Const.Amar Singh vs Union Of India & Ors.
2011 Latest Caselaw 4710 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 21st September, 2011
                  Judgment Pronounced on: 23rd September, 2011

+                       W.P.(C) 936/1999

        CONST.AMAR SINGH                       ....Petitioner
                Through: Mr.S.S.Tiwari, Advocate.

                              versus

        UNION OF INDIA & ORS.            ...Respondents
                  Through: Ms.Bandana Shukla, Advocate for
                           Ms.Archana Gaur, Advocate.
                           Asstt.Comdt.Mohd.Abdus
                           Salam, CISF.

        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. Charge for which inquiry was conducted against the petitioner reads as under:-

"Statement of Article of Charge framed against No.904523362 Constable Amar Singh (under suspension) of CISF Unit HWP (M).

Article of Charge No.1

An act of gross indiscipline, misconduct and disobedience of orders, in that No.904523362

Constable Amar Singh (u/s) of CISF Unit, HWP(M) deployed at Mallaram Camp left the Camp without proper permission and trespassed the family quarter No.A-2-3/3 of Shri Jhan Mohammed, an employee at HWP(M) Colony approximately 12 km away from his Company Camp at about 1125 hrs. on 27.8.95 with mala-fide intentions. Hence the charge.

Article of Charge No.2

An act of gross indiscipline and unbecoming of a member of an Armed Force of the Union, in that No.904523362 Constable Amar Singh (u/s) indulged in unwarranted activities thereby effecting the reputation of the Force amongst the civilians of the colony. Hence the charge."

2. Only 2 witnesses, Insp.P.Baa and Inspector B.Lakra were examined during inquiry.

3. The Inquiry Officer has held that the charges were proved.

4. Furnishing the report of the Inquiry Officer to the petitioner, vide order dated 17.1.1998 the Disciplinary Authority inflicted penalty of reduction of pay to the minimum stage for a period of 3 years with cumulative effect. Vide order dated 23.4.1998 the Appellate Authority whittled down the rigors of the penalty by substituting the penalty to reduction by one stage in the time-scale of pay for a period of two years.

5. Said order is in challenge in the writ petition.

6. It was urged by learned counsel for the petitioner that a valuable right of the petitioner was denied, in that, witnesses requested to be summoned as defence witnesses were not allowed to be summoned. It was secondly urged that

the inquiry was vitiated on account of not examining Jhan Mohammed and SI S.C.Mohanty, L/Nk.Abbulu and Ct.Ramakant Singh. Third contention urged was that it is a case of no evidence and lastly it was urged that at the criminal trial for the offence of having attempted to outrage the modesty of the wife of Jhan Mohammed, the petitioner was acquitted and thus the contrary finding returned at the domestic inquiry was vitiated.

7. Article 1 of the Charge alleges that petitioner left the Mallaram Camp without proper permission and trespassed into the family Quarter No.A-2-3/3 of Jhan Mohammed, an employee of HWP(M) colony which was approximately 12 km from the camp and that petitioner did so with mala-fide intention.

8. Article 2 of the Charge alleges that the petitioner indulged in unwarranted activities thereby affecting the reputation of the Force amongst the civilians of the colony.

9. Inspector P.Baa PW-1 has deposed that on 27.8.1995 petitioner took an out pass to go to Aswapuram Hospital for treatment. He was permitted to leave for only 2 hours i.e. from 10:00 hours to 12:00 hours.

10. Insp.B.Lakra PW-2 deposed that he received information from Ct.Ramakant Singh that some civilians had caught Ct.Amar Singh near A-type Quarters and had detained him. Without loss of time he reached A-type Quarters and found Ct.Amar Singh surrounded by 15-20 persons. SI S.C.Mohanty, L/Nk.Abbulu and Ct.Ramakant Singh were trying to pacify the civilians. He persuaded the civilians to let him

take the custody of Ct.Amar Singh with an assurance that departmental action would be initiated against Ct.Amar Singh.

11. This is the only evidence led.

12. As regards Article 1 of the Charge, it thus has to be held that far from the evidence being against the petitioner of leaving the camp without proper permission, the testimony of PW-1 establishes that the petitioner left the camp with permission. However, it needs to be clarified, since this would be relevant for Article 2 of the Charge that the purpose of visiting outside the Mallaram Camp was the requirement of the petitioner to go to Aswapuram Hospital for treatment and not to loiter all over the town. As regards the second limb of Article 1 of the Charge that the petitioner trespassed into the flat of Jhan Mohammed, it has to be held that there is no evidence to support the said limb of the charge. However, it needs to be highlighted, as the same would be relevant for Article 2 of the Charge, that the petitioner had reached Block „A‟ of HWP(M) Colony.

13. Thus, the Inquiry Officer was completely wrong in opining that Article 1 of the Charge stood established. It also has to be held that the Disciplinary Authority as well as the Appellate Authority did not properly apply themselves with respect to the evidence led and mechanically concurred with the opinion of the Inquiry Officer.

14. Pertaining to Article 2 of the Charge we highlight that the charge is of indulging in unwarranted activities thereby affecting the reputation of the Force.

15. The testimony of PW-1 is proof of the fact that the petitioner sought permission to leave the camp to visit the

hospital and return and not loiter all over the town. The family quarters which were 12 km away from the camp was a place where petitioner was not supposed to be. The testimony of PW-2 establishes that something done by the petitioner had infuriated the civilian population in the area, for the reason, nobody dare catch hold of a Force personnel unless the provocation is grave. It is obvious that the petitioner had indulged in some unwarranted activity which certainly affected the reputation of the Force inasmuch as when civilians catch hold of a Force personnel, the word certainly spreads in the area, for the reason a Force personnel catching a civilian may not make news but the civilians catching a Force personnel would certainly make news. The law of evidence guides us that conduct of persons as also that of an accused at the scene of a crime is relevant evidence. In the decision reported as AIR 1977 SC 1512 State of Haryana vs. Rattan Singh it was held that strict and sophisticated rules of evidence are alien at a domestic inquiry and all material which is logically probative for a prudent person is permissible material to be relied upon. It is prudence which instructs findings at a domestic inquiry and not the strict rules of evidence laid down in the Evidence Act.

16. Thus, we find considerable evidence to sustain Article 2 of the Charge. Though there is no evidence that the petitioner trespassed into the family quarters of Jhan Mohammed in Block-A of HWP(M) Colony, but there is evidence that petitioner had gone to Block-A and did something which earned the wrath of the civilians.

17. With respect to the plea that the petitioner was denied an opportunity to lead defence evidence, suffice would

it be to state that there are no pleadings to this effect in the writ petition. The Inquiry Officer has categorically written at page 3 of the report that the petitioner did not desire to examine defence witness and there is no pleading that said statement of fact recorded by the Inquiry Officer is incorrect. Thus, the argument which relates to a matter of fact not having been pleaded is declined to be gone into by us.

18. As regards not examining Jhan Mohammed, highlighting that testimony of Jhan Mohammed would have been relevant for Article 1 of the Charge, we have already held that there is no evidence to sustain Article 1 of the Charge and thus the issue becomes a non-issue.

19. The plea that SI S.C.Mohanty, L/Nk.Abbulu and Ct.Ramakant Singh were not examined during inquiry and thus the inquiry is vitiated is a plea which ignores the law being that it is the quality and not the quantity of evidence which is relevant with respect to a fact in issue. Insp.B.Lakra has categorically deposed that upon receiving information from Ct.Ramakant Singh of petitioner having been caught by civilians due to something done by the petitioner, when he reached HWP(M) Colony he rescued the petitioner from the civilians upon an assurance that departmental action would be initiated against the petitioner.

20. The plea that it is a case of no evidence obviously has to be rejected in view of the evidence noted by us which was led at the inquiry conducted.

21. That petitioner was acquitted at the criminal trial wherein he was charged for having attempted to outrage the modesty of the wife of Jhan Mohammed, apart from reminding

ourselves that standard of proof at a criminal trial and a domestic inquiry are different, we simply highlight that this issue, if at all relevant, would relate to Article 1 of the Charge and for which we have already held in favour of the petitioner. This issue has no bearing on Article 2 of the Charge for the reason at the criminal trial the charge against the petitioner was not of creating nuisance in a public place.

22. Though no argument was advanced on the quantum of penalty, and conscious of the fact that we have held Article 1 of Charge not to be proved and that the penalty was levied on the premise that both charges were proved, we do not interfere with the penalty for the reason, as noted herein above, at the appellate stage the penalty ultimately imposed was of that of reduction of pay by one stage for a period of 2 years. Even if Article 1 of the Charge is held to be not proved pertaining to Article 2 of the Charge the penalty would be commensurate to the wrong committed.

23. The petition is dismissed.

24. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SUNIL GAUR) JUDGE September 23, 2011 dk