Dilip Kumar vs Uoi & Ors.
2012 Latest Caselaw 5213 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment Reserved on: August 30, 2012
                        Judgment Pronounced on: September 03, 2012

+                        WP(C) 1859/1999

       DILIP KUMAR                               ...Petitioner
                Represented by:      Mr.Santosh Kumar and
                                     Mr.Prashant Kumar, Advocates

                                   versus

       UOI & ORS.                               ...Respondents
                 Represented by:     Mr.Romil Pathak, Advocate

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

PRADEEP NANDRAJOG, J.

1. On January 22, 1997 a charge memo was served upon the petitioner and as per Annexure-I to the memorandum, two charges were listed. Charge No.1 was of remaining absent from duty without permission when deployed at the „C‟ shift on November 10, 1996 at 21:00 hrs. till 05:00 hrs. on November 11, 1996. The second charge was of visiting the family quarter of Ct.Sanjay Kumar at about 19:00 hrs. on November 10, 1996 and under influence of alcohol, joined in the assault by Ct.Sanjay Kumar, having beaten Nk.Devi Singh. As per Annexure-II the statement of imputation pertaining to the two charges was listed as per which Quarter No.A-4/5 was allotted to Ct.Sanjay Kumar and Quarter No.A-4/6 was allotted to Nk.Devi Singh. Under the influence of alcohol the petitioner and Ct.Sanjay Kumar quarrelled, abused and then assaulted Nk.Devi Singh. HC Dvr.Jitender Singh

and L/Nk.Ramesh Chand and Ct.Raghunath Singh rescued Nk.Devi Singh. Soon thereafter petitioner was found fallen on the ground. He was rushed to the hospital where petitioner was admitted under influence of alcohol. As per Annexure-III, the list of documents on which the prosecution wanted to prove the charge were listed and as per Annexure-IV the names of the witnesses proposed to be examined were listed.

2. As pleaded in the writ petition, stand taken by the petitioner was that he was detailed for „C‟ shift duty at 21:00 hrs. and had to work till 05:00 hrs. the next morning, but before he could report for duty, at about 20:00 hrs. as he was passing through the family quarters on the way to the Unit Lines he saw ladies and children on the road making a noise. He learnt that a quarrel was taking place on the upper storey. He went upstairs where Ct.Sanjay Kumar and Nk.Devi Singh had their quarters. He saw the two quarrelling. Their wives were trying to separate them. Petitioner also tried to separate them. In the process, Nk.Devi Singh, who was under the influence of alcohol, pushed the petitioner due to which the petitioner rolled down the stairs and sustained injuries, but in spite thereof he went up once again. Some force personnel arrived and thinking that the petitioner was involved in the quarrel forcibly locked him with Ct.Sanjay Kumar in Sanjay Kumar‟s quarter and this was the reason why he could not report to duty. He stated that after some time as he started coming down from the balcony of the roof he lost his balance and fell down and was removed to R.D.M. hospital.

3. At the inquiry eight witnesses were examined and suffice would it be for us to note that Nk.Devi Singh DW-8, narrated a detailed account of the incident. He stated that it was the festival of Deepawali on the day of the incident and after worshipping Goddess Laxmi he heard the door of his house

being kicked. His wife went out to find out who the person was. Wife of Ct.Sanjay Kumar told that her husband and the petitioner had consumed alcohol and the petitioner had kicked the door of their house. She apologised and said that she would not permit them, and by which we understand her husband and the petitioner, not to repeat the offending act. He i.e. Nk.Devi Singh started taking food. He once again heard the door of his house being kicked and this time he himself opened the door. Petitioner and Ct.Sanjay Kumar were seen by him outside. He questioned as to who kicked the door of his house. Ct.Sanjay Kumar pointed out towards the petitioner. At that the petitioner caught him by his neck and threw him on the floor. His four minor children rushed to save him at which Ct.Sanjay Kumar pounced upon him and the petitioner caught his wife and boxed her. His four minor children aged between 5 years and 12 years cried. HC Dvr.Jitender Singh reached and finding an opportunity his daughter went to summon rescue. L/Nk.Ramesh Chand and Ct.Raghunath Singh came and saved him. He thought that the incident was over. His children went to the roof but immediately yelled to him informing that the petitioner, with a knife in his hand, was trying to reach the roof. He saw the petitioner abusing his family with a knife in his hand and was threatening to wipe out his family. The petitioner was attempting to climb up from the pipe at the rear of the quarters. People gathered. Petitioner jumped from near the balcony. He passed on the information to Assistant Commandant.

4. We note that HC Dvr. Jitender Singh, L/Nk.Ramesh Chand, Ct.Raghunath Singh, who appeared as PW-2, PW-4 and PW-6 have corroborated the testimony of Nk.Devi Singh.

5. ASI Mohammad Noor PW-1, has deposed that when he was sitting in the reception room at about 20:45 hrs. he was informed that there was a quarrel in the family quarters and as he left he was informed that the quarrel had taken place at the quarter of Nk.Devi Singh. He reached there and learnt that the petitioner had fallen from the roof and had been removed to the hospital. Since it was pointed out by learned counsel for the petitioner we may note that only one witness i.e. washerman Suresh has deposed at variance and somewhat in line with the version spoken of by the petitioner by way of his statement in defence.

6. Of the various documents proved at the inquiry we need to note only one. It is a certificate dated November 13, 1996 issued by the doctor concerned at R.D.M. hospital Rajsamand, where the petitioner was admitted and was given treatment in the night of November 10, 1996. Before noting its contents we highlight that even as per the petitioner he was removed to the said hospital. The only point of difference between him and the prosecution is the circumstances which required petitioner to be taken to the hospital.

7. The certificate certifies : "Certified that Mr.Dilip Kumar employee of CISF was brought to the hospital at about 9 PM on 10.11.96. He had Blunt Injury over Lt. side of chest for which stripping was done and (illegible) was taken to rule out Bony injury. He was brought to the hospital in an alcoholic intoxicated state. The breath was smelling of alcohol. He has been declared fit to join his normal duties on 13.11.96........."

8. Suffice would it be to state that the version of the petitioner that before he could join his duty at 9.00 PM i.e. 21:00 hrs., as he was passing by the family quarters at around 8.00 PM he heard the noise and found Nk.Devi Singh and Ct.Sanjay Kumar fighting and as he tried to separate the two he

got pushed and due to which he received the injuries does not explain the circumstance of the petitioner being intoxicated with alcohol. As against that, there is ample testimony in the form of the ocular version deposed to by the witness of the prosecution that the petitioner and Ct.Sanjay Kumar resorted to acts of hooliganism and as regards the petitioner, to the extent he chased the children of Nk.Devi Singh with a knife in his hand threatening to kill them. The irrationality in the actions of the petitioner indicate a man under influence of alcohol.

9. The solitary testimony to the contrary by washerman Suresh is of no help to the petitioner for the reason the testimony of Suresh does not explain the circumstance of the petitioner being drunk.

10. Exonerating petitioner from the first charge, the Inquiry Officer held that evidence has established that the petitioner was drunk by 8.00 PM and when he resorted to hooliganism he sustained injuries when he was trying to climb the drain pipe to reach the terrace of the quarter of Nk.Devi Singh and thus it could not be said that the petitioner did not voluntarily report for duty. But, the Inquiry Officer has held, and in our opinion rightly, that one could conclude by saying that not reporting for duty became the compulsion of the petitioner due to self-induced acts.

11. The petitioner has been held guilty of the second charge.

12. The Disciplinary Authority agreed with the findings returned by the Inquiry Officer and levied the penalty of dismissal from service. Departmental appellate remedies have failed.

13. Learned counsel for the petitioner had vehemently urged that there is no evidence that the petitioner had consumed alcohol and thus Charge No.2 could not be said to be fully proved.

14. The argument overlooks the certificate issued by the doctor concerned at R.D.M. hospital when petitioner was discharged on November 13, 1996.

15. It was urged that the testimony of washerman Suresh PW-7, has not been accorded the due weightage by the Inquiry Officer.

16. Now, Inquiry Officers do not write opinions as Judges do. What we mean to say that they do not analyse the evidence with the same logical reasoning as Judges do. But, as noted by us hereinabove, the supportive testimony of PW-7 does not account for the manner and circumstance under which the petitioner got drunk. His testimony is in sync with what the petitioner claims, but then the petitioner gave no explanation as to under what circumstances and where did he get drunk. He does not explain as to why he got drunk at 8.00 PM when he knew that he had to report for sentry duty at 9.00 PM?

17. It was lastly urged that the penalty imposed on co-accused Ct.Sanjay Kumar is of a mere reduction of pay by two stages. It was urged that for the same incident it would be discriminatory to levy penalty of reduction in pay by two stages on one co-accused and dismissal from service on the other co-accused.

18. We have noted hereinabove the version of the incident deposed to by Nk.Devi Singh. We have noted hereinabove the corroborative testimony of other witnesses; albeit briefly.

19. From the testimony it is brought out that whereas the petitioner and co-accused Ct.Sanjay Kumar participated in the initial ruckus by kicking the door of the quarter of Nk.Devi Singh and Ct.Sanjay Kumar joined the petitioner in the initial assault but thereafter it was the petitioner alone who

acted without any help from Ct.Sanjay Kumar. The offending part of the indictment which is the solitary act of the petitioner is of arming himself with a knife, attempting to climb on to the roof of the quarter of Nk.Devi Singh and while doing so threatening the children of Nk. Devi Singh that he would kill them. Not only quantitatively but even qualitatively the acts of the petitioner are far from demeaning and aggravating vis-à-vis the acts of Ct.Sanjay Kumar.

20. Thus, a lower penalty levied upon Ct.Sanjay Kumar vis-à-vis a stiffer penalty levied upon the petitioner is justified.

21. No other point was urged and thus we dismiss the writ petition but refrain from imposing any costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE SEPTEMBER 03, 2012 rk