Mohd.Sadiq vs Union Of India & Ors.
2011 Latest Caselaw 4763 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Decision: 26th September, 2011

+                       W.P.(C) 1012/1999

        MOHD. SADIQ                    ..... Petitioner
                 Through:     Ms.Anusuya Salwan, Advocate

                              versus

        UNION OF INDIA & ORS.         .....Respondents
                  Through: Mr.Kunal Kahol, 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. Heard learned counsel for the parties.

2. Record of inquiry perused.

3. It may be noted that when the writ petition was filed, petitioner's appeal (Annexure P-4) against the order dated 18.8.1999 dismissing him from service was still pending. Inordinate delay in deciding the appeal made the petitioner rush to this court, inasmuch as 2 other co-accused were visited with a minor penalty. Though reduced, but they were earning a salary. Petitioner was left without a penny.

4. During the pendency of the writ petition the appeal has been dismissed vide order dated 'Nil' November 1999.

Petitioner has not amended the writ petition to challenge the order in appeal.

5. But, since so many years have passed by, and since the order in appeal has been filed along with the counter affidavit, we would consider its effect.

6. Petitioner, a Head Constable with CRPF, along with another Constable Ram Singh and HC Satbir Singh faced a joint inquiry.

7. 2 Articles of Charge were framed against them. The first was of having left the campus where their battalion was stationed without authority/permission of the Competent Authority. The second was of having indulged in immoral trafficking at 16:00 hrs. on 24.5.1998 for which they were arrested in a police case. Qua petitioner, it was highlighted in the charge that he remained in custody up to 5.6.1998.

8. Under cover of the memo serving Articles of Charge, the 3 usual Annexures, being the Statement of Imputations, List of Documents through which the charges were proposed to be proved and List of Witnesses were supplied.

9. We would highlight that in the list of relied upon documents, neither was the FIR registered by the police nor was the medical examination report of the petitioner listed as relied upon documents.

10. Record of Inquiry shows that at no stage during inquiry said 2 documents were permitted to be brought on record. Record shows that photocopy of the FIR and photocopy of a stated medical examination pertaining to the petitioner is to be found; but as unproved documents.

11. Learned counsel for the respondent concedes that no witness either proved, much less tendered, the said 2

documents. Counsel concedes that they never formed part of the charge-sheet. They were not listed documents in Annexure-3 to the memorandum under cover of which the charge sheet was served. They were never filed before the Inquiry Officer. No order or proceeding records the said 2 documents were taken on record by the Inquiry Officer.

12. No eye witness other than witness No.5 Akila Bi has been examined. Sunita, witness No.6 was not examined.

13. PW-1 to PW-4 are officers of CRPF who have deposed with respect to information being received of an FIR being registered at PS Govind Pura in Bhopal that at a police raid conducted in a basti, 3 CRPF jawans were apprehended. Their testimony also brings out that the petitioner and the other co- delinquent never took permission to leave the camp and their absence was detected at the roll call conducted at night.

14. It appears that from the basti in question, ladies of the evening were operating. It is obvious that neither PW-1 nor PW-2 nor PW-3 nor PW-4 could depose of the actual events. They simply deposed of steps taken by them after information was received from the police station.

15. Akila Bi, a woman living in the basti, deposed that on the day in question i.e. 24.5.1998, a police raid took place in the basti. 3 persons and a woman were taken to the police station Govind Pura. She stated that she does not know whether petitioner was arrested or not.

16. As regards witness No.6 Sunita, she could not be examined as she was not found at the address available.

17. Learned counsel for the petitioner concedes that the testimony of PW-1 to PW-4 would prove that along with 2 co- delinquents the petitioner unauthorizedly went outside the

camp area at 16:00 hrs. and thus Charge No.1 was proved.

18. As regards Charge No.2, learned counsel concedes that the evidence would show that the petitioner and co- delinquents did something or were found somewhere which necessitated them being brought to the police station. But, counsel urges that there is no evidence that the petitioner made merry with a prostitute.

19. Picking on the report of the Inquiry Officer, learned counsel urges, rightly in our opinion, that the Inquiry Officer could not have relied upon any medical report qua the petitioner or the FIR in question which was registered upon the Rukka sent by the police after conducting the raid at site. Both documents have not been proved. Both documents have not even been tendered in evidence. None is listed as a relied upon document.

20. If proved, the medical report would show that when the petitioner was taken to a doctor for medical examination, semen stain was noted by the doctor on the underwear of the petitioner. But, the document is useless inasmuch as far from being proved during inquiry, it was not even tendered before the Inquiry Officer. It appears that the Inquiry officer procured the same as also the FIR and relied upon the 2 documents at the back of the petitioner.

21. Thus, it has to be held that second limb of Charge No.2 has not been established against the petitioner, and thus the finding returned by the Inquiry Officer in favour of the co- delinquents qua whom only a limb of Charge No.2 has been held established, is the only indictment of the petitioner.

22. This would require petitioner to be visited with the same penalty as the other 2.

23. We find that the penalty imposed on HC Satbir Singh is his reversion to a lower post for a period of 2 years with cumulative effect and period of suspension not entitling him to any wages save and except subsistence allowance. Penalty levied on Ct. Ram Singh is to undergo force custody for 28 days and forfeiture of pay and allowance for period and that period of suspension would not entitle him to any salary except suspension allowance. Penalty imposed upon the petitioner is dismissal from service with forfeiture of medals and decorations which has been upheld by the Appellate Authority.

24. Learned counsel for the respondent urges that the petitioner had committed a serious misdemeanour, in that, a force personnel should not visit a prostitute and thus urges that liberty be granted to the department to take corrective action by re-nominating an Inquiry Officer before whom the medical examination report pertaining to the petitioner and the FIR would be filed and the witnesses would be summoned to prove the same.

25. We do not permit the department to do so and for which we would highlight that in the appeal the petitioner specifically took grounds before the Appellate Authority that the Inquiry Officer could not have looked into documents procured at his back. We are pained to note that not only in this case but in quite a few others, we find the Appellate Authority is not applying themselves. When it is brought to the notice of the Appellate Authority that the Inquiry Officer has committed a procedural wrong, we expect the Appellate Authority to take corrective action. We note that the appellate order was passed in November 1999. Had the Appellate

Authority acted judiciously honest, it ought to have accepted the wrong done by the Inquiry Officer; and over looked by the Disciplinary Authority. It being proximate in point of time, corrective action would have required Inquiry Officer's report to be set aside. Inquiry could have continued from the stage of department filing before the Inquiry Officer the 2 documents in question. Today, after 12 years it is too late in the day to permit corrective action to be taken for the reason the petitioner has suffered the pains of a protracted litigation.

26. Thus, we hold that the penalty levied upon the petitioner is vitiated on account of the Inquiry Officer's report being vitiated. Removing the tainted evidence, which we regretfully have to remove, we hold that the offence committed by the petitioner would be at par with the co- delinquents and even he would be required to be visited with a penalty commensurate to the one which those 2 suffered.

27. HC Satibir Singh could be reverted in rank for the reason he was employed as a Constable and had earned a promotion. Petitioner cannot be reverted from his rank because he holds the lowest rank.

28. Accordingly, quashing the order dated 18.8.1998 as also the appellate order dated 'Nil' November 1999, we levy the penalty of stoppage of 6 increments for 3 years with cumulative effect upon the petitioner. Period of suspension would not entitle petitioner to any wages other than the subsistence allowance. Our order would require petitioner to be reinstated in service and we deny back wages to the petitioner from the date his services were terminated till he would be reinstated and our reason for denying back wages is that a lower penalty is being imposed due to technical errors

committed during inquiry and not that the petitioner is being exonerated on merits. The lower penalty levied is to bring parity in the penalty levied upon the petitioner and co- delinquent. Since back wages are denied, the penalty would be notional qua actual payment but to be factored for other purposes.

29. Petitioner would be reinstated within a period of 6 weeks from today. No back wages would be paid. The said period would not be reckoned in service for any benefit save and except would be treated as service rendered for pensionery benefits. For purposes of qualifying service, to earn promotions or for purposes of increments said period would not be taken into account.

30. No costs.

31. Dasti.

(PRADEEP NANDRAJOG) JUDGE

(SUNIL GAUR) JUDGE SEPTEMBER 26, 2011 rk