{"id":14071,"date":"2011-09-16T00:00:00","date_gmt":"2011-09-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ex-const-krishan-kumar-vs-uoi-ors-on-16-september-2011"},"modified":"2018-05-31T19:18:31","modified_gmt":"2018-05-31T13:48:31","slug":"ex-const-krishan-kumar-vs-uoi-ors-on-16-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ex-const-krishan-kumar-vs-uoi-ors-on-16-september-2011","title":{"rendered":"Ex.Const.Krishan Kumar vs Uoi & Ors. on 16 September, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Ex.Const.Krishan Kumar vs Uoi & Ors. on 16 September, 2011<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
*      IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                 Judgment Reserved On: 6th September, 2011\n                 Judgment Delivered On: 16th September, 2011\n\n+                       W.P.(C) 5518\/2011\n\n       EX.CONST.KRISHAN KUMAR               ..... Petitioner\n                Through: Ms.Rekha Palli, Advocate and\n                         Ms.Amrita Prakash, Advocate.\n\n                             versus\n\n       UOI & ORS.                             .....Respondents\n                 Through:    Mr.Sachin Datta, Advocate and\n                             Mr.Abhimanyu Kumar, Advocate\n                             with Mr.Ashok Tikku, Deputy\n                             Commandant, CISF.\n\n       CORAM:\n       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n       HON'BLE MR. JUSTICE SUNIL GAUR\n\n1.     Whether the Reporters of local papers may be allowed\n       to see the judgment?\n\n2.     To be referred to Reporter or not?\n\n3.     Whether the judgment should be reported in the\n       Digest?\n\nPRADEEP NANDRAJOG, J.\n<\/pre>\n
1.     For the security of Sh.S.S.Libra, Member of Parliament,
\na Central Industrial Security Force Outpost was established
\noutside his residence at village Libra in Punjab.     14 Force
\npersonnel were deputed under the command of SI Sanat
\nHasda. He was the senior-most officer. The other members
\nof the Unit were HC Amar Singh, HC Gurnam Singh, HC
\nParmatma Rai, Ct.Tej Singh, Ct.Parvez Ahmed, Ct.Krishan
\nKumar, Ct.Desai Kiran, Ct.Santosh Kumar, Ct.Shish Ram,<\/p>\n
W.P.(C) No.5518\/2011                              Page 1 of 21<\/span>
\n Ct.Shahabad Khan, Ct.Ram Sarup, Ct.Sapan Singh and
\nCt.Lakhbir Kumar.\n<\/p>\n
2.     On 3.3.2010 SI Sanat Hasda, Ct.Sapan Singh and
\nCt.Shahbad Khan accompanied Shri S.S.Libra to New Delhi
\nfor his personal security and SI Sanat Hasda claimed to have
\nreceived information on his mobile phone from HC Amar
\nSingh that an AK-47 rifle bearing Butt No.151 issued in the
\nname of the petitioner was missing from the Outpost and
\nthat he gave orders to conduct an extensive search to
\nlocate the rifle which could not be found in spite of intensive
\nsearch     and     thus   the   matter   was   reported    to       the
\nCommandant of the Unit. On 8.3.2010, upon information
\ngiven by Ct.Shish Ram, the rifle was recovered from inside a
\ndry well in the village Libra.\n<\/p>\n
3.     It is natural that the incident was investigated and
\nindeed we would have been surprised if it was not
\ninvestigated for the reason an AK-47 rifle has to be kept in
\nproper custody by force personnel to whom it is issued and
\nnot that the rifle can be played around as akin to a toy. The
\ndepartment         investigated    the   matter    and      during
\ninvestigation which was conducted by Dy.Commandant
\nAshok Tikku statements of various persons were recorded as
\nalso the duty deployment register, arms and ammunition
\nissue register and other registers pertaining to the post
\npersonnel leaving the post were looked into and were
\nseized.\n<\/p>\n
4.     It is the case of the department that the preliminary
\ninquiry conducted by DC Ashok Tikku revealed, as per
\nstatement of Ct.Tej Singh that he saw the rifle lying
\nabandoned on petitioner\u201fs bed and since he was angry with
\nW.P.(C) No.5518\/2011                                 Page 2 of 21<\/span>
\n the petitioner he picked up the rifle and threw it outside the
\nboundary wall of the outpost. As per HC Parmatma Rai the
\npetitioner told him on 3.3.2010 that his rifle was missing
\nwhich information he tried to pass on to SI Sanat Hasda over
\nthe telephone but could not contact him and later on HC
\nAmar Singh claimed to have been able to make a contact
\nwith SI Sanat Hasda and information passed on to him of the
\nrifle being missing.     The duty register showed white fluid
\nbeing used to erase existing writing pertaining to duties
\nperformed by the petitioner and since the duty has to be
\nperformed with an arm, the relevance thereof is to show
\nthat the AK-47 rifle in question was with the petitioner till it
\nwas lost on 3.3.2010.       The mobile phone call details of 3
\ntelephones were procured.             Mobile phone number of SI
\nSanta Hasda being 9370553713, that of the petitioner being
\n9541423060         and   that   of     HC   Parmatma    Rai     being
\n9023412395 were obtained from the service provider which
\nincluded the particulars of the tower location as and when a
\ncall was made or received through the said telephones. The
\ncall details received showed that the petitioner had on
\n28.2.2010 at 19:53:32 hours made a call to a number which
\nwas routed through the mobile tower near Kaushal Nursing
\nHome in Rajpura (Punjab).            By 21:14:26 hours the mobile
\nphone had been used to make a call routed through the
\nmobile tower at Bhagwan Nagar Colony, Pipli (Kurukshetra)
\nHaryana. At 21:48:08 hours said phone was used to make a
\ncall routed through the mobile tower at Samna Bahu
\nNilokheri (Haryana).      The call details further revealed that
\non 2.3.2010 at 17:36:13 hours a call was made through the
\nsaid mobile phone routed through a mobile tower at Patel
\nW.P.(C) No.5518\/2011                                   Page 3 of 21<\/span>
\n Nagar, Kurukshetra (Haryana); at 18:57:54 hours a call was
\nmade through said number routed through a mobile tower
\nat Palika Vihar, Ambala (Haryana). At 21:23:45 hours a call
\nwas made through said mobile phone which was routed
\nthrough a tower at Mohan Pur, Ludhiana, Punjab. Needless
\nto state the incriminating value of the said call details was
\nthe absence of the petitioner from the outpost on 28.2.2010
\nand 2.3.2010. The statement of the cook at the mess of the
\noutpost Cook Deepak was recorded as per which the
\npetitioner had not taken meals at the mess from the night of
\n28.2.2010 till 2.3.2010.      Thus, evidence surfaced           of
\npetitioner\u201fs absence from the outpost from the evening of
\n28.2.2010 till he returned in the evening of 2.3.2010. There
\nwas no record of the petitioner having entrusted the AK-47
\nrifle to his immediate superior officer which had to be one of
\nthree head constables at the outpost and we may note that
\ninchoate evidence surfaced that it was HC Parmatma Rai to
\nwhom the weapon had to be entrusted. It was prima facie
\napparent that all force personnel had colluded to hide the
\ntruth and probably the rifle went missing not on 3.3.2010
\nbut earlier and in any case information was available of the
\nsame being missing on 3.3.2010 and not 4.3.2010 for the
\nreason the call details of the telephone of HC Parmatma Rai
\nand SI Sanat Hasda spoke to each other on 3.3.2010 at
\n21:30:25 hours and the claim of HC Parmatma Rai that he
\ncould not contact SI Sanat Hasda in spite of he having tried
\nto do so was false. The statements of the force personnel
\nthat the petitioner had remained on duty on all the three
\ndays i.e. 28.2.2010, 1.3.2010 and 2.3.2010 was prima facie
\nfound to be false and this suggested a collusion amongst all.\n<\/p>\n
W.P.(C) No.5518\/2011                             Page 4 of 21<\/span><\/p>\n
 5.     All 14 personnel were charge sheeted and we highlight
\nthat the nature of charge differed from person to person.\n<\/p>\n
6.     The charge sheet dated 14.4.2010 issued to the
\npetitioner listed only one article of charge as under:-\n<\/p>\n
     “That CISF No.961400620 Constable (GD) Krishan
\n     Kumar of CISF Unit, SSG, Greater Noida, (UP) while
\n     deployed on duty at Libra out post (Distt: Ludhiana,
\n     Punjab), Member of Parliament, Lok Sabha, failed to
\n     ensure proper safety and security of the said weapon
\n     and left the duty post on 28.02.2010 keeping his
\n     weapon unattended on his bed. As a result, AK-47
\n     rifle bearing Butt No.151 issued to the said Constable
\n     was found missing on 28.02.2010. He reported at
\n     the duty post on 03.03.2010 and intimated the facts
\n     about missing of his weapon, AK-47 rifle to HC (GD)
\n     P.Rai at about 2045 hrs. on 03.03.2010. The said
\n     weapon was subsequently, found on 08.3.2010 in a
\n     Dry Well at village Libra. Such serious acts on his
\n     part tantamount to gross act of indiscipline,
\n     dereliction of duty, unbecoming of a member of the
\n     Disciplined Armed Force like CISF.         Hence, the
\n     charge.”\n<\/p><\/blockquote>\n
7.     Why no joint inquiry was conducted, when queried by
\nus, from learned counsel for the respondent was responded
\nto by informing us that there is no rule in the CISF Rules
\nwhich permits a joint inquiry.\n<\/p>\n
8.     A perusal of the charge would reveal that it has 2
\ndistinct limbs thereto. First is the charge of having left the
\nduty outpost on 28.2.2010 and reporting back on 3.3.2010.
\nThe second is of leaving the AK-47 rifle bearing Butt No.151
\nunattended on the bed and as a result thereof the rifle being<\/p>\n
W.P.(C) No.5518\/2011                               Page 5 of 21<\/span>
\n found missing but subsequently recovered from a dry well
\non 8.3.2010.\n<\/p>\n
9.     We must highlight that the charge should have been of
\nnot having left the duty post but of having left the duty post
\nin an unauthorized manner, for the reason unless the rules
\nprohibit a person from leaving a duty post without
\nintimation or permission, there is nothing wrong for a
\nperson to leave the duty post while not on actual duty. We
\nare highlighting so for the reason we are noticing loose and
\nlaconic charge sheets issued by CISF and one reason for the
\nsame, as told to us is that CISF does not have a proper legal
\ndepartment. We note that in our Court CISF is represented
\nby Assistant Commandant Abdus Salam who acts as the
\nPairvi Officer and has been so acting in this Court for the
\nlast 1\u00bd years and as told to us he is not from the legal
\ndepartment but has been attached with the litigation cell as
\nhe has a degree in law.      We hope and expect Director
\nGeneral CISF to look into the matter and strengthen the
\nlegal department by obtaining the sanction of the Cadre
\nControlling Ministry to create appropriate posts.\n<\/p>\n
10.    We need to further highlight that a charge needed to
\nbe framed against the petitioner of having colluded to make
\ninterpolations in the duty register for the reason using white
\nfluid existing entries were tampered with on the dates
\n1.3.2010 and 2.3.2010 and all of them pertained to
\npetitioner being shown on duty.\n<\/p>\n
11.    Be that as it may, the inquiry proceeded on the sole
\ncharge, having two limbs as afore explained.\n<\/p>\n
12.    Dy.Comdt. G.C.Chattopadhyay was detailed as the
\nInquiry Officer. At the departmental inquiry, the prosecution
\nW.P.(C) No.5518\/2011                                Page 6 of 21<\/span>
\n examined 8 witnesses and no defence evidence was
\nproduced by the petitioner.\n<\/p>\n
13.    DC Ashok Tikku PW-1 who conducted the preliminary
\ninquiry deposed that on 4.3.2010 the Commandant of the
\nUnit informed him that an AK-47 Rifle bearing Butt No.151
\nissued to the petitioner was missing from SSG Libra Outpost.
\nHe was deputed to enquire into the incident and to search
\nthe missing rifle and he began his investigation on 4.3.2010.
\nUpon perusal of the Arms and Ammunition Register, it
\ntranspired that AK-47 Rifle bearing Butt No.151 was issued
\nto the petitioner, as recorded on pages 26 & 27 of the
\nregister PW-1\/Ex.P-1. It further transpired that on 28.2.2010,
\nafter performing first shift duty, the petitioner went missing
\nfrom the camp. That in the statement PW-1\/Ex.P-2 dated
\n11.3.2010 recorded by him and as made by Ct.Tej Singh it
\nstands recorded that the petitioner remained absent from
\nthe camp from 28.2.2010 to 02.3.2010 leaving his rifle
\nunattended on his bed and as per the statement PW-1\/Ex.P-
\n3 of private cook Deepak Kumar, the petitioner had not
\ntaken food from the mess from 28.2.2010 to 2.3.2010.
\nFurther, the mobile phone calls and tower location details
\nPW-1\/Ex.P-4 taken from telephone exchange for the mobile
\nnumbers belonging to the petitioner, given by him during
\nthe enquiry, revealed that the petitioner was at Haryana
\nfrom 28.2.2010 at about 18:53:02 hours to 2.3.2010 at
\nabout 21:23:45 hours. The missing Rifle was found in a dry
\nwell near Libra Outpost and an FIR PW-1\/Ex.P-5, in this
\nregard was lodged at the Sadar Khanna Police Station,
\nLudhiana. That in order to show that the petitioner was on
\nduty on 1.03.2010 and 2.3.2010 manipulations were made
\nW.P.(C) No.5518\/2011                             Page 7 of 21<\/span>
\n in the duty deployment register dated 1.03.2010 as well as
\n2.3.2010 PW-1\/Ex.P-6 by applying fluid over a few entries
\nand inserting name of the petitioner therein.\n<\/p>\n
14.     On being cross-examined by the petitioner, he clarified
\nthat on earlier occasions fluid was used to make changes in
\nthe duty deployment register in regards to the duties
\nassigned, but clarified that in the register pertaining to the
\ndates 1.3.2010 and 2.3.2010, fluid was applied to insert
\nname of the petitioner next to Escort Duty and Night Shift
\nDuty.\n<\/p>\n
15.     It is apparent from the statement of PW-1 that in view
\nof the fact that there was tell-tale evidence of petitioner
\nmaking or receiving telephone calls from his mobile number
\nduring the day time and in particular the evening of
\n28.2.2010 and 2.3.2010, entries were so made in the duty
\nregister after applying fluid on the existing entries and over
\nwriting thereon to show that the petitioner performed duties
\nin the night or as an Escort.\n<\/p>\n
16.     SI (Exe.) Sanat Hasda PW-2 deposed that on 3.3.2010
\nmorning      he    left   the   Libra   Camp   and   accompanied
\nSh.S.S.Libra up to New Delhi. On 4.3.2010 at about 08:00
\nhours he received information from HC Amar Singh that one
\nAK-47 rifle was missing since previous night. He directed HC
\nAmar Singh to check properly and report to him. At about
\n10:00 hours, HC Amar Singh informed him that the rifle
\ncould not be traced. He telephonically informed                      the
\nCommandant of the unit about the incident and after
\nbriefing the DIG at Gr.Noida camp, he left for Libra Outpost.
\nAt the outpost he engaged all personnel to search for the
\nmissing rifle. On 5.3.2010 an FIR was lodged with the local
\nW.P.(C) No.5518\/2011                                  Page 8 of 21<\/span>
\n police reporting a missing AK-47 rifle. On 8.3.2010 upon
\nreceiving information from Ct.Shish Ram that an AK-47 rifle
\nwas lying inside a well in the Libra village, he went to the
\nspot with other CISF personnel and on reaching, sent Driver
\nGaikward inside the well who confirmed that AK-47 Bearing
\nButt No.151 was lying inside the well. He immediately
\ninformed DC Ashok Tikku and in the presence of Local
\nPolice, the Rifle was brought out of the well.\n<\/p>\n
17.    On being declared hostile and cross-examined by the
\nPresenting Officer, he stated that the AK-47 rifle bearing
\nbutt No.151 was issued in the name of the petitioner. As per
\norders given by him, all personnel were to keep their
\nweapons with them as there was no Kote (a place to keep
\nthe weapons) at the outpost. During Preliminary Enquiry all
\npersonnel had deposited their mobile phones with DC Ashok
\nTikku. Mobile No.9541423060 was not issued to the
\npetitioner by the department but it could be his private
\nnumber. That the petitioner was present in the camp on
\n28.3.2010 and on 1.3.2010, on which day he performed
\nEscort Duty and also on 2.3.2010, on which day he
\nperformed watcher cum night PSO duty with Golka pistol
\nButt No.212. He further stated that HC P.Rai marked duties
\nof personnel and for the purpose of assigning correct duties;
\nhe used fluid on the Duty Deployment Register. In reply to
\nthe telephone          exchange details   showing   presence of
\npetitioner\u201fs mobile in Haryana, he stated that Shri. S.S.Libra
\noften toured in areas near Haryana and he was not in the
\noutpost on 1.3.2010 from 08:30 AM to 06:30 PM and on
\n2.3.2010 from 08:30 AM to 06:30 PM.\n<\/p>\n
W.P.(C) No.5518\/2011                                Page 9 of 21<\/span><\/p>\n
 18.    HC Amar Singh PW-3 deposed that his statement given
\nduring Preliminary Enquiry be taken as his deposition for the
\ndepartmental Inquiry. At the Preliminary Enquiry he stated
\nthat on 3.3.2010 at about 20:45 Hours the petitioner came
\nto him and reported that his rifle was missing. He
\nimmediately directed all post personnel to assemble and
\ntallied their weapons from the issue register whereupon it
\ntranspired that AK-47 bearing Butt No.151 issued to the
\npetitioner was missing. Attempts were made to search the
\nrifle but it could not be found. On 4.3.2010 at about 8:00
\nhours he reported the matter to SI Sanat Hasda and asked
\nhim to check weapons of personnel present with him and as
\nper his orders they conducted a further search of the Libra
\noutpost area but the rifle could not be found which was
\nreported to SI Sanat Hasda at about 10:00 hours. On
\n8.3.2010 at about 17:30 hours information was received
\nthat during a search operation a weapon was found lying in
\na well. He along with other personnel reached the spot
\nwhere driver Gaikwad was sent inside the well and it was
\nconfirmed that the weapon was an AK-47 Rifle bearing Butt
\nNo.151 which was then recovered from the well in the
\npresence of local police and taken to the camp.\n<\/p>\n
19.    On being cross-examined by the Presenting Officer
\nafter being declared hostile, he stated that DC Ashok Tikku
\nat Libra Outpost conducted an enquiry into the matter
\nduring which mobile phone numbers of the unit personnel
\nwere recorded by Ct.Pratap Singh and as per the list PW-
\n3\/Ex.P-1, mobile number 9541423060 was in the name of
\nthe    petitioner.     No   outsider   entered   the   outpost         on
\n28.2.2010. He saw petitioner perform \u201eA\u201f Shift duty on
\nW.P.(C) No.5518\/2011                                   Page 10 of 21<\/span>
\n 28.2.2010 at 12:55 hours; Escort duty on 1.3.2010 at 08:30
\nHours and night watcher duty on 2.3.2010. That on 1.3.2010
\npetitioner had his AK-47 rifle with him on duty. He stated he
\nhad no knowledge as to how petitioner\u201fs mobile phone
\ndetails    and     its   corresponding   tower   location   details
\nindicated its presence at Haryana.\n<\/p>\n
20.    HC P.Rai PW-4 deposed that his statement given
\nduring Preliminary Enquiry be taken as his deposition for the
\ndepartmental Inquiry. At the Preliminary Enquiry he stated
\nthat at about 20:45 Hours the petitioner came to him and
\nreported about his rifle missing from his locker. He went
\nalong with the petitioner to check for the weapon in the
\nAlmirah where petitioner\u201fs rifle bearing Butt no.151 was not
\nfound. He ordered for a Fall-in of all post personnel and
\ntallied their weapons with the register and found that AK-47
\nbearing Butt No.151 issued to the petitioner was missing.
\nAttempts were made to search the rifle but it could not be
\nfound. HC Amar Singh reported about matter to SI Sanat
\nHasda over the telephone who was in New Delhi at the time
\nand following his directions conducted another search
\noperation to find the rifle but without any success. The
\nsearch went on for a few days. He corroborated PW-3 to the
\nextent that the rifle was recovered on 08.03.2010 at about
\n17:45 hours from a well in the village in the presence of
\nlocal police.\n<\/p>\n
21.    On being declared hostile, he was cross-examined by
\nthe Presenting Officer upon which he stated that during
\npreliminary enquiry Ct.Pratap Singh noted mobile numbers
\nof post personnel as told by them. That the petitioner was
\npresent at the outpost from 28.2.2010 to 2.3.2010 and he
\nW.P.(C) No.5518\/2011                                 Page 11 of 21<\/span>
\n had performed escort duty with his AK-47 rifle on 1.3.2010.
\nAs per orders, personnel kept weapons with themselves
\nhowever there was a locker in one of the rooms at the
\noutpost wherein some personnel kept their weapons and he
\nhad the key to that locker. As per orders of SI Sanat Hasda
\nhe used to mark duties to post personnel. He admitted
\nhaving made changes in the Duty Deployment Register of
\n1.3.2010, 2.3.2010 and 3.3.2010 by applying fluid and
\ninserting name of the petitioner therein.   He clarified that
\nmany times changes were made in the register by applying
\nfluid for adjusting duties as there is a shortage of personnel
\nat the outpost. On 3.3.2010 at night an Escort vehicle was
\ncalled to the outpost as a precaution if there be a need to
\ntravel in search of the weapon but it was sent back.\n<\/p>\n
22.    Ct.Tej Singh PW-5 deposed that on 3.3.2010 at about
\n21:00 hours he came to know that rifle bearing Butt No.151
\nbelonging to the petitioner was missing and that he along
\nwith other personnel had tried to search the rifle but could
\nnot find it. He further stated that the statement shown to be
\nmade by him during Preliminary Enquiry is false, as his
\nsignatures were obtained on blank papers by DC Ashok
\nTikku on the pretext that it was being done pursuant to
\norders by the Inspector General. That along with 2 other
\npersonnel he was sent to the police station upon the
\nassurance that only a few questions will be asked regarding
\nthe missing rifle and the FIR lodged in that respect, but at
\nthe police station he was arrested in connection with the
\nFIR.\n<\/p>\n
23.    He too was declared hostile and cross-examined by
\nthe presenting officer upon which he stated that during
\nW.P.(C) No.5518\/2011                             Page 12 of 21<\/span>
\n enquiry conducted by DC Ashok Tikku mobile number of
\nLibra outpost personnel were noted. Petitioner\u201fs name is
\nrecorded next to mobile no. 9541423060 in the list prepared
\nduring the enquiry. That the petitioner had performed Escort
\nDuty on 1.3.2010 and \u201eB\u201f shift duty on 2.3.2010. He stated
\nthat since he did not have any higher authority\u201fs telephone
\nnumber he could not inform anybody about being misled to
\nsign blank papers by DC Ashok Tikku and that since all post
\npersonnel were engaged in searching for the rifle he did not
\nreport the matter to any personnel either.\n<\/p>\n
24.    SI G.S.Chaudhry PW-6 deposed that as per directions
\nof senior officers he extracted call details and tower location
\ndetails of Mobile Phone no.9370553713 PW-6\/Ex.P-1, which
\nbelonged to SI Sanat Hasda which revealed that he made a
\ncall to mobile no. 9023412395, which belonged to HC P.Rai
\nas per PW-3\/Ex.P-1, on 3.3.2010 at 21:30:25 hours at which
\ntime, as per tower location, he was in Punjab. On 4.3.2010
\nat 4:47:23 hours and 6:25:07 hours calls were made from
\nSanat Hasda\u201fs mobile phone to mobile phone of HC P.Rai at
\nwhich time Sanat Hasda was in Haryana and Delhi
\nrespectively.\n<\/p>\n
25.    Balbir Singh PW-7 deposed that his statement given
\nduring Preliminary Enquiry be taken as his deposition for the
\ndepartmental Inquiry; wherein he stated that he used to
\nsupply escort vehicle on hire basis to CISF and that on
\n3.3.2010 at about 12PM he supplied a vehicle driven by
\nDarshan Singh to the Libra outpost which was taken to Delhi
\nto drop of some officers.\n<\/p>\n
26.    Darshan Singh PW-8 deposed that his statement given
\nduring Preliminary Enquiry be taken as his deposition for the
\nW.P.(C) No.5518\/2011                              Page 13 of 21<\/span>
\n departmental Inquiry. At the Preliminary Enquiry he stated
\nthat he was the driver of the escort duty vehicle that carried
\nSI Sanat Hasda to Delhi on 3.3.2010. On being cross-
\nexamined by the petitioner, he clarified that along with SI
\nSanat Hasda he left from the Libra outpost at about 1 PM on
\n3.3.2010.\n<\/p>\n
27.    The petitioner opted not to make any oral statement in
\ndefence and since he desired to give his statement in
\nwriting, the Inquiry Officer acceded to the request and took
\non record a written statement filed before him by the
\npetitioner in which the petitioner stated that on 1.3.2010
\nafter returning from Escort duty at about 18:30 Hours he
\ntook the key of the Almirah where rifles were usually kept,
\nfrom HC P.Rai and kept his AK-47 rifle bearing Butt No.151
\ntherein. On 2.3.2010 he performed PSO duty with a pistol.
\nOn 3.3.2010 when he opened the Almirah to take out his
\nrifle for duty, he found that the rifle was missing. He
\nreported the matter to HC P.Rai who after searching the
\nAlmirah and the room, conducted a fall in and checked
\nweapons of all post personnel but his rifle could not be
\nfound. On 4.3.2010 HC P.Rai contacted SI Sanat Hasda and
\nreported about the missing rifle. On 8.3.2010 pursuant to an
\ninformation received, his rifle was recovered from inside a
\nwell in the village with the help of local police.\n<\/p>\n
28.    Relevant would it be to note that the petitioner
\nattached photocopies of General Diary dated 27.2.2010 to
\n2.3.2010, duty         deployment   chart dated      28.2.2010        to
\n2.3.2010 and attendance of mess diet for February 2010
\nalong with his defence statement. However, he did not
\ntender any of these documents in his statement because of
\nW.P.(C) No.5518\/2011                                  Page 14 of 21<\/span>
\n which these documents were not taken into consideration
\nby the Inquiry Officer, an act which is ex facie wrong for the
\nreason the written statement in defence was permitted to
\nbe filed in lieu of petitioner making an oral statement.\n<\/p>\n
29.    The Inquiry Officer submitted a report dated 16.7.2010
\nand with reference to the mobile call details highlighted
\ntherein petitioner being absent from the outpost on
\n28.2.2010      and       2.3.2010    and    with    reference    to    the
\nstatement PW-1\/Ex.P-3 of private cook Deepak Kumar which
\nwas proved as having been recorded by PW-1 DC Ashok
\nTikku held that it was apparent that the petitioner had not
\ntaken meals at the outpost from the evening of 28.2.2010
\ntill the evening of 2.3.2010 and this established his
\nunauthorized absence from the unit lines.                Upon proof of
\npetitioner being absent and not on duty and there being no
\nevidence that the petitioner had secured the security of the
\nAK-47 rifle by putting the same inside that trunk, key
\nwhereof was with HC Parmatma Rai, had contributed, by
\nway of negligence, to the rifle being picked up and thrown
\nby Ct.Tej Singh, who in spite of having turned hostile was
\ndisbelieved of his having nothing to do with the rifle and his
\nstatement PW-1\/Ex.P-2 recorded by DC Ashok Tikku PW-1
\nwas found to be the correct version.               Needless to state it
\nwas     opined         that   contrivance    was     resorted    to        by
\ninterpolating the duty register.\n<\/p>\n
30.    Supplying the Inquiry Report to the petitioner to
\nenable him to respond thereto and receiving the response
\nand considering the same; concurring with the findings
\nreturned by the Inquiry Officer, penalty of removal from
\nservice     was        inflicted   upon     the    petitioner   by     the
\nW.P.(C) No.5518\/2011                                       Page 15 of 21<\/span>
\n Commandant of the Unit to which the petitioner was
\nattached as per order dated 21.8.2010 against which appeal
\nand revision filed were rejected on 28.9.2010 and 15.3.2011
\nrespectively.\n<\/p>\n
31.    At the hearing of the writ petition it was urged that the
\nstatement PW-1\/Ex.P-3 of private cook Deepak Kumar
\npurportedly recorded by DC Ashok Tikku PW-1 during
\npreliminary inquiry could not be considered in evidence
\ninasmuch as private cook Deepak Kumar was not examined
\nas a witness. Since the inquiry officer had relied upon the
\nsaid statement, it was urged that the report of the Inquiry
\nOfficer was vitiated.\n<\/p>\n
32.    Agreeing with the submission advanced that in the
\nabsence of private cook Deepak Kumar being not examined
\nand not available for cross examination and the statement
\nnot being of a kind which would be res gestae evidence, the
\nsame could not be relied upon, but we disagree with the
\nconclusion sought to be drawn by learned counsel for the
\npetitioner for the reason after removing the said statement
\nas admissible evidence, we still have evidence in the form of
\nthe mobile phone details, in respect whereof we have made
\nprima facie observations in para 4 hereinabove and now, in
\nview of the evidence led and proof of the mobile phone call
\ndetails, we accord our concurrence to the incriminating
\nevidence which has surfaced and the weight thereof being
\npetitioner\u201fs absence from the duty outpost from 19:53:32
\nhours on 28.2.2010 and his being roaming around in
\nHaryana and present in Nilokheri, a township at a distance
\nof at least 3 hours journey from the duty outpost at Libra as
\nalso petitioner being roaming around in Kurukshetra,
\nW.P.(C) No.5518\/2011                               Page 16 of 21<\/span>
\n Ambala and Ludhiana on 2.3.2010. Thus, even if we were to
\nremove the evidentiary worth of private cook Deepak
\nKumar\u201fs statement PW-1\/Ex.P-3 we still have sufficient
\nevidence against the petitioner and thus the taint in the
\nreport of the Inquiry Officer does not vitiate the same i.e.
\nthe wound is not sufficient to bleed the inquiry report to
\ndeath.\n<\/p>\n
33.    From the testimony of HC Parmatma Rai PW-4 we have
\nproof that at the outpost there was no place secured to
\ndeposit the weapon issued to a force personnel during the
\nhours the force personnel was not on duty and the
\nsubstitute was a trunk kept at the outpost, key whereof was
\nwith HC Parmatma Rai. The weapon issued had to be kept
\nin the trunk. It is apparent that the petitioner never kept
\nthe AK-47 Rifle in the trunk for the reason HC Parmatma Rai
\nhas not deposed that the petitioner had taken the key of the
\ntrunk from him to keep the rifle. The act of the petitioner in
\ntelling HC Parmatma Rai to give him the key so that he
\ncould retrieve the AK-47 rifle and none being found therein
\nis obviously a device to create a smokescreen as if the AK-
\n47 rifle was kept in the trunk. Only if HC Parmatma Rai had
\nsaid that on a previous day the petitioner took the key of
\nthe trunk from him telling him that he required the key to
\nkeep the AK-47 rifle issued to him in the trunk could we
\nhave understood the relevance of the petitioner, on a
\nsubsequent day, requesting for the key to be handed over
\nto him so that he could retrieve the AK-47 Rifle. The nail in
\nthe coffin of the lie webbed by the petitioner is the fact that
\nas per him he always remained at the duty outpost and
\nnever left the same.    Where was then the question of his
\nW.P.(C) No.5518\/2011                              Page 17 of 21<\/span>
\n keeping the AK-47 Rifle in the trunk, key whereof was with
\nHC Parmatma Rai.\n<\/p>\n
34.    There is tell-tale evidence against the petitioner and
\nwe do not dissect the nitty gritties thereof inasmuch as we
\nremind ourselves and the reader of our decision that our
\ndecision relates not to our appellate but to our supervisory
\njurisdiction and pertaining to domestic inquiries our job is to
\nsee whether the procedures of the law were followed and
\nthere is fairness in the inquiry and relating to evidence our
\njob would be to see whether it is a case of no evidence or it
\nis a case where inadmissible evidence has been admitted or
\nadmissible evidence excluded in the inquiry report or by the
\ndisciplinary authority. Indeed, we have found one taint of
\ninadmissible evidence being considered i.e. the statement
\nPW-1\/Ex.P-3 of private cook Deepak Kumar which we have
\nexcluded as evidence and yet reach the same conclusion.\n<\/p>\n
35.    We are excluding to debate upon the issue whether HC
\nParmatma Rai had spoken to SI Sanat Hasda on 3.3.2010 or
\ncould not do so as claimed by HC Parmatma Rai for the
\nreason, qua the charge against the petitioner the same is
\nirrelevant. The debate would be relevant qua HC Parmatma
\nRai for if it is true that he spoke to SI Sanat Hasda on
\n3.3.2010 it would be relevant that he did not pass on the
\nrelevant information of the AK-47 Rifle being found missing.\n<\/p>\n
36.    Before bringing the curtains down on the sordid
\ndrama, in addition to the words of counsel to the Director
\nGeneral      CISF      pertaining   to   strengthening     the    legal
\ndepartment of CISF as per para 9 hereinabove, we
\nregretfully bring to the notice of the Director General CISF
\nthat the instant case brings out a serious lacuna in the
\nW.P.(C) No.5518\/2011                                     Page 18 of 21<\/span>
\n procedures followed by CISF to secure the arms issued to
\nthe force personnel at duty outpost. No room or a container
\nwas earmarked under a specific order to keep in secure
\ncustody firearms issued to the force personnel at the duty
\noutpost at Libra.      An ad hoc solution was resorted to by
\nkeeping a trunk with key in custody of HC Parmatma Rai.
\nNo procedures were followed to maintain a register and
\nenter therein the safe custody of weapons by the force
\npersonnel at the outpost. As told to us during hearing of the
\nwrit petition the force personnel perform duties by rotation
\nspanning 3 to 6 hours at a stretch and we see no reason
\nwhy during the remainder period when the force personnel
\nis not performing actual duties he should not be required to
\nkeep in safe custody the firearm issued to him.      We were
\ntold that when they sleep or enter ablutions, the force
\npersonnel keep the arms by their side and this we find to be
\na very dangerous practice for the reason: Reap as you sow,
\nguides us that given a work environment which is specious
\ninvites callousness and negligence.\n<\/p>\n
37.    On the issue of the proportionality of the sentence
\nimposed it was urged that Ct.Sapan Singh, Ct.Shahbad
\nKhan, Ct.Ram Swaroop and Ct.Lakhvir Kumar were inflicted
\nwith the penalty of reduction to lower stage of pay for a
\nperiod of 3 years with cumulative effect and that the
\npetitioner was inflicted a higher punishment.\n<\/p>\n
38.    The argument ignores that the charge against said 4
\nofficers was of hiding the truth and lying about petitioner
\nbeing present at the duty outpost. It is apparent that the
\ncharge against the 4 was of a much lower degree of
\nculpability.     The petitioner not only abandoned the duty
\nW.P.(C) No.5518\/2011                             Page 19 of 21<\/span>
\n outpost without any authority, he colluded to fudge the duty
\nregister with the active assistance of HC Parmatma Rai and
\nSI Sanat Hasda and his collusion is apparent as he is the
\nbeneficiary of the interpolations.    While leaving the duty
\npost he did not ensure safe custody of the AK-47 Rifle issued
\nto him. He merrily loitered around Punjab and Haryana and
\ndue to his negligence the weapon was thrown inside the
\nwell. As force personnel who carry arms the petitioner knew
\nthat an AK-47 Rifle is a lethal weapon and God forbid if it
\nreached wrong hands, the consequences would have been
\ndisastrous.     The petitioner cannot claim any parity on the
\nissue of sentence with the said 4 force personnel. There is
\nanother qualitative difference in the case of the petitioner
\nand the said 4 force personnel. After initial resistance, all
\nconfessed to their guilt before the Commandant and
\nkeeping in view that the four repented after admitting their
\nguilt and that a lessor degree of wrong was committed by
\nthem, a lessor penalty was levied upon them.\n<\/p>\n
39.    We find no merit in the writ petition and dismiss the
\nsame.\n<\/p>\n
40.    We direct that a copy of our decision be placed before
\nDG CISF, so that he can look into the deficiencies in the CISF
\nwhich have surfaced in the instant case and in particular
\nwould consider strengthening the legal department so that
\nproperly drafted charge sheets can be issued and better
\ncourt assistance rendered through legally trained persons
\nand not by resorting to ad-hoc arrangements by deputing
\nPairvi Officers with no legal background.       Further, with
\nrespect to securing arms issued to force personnel at duty
\noutposts a proper procedure be prescribed and record be
\nW.P.(C) No.5518\/2011                             Page 20 of 21<\/span>
\n maintained with respect to the arms and ammunitions
\nissued to CISF force personnel.\n<\/p>\n
41.    Since the petitioner has lost his job we refrain from
\nimposing costs.\n<\/p>\n
                                  (PRADEEP NANDRAJOG)
\n                                         JUDGE<\/p>\n
                                    (SUNIL GAUR)
\n                                       JUDGE
\nSEPTEMBER 16, 2011
\nmm<\/p>\n
W.P.(C) No.5518\/2011                            Page 21 of 21<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Ex.Const.Krishan Kumar vs Uoi & Ors. on 16 September, 2011 Author: Pradeep Nandrajog * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 6th September, 2011 Judgment Delivered On: 16th September, 2011 + W.P.(C) 5518\/2011 EX.CONST.KRISHAN KUMAR ….. Petitioner Through: Ms.Rekha Palli, Advocate and Ms.Amrita Prakash, Advocate. versus […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-14071","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nEx.Const.Krishan Kumar vs Uoi & Ors. on 16 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ex-const-krishan-kumar-vs-uoi-ors-on-16-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ex.Const.Krishan Kumar vs Uoi & Ors. on 16 September, 2011 - 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