Sunil Kumar Sharma vs Union Of India & Ors.
2012 Latest Caselaw 4754 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision : August 14, 2012

+                      WP(C) 4935/2012

      SUNIL KUMAR SHARMA                        ...Petitioner
               Represented by: Ms.Rekha Palli, Ms.Punam
                               Singh and Ms.Amrita Prakash,
                               Advocates.

                                versus
      UNION OF INDIA & ORS.                  ...Respondents
                Represented by: Mr.Sunil Kumar, and
                                Mr.Alok Kumar Shukla,
                                Advocates.

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

PRADEEP NANDRAJOG, J. (Oral)

1. Since complete record pertaining to the inquiry held against the petitioner has been filed along with the writ petition, learned counsel for the respondents who appears on advance copy being served states that the matter can be heard for disposal today itself.

2. The charge against the petitioner was that on April 05, 2010 at Janakpuri West Metro Station he abused and manhandled his superior officer SI Rajeshwar Sahu.

3. As per the petitioner he never did so. The version of the petitioner is that he was suffering from a fungal skin infection of the inner thighs and was therefore finding it difficult to perform day duty at the Metro Station (because large number of commuters board and de-board the Metro Trains at the station) and was happy with night duties (because this would be more akin to a sentry duty). For this

reason he had submitted an application through proper channel to the Deputy Commandant requesting that for five consecutive days he be deputed for night shift duty. The application was submitted through proper channel i.e. the superior officer, Insp.O.P.Chaudhary, who had forwarded the same to SI Rajeshwar Sahu with a recommendation that for five consecutive nights the petitioner be allotted night duties. As per the petitioner he performed night duties on the 3rd and the 4th day of April 2010 and when he reported for night duty on the next day i.e. 5th April 2010 and proceeded to sign the duty register in the room of Sub Inspector Rajeshwar Sahu he found that he had been detailed for day duty on the next day i.e. 6th April 2010. He requested SI Rajeshwar Sahu to change his duty to the night shift and pleaded that due to the fungal infection affecting his inner thighs he was unable to walk properly; but to no avail. To show the gravity of his medical problem he desired to show his thighs to SI Rajeshwar Sahu and for this he closed the door of the room and showed his infected area to SI Rajeshwar Sahu, who still did not relent. As per the petitioner he left and performed his duties. No incident of the kind as alleged against him took place.

4. Only two witnesses were examined at the inquiry. The first was SI Rajeshwar Sahu PW-1 who deposed that when the petitioner saw that the petitioner had been detailed for day duty on April 06, 2010 he, in an anger, asked him why this was so. At that point of time Ct.Krishna Kumar Bharti sought permission to go to the toilet and as he left, petitioner caught his collar, abused him and slapped him. He claimed that he reported the incident to Asstt.Comdt.Pushkar Parashar. He deposed that he got scared and thus did not record the

incident in the General Diary of the Metro Control. The next day he reported the incident to the Deputy Commandant as per Ex.PW-1/Ex.P-7.

5. PW-2 Ct.Krishna Kumar Bharti deposed that he was on duty and saw petitioner and SI Rajeshwar Sahu conversing with each other. Petitioner requested him to go outside as petitioner wanted to show the wounds on his thighs to SI Rajeshwar Sahu. He went outside.

6. Now, there is evidence that when SI Rajeshwar Sahu left the Metro Station after completing his duty he had recorded in the General Diary Register: „Everything OK‟.

7. SI Rajeshwar Sahu knows fully well that any untoward incident has to be recorded in the General Duty Register. This is the reason why he has sought to explain his not making an entry in the General Duty Register by saying that he felt intimidated when the petitioner hit him. But he has no explanation as to why he wrote „Everything OK‟ in the General Duty Register when he left after completing duties. We note that the petitioner questioned him:-

"On 05/04/10 at about 2245 hours why had you submitted OK report to the Metro Control whereas you yourself have stated that you were subjected to incident of violence and indecent behaviour."

8. He answered:-

"At that time I had submitted the report that shift present, sweeping completed, but could not report the said incident."

9. Ct.Krishna Kumar Bharti was also on duty. Why did he not take his help? It is not in dispute that the petitioner is aged 48 years and Rajeshwar Sahu is a young man of 25

years. Indeed, if SI Rajeshwar Sahu, as claimed by him got overawed by a 48 year old person, he is unworthy to serve as a Sub Inspector in CISF. Besides, his answer to the question noted herein above in paragraphs 7 and 8 is just a make belief and hence unworthy of any credence.

10. The petitioner denies having abused, manhandled or assaulted SI Rajeshwar Sahu; who asserts to the contrary. It is a case of a word of mouth versus a word of mouth. The Inquiry Officer has not noted so. In a case of word of mouth versus word of mouth, the attendant circumstances contemporaneous to the time of the incident become the only guiding stars. In the instant case no GD entry being made by SI Rajeshwar Sahu and his claim of being intimidated by a 48 year old man as against he being a young man aged 25 years and SI Rajeshwar Sahu not seeking any help from Ct.Krishna Kumar Bharti and lastly SI Rajeshwar Sahu accessing the General Duty Register and recording therein „Everything OK‟, and not mentioning a whisper of the incident are all circumstances which are the guiding stars and regretfully each has been overlooked by the Inquiry Officer, the Disciplinary Authority as also the Appellate Authority. There was a motive for SI Rajeshwar Sahu to falsely implicate the petitioner. It was his ego. In spite of the superior officer having recommended that petitioner be given five consecutive night duties, after three nights SI Rajeshwar Sahu gave a day duty to the petitioner and when the petitioner expressed his displeasure and probably no more, SI Rajeshwar Sahu‟s ego got hurt.

11. It is settled law that a Writ Court would not re- appreciate evidence but can certainly consider whether there is perversity in the inquiry report, and one instance of

perversity would be material circumstances and material evidence being ignored.

12. We note at this stage that vide order dated August 28, 2010 the Disciplinary Authority imposed the penalty of reducing by two stages, for a period of two years the pay of the petitioner with further direction that during this period the petitioner shall not earn increments and on expiry of the period the reduction will have the effect of postponing his future increments. Appeal was rejected vide order dated September 22, 2011. However, the Revisional Authority opined that the penalty was weak. Issuing a show-cause notice dated February 09, 2011 the Revisional Authority levied the penalty of compulsory retirement with pensionary benefits as per order dated September 22, 2011 against which the statutory petition filed before the Central Government was rejected vide order dated May 30, 2012. Regretfully, neither authority considered the circumstances noted by us in paragraph 10 above.

13. Accordingly, all impugned orders are set aside. It is declared that there is no evidence to sustain the charge. The petitioner is acquitted of the charge. The petitioner shall be reinstated in service with all consequential benefits.

14. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE AUGUST 14, 2012 dk