$~R-1A * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: July 16, 2013 + W.P.(C) 4408/2002 VINOD KUMAR Represented by: ..... Petitioner Mr.Shekhar Kumar, Advocate versus UOI ..... Respondent Represented by: None CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE V. KAMESWAR RAO PRADEEP NANDRAJOG, J.
(Oral) 1. Heard learned counsel for the parties.
2. On May 13, 1991 a charge memo was issued listing 4 articles of charge against the petitioner. The statement of imputation in support of the charges highlighted the factual basis for the 4 articles of charge. List of relief upon documents were indicated in Annexure 3 to the charge memo. Witnesses through whom charges were intended to be proved were likewise listed in Annexure 4 to the charge memo.
3. The allegations constituting 4 articles of charge as highlighted in the summary of allegations were:(i) During his working as a civilian Motor Driver in the NCC Directorate between September 19, 1990 to February 19, 1991 the petitioner would absent himself without information 17 times and attended office late 20 times in spite of written and oral warnings issued, which conduct amounted to exhibiting lack of devotion to duty. (ii) On January 02, 1991 petitioner misbehaved with P.K.Chakarvorty, Administrative Officer on an issue of marking attendance and indulged in shouting and using threatening language against a superior officer. (iii) On April 03, 1991, the petitioner along with two accomplices attacked Sh.P.K.Chakarvorty, Administrative Officer and Lt.Col.V.K.Sood, Deputy Director (Personnel) with sticks causing head injury to Lt.Col.V.K.Sood who had to be admitted to hospital for treatment. (iv) When transferred on administrative grounds to Bhopal the petitioner sought for and was granted leave up to February 11, 1991 he did not report for duty. Communications sent to him containing the movement order were received back undelivered. In response to petitioners application dated February 18, 1991 seeking medical leave to be granted he was advised to approach the Directorate of NCC at Bhopal. The petitioner never reported at said Directorate.
4. Of the five witnesses who were listed to be examined, the first witness, Sh.P.K.Chakarvorty did not appear before the Inquiry Officer and was thus not examined. Sh.L.R.Dahiya, UDC NCC appeared as PW-2. Lt.Col.V.K.Sood, Deputy Director (Personnel) NCC appeared as PW-3. Major B.R.Nagpal of the NCC Directorate was examined as PW-4 and Havaldar Paras Ram was examined as PW-5 at the inquiry by the prosecution.
5. The evidence pertaining to charge No.1 was the attendance register Ex.P-1A and Ex.P-1B. Show cause notice Ex.P-2 and testimony of Major B.R.Nagpal PW-4.
6. Indeed, the entries in the attendance register evidenced; as per the charge. Absence and late reporting for duty were evidenced in Ex.PW-1A and Ex.PW-1B. The testimony of Major B.R.Nagpal PW-4 was to the effect that in spite of repeated verbal warnings the petitioner continued to either report late or not come at all. The warning, Ex.P-2, was proved.
7. The Inquiry Officer has accordingly opined that charge No.(i) stood established.
8. Pertaining to charge No.(i) learned counsel appearing for the petitioner has not addressed any arguments on the merits of the charge and the findings; probably in the teeth of overwhelming documentary evidence.
9. Pertaining to charge No.(ii), which as noted above pertained to an alleged altercation of the petitioner with Sh.P.K.Chakarvorty, Administrative Officer and petitioner shouting and using threatening language, in the absence of any testimony of Sh.P.K.Chakarvorty, the Inquiry Officer, relied upon the testimony of Major B.R.Nagpal examined as PW-4. PW-4 simply stated that on January 02, 1991 i.e. the date of the incident as per the charge, the petitioner came late to the office and demanded to sign the attendance register. He further deposed that he asked the petitioner to produce a medical certificate. PW-4 did not depose that the petitioner shouted or threatened at P.K.Chakarvorty and when questioned stated that he did not remember any such incident.
10. The Inquiry Officer has held charge (ii) to be proved. The reasoning of the Inquiry Officer is that keeping in view the testimony of PW-4; to the effect that the petitioner reported for duty late on January 02, 1991 and wanted to sign the attendance register but a medical certificate was demanded from him would establish the incident as having occurred on the principle of plausibility.
11. The attack to the finding of the report of the Inquiry Officer at the hearing today is that in the absence of P.K.Chakarvorty being examined and in the teeth of Major B.R.Nagpal categorically deposing that he does not remember any such alleged incident, the finding returned by the Inquiry Officer is perverse. An argument which we accept for the reason merely because the petitioner reported for duty late and wanted to sign the attendance register but before that was called upon to produce the medical certificate would not lead to the conclusion that the petitioner would have in all probability shouted and abused P.K.Chakarvorty.
12. With respect to Article (iii) of the charge, as noted above, the twin factual element thereof was: (i) acting in concert with two accomplices, armed with hockey sticks and causing injury to Sh.P.K.Chakarvorty and (ii) chasing Lt.Col.V.K.Sood and injuring him to an extent that he i.e. Lt.Col.V.K.Sood requiring to be hospitalized.
13. Sh.L.R.Dahiya UDC examined as PW-2, Lt.Col.V.K.Sood examined as PW-3 and Havaldar Paras Ram examined as PW-5 deposed in unison as per the charge and stated that the petitioner as also his two accomplices assaulted firstly P.K.Chakarvorty and thereafter Lt.Col.V.K.Sood. Medical record pertaining to Lt.Col.V.K.Sood, Ex.PW-11, evidenced he having been treated in the hospital.
14. The Inquiry Officer held that the charge was proved.
15. Contention urged before us is that in the absence of Sh.P.K.Chakarvorty being examined as a witness, the best evidence was withheld and thus the charge cannot be said to be established. Decision of the Supreme Court reported as (1999) 8 SCC 58.Hardwari Lal Vs. State of U.P.& Ors. is cited.
16. The decision in Hardwari Lals case would reveal that the charge against Hardwari Lal was that in the intervening night of January 16 and 17, 1991 under the influence of liquor, he abused Ct.Prakash Chander Pandey in respect of which one Virender Singh had made a complaint and one Jagdish Ram was the witness to the incident. Neither Virender Singh nor Jagdish Ram were examined and with respect thereto the Supreme Court opined that it would be a case of no evidence. The view taken by the High Court that some secondary evidence containing a recording of the incident was sufficient evidence was opined to be insufficient by the Supreme Court. The decision in Hardwari Lals case is not applicable to the instant case for the reason notwithstanding Sh.P.K.Chakarvorty not being examined, we have the testimony of three eye witnesses, one of whom Lt.Col.V.K.Sood was injured.
17. It has to be kept in mind that as per charge No.(iii) the gravamen thereof was assaulting P.K.Chakarvorty as also Lt.Col.V.K.Sood; the latter to such degree which warranted his hospitalization.
18. With respect to Article (iv) of the charge, no contentions have been urged before us. Notwithstanding that, we would note that documentary evidence in the form of various exhibits; being communications sent to the petitioner and report for duty were proved as also oral testimony that in spite of same being sent to the petitioner he never reported for duty.
19. Having simultaneously noted the evidence and dealt with the contentions, we find Article (i), (iii) and (iv) as having been proved.
20. We now deal with the other contentions urged.
21. With respect to Article (i) of the charge, making a reference to a warning issued on January 30, 1991 for not reporting for duties and late reporting for duties counsel urges that once a warning is issued, on the same allegations levying a penalty would amount to double jeopardy.
22. The contention is noted and rejected for the reason the warning issued pertained to petitioner not reporting on two occasions for duty.
23. As noted above, Article (i) of the charge pertained to unauthorized absence 17 times and late coming 20 times. If for two defaults a warning was issued would not mean that for 17 times absence and 20 times late coming a charge for lack of devotion to duty could not be framed. Besides, the warning is administrative in nature and not by way of penalty.
24. The next contention urged is that the penalty of dismissal from service has factored that all Articles of charge were proved and if one of them would fall, penalty would fall.
25. At first blush the argument may appear to be sound but a deeper look would reveal that the gravest charge is Article (iii) i.e. of assaulting two superior officers accompanied by two accomplices to an extent that one of the two officers had to be hospitalized.
26. Severing indictment pertaining to Article (ii) of the charge, we are of the opinion that on Article (iii) of the charge standing alone, and proved, penalty imposed would be justified.
27. The next contention urged is that for the incident of assault upon P.K.Chakarvorty and Lt.Col.V.K.Sood the petitioner was let off on probation by the learned Additional Sessions Judge.
28. From the decision dated January 25, 1997 pertaining to petitioner being convicted we find that the learned Court of Sessions has accepted the prosecution version that petitioner had caused hurt to Lt.Col.V.K.Sood.
29. The argument is that the the Tribunal did not take into account the said fact of petitioner being led off on probation.
30. To appreciate the contention urged we must note that when the Original Application filed by the petitioner was disposed of on August 03, 1991, his counsel had not made any submissions premised on the order granting petitioner benefit of probation under The Probation of Offenders Act, 1958.
31. Petitioner filed RA No.423/2000 drawing attention of the Tribunal to said fact.
32. Dismissing RA No.423/2000, vide order dated October 01, 2001, we find that the Tribunal has not discussed the effect of petitioner being led off on probation by the learned Additional Sessions Judge notwithstanding petitioner being convicted for an offence of causing hurt.
33. On April 18, 2013 deciding W.P.(C) No.2372/2010 Ajit Kumar Vs. Commissioner of Police & Ors. on the subject of a person being convicted at a criminal trial but given the benefit of Section 12 of The Probation of Offenders Act, 1958, with reference to the law declared in the opinions reported as AIR 199.SC 78.Harichand v. Director of School Education, 2010 (8) SCALE Sushil Kumar Singhal v. The Regional Manager, Punjab National Bank, 2007 IX AD (Delhi) 241 Satraj Singh v. Union of India & Ors., 177(2011) Delhi Law Times 471 (DB) Gokul Ram Meena v. Govt. of NCT of Delhi & Others it was observed by this very Bench as under:7. It is seen that even though the Tribunal referred to Section 12 of the Offenders Act, it did not deliberate much on it and decided the case more on facts. No doubt the facts become relevant, when the appointment is in a police force. The larger question which falls for our consideration in this case, is whether petitioner having been released under Section 4 of the Offenders Act, does not suffer disqualification because of Section 12 of the said Act. We feel that the issue is no more res integra having decided by the Supreme Court in a plethora of judgments which are also followed by this Court. In the opinion reported as 2007 (IX) AD (Delhi) 241 Satraj Singh v. Union of India & Ors. a Division Bench held as under:10. Union of India v. Bakshi Ram (1990) 2 SCC 42.was an appeal from a decision of the Rajasthan High Court, wherein the Rajasthan High Court, relying upon Section 12 of the Act had held that release on probation was the effect of removing the disqualification attaching to the employees conviction under Section 10(n) of CRPF Act. The Honble Supreme Court reversed the said decision of the High Court. Paragraphs 8 to 13 of the said decision being relevant are produced herein below:
8. It will be clear from these provisions that the release of the offender on probation does not obliterate the stigma of conviction. Dealing with the scope of Sections 3, 4 and 9 of the Probation of Offenders Act, Fazal Ali, J., in The Divisional Personnel Officer, Southern Railway and Anr. Etc. V. T.R.Challappan etc., [1975] 2 SLR 58.at 596 speaking for the Court observed: These provisions would clearly show that an order of release on probation comes into existence only after the accused is found guilty and is convicted of the offence. Thus the conviction of the accused or the finding of the Court that he is guilty cannot be washed out at all because that is the sine qua non for the order or release on probation of the offender. The order of release on probation is merely in substitution of the sentence to be imposed by the Court. This has been made permissible by the Statute with a humanist point of view in order to reform youthful offenders and to prevent them from becoming hardened criminals. The provisions of Section 9(3) of the Act extracted above would clearly show that the control of the offender is retained by the criminal court and where it is satisfied that the conditions of the bond have been broken by the offender who has been released on probation, the Court can sentence the offender for the original offence. This clearly shows that the factum of guilt on the criminal charge is not swept away merely by passing the order releasing the offender on probation. Under Sections 3,4, or 6 of the Act, the stigma continues and the finding of the misconduct resulting in conviction must be treated to be a conclusive proof. In these circumstances, therefore, we are unable to accept the argument of the respondents that the order of the Magistrate releasing the offender on probation obliterates the stigma of conviction.
8. On similar lines in the decision reported as AIR 199.SC 78.Harichand v. Director of School Education the Supreme Court held as under:In our view, Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under the law which provides for the offence and its punishment. That is the plain meaning of the words disqualification, if any, attaching to a conviction of an offence under such law therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not, by reason of Section 12, suffer the disqualification. It cannot be held that, by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service.
9. In a recent decision in Sushil Kumar Singhals case (supra), after analysing the law including the judgments referred above the Supreme Court has held as under:9. The sole question involved in this case is whether the benefit granted to the appellant under the provisions of Act, 1958 makes him entitled to reinstatement in service. The issue involved herein is no more res integra. In Aitha Chander Rao v. State of Andhra Pradesh, 1981 (Suppl.) SCC 17.this Court held:As the appellant has been released on probation, this may not affect his service career in view of Section 12 of the Probation of offenders Act.
10. The said judgment in Aitha Chander Rao (Supra) was not approved by this Court in Harichand v. Director of School Education, (1998) 2 SCC 383.observing that due to the peculiar circumstances of the case, the benefit of the provisions of 1958 Act had been given to him and as in that case there had been no discussion on the words "disqualification, if any attaching to a conviction of an offence under such law", the said judgment cannot be treated as a binding precedent. This Court interpreted the provisions of Section 12 of the 1958, Act and held as under: In our view, Section 12 of the probation of offenders Act would apply only in respect of a disqualification that goes with a conviction under law which provides for the offence and its punishment. That is the plain meaning of the words "disqualification, if any, attaching to a conviction of an offence under such law" therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not by reason of Section 12, suffers the disqualification. It cannot be held that by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service. (Emphasis added).
11. In Divisional Personnel Officer, Southern Railway and Anr. v. T.R. Chellappan, AIR 197.SC 2216.this Court observed that the conviction of an accused, or the finding of the Court that he is guilty, does not stand washed away because that is the sine-qua-non for the order of release on probation. The order of release on probation is merely in substitution of the sentence to be imposed by the Court. Thus, the factum of guilt on the criminal charge is not swept away merely by passing the order under the Act, 1958.
12. In Trikha Ram v. V.K. Seth and Anr., (1987) Supp. SCC 39.this Court had held that if a person stands convicted and is given the benefit of the provisions of the 1958, Act, he can be removed from service only on the ground that he stood convicted. But by virtue of the provisions of Section 12 of the 1958, Act, his removal cannot be a "disqualification" for the purposes provided in other Statutes such as the Representation of the People Act, 1950. The same view has been reiterated by this Court in Union of India and Ors. v. Bakshi Ram, (1990) 2 SCC 426.Karam Singh v. State of Punjab and Anr., (1996) 7 SCC 748.and Additional Deputy Inspector General of Police, Hyderabad v. P.R.K. Mohan, (1997) 11 SCC 571.
13. In Shankar Dass v. Union of India and Anr., AIR 198.SC 772.this Court has held that the order of dismissal from service, consequent upon a conviction, is not a disqualification within the meaning of Section 12 of the 1958, Act. The court held as under: There are Statutes which provide that the persons, who are convicted for certain offences, shall incur certain disqualification; for example, Chapter III of the Representation of Peoples Act, 1951 entitles 'disqualification' for Membership of Parliament and State Legislatures, and Chapter IV entitles 'disqualification' for voting, contains the provisions which disqualify persons convicted of certain charges from being the Members of Legislatures or from voting at election to the legislature. That is the sense in which the word 'disqualification' is used in Section12 of the Probation of Offenders Act.......Therefore, it is not possible to accept the reasoning of the High Court that Section 12 of the 1958 Act takes away the effect of conviction for the purpose of service also.
14. In State of U.P. v. Ranjit Singh, AIR 199.SC 1201.this Court has held that the High Court, while deciding a criminal case and giving the benefit of the U.P. First Offenders Probation Act, 1958, or similar enactment, has no competence to issue any direction that the accused shall not suffer any civil consequences. The Court has held as under: We also fail to understand, how the High Court, while deciding a criminal case, can direct that the accused must be deemed to have been in continuous service without break, and, therefore, he should be paid his full pay and dearness allowance during the period of his suspension. This direction and observation is wholly without jurisdiction....
15. In Union of India v. Trilochan Patel, AIR 198.SC 1612.some part of the Judgment in T.R. Chellappan (supra) was overruled by the Constitution Bench of this Court. But the observations cited hereinbefore were not overruled.
16. In Punjab Water Supply Sewerage Board and Anr. v. Ram Sajivan and Anr., (2007) 9 SCC 86.this Court explained that the Judgment in Aitha Chander Rao (supra) did not lay down any law as no reason has been assigned in support of the order. Thus, the same remained merely an order purported to have been passed under Article 142 of the Constitution of India. This Court allowed the disciplinary authority to initiate the disciplinary proceedings in accordance with law and pass an appropriate order, in spite of the fact that in the said case, the court, after recording the conviction, had granted benefits of the provisions of the Act, 1958 to the employee.
17. In view of the above, the law on the issue can be summarized to the effect that the conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. The word `Disqualification' contained in Section 12 of the Act, 1958 refers to a disqualification provided in other Statutes, as explained by this Court in the above referred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the Act, 1958.
10. After considering the position of law as it stood in the year 2007 including some of the judgments referred above, this Court in the opinion in Satraj Singhs case (supra) held that the issue: whether the disqualification from which an employee is saved under Section 12 of the Act would also include action against him by his employer under his conditions/rules is no more res integra.
11. Further in Gokul Ram Meenas case (supra) this Court upheld the order of the Tribunal rejecting the OA filed by the petitioner in that case seeking direction for being appointed as Constable (Male) Executive in identical circumstances by summing up in para 6 as under:6. The stand of the Petitioner is that when he submitted the application form, the case registered vide aforesaid FIR was sub judice against him in the court of Judicial Magistrate, 1st Class, Thana Gazi. The Petitioner had already mentioned about the case in the application form. The said case has been decided on 1st June, 2009 by the court of Judicial Magistrate, 1st Class, Thana Gazi, Distt. Alwar (Rajasthan) wherein Petitioner and co-accused persons are acquitted under Section 323, 341, 354 and 451 IPC due to compromise. The Petitioner is convicted Under Section 143 IPC and the court has given the benefit of Section 3 of the Probation of Offenders Act, 1958 and it is ordered that in terms of Section 12 of Probation of Offenders Act, the conviction would have no adverse effect on Petitioner and one Sh. Gopi Ram in future in their Government service or otherwise. In view of the above directions, Respondents are not justified in cancelling his candidature. The Tribunal has considered the aforesaid aspect of the matter in the light of judgment of this Court in Satraj Singh v. Union of India and Ors. reported in 2007 IX AD (Delhi) 241 wherein after relying on the judgment of the Supreme Court in Commandant, 20th Battalion, ITB Police v. Sanjay Binjola reported in IV (2001), SLT 28=II (2001)CCR 24.(SC) =(2001) 5 SCC 317.it is held that the directions issued by the Session Judge, Bikaner to the effect that the conviction of the Petitioner therein shall not have any adverse effect on his service was held to be without jurisdiction and therefore not binding on the Respondents. Following the aforesaid judgment the Tribunal has rejected the contention raised by the Petitioner that the direction of the Court of Judicial Magistrate, 1st Class, Thana Gazi, Distt. Alwar, Rajasthan in judgment dated 1st June, 2009 to the effect that the conviction of Petitioner would have no adverse effect in future in Government Service is not binding on the Tribunal. Recently, the Supreme Court in Sushil Kumar Singhal v. The Regional Manager, Punjab National Bank reported in VI (2010) SLT 84=(2010) IV LLJ 29.(SC) after taking note of various decisions on the issue, where after conviction, a person was released on probation, has upheld the dismissal of an employee who was convicted for an offence involving mortal turpitude. Even in the said case, Appellant therein was given the benefit of Section 12 of the Probation of Offenders Act by the criminal court. If that is so, there is no reason to uphold the contention of Petitioner who is involved in a serious crime.
12. From the above it is seen that the position of law qua Section 12 of the Offenders Act is well settled. Section 12 would not come to the rescue of the petitioner. His release under Section 4 of the Offenders Act would not obliterate the conduct/act which constitutes the offence. The petitioner would not be entitled to any relief even on the interpretation of Section 12 of the Offenders Act.
34. Before bringing the curtains down we reiterate once again that if Article (iii) of the charge were to sustain itself the conduct of the petitioner would justify the penalty levied. As we have noted above notwithstanding that Sh.P.K.Chakarvorty not being examined at the domestic inquiry we have on record the testimony of PW-2, PW-3 as well as PW-5 as also the medical record pertaining to the injuries suffered by PW-2.
35. The writ petition is accordingly dismissed but without any order as to costs. (PRADEEP NANDRAJOG) JUDGE (V. KAMESWAR RAO) JUDGE JULY 16 2013 mamta