* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 24th August, 2011
Judgment Delivered On: 1st September, 2011
+ W.P.(C) 2120/1998
M.C.MISHRA ..... Petitioner
Through: Ms.Aishwarya Bhati, Advocate and
Ms.Jyoti Upadhyay, Advocate.
versus
UOI & ORS. .....Respondents
Through: Ms.Anjana Gosain, 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.
1. Enrolled as a Constable with Central Industrial Security
Force in the year 1985, petitioner was posted to ‘E’ unit
Central Coalfields Limited, Dhori, Dist. Bokaro, Bihar (now in
the state of Jharkhand). A complaint was made that
Ct.A.K.Singh and the petitioner had left the unit lines without
permission or intimation on 24.3.1996 and upon return around
midnight, when the CHM HC B.L.Chaudhry questioned the two
regarding their misconduct, petitioner assaulted HC
B.L.Chaudhry.
W.P.(C) No.2120/1998 Page 1 of 14
2. In view of the fact that jawans of Central Para Military
Forces are armed, all forces have a rule that even when not on
duty and if staying in the Unit lines, a jawan must take prior
permission or at least make an entry in the register kept at the
outpost gate while leaving the precincts of the unit and
needless to state the object is laudable. There must be a
record of movement of those who carry arms. Thus, taking a
serious view of having left the Unit line without permission or
even an intimation and additionally for having assaulted a
superior officer who acted within his duty to question the
petitioner on his conduct of leaving the Unit Line, without
permission or intimation, the Commandant issued a charge
sheet dated 25.04.1996, listing 2 articles of charge which read
as under:-
“Details of charges made against No.854280012
Constable M.C.Mishra (Suspended) CISF Unit CCL,
Dhori area („C‟ Coy) –
ARTICLE OF CHARGE – I
Gross indiscipline and misconduct in that
No.8542800/Const.M.C.Mishra, while functioning as
constable, absented himself from the unit lines at
about 2230 hours on 24/3/96 without the permission
from the competent authority, vide GD No.391 dated
24/3/96. He returned to the unit lines at about 0010
hours on 25/3/96.
ARTICLE OF CHARGE – II
Gross indiscipline, misconduct and unbecoming of a
member of the force in that No.854280012 constable
M.C.Mishra, while functioning as constable man-
handled Head Constable B.L.Choudry (CHM) who fellW.P.(C) No.2120/1998 Page 2 of 14
down and got injury on his knee and elbow at about
0010 hrs on 25/3/96.”
3. Submitting a response to the charge-sheet the petitioner
alleged that the charges were false and fabricated. In view of
the reply filed, since petitioner had denied the very factual
basis of the charge, the Commandant directed an inquiry to be
held and report submitted and for which Insp.B.K.Yamuna was
appointed as the Inquiry Officer.
4. Vide letter dated 3.5.1996 the petitioner requested that
the Inquiry Officer be changed, and relevant would it be to
highlight that grounds on which petitioner wanted change of
Inquiry Officer being not stated, the Commandant rejected the
request.
5. Preliminary hearing was conducted on 22.5.1996 wherein
the petitioner stated before the Inquiry Officer that he had no
objection in Insp.B.K.Yamuna conducting the inquiry and
further stated that petitioner did not wish to take assistance
from any member of the force and further that the petitioner
did not wish to produce any documentary evidence.
6. At the inquiry 3 witnesses were examined by the
prosecution.
7. HC B.L.Chaudhry PW-1 i.e. the superior officer statedly
assaulted by the petitioner deposed that he was performing
duties of CHM of ‘C’ Coy and that as per orders he was to
routinely check all personnel in the barracks to keep a record
of who went and who returned from duty. On 24.3.1996 during
his routine check, he noted that 3 personnel were missing. He
went to report the matter to the Coy Commander but the Coy
Commander was not available in his barrack. There he met ASI
W.P.(C) No.2120/1998 Page 3 of 14
S.C.Majumdar to whom he reported the incident and who
advised him to wait for the Coy Commander. At Around 00:15
hours (12:15 AM) he and ASI S.C.Majumdar saw petitioner
accompanied by Ct.A.K.Singh and Ct.R.P.Singh coming towards
unit lines from the front of Tarini Club. He called the 3
personnel and enquired about their purpose of being out of the
unit lines in the middle of the night, upon which the petitioner
retorted: Who are you to enquire from us? He i.e. HC
B.L.Chaudhry replied that personnel are not supposed to go
out of unit lines without permission and that he will report the
matter to senior officers. Hearing this, the petitioner said that
he will teach him i.e. HC B.L.Chaudhry a lesson and started
assaulting him. The petitioner incited Ct.A.K.Singh to join the
assault upon which Ct.A.K.Singh also started beating him, as a
result of which he fell down and sustained injured on his
knees, elbow and other parts of the body. ASI S.C.Majumdar
tried to separate them but could not succeed as he was
pushed away. Both, the petitioner and Ct.A.K.Singh left
towards their unit line after the assault. He reported the
matter to the Coy Commander who conducted a surprise roll
call where he asked the petitioner and Ct.A.K.Singh as to why
they had beaten him i.e. PW-1. Petitioner replied that the
Commandant and the DIG salute him and that nobody can do
anything to him. The Coy Commander asked the petitioner
and Ct.A.K.Singh to go for a medical check up if they were
injured, but they refused and left the spot. He and the Coy
Commander went to the Commandant and reported the
incident.
W.P.(C) No.2120/1998 Page 4 of 14
8. On being cross examined by the petitioner he stated that
as per orders he was to check the barracks daily at 22:30
hours so as to ensure that all personnel were in their barrack
by 22:30 and that they were coming back from and reporting
to their duties on time. He further stated that on 24.3.1996
there was no alarm of „thief thief‟ in the unit line.
9. On being questioned by the Inquiry Officer, he stated
that he has never worked with the petitioner nor does he have
any enmity with him and that on the day of the incident the
petitioner had incited Ct.A.K.Singh to beat him. He further
stated that he had got himself medically treated at the Tarni
Dispensary and tendered the treatment slip Ex.I and General
Diary entry No.391 Ex.II recording absence of petitioner and
Ct.A.K.Singh from unit lines on 24.3.1996 and General Diary
entry No.393 Ex.III dated 25.3.1996 recorded at 00:35 hours
that the petitioner and Ct.A.K.Singh assaulted him.
10. ASI S.C.Majumdar PW-2 corroborated PW-1 to the extent
that on 24.3.1996 at around 22:40 hours PW-1 came to the
Coy Commanders’ quarter to report about 3 personnel missing
from the barracks. He deposed that while he was waiting along
with PW-1 for the Coy Commander, at about 23:45 hours, he
saw petitioner and Ct.A.K.Singh coming from the front of Tarni
Club. HC B.L.Chaudhry (PW-1) called out to them and asked
where were they coming from. The petitioner replied that he
was under orders of posting, at that moment someone called
the petitioner to come back to the party and he went inside
the club. After some time the petitioner returned and while he
was going towards the unit line PW-1 stopped him and told him
that his absence report has been submitted to the Coy
W.P.(C) No.2120/1998 Page 5 of 14
Commander and that he should be ready with a reply by
tomorrow morning. The petitioner got angry and said that he
was attending a party and that is why he got late which was
followed by heated discussion between the two and the
petitioner gave a hard push to PW-1 as a result of which he fell
down and got injured. The petitioner and Ct.A.K.Singh left. He
and PW-1 reported the matter to Coy Commander upon his
arrival who took PW-1 to the company lines. He i.e. PW-2 did
not accompany them.
11. The petitioner declined to cross examine the witness.
12. On being questioned by the Inquiry Officer he stated that
the petitioner had incited Ct.A.K.Singh to join the assault and
that he had separated the petitioner and Ct.A.K.Singh from HC
B.L.Chaudhry (PW-1). However in answer to the next question
he stated that Ct.A.K.Singh had not participated in the assault.
He further stated that as a result of the push given by the
petitioner, PW-1 fell down and got injured.
13. It needs to be highlighted that in his examination-in-chief
ASI S.C.Majumdar has attempted to trivialize the incident by
stating that the petitioner had simply pushed HC B.L.Chaudhry
and that the injuries on HC B.L.Chaudhry were the result of a
fall on being pushed, but his answers when examined by the
Inquiry Officer would reveal that HC B.L.Chaudhry was
assaulted by the petitioner and he i.e. ASI Majumdar had to
intervene. In other words, the deposition of ASI S.C.Majumdar
read as a whole substantially corroborates the testimony of HC
B.L.Chaudhry.
14. Ct.P.Venka Teshan PW-3 deposed that he was on sentry
duty on 24.3.1996 when at around 23:00 hours ASI
W.P.(C) No.2120/1998 Page 6 of 14
S.C.Majumdar went outside unit line towards Tarni Club and
after some time HC B.L.Chaudhry (PW-1) also left in the same
direction. That after about an hour he saw petitioner along
with Ct. A.K.Singh coming towards the unit lines from outside
and soon thereafter Coy Commander accompanied by PW-1,
PW-2, Ct.A.Ashok Reddy and Ct.S.C.Tiwari entered the unit
lines. A check roll call was conducted by the Coy Commander
wherein he asked the petitioner and Ct.A.K.Singh as to why
had they beaten HC B.L.Chaudhry. They denied having beaten
him but upon PW-1 showing his injuries they also showed the
injuries on their hand to the Coy Commander. They were asked
to get medical treatment but they left for the unit lines
instead.
15. The petitioner declined to cross-examine the witness
despite being given an opportunity.
16. On being questioned by the Inquiry Officer he stated that
on the day of the incident he had not heard any alarm of ‘Chor
Chor’ and that the petitioner had not informed him while going
out of unit lines.
17. The petitioner did not produce any evidence in defence.
However he gave a defence statement wherein he stated that
on 24.3.1996 at about 22:15 hours he heard cries of ‘Chor
Chor’ and thus along with Ct.Tiwari and Ct.Reddy the Coy
Commander went towards the railway siding from which side
said cries were emanating. He and Ct.A.K.Singh also went
outside the unit lines. After some time HC B.L.Chaudhry (PW-1)
and ASI S.C.Majumdar (PW-2) called them and asked as to
where they were coming from and started abusing them. He
asked them to stop abusing, upon which a heated discussion
W.P.(C) No.2120/1998 Page 7 of 14
took place between Ct.A.K.Singh and PW-1 resulting in a tussle
between the two. In an attempt to separate the two, he had a
tussle with PW-1 as a result of which PW-1 fell down and got
hurt. That ASI S.C.Majumdar (PW-2) separated him and PW-1
and thereafter he left for getting medical treatment. A check
roll call was conducted wherein the Coy Commander enquired
about the incident upon which he told the Coy Commander to
report his complaint against PW-1 that a tussle had taken
place between the two but no entry was made in the general
diary.
18. On being questioned by the Inquiry Officer, the petitioner
stated that on hearing the cry of ‘Chor Chor’, he left the unit
lines without permission or even informing the CHM or the
sentry on duty. That PW-1 and PW-2 had not beaten him, but
only a tussle had taken place between him and PW-1 and that
PW-2 had separated them. He stated that he did not submit
any written complaint to a senior officer regarding the incident
as he did not find it necessary to do so. He agreed that
Ct.A.K.Singh stated in his written statement that he i.e. the
petitioner had gone to a party on the night of the incident. He
further stated that he had not seen any suspicious person
outside the unit lines and that he did not go to the dispensary,
despite direction by the Coy Commander, due to non-
availability of a transport.
19. The Inquiry Officer submitted a report holding that both
charges were established and furnishing a copy of the report
of the Inquiry Officer to the petitioner for his response and
considering the same, the Disciplinary Authority, taking into
account that in the past, 3 departmental actions were taken
W.P.(C) No.2120/1998 Page 8 of 14
against the petitioner, 1 of which was quashed but 2 penalties
remained, in view of petitioner being indicted once again,
levied penalty of dismissal from service vide order dated
6.7.1996 against which statutory appeal was rejected on
1.11.1996 and the Revisional remedy failed when vide order
dated 8.12.1997 the revision was rejected.
20. The present petition was filed challenging the order
levying penalty, the order rejecting the appeal and the order
rejecting the revision petition.
21. The 1st point urged was that the petitioner was denied an
opportunity to defend before an unbiased inquiry officer and
for which it was highlighted that on 3.5.1996 the petitioner
had desired a change of the Inquiry Officer which request was
denied without a justifiable cause.
22. As noted by us herein above while noting the relevant
facts that petitioner‟s letter dated 3.5.1996 gives no reason on
basis whereof petitioner desired change in the Inquiry Officer
and thus we hold that the Disciplinary Authority was fully
justified in turning down the said request.
23. It was then urged that the Inquiry Officer was prejudiced
against the petitioner and for which the proof was that the
witnesses were not examined in the presence of the petitioner
who was not allowed to even cross-examine them and
realizing that petitioner‟s signatures were to be found on each
page where testimony was recorded, it was urged that
signatures of the petitioner were obtained on blank sheets.
24. Original record was perused by us at the hearing. The
record shows that on each and every sheet of paper on which
deposition of the witnesses has been recorded, the signatures
W.P.(C) No.2120/1998 Page 9 of 14
of the witness, the Inquiry Officer and even the petitioner have
been obtained.
25. We find that in the appeal filed before the Appellate
Authority it has not been alleged that petitioner‟s signatures
were obtained on blank sheet. It is simply stated therein that
petitioner was denied an opportunity to cross-examine the
witnesses. Now, record shows that opportunity was granted to
the petitioner to cross-examine witnesses and exercising the
same he has cross-examined PW-1. It is apparent that the
plea taken in the writ petition and during arguments that
signatures of the petitioner were obtained on blank sheet is an
afterthought to overcome the fact that PW-1 has withstood the
cross-examination. We need to highlight that a perusal of the
record would reveal that the pen used to record the deposition
of the witnesses, the cross-examination and questions put by
the Inquiry Officer has been used by the petitioner to pen his
signatures and name; the same pen has been used by the
witness to pen his signature as also has been used by the
Inquiry Officer to pen his signatures. This belies the stand of
the petitioner that his signatures were obtained on blank
documents. In any case, the final nail in the coffin of the stand
taken by the petitioner is the fact that if his signatures were
obtained by the Inquiry Officer on blank papers we would have
expected the petitioner to have contemporaneously raised a
grievance before the Competent Authority and we find that the
petitioner has not done so. The silence of the petitioner is a
pointer to the lie being now spoken.
W.P.(C) No.2120/1998 Page 10 of 14
26. It was then pleaded that material witnesses were not
examined. The material witnesses stated were Ct.A.K.Singh,
Ct.R.P.Singh and the Coy Commander.
27. It was not the obligation of the department to multiply its
witnesses. If the petitioner desired upon the belief that there
were material witnesses, nothing prevented him from moving
an application before the Inquiry Officer to summon the 3 as
his defence witnesses. The petitioner did not move any
application. In fact, at the preliminary hearing he categorically
said that he does not desire to examine any one as a witness
in defence. We note that after prosecution evidence was
recorded, as is to be found in the order-sheet of 23.5.1996,
petitioner, when questioned: Whether he desires to lead
evidence in defence, replied in the negative.
28. It was then urged that prejudice was caused to the
petitioner at the inquiry because of the fact he was
transferred, upon being suspended pending inquiry, to the
headquarter at Bokaro.
29. As noted herein above the Unit of the petitioner and the
place where inquiry was held is CCL Unit at Dhori. It has not
been pleaded in the writ petition that the 2 were so apart that
the petitioner could not appear before the Inquiry Officer. In
any case, record shows that the petitioner has participated on
each and every date when the inquiry was held and thus there
is no scope for any argument that due to being transferred and
attached at the headquarters pending inquiry and the seat of
the inquiry being CCL Unit at Dhori, a prejudice was caused to
the petitioner at the inquiry.
W.P.(C) No.2120/1998 Page 11 of 14
30. It was then urged that except for the self-serving
statement of HC B.L.Chaudhry, there was no evidence to
sustain the second charge and in respect of the first it was
urged that the petitioner went out of the unit lines as he heard
cries of „Chor Chor‟ from outside the unit lines and the natural
reaction would be to rush out and try and apprehend the thief.
31. Pertaining to the defence of the petitioner that he went
out of the unit lines, driven by instinct, when he heard cries of
„Chor Chor‟, we would highlight that save and except a
suggestion given to PW-1, the petitioner has not even
suggested the same to PW-2 and PW-3 who have just not been
cross-examined, the petitioner did not take the line of cross-
examination qua PW-1 to any further point save and except a
mere suggestion. We note that notwithstanding the petitioner
not having cross-examined PW-2 and PW-3, since he projected
said line of defence when he cross-examined PW-1, the Inquiry
Officer has questioned PW-2 and PW-3 whether cries of „Chor
Chor‟ were heard by them and the answer by the 2 is „No‟.
32. Now, the petitioner admitted having left the Unit lines
without permission or even intimation and whether the reason
thereof was as projected by the petitioner or as projected by
the prosecution, is a question of fact and it is settled law that
in a judicial review proceedings it would be impermissible to
dissect evidence with respect to a question of fact. As long as
there is evidence to sustain a finding of fact returned by the
Inquiry Officer and accepted by the Disciplinary Authority, the
Writ Court cannot fiddle with the evidence to find out where
the greater probability rests. This may be permissible in
exercise of an appellate jurisdiction.
W.P.(C) No.2120/1998 Page 12 of 14
33. Pertaining to charge No.1 it is not that the only evidence
is of the injured Head Constable for the reason, as noted
herein above by us, testimony of PW-2 read with reference to
the answers given by him when examined by the Inquiry
Officer would reveal that the petitioner assaulted PW-1 and
PW-1 had to be rescued by PW-2. The testimony of PW-3 is
evidence of an incident having taken place in that PW-3 had
stated that at the roll call the petitioner showed an injury on
his hand as proof of even the petitioner having suffered an
injury and for which the justification given by the petitioner is
as per his statement before the Inquiry Officer and as noted
herein above.
34. We have noted that apart from the testimony of PW-1,
there is proof in the form of medical papers showing that PW-1
was injured and as regards the petitioner, through the
testimony of PW-3 we have the fact that the petitioner never
got himself medically examined in spite of being told to have
himself medically examined and the reluctance of the
petitioner to get himself medically examined is an inferential
fact that either the injury was not a fresh one or was so trivial
that the petitioner did not want a contemporaneous
memorandum being prepared with respect thereto.
35. Be that as it may, for the same reasons which we have
recorded herein above pertaining to the 1st charge, adopting
the same for the 2nd i.e. not to enter into an appellate
discussion on the evidence, we hold that there is sufficient
evidence to establish charge No.2 and with respect to
Annexure-B to the writ petition, photocopy of a medical
prescription alleged to be pertaining to the petitioner, we may
W.P.(C) No.2120/1998 Page 13 of 14
simply note that said document was never produced before
the Inquiry Officer and has surfaced as an annexure to the writ
petition and thus has to be ignored by us for want of
authenticity.
36. On the last submission relating to proportionality of the
penalty suffice would it be to state that in the past for 2
misdemeanours penalties were levied upon the petitioner. A
3rd penalty was quashed by the High Court. Instant incident
would thus be the 3rd misdemeanour.
37. Assaulting a superior officer is not a minor
misdemeanour and thus we do not find the penalty levied to
be disproportionate. It may be highlighted that in 11 years
service this was the 4th inquiry faced by the petitioner. In the
earlier 3, 2 penalties had attained finality while the 3rd was set
aside. It is settled law that when repeated misdemeanours are
committed, past conduct can be considered on the issue of
proportionality of the sentence.
38. We dismiss the writ petition but refrain from imposing
costs.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
SEPTEMBER 01, 2011
dk
W.P.(C) No.2120/1998 Page 14 of 14