Ex.Const. Subhash Chand Verma vs U.O.I. & Ors.
2012 Latest Caselaw 4639 Del

$~R-1
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision: August 6, 2012

+                        W.P.(C) 6202/1998

      EX.CONST. SUBHASH CHAND VERMA         ..... Petitioner
           Represented by: Dr.S.P.Sharma, Advocate.

                  versus

      U.O.I. & ORS.                      ..... Respondents
            Represented by: Dr.Ashwani Bhardwaj, Advocate
                           with Ms.Archana Gaur, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (Oral)

1. Giving up all pleas urged, by way of pleadings in the writ petition, learned counsel for the petitioner submits that the report of the inquiry officer has ignored material evidence and is thus liable to be set aside even under writ jurisdiction; alternatively, learned counsel urges that the findings are perverse.

2. Record of inquiry conducted against the petitioner has been perused by us.

3. As per the charge-sheet, having three charges, it was alleged against the petitioner that on February 07, 1996, while on duty in the second shift from 13:00 hours to 21:00 hours at the weigh-bridge at CISF Unit TSL Naini, petitioner left the duty place at 14:30 hours and reached Mirzapur Road outside the main gate (first charge); he stopped a truck driven by HC Driver Hiraman and assaulted him while abusing (second charge); and lastly, attacked HC Driver Hiraman with

a stick causing injuries thereafter.

4. Denying Article-1 of the charge i.e. of abandoning the duty post i.e. weigh-bridge and walking up to the main gate, petitioner claimed that he was assigned duties at the main gate as well as the weigh-bridge. As per the petitioner, he along with Ct.Ram Sharma and HC Joginder Singh were told to be on duty at the main gate, with the petitioner additionally requiring to move to the weigh-bridge, as and when the need arose.

5. Learned counsel for the parties state that the CISF Unit was to guard a Public Sector Unit named TSL Naini and that the weigh-bridge was at a distance of about 100 metre from the main gate from which vehicles entered the precincts of TSL Naini.

6. At the inquiry, with respect to Charge No.1, admittedly the department produced the photocopy of a duty chart which showed the petitioner being deployed at the weigh-bridge; and this we find as per serial No.8 of the duty chart. Admittedly, the petitioner also produced a photocopy of the duty-chart which showed his deployment, as per serial No.8 at the weigh-bridge as also the main gate.

7. Since photocopies of two conflicting duty-charts were produced, vide order dated December 13, 1997, the Inquiry Officer directed that the original duty chart should be produced by the department before him. This was admittedly not produced.

8. But, the author of the duty chart, SI G.B.Nayar who deposed as PW-3 categorically deposed that the petitioner was deployed on duty at the main gate as also the weigh- bridge.

9. The Inquiry Officer has held the petitioner guilty of Article-1 of the charge because admittedly an altercation between the petitioner and HC Driver Hiraman took place at the main gate.

10. We agree with the submission urged by learned counsel for the petitioner that the Inquiry Officer has ignored the most material evidence i.e. the statement of SI G.B.Nayar, the author of the duty chart, who has categorically deposed that he had assigned duty to the petitioner at two places i.e. the main gate and also at the weigh-bridge. Suffice would it be to state that the prosecution as also the defence were relying upon photocopies of the duty chart, with the only difference being that the one relied upon by the prosecution listed petitioner‟s duty only at the weigh-bridge and the one relied upon by the respondent showed two places i.e. the weigh-bridge and the main gate. The impasse could be broken only if the original was produced, and since the original was with the department, the onus was on the department to produce the original. In the absence of the original being produced, the next best evidence was the deposition of the author of the duty chart, who was examined by the prosecution as PW-3; and who deposed in favour of the chart produced by the respondents.

11. What happened at the spot, learned counsel for the petitioner concedes, has been spoken correctly by SI G.B.Nayar, PW-3, and in respect of which we may only add that the version given by him appears to be the only probably version inasmuch as it highlights the provocation given to the petitioner inducing retaliation against HC Driver Hiraman. We reproduce the statement made by PW-3. It reads as under:-

"Statement of C.I.S.F. No.761190057 S.I./Exe. G.B. Nayar CISF Unit Shar Centre Sri Harikota (PW-3) I C.I.S.F No.761190057 SI/Exe.G.B.Nayar is presently working at CISF unit Shar Centre, Sri Hari Kota. Earlier I was posted at CISF Unit TSL Naini Allahabad till 31/08/1997 as ASI/Exe. My duty was as general duty and Information and Crime. I was deployed as Shift In-charge control room main gate TSL on 07/12/1996 in second shift at 13.00 to 21.00 hours. In that shift total 18 CISF members were deployed at main gate and at the duty post with me. At main gate HC Joginder Singh and Cons.Ram Sharma and Cons.Subhash Chand Verma were deployed. Duty of CISF Subhash Chand Verma was at main gate and also at Weight Bridge in case of arrival of vehicle. Thus CISF Subhash Chand Verma was deployed at main gate. At about 14.30 hours Tata Mini Truck of CISF TSL unit was coming outside the plant towards gate speedily. Cons.Subhash Chand Verma was at vehicle gate, by raising hands he indicated to stop the said vehicle. At 14.30 hours due to change of shift of employees at plant vehicle gate of main gate was open and Cons.Subhash Chand Verma was checking all coming and going vehicles. The vehicle to which CISF Subhash Chand Verma indicated to stop, did not stop and entered at same speed, Cons.Subhash Chand Verma jumped back and save his life. That vehicle was being driven by HC/Drv. Hiraman. When Cons.Subhash Chand moved away from the front of vehicle HC/Drv. Hiraman slowed down the vehicle and said "saale pagal tum gari ke niche dab kar mar jaoge" and went out side gate. I was present there. HC/Drv. Hiraman was saying something while going outside. Cons.Subhash Chand Verma remained there working at main gate. At about 16.00 hours above said driver with same vehicle returned from line with game party to main gate. Cons.Subhash Chand Verma was at main gate because no vehicle was at Weight Bridge. After arrival of game party at

14.30 hours Cons.Subhash Chand Verma asked about driving of vehicle and abuses from Hiraman, then HC/Drv. Hiraman opened the door of vehicle and stepped down and caught the mouth of Subhash Chand Verma and abused him. As soon as HC/Drv. caught Cons.Subhash Chand Verma, I intervened and get them separated. And thus hand of Hiraman which was raised for attacking Cons.Subhash Chand Verma, hit me on my back. Myself and Cons.Ram Sharan both brought Subhash Chand Verma at verandah of office and HC/Drv. was told to go near vehicle. At that time HC/Drv. was abusing Subhash Chand Verma. In the meantime, Company Commander Insp. (Plant) Chakkan Lal who was inside plant for inspection, at 16.30 hours reached at main gate. I informed him about HC/Drv. Hiraman but he refused for G.D. and did not write G.D. report of the incident. I had deployed Cons.Subhash Chand Verma at both post main gate and Weight Bridge on 07/12/1996, which I had entered in daily register at no.86 w/bridge and main gate and have signed it. I produced the photo copy of said daily diary no.86 (PW-3/E-1). Which may be verified from its original. My statement in this regard is that I am deposing voluntarily without any pressure as per my knowledge. I have read my statement and understand in vernacular. It is according to my statement. I certify it to be true."

12. SI G.B.Nayar‟s statement brings out:-

(i) HC Joginder Singh, Ct.Ram Sharma and the petitioner were all deployed at the main gate, with petitioner required to be at the weigh-bridge in case vehicles arrived.

(ii) At about 14:30 hours a Tata Mini Truck of CISF TSL Unit sped towards the gate and the petitioner raised his hands to indicate to the driver to stop the vehicle. The vehicle sped past, into the precincts of the Public Sector Undertaking, and the petitioner had to jump back to save his

life.

(iii) HC Driver Hiraman was the driver of the offending vehicle.

(iv) While driving past, and in a dangerous manner, HC Driver Hiraman rebuked the petitioner: „Saale Pagal Tum Gari ke niche dab kar mar jaoge‟.

(v) The vehicle returned at 16:00 hours and the petitioner managed to stop the vehicle and abusively asked HC Driver Hiraman the reason for his conduct at 14:30 hours.

(vi) HC Driver Hiraman stepped out of the vehicle and caught petitioner from the mouth and abused him. SI G.B.Nayar intervened and in the process received a blow from Hiraman, which blow was directed towards the petitioner.

(vii) Thereafter, petitioner retaliated.

13. Though SI G.B.Nayar has not spoken of the petitioner using a stick, we find other prosecution witnesses having so deposed and indeed learned counsel for the petitioner concedes so.

14. Learned counsel for the respondents concedes that no „General Entry‟ was made in the roznamcha (duty register) when the incident took place, and for the absence of which, we note that as per SI G.B.Nayar he informed the Coy Commander Insp.Chakkan Lal, of what had happened but he did not bother to record the GD entry. But, as per Insp.Chakkan Lal who appeared as PW-1, he had told SI G.B.Nayar to record the GD entry. In any case, there is no contemporaneous recording of the incident.

15. Learned counsel for the respondents, short of conceding, had no answer as to what is the analysis by the Inquiry Officer with respect to the testimony of SI G.B.Nayar,

and for which we may only add that of the two other persons who were at the spot (at the gate) i.e. HC Joginder Singh and Ct.Ram Sharma, the latter appeared as DW-1 and has deposed substantially in sync with what has been stated by SI G.B.Nayar.

16. Thus, with respect to the second charge, the limb thereof that the petitioner left the duty post and went outside the main gate, we find the same not to be established, and for which we find that this limb of the charge is the complete contours of Article-1 of the Charge. But, we find the second limb being proved i.e. the petitioner hitting HC Driver Hiraman as also we find Article-3 of the Charge being proved i.e. petitioner hitting HC Driver Hiraman with a stick.

17. Neither has the Inquiry Officer, nor the Disciplinary Authority, nor the Appellate Authority considered this aspect of the matter i.e. that it was HC Driver Hiraman who gave the provocation by virtually driving over the petitioner at 14:30 hours and on returning back, when the petitioner questioned him (though abusively) to render an explanation for what he did at 14:30 hours, it was HC Driver Hiraman who first assaulted the petitioner; who retaliated.

18. We are surprised that no action was taken against HC Driver Hiraman who is the „prima donna‟ of the opera.

19. A penalty needs to be proportionate to the gravity of the offence. The Inquiry Officer has treated as if the petitioner launched a brutal assault on HC Driver Hiraman. The Inquiry Officer has ignored that the fault was that of HC Driver Hiraman. Unfortunately, all other officers who dealt with the matter of disciplinary action against the petitioner have overlooked as aforesaid.

20. The penalty is manifestly disproportionate to the gravity of the wrong committed by the petitioner and we thus dispose of the writ petition by quashing the penalty order dated March 07, 1997 as also the appellate order dated October 16, 1998 upholding the penalty of dismissal from service imposed upon the petitioner.

21. At this stage we caution learned counsel for the petitioner to be more careful in future, for the reason we find that learned counsel has repeatedly been filing petitions which are replete with typographic errors. The counsel does not even bother to proof-read the petitions and the annexures. We highlight that the penalty order dated March 07, 1997 annexed as Annexure-A to the writ petition has glaring typing errors of the worst kind. The concluding portion of the order in question has been typed:-

"So long the charges No.1, 2, 3, 4 are concerned the documents, and statements of witnesses available in the file none of the charges have been proved against the delinquent. There is nothing in the file which can prove the charges against the delinquent. Therefore I agree with the conclusion drawn by the Enquiry Officer and Exonerate the delinquent from all the charges levied against him."

22. Nothing could be more absurd than this. The counsel needs to be careful.

23. But we find that the petitioner had beaten HC Driver Hiraman, though on a provocation, and thus some penalty, which has to be minor in nature, needs to be imposed upon the petitioner.

24. Directing petitioner to be reinstated in service we permit the Disciplinary Authority to reconsider the matter on the subject of an appropriate penalty, which has to be a minor

penalty, and impose one upon the petitioner. Needful would be done within six weeks from today i.e. the petitioner would be reinstated in service and a minor penalty imposed. The Authority concerned would simultaneously decide the manner in which the period interregnum the petitioner being dismissed from service till reinstatement has to be treated.

25. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE AUGUST 06, 2012 dk