Delhi High Court
Dinesh Kumar vs Govt. Of Nctd Through The ... on 28 November, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10556/2017 & C.M. No.43211/2017(Exemption)
DINESH KUMAR ..... Petitioner
Through Mr. Sachin Chauhan, Advocate.
versus
GOVT OF NCTD THROUGH THE COMMISSIONER OF
POLICE AND ORS ..... Respondents
Through Mr. Ramesh Singh, Standing
Counsel (Civil) with Mr. Sandeepan Pathak,
Advocate.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE REKHA PALLI
ORDER
% 28.11.2017
C.M. No.43211/2017(Exemption)
Allowed subject to all just exceptions.
The application stands disposed of.
W.P.(C) 10556/2017
1. The present writ petition assails the judgment dated 07.10.2016,
passed by the Central Administrative Tribunal, Principal Bench, New
Delhi in O.A. No.1018/2012, dismissing the O.A filed by the
petitioner. The petitioner had approached the Tribunal by way of the
aforesaid Original Application, challenging his dismissal from service
vide order dated 31.10.2007 as also the order dated 16.03.2011 passed
by the Appellate Authority, affirming the penalty of dismissal imposed
upon him.
2. The facts of the case are as follows:-
The petitioner was appointed in the Delhi Police on 01.09.1987, as a
Constable and was promoted as a Head Constable in the year 1989.
While working as a Head Constable, he was proceeded against
departmentally on issuance of a charge-sheet dated 17.05.1997,
wherein it was alleged that he had entered into a second marriage with
a lady Constable, Ms.Ved Kumari on 08.02.1996, in the Court of Mr.
Sudhir Saran Bhatnagar, Addl. Distt. Magistrate (R & R), Registrar of
Marriage, Delhi, vide Sl. No. 415/1996 of Form 'B' i.e. marriage
certificate dated 08.02.1996, without seeking legal divorce from his
first wife, W/HC Ms. Tejwanti. The defaulter had solemnized his
marriage with W/HC Ms. Tejwanti much earlier, on 09.10.1989, at her
father's house at H No. RZ-28/5, Gali No.13, Indira Park, Palam
Colony, Delhi and a male child, Varun Chaudhary was born from out
of this wedlock on 01.05.1990.
3. Pursuant to issuance of the aforesaid charge-sheet, wherein the
petitioner was alleged to have committed a grave misconduct
unbecoming of a Police Officer, a Departmental Enquiry was held
against him. Despite several opportunities granted to him, the
petitioner did not cooperate in the enquiry proceedings after
conclusion of the examination of his first wife, Ms. Tejwanti (PW1).
Subsequently, the proceedings were concluded ex parte against him.
In the course of the enquiry, the petitioner's second wife, Ms. Ved
Kumari was also examined alongwith three other PWs and one court
witness.
4. Upon consideration of the prosecution evidence, the Enquiry
Officer submitted his report on 31.12.1997, holding that the charge
against the petitioner was fully proved. The petitioner was supplied
with a copy of the final enquiry report with a direction to submit his
representation thereto, if any, within fifteen days, but he failed to do
so. Thereupon, the Disciplinary Authority, after going through the
Departmental Enquiry files, the findings of the Enquiry Officer and
the evidence on record, adduced during the enquiry, held that the
charge against the petitioner stood fully proved. Keeping in view the
gravity of his misconduct, vide order dated 28.02.1998, the
Disciplinary Authority imposed a penalty of dismissal from service on
the petitioner.
5. The petitioner unsuccessfully challenged the penalty order in
his departmental appeal and revision, whereafter he preferred O.A.
No.2100/2005 before the Central Administrative Tribunal. The
Tribunal vide its order dated 04.07.2007, came to a conclusion that
Rule 16 (XI) of the Delhi Police (Punishment and Appeal) Rules 1980
had not been followed while inflicting the punishment of dismissal on
the petitioner as his past punishments had also been considered while
imposing the penalty, without the same having been made a part of the
charge. As a result, the penalty orders as well as the appellate and
revisional orders in the enquiry were set aside, the matter was
remanded back to the Disciplinary Authority for a fresh consideration
and for passing a fresh penalty order.
6. In compliance with the order of the Tribunal, the petitioner was
reinstated in service, but was deemed to be under suspension, since he
had been under suspension at the time of his dismissal, in terms of an
order dated 27.04.1994, for his involvement in the case of FIR No.
192/1994 under Sections 452/506/34-IPC and 25/54/59 Arms Act,
P.S. Nangloi, Delhi. The Disciplinary Authority once again examined
the findings of the Enquiry Officer and the other evidence on record
and came to the conclusion that the charge framed against the
petitioner that he had entered into a second marriage without seeking
legal divorce from his first wife, stood fully proved and the same was
a grave misconduct and, therefore, his further retention in the Police
Force would be undesirable and he was held unfit to serve in a
Disciplined Force. The petitioner was again dismissed from service
with immediate effect vide order dated 31.10.2007, passed by the
Disciplinary Authority.
7. Aggrieved by the dismissal order, the petitioner again preferred
an appeal before the Joint Commissioner of Police which was
dismissed vide order dated 02.05.2008. It may be noted that the
Appellate Authority, while examining the Departmental Enquiry
proceedings, had also called the petitioner's first wife, namely Ms.
Tejwanti on 08.04.2008, who appeared in person with her son and she
had duly corroborated her statement made during the course of the
enquiry.
8. The petitioner once again approached the Tribunal by way of
O.A No.1743/2008, challenging the Appellate Authority's order on
the ground that while rejecting his Appeal, reliance was placed on
extraneous material obtained behind his back and his appeal had been
rejected by taking into consideration the statement of his first wife,
Ms. Tejwanti who had appeared before the Appellate Authority and
given her statement.
9. The Tribunal found merit in the technical ground raised by the
petitioner and vide order dated 14.02.2011, while quashing the
Appellate Authority's order dated 02.05.2008 on the aforesaid limited
ground, remitted the case back for passing a fresh order on the
subject, without considering what had transpired when Ms. Tejwanti
was called in person.
10. In pursuance to the order dated 14.02.2011 passed by the
Tribunal, the Appellate Authority considered the matter afresh and
found that the punishment awarded to the petitioner was justified and
was commensurate with the gravity of his misconduct and
accordingly, dismissed his appeal vide order dated 16.03.2011.
11. In these circumstances, the petitioner approached the Tribunal
by filing of O.A.1018/2012 challenging inter alia, the order dated
31.10.2007 passed by the Disciplinary Authority dismissing him from
service as well as the order dated 16.03.2011, by which the
departmental Appeal was rejected.
12. Before the Tribunal, the petitioner had confined his submissions
to the question of 'quantum of punishment' and had argued that even
if the charges were proved against him the misconduct of bigamy had
nothing to do with the discharge of official duties and the Authorities
should have taken this fact into account.
13. On the other hand, the respondents while justifying the
petitioner's dismissal from service had urged before the Tribunal that
bigamy was a misconduct under Rule 21(2) of the Conduct Rules. It
was further submitted by the respondents that keeping in view the
facts that the petitioner had not even cared to participate in the
departmental enquiry and had raised the defence that he had not
married Ms.Tejwanti only at the appellate stage as also the fact that he
was dismissed from service when he was only thirty years of age with
only about 10 years of service, it could not be said that the punishment
of dismissal for contracting a second marriage was in any manner
excessive or harsh.
14. The Tribunal after taking into account the entire conspectus of
the case, did not find any justification for interfering with the penalty
imposed on the petitioner and accordingly dismissed the O.A. vide
judgment dated 07.10.16. Aggrieved by the impugned judgment
passed by the Tribunal, rejecting his O.A., the petitioner has
approached this Court by way of the present petition.
15. Mr. Sachin Chauhan, learned counsel for the petitioner urges
that the findings of the Enquiry Officer were wholly perverse as he
had held the petitioner guilty of contracting a second marriage with
Ms. Ved Kumari even though there was no documentary proof of his
earlier marriage with Ms. Tejwanti. While drawing our attention to
the Enquiry Report, Mr. Chauhan contends that merely because
petitioner had accepted his acquaintance and friendship with Ms.
Tejwanti, could not be a ground to presume that he had got married to
her.
16. Mr. Chauhan further submits that the Enquiry Officer and the
Departmental Authorities have failed to consider the petitioner's
defence in its proper perspective and that even if the charge of
entering into a second marriage is treated as 'proved', against the
petitioner, the penalty imposed on him was extremely harsh. His
stand is that the extreme punishment of dismissal ought to be inflicted
only on a grave misconduct and not in a case involving charges of
bigamy.
17. Per contra, Mr. Ramesh Singh, Learned Standing Counsel
(Civil) GNCTD while supporting the impugned judgment, relied on
the decision of the Supreme Court in the case of Union of India &
Ors. v. P. Gunasekaran reported as (2015) 2 SCC 610 to contend that
it is not for this Court to go into the proportionality of punishment
unless it shocks the conscience of the Court. He further submits that
the petitioner had contracted marriage with two lady employees of the
Delhi Police and had not even cared to appear during the enquiry. He
submits that keeping in view the facts of the case, the respondents had
rightly arrived at to the conclusion that the petitioner was unfit to be
retained in a Disciplined Force and was therefore dismissed from
service.
18. Having considered the submissions of the counsels for the
parties and examined the record with their assistance, we are of the
view that there is absolutely no merit in the present petition. The
undisputed facts which emerge from the records are that the petitioner
was dismissed from service after a full-fledged Departmental Enquiry
was held in which both the wives of the petitioner had been examined.
In fact, a perusal of the Enquiry Report shows that both of them had
clearly stated facts about their marriage with the petitioner, as per the
Hindu Rights.
19. We find from the record that though the petitioner had initially
appeared before the Enquiry Officer, but after the statement of his first
wife, Tejwanti had been recorded, wherein she had explicitly stated
about her marriage with the petitioner and her abortion in Bhalla
Nursing Home in August, 1995, when the petitioner had signed the
medical documents as her husband, he had abruptly stopped appearing
in the enquiry proceedings. We also find that in her statement, Ms.
Tejwanti had in no uncertain terms stated that the petitioner had
married a lady constable, Ms. Ved Kumari, without getting a divorce
from her. The petitioner had for obvious reasons not cross-examined
any of his wives or the other witnesses examined during the enquiry
and there is absolutely no justification offered by him as to why he
had failed to participate in the enquiry after the initial stage.
20. It is also very intriguing to note that even though learned
counsel for the petitioner has urged that the petitioner's marriage with
Ms. Tejwanti was not proved in the enquiry, despite that, the petitioner
though present before the Enquiry Officer when her statement was
recorded, elected not to cross-examine her on any count. On the other
hand, he merely made a statement that his name was mentioned in the
Ration Card, CGHS Card as well as Nomination Form of Ms.Tejwanti
on humanitarian grounds.
21. In view of the above facts and circumstances, we do not find
any merit in the submission of the learned counsel for the petitioner
that there was nothing to show that the petitioner had married
Ms.Tejwanti. In our view, once there was a categoric statement made
by Ms.Tejwanti that the petitioner had married her, which statement
stood corroborated by the fact that the petitioner's name was
mentioned in the Ration Card, CGHS Card and Nomination Form of
Ms. Tejwanti, the plea that there was nothing to prove the marriage of
petitioner with Ms. Tejawanti, is liable to be rejected outright.
22. In this context, we may refer to the following paras 20 & 21 of
the judgment of the Supreme Court in the case of Union of India &
Ors. v. P.Gunasekaran (supra), on which reliance has been placed by
the learned counsel for the respondents:-
"20. Equally, it was not open to the High Court, in
exercise of its jurisdiction under Article 226/227 of the
Constitution of India, to go into the proportionality of
punishment so long as the punishment does not shock the
conscience of the court. In the instant case, the
disciplinary authority has come to the conclusion that the
respondent lacked integrity. No doubt, there are no
measurable standards as to what is integrity in service
jurisprudence but certainly there are indicators for such
assessment. Integrity according to Oxford dictionary is
"moral uprightness; honesty". It takes in its sweep,
probity, innocence, trustfulness, openness, sincerity,
blamelessness, immaculacy, rectitude, uprightness,
virtuousness, righteousness, goodness, cleanness, decency,
honour, reputation, nobility, irreproachability, purity,
respectability, genuineness, moral excellence etc. In short,
it depicts sterling character with firm adherence to a code
of moral values.
21. The impugned conduct of the respondent working as
Deputy Office Superintendent in a sensitive department of
Central Excise, according to the disciplinary authority,
reflected lack of integrity warranting discontinuance in
service. That view has been endorsed by the Central
Administrative Tribunal also. Thereafter, it is not open to
the High Court to go into the proportionality of punishment
or substitute the same with a lesser or different punishment.
These aspects have been discussed at quite length by this
Court in several decisions including B.C. Chaturvedi v.
Union of India, Union of India and another v. G.
Ganayutham, Om Kumar and others v. Union of India,
Coimbatore District Central Cooperative Bank v.
Employees Association, Coal India Limited v. Mukul
Kumar Choudhuri and the recent one in Chennai
Metropolitan Water Supply."
23. We are of the view that the misconduct committed by the
petitioner is most unbecoming of a member of a disciplined force and
in the facts of the present case there is no force in the submissions of
the learned counsel for the petitioner that the penalty of dismissal
awarded to the petitioner, is disproportionate. We are unable to
concur with the said submission and do not find any disproportionality
in the penalty awarded to the petitioner. As a result, we do not
propose to interfere with the penalty imposed on the petitioner.
24. The impugned judgment dated 07.10.2016 is affirmed and
upheld. The writ petition is dismissed in limine alongwith pending
application, with no order as to costs.
REKHA PALLI, J
HIMA KOHLI, J
NOVEMBER 28, 2017/sr
