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2001 DAILYLAW 1500 (DEL)

CHANDER MOHAN v. UNION OF INDIA

2001-08-21

B A Khan, Sharda Aggarwal

body2001
Delhi High Court (August 21, 2001) 2001 (TLS)125346 2001-DLT-93-379 :: 2001-AD (Del)-6-325 CHANDER MOHAN Vs. Union of India SHARDA AGGARWAL ( 1 ) IN the present writ petition, the dismissal of the petitioner s OA. No. 1390/93 vide orders dated 19/03/1999 by Central Administrative Tribunal (in short the Tribunal) Is under challenge. ( 2 ) THE petitioner, a Constable in Delhi Police was posted as PSO at the residency of a Supreme Court Judge. On 11/05/1991, while he was on duty, at about 5. 00 PM he stopped an escort car near Kothi No. 10, Krishna Menon lane, New Delhi which was returning from e Block, security Lines at Krishna Menon Marg. Me asked the two constables in the car as to from where they were coming and when he was told that they were coining after collecting their meals, he took and opened the tiffin and finding Dal therein, questioned as to why they did not bring Paneer and fired one round from his service revolver on the tiffin The bullet pierced the tiffin and went in air. The petitioner thereafter escaped. A preliminary enquiry was held. He was also not found on duty on that evening and was marked absent. ( 3 ) A departmental enquiry was ordered and he was put under suspension. The Enquiry Officer completed the enquiry. and submitted his report on 13/07/1992. A copy of the enquiry report was delivered to the petitioner on 6/08/1992, to which he filed reply on 20/08/1992 taking the plea as referred by the enquiry Officer in his report. The Disciplinary authority i. e. Additional DCP (Security), after considering the report of the Enquiry Officer and the reply of the petitioner, punished him by ordering his removal from service vide order dated 8/12/1992. The petitioner s appeal against the same was rejected by the Appellate Authority i. e. Additional Commissioner of police ,on 24/05/1993. Aggrieved by the same, petitioner filed OA before ,the Tribunal and aggrieved by the order of the Tribunal, he has filed the present writ petition. The petitioner s appeal against the same was rejected by the Appellate Authority i. e. Additional Commissioner of police ,on 24/05/1993. Aggrieved by the same, petitioner filed OA before ,the Tribunal and aggrieved by the order of the Tribunal, he has filed the present writ petition. ( 4 ) THE main challenge of the petitioner is on the ground that the Enquiry Officer had not found him guilty of the charge and the Disciplinary Authority disagreeing with the findings of the Enquiry Officer, punished him of major penalty of removal from service giving a go-bye to the mandatory Rule 16 (xii) of Delhi Police (Punishment and appeals) Rules,1980 (in short the,rules) which reads as under:- 16. Procedure in departmentall enquiries- (xii) If the disciplinary authority, having regard to his findings on the charges, is of the opinion that a major punishment is to be awarded, he shall : (a) furnish to the accused officer free of charge a copy of the report of the enquiry Officer, together with brief reasons for disagreement, if any, with the finding of the enquiry Officer, (b) where the disciplinary authority is himself the Enquiry Officer a statement of his own findings, and (c) give him a show cause notioe stating the punishment proposed to be awarded to him and calling upon him to submit within 15 days such representation as ha may wish to make against the proposed. action. ( 5 ) THE above sub-rule provider that in case the disciplinary Authority disagrees with the findings of the enquiry Officer and desires to punish the delinquent officer with major penalty, he is required to furnish. a copy of the report alongwith the reasons for his disagreement and also to give him a show cause notice stating the punishment proposed to be awarded and call upon him to submit within 15 days his representation against the proposed action. This rule obviously is meant to meet the situation when the Disciplinary authority proposes to give a harsher punishment to the delinquent in disagreement with the report of the Enquiry officer, so as to afford an opportunity to the employee to make a representation and persuade the Disciplinary authority to relent in his favour. when particular statutory rules, ordain the procedure to be followed, any deviation or infraction thereof, would be actionable. when particular statutory rules, ordain the procedure to be followed, any deviation or infraction thereof, would be actionable. A denial of opportunity to the delinquent employee as contemplated by rule 16 (xii) of the Rules, would not only be violative of the procedure laid down, but would also be a clear violation of the basic principles of fair play and natural Justice. This proposition came up for consideration before the Supreme Court in a recent decision in the case of S. B. I. and Ors. Vs Arvind k. Shukla. 2001 AIR SCW 2472. In the said case an inquiry was conducted against an officer of the bank. The inquiry concluded that some of the charges were fully proved and some were partly proved. The Disciplinary authority on receipt of the enquiry report re-examined the material and did not agree with the conclusions of the Enquiry Officer on the charges on which the delinquent was exonerated. The Disciplinary Authority disagreeing with the Inquiry Officer, recommended the case to the appointing authority for imposition of major punishment. Ultimately, the services of the delinquent officer were terminated. The appeal filed by the delinquent under the statutory rules was also rejected. The learned Single Judge of the Madhya Pradesh High Court allowed the writ petition holding that the non-furnishing of the reasons which weighed with the Disciplinary authority to differ with the findings of the Inquiry officer to the delinquent, vitiated the ultimate order of punishment. The LPA filed by SBI was also dismissed. It preferred an appeal to the Supreme Court and it was found on facts that the Disciplinary Authority had disagreed with the conclusion s and findings arrived at by the inquiry Officer. . Following an earlier decision of a three Judge Bench of the Supreme Court In the case of punjab National Bank Vs. Kung Bihari Misra (1998) 7 SCC 84 AIR 1998 SC 2713 the Supreme Court held that non-furnishing of the reasons which weighed with the disciplinary authority to differ with the findings of the inquiry officer to the. delinquent, vitiated the order of punishment. The decisions reported as (i) Institute of chartered Accountants of India Vs. . L. K. Ratna. AIR 1987 SC 71 , (ii) Ram Kishan,, Vs. Union of India. AIR 1996 SC 255 and (iii) Narayan Misra Vs. State of Orissa 1969 slr 657 (SC) also support the above view point. delinquent, vitiated the order of punishment. The decisions reported as (i) Institute of chartered Accountants of India Vs. . L. K. Ratna. AIR 1987 SC 71 , (ii) Ram Kishan,, Vs. Union of India. AIR 1996 SC 255 and (iii) Narayan Misra Vs. State of Orissa 1969 slr 657 (SC) also support the above view point. ( 6 ) THE contention of the learned counsel for the petitioner is that the Disciplinary Authority in this case was required to furnish to the petitioner a copy of the report of the Enquiry Officer to yet her with brief reasons for his disagreement with its findings and to give a show cause not , ice stating the punishment proposed to be awarded and call upon him to make a representation within 15 days thereof, but it has failed to do -so. The action of the Disciplinary Authority is thus in violation of the Rules and against the principles of natural justice which calls for the quashing of the orders dated 8/12/1992 of the Disciplinary Authority followed by order dated 24/05/1993 of the Appellate Authority. ( 7 ) THE petitioner had taken the same plea before the tribunal. It took the view that the Enquiry Officer had not exonerated the delinquent and despite some lacunae having been found, the Enquiry Officer had placed reliance on the oral evidence of witnesses and as such there was no disagreement of the Disciplinary Authority with the findings of the Enquiry Officer and, as such there was no contravention of the Rules. ( 8 ) THE short -question for decision is as to whether the Disciplinary Authority disagreed with the findings of the- Enquiry Officer and if so, whether it failed to comply with Rule 16 (xii) of the Rules? A perusal of the enquiry report shows that the petitioner had participated in the enquiry and had cross-examined the departments witnesses. The Enquiry Officer had, however, found the following four lacunae in the evidence :- "1. The defaulter was issued six cartridges for duty ,and after the incident when his service revolver was inspected it was containing six live cartridges, This indicates that in the case of firing a shot, the defaulter either was having an extra live cartridge or after the incident managed bo replace the used cartridge with the live cartridge. If, stress had been put during P. E. this fact could have been ascertained. If, stress had been put during P. E. this fact could have been ascertained. 2. Neither the tiffin in question was taken into possession nor the same was sent to cfsl alongwith the revolver in question for obtaining the opinion of the ballistic Expert. 3. The revolver in question was not tent for expert opinion whether a shot was fired with the same or otherwise. 4. The spot where dal after firing was spread was not got photographed. " ( 9 ) THE Enquiry Officer has observed that except the oral evidence, there was no corroborative evidence in the form. of documentary/circumatantial to prove the allegation s of finny a shot. on the tiffin which created doubt, benefit of which general. 1y would have gone to the accused/defaulter. The Enquiry Officer does say that despite inherent defects and. loop-holes, the oral evidence of the eye witnesses cannot be over looked, but. reading of the entire report shows that he did not want to hold the delinquent guilty or the charge. The disciplinary Authority also understood the report in that sense only. He mentioned in his order of punishment that he did not agree with the finding of the Enquiry Officer in the following terms- "i have. carefully gone through the findings of the E. O. and other relevant records. Rut, I do not. agree with findings of E. O. Prom the statements of pws Const. Siah Pal (deceasad Pw 2 (Head Const, Sudesh pai), PW5 (Driver suresh Chand) it is very clear that the delinquent had fired one round from its service revolver on the tiffin carrier. Pw5 is a private man and was working as the Driver with Shri M. K. Paslita, advocate, Supreme Court. He is considered absolutely independent witness for the purpose. Moreover, as per the documents and the evidence available on record the delinquent had ran away after firing one from his service revolver and his absence to this effect was also got recorded, In all probability the delinquent managed one live round of revolver in place of the fired one. This misconduct gross carelessness on the part of the delinquent Const. is inexcusable and impardonable In a highly sensitive set-up like VIP Security. Therefore, I remove him from the service. This misconduct gross carelessness on the part of the delinquent Const. is inexcusable and impardonable In a highly sensitive set-up like VIP Security. Therefore, I remove him from the service. " ( 10 ) HAVING differed/disagreed with the findings of the Enquiry Officer, the Disciplinary Authority was required to serve on 1-he delinquent, its reasons for disagreement alongwith a copy of the report and to serve a show cause notice, as contemplated in rule 16 (xii) of the Rules. It does not appear to have been done. The disciplinary Authority ordered major punishment of petitioner s removal from service without satisfying the requirements of the relevant Rule which could not be sustained. ( 11 ) ACCORDINGLY the order dated 8/12/1992 passed by the Disciplinary Authority and order dated 24th may, 1. 993 by Appellate Authority are quashed. Petitioner is ordered to be reinstated in service without any back wages, but it shall be open to respondents to continue the proceedings from the stage of disagreement of disciplinary Authority Kind satisfying the requirements of rule 16 (xii) of the Rules pass fresh appropriate orders within four months from receipt of this order. The impugned order of the Tribunal is set aside and the petition Is allowed in the above terms. No order as to costs. --- *** --- .