L. Barik vs Uoi And Anr.
2015 Latest Caselaw 7329 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Decided on : 24.09.2015
+      W.P.(C) 6084/1998
       L BARIK                                      ..... Petitioner
                       Through : Sh. Medhanshu Tripathi and Sh. A.K.
                       Singh, Advocates.
                       versus
       UOI & ANR                                    ..... Respondents

Through : Sh. Kirtiman Singh, CGSC with Sh.

Gyanesh Bhardwaj, Advocate, for UOI.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%

1. The Petitioner, in these proceedings, challenges his dismissal from service, by his public employer, the Central Industrial Security Force (CISF) on the ground of proven misconduct.

2. The brief facts of the case are that the petitioner was appointed by the CISF at Orissa in February 1985 and later transferred to the CISF Unit HEP, Uri in Jammu & Kashmir. Due to chest pain he was unable to attend the Game Period on 21.05.1996. The petitioner submits that despite informing the Assistant Commandant, Mr. Ratan Singh, he could not avail medical treatment, as security arrangements for transportation were not made. He was instead transferred to Bandi Post - a remote area without medical facilities. On 27.05.1996, the Petitioner was directed to attend the orderly room proceedings before the Assistant Commandant. When he reported, he carried a tape-recorder on his person, in anticipation of harassment. Upon

W.P.(C) 6084/1998 Page 1 being admonished for not attending the game period, the Petitioner revealed that he had recorded the proceedings, and would seek appropriate redressal. The next day, the petitioner was suspended from service under Rule 30(1) of the CISF Rules, 1969. An appeal against the Suspension Order was rejected on grounds of limitation. Further, 6 charges were framed against the petitioner - for blackmailing a senior, attempting to assault a senior officer, for using unparliamentarily language, pointing a rifle at SI Ranvir Singh, entering into a conspiracy with Constable Yakub Sharif, and for previous misconduct.

3. The enquiry conducted after the examination of 6 defence witnesses led to proof of four charges; two were partly proved. Subsequently, the Petitioner was dismissed from service on 20.09.1996 by the Commandant, CISF Unit HEP, Uri. His appeal against the dismissal was rejected by the DIG on the grounds that he failed to present his defence, despite being given an opportunity to do so, and that there was no statutory provision in the rules of the CISF to tape-record orderly proceedings. Further, under Rule 29, read with Schedule II of the CISF Rules, the Commandant was competent to award dismissal from service as a punishment.

4. The Petitioner, in this writ petition, challenges the legality and correctness of the aforementioned appellate Order by the Deputy Inspector General on the grounds that firstly, he was not informed that he could present his case with the help of any other member of the force, as per Rule 34 (5); secondly all the defense witnesses were not called, and specific direction to attend the enquiry proceedings was not given; thirdly, the enquiry proceedings were not conducted as per the Public Servants

W.P.(C) 6084/1998 Page 2 (Inquiries) Act, 1850 and Rule 34 of the CISF Rules and that the enquiry was conducted in an improper manner, as the Inquiring Officer was of the same rank as the Assistant Commandant, from the same unit, and there was improper reliance on prosecution witnesses, whose statements were contradictory.

5. Mr. Medanshu Tripathi, learned counsel for the petitioner argued that the inquiry conducted was unfair and the findings recorded were contrary to the facts adduced. It was argued that the witnesses who deposed against the petitioner recorded their statements in a stereotypical manner, parroting the allegations leveled by the Assistant Commandant. Learned counsel submitted that the truth of what the petitioner apprehended was fully established by the transcript of the tape recording and relied on portions thereof. He submitted that the petitioner feared that trumped up charges on flimsy allegations would be foisted on him; as a precaution, he kept the tape recorder. There was no bar to a force personnel keeping such a tape recorder. Subsequent events revealed a trivial fight, instigated with premeditation, which became the focal point. Learned counsel submitted that it was improbable that the petitioner would have threatened to use the rifle against the commanding officer; he relied on the version of the defense witnesses. Counsel argued that taken together, there was no evidence to support the conclusions in the Enquiry Report and consequently, the dismissal order was unsustainable in law.

6. The CISF argues that the Petitioner's transfer to HEP Uri was in accordance with the transfer policy, and the reason given by him for not attending the Game Period was that he was going to the Army Canteen.

W.P.(C) 6084/1998 Page 3 When he needed to visit the hospital, he did not inform his superior, nor did he take permission. The petitioner was asked to visit the BSF doctor and accordingly Naik K.P. Singh was detailed to accompany him due to Standing Orders on security; however petitioner refused to visit the doctor on that day. On the following day the petitioner was taken to the BSF doctor, along with an escort party in a CISF vehicle on the directions of the Assistant Commandant. It is also submitted that Unit posts are periodically rotated so as to acquaint the personnel with the area of responsibility, and the Petitioner's appointment to Bandi post was not done with the intention to harass him. Further, all defence witnesses were called except for the entirety of personnel of Bandi post, Gingle post, and those present in the roll call on 27.05.1996. When asked to name some personnel specifically who would be of help, petitioner failed to give names. The Enquiry Officer, hence, carried out the proceedings impartially and according to the stipulated rules. The finding of the enquiry report was given to the petitioner, who then failed to respond to it.

7. In regard to the legality of the enquiry proceedings, the Respondents submit that the Enquiry Officer was appointed by a competent authority to hold a departmental enquiry, and that the proceedings were conducted as per Rule 34 of the CISF Rules. It had to be conducted ex parte, as the petitioner refused to attend without being allowed to tape-record. The Petitioner also failed to raise his concerns at the weekly grievance room held by the Commandant. As regards seizure of the cassette, the respondents submit that the cassette and tape recorder were seized by Reserve Inspector and Assistant Commandant Ratan Singh, and kept for safe custody with the

W.P.(C) 6084/1998 Page 4 officer in charge of Crime and Intelligence, and that there was no scope of the recording being tampered with.

Analysis and Conclusions

8. The charge against the petitioner was that he went to the Assistant Commandant's office, upon being summoned, (in connection with his previous absence), with a tape recorder; before entering the office, he kept his rifle outside. The misconduct alleged was essentially two fold, i.e. that of carrying a tape recorder, to tape the conversation, with a mala fide intention and the second - perhaps more serious charge, was that he rushed outside the Commandant's room, grabbed the rifle and returned, to point it at the officer. The CISF alleged that this was witnessed by others, and relied on their testimony in the departmental proceedings. It was alleged that the petitioner pointed the weapon at the others and threatened to kill them; the tape recorder was subsequently recovered. The most relevant finding here is that the CISF's Enquiry officer concluded that the charge as framed contained two elements, i.e. that of taking the rifle and keeping it outside with the intention of using and that of pointing it, later, at the Assistant Commandant. The Enquiry Officer concluded that the first element, i.e. intentional keeping of the rifle with the view to use or point it later, had not been proved. The Petitioner had, during the hearing, used the findings in respect of this charge to say that despite exoneration, he had been unfairly dealt with. It was contended that the petitioner's use of the tape recorder was warranted, given the past history of the abusive language used by Assistant Commandant not only against the petitioner, but others. It was argued that the tape recording transcripts clearly vindicated the petitioner's charge that

W.P.(C) 6084/1998 Page 5 he was forcibly held at the direction and command of the Commandant who then went on to frame him on trumped up and false charges.

9. This Court has considered the Enquiry Officer's report. No doubt, the Enquiry Officer concluded that the petitioner had gone into the Assistant Commandant's office after keeping his rifle and that he did not have any premeditation or prior intent to use it. However, that is not the end of the story. The fact remains that he did keep the rifle outside; ipso facto that may not be misconduct. But what followed subsequently was serious. When he did go into the Assistant Commandant's office, and was asked to take out his tape recorder, he refused; he also rushed out, snatched his rifle and pointed it at the Assistant Commandant, even threatening to shoot. Not only the Assistant Commandant (PW-1) but others corroborated these facts as well (PW-3 and PW-5). The petitioner was afforded opportunity to cross- examine these witnesses, which he did. Both witnesses stated that the petitioner went back and pointed the rifle; he was ordered to cease arms; it was only with the intervention of others that he was disarmed. This amounted to another misconduct, of which the petitioner was found guilty.

10. In Union of India v. HC Goel: AIR 1964 SC 364 the Supreme Court held that:-

"23. In exercising its jurisdiction under Art. 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which dealt with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charges in question is proved against

W.P.(C) 6084/1998 Page 6 the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not."

B.C. Chaturvedi v. Union of India and others, (1995) 6 SCC 749 is authority for the proposition that the Courts should not review orders of penalty in the first instance as bodies exercising jurisdiction to discipline the offending official. Rather, the Court is concerned with whether the order was preceded by a fair procedure, where the accused's conduct received objective consideration and whether he received fair opportunity to present his case or justify the conduct alleged against him. Of course, if these mandatory procedures are not adhered to, the employee would be given the benefit. If however, the defects are of a technical nature, which cannot determine the outcome of the inquiry, the Court would not intervene. Similarly, the Court would not interfere merely because there is some misappreciation of facts during the inquiry, unless the result is one no reasonable man would have reached.

11. Given the state of the record and the settled position of law that the Court would not re-appreciate findings of fact, the findings on the basis of which the penalty was imposed were based on materials and evidence that were relevant and reasonably appreciated. The Court is also of the opinion that the misconduct, i.e. pointing a gun at the superior officer was grave as to warrant dismissal. At the same time, this Court notices that the petitioner had considerable period of service. Dismissal in his case meant the forfeiture of all past service and terminal benefits. Therefore, the CISF should appropriately consider his case for grant of compassionate allowance under Rule 41 of the CCS (Pension) Rules. A direction is issued to such effect; the

W.P.(C) 6084/1998 Page 7 CISF shall take into consideration all the circumstances and issue an order under Rule 41 in this regard, within 5 months from today. The order shall be directly communicated to the petitioner.

12. The writ petition is disposed of in terms of the above findings and directions.

S. RAVINDRA BHAT (JUDGE)

DEEPA SHARMA (JUDGE) SEPTEMBER 24, 2015

W.P.(C) 6084/1998 Page 8