Rakesh Kulhari vs Central Industrial Security ...
2011 Latest Caselaw 4998 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 21st September, 2011
                     Judgment Pronounced on: 12th October, 2011

+                       W.P.(C) 5161/1998

        RAKESH KULHARI                       ....Petitioner
                 Through:     Mr.K.C.Dubey, Advocate

                              versus

        CENTRAL INDUSTRIAL SECURITY
        FORCE                            ...Respondent
                 Through: Mr.Ajay Verma, Advocate and
                          Mr.Anuj Aggarwal, Advocate

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SUNIL GAUR

     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. The petitioner was enrolled as a constable with Central Industrial Security Force in the year 1991 and was detailed at CISF unit B.S.P. Bhilai. Ct.D.K.Jaina was in-charge of the dry canteen and was responsible for selling the food stuff kept there to the force personnel of the unit concerned. A complaint was made to the Commandant of the unit informing that while

receiving ration, the petitioner misbehaved with Ct.D.K.Jaina and assaulted him by pulling his testicles and punching him on the face and chest.

2. Taking cognizance of the complaint received the Commandant caused a preliminary inquiry to be made at which 4 persons; namely, Ct.D.K.Bahera, Ct.D.K.Jaina, HC S.K.Paul and L/Nk. S.K.A.Samad were examined and relevant would it be to note that during preliminary inquiry Ct.D.K.Bahera stated that on 21.4.1996 he saw the petitioner slap and punch Ct.D.K.Jaina on his chest at the dry canteen and he reported the matter to GD S.S.Rajan. Ct.D.K.Jaina stated that he was giving ration to all persons as per their turn when the petitioner asked him to give ration to him first and when he refused, petitioner abused him, caught his neck and slapped him on his face and then punched him on his chest and held/pulled his testicles. He cried in pain and hearing the noise G.D.Rajan and Ct.P.V.Prakash rescued him. Thereafter, GD Rajan made a general diary entry at 11:15 regarding the incident and sent him i.e. Ct.D.K.Jaina to the hospital. HC S.K.Paul stated that L/Nk.S.K.A.Samad informed him about Ct.D.K.Jaina being beaten at the dry canteen. Upon reaching the canteen he saw Ct.Rajan shutting the canteen doors and in his presence a general diary entry was made upon information given by Ct.D.K.Jaina who was later sent to the hospital. L/Nk.S.K.A.Samad stated that at the canteen, petitioner was arguing with Ct.D.K.Jaina about giving items as per seniority

and when Ct.D.K.Jaina asked him i.e. petitioner what items he wanted, petitioner started beating Ct.D.K.Jaina and pulled his testicles.

3. Finding prima facie evidence, the Commandant issued a charge sheet dated 26.4.1996 to the petitioner listing one article of charge, which reads as under:-

"On 21.4.96 at about 1100 hrs. No.914522557 Constable Rakesh Kulhari had punched on the face and chest, caught hold the testicles of Constable D.K.Jena (who was deployed in the unit canteen as salesman) in connection with the quick supply of canteen items, as a result canteen money having with constable Jena scattered on the ground, got swelling on his face and chest pain due to which constable Jena was sent to hospital for treatment. As such his aforesaid conduct shown as gross acts of indiscipline in utter disregard of discipline of the force."

4. The charge was as per annexure 1 to the charge memorandum dated 28.4.1996 and as per annexure 2 the statement of imputation was drawn up. Vide annexure 3 list of documents on basis whereof the charge was proposed to be proved were listed and vide annexure 4 the witnesses through whom the charge was proposed to be proved were listed.

5. Being supplied with the charge memo and its annexures and learning from annexure 3 that statements of witnesses recorded during preliminary inquiry were the relied upon

documents, vide letter dated 3.5.1996 the petitioner requested the Commandant that the same be supplied to him along with the preliminary inquiry report. Vide letter dated 8.5.1996, copies of the statements of witnesses recorded during preliminary inquiry were supplied to the petitioner but preliminary inquiry report was not supplied.

6. Thereafter petitioner replied to the charge and denied the same. He alleged that he was the victim inasmuch as he claimed that Ct.D.K.Jaina had assaulted him. Finding the response unsatisfactory the Commandant detailed Asst.Cmdt.G.S.Tiwari as the inquiry officer before whom the department examined 5 witnesses and the petitioner examined 6 by way of defence.

7. At the inquiry GD S.S.Rajan PW-1 deposed that on 21.4.1996 he was working at the dry canteen when he heard a commotion outside. He sent Ct.Robert to find out what was happening, who on return informed him that a quarrel was taking place outside. He went outside and saw a crowd of 4-5 constables witnessing petitioner and Ct.D.K.Jaina quarrelling. He separated the two and asked the crowd to disperse. Ct.D.K.Jaina left on his cycle and HC Paul told him that having pain in the chest, Ct.D.K.Jaina had gone to the hospital. He telephonically informed the Asstt.Comdt. (Canteen) about the incident and of Ct.D.K.Jaina having gone to the hospital. On the directions of the Asstt.Comdt. to make a General Diary entry about the incident he got recorded the entry Ex.PW-1/1

at the instance of HC Paul i.e. the General Diary writer made the entry as told by HC Paul.

8. On being cross-examined by the petitioner he stated that he was informed about the details of the incident by HC Paul. On being questioned by the Inquiry Officer he stated that he saw petitioner and Ct.D.K.Jaina talking angrily with each other regarding goods and that HC Paul told him that petitioner asked Ct.D.K.Jaina to deliver goods as per seniority and when Ct.D.K.Jaina took some time to deliver the goods demanded by the petitioner, the petitioner caught Ct.D.K.Jaina by his collar and beat him.

9. We note that in the General Diary entry No.1342, Ex.PW- 1/1, it stands recorded that GD S.S.Rajan, the canteen manager reported about the fight between the petitioner and Ct.D.K.Jaina regarding distribution of ration and petitioner having assaulted Ct.D.K.Jaina who fell on the floor.

10. We would highlight one aspect with respect to the testimony of GD S.S.Rajan and this is a problematic area which we find virtually in every second disciplinary inquiry conducted by CISF and BSF. The witnesses depose so incoherently and the Inquiry Officers do not ask any clarificatory question and thus one is left wondering as to what the witness actually means to say. As in the instant case, GD S.S.Rajan categorically deposed in examination-in-chief that while working in the dry canteen when he heard commotion he sent Ct.Robert to find out what was happening, who on return told

him that petitioner and Ct.D.K.Jaina were quarrelling. He went out and separated them. It is obvious that he has deposed that the two were not having a verbal duel as the word quarrelling means a verbal duel. The fact that the two had to be separated as deposed to by him would obviously mean that the fight was a physical fight. He further deposed that as Ct.D.K.Jaina left, he met HC Paul who told him that Ct.D.K.Jaina had gone to the hospital as he was having pain. Thus, as per the examination-in-chief the only testimony based on information would be HC Paul informing GD S.S.Rajan that Ct.D.K.Jaina had left for the hospital and was in pain. That the two were in a physical combat is an eye-witness account. Yet in spite thereof, during cross examination he stated that he only saw the two talking angrily and about the physical fight HC Paul had given him the information in question. Surely, some clarificatory question ought to have been asked with respect to the apparent contradiction as noted herein above. We shall be dealing with the legal effect thereof at the appropriate stage, but would certainly wish that the Inquiry Officers appointed by CISF and CRPF should be alive to the job they are performing. Further, the Inquiry Officer ought to have questioned the witness with respect to it being recorded in Ex.PW-1/1 that it was GD S.S.Rajan, the canteen manager who had reported the fight. The apparent conflict between what he deposed i.e. that at his instance HC Paul got recorded Ex.PW-1/1 and the person

at whose instance it was recorded as mentioned in Ex.PW-1/1 required a clarification.

11. HC S.K.Paul PW-2, deposed that on 21.4.1996 he left Ct.D.K.Jaina in charge of the dry canteen and went to the wet canteen. At about 10:45 Hours L/Nk.S.K.A.Samad came to him and told him that a fight had ensued in the dry canteen. He rushed to the canteen and saw some cash lying scattered on the floor and GD S.S.Rajan closing doors of the canteen. He helped GD S.S.Rajan seal the canteen and thereafter GD S.S.Rajan told him that Assistant Commandant (Canteen) has directed him to get the incident reported in the General Diary. That he had not seen any fight and so he told GD S.S.Rajan to do the needful. GD S.S.Rajan then told Ct.D.K.Jaina, who was complaining of pain in his chest, to go to the hospital. That statement Ex.PW-2/1 recorded during preliminary inquiry was correct.

12. On being questioned by the enquiry officer he stated that he had not seen any fight and he did not know as to who had fought.

13. L/Nk.S.K.A.Samad PW-3 deposed that he was at the dry canteen on 21.4.1996 to purchase ration where he saw petitioner arguing with Ct.D.K.Jaina. Petitioner asked Ct.D.K.Jaina whether goods are given by seniority to which Ct.D.K.Jaina replied by asking petitioner what goods he wanted but petitioner slapped Ct.D.K.Jaina and caught him from his collar and both entered into a fist fight. He tried to separate the

two but petitioner caught Ct.D.K.Jaina's testicles and pulled them.

14. On being cross-examined he clarified that petitioner was asking Ct.D.K.Jaina to give goods as per turn. That the fight lasted for 2-3 minutes and that he went to call HC S.K.Paul when the fight started again and by the time he returned the fight had ended.

15. Ct.D.K.Bahera PW-4, deposed that on 21.4.1996 he came to take ration from dry canteen but on seeing some altercation brewing between Ct.D.K.Jaina and other force persons, he left the canteen to return later and when he returned the canteen was closed.

16. On being cross-examined by the petitioner about the difference in his statement made during preliminary enquiry and his deposition, he stated that at 17:00 hours on 21.4.1996 he was called at the Coy Head Quarters and was told to sign on a paper to testify about the incident but that he was not aware of what was written on the paper as it was in Hindi and he cannot read Hindi.

17. Ct.D.K.Jaina PW-5 deposed that on 21.4.1996 he was distributing ration at the dry canteen as he was left in charge of the canteen by HC S.K.Paul. That the petitioner came to take items but he did not have any change and so he i.e. PW-5 requested him to arrange for change and in the meantime he attended to other officers waiting in the line who had change with them. Upon this the petitioner told him to give goods as

per seniority to which he i.e. Ct.D.K.Jaina replied that goods are not given on seniority basis and asked him i.e. the petitioner what goods he wanted. The petitioner retorted that he i.e. Ct.D.K.Jaina was acting pricey and abused him and caught him by his collar and punched him on his chest. As a result of which a heated argument ensued between himself and the petitioner. They were separated by Ct.Robert. Because of the fight some pulses and cash scattered on the floor of the canteen.

18. On being cross-examined by the petitioner he stated that the petitioner did not pull his testicles during the fight. On being questioned by the inquiry officer he stated that PW-5 Ex.1 was the medical prescription for the treatment he took and in respect thereof we highlight that it is the original OPD card evidencing Brufen tablet and Voveron gel prescribed to the petitioner and that the tablet Brufen is a pain reliever to be consumed orally and Voveron gel is also a pain relieving ointment.

19. The first defence witness Ct.Virender Paul DW-1 deposed that on 21.4.1996 at about 10:15 he went to the dry canteen to take ration where the petitioner and 3 other persons were already standing in the queue. Ct.D.K.Jaina was chatting in a native language with 3 persons, one of whom was a civilian to whom Ct.D.K.Jaina was giving goods. Petitioner told Ct.D.K.Jaina to give ration as per turn and that since petitioner came there before the 3 persons he should get ration before them. Ct.D.K.Jaina got angry, pushed the petitioner and asked

him to get out of the canteen. Ct.D.K.Jaina abused the petitioner and started beating him. The petitioner cried in pain upon which some officers present in the canteen intervened and separated the two. The petitioner was bleeding from the scratches near his eyes and ears and was holding his chest and crying in pain. GD S.S.Rajan and HC S.K.Paul came to the canteen and sealed the doors. Petitioner told GD S.S.Rajan about the incident. HC Paul took Ct.D.K.Jaina on one side and after a few words told him to go to the hospital and tell the doctor that there is pain in his chest and get the medical.

20. Ct.G.L.Sansi DW-2 and Ct.Veerbhan Singh DW-3 deposed in sync with Ct.Virender Paul DW-1.

21. Ct.S.S.Rathore DW-4 deposed that he was at the library when he heard a commotion from the side of the canteen and on reaching the canteen he saw petitioner standing there with his shirt buttons broken and blood oozing from below his eye and ear from the scratches thereon.

22. Ct.D.P.Singh DW-5 deposed that Ct.D.K.Jaina was chatting with a few officers in native language and gave them goods without their turn. He left thereafter and so did not witness any fight.

23. Ct.S.K.Yadav DW-6 deposed din sync with Ct.Virender Paul DW-1.

24. The petitioner was examined by Inquiry Officer where he stated that he had not assaulted Ct.D.K.Jaina rather he was assaulted by Ct.D.K.Jaina and that the officers of the canteen

had conspired to falsely implicate him. He further requested to submit a written statement by 14.9.1996.

25. In his written statement he reiterated that it was Ct.D.K.Jaina who had assaulted him and brought out discrepancies in the testimonies of the prosecution witnesses and said that the staff of the canteen had conspired to falsely implicate him.

26. The Inquiry Officer submitted a report opining that the charge stood established. Supplying the report of the Inquiry Officer to the petitioner and considering the response dated 18.10.1996 and agreeing with the report of the Inquiry Officer the Disciplinary Authority i.e. the Commandant of the Unit imposed the penalty of removal from service vide order dated 3.12.1996 against which appeal filed was rejected vide order dated 24.4.1997 and revision filed by the petitioner came to be rejected vide order dated 11.11.1997.

27. Instant petition lays a challenge to the penalty imposed upon the petitioner of being removed from service.

28. We now proceed to note the contentions urged, and would be simultaneously dealing with the same.

29. First contention urged was that the petitioner was not supplied a copy of the preliminary enquiry report despite having requested for the same and since the inquiry officer relied upon said report, non-supply of the report caused serious prejudice to petitioner's defence.

30. The contention of the petitioner is incorrect for the reason the Inquiry Officer has nowhere relied upon the preliminary inquiry report. The Inquiry Officer has referred to statements of the witnesses recorded during preliminary inquiry and suffice would it be to note that said statements were given to the petitioner and with reference thereto he had cross- examined the witnesses at the inquiry.

31. It was next urged that despite request the petitioner was not supplied copy of the charter of duties of the constables posted at the canteen on the day of the incident which caused a serious prejudice to the defence.

32. It is settled law that only relevant documents have to be supplied to the defence and thus the petitioner had to justify the relevance of the charter of duties of the constables posted at the canteen. The charter could either assist the petitioner in identifying other possible eye-witnesses or to prove that those who claim to be eye-witnesses and deposed against the petitioner were not eye-witnesses. In either case the charter of duties of constables posted at the canteen would be irrelevant inasmuch as the witnesses of the prosecution and even the defence had stated that they were present in the canteen to buy rations and thus it is not that only those who were on duty at the canteen would alone be the witnesses. As regards who could be the possible eye-witnesses, since the petitioner has admitted being in the canteen when the incident took place, he

knew the persons who were present, and indeed has examined 4 in defence.

33. Lastly it was urged that the report of the Inquiry Officer is biased inasmuch as the defence witnesses have been totally ignored; contradictions in the testimony of the witnesses of the prosecution have been ignored; vital documentary evidence favourable to the petitioner has not even been discussed. It was urged that the Commandant, the Appellate Authority as also the Revisional Authority have acted mechanically by not applying themselves to the contentions urged by the petitioner in response to the report of the Inquiry Officer, the appeal and the revision respectively.

34. It is settled law that exercising writ jurisdiction, the Court can look into issues of bias; whether material evidence has been ignored; whether the discussion of the evidence is rationale; whether there is perversity in the report.

35. Thus, conscious of our limited powers under writ jurisdiction, we explore the inquiry report to see as to how the Inquiry Officer has dealt with the evidence.

36. The prosecution case is based on the testimonies of 2 eye-witnesses, 2 res gestae witnesses, 1 interested witness being the victim himself and documentary evidence in that the General Diary Entry and OPD bill in the name of Ct.D.K.Jaina.

37. The General Diary Entry No.1342 Ex.PW-1/1 would be a highly incriminating evidence, being the contemporary recorded documentary evidence, if its purity remained intact. It

records that the petitioner misbehaved and assaulted Ct.D.K.Jaina on 21.4.1996 at the dry canteen and that said information was recorded at the instance of the Canteen Manager GD S.S.Rajan.

38. On being examined at the departmental inquiry, GD S.S.Rajan deposed that he only saw the petitioner and Ct.D.K.Jaina quarrel verbally outside the canteen and that the information noted in the General Diary was recorded at the instance of HC Paul who told him that petitioner beat Ct.D.K.Jaina. HC Paul, examined as PW-2, denied having made the general diary entry and deposed that the General Diary Entry was got recorded by GD S.S.Rajan who was ordered to so do by the Asstt.Comdt. He categorically deposed that he had not seen any fight nor knew names of the participants. The contradictory statements of GD S.S.Rajan and HC Paul casts a doubt on the veracity of the General Diary entry and indicates a possible mala fide in recording the same.

39. The said controversy finds no mention in the inquiry report. The Inquiry Officer blindly relied upon the deposition of both witnesses without so much as noting the stark discrepancies in their testimonies.

40. Stated eye-witness Ct.D.K.Bahera PW-4 deposed to have only seen Ct.D.K.Jaina having quarrel with some officers. He resiled from his statement recorded in preliminary enquiry which was put to him in cross-examination wherein he categorically stated that he was not aware of the statement

made by him during preliminary enquiry since he was made to sign on papers where something in Hindi was written which he did not understand since he does not know how to read and write Hindi. Said discrepancy has been noted in the inquiry report but the Inquiry Officer has trivialized the issue by opining, without giving any reasons, that the witness had told the truth during preliminary inquiry and had lied before him.

41. Statements made at the preliminary enquiry are akin to statements recorded by the inquiry officer mentions this controversy in his report by noting that the testimony of Ct.D.K.Bahera was not in consonance with his statement recorded at the preliminary enquiry which in his opinion i.e. opinion of the Inquiry Officer shows that the witness lied at the departmental inquiry and thus the Inquiry Officer relied upon the statement recorded at the preliminary enquiry.

42. Statements made during preliminary inquiry can be used to contradict or corroborate testimony by witnesses during inquiry. Where a witness gives an explanation for a hiatus between his previous statement and what he deposes at the inquiry, it is the duty of the inquiry officer to weigh the same. We do not find the Inquiry Officer having done so.

43. We highlight that when the defence is of false implication and mala fide of senior officers, deposition of Ct.D.K.Bahera is a vital piece of evidence inasmuch as it points fingers at the fairness of the manner in which the preliminary enquiry was

conducted and indicates, towards a possible mischief being played.

44. Thus testimony of Ct.D.K.Bahera recorded at the departmental inquiry is trustworthy and from which it emerges that a quarrel had taken place on 21.4.1996 at the canteen involving Ct.D.K.Jaina and other force personnel. L/Nk.S.K.A.Samad is the other eye-witness to the incident who stated of having seen the petitioner catch and slap Ct.D.K.Jaina and pull his testicles. But this testimony is in conflict with the testimony of Ct.D.K.Jaina, the alleged victim of the assault, who categorically deposed that the petitioner had not pulled his testicles during the fight.

45. This discrepancy has also not been discussed by the Inquiry Officer who proceeds to hold that one limb of the charge, being petitioner pulling testicles of Ct.D.K.Jaina, as proved on the basis of the testimony of L/Nk.S.K.A.Samad.

46. Thus what remains of the prosecution case is GD S.S.Rajan's testimony that there was a verbal quarrel between Ct.D.K.Jaina and the petitioner on 21.4.1996; HC Paul's testimony that he got news of a fight at the canteen on 21.4.1996 and saw cash scattered on the floor; Ct.D.K.Bahera's testimony that he saw Ct.D.K.Jaina quarreling with a few force personnel; L/Nk.S.K.A.Samad's testimony that the petitioner slapped Ct.D.K.Jaina and held his collar and testimony of the victim, Ct.D.K.Jaina that the petitioner assaulted him.

47. On the other hand the defence brought 4 eye-witnesses namely, Ct.Virender Paul, Ct.G.L.Sansi, Ct.Veerbhan Singh and Ct.S.K.Yadav who corroborated each other inasmuch as they deposed that the petitioner was assaulted by Ct.D.K.Jaina and had received several injuries; Ct.S.S.Rathore who deposed that he saw petitioner standing outside the canteen with his shirt buttons broken and blood oozing from below his eye and ear from the scratches thereon.

48. The Inquiry Officer discarded testimonies of defence witnesses on the sole ground of they being contradictory to the charge levied upon the petitioner. A vague reasoning has been given by the Inquiry Officer in the last para of the analysis section in the report. Said para reads as under:-

"The defence witnesses from No.1 to 6 produced by charge Rakesh Kulhari have said that constable D.K.Jaina beat constable Rakesh Kulhari. As per letter issued from the office of the Commandant, bearing ref. No.V-15014/Disc./Estt.3/Major-19/96/336 dated 26th April, 1996, it is proposed to investigate the charges levelled against the charges, but in that regard the statements given by defence witnesses No.1 to 6, do not verify the above incident."

49. The reasoning is perverse. The defence has been rejected on the reasoning that the defence evidence does not verify the incident. What does the Inquiry Officer mean by what he has written, and as extracted by us herein above, has left everybody wondering. But it is apparent that since the

defence deposed contrary to the version of the prosecution is the sole reason for disbelieving the defence. The perversity in the report is apparent.

50. The deposition of the defence witnesses cannot be discarded on ground of being contrary to the charge as the defence witnesses very much deposed about the same incident for which the charge was framed.

51. Thus, the Inquiry Officer has wrongly ignored the testimonies of defence witnesses relevant for the purpose of determining the matter and thus the finding of the Inquiry Officer is flawed and incorrect.

52. The record of the Inquiry Officer shows that medical documents recording petitioner being treated at BSP Hospital on 21.4.1996 and due to chest pain being administered medicine till 27.4.1996 was filed by the petitioner along with his written statement of defence. This documentary evidence has not even been noted, far less considered by the Inquiry Officer.

53. It was the duty of the Inquiry Officer to have discussed the injuries on the person of the petitioner.

54. Indeed, the Inquiry Officer has ignored relevant evidence; he has not fairly discussed the prosecution evidence; he has not noted the discrepancies in the prosecution evidence. He has not weighed the evidence in the context of the defence that officers at the canteen connived to falsely implicate the petitioner. He has not discussed the General Duty entry

pertaining to the incident being shrouded in mystery as nobody owned up the authorship thereof.

55. What does the evidence led lead us to?

56. The evidence shows that a quarrel took place between the petitioner and Ct.D.K.Jaina. The origin of the quarrel remains unknown. It is a case of a mutual fight and we see no reason why Ct.D.K.Jaina should have been treated as an angel and the petitioner the devil. If we look at the medical record pertaining to Ct.D.K.Jaina and the petitioner, we find the petitioner having received more blows vis-a-vis Ct.D.K.Jaina and if we factor in the defence evidence it would show that Ct.D.K.Jaina had the greater aggressive role.

57. Thus, we hold in favour of the petitioner that the charge as laid is not proved. The evidence shows unruly behaviour, both by the petitioner and Ct.D.K.Jaina and would simultaneously highlight that probably more aggravating role was that of Ct.D.K.Jaina. Highlighting that the petitioner has suffered enough trauma for the last 15 years, we bring the curtains down by quashing the penalty imposed upon the petitioner; we quash the appellate and the revisional order and direct that petitioner be reinstated in service with all consequential benefits except full wages for the reason we award half wages to be paid to the petitioner from the date he was removed from service till today and our reason for declining full back wages is that we have found petitioner to be somewhat blameworthy, but not at the magnitude at which the

charge alleged against him. The petitioner would be reinstated in service forthwith.

58. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SUNIL GAUR) JUDGE OCTOBER 12, 2011 dk