Abrar Ali vs Cisf And Ors.
2014 Latest Caselaw 3631 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 1241/2011 & CM APPL. No.12349/2012
       ABRAR ALI                                           ..... Petitioner
                          Through:      Dr. L.S. Chaudhary, Advocate

                                   Versus
       CISF AND ORS.                                   ..... Respondents
                          Through:      Ms. Geeta Sharma, & Mr. Ishan
                                        Sanghi, Advocates

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE NAJMI WAZIRI
                    ORDER

       %            11.08.2014

KAILASH GAMBHIR, J.(Oral)

1. The petitioner has filed the instant writ petition under Article 226

of the Constitution of India feeling aggrieved by the order dated

28.11.2000 passed by the Disciplinary Authority thereby directing his

dismissal from the Forces with immediate effect. The petitioner has also

assailed the order dated 01.02.2001 passed by the Appellate Authority

rejecting his appeal against the order of the Disciplinary Authority and

order dated 31.12.2010 passed by the Revisional Authority whereby his

revision petition was dismissed.

2. The petitioner was posted as a Constable in CISF, BCCL Unit,

Dhanbad. He proceeded on a 2 days' casual leave from 12.08.1999 to

13.08.1999 to attend to his domestic problem, and his 2 days' casual

leave was duly sanctioned by the sanctioning authority. The petitioner

was to join back on duty on 16.08.1999 as 14.08.1999 was a holiday

because of it being a second Saturday and the next being Independence

day, it was thus a national holiday. As per the petitioner, he could not join

back on duty as he fell ill after reaching the place of his service at

Dhanbad where he remained under the treatment of Dr. M. Singh from

15.08.1999 to 19.08.1999 and he was declared fit by the doctor on

20.08.1999, and he thereafter surrendered before the concerned court on

20.08.1999 because of the registration of a case against him under

Section 363/366A IPC vide FIR No.260/1999 dated 13.08.1999 at Police

Station Katras. The petitioner remained in Jail for a considerable period

of time and was released on bail on 31.05.2000. In the meanwhile,

respondent No.4 issued a chargesheet against the petitioner on 08.10.1999

and Articles of Charge were framed against him which are as under:

"Article of Charge-I No. 903190893, Ct. Abrar Ali, Area No.IV, Central Industrial Security Force, BCCL Unit, Dhanbad was granted 2 days' casual leave from 12.08.1999 to 13.08.1999 and 14.08.1999 was a second Saturday. He had to resume his duty on 15.08.1999 (F/N). But, he reported for his duty at 1730 hrs. Thereafter, Asstt. Commandant of Area No.4 directed the said Abrar Ali to remain inside the Camp as there was apprehension of danger to his life from the residents of nearby Basti. At about 1900 hours when Abrar Ali was searched by CHM to serve his suspension order, he

was again found absent from the Camp. The said member of the force did not even deposit his Leave Certificate in the Unit Office after coming back from leave. Therefore, Abrar Ali No. 903190893 being a member of armed forces, is grossly negligent towards his duties and he disobeyed the orders/directions of the Superior Officers, which amounts to gross misconduct and indiscipline on the part of the said member. Hence, this charge.

Article of Charge-II No. 903190893, Ct. Abrar Ali, Area No.IV, Central Industrial Security Force, BCCL Unit, Dhanbad was granted 2 days'casual leave from 12.08.1999 to 13.08.1999 and 14.08.1999 was a second Saturday. The said member of the Forces while proceeding on leave took one girl named Anita Kumar D/o Shri Rajender Rajbar R/o Lalten Basti, Angarpathra (Dhanbad), aged about 15-16 years with him to Delhi on the pretext of getting her married to a Hindu boy and came back after leaving Anita Kumari at the house of an old man. The brother of the said force member, Jamaruddin, who also is a member of the Delhi Armed Police took Anita Kumari to Dhanbad. On 20.08.1999, Anita Kumari made a statement before the Judicial Magistrate, Dhanbad, in FIR No.260/99 dated 13.08.99. Thereafter, the said force member Abrar Ali surrendered in the court of CJM Dhanbad on 20.08.1999 from where he was sent to Jail for committing the said offence. No. 903190893 Ct. Abrar Ali being a member of the force has committed an act of indiscipline and has maligned the image of the force, which is a serious misconduct. Hence, this charge.

Article of Charge-III Ct. Abrar Ali, Area No.IV, Central Industrial Security Force, BCCL Unit, Dhanbad has already been awarded three punishments, 2 major punishments (deduction in pay) and one minor punishment (deduction of 7 days' salary) for

various acts of indiscipline and negligence during the short span of his service. Despite the aforesaid, he has failed to improve himself and to abide by the rules, which shows that the said member is habitual of committing indiscipline and disorderliness. Hence this charge."

3. On the basis of material on record, which included the statements

of the prosecution witnesses, statement of accused in his defence, written

representation made by the petitioner against the inquiry report and other

documents produced on record, the Disciplinary Authority found the

petitioner guilty of charges framed against him under Articles-I, II and

III. As regards Article-II, the petitioner was held guilty on the basis of

his involvement in a criminal case. Consequently, he was dismissed

from service from his post of Constable due to his proven misconduct

during the course of the said inquiry. Although the Appellate Authority

concurred with the Disciplinary Authority apropos the Article of Charges

I and III he disagreed with the Article of Charge II. The Appellate

Authority in its order dated 01.02.2001 candidly observed that the Article

of Charge II had not been proved against the petitioner due to lack of

sufficient evidence and the Article of Charge I and III were proved

against the petitioner beyond doubt. The Appellate Authority also

observed that the appellant was sanctioned 2 days' casual leave from

12.08.1999 to 14.08.1999 with permission to avail Second Saturday and

was directed to report to the Unit on expiry of the said leave, i.e., on

15.08.1999 (FN) but he had reported to Unit Line at 1730 hours on

15.08.1999. The Appellate Authority also observed that the petitioner was

specifically asked to stay in the barracks due to administrative reasons.

However, in violation of this order he left the Unit Line unauthorisedly

and continued to remain absent without any permission or information till

his surrender in Court on 20.08.1999. The Appellate Authority also

referred to his previous misconduct for which he had already undergone

two major punishments and one minor punishment on separate occasions.

The Appellate Authority also held that even after holding that Article of

Charge II was not proved against him, the punishment of his removal

from service was proportionate to the gravity of his proven misconduct in

terms of Articles of Charge I and III. The Revisional Authority, vide

order dated 13.12.2010 dismissed the petitioner's revision petition being

devoid of merit, and thus upheld the order dated 01.02.2001 passed by

the Appellate Authority.

4. The grievance raised by the petitioner is that the Trial Court vide

order dated 29.05.2001 had honourably acquitted him from the charges

framed against him, in the absence of any evidence brought by the

prosecution, yet a very harsh order of punishment of dismissal was passed

against the petitioner.

5. Dr. L.S. Chaudhary, the counsel for the petitioner, strongly

contended that the petitioner could not be punished twice for his previous

misconduct. Therefore, framing of Articles of Charge III was totally

illegal and arbitrary, since the petitioner had already suffered three

punishments. To punish again for the same would be subjecting him to

double jeopardy, a circumstance not countenanced in law.

6. Another contention raised by the counsel for the petitioner is that

the petitioner was to resume his duty on 16.08.1999 which he could not

do because of his medical condition and therefore, it is totally false on the

part of the respondents to allege that the petitioner had reported for his

duty at 1730 hours on 15.08.1999 and was found absent despite being

told by the Assistant Commandant to remain inside the Camp. Counsel

for the petitioner also submitted that the petitioner was frightened after he

was falsely implicated in a criminal case and this fact has been admitted

by the respondents that there was an apprehension of danger to the life of

the petitioner from the residents of the nearby Basti.

7. Counsel for the petitioner also submits that the prosecutrix herself

deposed before the Inquiry Officer that she did not even know the

petitioner and she had seen him for the first time in the Court. This

statement of the prosecutrix totally proved the innocence of the petitioner

for which he was placed under the suspension and then after facing the

inquiry was dismissed from his service.

8. Per contra, Ms. Geeta Sharma, counsel appearing for the

respondents submits that the conduct of the petitioner was highly

prejudicial and detrimental to the discipline and authority of the Forces as

he had defied the order of the Assistant Commandant for not staying

inside the Camp and he also failed to report back on duty in the forenoon

instead reported at 17.30 hrs of 15.08.1999. Counsel also submitted that

all the proceedings against the petitioner were conducted as per rules and

procedure as laid down in the CISF Act in a most fair and transparent

manner without there being any sort of bias or prejudice against the

petitioner. Counsel also submitted that at every stage, the petitioner was

given full opportunity to participate in the proceedings and therefore,

there has not been any violation of the principles of natural justice either

on the part of the Inquiry Officer, Disciplinary Authority, Appellate

Authority or Revisional Authority. Counsel thus strongly urged for the

dismissal of the present petition, as the punishment awarded to the

petitioner in the light of his proven misconduct cannot be considered to

be shockingly disproportionate.

9. We have heard learned counsel for the parties. We have also

perused the original record produced by the counsel for the respondents.

10. This petitioner had applied for 2 days' casual leave from

12.08.1999 to 13.08.1999 and it is not in dispute between the parties that

the said leave was sanctioned by the Assistant Commandant who was the

sanctioning authority. Application to obtain casual leave was in a

prescribed format and the Assistant Commandant in the relevant column

(sanctioned/ recommendation of Assistant Commandant) while

sanctioning his 2 days' leave w.e.f. 12.08.1999 to 13.08.1999 cautioned

the petitioner that any OSL beyond 15.08.1999 will invite severe penalty.

This self note of Assistant Commandant on the leave application

manifestly shows that the petitioner was to resume his duty on

16.08.1999 and rightly so as 14.08.1999 was a Second Saturday while

15.08.1999 was an Independence Day. Counsel for the respondents

placed reliance on the relevant column of the leave certificate wherein

Column 6 dealing with the date of reporting back to the Unit by the

petitioner, the date mentioned is 15.08.1999 (FN).

11. On perusal of this leave certificate, we find re-writing on the date

15.08.1999 as the date, month and year was re-written after scoring of the

same with FN in brackets appearing below the said date. This

interpolation in the said date makes one thing clear that something was

suspicious and mistrustful at the end of the concerned Assistant

Commandant Area- IV.

12. Be that as it may, without commenting, the respondents themselves

have come out with the case of the petitioner that he had resumed his duty

at 1730 hours on 15.08.1999 which clearly reflects that the petitioner did

not commit any default in resumption of his duty. It is also an admitted

fact that a criminal case was registered against the petitioner for the

serious offences of kidnapping and rape and he was told by the Assistant

Commandant that there was an apprehension of danger to his life from

the residents of the locality. Such a situation could put anybody in grave

fear and trauma and the petitioner despite being a member of the Force

could have been no exception to such adverse situation. The petitioner

was ultimately proved innocent in the said criminal case and he was

honourably acquitted by the order dated 29.05.2001 passed by the Trial

Court in his favour. Not only this, the prosecutrix herself came out to

support the innocence of the petitioner when she stated that she had seen

the petitioner for the first time in Court and had never met him before.

Undeniably, had the petitioner been held guilty of the said offences then

certainly the petitioner would have no case for his restoration in the

disciplined force of CISF but this is not the case here, as ultimately the

petitioner was acquitted of the criminal charges as no evidence was found

against him by the Court to sustain the said charge against him.

13. In the aforesaid circumstance, we hardly find any reason to justify

the award of such a serious punishment to the petitioner directing his

dismissal from service and in fact we hardly find any reason for the

petitioner to undergo even any other form of slighter punishment. The

reasons being that the Articles of Charge III also cannot sustain him as

this Article deals with the previous misconduct for which he had suffered

the necessary punishments and to award him any punishment under this

Article would amount to a case of double jeopardy which would be in

violation of the right of the petitioner guaranteed to him under Article

20(2) of the Constitution of India.

14. So far as the law on this concept of 'Double jeopardy' is

concerned, it is no more res integra that a person must not be put in peril

twice for the same offence. To further elucidate on this point we find

support from the judgment of Hon'ble Apex Court in Sangeetaben

Mahendrabhai patel v. State of Gujarat and another (2012) 7 SCC 621

wherein it was held as follows:

"The fundamental right which is guaranteed under Article 20(2) enunciates the principle of 'autrefois convict' or 'double jeopardy' i.e. a person must not be put in peril

twice for the same offence. The doctrine is based on the ancient maxim nemo debet bis punire pro uno delicto, that is to say, that no one ought to be punished twice for one offence. The plea of autrefois convict or autrefois acquit avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned".

15. In S.A. Venkataraman v. Union of India AIR 1954 SC 375 ,the

scope of doctrine of double jeopardy was explained, observing that in

order to attract the provisions of Article 20(2) of the Constitution, there

must have been both prosecution and punishment in respect of the same

offence. Thus, making it clear that no person should be made to suffer for

any offence/ misconduct twice.

16. So far as the Article of Charge I is concerned, we are of the

considered view that the petitioner did not commit any misconduct as he

had resumed his duty on the cessation of his leave period and then due to

fear and dread created in his mind because of registration of a criminal

case against him for a very serious charge of abduction and rape and on

his being told by the Assistant Commandant himself that there was an

apprehension of danger to his life from the residents of the nearby locality

not much can be attributed to the petitioner for not resuming his duty as

any prudent person in such like situation can lose his mental balance to

take any sensible and rational decision and this is what happened with the

petitioner.

17. In light of the above circumstances, considering the fact that both

the Appellate and Revisional authorities were of the view that the charges

levied under the Article of Charge II was not necessitated, still the

petitioner was visited with a punishment that was un warranted. Such

punishment shakes edifice of justice and fair play. One cannot also lose

sight of the fact that the Petitioner had reported back on duty on

15.08.1999 itself which was as per his sanctioned leave, even though he

was just a few hours late. Moreover, the petitioner did not willingly

absent himself from duty; instead he was taken ill and was advised bed

rest by the doctor. Moreover the Trial Court also acquitted the Petitioner

giving him a clean chit and also held that the prosecution utterly erred in

bringing home the charges levelled against him. Thus we are of the view

that the Petitioner should not be made to suffer such a punishment which

is shockingly disproportionate compared to his conduct; we don't find

any coherent and cogent reason to hold him guilty.

18. Undeniably there cannot be any compromise so far the question of

maintaining discipline, honesty, devotion and professional sanctity is

concerned of all the persons employed in the Indian Armed forces and in

the other Para- military forces but at the same time the senior officers

should always take care that the honour and dignity of even the officer of

the lowest rank is not hampered. Ultimately one must realise the fact that

all the members of these forces serve the country even when they are

posted in far flung and hard areas, far away from their families and other

near and dear ones. Being humans, we must say that in given situations

they also deserve the compassion and concerns for their genuine

problems. In this case the petitioner had reported back on his duties on

the afternoon of 15th and yet shockingly without losing any time he was

served with the suspension order just within a few hours despite the fact

that the officer was conspicuous of the fact that the petitioner has been

roped in a criminal case for which even the villagers of the locality were

looking for him. The Assistant Commandant had also forgotten that it

was our country's Independence Day, a most cherished and treasured day

for all Indians. A day when the entire nation celebrates its freedom from

foreign rule and remembers its freedom fighters and martyrs. It is a day

that signifies liberty. At least the Assistant Commandant should not have

snatched away the liberty of this petitioner and could have waited to

ascertain the correct facts before initiating any precipitate action resulting

in taking away the liberty, rights or livelihood of the petitioner. The

respondents' action is unjustified and deserves to be quashed.

Serendipitously, we are on the eve of another Independence Day when

the nation is heady in the mood of celebration of freedom, we feel that

there could be not better occasion to restore one's glory and honour

which was unfairly snatched away about 15 years ago.

19. For the reasons stated above, the appeal is allowed. In the peculiar

circumstances of the case, especially having regard to the fact that the

appellant is undergoing this agony since 1999 despite having been

acquitted by the criminal court in 2001. The appellant shall be reinstated

forthwith on the post of Constable in CISF unit, BCCL Dhanbad with

notional seniority in his rank and shall also be paid entire arrears of

salary, together with all other allowances from the date of suspension till

his reinstatement, within two months from the date of this order. The

appellant would also be entitled to costs, which is quantified at

Rs.15,000/-.

20. The petition stands disposed off in the above terms.

KAILASH GAMBHIR, J.

NAJMI WAZIRI, J.

AUGUST 11, 2014 v