Union Of India & Anr vs Shri Ex.L/N Raj Pal Singh
2011 Latest Caselaw 2712 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 20.5.2011


+                    R.S.A.No.63/2009


UNION OF INDIA & ANR.                     ...........Appellants
                   Through:          Mr.Ankur Chibbar, Advocate.

                     Versus


SHRI EX.L/N RAJ PAL SINGH                 ..........Respondent
                     Through:        Mr.Samrat Nigam, 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. (Oral)

1 This appeal has impugned the judgment and decree dated

20.11.2007 which has reversed the finding of the trial dated

19.4.2005. Vide judgment and decree dated 19.4.2005 the suit

filed by the plaintiff Raj Pal Singh seeking declaration (to the

effect that the order dated 09.3.1996 dismissing the plaintiff from

services be declared null and void; defendant be directed to

reinstate the plaintiff with full back wages) had been dismissed.

The impugned judgment had reversed this finding. Suit of the

plaintiff stood decreed.

2 Plaintiff was working as a constable in the CRPF since

17.6.1983. He was discharging his duties sincerely; he was

promoted to the post of Lance Naik. On 14.5.1994 he went on

leave with permission of the department; he was unfortunately

implicated in a criminal case. FIR No.233/94, under Section 307

of the IPC at police station Bhajanpura had been registered

against him. He was arrested and released on 31.5.1995. He

reported for duty on 02.6.1995. The further case of the plaintiff is

that the department was informed about the criminal case which

has been registered against him for which he was subsequently

acquitted on 21.8.1996. However, a departmental enquiry was

initiated against him. He was served with charge sheet dated

02.2.1996 on the allegation that he had concealed this fact of the

criminal case which had been registered against him. He

suspended and thereafter dismissed. Contention before the Court

is that the order of the Enquiry Officer dismissing him from

service on 09.3.1996 is illegal and void. Suit for declaration to the

said effect had been filed.

3 In the written statement the contentions raised in the plaint

were denied; it was specifically stated that the plaintiff was guilty

of desertion; he reported for duty on 02.6.1994 after having

deserted w.e.f. 15.5.1994 i.e. for 18 days; he had been awarded

penalty of 'censure'; thereafter the aforenoted FIR had been

registered against the plaintiff on 14.5.1994, which fact had not

been disclosed by the plaintiff. He was rightly held guilty of the

charges levelled against him. The order of the Enquiry Officer

calls for no interference. Plaintiff is not entitled to relief.

4 In the replication the contention of the plaintiff was that the

fact about the criminal case having been registered against him

had been informed to the department by his brother Ram Krishan.

5 On the pleadings of the parties the following three issues

were framed:

1. Whether the order date 9.3.96 removing the plaintiff from service is null, void, illegal and against the principles of natural justice, if so its effect?

2. Whether the plaintiff is entitled to the relief of declaration and injunction as prayed for?

3. Relief.

6 Oral and documentary evidence was led. The trial judge

was of the view that this fact against that a criminal case had

been registered against him had been concealed by him; this fact

had been proved; the order of the Enquiry Officer call for no

interference; the trial judge had noted that the plaintiff had given

different names of his brother who had intimated the department;

in one breath he had stated that Ram Kishan had informed the

department whereas in the next breath he had given the name of

Om Prakash who had been subsequently produced as a witness

and examined as PW-2. His version had been disbelieved; court

was further of the view that there has been no violation of rules of

natural justice. Suit of the plaintiff stood dismissed.

7 In appeal this finding was reversed. The appellate court had

reversed this finding primarily on two counts. The first reason for

reversing the finding of the trial judge was that no defence

assistant had been provided by the department to the plaintiff. It

is an admitted fact that the services of a defence assistant were in

fact not asked for to defend the charges levelled against the

plaintiff; he had pleaded guilty but Enquiry Officer had

nevertheless examined the witnesses of the department who had

been cross-examined; no prejudice had been suffered by the

defendant. In these circumstances the impugned judgment

holding that the non furnishing of the defence assistant to the

plaintiff had caused prejudice to him is clearly an illegality.

8 The second reason for reversing the finding of the trial was

that the testimony of PW-2 had been believed. Impugned

judgment had noted that PW-2 had informed the department on

17.5.1994 about the criminal case which had been registered

against the plaintiff on 14.5.1994; there was no concealment on

his part. The charge levelled against him was thus not proved;

plaintiff was held entitled to the relief.

9 This is a second appeal. It has been admitted and on

12.8.2009 the following substantial questions law were

formulated:

1. Whether the Appellate Court was right to set aside the order on the ground that petitioner was not given right of defence when he had pleaded guilty?

2. Whether the impugned order could be set aside and the respondent could be granted the relief claimed by him in the suit when he had not challenged order dated 4.7.2007 which was the order of the Appellate Authority?

10 On behalf of the appellant it has been urged that the present

suit has been filed seeking declaration to the effect that order of

his dismissal dated 09.3.1996 be set aside. It is pointed out that

an appeal had been filed against the order of the Enquiry Officer

dated 09.3.1996 which has been dismissed by the DIG on

4.7.1997. Admittedly the order of 04.7.1996 is not subject matter

of the challenge. Even assuming that the suit of the plaintiff was

correctly decreed, the result is that the only order dated

09.3.1996 would be set aside and the subsequent order i.e. the

order of the appellate body dated 04.7.1996 would still be

prevailing. This submission of the learned counsel for the

appellant is borne out from the record. Plaintiff not having

challenged the order of the appellate body dated 4.7.1996 which

had dismissed his appeal impugning the order dated 09.3.1996,

clearly shows that the effect of the decree granted to the plaintiff

by the impugned judgment would serve no purpose. The present

suit had been filed on 20.8.1997; plaintiff not having challenged

the order of the appellate body dated 4.7.1996 the suit

challenging order of dismissal dated 09.3.1996 which had merged

with the order of 04.7.1996 was not maintainable. This answers

the substantial question of law no.2.

11 Learned counsel for the respondent has clearly conceded

that on the first substantial question of law he does not have many

words as it is an admitted case that right for a defence assistant

had never been pressed. It is also on record that the plaintiff had

pleaded guilty to the charges levelled against him. In these

circumstances, the non-furnishing of a defence assistant did not in

any manner prejudice the case of the plaintiff.

12 The testimony of PW-2 was also illegally relied upon by the

appellate court. The replication of the plaintiff shows that he had

named Ram Krishan as his cousin brother who had informed the

department about the registration of the FIR against the plaintiff.

He had however produced Om Prakash into the witness box to

substantiate this averment. Trial judge had rightly noted this

assertion and had rejected the testimony of PW-2. This finding

which had been upset in appeal was an illegal and perverse

appreciation of the evidence.

13 Substantial question of law no.1 is accordingly answered in

favour of the appellant; the trial court in a perverse manner had

set aside the order of the trial judge; defence assistant not having

been asked for and the plaintiff having already pleaded guilty to

the charges levelled against him, he suffered no prejudice on this

count. Result of the aforenoted discussion is that the appeal is

allowed. Suit stands dismissed.

INDERMEET KAUR, J.

MAY 20, 2011 nandan