Satish Kumar vs Union Of India And Ors.
2013 Latest Caselaw 1569 Del

$~10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+      W.P. 2300/2000

                                                 Decided on : 8th April, 2013.

       SATISH KUMAR                                          ..... Petitioner
                Through              Mr. Mohinder Madan & Ms. Rashmi B.
                                     Singh, Advocate with petitioner in person.

                            versus

       UNION OF INDIA & ORS                     ..... Respondents

Through Ms. Archana Gaur, Advocate for UOI.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

S. RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioner seeks a direction to set aside the order dated 5.10.1998 issued by the Commandant and a subsequent order dated 14.05.1999 issued by the Deputy Inspector General (DIG) of the Central Industrial Security Force (CISF) which led to his dismissal from the services of the Force.

2. The brief facts of the case are that the petitioner was selected, and subsequently, enrolled with the Force sometime in February, 1991. Originally he was posted at ONGC Nazira in Assam. Subsequently, he was posted to the CISF unit at Pipri (U.P.). While so in relation to an incident which occurred on the night of 3.2.1998, the CISF, conducted a preliminary enquiry regarding his role and on the basis of the report furnished to it and

other materials, issued a chargesheet proposing to hold a disciplinary enquiry.

3. The chargesheet issued against the petitioner on 27.04.1998, alleged that

"Constable Satish Kumar Force No. 912331100 formerly CISF Unit RHPP, Pipri had slapped his superior officer Head Constable G.D. Lal Chand in Unit Barrack at about 20-30 hours on 3.2.1998 and he threw his bed outside and attempt was made to put the bed on fire, which shows his gross indiscipline, misconduct and misbehaviour due to being a member of disciplined force".

4. In the Departmental proceedings, the petitioner entered the plea of not guilty. The CISF relied on the testimony of 9 witnesses and on completion of the enquiry, report dated 9.9.1998 was made to the competent authority. The competent authority i.e. the Commandant by an order dated 5.10.1998 dismissed the petitioner. The petitioner appealed claiming to be aggrieved by the order of dismissal. The Appellate Authority i.e. the DIG dismissed the appeal. Learned counsel argued that the respondents could not have dismissed the petitioner for what, by all accounts, amounted to a trivial incident. It was urged that the petitioner was responsible for grinding condiments (Masala) and since he had a grinder, he wished to use it but could not do so because there was no plug point near his bed. Consequently, after grinding the condiments, he spread it on a newspaper on the bed of Head Constable Lal Chand. When Head Constable Lal Chand noticed this and objected to it, the petitioner removed the ground masala and the matter ended there; however, the said Head Constable, Lal Chand, levelled baseless allegations of his being slapped by him and that the petitioner had threatened to set the bed on fire.

5. Learned counsel argued that the testimonies of the different witnesses, highlighted significant discrepancies. It was urged that Head Constable R.S. Singh did not mention about any altercation at all and on the other hand, mentioned having heard a "Dhum" followed by exchange of hot words. The other witnesses, on the other hand, mentioned about the altercation, slapping etc. Only two witnesses mentioned that the petitioner had threatened to put the mattress on fire. The deposition of Constable D.D. Pal, even showed that senior officers i.e. Sub-Inspector S.K. Parchar and Sub-Inspector Akash Dubey were present. They, however, omitted to depose or make any statement in the proceedings which clearly pointed out to the complicity of the authorities in somehow implicating the petitioner in a false case.

6. Learned counsel argued that even if the facts taken together are held to be established, the extreme penalty of dismissal from service was not warranted. Counsel relied upon a Division Bench ruling of this Court in Krishan Pal vs. Union of India in CWP No. 6918/2009 decided on 9.3.2011 to say that in Armed Forces such as CISF, a certain element of rough talking takes place, and the court has to be alive to the ground realities. Counsel urged that in the present case, the petitioner had been victimised in a trivial incident just in order to have him dismissed.

7. This court has carefully considered the materials on record and submissions. During the course of hearing, counsel had initially argued that the preliminary investigation report had not been made available to the petitioner which has serious infirmity to the proceedings. This argument is held to be unsubstantial. The preliminary enquiry did not lead to any adverse order. On the other hand, it was only a fact gathering process which

culminated in the issuance of a chargesheet which was then proceeded with. The enquiry report has extracted, in extenso, the depositions and statements recorded of each witness. Head Constable R.S. Singh apparently was asleep when the incident took place, he, therefore, mentioned about having been woken up by the "Dhum" like sound. He went on to state that the petitioner had threatened to put Head Constable Lal Chand's bed on fire and that the bed had been thrown out of the room. Another witness Dasmi Ram, mentioned about the entire incident, i.e. grinding of the condiments by the petitioner, leading to the exchange of hot words between him and Head Constable Lal Chand, followed by the petitioner's slapping Head Constable Lal Chand and his attempt to put the bed on fire. Dasmi Ram also mentioned at the end of his deposition that the petitioner threw the bed at him (the witness). The Head Constable C.P. Singh corroborated the version of Dasmi Ram stating that the petitioner had kept the ground Masala on bed of Head Constable Lal Chand, he also corroborated the previous witnesses statements by clearly deposing that the petitioner slapped Head Constable Lal Chand, and threw the bed at Dasmi Ram. Constable Inderpal likewise corroborated the statement of Dasmi Ram and Head Constable C.P. Singh in entirety. Constable D.D. Pal deposed on the same lines as other three witnesses. He apparently also mentioned that others were present i.e. Sub- Inspector S.K. Parchar and Sub-Inspector Akash Dubey.

8. As to the findings of the enquiry officer, which were accepted in totality by the Disciplinary Authority, the court finds that the depositions of these witnesses were consistent to what the petitioner had been charged i.e. slapping Head Constable Lal Chand and throwing the bed. Although not all witnesses mentioned about the petitioner's attempt to put the bed on fire, the Court notices that two of them distinctly supported this allegation; one of

them even mentioned that the match stick had to be forcibly removed from the hands of the petitioner.

9. This Court is of the opinion that the findings of the facts mentioned and held to be found in the Enquiry Report affirmed and adopted by the Disciplinary Authority, and ultimately made the basis of the penalty order impugned in this case, cannot be said to be based on no evidence. The court's jurisdiction under Article 226 of the Constitution in reappreciating the materials on record in such matters is of extremely limited nature. The Court could not second guess the findings of a fact finding authority or domestic Tribunal; if it is satisfied that sufficient materials exist on record that render the conclusion reached possible, there can be occasion for exercising its power of judicial review; and it would not interfere with the order. The only exception is where the Court is satisfied that the order impugned before it is not based on any material at all or the findings are so unreasonable, or perverse or shocking that no reasonable man would arrive at them having regard to the material on the record. In this case, the petitioner's explanation during the enquiry proceedings was that the condiments had been removed from the mattress of Head Constable Lal Chand after that his bed was cleaned, and that, "some persons have wilfully and deliberately acted with intentions to implicate me. This is my statement." As is evident, the petitioner's defence was entirely vague. If it was his case, as was suggested during the course of hearing, that others were present but refused to support the prosecution, there is no indication that the petitioner made any attempt to have them summoned for participating as witnesses in the enquiry proceedings. The petitioner has not produced any records to show the manner in which he cross-examined these witnesses.

10. In the light of the materials on record, this Court has no hesitation in holding that the order of the Disciplinary Authority and the Appellate Authority holding the petitioner guilty of the charges levelled against him were based on materials on record which were both adequate and sufficient to conclude that he was guilty. As far as the penalty is concerned, the Court notices that Head Constable Lal Chand was his superior in the Force. Having regard to these factors and the nature of the employment or rank that the petitioner held, i.e. as a member of the Armed Forces of the Union, the Court is of the opinion that the penalty of dismissal cannot be characterised as shockingly disproportionate - the only standard which can persuade a writ court to interfere with the orders of penalty.

11. In view of the above findings, the Court is of the opinion that the petition lacks any merit and is accordingly dismissed.

S. RAVINDRA BHAT, J

SUDERSHAN KUMAR MISRA, J APRIL 08, 2013 rd