Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:
10. 04.2013 Decided on:
06. 05.2013 + W.P.(C) 2573/1999 RAVINDER SINGH THROUGH LRs ..... Petitioners Through: Sh. Jagjit Singh, Advocate. versus UNION OF INDIA AND ORS. ..... Respondents Through: Ms. Archana Gaur, Advocate. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA MR. JUSTICE S. RAVINDRA BHAT % 1. In these proceedings under Article 226 of the Constitution, three orders issued by the Central Industrial Security Force (CISF) pertaining to the dismissal (by the order dated 21.08.1995) of the late writ petitioner, on ground of alleged misconduct, have been questioned. The other two orders impugned are the CISFs order rejecting the petitioners appeal and further rejecting his revision W.P.(C)2573/1999 Page 1 petition, challenging his dismissal from service.
2. The writ petitioner was working in the CISF, when in respect of his alleged misconduct in abusing a superior officer, on 08.04.1994, a charge sheet was issued to him. The Petitioner was asked to show cause to two charges; upon his denying them, a departmental inquiry into the allegations was initiated.
3. The Charges levelled against the petitioner are as follows: Article of Charge No. I: An act of gross misconduct, indiscipline, misbehaviour and impertinence on the part of CISF No. 8308237 HC/DVR Ravinder Singh of CISF Unit, NFL Panipat (Har) in that on 8.4.94 he abused and insulted Dy. Commandant Shri R.N. Roy, while the Dy. Commandant was going after inspecting the Quarter Guard and used words as CHOR DC KHARA RAHEGA BAKI GUARD BISERJAN, SALA BENGALI THOO etc. or words to this effect. Article of Charge No. II: Continued act of gross inculcating the habit of indisciplined activities by CISF No. 8308237 HC/Dvr Ravinder Singh of CISF Unit, NFL Panipat and despite reasonable opportunities afforded to improve he continues to indulge in acts of indiscipline and misconduct, thus, proving himself to be incorrigible.
4. The CISF, in the course of departmental proceedings, relied on the testimonies of five witnesses, including three eyewitnesses. One of them did not support the CISFs allegations. The petitioner relied on the testimonies of three witnesses, who deposed that he did not utter the words attributed to him, or misconduct himself in the manner alleged. The Enquiry Officer, however, concluded that the allegations had been established, and, based on his report, the Disciplinary W.P.(C)2573/1999 Page 2 Authority ordered the petitioners dismissal. His appeal and further revision to higher authorities were unsuccessful; they were dismissed by orders dated 09.10.1996 and 07.07.1998. He therefore, approached this Court. During pendency of these proceedings, the petitioner died; his legal representatives were brought on record, and permitted to prosecute the present petition.
5. It was argued on behalf of the petitioner that the findings of guilt are not based on any material. The findings of guilt on the first charge was based on the testimony of PW-2 B.D. Singh, PW-4 Chander Singh and PW-5 Tedhi Singh, all of whom claimed that they witnessed the incident of the petitioner abusing the Deputy Commandant R.N. Rai. The three defence witnesses (DW-1 R.K.P. Singh, DW-2 K.K. Singh and DW-3 B.S. Dubey) also asserted their presence at the relevant time but denied that any such incident took place. It was highlighted that PW-1 R.P. Kaushik turned hostile and did not support the prosecution story. However, his retraction was disregarded, in an arbitrary and baseless manner, and the first charge was held proved. For the second charge, PW-3. a clerk from the Document Section of the Unit produced the documents which revealed the different penalties that the petitioner had been awarded on previous occasions. This charge was held proved on the basis of the material produced by PW-3.
6. The Petitioners learned counsel relied on the testimony of PW- 1, R.P. Kaushik, where the witness deposed how some superior officers hatched the plan to implicate the accused. The witness turned hostile, and stated that his earlier statement/complaint where he had W.P.(C)2573/1999 Page 3 claimed to have witnessed the petitioner abusing the Deputy Commandant, was recorded under coercion. This circumstance was found unbelievable in the impugned orders, for the reason that he was holding a responsible rank, and he could not have bowed to pressure in the manner he suggested. Furthermore, learned counsel urged that significantly, the complainant himself was not examined, and this made the CISF version incredible. Counsel further argued that apart from the complainant, even M.S Pathania, (who according to the prosecution version was present at the time of alleged abuse), was not examined.
7. It was argued that even though the present proceedings are under Article 226 of the Constitution of India, the Court has sufficient power to examine whether there is any evidence or material on record at all to justify the findings arrived at by the Disciplinary Authority. It was submitted that even though the High Court would not substitute its findings on factual aspects, provided there is material on the record; another settled proposition is that where the conclusion arrived at by a disciplinary authority is one which no reasonable man can arrive at, the Court would be acting within its jurisdiction to interfere with it.
8. Counsel for the respondents, on the other hand, defended the impugned orders. He relied on the testimonies of PW-2 and PW-4 both of which were to the effect that the petitioner had abused Deputy Commandant R.N. Roy when he was going towards his car after inspecting the guards quarter. As regards the second charge, counsel urged that it stood proved based on the statement of PW-3 Balbir W.P.(C)2573/1999 Page 4 Singh who presented various documents describing the previous misconducts that the petitioner had been held guilty of. It was submitted that the Enquiry Officer acted correctly in disregarding the statement of PW-1, for the reason that his allegation about being coerced to give a statement against the petitioner was flimsy and too fantastic to be believed. It was submitted that even if the statement of PW-1 were to be not taken into consideration, there was sufficient evidence in the form of statement of PW-2 and PW-4 to implicate the petitioner. There could be no doubt at all that these officers were present when the incident took place; they consistently deposed about the petitioners conduct, and his unprovoked verbal abuses at the Deputy Commandant. Counsel underlined the fact that in departmental inquiries, the standard of proof is not proof beyond reasonable doubt, but preponderance of probabilities, which had been adhered to in establishing the petitioners guilt. In the face of such established allegations of misconduct against the member of a disciplined paramilitary organization like the CISF, the penalty imposed was proportionate and just.
9. During the proceedings, the respondents produced the record of the original enquiry and disciplinary proceedings. PW-1 R.P. Kaushik stated that on 08.04.1994, a weekly parade was held, and the Commandant, the Deputy Commandant, the Sub-Commandant, M.S. Pathania and other personnel were present. He stated that Mr. R.S. Rai ordered the petitioner to leave the parade ground. He further stated that the Deputy Commandant after inspecting the Quarter Guards, went to his car, and others including the Sub-Commandant, W.P.(C)2573/1999 Page 5 the witness, M.S. Pathania and CHM Chander Singh accompanied him. According to the CISF version, it was at this time that the petitioner abused the Dy. Commandant R.N. Roy. However, the witness (PW-1) described this incident differently. Although he stated to being present at that time, yet he deposed that the same day, at around 10:00 AM, the Sub-Commandant had called him to his office. When he reached there, he found that apart from the SubCommandant, the Sub-Inspector B.D. Singh and the Security Officer Chander Singh were present there. He stated that the SubCommandant said that Head Constable/Driver Ravinder Singh (the Petitioner) had escaped from the incident in respect of the Railway Crossing and that it was a good time to implicate him. He was also told that the Petitioner could be implicated by saying that he abused the Deputy Commandant, and went towards his (i.e. the Deputy Commandants) car as if he was going to attack him. He (the witness, PW-1) further deposed to having requested the Commandant and the Sub-Commandant that they should not implicate an innocent person according to their plans, and that in any case there was no such entry in the roznamcha. He stated that he was nevertheless pressurized to lie like them, and threatened with cancellation of his previously sanctioned leave, and not sanctioning any leave later. The witness stated that at that time, due to the ailing condition of his mother, he succumbed under pressure, as he was in dire need of leave. He then gave in writing his statement that the petitioner abused the SubCommandant when the latter was going towards his quarter after finishing his inspection, and that at that time, Sub-Inspector B.D. W.P.(C)2573/1999 Page 6 Singh, M.S. Pathania and CHM Chandra Singh too were present there.
10. The record shows that a written complaint/report about the alleged incident was made by Sub-Inspector B.D. Singh and R.P. Kaushik. While according to B.D. Singhs statement, Tedhi Singh and R.P. Kaushik were present, at the time, R.P. Kaushiks statement (from which he resiled in his testimony) stated that: At that time the Assistant Commandant Sh. Tedhi Singh, Inspector M.S. Pathania and Inspector R.P. Kaushik were accompanied with the Deputy Commandant. The statement written by R.P. Kaushik refers to himself in the third person casts some suspicion as to its genuineness, which is strengthened by his testimony where he completely denied the respondents version. Moreover, according to both these reports/complaints, HC Chander Singh was not present at the time. However, he still was examined and he corroborated the respondents version that when the Deputy Commandant was moving towards his car after the inspection, the petitioner abused him. Significantly, the Dy. Commandant who was abused was not even examined by the Enquiry Committee. In this regard, the Respondents Counter Affidavit states: XXXXXX XXXXXX XXXXXX 5 t is further submitted that the Petitioner had asked for copies of complaint lodged by Sh. R.N. Roy, Deputy Commandant.and General Diary entry. Since Shri R.N. Roy had not lodged such complaint W.P.(C)2573/1999 Page 7 nor G.D. entry was made to that effect, these documents were not in existence, hence could not be supplied. XXXXXX 11 XXXXXX XXXXXX In the pleadings in these writ proceedings, the Petitioner alleged that he was falsely implicated in the case, as is clear from a previous incident too where a complaint was lodged on 25.03.1994 on the basis of some alleged statement obtained by him from some false witness. The witness later admitted that such complaint had been obtained from him under pressure. The petitioner made representations to this effect, based on which his suspension was revoked.
12. This Court also notices that the only witness who fully supported the prosecution version in all particulars, was PW-4. He spoke of witnessing the petitioner indulging in abusing the Deputy Commandant. However, PW-2 was not as forthright. The Enquiry Officer acknowledged that PW-2 did not indicate in his testimony as to which officer was abused. All three defence witnesses were consistent in stating that they were present and that the petitioner did not indulge in abusing the Deputy Commandant.
13. In the opinion of this Court, the inconsistencies in the evidence, i.e. the denial of PW-1 about the incident, and his further statement that he was compelled to make the preliminary statement on peril of cancellation of his earned leave, coupled with the fact that PW-2 did not witness the actual incident, the clear deposition of the three defence witnesses, as well as the fact that the so called complainant, and the other officer present at the time of the incident, did not even W.P.(C)2573/1999 Page 8 depose during inquiry, render the entire allegations of misbehaviour suspicious. These had to be adequately balanced with the testimonies of the lone prosecution witness who deposed against the petitioner, i.e. PW-4. Whilst there is no gainsaying that in judicial review, the Court does not embark on a re-appreciation of evidence and materials taken into account by a domestic tribunal, yet the findings are to confirm to rule of probability and reason. If perversity and unreasonableness is writ large in the impugned order, the Court, in exercise of its judicial review power, would be justified in interfering with it. These propositions were highlighted in the following terms, by the Supreme Court, in Bank of India v. Degala Suryanarayana, (1999) 5 SCC 76.where it was held as follows: Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India W.P.(C)2573/1999 Page 9 v. H.C. Goel the Constitution Bench has held: [T]he High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. This statement of law, about the vulnerability of findings embodied in an administrative or disciplinary authoritys order not based on any evidence or being the result of a plainly unreasonable or perverse process of reasoning, is supported by other judgments of the Supreme Court (Union of India Vs. H.C.Goel, AIR 196.SC 364.DCM vs. Ludh Budh Singh 1972 (1) SCC 595.Central Bank of India vs. Prakash Chand Jain AIR 196.SC 983.Sher Bahadur Vs. Union of India 2002 (7) SCC 142.Union of India vs. K.A. Kittu 2001(1) SCC 65).
14. The findings of the Enquiry Officer, uncritically adopted by the Disciplinary Authority and mechanically endorsed by the Appellate and Revisional Authorities in this case, betray a palpable unreasonableness. The mere circumstance that PW-1 did not support the allegations of misconduct at all, in itself may not have been fatal to the prosecution case of the petitioners misconduct. Yet, that was sufficient to alert and caution the authorities to take a close look at the evidence led, especially the testimonies of the other witnesses W.P.(C)2573/1999 Page 10 whether they supported the allegations of misconduct or otherwise. In this scheme of things, the evidence of even the defence witnesses, who were some officials, speaking favourably of the petitioner, was to be reckoned. The Enquiry Officer did not, however, take an objective view of the evidence; instead he wholeheartedly accepted the testimony of PW-4, the lone eyewitness; discarded the testimony of PW-1, a sufficiently senior (inspector level) officer, who would have had no reason to sympathise with the petitioner. The ground for rejection of his version of events is merely that he could not have succumbed to duress/coercion since he was an inspector-level officer himself. The Enquiry Officer wholly ignored the testimonies of the three defence witnesses. These, in this Courts opinion, were insufficient basis to support a finding of guilt, in regard to the first charge, considering the other shakeable evidence on record against the petitioner. No explanation was forthcoming as to why R.N. Roy was not examined, when he was the superior officer who was abused.
15. As far as the second charge goes, facially, it is vague. It was introduced in the charge sheet, apparently to lend weight to an eventual finding of guilt, in respect of the first charge so as to justify a serious major penalty. It is not as if for past misconduct or incorrigible behaviour (a term used in the charge sheet) the petitioner had not been reprimanded or dealt with in the past. If not, the mere mention of this as a separate head of charge, included in an omnibus manner, was to somehow fix the petitioner and impose a major penalty. No specific act or omission was attributed in the charge sheet; the respondents relied on documentary evidence of past W.P.(C)2573/1999 Page 11 misbehaviour, produced by PW-3, from its records. In the Courts opinion, the past incorrigible acts of an employee, i.e. the petitioner could not have been the basis of a major penalty, of the extreme kind, i.e. dismissal.
16. In this Courts opinion, this is a fit case for interference. Once the finding on the first charge is set aside, the findings on the second charge too have to be set aside. In view of the above discussion, the writ petition must succeed. The petitioner had died on 26.04.2007 during the pendency of these proceedings. The Legal Representatives were brought on record by order dated 10.07.2008. Before dismissal, the petitioner had served for a total of about eleven years. This Court directs the following: (i) The impugned orders, dismissing the petitioner are hereby set aside. He shall be deemed to have been reinstated in the service from the date of order of dismissal, i.e. 21.08.1995 to the date of his death, i.e. 26.04.2007. However, the legal representatives shall be entitled to half (50%) back-wages for the period 21.08.1995 till his death, i.e. to 26.04.2007 on the basis of his reinstatement and continuity of service. The same shall be paid within six weeks. (ii) The deceased petitioners wife and other dependants shall be entitled to family pension in accordance with the applicable rules; the same shall be fixed and the arrears payable for the period 26.04.2007 till date shall be disbursed within six weeks. The monthly entitlement to family pension shall be worked out and paid according to the rules.
17. The writ petition is accordingly allowed in terms of the above W.P.(C)2573/1999 Page 12 directions. No costs. S. RAVINDRA BHAT (JUDGE) SUDERSHAN KUMAR MISRA (JUDGE) MAY 06.2013 W.P.(C)2573/1999 Page 13