Delhi High Court
Kuldeep Kumar vs Uoi & Ors. on 24 April, 2014
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: April 24, 2014
+ W.P.(C) 14163/2004
KULDEEP KUMAR ..... Petitioner
Represented by: Mr.H.S.Dahiya, Advocate
versus
UOI & ORS. ..... Respondents
Represented by: Mr.Jatan Singh, Advocate with
Mr.Mudit Gupta and Mr.Soayib
Qureshi, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
CHIEF JUSTICE (ORAL)
1. The petitioner was employed as a Water Carrier at Central Industrial
Security Force on February 05, 1988.
2. From the facts which we would be noting hereinafter it is apparent
that in the night of January 21, 2000 the petitioner consumed a few extra
pegs of alcohol and went into a state of delirium. At 22:15 hrs i.e. at a
quarter past 10.00 in the night he created a scene at the PCO in the unit area.
SI S.K.Singh responded to the verbal nuisance created by the petitioner and
tried to calm him. So heavily intoxicated was the petitioner that he could
not report for duty at the mess at 07:00 hrs the next day i.e. January 22,
2000. He was found on the road in a state of intoxication. As usual in India,
on lookers gathered around to enjoy the abuses hurled by the petitioner.
3. On January 28, 2000, a charge memo was served upon the petitioner
listing four articles of charge against him.
4. The first article of charge was that at 20:15 hrs on January 21, 2000
he created a nuisance under intoxication at the PCO and when directed by SI
S.K.Singh to proceed to the unit lines he gave beating to SI S.K.Singh. The
second charge was of being absent from duty on January 22, 2000. The
third article of charge was that at 08:00 hrs on January 22, 2000 under
influence of alcohol the petitioner was found abusing in front of employees
quarter. The fourth article of charge was drawing attention of the petitioner
that in the past he was inflicted with eight punishments as under:-
Sl.No. Offence Order Punishment
1. Theft of `1000 from another 21.02.1989 Censure
officer
2. Deserted CISF unit, without 19.10.1996 Fine equal to 7
permission for 21 days days pay
3. Absent from duty and arguing 30.04.1998 Fine equal to 5
with officer, under the influence days pay
of alcohol
4. Deserted the unit area for 2 28.09.1998 Fine equal to 3
days, without permission days pay
5. Left the mess without 23.03.1999 Stoppage of
permission and thereafter next increment
manhandled with a private for 1 year
doctor
6. Absent from unit lines for 6 06.09.1999 7 days HPL
days, without permission without leave
salary
7. Absent from duty for 8 days, 06.10.1999 Stoppage of
without permission next increment
for 1 year + 8
days HPL
without leave
salary
8. Deserted from unit lines for 15 30.11.1999 Fine equal to 7
days days pay.
5. At the inquiry the department examined as many as eleven witnesses.
The testimony of the witnesses would establish that, as per Article-1 of the
charge, at 22:15 hrs the petitioner was found heavily intoxicated and
creating a nuisance at the PCO in the unit line. He was abusing all and
sundry. The evidence of the witnesses would also establish that next date
morning, as per Article-2 of the charge, the petitioner did not report for duty
at the Mess at 07:00 hrs. The evidence would further prove that as per
Article-3 of the charge, the next day morning, at 08:00 hrs the petitioner was
found intoxicated while shouting in front of the employees quarter. The
service record proved by the witnesses established that as per Article-4 of
the charge, in the past eight minor punishments were inflicted upon the
petitioner. But, the gravest part of the charge No.1 that petitioner assaulted
SI S.K.Singh was not proved. The testimony of SI S.K.Singh, who appeared
as PW-3, would evidence that the petitioner never assaulted him. As he
caught the petitioner, the petitioner jerked; and forming an opinion that the
petitioner may hit him, SI S.K.Singh moved backward.
6. Now, the petitioner being drunk and not in his senses, if SI S.K.Singh
caught him, it could be the reaction of a person to pull himself away and this
explains the petitioner, by a jerk, freeing himself from SI S.K.Singh. The
rest is the perception of SI S.K.Singh; stated in his own words that he moved
back thinking that the petitioner may probably hit him.
7. The Inquiry Officer has thus wrongly held, without their being any
evidence, that the charge No.1 is fully proved.
8. It is apparent that influenced by the said act, the penalty of removal
from service was inflicted upon the petitioner on March 16, 2000 against
which appeal preferred was rejected on November 20, 2000. Revision
petition filed was rejected on May 21, 2001.
9. Learned counsel for the respondent states that it may be a case where
the gravest element of the charge i.e. assaulting SI S.K.Singh has not been
proved and the authorities having treated the same to be wrongly proved
could vitiate the extreme penalty of removal from service, but not if one
keeps into account the past service record of the petitioner which shows that
in the past eight minor penalties were inflicted upon the petitioner and in
spite thereof he continued to create a nuisance of himself and for the
department.
10. With respect to the eight penalties levied, we find that sometimes
using the word desertion, sometimes the word absenting and sometimes the
word left without permission, seven out of eight indictment pertain to the
charge of being absent without permission and on one occasion, arguing
with an officer under influence of alcohol, on one occasion having a
skirmish with a private doctor. One indictment is of stealing `1000/- from
another officer.
11. It is trite that penalty serves a twin purpose. It punishes the wrong
doer. It acts as an example to others not to commit the same wrong. A
penalty which is disproportionate creates a feeling of unrest. That apart, a
penalty which is disproportionate to the gravity of the wrong would be
arbitrary and hence violative of Article 14 of the Constitution of India.
12. Even if we consider the past penalties levied upon the petitioner, all of
were minor in nature, keeping in view the nature of the acts constituting the
wrongs, we are of the opinion that the penalty of removal from service in
the instant case would not be warranted if the element of the gravest part of
the charge against the petitioner i.e. of assaulting SI S.K.Singh is removed
from the indictment.
13. We disposed of the writ petition quashing the impugned orders dated
March 16, 2000, November 22, 2000 and May 21, 2001.
14. We direct the petitioner to be reinstated in service. We leave it to the
discretion of the competent authority to levy such penalty as the competent
authority deems appropriate but keep into account that the element of charge
No.1 that the petitioner assaulted SI S.K.Singh has not been proved.
Meaning thereby, the penalty would be of a kind that the petitioner would
not lose his job. The manner in which the period interregnum petitioner
being dismissed from service till he is reinstated would be decided by the
competent authority. We note that as per Fundamental Rules, upon
rendering the necessary qualifying service for pension or attaining a
particular age, the department would be entitled to invoke its power under
FR 56(j) to proceed to compulsorily retire a Government servant whose
service is governed by the Fundamental Rules.
15. Since Fundamental Rules apply to employees of the CISF we make it
clear that while considering the service record of the petitioner it would be
open to the department to exercise its power under FIR 56(j).
16. Needful shall be done within six months from today.
17. No costs.
CHIEF JUSTICE
(PRADEEP NANDRAJOG)
JUDGE
APRIL 24, 2014
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