Ex. Hc/Dvr Attar Singh vs Union Of India & Ors.
2012 Latest Caselaw 224 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +    W.P.(C)No.3238/1996

%                              Date of decision: 12th January, 2012

EX. HC/DVR ATTAR SINGH                    ..... Petitioner
              Through : Mr. Atha Sagar Verma, Advocate.


                      versus

UNION OF INDIA & ORS.                   ..... Respondents
               Through : Dr. Ashwani Bhardwaj, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R. MIDHA

J.R. MIDHA, J.

* CM Nos.113-14/2012

1. For the reasons stated in the applications, the delay in

filing the application for restoration is condoned and the writ

petition is restored to its original number.

2. The applications are disposed of.

W.P.(C)No.3238/1996

1. The petitioner has challenged the order dated 22nd

September, 1992 whereby he was removed from service and

the order dated 9th March, 1993 whereby his appeal against

the removal order was dismissed.

2. On 7th October, 1990, a chargesheet was issued to the

petitioner containing the following six charges:-

"ARTICLE OF CHARGE NO.1

That No.841540020 HC/Dvr Attar Singh of CISF Unit HWP Manuguru was absent from Mallaram Camp lines on 25.9.90 (Night) without any permission or any authority. He was absent from the lines upto 2030 hrs it was a serious misconduct on his part.

ARTICLE OF CHARGE NO.2

That No.841540020 HC/Dvr Attar Singh went to the Bandaragudam Market and consumed intoxicated drinks or materials or substances and became unconscious. He was found lying unconscious on the road side in the Bhandragudem Market area. It was noticed by a Civilian and it was reported to the CISF lines. No.8650125 Const. Om Prakash rushed to the spot and collected HC/DVR Attar Singh in unconscious condition and brought to the Mallaram Camp lines on 25.9.90 at about 2030 hrs with the help of Auto Rickshaw. HC/DVR Attar Singh made a serious lapses and showed indiscipline conduct consuming intoxicated materials/liquor in public place. He had destroyed the image of CISF by doing such acts.

ARTICLE OF CHARGE NO.3

That No.841540020 HC/Dvr Attar Singh was taken to the HWP (M) Aswapuram Hospital for medical treatment and to bring him back into senses. The Medical Officer of HWP (M) Hospital examined him and opined that the driver had consumed intoxicated substances which made him unconscious. However his case was referred by him to Civil Hospital, Badrachalam for further investigation and treatment. The individual had made serious lapses by consuming liquor in the public place and becoming unconscious due to consumption of excessive quantity of intoxicated materials. He brought a bad name to the CISF and proved himself unbecoming of a good member of Force.

ARTICLE OF CHARGE NO.4

That No.841540020 HC/Dvr Attar Singh was given General Shift duty at Main Gate wef. 27.09.90. He never reported for duty at Main gate and not given any attendance to the duty officer. On 1.10.90 he was found in a very nasty dress at main gate. He replied in arrogant manner to the DC that he had only one set of dress. Whereas he failed to produce his kit book for verification. He was awarded physical punishment by the DC in orderly room for his lapses. He refused to carry out the order issued by the DC in the orderly room and argued with him in most indisciplined manner. It was a show of serious indiscipline conduct, dereliction of duties and insubordination.

ARTICLE OF CHARGE NO.5

That No.841540020 HC/Dvr Attar Singh was asked to shift from Mallaram Camp to Aswapuram Camp on administrative ground. The individual disobeyed the instructions and refused to shift from Mallaram Camp to Aswapuram Camp. He acted in derogatory manner and showed indiscipline conduct and insubordination to his superiors.

ARTICLE OF CHARGE NO.6

That No.841540020 HC/Dvr Attar Singh was awarded petty punishment under CISF Rules 36. He refused to carry out the order issued by the DC in orderly room and disobeyed the lawful order issued by the DC. The individual has shown serious indiscipline conduct and insubordination which proved himself unbecoming of a good member of the force."

3. A departmental enquiry was conducted in respect of the

aforesaid charges. Vide report dated 18th May, 1991, the

petitioner was held guilty of charges No.1 to 4 and 6. Based

on the enquiry report, the punishment of removal from service

was imposed vide order dated 27th July, 1991.

4. The petitioner filed an appeal against the aforesaid order

which was allowed vide order dated 8th May, 1992 whereby the

petitioner was reinstated and de novo enquiry was directed to

be conducted against the petitioner.

5. During the de novo enquiry, 21 witnesses were examined

by the prosecution. The petitioner did not produce any witness

to prove his case despite sufficient opportunity granted to him.

It was proved in the enquiry that the petitioner was absent

from Mallaram Camp Lines on 25th December, 1990. He was

later found lying in a complete unconscious state on the

roadside of Bandaragudem area by PW-16, Constable Om

Prakash who took him in an auto rickshaw to Coy Lines. He

was taken to the hospital by PW-3, Inspector S.N. Singh where

the Medical Officer found alcoholic smell from his mouth. Ex.P-

5 is the medical certificate issued by the Medical Officer, Dr. M.

Lakshmaiah. In the de novo enquiry, charges No.1 to 3 and 6

were proved whereas charge No.4 was partially proved against

the petitioner and he was awarded punishment of removal

from service vide order dated 22nd September, 1992.

6. The petitioner preferred an appeal against the order of

removal which was rejected by the appellate authority on 9th

March, 1993.

7. The petitioner filed this writ petition after more than

three years on 21st August, 1996. The learned counsel for the

petitioner has urged that the statement of the witnesses ought

not to have been examined afresh in the de novo enquiry. The

learned counsel for the petitioner refers to and relies upon the

judgment of the Supreme Court in the case of State Bank of

Bikaner and Jaipur v. Ajay Kumar Gulati, 1996 (5) SCALE

226. It is further submitted that the petitioner had gone to the

market where he had taken some medicine for headache and

malaria due to which he fell down on the roadside due to

giddiness, became unconscious and after that, he did not know

anything till 26th September, 1990 when he regained

consciousness at Bhadrachalem Hospital.

8. The original record of the enquiry conducted against the

petitioner has been perused. The petitioner had challenged

the first enquiry report on the ground that the enquiry was

conducted by the Deputy Commandant, S.B. Choudhury, who

was also the complainant. The Appellate Authority allowed the

appeal holding that the departmental enquiry proceedings

have not been conducted in accordance with the procedure

laid down in the CISF Rules. The Appellate Authority, however,

directed the disciplinary authority to conduct de novo

proceedings afresh against the petitioner. In terms of the said

order, a new enquiry officer was appointed and the de novo

enquiry was conducted from the stage of examination of the

prosecution witnesses and the petitioner was given reasonable

opportunity to cross-examine the prosecution witnesses. S.B.

Choudhury, Deputy Commandant was cited as a witness in the

de novo enquiry but was not examined as alleged by the

petitioner. In the case of State of Bikaner and Jaipur

(supra) relied upon by the petitioner, the petitioner therein had

not been given proper opportunity to lead the documentary

and oral evidence and the de novo enquiry was ordered to

provide an opportunity to the petitioner therein to lead the

documentary/oral evidence and also consider recalling any

witness of the petitioner for further cross-examination. There

was no objection by the petitioner to the authority or

competence of the enquiry officer. In that view of the matter,

the Court held that an enquiry officer should proceed from the

stage of evidence. The facts of the present case are entirely

different inasmuch as the petitioner had challenged the

competence of the enquiry officer to conduct the enquiry,

being the complainant. In that view of the matter, the

proceedings conducted by the earlier enquiry officer were

vitiated and, therefore, a new enquiry officer had to commence

the proceedings from the stage the infirmity crept in. No

prejudice has been caused to the petitioner who cross-

examined the witnesses and was also granted opportunity to

lead evidence but the petitioner chose not to lead any

evidence to prove his defence. The petitioner also did not

avail the defence assistance despite opportunity granted. The

charge against the petitioner has been proved by sufficient

evidence. There is no violation of principles of natural justice

in the de novo enquiry. The charge against the petitioner is

grave enough and the punishment of removal awarded to the

petitioner cannot be said to be disproportionate.

9. In the totality of facts and circumstances and for the

foregoing reasons, there are no grounds to interfere with the

decision of the respondents as the petitioner has failed to

make out any illegality, irregularity, perversity or any

jurisdictional error to warrant any interference by this Court in

exercise of its jurisdiction under Article 226 of the Constitution

of India. The writ petition is, therefore, dismissed.

ANIL KUMAR, J.

J.R. MIDHA, J JANUARY 12, 2012 aj