Prithvi Singh vs Uoi & Ors.
2013 Latest Caselaw 5129 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        DECIDED ON: 08.11.2013
+                          W.P. (C) 7313/2000

        PRITHVI SINGH                              ..... Appellant
                           Through: Mr. Sanjay Kumar Visen with
                           Mr. G.P. Singh, Advocates.

                           Versus

        UOI & ORS.                               ..... Respondents

Through: Ms. Meera Bhatia, Advocate.

CORAM:

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

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

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1. The present proceeding challenges an order dated 24.10.1997 compulsorily retiring the petitioner, who was at the relevant time Head Constable in the CISF, posted at Madras Port Trust, Chennai.

2. The brief facts are that the petitioner had joined the services of the CISF on 20.11.1971. At the relevant time, when he was working at Madras Port Trust, Chennai as a Head Constable, on account of incident involving scuffle between him and Constable S. Pandi with respect to some difference of opinion about the distribution of duties, the petitioner was issued with a chargesheet on 06.12.1996. Three

W.P.(C)7313/2000 Page 1 charges were levelled: the first alleged that the petitioner had assaulted and caused injury to S. Pandi, the second charge levelled was that the petitioner had misbehaved with the Assistant Commandant Ms. D. Shyamala on 22.08.1996 and the third charge was that the petitioner had absented himself from duties without any excuse and without permission for the period 29.08.1996 to 25.10.1996.

3. The CISF conducted disciplinary proceedings by holding hearings before the concerned Enquiry Officers on various days, including on 29.05.1997. In support of the various charges, the CISF examined as many as nine witnesses. The findings, on the basis of an overall appreciation of evidence, was that the petitioner was guilty of all charges. Consequently, he was directed to be compulsorily retired. He approached the appellate and revisonal authorities; in between he had approached this Court in proceedings under Article 226 and had been relegated to departmental remedies. Upon being unsuccessful in those remedies, he approached this Court through this writ proceeding again in 2000.

4. Counsel for the petitioner urges that an overall reading of the materials on record especially in the form of evidence of PW-1 S. Pandi, PW-5 G. Murugesan and PW-9 Kashinathan reveals that alleged assault on 01.08.1996 had not been proved at all. It was highlighted that Constable S. Pandi had in fact reported the matter after considerable delay and was hard pressed to explain it even though he claimed to have received medical attention, during the course of the enquiry proceedings, there was no document in support

W.P.(C)7313/2000 Page 2 of such contention. Counsel emphasized that contradictions between the testimony of PW-1 on the one hand and PW-5 & PW-9 on the other clearly undermines the findings of the Enquiry Officer.

5. Dealing with the second charge of insubordination, it was argued that concerned superior officer D. Shyamala alleged that the petitioner had misbehaved with her by loudly raising his voice. Counsel relied upon the G.D. entry made in that regard contemporaneously on 22.08.1996 to state that all that in the said entry was recorded was that the petitioner raised his voice and behaved rudely upon being denied leave. However, in the course of the enquiry on 29.05.1997, the same officer sought to improve her statement by elaborating that not only did the petitioner raise his voice, but even went to the extent of throwing papers and shouting at her. This, submitted learned counsel, was clearly a mala fide attempt by the CISF to somehow get rid of the petitioner.

6. Dealing with the last article of charge, i.e., unauthorised absence between 29.08.1996 and 25.10.1996 it was submitted that the petitioner had actually applied for leave and the CISF authorities chose not to even entertain the application. Counsel emphasized that the denial of application was actuated by malice on account of the petitioner seeking to obtain instructions to respond to the wrong allegations and charges levelled against him by S. Pandi who was a Constable, including communication to the Commandant, CISF on 26.08.1996 and to the police at the Harbar police station. The CISF also did not apply its mind to the two spells of hospitalization that the Petitioner concededly underwent.

W.P.(C)7313/2000 Page 3

7. The CISF in its counter affidavit argues and its counsel states that the enquiry proceedings were fair and procedurally regular. It was submitted that an overall appreciation of evidence of the concerned witness, especially PW-5&9 clearly show that a quarrel between the petitioner and S. Pandi took place and that the latter was injured. Counsel stressed upon the fact that S. Pandi was under treatment in a private hospital. It was submitted that he was also able to furnish reasonable grounds for not reporting the incident within few days of its occurrence.

8. It was next submitted that the findings with regard to the misbehaviour of the petitioner is unexceptionable and warranted. Counsel stated that on the day of the incident i.e. 22.08.1996 Ms. D. Shyamala in fact made a complaint to the Commandant about the petitioner's behaviour. That itself was sufficient to establish the charge even if the further details mentioned on 29.05.1997 in the course of enquiry were to be disbelieved. It was argued that so far as third article of charge is concerned, i.e., unauthorised absence, the petitioner cannot deny that he was absent for the entire duration and that he was not able to produce any evidence to substantiate the contention that he had applied for leave which stood rejected.

9. This Court has considered the materials on record as well as the official file. As far as the first charge is concerned, the Court observes at the outset that even though the incident occurred in the night intervening 1/2.8.1996, S. Pandi chose to report the matter on 22.09.1996, i.e., more than 52 days later. In the cross-examination, the said employee mentioned that he was under treatment for a while

W.P.(C)7313/2000 Page 4 but was unable to substantiate it through any documentary evidence. What has appeared on the record is that the petitioner was beaten up in the altercation and had been admitted for ten days in the Madras Port Trust Hospital - an aspect which was completely ignored by the Enquiry Officer in the report. Furthermore, this Court notices that a comparison of the evidence of the so-called independent witnesses would reveal that in fact none of them witnessed the assault - at least not by the petitioner; - whereas PW-5 G. Murugesan stated that he heard of a quarrel and then proceeded to the site where the altercation took place, PW-9 merely mentions that he witnessed verbal quarrel of hot exchange of words between the petitioner and S. Pandi. By no stretch of imagination can these two be compatible with the findings recorded by the Enquiry Officer in the report that the petitioner had in fact assaulted and caused injury to S. Pandi. Apart from the complete lack of evidence, the Court also notices that the Enquiry officer chose completely to ignore the cross-examination of Pandi, the complainant, and did not even record why he was prepared to accept the delay in reporting the incident, i.e., by 52 days. For these reasons, the Court is satisfied that the findings with respect to Article 1 of the chargesheet dated 06.12.1996 cannot be sustained; the same are accordingly set aside.

10. So far as the second charge of misbehaviour goes, the Court here notices that D. Shyamala made a short note complaining that the petitioner had misbehaved by raising his voice, as his leave was refused. Though this, in fact, establishes the fact that the petitioner had in fact sought leave at the relevant time, but was denied it, as he is

W.P.(C)7313/2000 Page 5 now alleging in response to the charges levelled against him under Article 3, the Court cannot but help noticing besides the allegations of petitioner shouting at her, D. Shyamala did not record anything else on 22.08.1996 or even few days thereafter. Much later, in the course of the enquiry proceedings on 29.05.1997, she went into great detail about the petitioner's behaviour stating for the first time he even threw papers at her. Here also Enquiry Officer has given much credence to such statements which were clear improvements. Such improvements, in our opinion, undermine the basic reporting of the incident itself. Even if it were to be assumed that the petitioner did raise his voice and was denied leave, as D. Shyamala alleges, the behaviour seen by itself and considered alone can, to a certain extent, be condoned in the circumstances. However, the Enquiry Officer completely ignored the discrepancy between the initial statement of D. Shyamala and the statement recorded on 29.05.1997 which undermines the entire allegations. The third and the last charge levelled against the petitioner of unauthorised absence, in this Court's opinion, has to be seen contextually. Undoubtedly, the petitioner was away from duties. At the same time, the Court notices that he was hospitalized for ten days on account of the assault and also subsequently hospitalised in the Government Stanley Hospital in Madras between 22.08.1996 to 25.09.1996 - as is evident from the discharge slip which is produced on the record and has not been denied. The Court sees no reason to disbelieve the petitioner's version in this regard. Again viewed contextually in the circumstances of the case, if the penalty were to be considered only on the basis of such

W.P.(C)7313/2000 Page 6 unauthorised absence - of about a month - the penalty of compulsory retirement is too severe.

11. During the course of the proceedings, the respondents had highlighted that the petitioner had been issued with another chargesheet on 09.10.1997, i.e., after the compulsory retirement order was issued. A copy of that chargesheet is on the record; one of the main charges in that proposed enquiry proceedings was that the petitioner and his defence assistant Mr. T.M. Nair had misbehaved on 29.05.1997 during the course of the enquiry proceedings when evidence of D. Shyamala was recorded. Considerable details had been elaborated in the statement of imputation annexed to the chargesheet on 19.10.1997 in this regard. Counsel for the respondents had emphasized that having regard to this aspect, the Court should desist from giving any relief to the petitioner.

12. The Court has carefully considered the submissions in this regard. The proceedings on 29.05.1997 were in respect of the enquiry that arose out of the chargesheet of 06.12.1996. Neither the proceedings sheet nor even the record of evidence of D. Shyamala which are found in the official file, nor even the enquiry report in respect of the chargesheet dated 06.12.1996 had referred to the so called misbehaviour of the petitioner's defence assistant T.M. Nair or the petitioner. A careful reading of Article 1 of the chargesheet dated 19.10.1997 reveals that the petitioner was sought to be charged in respect of the alleged misbehaviour of his defence assistant. In this regard, the relevant observations in the chargesheet are as follows: -

"Article-1

W.P.(C)7313/2000 Page 7 CISF No.714510479 HC/GD Prithvi Singh of CISF Unit, Ch. P.T. Chennai is charged with gross indiscipline and misconduct. HC/GD Prithvi Singh was permitted to avail the services of Naik T.M. Nair of SCY Cochin in a DE, as his defence assistant. HC/GD Prithvi Singh and his defence assistant Naik T.M. Nair reportedly misbehaved with PW/HC S.S. Kannu at about 1000 hrs. on 29.5.97 and with PW/AC D. Shyamala (Lady Officer) at about 1100 hrs. on 29.5.97, in the presence of Enquiry Officer/AC P.L. Thakur. Naik T.M. Nair had used unparliamentary language against the said PWs, since the Naik T.M. Nair had attended the DE in the capacity of defence assistant, HC/GD Prithvi Singh is fully responsible for the misconduct and indisciplined act of his defence assistant."

13. The chargesheet in effect alleges that the petitioner was responsible for the alleged misconduct and indiscipline of his defence assistant - an entirely untenable allegation, as if the misconduct is attributable or transferable to another. It is not as if the CISF authorities alleged that the petitioner and his defence assistant acted in conspiracy. The imputation clearly mentions that so called acts of indiscipline and misbehaviour was only that of T.M. Nair, the defence assistant.

14. Having regard to the above findings and considering the overall conspectus of the circumstances, this Court has no doubt in its mind that the findings of guilt recorded by the enquiry and the allegations against the petitioner can be explained only on the existence of mala fide on the part of the CISF, who chose to inflict an extremely light penalty on Constable S. Pandi, the alleged victim (when there was no reason to do so if he was indeed right) and inflict an extremely

W.P.(C)7313/2000 Page 8 disproportionate penalty on the petitioner.

15. Consequently, the order dated 24.10.1997 compulsorily retiring the petitioner is hereby quashed and set aside. Since the petitioner had attained the age of superannuation on 08.05.2011, a direction to reinstate him cannot be given. However, CISF is directed to pay the differential salary, allowances and other emoluments to the petitioner for the period 24.10.1997 to 08.05.2011 (as if he were in service) with all consequential benefits including the revision of pension, within eight weeks from today.

16. The petition is allowed in the above terms.

S. RAVINDRA BHAT (JUDGE)

SUDERSHAN KUMAR MISRA (JUDGE) NOVEMBER 08, 2013 /vks/

W.P.(C)7313/2000 Page 9