Delhi High Court
Hari Prakash vs Union Of India & Ors. on 24 November, 2015
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 24.11.2015
+ W.P. (C) 4124/2014
HARI PRAKASH ..... Petitioner
Through: Dr. Vijendra Mehndiyan with Ms.
Pallavi Awasthi, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Rajesh Gogna, CGSC for Resp-1-3
with Ms. Bhavna Bajaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
S.RAVINDRA BHAT, J. (ORAL)
1. The petitioner is aggrieved by a penalty of removal from
service imposed upon him by the Rapid Action Force ("RAF"). This
was preceded by an enquiry initiated by the RAF.
2. The petitioner was working as Constable (GD) in 108th
Battalion in Meerut; on 14.01.2013, the RAF issued an articles of
charge, broadly concerning three incidents between 15.11.2012 and
17.11.2012 during which it was alleged that he made calls to three
senior officers and threatened to kill them, from mobile
no.8273668466. The incident was widely published in newspapers on
W.P.(C)4124/2014 Page 1
21.11.2012. The RAF alleged that this resulted in bringing the force
into disrepute. The second charge was a minor one, i.e., that despite
being asked to remain on bed rest (Attend.„C‟) between the period
16.11.2012 and 18.11.2012 he went out of the premises where the 108
Battalion, Meerut is housed. The third allegation was that he was
negligent in his duties and had disobeyed his superiors on two
different occasions earlier.
3. The first charge leveled was the most serious as it pertained to
three unconnected phone calls received by one Commandant and two
Dy. Commandants of the RAF. Two of them, i.e., Dy. Commandant
Ms. Neelam Bonthial (PW-2) and Dy. Commandant Mr. Arun Kumar
Singh (PW-3) deposed in favour of the RAF and their allegations.
The Enquiry Officer concluded that the petitioner was guilty of
misconduct of all the three charges. The findings were accepted by
the competent authority and the punishment of removal from service
was imposed. This was subsequently upheld by the appellate and
revisional authorities.
4. Learned counsel for the petitioner urges that the findings are
vitiated because the alleged recovery of mobile and the other
materials on record clearly show that he was not the owner of the sim
card (corresponding to no.8273668466). It was urged next that the
Enquiry Officer‟s report is based almost entirely upon the allegations
contained in the FIR and the criminal proceedings which led to the
filing of the final report/chargesheet. Counsel stressed that the mere
FIR itself could not constitute any material for the Enquiry Officer to
W.P.(C)4124/2014 Page 2
decide that it was the petitioner who made the alleged calls and noone
else. It was next urged that the question of the petitioner being
responsible in bringing the force to disrepute would have arisen only
if RAF proves that he had made the threatening calls. Whilst the
matter was still under investigation, without a shred of material to
support the allegation that his cellphone was used to make the calls
which threatened PW-2 and PW-3, an adverse finding in that regard
could not have been rendered. It was urged that so far as the other
two charges are concerned, they are expressly trivial. That the
petitioner was out of the premises though required to be on rest and
that he had been inflicted with two other penalties in the past could
not have been so severely viewed as to result in the imposition of
extreme penalty of removal from service.
5. Learned counsel for the respondents urged that this Court
should desist from interfering with the impugned removal order. He
submitted that the main charge was not that he made the calls but
rather he brought the force to disrepute - which was proved by the
news item carried in the newspapers with fairly wide circulation on
21.11.2012. It was next urged that with respect to the question of
petitioner‟s criminality, the issue is to be decided by the competent
criminal court. An application of the relevant standards, i.e.,
preponderance of probability in departmental enquiries would mean
that there was sufficient material to connect the petitioner with the
calls that PW-2 and PW-3 received.
6. The factual narrative would reveal that even though the first
W.P.(C)4124/2014 Page 3
charge is about bringing the RAF to disrepute, at the root of it is the
alleged threatening calls made by the petitioner. In other words, the
first charge pre-spouses that the petitioner had made threatening calls
and the arrest of the petitioner led to the publication of the news item.
What has to be established essentially is that it was the petitioner who
made the threatening calls from mobile no.8273668466. The material
with which the Enquiry Officer had to deal with inter alia included
the testimonies of PW-2 & PW-3 as well as the FIR. Secondly the
call details records - whether certified or not - were not placed on the
record of the Enquiry Officer during the course of the proceedings.
This material was significant because it would have thrown light as to
whether the instrument recovered from the petitioner‟s custody had
the unique ID (IMEI No.) which was reflected in the call details
records (CDRs) referred to in the FIR and the chargesheet. The
former was made part of the disciplinary proceedings. The omission
to consider primary material which could have been easily sourced
from the police authorities, in the opinion of the Court, vitiates the
findings of the Enquiry Officer. The Supreme Court has held in its
long standing authority in Union of India v. H.C. Goel, 1964 AIR 364
that in such matters whilst the Courts cannot assess the worth of the
evidence in judicial review, it can certainly interfere where a finding
is not warranted because of lack of evidence („no material‟). In this
case, the copy of the FIR merely reflected what its makers believe or
interpreted the CDRs to be. However, that did not obviate producing
of the copy of the CDRs before the Enquiry Officer and furnishing a
copy of the same to the petitioner.
W.P.(C)4124/2014 Page 4
7. So far as the other submission is concerned, the Court is of the
opinion that the second charge was too trivial for the respondents to
have imposed the penalty of removal from service.
8. In the light of the above findings, the findings of the Enquiry
Officer and the impugned order are hereby set aside. It is clarified
that the respondents are at liberty to proceed with the enquiry from the
stage it concludes by adducing such evidence as is necessary to
establish the petitioner‟s involvement in the incident. The respondents
shall pass appropriate order under FR 54B with respect to
consequential reliefs that the petitioner may be entitled to within two
weeks from today. All rights and contentions of the parties are
reserved.
9. The writ petition is allowed to the above extent.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
NOVEMBER 24, 2015
/vikas/
W.P.(C)4124/2014 Page 5
