons to justify his report and that merely because a different view was possible, would not justify the Disciplinary Authority adopting the said view.

20. The argument need not be discussed over pages by us for the simple reason the said argument is apparently rested on the principle of appreciation of evidence at an appellate level akin to where a Court of Appeal adjudicates on an issue of fact decided by the Court of First Instance. It is settled law that where, on a given set of evidence, a view of plausible and is adopted by the Trial Court, merely because another view is possible on the given evidence, the Court of Appeal would not upset a finding of fact returned by the Court of First Instance. But, this principle cannot be adopted in matters pertaining to a view taken by an Inquiry Officer and a contra view taken by the Disciplinary Authority. The Disciplinary Authority does not sit in appeal over the report of the Inquiry Officer, which report is merely an opinion of the Inquiry Officer. That apart, where the Court of First Instance or the First Trier of a fact, errs in law by giving weightage to trivial issues and treats the same as major issues, as for example, a minor variation is treated as a contradiction, as in the instant case, even a Court of Appeal can correct the said error. The reason is the jurisprudence which states that while appreciating evidence on a matter of fact, where wrong legal principles are applied to issues of fact,

it would be a case of a legal error, capable of being corrected at the appellate stage.

21. Law relating to variations in the eye witness account and contradictions in an eye witness account is to be found in legion in criminal law. We seek guidance. Two persons can be said to have contradicted themselves when they depose on matters of fact in a manner that one demolishes the other i.e. the two cannot stand together. But where the two versions can stand together and the variations are explainable, it would not be a case of contradictions.

22. On facts, Ct.Anil Kumar PW-2 stated that Ct.Hori Lal, Ct.Dilip Kumar and the petitioner entered together, SI Dhanraj PW-3 stated that Ct.Hori Lal and Ct.Dilip Kumar entered the store and hit him and as a result he fell from the chair and as he got up the two constables assaulted Ct.Anil Kumar and were joined by the petitioner who had also entered the store. Now, we see no contradiction as regards the petitioner when Ct.Anil Kumar says that all three entered together and SI Dhanraj said that Ct.Hori Lal and Ct.Dilip Kumar entered first, soon followed by the petitioner. The reason is that where three persons assault somebody, out of whom two entered first and the third within seconds thereafter, it would be a natural variation for somebody to say that all entered together or that two entered first and the third second thereafter. After all, human memory retains the core facts and the ones at fringes tend to get blur. The blurred facts at the fringe, when

deposed to with a different hue would not mean that the persons deposing have contradicted themselves.

23. It was then urged that under the guard of note of disagreement, the Disciplinary Authority had taken a conclusive view and thus the opportunity to the petitioner to respond thereto was a ruse. In a nut shell, the submission was that the Disciplinary Authority had closed his mind by taking a view, conclusive in its sweep, that the petitioner was guilty and only thereafter completed the formality of calling upon the petitioner to respond.

24. Having perused the note of disagreement, we would be wrong if we would say that the language thereof does not support the argument advanced, but would hasten to add, that it is not the form of a document, but it is the content thereof which is of relevance in law, and with respect to the content of the document i.e. the note of disagreement would highlight that it gives sufficient scope for the mind to be open i.e. leaving it open for the Disciplinary Authority to consider the response to the note.

25. In the peculiar facts of the instant case, how else could the Disciplinary Authority pen the note of disagreement without pointing out the errors committed by the Inquiry Officer while returning the findings of fact? How could the Disciplinary Authority bring out, to be responded to by the petitioner, that the so-called variations in the eye witness account, treated as contradictions, were minor and trivial,

without so stating? If the Disciplinary Authority would not have done so, the final view taken would be susceptive to the charge that the petitioner was not given an opportunity to respond to the reason in the mind of the Disciplinary Authority on the point of not agreeing with the report of the Inquiry Officer.

26. With reference to the testimony of the various witnesses noted hereinabove, within the constraint of judicial review, on matters of disciplinary action, we find sufficient evidence against the petitioner and on the issue of punishment would highlight that where a member of a Disciplined Central Para Military Force indulges in violence and destroys records and Government property (the cycle) penalty of removal from service cannot be called disproportionate.

27. We dismiss the writ petition but refrain from imposing any cost.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE JULY 06, 2011 mm