Full Judgment
$~25 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 6523/2013 Date of Decision:
10. h October, 2013 SUNIL KUMAR ..... Petitioner Through: Mr.S.N.Kaul and Mr.R.S.Kaushik, Advocates. versus UNION OF INDIA & ORS. Through: ..... Respondents Ms.Barkha Babbar, Adv. for UOI. CORAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MS. JUSTICE DEEPA SHARMA ORDER
% 10.10.2013 GITA MITTAL, J.
(Oral) C.M.No.14181/2013 Exemption is allowed subject to just exceptions. Application is disposed of. W.P.(C) 6523/2013 1. By way of the present writ petition the petitioner has assailed the order dated 18th January, 2012 passed by the disciplinary authority accepting the enquiry report dated 27th December, 2011.
2. The petitioner was employed as a Sweeper in the CISF as back as on 01.08.1994. It is not disputed that he was awarded punishment for overstay on 31st July, 2001, 8th May, 2008 and 9th August, 2010. In this background, with regard to the incident occurred on 25th October, 2011, disciplinary proceedings was conducted against the petitioner pursuant to the memorandum of charges dated 8/9th November, 2011 wherein the following charges under Rule 36, CISF Rules, 1969 were levelled against the petitioner:
“ Article of Charge-I On 25.10.2011 at about 2225 hrs, while on two days Medical Rest member of the Force No.9413400023 constable/sweeper Sunil Kumar beat constable/sweeper Phool Singh after coming inside the unit’s Barrack and caused him grievous injury on his face. It amounted to misconduct, irresponsible behaviour and gross indiscipline. Article of Charges-II The member of the Force No.941340083 constable/sweeper Sunil Kumar had been awarded three minor punishment during his past service. He did not improve his conduct despite been awarded these punishment. He is habitual of doing acts of misconduct.”
3. In his reply, the petitioner had taken up the stand that he was on medical rest on the fateful day i.e. on 25 th October, 2011 and therefore denied involvement in the incident which was the subject matter of the first charge.
4. In the disciplinary proceedings, the respondents examined ten witnesses. No defence was led by the petitioner. The Enquiry Officer submitted a report dated 27th December, 2011 holding that both the charges taken were proved against petitioner. This report of the Enquiry Officer was accepted by an order dated 18th January, 2012 of the disciplinary authority whereby the punishment of penalty of removal from service was also imposed against him. The petitioner filed a statutory appeal assailing the order of the disciplinary authority which was rejected by an order passed on 31st May, 2012.
5. The revision to the Inspector General of the CISF was also rejected by the order passed on 31st August, 2012.
6. Before us the petitioner has challenged the orders of the disciplinary authority, appellate authority and revisionary authority primarily on the ground that the same were supported by no reliable evidence. We find that so far as the first charge is concerned, the prosecution has examined the victim Phool Singh as PW10 who has unequivocally supported the prosecution and his testimony could not be shaken by the petitioner in the cross-examination.
7. So far as occurrence is concerned, apart from PW10 Phool Singh, PW1- SI Rulia Ram has supported the same inasmuch as he has reached the spot hearing the noise created by Constable Phool Singh. PW1 SI/Exe Rulia Ram also clearly stated that he had seen Ct./Swpr. Sunil Kumar (petitioner herein) running from the room of Const.Phool Singh and that he ran away on his scooter.
8. It is trite that the statement of the victim, if found true, can be relied upon to support the conviction even in a criminal case. There is no reason at all to doubt the statement made by Const.Phool Singh. The same is supported by contemporaneous evidence not only by SI/Exe.Rulia Ram but also by PW3 Daya Ram who reached the spot and saw Const.Phool Singh in an injured condition. PW9 HC/GD B.S.Singh has also deposed to the same effect.
9. Learned counsel for the petitioner has vehemently urged that Const.Phool Singh deserves to be disbelieved for the reason that he did not get a medical examination conducted on the same date. This witness has given an explanation for the same. It is has been pointed out that the incident had occurred in the late hours of the night of 26th October, 2011. The hospital was closed on account of it being a gazetted holiday as it was the Diwali festival; The victim has stated that he was given first aid treatment in the Unit Lines and that he had gone to the hospital on 27 th October, 2011. In this regard, the NHPC doctor has confirmed the injuries suffered by Const.Phool Singh vide a prescription slip no.11820 dated 27.10.2011 which was proved in the enquiry as Ex.PW-10/Exb-I & Exb-II. Our attention has been drawn to this prescription slip as well, which contains details of the injuries which PW10 Phool Singh had suffered at the ends of the petitioner.
10. It is also noteworthy that in the cross-examination of the prosecution witnesses, the petitioner has clearly admitted his presence at the spot when he has questioned PW1 SI/Exe Rulia Ram to describe the clothes which he was wearing at the time of incident. Similar questions to the other witnesses also support the presence of the petitioner at the spot on fateful night. PW8 Const.Kuldeep Singh has also categorically stated that the petitioner had gone to the barrack to drop him on his scooter.
11. In view of the evidence which has been led by the prosecution against the petitioner, we are satisfied that the finding of guilt on the first charge of the petitioner is clearly supported by the evidence on record and the challenge thereto by the petitioner on the ground that it was based on no evidence is misconceived and hereby rejected.
12. So far as second charge is concerned, learned counsel for the petitioner has urged that the petitioner was penalised in the year 2001, 2008 and 2010 on the allegations that he had unauthorizedly overstayed leave. It is submitted that minor penalties were imposed on him on all these three occasions for these charges.
13. The petitioner is stated to have completed 18 years when he was removed from service pursuant to the order dated 18th January, 2012. It is submitted by learned counsel for the petitioner that the petitioner has ailing wife and two school going children. The petitioner is stated to be also supporting his aged and ailing parents and the entire family is stated to be at the verge of starvation. It is submitted that apart from the alleged incident there is no other allegation on the petitioner of misbehaviour with any force personnel. It is contended that in these circumstances, the punishment which has been imposed upon the petitioner causes grave injustice to him and same is disproportionate to the allegations which were made against him. A prayer is made that the concerned authorities may be directed to examine the case of the petitioner on the aspect of proportionality of the punishment, even if the charges against him were held to be proved.
14. In view of the above, while upholding the finding of guilt of the petitioner by the orders dated 18th January, 2012, 31st May, 2012 and 31st August, 2012, we set aside the order dated 31st August, 2012 of the Revisional Authority to the extent it sustains the punishment imposed on the petitioner and direct as follows: (i) The respondents shall re-consider the proportionality of the sentence which has been imposed upon the petitioner. Appropriate orders in this regard be passed within eight weeks from today and be communicated to the petitioner. (ii) In case, the revisional authority maintains the order of sentence, the petitioner may seek from the respondents grant of relief of any other kind, say in the nature of compassionate allowance for instance under Rule 41 of the CCS (Pension) Rules, if the same is admissible, and consider the same in the light of settled principle. The writ petitioner is disposed of in the above terms. GITA MITTAL, J DEEPA SHARMA, J OCTOBER10 2013 rb