Santosh Kumar vs Union Of India & Ors
2013 Latest Caselaw 5076 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 5021/2013

%                        Date of decision: 6th November, 2013

      SANTOSH KUMAR                                 ..... Petitioner
                  Through :           Ms.Rekha        Palli       and
                                      Ms.Punam                 Singh,
                                      Advocates.
                         versus

      UNION OF INDIA & ORS                     ..... Respondents
                    Through :         Mr.Sachin Datta, CGSC
                                      with Mr.Vikram Aditya and
                                      Mr.Naryayan, Advocates.
      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

      GITA MITTAL, J. (Oral)

1. By way of the instant writ petition the petitioner is seeking

parity with the punishment which was imposed upon him with the

punishment which was imposed on Ct. Ct.Sapan Singh, Ct.Shahbad

Khan, Ct.Ram Swaroop and Ct.Lakhvir Kumar who were charged

with identical charges in proceedings which were conducted

against them as well other CISF personnel totalling fourteen.

2. Before us the factual matrix is not disputed so far as this

ground of challenge is concerned. It is also pointed out by the

parties that apart from the petitioner, two other personnel namely

one H.Ct.Gurnam Singh and Ct.Parvez Ahmed were also similarly

charged as the petitioner for the same incident. A challenge was

laid by H.Ct.Gurnam Singh by way of W.P.(C) no.5519/2011 and

by Ct.Parvez Ahmed who filed W.P.(C) 5502/2011 to the

punishment imposed on them. The petitioner has placed before us

order dated 23rd August, 2011 of this court accepting the challenge

by H.Ct.Gurnam Singh and Ct.Parvez Ahmed.

3. For the sake of convenience, we may note the factual matrix

and the directions made by the court in the order dated 23rd August,

2011, the relevant extract whereof is reproduced as follows:

"

1. 14 forced personnel of CISF were charge- sheeted upon different allegations, but pertaining to the same incident and same set of facts.

2. Under the command of (i) SI Sanat Hasda, (ii) HC Amar Singh (iii) HC Gurnam Singh (iv) HC Parmatma Rai (v) Ct.Krishan Kumar (vi) Ct.Tej Singh (vii) Ct.Shish Ram (viii) Ct.Parvez Ahmed

(ix) Ct.Desai Karan (x) Ct.Santosh Kumar (xi) Ct.Sapan Singh (xii) Ct.Shahbad Khan (xiii) Ct.Ram Swaroop and (ix) Ct.Lakhvir Kumar were deputed for security of Mr.S.S.Libra, member of parliament.

3. They had their post outside the residence of the Hon'ble Member of Parliament.

4. As per CISF, being the senior most officer, SI Sanat Hasda was incharge of the group and it was his duty to ensure that the group members performed duties pertaining to the security of the Hon'ble Member of Parliament as also the relevant duty record was maintained. Additionally, it was his duty to ensure that arms issued to the force personnel under his command were secured properly so that arms did not fall in the hands of undesirable elements or got misplaced or were lost.

5. An AK-47 rifle issued to Ct.Krishan Kumar was admittedly recovered from a well on 8.3.2010. Prior thereto it was found missing; there is an issue as to on what date information of the rifle being missing was given to the authority concerned.

6. At a preliminary enquiry, so is the case of the department, it surfaced that Ct.Tej Singh had picked up the AK-47 rifle when it was lying abandoned and it was he who threw the same. Further inquiry revealed that Hon'ble Sh.S.S.Libra had left his residence and had proceeded to Delhi by hiring an escort vehicle from Sukhmandeep Tours and Travels. The inquiry revealed that SI Sanat Hasda was not managing the affairs of the officers under him as per rules. It was found that though he had shown as if he had moved along with Sh.S.S.Libra by way of escort, he was roaming here and there in the State of Punjab and Ct.Krishan Kumar, whose rifle was missing, though shown to be on duty, was roaming in the State of Punjab as also the State of Haryana and that HC Parmatma Rai was in touch with them. Call details of mobile No.9541423060 of the mobile phone used by Ct.Krishan Kumar, mobile No.9370553713 used by SI Sanat Hasda as also mobile No.9032412395 used by HC Parmatma Rai were obtained. Duty register which had interpolations by putting a fluid on the existing writings and over writings thereon were seized and

were opined to be the creation of SI Sanat Hasda and HC Parmatma Rai.

7. All 14 persons faced separate departmental enquiries for the reason we are informed that CISF Rules do not have a provision for a joint enquiry. Different charges were framed against all and needless to state save and except SI Sanat Hasda, Ct.Krishan Kumar, HC Parmatma Rai, Ct.Tej Singh and Ct.Shish Ram who was also found missing, against the rest the charge was of suppressing the truth and not informing the department of the rifle being missing and 4 force personnel missing from duty.

8. All 14 denied the charges. After recording the evidence the Enquiry officer submitted 14 reports indicted all 14 officers. Supplying the report of the enquiry officer and requiring response to be filed, Ct.Sapan Singh, Ct.Shahbad Khan, Ct.Ram Swaroop and Ct.Lakhvir Kumar admitted their guilt and sought pardon. Others contested the findings of the enquiry officer.

9. In view of the confession of guilt made by Ct.Sapan Singh, Ct.Shahbad Khan, Ct.Ram Swaroop and Ct.Lakhvir Kumar, the disciplinary authority, i.e. the Commandant of the unit took a lenient view and levied a penalty of reduction to the lowest in the time scale for a period of 3 years with permanent effect. The said 4 persons accepted the penalty levied. None of them filed a departmental appeal.

10. Ct.Shish Ram also made a confession before the Commandant i.e. when called upon to respond to the report of the enquiry officer; he admitted the guilt. But since Ct.Shish Ram was found missing from the out-post, he was not treated at par with Ct.Sapan Singh, Ct.Shahbad Khan, Ct.Ram Swaroop and Ct. Lakhvir Kumar. Penalty of compulsory retirement was levied upon him.

11. As regards the rest, which included the petitioners, they questioned the findings returned by the enquiry officer. Not agreeing with their response and concurring with report of the enquiry officer, penalty of removal from service stands inflicted upon all.

12. It is not in dispute that the role of Ct.Pervez Ahmed and HC Gurnam Singh is at par with that of Ct.Sapan Singh, Ct.Shahbad Khan, Ct.Ram Swaroop and Ct. Lakhvir Kumar. In that, they did not report the missing of the AK-47 rifle to the superior authority and gave false statements that Ct.Krishan Kumar never left the outpost.

13. The only reason why these two have been inflicted a higher penalty, is that they did not make a clean breast as was done by Ct.Sapan Singh, Ct.Shahbad Khan, Ct.Ram Swaroop and Ct.Lakhvir Kumar.

14. Learned counsel for petitioners Ct.Parvez Ahmed and HC Gurnam Singh states that she has been instructed to make a statement that these two personnel are prepared to admit their guilt as was admitted to by Ct.Sapan Singh, Ct.Shahbad Khan, Ct.Ram Swaroop and Ct.Lakhvir Kumar and thus prays that the Director General CISF i.e. the revisional authority may be called upon by this Court to reconsider the issue of penalty to be levied upon Ct.Parvez Ahmed and HC Gurnam Singh. Counsel states that upon their making a representation to the revisional authority, in which they would apologize for their mistakes and would admit to the charge against them, Director General, CISF should be directed to consider extending the same leniency to them which was accorded to Ct.Sapan Singh, Ct.Shahbad Khan, Ct.Ram Swaroop and Ct.Lakhvir Kumar.

15. Learned counsel for the respondents would

urge that HC Amar Singh had also made confession before the appellate authority but was visited with the penalty of compulsory retirement for the reason his confession was belated and he took a chance before the Commandant.

16. HC Amar Singh has not challenged the penalty levied upon him and thus we do not comment upon the proportionality of the penalty levied upon him, but would simply highlight Ct.Sapan Singh, Ct.Shahbad Khan, Ct.Ram Swaroop and Ct.Lakhvir Kumar took a chance at an enquiry by denying the charges against them as did the petitioners. All of them including the petitioners are identically situate as regards the indictment. The only difference is that Ct.Sapan Singh, Ct.Shahbad Khan, Ct.Ram Swaroop and Ct.Lakhvir Kumar admitted to their guilt after the enquiry officer indicted them, but the petitioners desire to do so now.

17. We render no conclusive opinion on the rival stand taken, but being of the opinion that on the issue of parity with respect to the penalty levied, the matter needs a reconsideration and thus we dispose of the writ petitions directing that if within 4 weeks from today the petitioners would confess to their guilt and tender an apology for their acts, the Director General CISF, would reconsider the penalty to be levied and while levying the penalty would take note of the penalty levied upon Ct.Sapan Singh, Ct.Shahbad Khan, Ct.Ram Swaroop and Ct.Lakhvir Kumar. The Director General CISF, would keep into account that even said five constables took a chance before the enquiry officer as did the petitioners and would highlight, if a different penalty is levied, on what account confession of guilt before the Commandant would render the case of those 5 persons requiring leniency on the quantum of sentence vis-à-vis the petitioners who admit to their

guilt now."

4. The present writ petitioner did not assail the penalty which

was imposed upon him along with the above two petitioners.

However, he has filed the instant writ petition contending that his

case was squarely covered by the ratio of the said decision dated

23rd August, 2011. In para 14 of the present writ petition, the

petitioner has admitted his mistake and rendered an unconditional

apology. Based on this admission and apology, he has sought the

relief which was granted to H.Ct.Gurnam Singh and Ct.Parvez

Ahmed by the order dated 23rd August, 2011. The petitioner has

further explained that he belongs to a very poor family and is the

only earning member of the family.

5. The record placed before us shows that the respondents

considered the representations received from H.Ct.Gurnam Singh

and Ct.Parvez Ahmed in terms of the order of this court dated 23 rd

August, 2011. We are informed that the IG/APS has passed orders,

both dated 21st December, 2011, in the case of H.Ct.Gurnam Singh

and Ct.Parvez Ahmed modifying the penalty of "removal from

service" imposed upon them to that of "reduction of pay to the

lowest stage in the time scale for a period of three years with

permanent effect".

6. In the above background, it cannot be disputed that on the

issue of parity with respect to the penalty levied upon the

petitioner, the matter would need a reconsideration. The petitioner

deserves to be accorded the same opportunity as has been accorded

to the petitioners in the W.P.(C) Nos. 5519 and 5502 of 2011.

Though the petitioner has pleaded guilty before us, which plea

would bind him, however, the petitioner deserves to reiterate this

plea and to tender his apology to the respondents who have been

put to the task of completing the disciplinary proceedings against

him.

7. In view of the above, it shall be open to the petitioner to

make a representation to the Director General, CISF confessing his

guilt as well as tendering an unconditional apology for the charges

against him. Such representation be made within four weeks from

today.

In case, the representation is so made, the same shall be

reconsidered by the Director General, CISF who may take a view

on the penalty to be levied by taking note of the penalty levied

upon Ct.Sapan Singh, Ct.Shahbad Khan, Ct.Ram Swaroop and

Ct.Lakhvir Kumar. The Director General would also take note of

the order dated 23rd August, 2011 by this court in the writ petition

Nos.5519 and 5520 of 2011 as well as the order dated 21st

December, 2011 passed by the respondents in favour of

H.Ct.Gurnam Singh and Ct.Parvez Ahmed on the issue of the

penalty which may be imposed upon the petitioner given his

admission of guilt as well as apology. Orders in this regard shall

be passed within six weeks from the receipt of the representation of

the petitioner, and conveyed forthwith thereafter.

The writ petition is disposed of in the above terms.

No orders as to cost.

Dasti

GITA MITTAL, J

DEEPA SHARMA, J NOVEMBER 06, 2013 rb