Delhi High Court

Narender Kumar vs Union Of India & Ors. on 10 April, 2012

Author: Anil Kumar

       *      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Decision: 10.04.2012

+                         W.P.(C) No.1629/2012

Narender Kumar                                    ...      Petitioner

                                     versus

Union of India & Ors.                             ...      Respondents

Advocates who appeared in this case:

For the Petitioner        : Mr.O.P.Agarwal
For Respondents           : Mr.Ravinder Agarwal, Central Government
                           Standing Counsel

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

ANIL KUMAR, J.

* CM No.3556/2012

Allowed subject to all just exceptions.

Application is disposed of.

W.P.(C) No.1629/2012

1. The petitioner has sought quashing of penalty of "censure"

awarded by order dated 9th December, 2009 and dismissal of his appeal

by order dated 15th May, 2010 and rejection of his revision petition by

order dated 3rd February, 2011. The petitioner has also sought

directions to the respondents to give the petitioner one more

opportunity to appear in LDCE for the post of Assistant Commandant in

future, as he was deprived of this opportunity when he had applied on

10th November, 2009.

2. The petitioner was issued a charge memorandum dated 14th

November, 2009 imputing that the petitioner on 20th October, 2009 was

posted at Domestic Airport from 0330 hours to 0700 hours, however, he

reached his place of duty at 0405 hours instead of 0330 hours and

thereafter, he remained absent from 0520 hours to 0535 hours from his

frisking duty. He was posted at X Ray machine No.H where he did not

take interest in his duty and intentionally operated X Ray machine

slowly. The other charge imputed against the petitioner was that on 2nd

November, 2009, the petitioner was posted from 0700 hours to 2000

hours on X Ray machine of terminal 2 and during his period of duty he

remained absent without permission from any competent officer from

0759 hours to 0833 hours. The third charge imputed against the

petitioner was that on 3rd November, 2009 he was posted from 2000

hours to 0700 hours at X Bis No.5 in SHA of terminal 2. It transpired

that the petitioner on his own left X Bis No.5 for checking baggages

separately which was checked by Constable A.K.Sharma.

3. The petitioner submitted a reply dated 17th November, 2009

contending, inter-alia, that he was posted at NITC for duty prior to his

posting for duty at domestic Airport. However, no time was prescribed

for going from NITC to Domestic Airport. Whenever the transport was

provided and he was relieved from NITC, he went from NITC and joined

the duty at domestic terminal. He further contended that he did not

close frisking booth and X BIS/frisking was functioning. He contended

that he left for bathroom for 6 minutes after obtaining permission from

Assistant Commandant. Regarding the first charge that he operated the

X Ray machine slowly, the petitioner alleged that functioning of the

machine depends on the type of baggage. He submitted that if any delay

took place it was on account of the factors other than the petitioner

deliberately operating the machine slowly.

4. Regarding the second charge about his posting on 2nd November,

2009, he contended that all force members go to take breakfast/food

after adjusting duty. He admitted that he had gone after adjusting duty

but the time mentioned in the charge was not correct and he had gone

for breakfast from 0807 hours to 0830 hours, as about 20-25 minutes

are spent for breakfast/lunch which can be confirmed from the register

or can be ascertained from other force members.

5. Regarding the third charge, the petitioner alleged that category of

bags of passengers are different and the stamp is affixed on bags by

SOS and stamp is not affixed by guard/screener, nor there is any such

circular to get the bags stamped by guard. He contended that in

absence of clear and specific order, the guard checked bags with

negligence which led to loss of time. The petitioner asserted that he did

the work of operating hand machine and bag checking and also got it

done from the guards for which, instead of charging him he should have

been appreciated.

6. The petitioner also referred to his clean record of 16 years and

that he had got only one chance in the year 2009 of consideration for

promotion to the next post and any type of sentence will deprive him

from this chance.

7. The pleas and contentions raised by the petitioner were

considered and order dated 9th December, 2009 was passed holding

that the reply of the petitioner was not completely satisfactory. It was

held that any misconduct and negligence on the part of the petitioner

could not be ignored on the ground that he had only one opportunity to

be included in AC/LDCE. The Assistant Commandant found that the

charges against the petitioner were made out, however, considering the

earlier service of the petitioner and in order to give an opportunity to

the petitioner to improve himself and taking a lenient view under

Schedule I of Rule 32 of the CISF Manual, 2001, the sentence of

"Parninda" (Censure) was passed against the petitioner. The petitioner

was also communicated by order dated 9th December, 2009 that he

could file an appeal within 30 days from the receipt of the order against

his punishment.

8. Against the order dated 9th December, 2009 the petitioner filed an

appeal before the Commandant, Central Industrial Security Force dated

28th December, 2009. The petitioner reiterated the pleas raised by him

in the reply dated 17th November, 2009 to the chargesheet. Regarding

charge No.3, the petitioner contended that it was concocted as there

was no standard as to how much time is to be taken in clearance of one

baggage, as clearance of the bag depends on the type of bag also. The

petitioner also asserted that the memorandum of charge against him

was on account of conspiracy against him as only he was charged,

whereas all the force members go for breakfast/food daily and the

charge sheet had not been issued against any other member of the force

on this account.

9. The appeal filed by the petitioner was, however, dismissed by the

Appellate Authority by order dated 15th May, 2010. The Appellate

Authority considered the charges framed against the petitioner, his

reply and the order dated 9th December, 2009. The Appellate Authority

held that it was apparent that the petitioner was unable to comply the

instructions given by senior officers from time to time and he committed

violations repeatedly. Considering the repeated violations committed by

the petitioner, the Appellate Authority also held that the punishment of

"Parninda" (Censure) was appropriate. The Appellate Authority

categorically incorporated in the order that the petitioner has not

produced and referred to any such fact which would require any

interference by the Appellate Authority against the order of the

Disciplinary Authority.

10. After the dismissal of the appeal, the petitioner filed an

application dated 15th May, 2010 seeking certain documents. The

petitioner did not disclose the relevancy of the documents demanded by

him, nor disclosed any reasons as to why he had not relied on or

demanded these documents before the Appellate and Disciplinary

Authority. The petitioner also did not disclose as to how he would be

prejudiced, in case the copies of documents demanded by him are not

supplied to him. The details of the documents which were sought by the

petitioner are as under:-

1. Domestic ID X ray rotation register.

2. Standing order ID XBIS Number H

3. CCTV footage dated 20.10.09 time 0520 to 0535.

4. Bathroom (illegible) register

5. Deployment strength to XBIS number H.

6. Standing order NITL XBIS number 6

7. On dated 2.11.2009 GD Extract.

8. Lunch/breakfast system

9. Register/paper for outgoing lunch/breakfast.

10. Office order for leaving breakfast/lunch.

11. NITC XBIS Number 5 standing order.

12. XBIS number 5 on dated 3.11.09 deployment SOS strength

13. Order to Const./Screener Bagage checking.

14. CCTV footage on dated 3.11.09.

15. If have any complaint of pay/staff.

16. On dated 3.11.09 GD Extract.

17. Detail (illegible) of SI/E D.K.Pandey from XBIS number 09205 with GD Extract.

11. The petitioner asserted that since no attention was paid to his

submissions, therefore, the documents sought by him were necessary.

The petitioner, however, did not disclose in his application as to why the

alleged documents were not sought by him earlier in reply to the charge

memo, in his reply dated 17th November, 2009. The petitioner also did

not disclose any reason as to how the documents sought by him were

relevant for the allegations made by him and how he would be

prejudiced in absence of the documents sought by him. In reply to the

application filed by the petitioner, before filing the revision petition it

was communicated to the petitioner that under Rule 37 of the CISF

Manual, 2001 there was no provision to make the documents available

of any type along with the chargesheet which were not relied on or the

basis of charge sheet. It is pertinent to notice that in the memorandum

of charge dated 14th November, 2009 no documents were specifically

referred to or relied by the respondents.

12. Later on, pursuant to the request made by the petitioner, he was,

however, given the copies of NITC X Ray rotation Register; GD extract

dated 2nd November, 2009 and GD extract dated 3rd November, 2009.

The petitioner also sent other applications reiterating the demand for

other documents, however, none of the applications detailed as to why

these documents could not be sought by the petitioner prior to the

order of `censure' passed by the Disciplinary Authority. The petitioner

also did not disclose as to why no grounds were taken by the petitioner

in the appeal filed by him before the Appellate Authority in respect of

the documents which were sought by the petitioner at the time of filing

the revision petition. The petitioner thereafter, filed the revision petition,

however, no new grounds were raised by the petitioner except

reiterating the pleas and contentions raised by the petitioner earlier.

The petitioner, however, contended that non supply of documents to

him was contrary to the fundamental principles of natural justice and

that he has been deprived of his right to defend himself.

13. The revision petition was also dismissed by the Revisional

Authority by order dated 3rd February, 2011 holding that the petitioner

had committed the lapses repeatedly. It was held that he committed

first lapse on 20th October, 2009 when he left the frisking duty

unattended. Despite the lapse committed by him on 20th October, 2009

he committed the same mistake on 2nd November, 2009. His plea that

he had left the X Bis Machine for physical checking of bags on 3rd

November, 2009 on the ground that it could not be left to the constable

was not accepted, holding that the constable also has the requisite

experience and training and a constable understands his responsibility

well. In the circumstances, it was held that not once but repeatedly the

petitioner left his appointed place of duty without any justifiable reason

and in the circumstances the Revisional Authority did not find any

illegality or irrationality in the orders of the Disciplinary Authority or

the Appellate Authority.

14. The Revisional Authority also considered the penalty of `censure'

awarded to the petitioner as proportional and appropriate for the

misconduct on the part of the petitioner. The plea of the petitioner

that he had an unblemished record was also negated, as, in fact, the

petitioner had been warned twice for various other acts of indiscipline

by the Disciplinary and the Appellate Authority. The Revisional

Authority held that the petitioner has not brought out any new points in

the revision petition and has repeated the factual aspects and thus

there was no merit in the revision petition and thus dismissed the

revision petition.

15. The petitioner has challenged the order of the Disciplinary

Authority, Appellate Authority and Revisional Authority in the present

writ petition reiterating the pleas on the facts as had been raised by the

petitioner before the Disciplinary Authority. The petitioner has laid

emphasis that LDCE scheme which was introduced only for the

departmental candidate and not for the open market personnel and that

the penalty of `censure' has restricted his last opportunity as the

petitioner has now become overage. The petitioner also contended that

the penalty of `censure' could not be a bar in granting promotion to the

petitioner, if found fit by the Departmental Promotion Committee. The

petitioner also asserted that the respondents ought to have initiated

action against him under Rule 36 of the CISF Rules, 2001 which was

not done intentionally because no charge would have been proved

against the petitioner in that case. The petitioner also contended that by

penalizing him with the penalty of „censure‟ he has been deliberately

deprived of availing an opportunity of competing in LDCE-2009.

16. This Court has heard the learned counsel for the petitioner and

Mr.Ravinder Agarwal, Central Government Standing Counsel who has

appeared on advance notice. The learned counsel for the respondents

has contended that if the petitioner was aggrieved of not considering his

application for LDCE-2009, then the petitioner ought to have

approached the authorities or this Court in 2009. Regarding the penalty

of `censure', the learned counsel for the respondents contended that the

petitioner has failed to point out any such illegality, irregularity or

perversity in the order of the authorities which will require any

interference by this Court. The petitioner has repeated the factual

aspects and this Court will not re-appreciate the facts and substitute

the decision of the appropriate authorities with the different inferences

if any, arrived at by this Court.

17. This cannot be disputed that for issuing a writ under Article 226

of the Constitution of India, it has always been in the discretion of the

Court to interfere or not depending upon the facts and circumstances of

each case. The Supreme Court in Durga Prashad v. Chief Controller of

Imports and Exports, AIR 1970 SC 769 had held that even where there

is an allegation of breach of certain rights, the grant of relief is

discretionary and such discretion has to be exercised judiciously and

reasonably. It is also no more res integra that the jurisdiction of the

Court for judicial review is limited. The Court in exercise of its

jurisdiction under Article 226 of the Constitution of India does not go

into the correctness and the truth of the charges, nor it can take over

the functions of the disciplinary authority. This Court does not sit in

appeal against the findings of the disciplinary authority and assume the

role of the appellate authority.

18. It is also pertinent that no malafides or perversities have even

been imputed by the petitioner except contending that the other

members of the force also go for the call of nature and for breakfast etc.

but no action has been taken against them. The respondents have

categorically contended that the entries are made in the register, if any,

when member of the force leave for the call of nature and for other

absence. The petitioner gave the explanations which have been

considered by the Disciplinary Authority and the Appellate Authority

and were disbelieved. The petitioner admitted his absence, however,

justified the same on the ground that other members of the force also

do the similar things. This could not be a valid justification in the facts

and circumstances and in law. The allegation of the petitioner is too

vague and cannot be accepted. If this plea of the petitioner has been

rejected by the Disciplinary and Appellate Authority, their orders cannot

be faulted on the grounds raised by the petitioner.

19. The petitioner did not claim the copies of any documents before

the Disciplinary Authority and the Appellate Authority and he claimed

certain documents without disclosing the reasons for the same and

without disclosing as to why he could not sought the copies of the same

before the Disciplinary and Appellate Authority, by filing applications

before the Revisional Authority. Copies of three documents were also

supplied to the petitioner. Even in the revision petition, the petitioner

failed to disclose as to how he has been prejudiced in absence of other

documents copies of which were sought by him and which were not

supplied, as he had not given any reason for not demanding them

before the Disciplinary and the Appellate Authority. The petitioner has

not even alleged properly as to how he had been prejudiced on account

of copies of certain documents not given to him. The petitioner ought to

have established the prejudice as a matter of fact. The prejudice cannot

be based on apprehension or even a reasonable suspicion, nor the

disciplinary proceedings can be vitiated on hyper technical approach.

The punishment awarded to the petitioner cannot be quashed on the

basis of apprehended prejudice. The Supreme Court in para 89 of Alok

Kumar Vs Union of India & ors., (2010) 5 SCC 349 had held as under:-

"89. The well-established canons controlling the field of bias in service jurisprudence can reasonably be extended to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default which relates to statutory violations. It will not be permissible to set aside the departmental enquiries in any of these classes merely on the basis of apprehended prejudice...."

Violations of mandatory statutory rules would tantamount to

prejudice. But where the rule is merely directory, element of de facto

prejudice needs to be pleaded and shown. Where the authorities rely

upon a large number of documents majority of which are furnished and

an opportunity is granted to the delinquent to defend himself except

some of the documents are not furnished, the onus is on the delinquent

the show that non-furnishing of some of the documents had resulted in

de facto prejudice and he has been put to a disadvantage as a result

thereof. Element of prejudice should exist as a matter of fact or there

should be such definite inferences of likelihood of prejudice flowing from

such default which relates to statutory violations. Departmental actions

cannot be set aside on the basis of apprehended prejudice. Prejudice

normally would be a matter of fact and a fact must be pleaded and

shown by cogent documentation to be true. The petitioner has failed on

all counts in this regard. The documents were not demanded before the

Disciplinary Authority, nor any grounds taken in the appeal filed before

the Appellate Authority, nor any such grounds canvassed before the

Appellate Authority. Even before the Revisional Authority it has not

been averred as to how the petitioner got prejudiced on account of non-

supply of the copies of some of the documents demanded by him out of

which, copies of three main documents were given to him. The

respondents had not relied on these documents in their Charge Sheet.

How the petitioner got prejudiced has not been canvassed before the

revisional authority. Consequently, on this ground the punishment of

„censure‟ awarded to the petitioner cannot be vitiated.

20. The petitioner has also relied on his service record. The

respondents have rightly contended that the repeated lapses on the part

of the petitioner could not be condoned, as he was repeatedly given

opportunities and the lapse on the part of the petitioner was not solitary

as he committed the lapse on 20th October, 2009, thereafter on 2nd

November, 2009 and yet again on 3rd November, 2009.

21. The respondents have also pointed out that the plea of the

petitioner that his record is unblemished is also not correct as in other

proceedings against him he had been warned by the disciplinary, as

well as, the appellate authority which fact has not been denied by the

petitioner in the writ petition.

22. The other grounds on which the action of the respondents could

be challenged by the petitioner was by pointing out illegalities,

irrationalities or procedural improprieties. The learned counsel for the

petitioner cannot refute that whether the actions of the respondents fall

within any of the categories has to be established and mere assertion in

this regard is not sufficient. To be "irrational" it has to be held that on

material, the decision of the respondents is so outrageous, as to be in

total defiance of logic or moral standards. The petitioner has not denied

that he was not absent from the duty as has been alleged by the

respondents except contending that this is a normal thing and that the

exact timings as given by the respondents is not correct. Since the

petitioner admitted his absence, it was for him to give plausible and

justifiable reason and in the circumstances, if the respondents have

held that the charges against the petitioner had been established, it

cannot be held that the decision of the respondents is irrational. The

petitioner has been awarded the penalty of `censure‟ only which cannot

be held to be so disproportionate as to be considered as outrageous and

in total defiance of logic or moral standards. The learned counsel for the

petitioner has also not been able to show any patent error or manifest

error in the exercise of power by the respondents. The petitioner‟s

counsel has failed to show any such relevant factor which will make the

decision of the respondents unreasonable or that the respondents have

taken into consideration irrelevant factors. The Supreme Court in

(2006) 5 SCC 88, M.V.Bijlani v. Union of India & Ors had held that the

judicial review is of decision making process and not of reapprecation of

evidence. The Supreme Court in para 25 at page 95 had held as under:-

"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration

any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with....."

23. In the totality of facts and circumstances, it cannot be inferred

that there is no application of mind on the part of the disciplinary

authority and the appellate and revisional authority or that the charges

against the petitioner were vague or that the punishment imposed is

shocking to the conscience of the Court. None of the grounds which

would entail interference by this Court in exercise of its power of review

are made out in the facts and circumstances.

24. For the foregoing reasons and in the totality of facts and

circumstances there is no such illegality, irregularity or perversity

which will require any interference by this Court in exercise of its

jurisdiction against the order of the respondents. The writ petition, in

the facts and circumstances, is without any merit and it is, therefore,