Delhi High Court
Sandeep Yadav vs Union Of India And Ors on 1 November, 2018
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9571/2018
SANDEEP YADAV ..... Petitioner
Through: Mr.V.Shekhar, Senior Advocate with
Mr.Amit Chadha, Advocate.
versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr.Sanjeev Uniyal with Mr.Dhawal
Uniyal, Advocates for R1 & R2.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE SANJEEV NARULA
ORDER
% 01.11.2018
Dr. S. Muralidhar, J.:
1. The Petitioner has challenged an order dated 10 th July 2018 passed by the
Disciplinary Authority i.e. the Director General, CRPF awarding the
Petitioner the penalty of removal from service pursuant to a departmental
inquiry ordered against him.
2. The charge against the Petitioner was that while he was functioning as
DIG, GC CRPF New Delhi in 2014 he committed a serious misconduct in
sending nude pictures of himself and sexually explicit material from his
mobile phone to a woman on her mobile. It was stated that between 6 th May
and 1st June 2014, i.e. a period of 26 days, the Petitioner made 395 calls to
the said woman from his mobile phone mostly during office hours and also
indulged in immoral conversations with her. It was stated that the
Petitioner‟s act had tarnished the image of the organisation and that he had
failed to maintain absolute devotion to duty and had acted in a manner
which was unbecoming of a government servant thereby violating Rule 3(ii)
and (iii) of the CCS (Conduct) Rules, 1964.
3. The reason for the said inquiry was a complaint filed by the woman‟s
husband regarding the aforementioned acts of the Petitioner. A preliminary
hearing was held by an Inquiry Officer who was appointed by the DIG
(CRN Vigilance) Directorate General CRPF by an order dated 22nd July
2015. However, the Petitioner at the preliminary hearing objected to the said
IO and stated that he would apply for change of the IO directly to the
Disciplinary Authority. Thereafter by another order dated 19 th August 2015
another IO was appointed to hold the inquiry.
4. There are two audio compact discs (CDs) containing conversations of the
Petitioner with the husband of the woman and eight photographs. The
presenting officer produced six documents, at the hearing on 18th October
2015 and these comprised of three complaints sent by the husband of the
woman, the CDR of a mobile phone ending with digits 6278, the
aforementioned two audio CDs and eight photographs. The IO noted that
these documents "were inspected by the charged officer and admitted by
him to be correct." They were then taken as State exhibits (SE) and
numbered SE-1 to SE-6.
5. On the aspect of appointment of a defence assistant (DA), the IO
informed the Petitioner that he could not nominate a law qualified person
and to send any other qualified person as his DA. However, by a letter dated
25th October 2015, the Petitioner sought permission to engage a practicing
advocate as his DA. Noting that the presenting officer (PO) was not law
qualified and that under Rule 14(a)(a) of the CCS (CCA) Rules, 1965 the
DA nominated by the Petitioner likewise could not be law qualified, the
Petitioner was again directed to nominate a DA. Thereafter, the Petitioner
nominated a DIG Range CRPF as his DA.
6. By a letter dated 25th October 2015 the Petitioner requested the IO to
provide him 12 documents. On 28th October 2015 the IO wrote to the PO
forwarding the copy of said letter and asked him to make available the said
documents. The PO in turn requested the DIG (CRN DIG) Directorate
General CRPF by a letter dated 29th October 2015 for arranging the
aforementioned additional documents requested by the Petitioner. The DIG
by a letter dated 4th November 2015 inter alia pointed out that the Petitioner,
while requesting for additional documents in his defence, had to indicate the
relevancy of the same. Since he had not done so, there was no requirement
to supply those additional documents.
7. The IO then brought this to the notice of the Petitioner and his DA at the
hearing on 8th December 2015. The Petitioner intimated that in his defence
he would be producing certain photographs, certain audio recordings,
transcript/photographs of messages SMS received from the woman by the
Petitioner, appreciation letter etc.
8. There were three witnesses examined on the side of the complainant.
SW-1 was the woman‟s husband, SW-2 was the woman herself and SW-3 a
Joint Telecom Officer. Nine documents were exhibited on the side of the
Complainant. These included apart from the documents referred to
hereinbefore, ten photographs of the Petitioner which was submitted by SW-
2 while tendering her statement before the IO on 21st December 2015; six
pages of WhatsApp chat between the Petitioner and her and the CDR of the
mobile ending in 6278 submitted by SW-3.
9. On his part the Petitioner examined only himself as a witness. Four
documents were exhibited by him. This included mobile snap shots of
incoming/missed calls from SW-2 to the Petitioner. SWs 1, 2 and 3 were
cross-examined by the DA. The Petitioner was examined on 22 nd December
2015.
10. One of the contentions raised by the Petitioner before the IO was that
government servants were very much entitled to a private life and what a
servant does in his private time (after office/duty hours), is his/her business
and the government has no control over it. The IO in his report responded by
pointing out that the Petitioner was found to have made numerous calls to
SW-2 "during normal office hours." Government servants especially from
Armed Forces because of their training and specific role are subjected to
public scrutiny and were expected to maintain higher standards.
11. On the issue of not being permitted to engage an advocate as a DA the
IO referred to what had transpired, and that the Petitioner did propose the
name of a DA after his request for engaging an advocate was turned down
and that this was consistent with Rule 14(8)(a) of the CCS (CCA) Rules,
1965. On the CDR of the mobile ending in 6278 which SW-2 admitted to
using, it had been authenticated by the BSNL. The CDR of the said phone
had been taken on record. SW-1 had deposed that he had come to know that
two numbers were used by the Petitioner and two by SW-2 one for talking
and one for chatting.
12. On the question of authentification of the audio CDs the IO observed
that the Disciplinary Authority must have got it verified before framing of
the charge. On the contrary, the Petitioner had failed to prove any scientific
proof which could raise a doubt on the authenticity of the CDs. It was noted
that in the said conversations SW-1 was heard to be abusing the Petitioner.
The Petitioner was at the receiving end and was requesting to meet SW-1 in
person so that he could ask for his forgiveness. As such the said audio
recording did not directly relate to any ingredient of the charge.
13. On the issue of the photographs having been „photo-shopped‟ and
unsupported by scientific evidence the IO noted that SW-2 during her
statement identified and attested the ten nude photographs (which were
almost same as the three photographs including SE-6 with slightly different
angle) to be that of the Petitioner. The IO noted that these exhibits were not
questioned by the Petitioner during the inquiry and he was unable to prove if
these were tempered with.
14. Regarding the authenticity of SE-8 containing extract of the immoral
chatting between the Petitioner and SW-2 these were provided by SW-2
herself. This was evident even from the extract of the chat submitted by the
Petitioner himself along with his statement of defence. Again, no material
had been placed on record by the Petitioner to doubt their authenticity.
15. The Court finds that the IO has meticulously analysed the entire
evidence placed on record and answered every issue raised by the Petitioner.
Certain important findings, which have been unable to be controverted, are
that out of the 395 calls made by the Petitioner from his mobile numbers to
the mobile number ending in 6278 used by SW-2 between 6th May and 1st
June 2014, 127 calls were made between 9.30 am and 1.30 pm and 3 pm and
6 pm which were normal working hours in the services. No family member
of the Petitioner was examined to substantiate his claim that his personal
mobile numbers were kept at his residence and used by them. The IO held
that the act of the Petitioner in sending his nude photographs to SW-2, a
married woman, and making immoral conversations stood clearly proved.
16. A copy of the inquiry report was furnished to the Petitioner and he
submitted his comments thereon to the Disciplinary Authority on 3rd
December 2016. The Disciplinary Authority then consulted the Union
Public Service Commission (UPSC) which tendered its advice on 6th
September 2017. The UPSC considered that the ends of justice would be
met if the penalty of removal of service which shall not be a disqualification
for future employment under the Government is imposed on the Petitioner.
17. After receiving a copy of the advice of the UPSC, the Petitioner
submitted his further reply dated 10th January 2018 to Disciplinary
Authority. After considering the said representation of the Petitioner the
impugned order was passed by the Disciplinary Authority.
18. Mr. V. Shekhar, learned Senior Counsel for the Petitioner, first
submitted that the non-supply of the documents sought by the Petitioner
which initially the IO had forwarded to the PO had seriously prejudiced the
Petitioner. He submitted that the IO changed his mind later by justifying the
non-supply of such documents to the Petitioner.
19. The Court finds that valid reasons have been given by the IO for
declining to supply all of the documents as demanded by the Petitioner.
Indeed the Petitioner did not indicate the relevance of those documents to
the inquiry and, therefore, did not comply with the legal requirement in
terms of Rules 11 to 14 of the CCS (CCA) Rules, 1965. The Court also finds
that whatever documents were relevant to the charge against the Petitioner
were indeed provided to him. The IO has strictly gone by those very
documents and the depositions of the witnesses. The Court does not accept
the plea of the Petitioner that the denial of the above documents as
demanded by him has resulted in any miscarriage of justice or has caused
any prejudice to the Petitioner. Indeed many of the documents that he was
seeking had no relevance to the charge against him.
20. Mr. Shekhar then contended that the veracity and authenticity of the
photographs, whatsapp chat etc. ought to have confirmed by an independent
agency such as the Forensic Science Laboratory (FSL) and the failure to do
so has resulted in a miscarriage of justice.
21. It must be remembered that this was a departmental inquiry and not a
criminal trial. As noted by the IO no formal request appears to have been
made to the Disciplinary Authority by the Petitioner at any time that he
wished to have the contents of the audio CDs or the print out of the
whatsapp chats verified or authenticated by the FSL or any other similar
agency. SW-2 produced photographs and whatsapp chats during the course
of her submission and authenticated it. She was subjected to cross-
examination but was unable to be discredited.
22. In fact the key element in the departmental inquiry was the testimony of
SW-2 herself. Although Mr. Shekhar repeatedly urged that SW-2 herself
was not the complainant but it was her husband SW-1 who was the
complainant, the fact remains that the subject matter of the inquiry was
about the Petitioner sending his nude photographs to SW-2; making
innumerable calls to her from his mobile numbers and sending her explicit
texts as whatsapp chats. SW-2 herself was examined as witness and cross-
examined by the Petitioner. He was unable to demonstrate that she was
either untruthful or unreliable. Most importantly the Petitioner was unable to
show there was any oblique motive for SW-2 to falsely accuse him of such
conduct.
23. The Court finds that the decisions relied upon by the Petitioner viz.,
Kuldeep Singh v. Commissioner of Police JT 1998 (8) SC 603 or Roop
Singh Negi v. Punjab Natinoal Bank (2009) 2 SCC 570 are distinguishable
on facts and do not come to the assistance of the Petitioner. Those were
instances of there being absolutely no evidence supportive of charge framed
or instances where documents were produced without their contents being
proved.
24. This Court is not sitting in appeal over the report of the IO. The Court
finds that the procedure adopted by the IO was just and fair and fully
consistent with the requirements of natural justice. All the relevant material
that was necessary for the Petitioner to defend himself against the charge
was provided to him. Further, he was given a full opportunity to present his
defence and challenge the authenticity of the evidence presented against
him.
25. This was not a criminal trial. The standard of proof in a Departmental
Inquiry is not as high as that in a criminal trial. This is also not an instance
where the IO has relied on any irrelevant material in order to come to the
conclusions against the Petitioner.
26. Mr. Shekhar then dwelt on the punishment awarded to the Petitioner and
submitted that it was disproportionate to the alleged misconduct. He also
pointed out to the numerous commendation certificates given to the
Petitioner including the fact that he was awarded the President‟s Police
medal for meritorious service in 2010.
27. The Court can only observe that the higher the position that is held by a
public servant the greater the standard of rectitude that has to be maintained.
Serving as a DIG in the CRPF, a paramilitary force, the Petitioner was not
expected to indulge in the kind of conduct which has been proved against
him in the inquiry. The Court in the circumstances does not consider the
penalty awarded to the Petitioner to be disproportionate to the gravity of his
conduct.
28. The writ petition is accordingly dismissed.
S. MURALIDHAR, J.
SANJEEV NARULA, J.
NOVEMBER 01, 2018
tr
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