* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: March 30, 2011
Judgment Delivered on: April 04, 2011
+ WP(C) 5991/2010
KISHOR KUMAR ..... Petitioner
Through: Mr.Karan Singh Bhati, Mr.Rajneesh
Bhaskar and Ms.Jyoti Upadhyay,
Advocates
versus
UOI & ORS. .....Respondents
Through: Mr.Ankur Chhibber, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
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.
1. Vide memorandum dated 23.05.2009 the petitioner was
served with a charge sheet consisting of 2 charges; the 3rd
charge simply indicated to the petitioner that as per his
service book, in the past, he was levied 1 major and 7 minor
penalties which evidenced his being a habitual offender. It is
apparent that the so-called 3rd charge was in fact an intimation
to the petitioner that the Disciplinary Authority would be
considering the past service record of the petitioner, should he
W.P.(C) No.5991/2010 Page 1 of 15
be found guilty of the first 2 charges listed against him. The 3
charges read as under:-
“Charge No.1
The wife of Force No.882160085 Constable Kishor
Kumar P.T.P.S Panki (Uttar Pradesh) Smt.Tara Devi
was found was found by the side of road in
unconscious condition in front of gate No. at 15:00
hrs. On 04.04.2009 who had consumed poisonous
substance who was taken to P.T.P.S. Panki Hospital
by the common people and the members of Force.
By the advice of doctor again admitted in Rajaram
Hospital and constable Kishor Kumar was
immediately informed. When Constable Kishor
Kumar reached Rajaram Hospital then he started
addressing and using un-parliamentary language
and threatened to kill Assistant Commandant Sri
Mani Ram and threatened to kill Assistant
Commandant Sri Mani Ram and Inspector/Work
S.P.Tripathi who were getting the treatment of his
wife done. This act of Kishor Kumar is gross
misbehavior, condemnable, unwanted and is
indiscipline. Therefore, this charge.”
Charge No.2
“The wife of Force No.882160085 Constable Kishor
Kumar P.T.P.S Panki (Uttar Pradesh) Smt.Tara Devi
was found by the side of road in unconscious
condition in front of gate No. at 15:00 hrs. On
04.04.2009 who had consumed poisonous
substance who was taken to P.T.P.S Panki Hospital
by the common people and the members of Force.
Due to humanity, sympathy and belongingness’
Inspector/Work S.P.Tripathi reached to Rajaram
Hospital after taking `5,000/- on credit so that the
treatment of wife of Kishor Kumar could be done
very nicely. After receiving the information as soon
Constable Kishor Kumar reached in the premise of
Rajaram Hospital, without any reason and under a
planned manner misbehaves with Assistant
Commandant and Inspector, used un-parliamentary
language and created nuisance in public place
W.P.(C) No.5991/2010 Page 2 of 15
which tarnished the image of Force. This act of
Kishor Kumar is gross misbehavior, condemnable,
unwanted and is indiscipline. Therefore, the
charge.”
Charge No.3
According to the service book and documents of
Force No.882160085 Constable Kishor Kumar
C.I.S.F Unit P.T.P.S Panki (Uttar Pradesh), during his
service he has been awarded under C.I.S.F Rule, 01
major punishment and 07 minor punishments for
the various indiscipline behaviors. Thus, Force
No.882160085 Constable Kishor Kumar is habitual
of dereliction in duty, irresponsibility, misbehavior
and gross indiscipline. Therefore, this charge.”
2. The petitioner submitted his reply on 6.6.2009 and in our
opinion it would be appropriate if the defence taken by the
petitioner is noted inasmuch as it would help focusing upon
the rival viewpoints debated at the bar during hearing of the
writ petition.
3. Not denying that on 4.4.2009 his wife was admitted at
P.T.P.S.Panki Hospital and thereafter at Raja Ram Hospital, the
petitioner denied having used any un-parliamentary language
or having threatened to kill Asst.Commandant Sh.Mani Ram
and Insp. (Works) S.P.Tripathi at the hospital. He denied
creating nuisance in a public place which tarnished the image
of the force. He stated that his wife had consumed some
poisonous substance and since her life was in danger, the
petitioner’s attention was completely devoted on saving the
life of his wife. With reference to the list of witnesses through
whose mouth the department intended to prove the charges,
petitioner stated that it was unexplainable as to why no public
person i.e. a doctor, a nurse or an employee of the hospital
W.P.(C) No.5991/2010 Page 3 of 15
was cited as a witness. Therefrom, petitioner sought to urge
that it was apparently a case of no evidence against him.
Petitioner took a technical plea of the charge being vague
inasmuch as the so-called un-parliamentary words stated to
have been used by him were not specified in the charge. It
may be highlighted that the petitioner did not deny that on
4.4.2009 Asstt.Commandant Sh.Mani Ram and Insp. (Works)
Sh.S.P.Tripathi visited the hospital.
4. Insp.(Works) Begraj was detailed as the Inquiry Officer
who commenced recording evidence in presence of the
petitioner and since he got transferred Insp.(Works)
C.M.Shukla replaced him as the Inquiry Officer.
5. 10 prosecution witnesses were examined to prove the
charges against the petitioner and 1 court witness was
examined by the Inquiry Officer for the purpose of proving the
3rd charge i.e. the charge pertaining to the character i.e.
previous service record of the petitioner.
6. HC(Fire) N.Dhawas PW-1 deposed that on 4.4.2009 at
15:00 hours while on his way to gate No.2 he saw a crowd
standing near the road adjacent to gate No.2, watching a lady
lying on the road. On reaching the spot he realized that the
woman lying unconscious was the wife of the petitioner. After
removing the lady to P.T.P.S.Hospital with the help of other
persons he returned to gate No.2 where he reported the
incident to Assistant Sub-Insp.Kadam Singh and returned back
to the hospital. At P.T.P.S.Hospital he was informed that the
lady was to be taken to Raja Ram Hospital for further
treatment and thus he took her to Raja Ram Hospital with the
help of Ct.Darshan Kumar PW-3 whom he picked up from gate
W.P.(C) No.5991/2010 Page 4 of 15
No.2 on his way. That Asst.Commandant Mani Ram PW-8 and
Insp.(Works) S.P.Tripathi PW-9 also arrived at the hospital.
That soon thereafter the petitioner arrived at the hospital and
without making any enquiries about the incident, the petitioner
started shouting about his wife being brought to the hospital
and hurled abuses. That when the persons present at the
hospital tried to calm him down, he started abusing the
Asst.Commandant Mani Ram (PW-8) and Insp.(Works)
S.P.Tripathi (PW-9) and threatened to kill them. That the
petitioner continued to shout and use un-parliamentary
language and that seeing the situation get out of control he
i.e. PW-1 and other officers returned to the unit lines.
7. HC(Fire) Avtar Singh PW-2 deposed that on 04.04.2009
he accompanied PW-1 and took petitioner’s wife to the P.T.P.S
hospital and corroborated PW-1 in regards to the events
thereafter. He additionally stated that the petitioner
threatened to kill Asst.Commandant Mani Ram (PW-8) and
Insp.(Works) S.P.Tripathi (PW-9) and said that tonight will be
their last night. That to stop the petitioner from shouting, he
was taken to the emergency ward to see his wife.
8. Ct.(Works) Darshan Kumar, PW-3 deposed that on
04.04.2009 he accompanied PW-1 and PW-2 when they took
petitioner’s wife to Raja Ram Hospital where she was referred
for further treatment by the P.T.P.S. Hospital and that on the
way information regarding the same was given to Sub-
Inspector(Works) Rajkumar (PW-4) over the phone. He
corroborated PW-1 and PW-2 in regards to the events that
followed. He additionally stated that apart from
Asstt.Commandant Mani Ram (PW-8) and Insp. (Works)
W.P.(C) No.5991/2010 Page 5 of 15
S.P.Tripathi (PW-9), amongst the force personnel who reached
the hospital there was Sub Inspector Rajkumar (PW-4), HC
Yogendra Singh (PW-7), HC (DCPO) Beant Singh (PW-5) and
Lady Ct. Sheetal Shepre (PW-10). That petitioner on reaching
the hospital without enquiry started shouting in high pitch as
to how his wife who was sleeping with him in the house
reached the hospital. That petitioner hurled abuses at Asstt.
Commandant Mani Ram (PW-8) and Insp. (Work) S.P.Tripathi
(PW-9) and threatened to kill them by saying that today is their
last day. That since the situation was not coming under control
and petitioner continued to shout using un-parliamentary
language. He i.e. PW-3 along with other officers returned to
the unit lines.
9. Asstt.Sub-Inspector(Works) Rajkumar PW-4, deposed that
on 04.04.09 at 15:15 hours he received information over the
telephone from Ct.Darshan Kumar (PW-3) that the wife of the
petitioner was found lying unconscious on the road outside the
plant he conveyed the said information to HC(DCPO) Beant
Singh (PW-5) with a request to take a jeep to the hospital but
before the jeep could leave he received another message from
Ct.Darshan Kumar that the lady was being removed to Raja
Ram Hospital and therefore along with HC Beant Singh, HC
Joginder Singh, Ct.Shital Shepra (PW-10) he reached Raja Ram
Hospital from where he gave information over the telephone to
Asstt.Cmdt.Mani Ram and Insp.(Works) S.P.Tripathi who
arrived at Raja Ram Hospital. He deposed further facts as
stated by PW-1, PW-2 and PW-3 as to what happened at the
hospital when said two officers reached.
W.P.(C) No.5991/2010 Page 6 of 15
10. HC Beant Singh PW-5 and HC Kapur Singh PW-6
corroborated PW-4. HC Yogender Singh PW-7 corroborated
PW-4 of going to the hospital but gave no further testimony
stating that he was not present when the petitioner reached
the hospital.
11. Asstt. Commandant Mani Ram (PW-8) and Insp. (Work)
S.P.Tripathi (PW-9) deposed that on receiving information
about the petitioner’s wife being hospitalized they took `5000
from the canteen and reached Raja Ram Hospital. That the
petitioner on reaching the hospital, without making any
enquiry started hurling abuses and shouted about his wife
being brought to the hospital. When the force personnel tried
to calm him down, the petitioner started abusing PW-8 and
PW-9 and threatened to kill them for conspiring against him.
12. Lady Ct.Sheetal Shepre PW-10 corroborated PW-4 in
regard to her role assigned by him i.e PW-4 and deposed that
soon after seeing the condition of the patient she had gone
back to the lines and had thus not witnessed petitioner’s
conduct.
13. Asstt.Sub-Insp.(Clerk) K.P.Rao CW-1 produced a
document Ex.1 consisting of a list of punishments awarded to
petitioner throughout his service.
14. Relevant would it be to note that the petitioner was given
full opportunity to cross-examine all the witnesses and nothing
was shown to us with reference to the cross-examination
conducted which would discredit the said witnesses. It is thus
apparent that there is sufficient evidence to indict the
petitioner.
W.P.(C) No.5991/2010 Page 7 of 15
15. During inquiry the petitioner produced a letter written by
a doctor from Raja Ram Hospital as per which no such incident
as alleged had taken place in the hospital but expressed his
inability to produce the doctor concerned as a witness to prove
the letter stating that the doctor concerned i.e. Dr.Vinay
Verma cannot come i.e. would not appear before the Inquiry
Officer.
16. The Inquiry Officer submitted a report dated 19.10.2009
holding petitioner guilty of the charges. Supplying a copy of
the inquiry report to the petitioner for his response and
considering the same the Disciplinary Authority inflicted the
penalty of removal from service vide order dated 27.10.2009
against which appeal filed by the petitioner was rejected vide
order dated 8.2.2010. The petitioner filed, what he claims to
be a second appeal as pleaded in the writ petition, which was
treated as a revision petition, as pleaded in the counter
affidavit filed; which revision petition was dismissed vide order
dated 13.7.2010. We note that as pleaded by the petitioner in
the writ petition he claims that his second appeal i.e. the
revision petition was not decided, but with the counter
affidavit filed, copy of the order dated 13.7.2010 has been
annexed and notwithstanding petitioner not having amended
the writ petition to challenge the same, cutting through the
technicalities of procedural law, we considered arguments with
reference to, as if, even the revisional order is under
challenge.
17. The first and foremost contention urged by learned
counsel for the petitioner was that the charges pertained to
stated acts committed by the petitioner in Raja Ram Hospital
W.P.(C) No.5991/2010 Page 8 of 15
i.e. a public place and for the reason no independent witness
was examined it has to be held that the indictment is
contrived.
18. We are not dealing with a criminal trial where the penalty
could attract a sentence of imprisonment and thus the
principle of law that where independent public witnesses are
available their non-association in the investigation may taint
the purity of the investigation is not applicable in the instant
case because the instant case pertains to a domestic inquiry.
19. Conscious of the fact that the plea of not examining
hospital staff or a public person would not cut much ice unless
the petitioner could show a motive for Asst. Commandant Mani
Ram and Insp. (Works) S.P.Tripathi to falsely implicate the
petitioner, an attempt has been made to show that the two
had a motive to do so.
20. It is pleaded in para 4(iv) of the writ petition that the
petitioner and his wife were going through a tough time and
because of false rumours pertaining to illicit relationship of his
wife with senior officers, petitioner was mentally upset and
was under heavy stress. From these vague and inchoate
pleadings, where nothing specific is alleged against Asst.
Commandant Mani Ram and Insp.(Works) S.P.Tripathi, learned
counsel for the petitioner sought to urge that the senior
officers were Asst. Commandant Mani Ram and Insp. (Works)
S.P.Tripathi. Needless to state the respondents have denied
that there were any rumours pertaining to petitioner’s wife
having illicit relationship with any or more than one senior
officer of the petitioner.
W.P.(C) No.5991/2010 Page 9 of 15
21. Admittedly, petitioner never made any complaint in
writing or otherwise to any superior officer that defamatory
rumours were being spread about his wife of having illicit
relationship with senior officers. The petitioner has not even
specifically pleaded that the rumours pertaining to illicit
relationship of his wife linked her to Asst. Commandant Mani
Ram and/or Insp. (Works) S.P.Tripathi. Thus, the plea of mala
fide, being weak, inchoate and without any material particulars
is rejected.
22. We have briefly noted hereinabove the testimony of the
10 witnesses examined during inquiry and suffice would it be
to state that their testimony leaves hardly any scope for a
debate on the indictment held proved.
23. Reverting back once again to the plea of malice, with
reference to the evidence led, it is apparent that all the senior
officers and the colleagues of the petitioner rallied around him
to save his wife who had consumed poison i.e. had attempted
a suicide. Asst. Commandant Mani Ram and Insp. (Works)
S.P.Tripathi even took the trouble of borrowing `5,000/- from
the Unit canteen when they learnt that petitioner’s wife had to
be taken to a private hospital i.e. Raja Ram Hospital as their
instinct rightly told them that the management of the private
hospital may require some money to be deposited. The
manner in which the colleagues and the senior officers of the
petitioner have rallied around him at the hour of crises totally
demolishes the feeble theory of mala fide sought to be spun by
the petitioner.
24. The next plea urged was that the Inquiry Officer, the
Disciplinary Authority, the Appellate Authority and the
W.P.(C) No.5991/2010 Page 10 of 15
Revisional Authority have unjustifiably not considered the
letter produced by the petitioner and as written by Dr.Vinay
Verma of Raja Ram Hospital, contents whereof negated any
incident taking place at Raja Ram Hospital, as alleged against
the petitioner.
25. We have noted hereinabove that while producing the
letter before the Inquiry Officer the petitioner stated that
Dr.Vinay Verma had refused to appear before the Inquiry
Officer. Now, the letter had to be proved through the
testimony of its author, who was available. Dr.Vinay Verma
refusing to appear before the Inquiry Officer is indicative of his
lack of courage to depose and support the contents of his
letter. Alternatively, who knows, whether at all the letter was
at all written by Dr.Vinay Verma.
26. That apart, we have already concluded hereinabove that
there is no motive for Asst. Commandant Mani Ram and Insp.
(Works) S.P.Tripathi to contrive a version against the petitioner
and it would be hard to believe that the colleagues of the
petitioner, who have corroborated the said two persons, would
join in a contrived action against the petitioner.
27. The last plea urged was that the incident itself
establishes a severe stress and trauma under which the
petitioner had his mental faculties disabled. It was urged that
admittedly, the wife of the petitioner had consumed poison
and had nearly succeeded in her mission to commit suicide.
As a husband, it would be a natural reaction for the petitioner
to lose his composure. Counsel submitted that, if not rumours
that his wife was having illicit relationship with senior officers,
there had to be something, which unfortunately had not
W.P.(C) No.5991/2010 Page 11 of 15
surfaced, which was troubling the mind of the petitioner and
that something had to do with something in the Unit
concerned for only this circumstance would explain the
unnatural and unbecoming conduct of the petitioner. Counsel
would urge that why should the petitioner use un-
parliamentary language against his senior officers and utter
utterances to kill them, when the senior officers had reached
to not only comfort the petitioner but additionally extend a
helping hand to him and his wife? Finding a possible answer to
the aforenoted question, counsel concluded by submitting that
it is obviously a case where the petitioner came under extreme
mental stress, as indeed any husband would, whose wife
attempts to commit suicide and in the backdrop of the
possibility of there being a rumour mill working overtime in the
Unit lines, may be a gossip or innuendos, concerning his wife
and these gossips or innuendos became the inflammatory
material and lit the fire in the mind of the petitioner when his
wife attempted to commit suicide, and the resultant stress
overtook the free thinking of the petitioner i.e. acted as a
provocation to make him lose his cool and thus it has to be a
case of the petitioner not being saddled with the liability of an
intentional act, but saddled with the liability of not being able
to control his emotions, thereby rendering the penalty
disproportionate.
28. The argument is interesting and needs a discussion.
29. Killing of a man by a man under a grave provocation
reduces the gravity of the offence from murder to that of
culpable homicide not amounting to murder on the logic and
the reasoning that the former is intentional i.e. the offending
W.P.(C) No.5991/2010 Page 12 of 15
act is linked to a positive state of mind to commit the act and
the latter is not the result of a positive state of mind to commit
the act, but is the result of a temporary loss of self control; not
that the act complained of is not an offence, but the gravity
thereof is lower.
30. Indeed, this distinction has not been kept in mind by the
authorities concerned for the obvious reason nobody drew
their attention to said distinction. Neither in the response to
the report of the Inquiry Officer, nor in the appeal, nor in the
revision has said point been raised.
31. An intentional and willful conduct is qualitatively different
than an act of indiscretion and more so when the indiscretion
is the result of a person being overwhelmed by circumstances
beyond his control.
32. The facts of the case probablize that the petitioner was
overwhelmed by circumstances beyond his control and in the
moment of stress and distress when he saw his wife struggling
for life, having consumed poison to take her life, losing self
control, the petitioner went into a tirade and spoke all and
sundry, little realizing that his ill conceived tirade was
misdirected against those who had assembled as his
sympathizer to not only console him but extend a helping hand
to his wife who was struggling for her life.
33. It is true that in the past, the petitioner was levied 1
major and 7 minor penalties, but the nature thereof have not
been brought out in either order or the pleadings before us.
Whether any moral turpitude or insubordination was an
element thereof is not known.
W.P.(C) No.5991/2010 Page 13 of 15
34. It is apparent that on the issue of the quantum of penalty
to be levied, since the attention of the authorities was not
drawn to the distinctive facts which emerged and as noted and
opined by us in paras 29 to 32 above, which are certainly
relevant on the issue of the quantum of penalty to be levied,
and law being clear that where an authority misdirects itself in
law or ignores a relevant fact or a relevant circumstance, the
decision would be vitiated in law, the matter needs a remand
for a consideration on the quantum of penalty to be levied
upon the petitioner and for which we set aside the revisional
order dated 13.7.2010 with a direction to the Revisional
Authority to reconsider and re-decide the revision petition filed
by the petitioner and while so doing to take into account paras
29 to 32 of the instant decision and in light thereof have a re-
look at the attendant circumstances under which the petitioner
committed the misdemeanour. Since the nature of the
previous penalties with respect to the nature of the charge and
the findings have not been shown to us and therefore we have
not commented thereon, it would be permissible for the
Revisional Authority to take the said penalties into
consideration and with reference to the nature of the
indictment in the past; giving reasons in support of the
quantum of penalty levied, the Revisional Authority would levy
an appropriate penalty. Needless to state the merits of the
indictment need not be dealt with by the Disciplinary Authority
i.e. the indiscretion of the petitioner would be treated as
established and the only reasons required to be given by the
Revisional Authority would pertain to the quantum of the
punishment.
W.P.(C) No.5991/2010 Page 14 of 15
35. The Revisional Authority would pass a reasoned order on
the quantum of penalty within 90 days of receipt of a certified
copy of this order.
36. Petition stands disposed of in terms of paras 34 and 35
above.
37. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
APRIL 04, 2011
mm
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