Delhi High Court

Mr.L.Barik vs Union Of India & Anr. on 4 January, 2012

Author: Anil Kumar

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                          WP(C) No.6084/1998


%                       Date of Decision: 04.01.2012


Mr.L.Barik                                              .... Petitioner
                     Through None.


                               Versus

Union of India & Anr.                               .... Respondents


                     Through Mr.Abhimanyu Kumar, Advocate for
                             Mr.Sachin Dutta, Advocate.



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


ANIL KUMAR, J.

1. The petitioner has challenged his order of dismissal dated 20th

September, 1996 which was also confirmed by the Appellate

Authority by dismissing his appeal by order dated 6th November,

1997. The petitioner has further sought the quashing of the charges

and the Enquiry Report dated 9th August, 1996 rendered by the

Assistant Commandant. He has also sought his reinstatement and

the benefits of service including the salary during the period of his

alleged illegal termination from service.

2. The relevant brief facts to comprehend the dispute between the

parties are that the petitioner was employed as a constable with the

Central Industrial Security Force and was posted, at the time of the

incident, on 27th May, 1996 at the Bandi outpost, under the Rajwari

Company of CISF Unit HEP, Uri (Jammu & Kashmir).

3. On the said date the petitioner was asked to come to the

Orderly room of the Area Assistant Commandant, Sh. Ratan Singh

for enquiring about the activities of the petitioner when he was

posted at the Gingle Post CISF Unit HEP, Uri (Jammu & Kashmir).

The petitioner appeared in the Orderly room of the Assistant

Commandant with a concealed tape recorder inside his uniform

pants‟ pocket with the intention of recording the proceedings ensuing

in the Orderly room. On realizing that the petitioner had been

carrying a tape recorder which he had concealed in his uniform, he

was asked to remove the same and place it on the table by the

Assistant Commandant. However, the petitioner refused to do so,

and rather he took his loaded SLR rifle and pointed the same

towards the Assistant Commandant and threatened to kill him.

Meanwhile the Head Constable Bahadur Singh, CHM and Constable

Prem Kumar intervened and managed to get hold of the petitioner

and his service rifle and prevent any harm that could have resulted

at the time. On account of this incident, a charge memo under Rule

34 of the CISF Rules, 1969 dated 31st May, 1996 was issued by

Commandant CISF Unit, HEP, Uri against the petitioner proposing to

hold an enquiry.

4. The charges leveled against the petitioner were of black mailing

a senior officer; attempting to assault the senior officer; using

unparliamentary language; using his rifle to attempting to kill

SI/Ex.Ranvir Singh and others when they tried to take back the rifle

from him; entering into conspiracy with constable Md.Yakub Sharif

and the previous misconducts of the petitioner which revealed that

he had become a habitual offender.

5. The petitioner submitted a reply dated 8th June, 1996 denying

the charges levelled against him. Consequent to denial of the charges

made against the petitioner, Sh. HR. Gupta, Assistant Commandant,

was appointed as the Enquiry Officer to conduct a departmental

enquiry as per Rule 34 of the CISF Rules, 1969 by order dated 12th

June, 1996. The petitioner by his application dated 13th July, 1996

had named 9 witnesses as the defence witnesses besides seeking the

recording of the statement of all the personnel of „A‟ company, Gingle

Post; all the personnel of „A‟ company, Bandi post and all persons

who were present on the date of the incident of 27th May, 1996 by

means of a tape recorder.

6. However, despite ample opportunity being given to the

petitioner to attend the enquiry and the notices served upon the

petitioner, he did not appear before the Enquiry Officer during the

course of the enquiry. In the circumstances, the Enquiry Officer

proceeded with the enquiry and examined the witnesses who were

named by the petitioner as the defence witnesses. The petitioner‟s

request for recording the enquiry proceedings was denied since in

any case the statements of the witnesses were being recorded in

writing. During the enquiry proceedings, six prosecution witnesses

and seven Court witnesses were examined.

7. The Enquiry Officer submitted his report dated 9th August,

1996 holding that the charges of black mailing the senior; using un-

parliamentary language; entering into conspiracy with Constable

Md.Yakub Sharif and the previous misconducts were fully proved

and the charges of assaulting the senior officer and pointing his rifle

to kill SI/Exe. Ranvir Singh and others when they tried to take back

the rifle from the petitioner were partly proved. Regarding the charge

of previous misconducts it was noticed that the petitioner had been

punished twice during his service of 11 years as he was awarded

punishment of censure by order dated 2nd March, 1991 and he was

also awarded the punishment of pay reduction by one stage from

`960/- to `940/- for a period of one year without cumulative effect

by order dated 4th May, 1992.

8. The report of the Enquiry Officer was communicated to the

petitioner by letter dated 12th August, 1996 by the Commandant,

CISF, Unit HEP, Uri, for affording the petitioner an opportunity to

represent against it. The petitioner was given adequate time,

however, he did not submit any reply, consequent to which the

Appointing Authority, the Commandant, CISF issued the

punishment order dated 20th September, 1996, dismissing the

petitioner from the service.

9. Aggrieved by the order dated 20th September, 1996 the

petitioner preferred an appeal to the DIF, North Zone, New Delhi.

However, after considering the pleas and contentions of the

petitioner, the Appellate Authority dismissed the appeal by order

dated 6th November, 1997.

10. The petitioner has challenged the order of his dismissal inter-

alia on the grounds that he was not informed that as per Rule 34

Clause 5 he was entitled to present his case with the assistance of

any other member of the force and, therefore, he was denied an

opportunity to defend his case properly. The petitioner also

contended that though he had communicated the names of nine

persons who were present on the date of incident on 27th May, 1996

to be examined, however, the Enquiry officer only examined 6 out of

them while the remaining persons were not examined by the

respondents. Allegation of bias against the Enquiry Officer has also

been made on the ground that he conducted himself as a motivated

person since the very initiation of the enquiry and was not impartial

and that therefore he was unfit for holding a quasi judicial enquiry.

The proceedings conducted by him were not as per the provisions of

the Public Servants (Inquiries) Act, 1850 and Rule 34 of CISF Rules,

1969. The petitioner has also challenged the enquiry proceedings on

the ground that the Enquiry Officer Mr. H.R.Gupta like Mr. Ratan

Singh, PW-1 was an Assistant Commandant and though he was

incharge of the „B‟ company whereas Mr. Ratan Singh was incharge

of the „A‟ company, however, both belonged to same unit i.e. HEP,

Uri. Therefore it is contended that since the Assistant Commandant

of „A‟ company was involved, therefore, the Assistant Commandant of

„B‟ unit should not have been appointed as the Enquiry Officer.

11. The disciplinary proceedings against the petitioner has also

been challenged on the ground that the evidence of the defence

witnesses had not been considered and that the evidence of PW-1,

PW-3 and PW-5 was unreasonably relied upon since they were the

ones who were directly involved in the case, as the allegation against

the petitioner was that he had assaulted them during the Orderly

room proceedings, therefore, their testimonies should not have been

relied upon. The petitioner has also pointed out certain

inconsistencies in the statement of PW-5 and other witnesses. The

petitioner denied that he took the rifle while going to Orderly room

and also denied that he had kept his rifle in the verandah outside the

Orderly room. Regarding the use of derogatory language against the

senior officer, the petitioner contended that the statements of PWs 1,

3 and 5 in this regard cannot be believed. The petitioner has

challenged the findings of the Article of Charges 4 & 5 as well.

Regarding Article of Charge 6 imputing that the petitioner is a

habitual offender on account of his previous misconducts, it is

contended that the same could not have been relied upon since the

previous misconducts referred to had already been punished.

12. Regarding the aspect of replying to the Enquiry Report, the

petitioner contended that he could not have replied against the

findings of the Enquiry Officer within 15 days as the time given was

too short and thus it is contended that the Disciplinary Authority

has erred in holding that some of the charges against the petitioner

has been proved fully and that the other charges were proved partly.

13. No one is present on behalf of the petitioner today. No one had

been present on behalf of the petitioner even on 30th November, 2011

when the matter was taken up for hearing, however, no adverse

order had been passed against the petitioner on 30th November, 2011

in the interest of justice. The matter has remained in the category of

"Regular Matters" since then. No one has again appeared on behalf of

petitioner.

14. The learned counsel for the respondents has also contended

that the writ petition against the order of dismissal seeking judicial

review is not an appeal from the decision of dismissal but a review of

the manner in which the decision has been made. According to him

the power of judicial review is meant to ensure that the individual

has received fair treatment and not to ensure that the conclusion

which the authority reached is necessarily correct in the eyes of the

Court. The learned counsel has relied on B.C.Chaturvedi v. Union of

India & Ors, (1995) 6 SCC 749 wherein the Supreme Court at page

759 has held as under:-

12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

15. The learned counsel has also relied on, Kharak Singh v. Union

of India & Ors, MANU/DE/4172/2009 in which case the charges of

indiscipline were levelled against the charged officer for reporting late

for briefing and not wearing the bullet proof jacket and assaulting

and chasing his superior officer with a rifle, which acts were held to

be the acts of severe and gross misbehaviour and therefore the

penalty of reduction of pay to the minimum in the time scale for a

period of two years was imposed by the Disciplinary Authority. The

Appellate Authority, however, held that the penalty imposed was

shockingly low and after issuing notice for enhancement of penalty to

dismissal from service, the charged officer was dismissed from the

service which was thereafter also upheld by the Court.