Head Constable Krishan Singh vs Director General/Border ...
2011 Latest Caselaw 5505 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.4323/1999

%                       Date of Decision: 16.11.2011


Head Constable Krishan Singh                           .... Petitioner

                     Through Nemo


                                 Versus


Director General/Border Security Force             .... Respondents
& Anr.

                     Through Mr.Anuj Aggarwal & Mr. Gaurav
                             Khanna, Advocates with Mr. Bhupinder
                             Sharma, BSF



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.       Whether reporters of Local papers             YES
         may be allowed to see the judgment?

2.       To be referred to the reporter or not?        YES
3.       Whether the judgment should be                NO
         reported in the Digest?



ANIL KUMAR, J.

* The petitioner has challenged the order dated 14th August,

1996 holding him guilty of the charge of disgraceful conduct of an

unnatural kind on 22nd January 1996 by hugging Constable Altaf

Ahmad of his company, who was on sentry duty and attempting to

open the fly of the trousers of the said person. The petitioner was

punished with reversion from the rank of Head Constable to that of

Naik with effect from 13th August, 1996.

The petitioner challenged his reversion on the ground that a

proper enquiry was not conducted and that the allegations were

made against him with the sole purpose of destroying his future

promotions on account of vested interests of his seniors, who had a

vindictive attitude towards him. The petitioner alleged that the sole

purpose of imposing the punishment of reversion on the petitioner

to a lower rank was to ruin his career so that he would not get any

promotions in the future, due to the order of reversion being passed

by the summary court-martial. According to the petitioner, the order

of reversion was passed in contravention of the rules and regulations

and in violation of the principles of natural justice. The petitioner

alleged that the enquiry report is also based on conjectures,

surmises and extraneous grounds. According to him, his defense

was completely overlooked and not even considered. The petitioner

also contended that punishment awarded to him was

disproportionate to his alleged misconduct, as he had an

unblemished record and, therefore, he ought not to have been

reverted to a lower rank.

The pleas and contentions of the petitioner were contested by

the respondents contending, inter-alia, that while the petitioner was

posted at Sriganganagar (Rajasthan) as Head Constable in 131

Battalion BSF during the year 1996 he had got involved in a scuffle

on 22nd January, 1996 with Constable Altaf Ahmed of the same unit.

On 23rd January, 1996 a report about the indecent behaviour of the

petitioner with Constable Altaf Ahmed was received from the

Company Commander. On receiving the said report the Company

Commander was directed to submit a detailed report regarding the

concerned matter. On the basis of the statements of the relevant

witnesses it had transpired that while Constable Altaf Ahmed was on

sentry duty and the petitioner was looking after the duty of another

Constable Havaldar Major as he was sick, the other personnel of the

company had heard a hue and cry and, therefore, when they reached

the spot of incident they found the petitioner grappling with another

Constable. It was also divulged that at the time Constable Altaf

Ahmed was shouting that the petitioner had behaved with him

indecently by soliciting him for unnatural act. The petitioner

defended himself by saying that he had scolded the other Constable

as he was not found on place of his duty, which is why he was

suddenly attacked by him.

On conducting the preliminary enquiry it had transpired that

the petitioner was in a state of intoxication at the time of the quarrel.

A one-man court of enquiry presided over by Sh.T.W. Powar, 2IC was

conducted to find out the circumstances under which the quarrel

between the petitioner and the other Constable had occurred. For

conducting the court of enquiry the petitioner and the other

Constable were posted out of 'D' company, where they had been

posted at the time of incident. During the investigation seven

witnesses including the petitioner and the other Constable were

examined and their statements were recorded. The witnesses who

had deposed against the petitioner were read over to the petitioner

and he was given an opportunity to cross examine the witnesses,

which was availed by him. Therefore, the petitioner cross-examined

Constable Altaf Ahmed and other witnesses who had deposed against

him. In accordance with the rules and on the basis of the evidence

recorded, the petitioner was found guilty of intoxication and

solicitation of Constable Altaf Ahmed.

Meanwhile, the petitioner was placed under suspension with

effect from 24th February, 1996. On completion of the recording of

the evidence by the recording officer, the Commandant had noticed

certain shortcomings and, therefore, additional evidence was

recorded on 8th March, 1996. The recording of the evidence was

therefore, completed by the recording officer on 23rd March, 1996.

After completion of recording of the evidence, the suspension of the

petitioner was also found to be unnecessary and, therefore, it was

revoked with effect from 16th April, 1996 and it was proposed that

the petitioner be tried by a Summary Security Force Court since a

prima facie case of disgraceful conduct of unnatural kind was

established against the petitioner.

Since the petitioner was to be tried by the Summary Security

Force Court, the petitioner was advised to nominate one officer as

friend of the accused during the trial and the petitioner was also

asked to submit his list of witnesses if any in his defense. The

petitioner had nominated Sh. Sohan Singh, Deputy Commandant as

his friend during the Trial and the copies of all the relevant

documents pertaining to the trial, were given to the petitioner against

a proper receipt of 5th August, 1996. The petitioner was tried by the

Summary Security Force Court from 8th August, 1996 up to 13th

August, 1996 and was thereafter, awarded the punishment of

reduction of rank from the Head Constable to the rank of Naik.

The respondents also disclosed that after the

recommendations of the Fifth Pay Commission, and in view of the

rationalization of the rank structures in CPMF all the existing Naiks

had been merged with the rank of Head Constable and, therefore, the

rank of the petitioner was also merged with the rank of Head

Constable with effect from 10th October, 1997.

Though the petitioner has alleged that proper enquiry was not

conducted against him however, no details have been alleged in the

writ petition as to how the enquiry conducted against him was not

proper. The petitioner has also not filed a rejoinder to the counter

affidavit filed on behalf of the respondents, refuting the pleas and

contentions raised by the respondents. It has also not been denied

that the petitioner was properly represented by a friend during trial

and that the copies of the relevant documents were given to the

petitioner including the statements of the witnesses who had

deposed against the petitioner during the recording of the evidence,

and who were duly cross-examined by the petitioner. This has also

not been denied that the rank of Naik has been merged with that of

Head Constable pursuant to the recommendations of the Fifth Pay

Commission.

No one had been appearing on behalf of the petitioner,

therefore, the court issued a notice to the petitioner at the address

given in the Memo of Parties pursuant to the order dated 8th August,

2011. The Court Notice had been served and a service report was

duly received stating that the notice was duly served on Head

Constable Krishan Singh on 27th August, 2011, in the presence of

Chowkidar Satish.

No one is still present on behalf of the petitioner despite the

service of notice. The writ petition was taken up for hearing but since

no one was present on behalf of the petitioner, the matter was

passed-over.

Even after pass-over, no one is present on behalf of the

petitioner.

Under the circumstances, this Court is left with no option but

to dismiss the writ petition in default of appearance of the petitioner

or anyone on behalf of the petitioner.

Dismissed in default.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

November 16, 2011 vk