$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: July 22, 2011
+ W.P.(C) 10865/2009
CHHAGAN LAL ..... Petitioner
Through: Mr.D.N.Sharma, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms.Barkha Babbar, Advocate with
Mr.Deepak Agarwal, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. On 13.7.2011, during arguments, we had deferred
hearing to enable learned counsel for the respondents to obtain
instructions whether respondents are prepared to recall the
order dismissing petitioner from service and suspend him till
trial is completed at the Court of Sessions in respect of stated
offences committed by the petitioner. It was noted that the
petitioner was charged of having indulged in rioting and being a
member of an unlawful assembly. Death of a person had
occurred. Charge sheet filed at the Court of Sessions against
various persons, names petitioner as a co-accused. Offences
WP(C) No.10865/2009 Page 1 of 7
charged of are under Section 147/ 148/ 149/ 337/ 395/ 436/ 452/
302/ 429 IPC and Section 3(2)(5) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocity) Act 1989.
2. The reason for our tentative view was obvious.
Extreme complex questions of fact and law were arising for
consideration. The stated offence was not alleged to have been
committed by the petitioner in relation to his duties.
3. Learned counsel for the respondents says that she
has been instructed to inform the Court that the department is
not prepared to withdraw the order dismissing petitioner from
service.
4. Charge against the petitioner at the departmental
inquiry reads as under:-
Report has been received that Force No.834290127-
H.C./G.D. (suspended) Chhagan Lal, C.I.S.F. Unit-
B.T.P.S. Badarpur, New Delhi, Case No.8/2001 has
been filed at local Police Station Narhauli
Distt.Mathura (U.P.), under section 147, 148, 149, 337,
395, 436, 452, 302, 429 I.P.C. and 3(2)(5) of SC/ST
Act, implicating him in serious criminal case. Head
Constable/GD Chhagan Lal, is not only a member of
disciplined Force, but also a Govt. servant. In the
capacity of a Govt. servant, it was desired of him not
to act in a manner, which may not be suitable to a
Govt. servant. However, Sh.Chhagan Lal, Head
Constable has fanted to prove his worth to the
expectations. Therefore, this charge.”
5. Suffice would it be to state that as read, the charge
alleged against the petitioner is of his being implicated in a
serious case and since he is a member of a disciplined force, his
being implicated in a serious criminal case has resulted in his
WP(C) No.10865/2009 Page 2 of 7
not proving his worth up to the expectations of a Government
servant.
6. We highlight that the charge against the petitioner,
as framed, does not warrant an inquiry into whether petitioner
has actually committed the offences.
7. List of witnesses annexed with the charge memo
reads as under:-
“1. Sh.Ram Prasad S/o Sh.Kheti Ram Jatav, R/o Vill.-
Datiya, P.S.-Harhauli, Distt.Mathura (U.P.).
2. Sh.Rajendra S/o Sh.Dori Lal, R/o Vill.-Datiya,
P.S.Narhauli, Distt.Mathura (U.P.).
3. Sh.Vijendra S/o Sh.Pooran, R/o Vill.-Datiya, P.S.-
Narhauli, Distt.Mathura (U.P.).
4. Sh.Hoti S/o Sh.Mangi, R/o Vill.-Datiya, P.S.-
Narhauli, Distt.Mathura (U.P.)
5. Sh.Jeevan S/o Sh.Bhoop Singh, R/o Vill.-Datiya,
P.S.-Narhauli, Distt.Mathura (U.P.).
6. Sh.Rodhan Singh S/o Sh.Sumeri, R/o Vill.-Datiya,
P.S.-Narhauli, Distt.Mathura (U.P.).
7. Sh.Hori Lal S/o Sh.Hoti, R/o Vill.-Datiya, P.S.-
Narhauli, Distt.Mathura (U.P.).
8. Sh.Suraj Mal S/o Sh.Mangal Singh, R/o Vill.-
Datiya, P.S.-Narhauli, Distt.Mathura (U.P.).
9. Any other witnesses, who is important in
Departmental Inquiry.”
8. The evidence led during the inquiry is as if the
petitioner was on trial and indeed we find that during inquiry
WP(C) No.10865/2009 Page 3 of 7
witnesses have deposed as if at a criminal trial.
9. The conclusion arrived at by the Inquiry Officer reads
as under:-
“The said Prosecution Witnesses (PW-1, PW-2, PW-4,
PW-6, PW-7, CW-1, DW-1, DW-2, DW-3, DW-4, DW-5,
DW-6 and DW-8), statements and the documents
furnished by them, evidence, the statements of
Defence witnesses and after reply going into the
statement of charged employee, I have received the
come again, that on 23.01.2001, the charged
employee at 0700 hrs. the charged employee
F.No.834290127 H.C.(GD) Chhagan Lal (under
suspension) went to his village-Datiya, Post-Khamni,
P.S.-Highway (Narhauli), Distt.Mathura (U.P.) and with
23 others member duly arrived reached for
constructing boundary on Panchayat Ghar land and
despite forbidding Ram Prasad Jatav, Village-Datiya,
P.S.-Highway (Narhauli) Distt.Mathura, begun firing
wherein (1) Rajendra S/o Dori Lal (2) Vijendra S/o
Pooran (3) Hoti S/o Mangi (4) Jeevan S/o Bhoop Singh
(5) Rodhan Singh S/o Sh.Sumeri (6) Surajmal S/o
Mangal Singh (7) Hori Lal S/o Hoti, were injured and
set fire to their houses and took away their house hold
articles. In the fire a girl-Guria, aged about 6 months,
and some goats were burnt. In regard to this
happening Head Constable Chhagan Lal (suspended) a
Crime Case No.8/2001 dt. 23.1.2001 time 0700 hrs. in
the morning under Section 147, 148, 149, 337, 395,
436, 452, 302, 429 I.P.C. and 3(2) 5 of SC/ST Act was
registered through FIR.
Therefore, F.No.8345290127-H.C./G.D. (suspended)
Chhagan Lal, C.I.S.F. Unit-B.T.P.S., Badarpur, as per
charge Memo. No.V15014/CISF/Samudi/Anu/Major-
7/2007-118 dated 08.08.2007, charged on him –
Report has been received. That F.No.834290127 –
H.C./G.D. (suspended) Chhagan Lal, C.I.S.F. Unit –
B.T.P.S., Badarpur, in Crime Case No.8/2001, the local
Police Station Narhauli, Distt. Mathura (U.P.), under
WP(C) No.10865/2009 Page 4 of 7
Section 147, 148, 149, 337, 395, 436, 452, 302, 429
I.P.C. and 3(2) 5 of SC/ST Act was registered in a
serious crime. Head Constable/G.D. Chhagan Lal, is
not only a member of disciplined force, but also a
Govt. servant. Being a Govt. servant, it was expected
of him no to act in a manner which may be disgraceful
for a Govt. servant. However, Sh.Chhagan Lal, has
been unsuccessful in proving himself to these
expectation. Which is proved on this basis of
concequiency of probabilities.”
10. The conclusion shows that the Inquiry Officer has
opined upon the guilt of the petitioner.
11. It is no doubt true that notwithstanding a criminal
case pending against the Government servant, it is permissible
to subject him to a disciplinary inquiry, but where complicated
questions of fact and law arise for consideration and especially
where the offence stated to have been committed is a very
serious offence it would always be advisable that the trial takes
place before the Competent Court.
12. At a criminal trial for the offence of murder, the
accused would be entitled to a lawyer of his choice and if he
cannot engage one, a lawyer has to be provided at State
expense. The reason is obvious. A trial is an adversarial
adjudicatory process and to measure up to be an adversarial
trial it must be that the standard of the defence meets the
standard of the prosecution. For the offence of murder, the
charge sheet must contain all material on which the prosecution
relies. Statements of witnesses recorded during investigation
have to be supplied to the accused, who gets an opportunity to
cross-examine the witnesses of the prosecution in the context of
WP(C) No.10865/2009 Page 5 of 7
their previous statements.
13. The record of the inquiry shows that the previous
statements recorded by the police during investigation were not
supplied to the petitioner. He had no lawyer to defend him at
the inquiry for the reason the service rules of the respondent do
not permit lawyer’s representation at the domestic inquiry.
14. It may be true that the alleged offence stated to have
been committed by the petitioner is serious and this may
warrant the petitioner not to move around in his dress, but this
can be achieved by suspending the petitioner.
15. For the reason the indictment of the petitioner has
been returned on merits by the Inquiry Officer but the charge
sheet, as led, indicts him for being named as an accused; we
highlight that if the charge is that the petitioner was named as
an accused, that would be no ground to dismiss him from
service for the reason merely because somebody is named as
an accused would not warrant his dismissal from service. If the
charge is understood to mean, and as indeed has been so
understood, that the indictment was that the petitioner has
committed the alleged offences, we hold that an inquiry
pertaining to said offences, which are serious offences, could not
be at a domestic inquiry and had to be at a regular criminal trial.
We note that the criminal trial is still on.
16. Accordingly we set aside the order dismissing
petitioner from service and direct that petitioner be reinstated in
service. It would be open to the competent authority to suspend
the petitioner till the trial before the Court of Sessions is
WP(C) No.10865/2009 Page 6 of 7
completed. We leave it open to the competent authority to pass
necessary orders in respect of the manner in which the period
post petitioner being dismissed from service till he is reinstated
has to be reckoned. We highlight that the respondent had
suspended the petitioner and when the order levying penalty of
dismissal from service was inflicted petitioner was under
suspension.
17. Writ petition stands disposed of directing as
aforenoted in para 16.
18. No costs.
PRADEEP NANDRAJOG, J.
SUNIL GAUR, J.
JULY 22, 2011
mm
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