Union Of India & Ors. vs Shri Sushil Kumar
2011 Latest Caselaw 1631 Del

R-199
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment reserved on: 17.03.2011
                         Judgment delivered on: 22.03.2011

+                        RSA No.34/2006


UNION OF INDIA & ORS.                           ...........Appellants

                  Through:     Ms. Anjana Gosain, Advocate.


                  Versus


SHRI SUSHIL KUMAR                               ..........Respondent
              Through:         Dr. Nepal Singh, Advocate.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J.

1 This appeal has impugned the judgment and decree dated

06.08.2005 which had reversed the findings of the trial Judge dated

20.07.1998. Vide judgment and decree dated 20.07.1998, the suit

filed by the plaintiff Sushil Kumar seeking a declaration and

mandatory injunction to the effect that his termination of service

vide order dated 31.10.1988 be declared null and void had been

dismissed. The impugned judgment had reversed this finding. The

suit of the plaintiff stood decreed.

2 The plaintiff had joined the service of the Central Reserve

Police Force (CRPF) as a Head-constable in 1969. At the relevant

time i.e. on the date of the alleged offence, he was a Sub-Inspector.

The charge leveled against him was that while serving as a Sub-

Inspector between 12.01.1984 to 14.03.1984 he had committed

serious negligence of his duties; he had left his duty for a volley

ball match on 14.03.1984 without his personal weapon (stengun)

which attributed in snatching away of fire arms by the extremists

and causalities of CRPF and civilians; he had failed to exercise

control and supervision in the said capacity and deliberately did

not accompany his section as a member of force to control the

heavy crowd in a sensitive area; his act was a show of cowardice

violating the provisions of Section 11 of the CRPF Act, 1949 read

with Rule 27 of the CRPF Rules, 1955. On 16.06.1987, the

defendant department initiated an enquiry against the plaintiff. On

22.07.1987, the plaintiff refuted the charges leveled against him. It

was stated that copies of statements of six persons who had

deposed against him had not been furnished. The Enquiry Officer

submitted his report. Penalty of dismissal was awarded vide order

of the Disciplinary Authority dated 31.10.1988. The appeal filed

against the order of the Disciplinary Authority was rejected on

04.04.1989; revision was also dismissed. Present suit was

accordingly filed. Contention of the plaintiff was that there has

been a violation of the principles of natural justice inasmuch as

admittedly the report of the Enquiry Officer had not been furnished

to him; there was no explanation for the delay in the initiating

enquiry; incident was of the year 1984; enquiry had been initiated

after a gap of three years i.e. in the year 1987 which gap remained

unexplained; legal assistance i.e. assistance of an Advocate had not

been furnished to the plaintiff; a show cause notice prior to the

imposition of penalty had also not been given; the Enquiry Officer

was also the Presenting Officer; bias of the Enquiry Officer was

writ large. Punishment imposed was very severe. For all the

aforestated reasons, the order of Disciplinary Authority is liable to

the set aside.

3 In the written statement, the defence was that there has

been no violation of natural justice; enquiry had been conducted as

per rules and regulations of the CRPF. The plaintiff had committed

acts of serious negligence in the discharge of his duties when he

left for the venue of the volley ball match without his personal

weapon (stengun) which attributed in snatching away of fire arms

by the extremists and the resultant causalities of the CRPF

personeel and civilians. There is no provision for advancing legal

assistance to CRPF personnel who are facing enquiry; rules do not

permit it.

4 Trial court had framed seven issues. Oral and documentary

evidence was led. Trial court was of the view that the civil court is

not a appellate authority and cannot sit over and above the orders

of the Disciplinary Authority unless the departmental enquiry is

vitiated; the enquiry proceedings had complied with the rules and

regulations applicable; there had been no violation of natural

justice; suit of the plaintiff was dismissed.

5 The impugned judgment had reversed this finding. Report of

the Enquiry Officer had not been furnished to the plaintiff; in view

of the judgment of the Apex Court reported in AIR 1999 SC 471

Union of India & others Vs. Mohd. Ramzan Khan non-supply of the

report of the Enquiry Officer to a delinquent amounted to a

violation of natural justice. Enquiry was vitiated. Deletion of Rule

27 (7) of the CRPF Rules, 1955 also did not come to the aid of the

department. Delay in institution of the enquiry i.e. a delay of 3- ½

years was also unexplained. On this count also, it was held that the

enquiry is vitiated. Dismissal of the plaintiff was accordingly set

aside. Decree of declaration was granted in favour of the plaintiff

who was declared to be in continuation of service from the date of

his termination; decree of mandatory injunction was also passed in

his favour of the plaintiff directing the defendants to reinstate him

with all consequential benefits. This judgment is now impugned

before this Court.

6 This is a second appeal. Although formal order of admission

was not passed but on 10.08.2010 the two substantial questions of

law had been formulated. They read as under:-

"1. Whether the reliance by the first appellate court in its impugned judgment dated 06.08.2005 on the proposition reported in Union of India & Ors Vs. Mohd. Ramjan Khan AIR 1991 SC 471 was a misappropriation of law, if so, its effect?

2. Whether the impugned judgment dated 06.08.2005 holding that the delay of more than three years in initiating disciplinary enquiry against the delinquent official vitiated the enquiry, if so, its effect?"

Another following additional substantial question of law had

been formulated on 17.03.2011:-

"Whether the findings in the impugned judgment is perverse and if so its effect?"

7 It has been urged that the impugned judgment suffers from

an illegality in view of the fact that the ratio of judgment of Mohd.

Ramzan Khan (Supra) has not been correctly appreciated. It is

pointed that a five bench judgment of the Apex Court reported in

AISLJ XII 1993 (3) Managing Director, ECIL, Hyderabad Vs. B.

Karunakar had in fact set the controversy at rest as to from which

date the judgment of Mohd. Ramzan Khan (Supra) would be made

applicable. It had been held that it would have a prospective

operation only and would not apply retrospectively. This judgment

of the constitution bench was delivered on 01.10.1993 upholding

the ratio of Mohd. Ramzan Khan (Supra) wherein it was held that a

delinquent has a right to receive the Enquiry report; it is necessary

for an effective defence; however the ratio of Mohd. Ramzan Khan

would have a prospective operation; it would be applicable to

orders of punishment passed after 20.11.1990; this law would not

be applicable to the orders of punishment passed before that date

notwithstanding the fact that the proceedings arising out of the

same were pending in the court after that date. For the same

proposition, reliance has also been placed upon a division Bench

judgment of this Court in W.P.(C) No. 2646/1990 decided on

30.07.2010 in the case of Arun Kumar Nigam Vs. DIG Genl. Central

Industrial Security Force & Ors.

8 There is no dispute to this proposition. Admittedly the

enquiry in this case had been initiated and completed much prior

to the passing of the judgment in Mohd. Ramzan Khan; the

Disciplinary Authority had awarded the punishment to the

delinquent on 31.10.1988; there is also no dispute that the CRPF

Rules did not postulate the giving of an enquiry report to the

delinquent. In these circumstances, non-furnishing of the enquiry

report to the plaintiff was not a violation of the rules of natural

justice.

9 Substantial question of law No. 1 is answered accordingly.

10 Learned counsel for the appellant has next submitted that the

impugned judgment also suffers from an infirmity in holding that

there has been a delay; delay has been explained. It is pointed out

that under orders of this Court, an additional affidavit had been

filed by the appellant which is on record. Each and every day's

delay has been explained in the said affidavit which an only

expansion of the averments of the written statement. Reliance has

been placed upon 1995 (1) SCSLJ 233 State of Punjab & Ors Vs.

Chaman Lal Goyal to support a submission that even a delay of 5-½

years had stood condoned. The instant is also one such case where

the delay is liable to be condoned.

11 Arguments have been countered. It is pointed out that

Chaman Lal Goyal (Supra) has no application; it is distinct on its

facts; in that case there was a delay in serving the charge-sheet

whereas in the present case the delay is in initiating the enquiry. It

is further pointed out that the report of the Enquiry Officer suffers

from perversity as admittedly the service of a legal assistant had

also not been given to the delinquent which action is violative of

natural justice; further the Enquiry Officer was also the Presenting

Officer which is a clear example of the bias of the Enquiry Officer

qua the delinquent; show cause notice was also not served upon

the delinquent before the penalty of dismissal had been imposed

upon him.

12 This Court has now to address itself on substantial questions

of law and the additional substantial question of law. The affidavit

of the appellant has been perused. Incident is dated 14.03.1984.

Enquiry has been initiated on 16.06.1987. Delay as explained in the

affidavit is for the reason that the State Government had initiated

an enquiry against the delinquent and the department was advised

not to proceed in the matter of a departmental enquiry till the

pendency of the state enquiry. This is by and large the reason for

delay. These notings/advise have not been filed. These are all

procedural details and do not in any manner make out a sufficient

cause for explaining the delay of more than three years in initiating

the enquiry against the plaintiff. In 1980 (1) SLR Gujrat 324

Mohanbhai Dungarbhai Parmar Vs. Y.B. Zala & Others where the

departmental proceedings had been initiated against a constable

who had remained unauthorizedly absent after a delay of 1- ½

years, the Gujrat High Court had come down heavily on the

department and held that such an unexplainable delay of 1- ½

years would constitute a denial of reasonable opportunity to the

delinquent to defend himself; no person can have a computer like

memory to maintain a day to day diary in which every small matter

is meticulously recorded in aniticipation of future eventualities of

which he cannot have a prevision. Nor can be be expected to

adduce evidence to establish his innocence for after inordinate

delay; this delay was found to be valid being violative of principal

of natural justice.

13 Admittedly in this case, the incident had occurred on

14.03.1984; this incident was well within the knowledge of the

department on that day itself; no promptitude was shown to initiate

the enquiry; department was not diligent; the explanation

furnished in the written statement and in the affidavit filed before

this Court is neither reasonable not justified. It is also not in

dispute that after the date of incident on which date the plaintiff

was serving as a Sub-Inspector, he was subsequently promoted to

the rank of Inspector w.e.f. 24.03.1986. Even up this date, no such

fault was found in the conduct and behavior of the plaintiff;

promotion was a reward to the plaintiff; there was nothing adverse

against him at this time. The initiation of enquiry one year later

after his promotion i.e. in 1987 appears to be unreasonable; delay

of more than 3- ½ years after the date of incident in initiating this

enquiry is not explained. The judgment of Chaman Lal Goyal is

distinct; in that case there was a delay of 5- ½ years in serving the

charge-sheet which in the peculiar facts of the said case was held

to be justified.

14 The impugned judgment has rightly held that the principles

of natural justice had been violated. Doctrine of natural justice

which has been incorporated in a catena of judgments is not an

empty formality. It has to be adhered to in true letter and spirit.

These are principles which are necessary for a just and fair

decision making; whatever is unjust and not fair is opposed to this

principle.

15 Admittedly the plaintiff had also been denied an opportunity

of a legal assistant. This was also taken as a ground of appeal in

the first appeal. In (1983) 1 SCC 124 Board of Trustees of the Port

of Bombay Vs. Dilipkumar Raghavendranath Nadkarni & Others

where the respondent who was pitted against two legally trained

persons and he was asked to defend himself in person and

assistance of legally trained person was denied to him; it was held

to be a one sided enquiry was violative of rules of natural justice. In

the present case, also admittedly the assistance of a legal

personnel had been denied to the plaintiff; the Enquiry Officer who

was also the Presenting Officer was an I.P.S. Officer of the rank of

Deputy Inspector General Police.

16 It is also not in dispute that the Enquiry Officer was also the

Presenting Officer. For this reason, the plaintiff had suffered bias.

In Ridge Vs. Baldwin 91963) 2 AER 66 (HL), Lord Hudson had

carved out the following three features of natural justice:-

(i) The right to be heard by an unbiased Tribunal,

(ii) The right to have notice of charges of misconduct,

(iii) The right to be heard in answer to that charge.

17 The Enquiry Officer was nothing short of an interested

person; it has to be borne in mind that justice must not merely be

done but must be seen to be done as well. The undisputed fact that

the Enquiry Officer was also the Presenting Officer spells bias.

18 Admittedly the show cause notice had also not been given to

the plaintiff before the penalty was imposed upon him by the

Disciplinary Authority; this was denial of a fair hearing. Prejudice

had been contended by the plaintiff all along and this grievance

appears to be substantiated. Examining this last submission on the

touch stone of prejudice, there appears to be a violation of nature

justice.

19 The order of the Enquiry Officer suffers from a perversity.

The impugned judgment had correctly noted all these facts and

decreed the suit of the plaintiff entitling him to a decree of

declaration and mandatory injunction as granted in his favour. This

finding suffers from no infirmity. Substantial questions of law and

additional substantial question of law are answered accordingly.

20    There is no merit in the appeal. Dismissed.




                                            (INDERMEET KAUR)
                                                  JUDGE
MARCH 22, 2011
A