Delhi High Court
Narender Singh vs Union Of India And Ors. on 22 July, 2024
Author: Rekha Palli
Bench: Rekha Palli
$~74 & 75
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22.07.2024
+ W.P.(C) 5563/2018
NARENDER SINGH .....Petitioner
Through: Mr. Ankur Chhibber and Mr. Nikunj
Arora, Advs.
versus
UNION OF INDIA AND ORS. .....Respondents
Through: Ms. Avshreya Pratap Singh, SPC with
Mr.Vidur Dwivedi & Ms. Usha
Jamnal, Advs.
75
+ W.P.(C) 9318/2018
DHANANJAY YADAV .....Petitioner
Through: Mr. Ankur Chhibber and Mr. Nikunj
Arora, Advs.
versus
UNION OF INDIA AND ORS. .....Respondents
Through: Mr. Mukul Singh, CGSC with Ms. Ira
Singh, Adv.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
HON'BLE MS. JUSTICE SHALINDER KAUR
JUDGMENT
REKHA PALLI, J (ORAL)
1. The present petitions have been filed under Article 226 of the
Constitution of India by two Constables (General Duty) who were serving in
Central Industrial Security Force ["CISF"] both seeking quashing of orders
dated 26.08.2017 vide which they have been removed from service. The
petitioners also seek quashing of the orders rejecting their appeals as also
their revision petitions. Consequently, the petitioners seek reinstatement in
service with all consequential benefits.
2. The brief factual matrix as emerging from the record is that in 2017,
both the petitioners were posted at NTPC, Navi Nagar, Aurangabad and
were on 12.01.2017 deployed for quarter guard security duty between 1200
hours to 1500 hours. While Narender Singh, the petitioner in W.P.(C)
5563/2018, was stationed at the Morcha located on the first floor of the unit
quarter guard, Dhananjay Yadav, the petitioner in W.P.(C) 9318/2018, was
deputed at the lower Morcha located on the ground floor thereof. At 1240
hour on 12.01.2017 while they were discharging their respective duties, they
saw Ex. Constable Balbir Singh who was deputed on quarter guard duty in
the Morcha between 09.00 hours to 12.00 hours coming out of the barracks
and indiscriminately firing on the ground floor of the Morcha with his fire
arm. It is the petitioner's case that upon realising that Balbir Singh was
attacking personnel/officers in the unit, they blew whistles to inform other
members of the unit. Amidst the resultant commotion, the petitioners claim
that they stood stationed at their post, while Assistant Commandant Ajit
Toppo, who was the unit Commander as also Inspector Ajit Kumar Gupta
who was the Company Commander despite being present on the site,
remained silent and failed to give any instructions. They, in fact, contend
that Assistant Commandant Ajit Toppo on hearing the fire shots closed the
door of his office and HC (GD) R.B. Singh, the Guard Commander along
with other constables who were stationed on the ground floor of the Morcha
with walkie talkies ran away from the place of incident. It was later
discovered that four personnel died in this unfortunate occurrence of firing
by Ex-Constable Balbir Singh.
3. Based on this incident, the respondents issued charge memorandums
not only to the two petitioners but also to Assistant Commandant Ajit
Toppo, Company Commander/Inspector Ajit Kumar Gupta and Head
Constable (GD) R.B. Singh. Separate departmental inquiries were held
against all the five personnel/officers in which it clearly came out that
Assistant Commandant Ajit Toppo, Company Commander/Inspector Ajit
Kumar Gupta and Head Constable R.B. Singh had, instead of taking charge
of the situation either closed the door of their office from inside or fled from
the spot. Based on the findings of the inquiries, while both the petitioners
were removed from service, a penalty of stoppage of one increment and two
increments was imposed on Assistant Commandant Ajit Toppo and
Inspector Ajit Kumar Gupta respectively. HC R.B. Singh, who was the
guard Commander of the unit, was imposed the penalty of compulsory
retirement and is stated to be drawing service pension.
4. Being aggrieved, the petitioners preferred statutory appeals and
revision which were both dismissed leading to the filing of the present
petitions.
5. In support of the petitions, the learned counsel for the petitioners
submits that the petitioners had acted with utmost diligence and took all
possible steps to inform their superior officers about the firing by Ex-
Constable Balbir Singh but have still been awarded the extreme penalty of
removal from service. He submits that the respondents have treated the
petitioners in the most discriminatory manner by imposing the penalty of
removal on them, while Assistant Commandant, Ajit Toppo and Company
Commander/Inspector Ajit Kumar Gupta have been retained in service and
Head Constable R.B. Singh has been compulsorily retired with pensionary
benefits, even though they were all senior to the petitioners and had failed to
provide necessary instructions to pacify the situation. In support of his plea
that the penalty awarded to the petitioners was discriminatory and liable to
be set aside, he seeks to place reliance on a decision of the Apex Court in
Rajender Yadav vs. State of Madhya Pradesh & Ors. [(2013) 3 SCC 73] as
also on a decision of this Court in Virender Singh Chankot vs. Union of
India & Ors. [2019 SCC OnLine Del 11498]. He, therefore, prays that
taking into account the long blemishless service of the petitioners and the
lesser punishment awarded to their seniors in respect of the same incident,
the impugned penalty orders be set aside and respondents be directed to
modify the penalty imposed on the petitioners in such in a manner so that
they do not lose their job.
6. On the other hand, learned counsel for the respondents seeks
dismissal of the writ petitions by contending that the respondents have acted
fairly by awarding punishment by taking into account the role assigned to
each of the personnel/officers deployed at the site. She therefore, contends
that no interference is called for with the penalty imposed on the petitioners
who had exhibited cowardice in not stopping Ex-Constable Balbir Singh.
7. However, after some arguments, she does not deny that Assistant
Commandant Ajit Toppo, instead of issuing any directions to the men under
his command had closed the door of his office from inside. Similarly, there
is no denial to the fact that Inspector Ajit Kumar Gupta as also Head
Constable R.B. Singh left the spot while the firing was ongoing and they
were still imposed lesser punishment than the petitioners.
8. Having considered the submissions of the learned counsel for the
parties and pursued the record, what emerges is that the parties are ad idem
that while the petitioners who were serving as Constable (GD) and were, at
the time of the unfortunate incident of firing, discharging guard duty on the
two floors of the Morcha, there were at least three superior officers namely
Assistant Commandant Ajit Topo, Inspector Ajit Kumar Gupta and Head
Constable R.B. Singh present at the site. There is also no denial to the fact
that these three superior officers either left the spot unattended, or locked
their office from inside leaving the two petitioners and other force personnel
to take care of the untoward situation created on account of Ex. Constable
Balbir Singh firing indiscriminately. Despite their superior officers failing to
issue any instructions, the petitioners remained at the spot. In the light of this
admitted factual position, we are of the view that though the petitioners,
being trained soldiers, who were equipped with the necessary bullet proof
vest and helmet, were bound to take all possible steps to control the
situation, there is merit in their plea that the penalty imposed on them was
shockingly disproportionate. The three other personnel/officers, in our
opinion, had a higher onus to take charge of the situation as undoubtedly it is
for the Unit Commander along with his Company Commander and Guard
Commander to lead their men from the front. Once the Assistant
Commander locked himself in the room and the other two Commanders left
the site, the petitioners who still remained stationed, could not have been
given the gravest punishment of removal from service. The petitioners are
therefore correct in urging that discriminatory treatment has been meted out
to them.
9. In this regard, we deem it appropriate to refer to the following
observations of the Apex Court in Rajender Yadav (supra) as contained in
paragraph nos. 8-10 of its decision. The same reads as under:-
"8. We have gone through the inquiry report placed before us in respect of
the appellant as well as Constable Arjun Pathak. The inquiry clearly reveals
the role of Arjun Pathak. It was Arjun Pathak who had demanded and
received the money, though the tacit approval of the appellant was proved
in the inquiry. The charge levelled against Arjun Pathak was more serious
than the one charged against the appellant. Both the appellants and other
two persons as well as Arjun Pathak were involved in the same incident.
After having found that Arjun Pathak had a more serious role and, in fact, it
was he who had demanded and received the money, he was inflicted
comparatively a lighter punishment. At the same time, the appellant who
had played a passive role was inflicted with a more serious punishment of
dismissal from service which, in our view, cannot be sustained.
9. The doctrine of equality applies to all who are equally placed; even
among persons who are found guilty. The persons who have been found
guilty can also claim equality of treatment, if they can establish
discrimination while imposing punishment when all of them are involved in
the same incident. Parity among co-delinquents has also to be maintained
when punishment is being imposed. Punishment should not be
disproportionate while comparing the involvement of co-delinquents who
are b parties to the same transaction or incident. The disciplinary authority
cannot impose punishment which is disproportionate i.e. lesser punishment
for serious offences and stringent punishment for lesser offences.
10. The principle stated above is seen applied in a few judgments of this
Court. The earliest one is DG of Police v. G. Dasayan² wherein one
Dasayan, a police constable, along with two other constables and one Head
Constable were charged for the same acts of misconduct. The disciplinary
authority exonerated two other constables, but imposed the punishment of
dismissal from service on Dasayan and that of compulsory retirement on the
Head Constable. This Court, in order to meet the ends of justice, substituted
the order of compulsory retirement in place of the order of dismissal from
service on Dasayan, applying the principle of parity in punishment among
co-delinquents. This Court held that it may, otherwise, violate Article 14 of
the Constitution of India."
10. Reference may also be made to the decision in Virender Singh
Chankot (supra) wherein the Co-ordinate Bench observed as under:-
"22. The CAT also appears to have overlooked the legal position as
regards the discriminatory treatment meted out to a charged official vis -à-
vis another charged officer, when the charges for which the charge- sheet
are similar and have arisen out of the same event. In the present case, as
already noticed, although the preliminary enquiry fastened responsibility on
the EE, he was let off with a "recordable warning", whereas major penalty
proceedings were initiated against the Petitioner. In the facts narrated
hereinbefore, it is plain that the four pages of the tender document of M/s.
Rajaram Contractor went missing during the time that the EE handed over
the papers to Mr. Dua, UDC. The essential responsibility at this stage for
the safe custody of the paper was obviously on the EE, and not on the
Petitioner, as is also evident from the CPWD Manual under Section
18.3.16.1."
11. We have also considered the decision in Dalbir Singh vs. Union of
India & Ors.: (2019) 7 SCC 84 relied upon by the respondents but find that
the same is not applicable the facts of the present case where it is an
admitted position that none of the petitioners abandoned their posts unlike
the three superior officers who either left the posts or locked the door of
their office inside.
12. In the light of the aforesaid, we are of the view that the penalty of
removal from service imposed on the petitioners is liable to be set aside. We
accordingly, set aside the removal order dated 26.08.2017 along with the
appellate orders as also the revisional order and remand the matter back to
the disciplinary authority with a direction to reconsider the penalty imposed
on the petitioners within 12 weeks in the light of our observations made
hereinabove.
13. It is, however, made clear that till the respondents pass a fresh order
in terms of this decision, though the removal orders are being set aside, the
petitioners will not be entitled to reinstatement. We hope that while passing
fresh penalty orders, the respondents will take into account that the
petitioners have rendered long blemishless service to the nation and any
order of removal from service or compulsory retirement will leave them
without any source of livelihood. We further make it clear that in case the
petitioners are still aggrieved by the orders passed by the respondents, it will
be open for them to seek legal recourse as permissible in law.
14. The writ petitions stand disposed of in the aforesaid terms.
(REKHA PALLI)
JUDGE
(SHALINDER KAUR)
JUDGE
JULY 22, 2024
SU
