Mukesh Gurjar vs Union Of India & Ors.
2020 Latest Caselaw 2703 Del

     *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 23rd September, 2020
+                           W.P.(C) No.6774/2020
         MUKESH GURJAR                                     .... PETITIONER
                    Through:              Dr. L.S. Chaudhary & Mr. Ajay
                                          Chaudhary, Advs.

                                        Versus
         UNION OF INDIA & ORS.                           ...RESPONDENTS

                      Through:            Mr. Abhay Prakash Sahay, CGSC
                                          with Mr. Sayed Hussain Adil Taqvi,
                                          Ms. Mannu Singh & Ms. Indira
                                          Goswami, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON

[VIA VIDEO CONFERENCING]

JUSTICE RAJIV SAHAI ENDLAW

1. The petitioner, an Ex Sub-Inspector (Executive) in the respondents Central Industrial Security Force (CISF), has filed this petition impugning the punishment order dated 26th March, 2016 of his removal from service, appellate order dated 28th June, 2016, revisional order dated 28th February, 2017 and the order dated 9th April, 2019 passed by the Ministry of Home Affairs (MHA) and seeking reinstatement in service, with all consequential benefits.

2. It is the case of the petitioner, that (i) he joined the respondents CISF as a Constable (General Duty) on 6th September, 2008 and on clearing the Limited Departmental Competitive Examination (LDCE), was appointed as

Sub-Inspector (Executive) in the respondents CISF on 9th August, 2013; (iii) the petitioner, on 22nd June, 2015 was posted from Chhindwara, Madhya Pradesh to Bhilai, Chhattisgarh; (iv) the petitioner, to bring his family from Chhindwara to Bhilai, applied for and was sanctioned leave from 20th July, 2015 to 23rd July, 2015; 19th July, 2015 was a Sunday and 18th July, 2015 was a gazetted holiday; the petitioner also took compensatory leave for 24 th and 25th July, 2015; (v) "that while the petitioner was on his way to bring his family, he stayed at Pooja Lodge, Parasia Road, Chhindwara (M.P.) on 18.07.2015"; (vi) on 20th July, 2015, the petitioner was arrested in a "false case" of FIR No.412/2015 under Section 376(2)(c) and (f)/506 of the Indian Penal Code, 1860 (IPC) and Sections 3(2)(v) and 3(1)(w) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 (SC&ST Act);

(vii) vide order dated 20th July, 2015 the petitioner was placed under suspension; (viii) on 6th August, 2015, the petitioner was released on bail by the Sessions Court, Chhindwara, Madhya Pradesh; (ix) on 8th August, 2015, the petitioner rejoined his duties at Bhilai; (x) on 9th August, 2015, the petitioner was served with a chargesheet proposing to hold an enquiry against him, on the charges of (a) having in a pre-planned manner booked a hotel at Chhindwara and of having been arrested and a newspaper report in this regard having been published in the local newspapers of 20th / 21st July, 2015, which tarnished the image of the CISF; (b) having, at the time of booking the hotel, produced the unauthorized I-Card for the post of Constable; and, (c) criminal case of rape having been lodged against the petitioner and which was unbecoming of the position of a member of a disciplinary force like CISF; (xi) the petitioner submitted his reply dated 19th August, 2015 to the chargesheet, denying all the charges; (xii) on 26 th

September, 2015, the petitioner made a representation, pointing out certain illegalities in the departmental proceedings being conducted against him and seeking rejection of the Inquiry or conduct of the same in a free and fair manner; (xiii) the manager of Pooja Lodge, Chhindwara, the complainant in the criminal case and her husband were examined in the departmental inquiry; the manager of Pooja Lodge, Chhindwara categorically stated that no such incident of rape had taken place in the hotel and the complainant and her husband also did not attribute anything to the petitioner; (xiv) during the recording of the statement of the witnesses, the conduct of the Inquiry Officer was in flagrant violation of fair procedure; (xv) the petitioner, on 10th December, 2015 again represented, seeking change of Inquiry Officer; (xvi) the doctor who had post FIR examined the complainant, in her deposition before the criminal court stated that she did not find any external or internal injury on the person of the complainant; (xvii) the learned Special Judge, SC&ST Act, vide order / judgment dated 1st February, 2016 acquitted the petitioner from all charges; (xviii) the Inquiry Officer, ignoring the judgment of the criminal court, submitted his report dated 4 th February, 2016 holding the charges to be proved; (xix) the Disciplinary Authority, considering the acquittal of the petitioner in the criminal case, vide order dated 5th February, 2016 revoked the suspension of the petitioner; (xx) the petitioner submitted a reply to the inquiry report but the Disciplinary Authority, vide order dated 26th March, 2016 imposed penalty of removal from service on the petitioner; (xxi) the appeal and thereafter the revision petition preferred by the petitioner were rejected / dismissed on 28th June, 2016 and on 28th February, 2017 respectively; (xxii) the petitioner moved a review petition dated 16 th May, 2017 under Section 9(3) of the Central Industrial Security Force

Act,1968 and Chapter XI of the Central Industrial Security Force Rules, 2001 to the Government of India; (xxiii) the petitioner, on 15 th March, 2018, 3rd April, 2018, 6th September, 2018, 1st October, 2018 and 20th November, 2018 was informed that his review petition / representation was pending consideration; and, (xxiv) the petitioner, vide letter dated 9th April, 2019 was informed that his review petition had been rejected.

3. This petition filed in or about September, 2020 i.e. after one and a half years of the rejection of the review petition and more than four years from the date when the petitioner was removed from service, has come up today for the first time, for admission. There is no explanation for the delay. There is also no explanation why the petitioner, when the disposal of the review petition was being unduly delayed, did not approach the Court. Such delays are not expected from a person out of service, by now, for over four years. The only inference is that the petitioner is well settled outside his career with the respondents CISF.

4. Be that as it may, having gone through the petition and the documents filed therewith and being prima facie of the opinion that the orders of removal of petitioner from service do not require any interference, we have heard the counsel for the petitioner at length.

5. The counsel for the petitioner firstly contended that once the petitioner had been acquitted in the criminal case in which he was arrested and which criminal case and arrest was the cause of action for the suspension and disciplinary proceedings against the petitioner, the petitioner should not have been removed from service.

6. We are however unable to agree. Attention of the counsel for the petitioner has been drawn to our recent judgment dated 10th August, 2020 in W.P.(C) 5074/2020 titled Akshay Kumar Singh Vs. Union of India noticing that the scope and purport of disciplinary proceedings is different from that of criminal prosecution; while findings in the disciplinary proceedings are on the basis of preponderance of probabilities, as before a civil court, the findings in a criminal prosecution are only on proof beyond doubt; the two proceedings are separate and distinct and uninfluenced from each other.

7. The counsel for the petitioner has however referred us to a judgment of the Division Bench of this Court in George N.S. Vs. Commissioner of Police 183 (2011) DLT 226 (DB) where, applying Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980 providing that when a police officer has been tried and acquitted by a criminal court, he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not, unless the criminal charge has failed on technical grounds or in the opinion of the Court or the Deputy Commissioner of Police, the prosecution witnesses had been won over or additional evidence for departmental proceedings is available, it was in the facts of that case, held that acquittal on account of prosecution failing to prove its case beyond reasonable doubt or on account of lack of evidence cannot be termed as acquittal on technical ground. The counsel for the petitioner has contended that the acquittal of the petitioner in the present case is on merits and not on technical grounds. It is argued that the petitioner also has been acquitted because of the complainant, on whose complaint of the petitioner having committed offence of rape and other offences, the FIR was registered, in her statement before the Sessions Court denying any such

offences having been committed by the petitioner. Reliance in this regard is also placed on Prem Kumar Singh Vs. Union of India 2019 SCC OnLine Del 7563 (DB) where also the punishment of dismissal from service was set aside and reinstatement ordered.

8. We have thus proceeded to peruse the judgment of acquittal of the petitioner and find the petitioner to have been acquitted, recording / reasoning that (i) the complainant, in her statement before the Court having deposed that (a) on the day of the incident, the petitioner had telephonically told her that he had been transferred and asked her for refund of the policy amount; (b) she informed the petitioner that she could not refund the money;

(c) the petitioner threatened her; (d) the petitioner had not committed any other incident with her and report of this much only was lodged by her; (ii) the complainant admitted that she had consented for medical examination and had made a statement before the Judicial Magistrate under Section 164 of the Code of Criminal Procedure, 1973 (Cr.P.C.); (iii) the prosecution had declared the complainant hostile and cross-examined her; (iv) in her cross- examination, she stated that she made the statement under Section 164 Cr.P.C. under the influence of the police; (v) the husband of the complainant was also examined by the prosecution but declared hostile and cross- examined; (vi) the Medical Officer at the district hospital who post FIR had conducted the medical examination of the complainant to have deposed that though she did not find any injury mark on the body or on the private parts of the complainant but the complainant had felt plain at the time of the examination and thus the possibility of sexual intercourse could not be ruled out; (vii) however since the complainant herself had not stated anything regarding rape by the petitioner, in such circumstances, the statement of the

Medical Officer that the complainant had felt pain in her vagina, was of no consequence; (viii) the complainant was an educated lady and in the FIR the fact of the petitioner having committed rape with her and having extended threat to kill her was clearly mentioned; not only this, she had also stated in her statement under Section 164 Cr.P.C. before the Judicial Magistrate that the petitioner had committed rape on her by calling her to Pooja Lodge, Chhindwara and threatened to kill her; but during her cross-examination in the Court she became hostile; (ix) "apparently, she has compromised with the accused"; (x) in these circumstances, the petitioner cannot be convicted and the prosecution had failed to prove the offences with which the petitioner had been charged.

9. It would thus be seen that the Sessions Judge has clearly mentioned that the petitioner was acquitted because of having compromised with the complainant on whose complaint the petitioner was arrested and prosecuted.

10. In these circumstances, we fail to see how it is open to the counsel for the petitioner to even suggest that the acquittal of the petitioner is honourable.

11. The counsel for the petitioner has also placed reliance on G.M. Tank Vs. State of Gujarat (2006) 5 SCC 446 pertaining to a government servant who had been accused of having illegally accumulated excess income by way of gratification on the basis of discovery of assets disproportionate to his income. The Court, in the facts of the case, found that as the departmental proceedings and the criminal case under the Prevention of Corruption Act, 1947 were based on identical and similar set of facts and the charge in the departmental case and the charge before the Criminal Court were one and the

same and that the accused was acquitted by judicial pronouncement after a regular trial and „on hot contest‟, finding the charges against the accused to have not been proved, the distinction which usually exists between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable and the honorable acquittal of the employee in that case, required to be taken note of.

12. In our opinion, the reliance placed by the petitioner on the aforesaid judgment is misconceived inasmuch as, as aforesaid, the acquittal in the present case is by no means honorable and the finding of the Sessions Judge is not based on a „hot contest‟ but rather, on the complainant turning hostile after arriving at a compromise with the petitioner. Moreover, even otherwise, on a perusal of the charges framed and dealt with by the Inquiry Officer, as per the admitted case of the petitioner also, it is observed that the charge against the petitioner is three-fold, firstly, the petitioner in a pre-planned manner having booked a room in Pooja Hotel, of complaint of the offence of rape by force in the hotel room having been lodged against him, of FIR on the basis of said complaint having been registered against the petitioner and the petitioner having been arrested in pursuance thereto and the alleged incident of rape being reported in the newspaper identifying the petitioner as a member of the Force, tarnishing the image of the Force; secondly, the petitioner, after seeking leave for reason "bring family", proceeding to book a room in Pooja Hotel, Chhindwara and furnishing identity card identifying the petitioner as „Constable‟; and, thirdly, of the petitioner having shown irresponsible behavior, having violated the Rules and having committed great indiscipline. Thus, it cannot be said that the charge in the departmental proceedings and in the criminal case were one and the same.

13. Though we have already referred to Akshay Kumar Singh supra but may also refer to Union of India Vs. Sitaram Mishra AIR 2019 SC 3534, also laying down that (i) a disciplinary inquiry is governed by a different standard of proof than that which applies to a criminal case; (ii) in a criminal trial, the burden lies on the prosecution to establish the charge beyond reasonable doubt; (iii) the purpose of a disciplinary inquiry is to enable the employer to determine as to whether the employee has committed a breach of the service rules; (iv) the fact that the employee was acquitted in the course of criminal trial cannot operate ipso facto as a ground for vitiating the finding of misconduct which had been arrived at during the course of disciplinary proceedings and the High Court had drawn erroneous inference from M. Paul Anthony Vs. Bharat Gold Mines Ltd. (1999) 3 SCC 679; and,

(v) acquittal in a criminal case is not a ground for setting aside the penalty which was imposed in the course of disciplinary proceedings. Reference may also be made to Union of India Vs. Purushottam (2015) 3 SCC 779, Deputy Inspector General of Police Vs. S. Samuthiram (2013) 1 SCC 598, Avinash Sadashiv Bhosale Vs. Union of India (2012) 13 SCC 142, Noida Entrepreneurs Association Vs. Noida (2007) 10 SCC 395, Commissioner of Police, New Delhi Vs. Narender Singh (2006) 4 SCC 265, South Bengal State Transport Corporation Vs. Swapan Kumar Mitra (2006) 2 SCC 584 and Ajit Kumar Nag Vs General Manager (P.J.), Indian Oil Corporation Ltd., Haldia (2005) 7 SCC 764, reiterating that (a) if the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted; (b) even in case of acquittal, the proceedings may follow where the acquittal is other than honorable; (c) acquittal of an employee by a criminal Court would not automatically and

conclusively impact departmental proceedings; (d) criminal prosecution is not within the control of the department concerned and acquittal could be the consequence of a shoddy investigation or slovenly assimilation of evidence or lackadaisical if not collusive conduct of the trial; (e) only if the criminal Court has concluded that the accused is innocent, that the disciplinary proceedings should also end; and, (f) else, if the criminal Court has merely concluded that accused had not been proved to be guilty beyond reasonable doubt, the disciplinary proceedings can take a different view.

14. The counsel for the petitioner has also referred to Abrar Ali Vs. CISF 2014 SCC OnLine Del 4064 (DB) to contend that there also acquittal in criminal prosecution resulted in the Division Bench of this Court ordering the reinstatement of the petitioner therein.

15. However we find reliance by the counsel for the petitioner on Abrar Ali supra to be erroneous inasmuch as the said judgment of the Division Bench of this Court was set aside in Central Industrial Security Force Vs. Abrar Ali (2017) 4 SCC 507. We need say, in Abrar Ali supra, a three Judge bench of the Supreme Court, referring to Union of India Vs. P. Gunasekaran (2015) 2 SCC 610 also discussed the parameters of interference in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India with respect to the decision of the disciplinary authorities. We are constrained to observe that Dr. L.S. Chaudhary, Advocate who appears for the petitioner herein was also the counsel for Abrar Ali before the Division Bench of this Court as well as before the Supreme Court and we take exception to his citing the judgment of the

Division Bench without informing us of the subsequent judgment of the Supreme Court disagreeing with the view taken by the Division Bench.

16. A perusal of the orders of the Disciplinary Authority, the Appellate Authority and the Revisional Authority show the same to have dealt with the charges in accordance with law and having correctly arrived at the finding, of the charges against the petitioner having been proved and are not found to suffer from any vice requiring interference in exercise of jurisdiction under Article 226 of the Constitution of India. It cannot be lost sight of, that undue interference by the Court in decisions of the Disciplinary Authorities of the employer, particularly an armed force like CISF, has potential of diluting the authority of the Disciplinary Authorities and of inculcating indiscipline in the personnel of the force and which indiscipline can play havoc with the functions and duties which such personnel of the force are required to perform.

17. The petitioner in the petition has pleaded that he reached Chhindwara, where his family was residing in the official accommodation allotted to the petitioner at Chhindwara, at 7.30 AM in the morning but did not proceed to his official accommodation where his family was residing and checked into a hotel because his official residence was 38 kms. away and because he had to visit the SBI Life Insurance Office at Chhindwara. The petitioner has further pleaded that on visiting the SBI Life Insurance Office at Chhindwara on 18th July, 2015, he found it closed on account of being Saturday and telephonically contacted his insurance agent who told him that she would come to the place where the petitioner was staying. We may record that it is the said insurance agent on whose complaint of the offence of rape and other

offences, FIR against the petitioner was registered and the petitioner arrested.

18. The petitioner having himself pleaded in the petition that he sought leave from 20th July, 2015 to 23rd July, 2015 to bring his family from Chhindwara to Bhilai, to also avail of Sunday falling on 19th July, 2015 and a gazetted holiday falling on 18th July, 2015, we have enquired from the counsel for the petitioner that since the petitioner knew that 18 th July, 2015 was a gazetted holiday, how did he expect the SBI Life Insurance office at Chhindwara to be open on that date.

19. Neither any explanation has been given in the petition nor is any reply coming forth.

20. A minute scrutiny of the pleadings of the petition shows that the petitioner checked into the hotel early morning, knowing that the office of SBI Life Insurance would be closed on that date and to meet the insurance agent at the hotel. No error can thus be found in the charge framed in the disciplinary proceedings, of the petitioner having "pre-planned". It is not the case of the petitioner that on reaching Chhindwara, he straight went to SBI Life Insurance Office and on finding it closed, checked into the hotel. The plea is of reaching Chhindwara and checking into the hotel at 7.30 AM and the office of SBI Life Insurance could not have been expected to be open at that time.

21. Even otherwise, the version of the petitioner, of inspite of reaching Chhindwara, where his wife and family was, not proceeding immediately to his home/residence but checking into a hotel, has rightly been construed by the Disciplinary Authorities as pre-planning by the petitioner. In this context,

we may notice that the petitioner does not dispute (a) the visit of the insurance agent / complainant, a lady, unaccompanied with her husband or anyone else, in his room in the hotel at Chhindwara; (b) the lodging of the FIR of the offence of rape and other offences; and, (c) arrest of the petitioner. From the said admitted facts and the conduct of the petitioner, notwithstanding the acquittal of the petitioner in the criminal case, order of upholding of the charge by the Disciplinary Authority cannot be said to be such which no reasonable person could have reached.

22. In this context, we have also asked the counsel for the petitioner, (i) how did the petitioner travel from Bhilai to Chhindwara; (ii) how much is the distance between Bhilai and Chhindwara; (iii) what time did the petitioner leave Bhilai and what time did he reach Chhindwara; (iv) if the petitioner, before proceeding to his residence in Chhindwara intended to visit the office of the SBI Life Insurance, why did he not arrange his departure from Bhilai so as to reach Chhindwara at the time when the office of SBI Life Insurance was open; and (v) why could the petitioner, even if his residence was 38 kms. away, not come back to the office of the SBI Life Insurance on 18 th July, 2015 or on any day between 20th to 25th July, 2015.

23. Neither are answers to any of the aforesaid found in the petition nor does the counsel for the petitioner has instructions. He vaguely states that the distance between Bhilai to Chhindwara must be 500 kms.

24. A search on the internet discloses the distance between Bhilai and Chhindwara to be 371.2 kms. and the usual mode of transport being via National Highway 53 and taking 8 hours and 11 minutes by bus and 7 hours 32 minutes by private transport.

25. In the normal course of human conduct, a person travelling this distance by road would be anxious, on reaching the destination, to first go to his home before running errands, even if any.

26. The counsel for the petitioner has next moved to technical pleas. It is argued that the Inquiry Officer himself conducted cross-examination of witnesses produced by the petitioner. Reliance is placed on Union of India Vs. Ram Lakhan Sharma (2018) 7 SCC 670 where it was held that the disciplinary proceedings are quasi judicial proceedings and the Inquiry Officer is in the position of an independent adjudicator and is obliged to act fairly, impartially, in good faith and without any bias; if the Inquiry Officer plays the role of the prosecutor, the inquiry would be invalid.

27. We have however drawn the attention of the counsel for the petitioner to our recent judgment in Rajendra Singh Vs. Union of India MANU/DE/1648/2020 holding that the departmental proceedings are inquisitorial and not adversarial in nature. In fact, the use of the word "inquiry" in relation thereto itself indicates that nature and scope thereof i.e. to seek the truth, as distinct from adjudication in Courts which is adversarial in nature i.e. dependent on what is produced by the two parties and which may not always result in establishing the truth, as more known to happen in criminal prosecutions, as also in the prosecution of the petitioner herein. It cannot be lost sight of that the Inquiry Officer is not concerned with the disciplinary action if any to be taken against the employee enquired against and is only concerned with submitting the result of his inquiry to the Disciplinary Authority. Before the Disciplinary Authority, even if the Inquiry Officer has found the charge to have been made out / proved, the

employee again has an opportunity to show that the conclusions drawn by the Inquiry Officer are erroneous or that there is no basis for the said conclusion or that the Inquiry Officer has not considered any evidence produced by the accused. In the present case, the consistent view of the Disciplinary Authority, Appellate Authority, Revisional Authority and of the Ministry of Home Affairs is of the charges on the basis of which disciplinary action was initiated against the petitioner, having been made out. Once the said charges have been held to be made out, it is not even the argument of the counsel for the petitioner that the punishment of removal is disproportionate.

28. In our view, the question is not of whether the Inquiry Officer, inspite of the presence of the presenting officer, has himself put questions to the witnesses examined before him during the course of the inquiry. The test is whether in doing so, the Inquiry Officer has acted with a bias against the employee or has been impartial. If it is found that the questions put by the Inquiry Officer are only to seek the truth, with reporting of which the Inquiry Officer has been entrusted, it cannot be said that the Inquiry Officer was biased or acted impartially.

29. As far back as in Union of India Vs. H.C. Goel AIR 1964 SC 364, a five Judge Bench of the Supreme Court held that, (i) it is obvious that the Inquiry Officer holds the inquiry against the employee, as a delegate of the employer - that indeed is the character which the Inquiry Officer inevitably occupies when he holds a departmental inquiry at the instance of the employer; (ii) the object of the inquiry is plain; it is to enable the employer to hold an investigation into the charges framed against the delinquent

employee so that the employer, in due course, considers the evidence adduced and decides whether the said charges are proved or not; (iii) the interposition of the inquiry which is held by a duly appointed Inquiry Officer does not alter the true legal position that the charges are framed by the employer and it is the employer which is empowered to impose punishment on the delinquent employee; and, (iv) the findings recorded by the Inquiry Officer do not bind the employer. Similarly, in The Workmen Employed in B&C Mills, Madras Vs. The Management of B&C Mills, Madras MANU/SC/0592/1969 also it was held that the mere fact that the Labour Officer had put questions to the witnesses and sought clarification was no ground to warrant criticism that the Labour Officer had acted both as the prosecutor and the Judge. To the same effect are State of Assam Vs. Mahendra Kumar Das (1970) 1 SCC 709, Mulchandani Electrical & Radio Industries Ltd. Vs. The Workmen (1975) 4 SCC 731, Om Pal Singh Vs. Union of India (2006) SCC OnLine Del 290 (DB) (expressly laying down that disciplinary inquiry proceedings cannot be regarded as adversarial in nature as the aim and purpose thereof is to find out the truth and whether or not the misconduct alleged against the employee stands proved) and Sub Inspector (S.I.) Badruddin Vs. Government of NCT of Delhi MANU/DE/7429/2011 (DB), in turn relying on The Workmen Employed in B&C Mills, Madras supra, Mulchandani Electrical & Radio Industries Ltd. supra and Om Pal Singh supra holding that an Inquiry Officer in a domestic inquiry can put questions to the witnesses for clarification wherever necessary and inquiry proceedings cannot be impeached as unfair on this ground (SLP (C) No.8204/2012 preferred whereagainst was dismissed on 8th May, 2012).

30. No other argument has been urged.

31. No ground for interference with the orders of the Disciplinary, Appellate, Revisional Authorities and of the Ministry of Home Affairs, of removal of the petitioner from service of respondents CISF is made out.

Dismissed.

RAJIV SAHAI ENDLAW, J.

ASHA MENON, J.

SEPTEMBER 23, 2020 „gsr‟..