Delhi High Court
Sanjay Kumar vs Uoi & Ors. on 23 April, 2014
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: April 23, 2014
+ W.P.(C) 14126/2004
SANJAY KUMAR ..... Petitioner
Represented by: Mr.Abhishek Nischal,
Advocate
versus
UOI & ORS. ..... Respondents
Represented by: Mr.Neeraj Chaudhari,
Advocate with Mr.Saqib and
Mr.Arjun Narayan, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
CHIEF JUSTICE (ORAL)
1. Petitioner was granted five days leave, and since he was
granted time to proceed to his home town and return, the leave period
was from April 02, 2001 till April 10, 2001. The petitioner was to
join back on April 11, 2001. He joined back on June 12, 2001. The
department treated the period interregnum April 01, 2001 to June 11,
2001 as unauthorized absence. What had happened was that an FIR
No.43/2001 was registered at Police Station J.P.Kalan, Delhi for
offences punishable under Section 498A/304B/34 IPC, naming the
petitioner, his mother and sister as accused. Petitioner's wife Kavita
died with history of poisoning at 1.30 P.M. on April 02, 2001. The
death was unnatural and within seven years of the marriage.
2. A charge memo was served upon the petitioner proposing to
hold an inquiry and the two charges framed against the petitioner
were as under:-
"Article-1
That the said No.962296033 Constable Sanjay Kumar
while functioning as Constable in CISF during the period
failed to rejoin duty on 11.04.2001 after expiry of 5 days
casual leave from 02.04.2001 to 10.04.2001 and
overstayed leave from 11.04.2001 to 11.06.2001
unauthorisedly. The act on the part of Constable Sanjay
Kumar amounts to gross misconduct and indiscipline.
Hence the charge.
Article-II
No.962296033 Constable Sanjay Kumar, during the
period of OSL was arrested by the J.P.Kalam, Police
Station, South West Delhi on 29.04.2001 in connection
with a criminal offence under Section 498-A and 304-B
IPC and was detained in judicial custody from 29.04.2001
to 18.05.2001. This act on the part of Constable Sanjay
Kumar amounts to gross misconduct. Hence the charge."
3. We need not note the evidence led at the inquiry for the reason
petitioner concedes to the fact that he did not join back on April 11, 2001
and did so on June 12, 2001. As is evident from Article-II of the charge the
reason was that the petitioner was arrested by the police of P.S.J.P.Kalan,
Delhi when he reached home probably on April 03, 2001. We have used
the expression probably for the reason there is no evidence that the
petitioner reached home on April 03, 2001. We have probabilized the date
for the reason the petitioner, working as a Constable in CISF, was on duty at
RCFL Complex, Chembur (Mumbai). Sanctioned leave from April 02,
2001, proceedings by train from Mumbai on April 02, 2001, he would be
reaching Delhi the next day. It is apparent that the day when petitioner's
wife died i.e. April 02, 2001, the time being 1.30 P.M., the petitioner was
not in his house. And this explains the fact that he was arrested on April 29,
2001 but admitted to bail on May 18, 2001. The witnesses of the
department proved leave being sanctioned to the petitioner, he overstaying
leave and information received by the Commandant of the petitioner being
arrested and thereafter admitted to bail; as also the date when the petitioner
joined back.
4. Now, as regards Article-II of the charge all we have to say is that it
is not the charge that the petitioner concealed the fact of he being arrested.
The charge is of being arrested and detained in judicial custody from April
29, 2001 to May 18, 2001. It cannot be a charge attracting a misconduct that
a person was arrested. It cannot be a charge attracting misconduct that a
person remained in judicial custody for a period. There is no culpability in
either. The culpability would be, upon proof, of the wrongful act done for
which a person is charged and convicted at a criminal trial.
5. The petitioner was acquitted at the trial on February 07, 2003. The
acquittal by the learned Additional Sessions Judge has attained finality.
6. Under the circumstances it has to be held that petitioner's absence
was not wilful. It was on account of acts beyond his control. As noted
above, he proceeded on leave from Mumbai to Delhi on April 02, 2001, not
knowing that in the afternoon of the same day his wife consumed sulphas in
the morning and died at 1.30 P.M. Since his in-laws alleged cruelty on
account of insufficient dowry, the FIR was registered and the petitioner was
arrested. He has suffered the consequence of he being wrongly arrested for
the offence punishable under Section 304-B IPC. Wrongly arrested we say
for the reason, there is irrefutable evidence that not only on the day when the
petitioner's wife committed suicide he was not in his matrimonial house but
was not in his matrimonial house for months together prior thereto on
account of being posted at Mumbai.
7. In a case where a Government servant is arrested for an alleged
wrongful act committed not in discharge of official duties, the department
can never have evidence to sustain the charge of doing a criminal wrong
which would be a misconduct. To wit : A Government servant is charged
for the offence of murder. We cannot think of the said charge being a
subject matter of a disciplinary proceeding. The charge has to be tested at a
regular criminal trial. If the offending act is such that a Government servant
should not be permitted to perform duties in public interest, the correct thing
to do is to place him under suspension.
8. The penalty of removal from service levied upon the petitioner is
thus required to be set aside.
9. Ordered accordingly. The order dated January 18, 2002 passed by
the disciplinary authority, the order dated March 28, 2002 passed by the
appellate authority and the order dated August 23, 2003 passed by the
revisional authority are set aside.
10. The petitioner is reinstated in service with 50% back wages. Other
consequential benefits such as continuity in service increments etc. shall be
granted to the petitioner.
11. No costs.
CHIEF JUSTICE
(PRADEEP NANDRAJOG)
JUDGE
APRIL 23, 2014
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