Balwan Singh vs Union Of India And Ors.
2013 Latest Caselaw 3601 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                          W.P.(C) No.523/2012


%                                     Date of decision: 14th August, 2013


      BALWAN SINGH                                               ..... Petitioner
                                    Through:   Ms.Avni Singh, Advocate

                           versus

      UNION OF INDIA AND ORS.                                    ..... Respondents

                        Through:               Mr.Asish Nischal, Advocate

      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J (Oral)

1. Petitioner has assailed the order dated 19th October, 2008 passed by the

Commandant, 136 Battalion whereby he accepted the report dated 19th August,

2008 of the Enquiry Officer who found the petitioner guilty of two charges for

which disciplinary proceedings were conducted against the petitioner. As a result

the petitioner was dismissed from service by the same order

The petitioner has also impugned order dated 26th March, 2009 rejecting his

appeal and the order dated 23rd March, 2010 passed by the Revisional authority

rejecting his revision petition.

2. The facts giving rise to the present petition are briefly noted hereafter, the

petitioner was recruited as a Constable /GD in the Central Reserve Police Force

(CRPF) on 12th March, 2008. It appears that he was subjected to a disciplinary

enquiry conducted pursuant to a chargesheet dated 12th March, 2008 on the

following charges:

Charge - I "That the above referred Force No.901112622 Constable/GD Balwan Singh (136 Battalion), being a member of the Force (constable) has violated the rule as provided under Section 11 (1) of the Central Reserve Police Force Act, 1949 and accordingly committed an offence of indiscipline and ignorance of duty, under which the above referred person obtained photocopies of some pages of Quarter Guard Register of main time table without permission of any competent officer, which is against the good character and discipline of Force."

Charge - II "That the above referred Force No.901112622 Constable/GD Balwan Singh (136 Battalion) being a member of the Force (constable) has violated the rule provided under Section 11 (1) of the Central Reserve Police Force Act, 1949 and accordingly committed an offence of indiscipline and bad conduct. In which the above referred person illegally obtained photocopies of some pages of Quarter Guard Register of main time table without permission of any competent officer and during the enquiry he gave false statement and told that the same has been received through higher officer and accordingly he misguided the office. Therefore, on the basis of the above referred situation being a member of the Force, this person has committed an offence of indiscipline."

3. The petitioner has complained that the disciplinary proceedings which were

conducted against him were held in violation of principles of natural justice

inasmuch as the petitioner being in the rank of only a constable, was ignorant about

the procedure relating to enquiries. The petitioner has complained that his request

by a letter dated 11th April, 2008 for a defence assistant with not less than five

years working experience was completely ignored by the enquiry officer. Instead a

letter dated 3rd June, 2008 was issued by the enquiry officer informing to the

petitioner that he was required to opt for a defence assistant of his own rank. In

response to this letter, the petitioner had nominated five officers as his choice for

appointment of a defence assistant by a letter dated 5th June, 2008. However, the

request of the petitioner was ignored by the respondents who by a letter dated 6 th

June, 2008 again stated that the petitioner should choose a defence assistant of his

own rank. It is urged by Ms Avni Singh, learned counsel for the petitioner that the

insistence by the respondents upon the petitioner to appoint a defence assistant of

his own rank tantamounts to denial of opportunity to have defence assistant of his

choice. It is contended that a person in the same rank as of the petitioner would

have been as ignorant of the applicable rules and procedure as the petitioner. Such

defence assistant would also be in awe of the authority of the respondents and the

enquiry officer as the petitioner.

4. So far as the enquiry is concerned, it is urged by Ms.Avni Singh, learned

counsel for the petitioner, that the respondents examined a total of ten witnesses in

support of the charges. It is contended that despite the statements of ten persons,

there is not a whisper of evidence to support the charges against the petitioner.

5. Learned counsel for the petitioner has urged that it was the case of the

petitioner that the documents which were subject matter of the charges were

actually supplied to him in previous enquiry proceedings which had been

conducted by Shri Shahnawaz Khan as enquiry officer. It is contended that Shri

Khan was a material witness in the case. It is pointed out that the witnesses who

were examined by the respondents only established existence of the documents and

not the contents which only Mr.Shahnawaz Khan could have done.

6. The petitioner submits that in view of the above material facts, the

recommendation of the enquiry officer by the report dated 19 th August, 2008 to the

effect that the petitioner was guilty of charges; the impugned orders dated 19 th

October, 2008 of the Disciplinary Authority accepting the report; the orders dated

26th March, 2009 of the Appellate Authority and 23 rd March, 2010 of the

Revisional Authority and the order dated 24th June, 2011 passed by the Director

General finding the petitioner guilty of the charges and sustaining the punishment

of dismissal from service are in violation of principles of natural justice as well as

well settled principles of law inasmuch as there was no evidence at all to support

the charges levelled against the petitioner.

7. We have also heard learned counsel for the respondents on the above

submissions and perused the original record which has been produced before us.

We may now examine the first objection raised by the learned counsel for the

petitioner to the effect that there was no evidence in support of the charges.

8. In the counter affidavit, the respondents have referred to two prior

departmental inquiries against the petitioner. So far as the report in the first

inquiry is concerned, the same had been kept in abeyance as per orders of the High

Court of Jharkhand dated 2nd-3rd April, 2007.

9. A second departmental inquiry was conducted against the petitioner for

alleged commission of offence under Section 11(1) of the CRPF Act, 1949. The

report of the inquiry officer, finding the petitioner guilty of the charge, was

accepted by the disciplinary authority who passed an order dated 15 th May, 2006

awarding the punishment of "compulsory retirement from service" (page 158).

10. The petitioner‟s appeal was rejected vide an order dated 26 th March, 2009

with the finding that the same was devoid of merit. The petitioner‟s review

petition was accepted by the Inspector General of Police, North-East Sector, CRPF

and by an order dated 2nd May, 2007, the petitioner was directed to be reinstated

into service. The punishment of the petitioner was modified from compulsory

retirement into punishment of stoppage of increment for a period of three years

with cumulative effect.

11. The charges on which the disciplinary proceedings were commenced on

third charge as set out hereinabove, refer to the "same documents". A perusal of

the petitioner‟s appeal to the Director General of the CISF shows that in para 7, the

petitioner has stated as follows:-

"7. Inspector General of Police, Shillong (Meghalaya) has given clarification in its order dated 01/05/2007 at page 5 para 3 that at the time of production of the documents (Photo copies); the commandant had enquired about these photocopies. The applicant had submitted these photo copies on 04/05/2006 in his defence. Constable Yogesh Sharma received total 21 documents on 04/05/2006 at 17:00 hours on the objection of applicant and accordingly he put his signature. Even the present investigating officer Shri Awadhesh Kumar has proved the charges after taking these photo copies from witness No.8(1). Serial numbers of these photo copies are 82, 83 and 84 in departmental enquiry. There is signature of Deputy Commandant Shri H.L. Ojha over these photo copies. Applicant has produced these photo copies during the period of 21/06/2005 to 30/06/2005 which is under the signature of Deputy Commandant Shri H.L. Ojha before the earlier enquiring officer Second Commandant Officer Shri Shahnawaj on 28/08/2008 in his defence. There is signature of both the officers over these photo copies. The Commandant had not asked even a single word about these documents at the time of submission on 04/05/2006. Rejecting the objection of Applicant, punishment of compulsory retirement was awarded on 15/05/2006. That punishment was cancelled by the Inspector General of Police, Shilong (Meghalaya) on 01/05/2007 and he reinstated the applicant in service."

12. The petitioner has complained that the third disciplinary proceedings were

initiated as the order dated 1st May, 2007 of reinstatement of the petitioner was not

palatable to the authorities even though that they were without merit.

13. Our attention has been drawn to the testimony of seven witnesses i.e. PW 1

Hawaldar/GD Krishan Kumar; PW 2 Hawaldar/GD Akhtar Ali; PW 3

Hawaldar/GD Om Prakash; PW 4 Hawaldar/GD Kuldeep Singth; PW 5

Hawaldar/GD Zakir Hussain; PW 6 Hawaldar/GD Devendra Singh & PW 7

Ct./GD Haripal Singh who do not give an iota of evidence against the petitioner.

It is evident from the above that the petitioner was subjected to disciplinary

proceedings on a completely vague charge without even specifying the details of

the documents which were alleged to have been illegally obtained without

permission of the competent authority. There is no evidence that the signatures on

the photocopies did not belong to the afore-noticed inquiry officer. It is an

admitted position that there are signatures of the CRPF officials on the

photocopies.

14. In view the above, it would appear that the petitioner had been given

possession of the extract of the guard register in the previous enquiry and therefore

he cannot be charged with commission of offence for illegally having obtained

photocopies of the said extracts. The documents were given during the course of

the disciplinary proceedings when they were relied upon by the respondents. The

same therefore cannot be the subject matter of the disciplinary proceedings

resulting in imposition of the serious punishment of removal from service. In view

of the above facts, there is merit in the petitioner‟s contention that there was no

evidence to support charges.

15. So far as the petitioner‟s contention that Sh.Shahnawaz Khan a material

witness who was not called into witness box is concerned, we find that the

appellate authority in order dated 26th March, 2009 has placed reliance on message

received from this officer stating that he had not provided photocopies of any page

of the quarter guard register to the petitioner. The message has been received

behind the back of the petitioner and outside the enquiry. This officer was not

called in the witness box. Without having given an opportunity to the petitioner to

challenge the statement attributed to him or to cross examine the said officer, could

not have relied on such material to form the basis of the findings of guilty of the

petitioner or his punishment.

16. So far as appointment of the defence assistant within the same rank as the

petitioner is concerned, it is urged that the respondents have issued a circular dated

16th September, 2005, relevant portion of which reads as follows:

"3. Keeping in view the inherent problems likely to be faced by the administrative authority on account of requirement of a number of personnel to act as Defence Asstts in the large number of inquiries pending with the Deptt, on the one hand and at the same time the requirements of natural justice to be full filled in keeping with the observation of the Courts, it is hereby advised that in all Departmental Proceedings against NGOs in CRPF, the delinquent person may be represented/assisted by a person from within the rank whose services the delinquent may be able to procure and who shall be called as „Defence Assist".

17. This very issue has been the subject matter of consideration in an order dated

30th November, 2005 in WP (C) no.182/2005 Vijender Singh vs. UOI and Others

wherein this court observed thereon as follows:

"While the circular displays an intent to abide by the requirement of natural justice, nevertheless the interpretation of the letter dated 22nd November, 2005 confining the defence assistance „within the rank‟ does not appear to be justified and in consonance with the principles of natural justice. In other cognate military enactments no such restrictions exist. Accordingly, we direct that the defence assistance as prayed for by the petitioner which was rejected by the letter dated 22nd November, 2005, shall be provided to the petitioner in the inquiry against him."

18. In the instant case, it is not the respondents‟ contention that the persons

named by the petitioner as his choice for appointment as defence assistant were not

available for appointment as defence assistant. Shelter is taken only in the circular

dated 16th September, 2005 to deny him a defence assistant of his choice. This was

certainly in violation of natural justice. The denial of the defence assistant and the

conduct of the enquiry proceedings in the absence of a defence assistant to the

petitioner, were in violation of the principles of natural justice and are not

sustainable.

19. So far as the appointment of a defence assistant is concerned, it has been

repeatedly held that the delinquent in disciplinary proceedings is required to be

informed of his right to take help of another Government Servant before the

commencement of the inquiry and a fair and reasonable opportunity to appoint one.

In this regard our attention has been drawn to AIR 1983 SC 454 in Bhagat Ram

vs. State of Himachal Pradesh & Ors. wherein the Supreme Court has held as

follows:

"In fact, justice and fair play demand that where in a disciplinary proceeding the department is represented by a Presenting officer, it would be incumbent upon the Disciplinary authority while making appointment of a Presenting Officer to appear on his behalf simultaneouly to inform the delinquent of the fact of appointment and the right of the delinquent to take help of another Government servant before the commencement of inquiry. At any rate the Inquiry Officer at least must enquire from the delinquent officer whether he would like to engage anyone from the department to defend him and when the delinquent is a Government servant belonging to the lower echelons of service, he would further be informed that he is entitled under the relevant rules to seek assistance of another Government servant belonging to department to represent him. If after this information is conveyed to the delinquent Government servant, he still chooses to proceed with the Inquiry without obtaining assistance, one can say there is substantial compliance with the rules."

20. In the instant case, the respondents do not state that the person whose names

had been given by the petitioner as his choice for defence assistant were not the

personnel of CRPF. The respondents‟ enquiry officer Shri Awadesh Kumar was of

the rank of Deputy Commnandant. Given the nature of the enquiry, this certainly

would not have been fair in the facts and circumstances of the case and the

petitioner has been deprived of an opportunity to represent himself.

21. The petitioner was only seeking a defence assistant who was senior to him

and had knowledge of departmental enquiry proceedings. He had therefore given

five names based on such requirement.

Such request of the petitioner was a reasonable request.

22. The enforcement of the condition that the defence assistance must be of the

same rank, has been held to be unjustified and in violation of the principles of

natural justice. The respondents have, thus, denied the petitioner of a fair and

reasonable opportunity to defend himself at the disciplinary inquiries vitiating the

proceedings and rendering all orders based on such proceedings as violative of

principles of natural justice and illegal.

In view of the above, we find that findings of the enquiry officer which are

based on no evidence and are perverse.

23. In view of the above, the orders dated 19th October, 2008, 26th March, 2009,

23rd March, 2010 and 24th June, 2011 are held to be violative of the principles of

natural justice and contrary to law and are hereby set aside and quashed. As a

result, it is directed that the petitioner would stand reinstated in service. The

petitioner shall be entitled to consequential benefits of notional seniority and

notional increments if any. The petitioner‟s pay fixation shall be made accordingly.

The petitioner would also be entitled to back wages equivalent to 25% of his pay

computed in terms of the above.

The present writ petition is allowed in the above terms.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE AUGUST 14, 2013 rb/aa