{"id":215752,"date":"2011-09-01T00:00:00","date_gmt":"2011-08-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-c-mishra-vs-uoi-ors-on-1-september-2011"},"modified":"2017-04-29T06:15:36","modified_gmt":"2017-04-29T00:45:36","slug":"m-c-mishra-vs-uoi-ors-on-1-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-c-mishra-vs-uoi-ors-on-1-september-2011","title":{"rendered":"M.C.Mishra vs Uoi &amp; Ors. on 1 September, 2011"},"content":{"rendered":"<div class=\"docsource_main\">Delhi High Court<\/div>\n<div class=\"doc_title\">M.C.Mishra vs Uoi &amp; Ors. on 1 September, 2011<\/div>\n<div class=\"doc_author\">Author: Pradeep Nandrajog<\/div>\n<pre>*       IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                      Judgment Reserved On: 24th August, 2011\n                       Judgment Delivered On: 1st September, 2011\n\n+                           W.P.(C) 2120\/1998\n\n        M.C.MISHRA                               ..... Petitioner\n                 Through:        Ms.Aishwarya Bhati, Advocate and\n                                 Ms.Jyoti Upadhyay, Advocate.\n\n                                 versus\n\n        UOI &amp; ORS.                              .....Respondents\n                  Through:       Ms.Anjana Gosain, Advocate.\n\n        CORAM:\n        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n        HON'BLE MR. JUSTICE SUNIL GAUR\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n\n     2. To be referred to Reporter or not?\n     3. Whether the judgment should be reported in the\n        Digest?\nPRADEEP NANDRAJOG, J.\n<\/pre>\n<p>1.      Enrolled as a Constable with Central Industrial Security<br \/>\nForce in the year 1985, petitioner was posted to &#8216;E&#8217; unit<br \/>\nCentral Coalfields Limited, Dhori, Dist. Bokaro, Bihar (now in<br \/>\nthe     state   of     Jharkhand).   A   complaint     was    made   that<br \/>\nCt.A.K.Singh and the petitioner had left the unit lines without<br \/>\npermission or intimation on 24.3.1996 and upon return around<br \/>\nmidnight, when the CHM HC B.L.Chaudhry questioned the two<br \/>\nregarding       their     misconduct,     petitioner     assaulted    HC<br \/>\nB.L.Chaudhry.\n<\/p>\n<p><span class=\"hidden_text\">W.P.(C) No.2120\/1998                                 Page 1 of 14<\/span><\/p>\n<p> 2.     In view of the fact that jawans of Central Para Military<br \/>\nForces are armed, all forces have a rule that even when not on<br \/>\nduty and if staying in the Unit lines, a jawan must take prior<br \/>\npermission or at least make an entry in the register kept at the<br \/>\noutpost gate while leaving the precincts of the unit and<br \/>\nneedless to state the object is laudable.       There must be a<br \/>\nrecord of movement of those who carry arms. Thus, taking a<br \/>\nserious view of having left the Unit line without permission or<br \/>\neven an intimation and additionally for having assaulted a<br \/>\nsuperior officer who acted within his duty to question the<br \/>\npetitioner on his conduct of leaving the Unit Line, without<br \/>\npermission or intimation, the Commandant issued a charge<br \/>\nsheet dated 25.04.1996, listing 2 articles of charge which read<br \/>\nas under:-\n<\/p>\n<blockquote><p>       &#8220;Details of charges made against No.854280012<br \/>\n       Constable M.C.Mishra (Suspended) CISF Unit CCL,<br \/>\n       Dhori area (\u201eC\u201f Coy) &#8211;\n<\/p><\/blockquote>\n<blockquote><p>                       ARTICLE OF CHARGE &#8211; I<\/p>\n<p>       Gross   indiscipline  and   misconduct      in   that<br \/>\n       No.8542800\/Const.M.C.Mishra, while functioning as<br \/>\n       constable, absented himself from the unit lines at<br \/>\n       about 2230 hours on 24\/3\/96 without the permission<br \/>\n       from the competent authority, vide GD No.391 dated<br \/>\n       24\/3\/96. He returned to the unit lines at about 0010<br \/>\n       hours on 25\/3\/96.\n<\/p><\/blockquote>\n<blockquote><p>                       ARTICLE OF CHARGE &#8211; II<\/p>\n<p>       Gross indiscipline, misconduct and unbecoming of a<br \/>\n       member of the force in that No.854280012 constable<br \/>\n       M.C.Mishra, while functioning as constable man-<br \/>\n       handled Head Constable B.L.Choudry (CHM) who fell<\/p>\n<p><span class=\"hidden_text\">W.P.(C) No.2120\/1998                            Page 2 of 14<\/span><br \/>\n        down and got injury on his knee and elbow at about<br \/>\n       0010 hrs on 25\/3\/96.&#8221;\n<\/p><\/blockquote>\n<p>3.     Submitting a response to the charge-sheet the petitioner<br \/>\nalleged that the charges were false and fabricated.        In view of<br \/>\nthe reply filed, since petitioner had denied the very factual<br \/>\nbasis of the charge, the Commandant directed an inquiry to be<br \/>\nheld and report submitted and for which Insp.B.K.Yamuna was<br \/>\nappointed as the Inquiry Officer.\n<\/p>\n<p>4.     Vide letter dated 3.5.1996 the petitioner requested that<br \/>\nthe Inquiry Officer be changed, and relevant would it be to<br \/>\nhighlight that grounds on which petitioner wanted change of<br \/>\nInquiry Officer being not stated, the Commandant rejected the<br \/>\nrequest.\n<\/p>\n<p>5.     Preliminary hearing was conducted on 22.5.1996 wherein<br \/>\nthe petitioner stated before the Inquiry Officer that he had no<br \/>\nobjection in Insp.B.K.Yamuna conducting the inquiry and<br \/>\nfurther stated that petitioner did not wish to take assistance<br \/>\nfrom any member of the force and further that the petitioner<br \/>\ndid not wish to produce any documentary evidence.\n<\/p>\n<p>6.     At the inquiry 3 witnesses were examined by the<br \/>\nprosecution.\n<\/p>\n<p>7.     HC B.L.Chaudhry PW-1 i.e. the superior officer statedly<br \/>\nassaulted by the petitioner deposed that he was performing<br \/>\nduties of CHM of &#8216;C&#8217; Coy and that as per orders he was to<br \/>\nroutinely check all personnel in the barracks to keep a record<br \/>\nof who went and who returned from duty. On 24.3.1996 during<br \/>\nhis routine check, he noted that 3 personnel were missing. He<br \/>\nwent to report the matter to the Coy Commander but the Coy<br \/>\nCommander was not available in his barrack. There he met ASI<br \/>\n<span class=\"hidden_text\">W.P.(C) No.2120\/1998                        Page 3 of 14<\/span><br \/>\n S.C.Majumdar to whom he reported the incident and who<br \/>\nadvised him to wait for the Coy Commander. At Around 00:15<br \/>\nhours (12:15 AM) he and ASI S.C.Majumdar saw petitioner<br \/>\naccompanied by Ct.A.K.Singh and Ct.R.P.Singh coming towards<br \/>\nunit lines from the front of Tarini Club. He called the 3<br \/>\npersonnel and enquired about their purpose of being out of the<br \/>\nunit lines in the middle of the night, upon which the petitioner<br \/>\nretorted: Who are you to enquire from us? He i.e. HC<br \/>\nB.L.Chaudhry replied that personnel are not supposed to go<br \/>\nout of unit lines without permission and that he will report the<br \/>\nmatter to senior officers. Hearing this, the petitioner said that<br \/>\nhe will teach him i.e. HC B.L.Chaudhry a lesson and started<br \/>\nassaulting him. The petitioner incited Ct.A.K.Singh to join the<br \/>\nassault upon which Ct.A.K.Singh also started beating him, as a<br \/>\nresult of which he fell down and sustained injured on his<br \/>\nknees, elbow and other parts of the body. ASI S.C.Majumdar<br \/>\ntried to separate them but could not succeed as he was<br \/>\npushed away. Both, the petitioner and Ct.A.K.Singh left<br \/>\ntowards their unit line after the assault. He reported the<br \/>\nmatter to the Coy Commander who conducted a surprise roll<br \/>\ncall where he asked the petitioner and Ct.A.K.Singh as to why<br \/>\nthey had beaten him i.e. PW-1. Petitioner replied that the<br \/>\nCommandant and the DIG salute him and that nobody can do<br \/>\nanything to him.       The Coy Commander asked the petitioner<br \/>\nand Ct.A.K.Singh to go for a medical check up if they were<br \/>\ninjured, but they refused and left the spot. He and the Coy<br \/>\nCommander went to the Commandant and reported the<br \/>\nincident.\n<\/p>\n<p><span class=\"hidden_text\">W.P.(C) No.2120\/1998                         Page 4 of 14<\/span><\/p>\n<p> 8.     On being cross examined by the petitioner he stated that<br \/>\nas per orders he was to check the barracks daily at 22:30<br \/>\nhours so as to ensure that all personnel were in their barrack<br \/>\nby 22:30 and that they were coming back from and reporting<br \/>\nto their duties on time. He further stated that on 24.3.1996<br \/>\nthere was no alarm of \u201ethief thief\u201f in the unit line.\n<\/p>\n<p>9.     On being questioned by the Inquiry Officer, he stated<br \/>\nthat he has never worked with the petitioner nor does he have<br \/>\nany enmity with him and that on the day of the incident the<br \/>\npetitioner had incited Ct.A.K.Singh to beat him.           He further<br \/>\nstated that he had got himself medically treated at the Tarni<br \/>\nDispensary and tendered the treatment slip Ex.I and General<br \/>\nDiary entry No.391 Ex.II recording absence of petitioner and<br \/>\nCt.A.K.Singh from unit lines on 24.3.1996 and General Diary<br \/>\nentry No.393 Ex.III dated 25.3.1996 recorded at 00:35 hours<br \/>\nthat the petitioner and Ct.A.K.Singh assaulted him.\n<\/p>\n<p>10.    ASI S.C.Majumdar PW-2 corroborated PW-1 to the extent<br \/>\nthat on 24.3.1996 at around 22:40 hours PW-1 came to the<br \/>\nCoy Commanders&#8217; quarter to report about 3 personnel missing<br \/>\nfrom the barracks. He deposed that while he was waiting along<br \/>\nwith PW-1 for the Coy Commander, at about 23:45 hours, he<br \/>\nsaw petitioner and Ct.A.K.Singh coming from the front of Tarni<br \/>\nClub. HC B.L.Chaudhry (PW-1) called out to them and asked<br \/>\nwhere were they coming from. The petitioner replied that he<br \/>\nwas under orders of posting, at that moment someone called<br \/>\nthe petitioner to come back to the party and he went inside<br \/>\nthe club. After some time the petitioner returned and while he<br \/>\nwas going towards the unit line PW-1 stopped him and told him<br \/>\nthat his absence report has been submitted to the Coy<br \/>\n<span class=\"hidden_text\">W.P.(C) No.2120\/1998                            Page 5 of 14<\/span><br \/>\n Commander and that he should be ready with a reply by<br \/>\ntomorrow morning. The petitioner got angry and said that he<br \/>\nwas attending a party and that is why he got late which was<br \/>\nfollowed by heated discussion between the two and the<br \/>\npetitioner gave a hard push to PW-1 as a result of which he fell<br \/>\ndown and got injured. The petitioner and Ct.A.K.Singh left. He<br \/>\nand PW-1 reported the matter to Coy Commander upon his<br \/>\narrival who took PW-1 to the company lines. He i.e. PW-2 did<br \/>\nnot accompany them.\n<\/p>\n<p>11.    The petitioner declined to cross examine the witness.\n<\/p>\n<p>12.    On being questioned by the Inquiry Officer he stated that<br \/>\nthe petitioner had incited Ct.A.K.Singh to join the assault and<br \/>\nthat he had separated the petitioner and Ct.A.K.Singh from HC<br \/>\nB.L.Chaudhry (PW-1). However in answer to the next question<br \/>\nhe stated that Ct.A.K.Singh had not participated in the assault.<br \/>\nHe further stated that as a result of the push given by the<br \/>\npetitioner, PW-1 fell down and got injured.\n<\/p>\n<p>13.    It needs to be highlighted that in his examination-in-chief<br \/>\nASI S.C.Majumdar has attempted to trivialize the incident by<br \/>\nstating that the petitioner had simply pushed HC B.L.Chaudhry<br \/>\nand that the injuries on HC B.L.Chaudhry were the result of a<br \/>\nfall on being pushed, but his answers when examined by the<br \/>\nInquiry Officer would reveal that HC B.L.Chaudhry was<br \/>\nassaulted by the petitioner and he i.e. ASI Majumdar had to<br \/>\nintervene. In other words, the deposition of ASI S.C.Majumdar<br \/>\nread as a whole substantially corroborates the testimony of HC<br \/>\nB.L.Chaudhry.\n<\/p>\n<p>14.    Ct.P.Venka Teshan PW-3 deposed that he was on sentry<br \/>\nduty    on    24.3.1996   when   at   around   23:00     hours   ASI<br \/>\n<span class=\"hidden_text\">W.P.(C) No.2120\/1998                           Page 6 of 14<\/span><br \/>\n S.C.Majumdar went outside unit line towards Tarni Club and<br \/>\nafter some time HC B.L.Chaudhry (PW-1) also left in the same<br \/>\ndirection. That after about an hour he saw petitioner along<br \/>\nwith Ct. A.K.Singh coming towards the unit lines from outside<br \/>\nand soon thereafter Coy Commander accompanied by PW-1,<br \/>\nPW-2, Ct.A.Ashok Reddy and Ct.S.C.Tiwari entered the unit<br \/>\nlines. A check roll call was conducted by the Coy Commander<br \/>\nwherein he asked the petitioner and Ct.A.K.Singh as to why<br \/>\nhad they beaten HC B.L.Chaudhry. They denied having beaten<br \/>\nhim but upon PW-1 showing his injuries they also showed the<br \/>\ninjuries on their hand to the Coy Commander. They were asked<br \/>\nto get medical treatment but they left for the unit lines<br \/>\ninstead.\n<\/p>\n<p>15.    The petitioner declined to cross-examine the witness<br \/>\ndespite being given an opportunity.\n<\/p>\n<p>16.    On being questioned by the Inquiry Officer he stated that<br \/>\non the day of the incident he had not heard any alarm of &#8216;Chor<br \/>\nChor&#8217; and that the petitioner had not informed him while going<br \/>\nout of unit lines.\n<\/p>\n<p>17.    The petitioner did not produce any evidence in defence.<br \/>\nHowever he gave a defence statement wherein he stated that<br \/>\non 24.3.1996 at about 22:15 hours he heard cries of &#8216;Chor<br \/>\nChor&#8217; and thus along with Ct.Tiwari and Ct.Reddy the Coy<br \/>\nCommander went towards the railway siding from which side<br \/>\nsaid cries were emanating. He and Ct.A.K.Singh also went<br \/>\noutside the unit lines. After some time HC B.L.Chaudhry (PW-1)<br \/>\nand ASI S.C.Majumdar (PW-2) called them and asked as to<br \/>\nwhere they were coming from and started abusing them. He<br \/>\nasked them to stop abusing, upon which a heated discussion<br \/>\n<span class=\"hidden_text\">W.P.(C) No.2120\/1998                         Page 7 of 14<\/span><br \/>\n took place between Ct.A.K.Singh and PW-1 resulting in a tussle<br \/>\nbetween the two. In an attempt to separate the two, he had a<br \/>\ntussle with PW-1 as a result of which PW-1 fell down and got<br \/>\nhurt. That ASI S.C.Majumdar (PW-2) separated him and PW-1<br \/>\nand thereafter he left for getting medical treatment. A check<br \/>\nroll call was conducted wherein the Coy Commander enquired<br \/>\nabout the incident upon which he told the Coy Commander to<br \/>\nreport his complaint against PW-1 that a tussle had taken<br \/>\nplace between the two but no entry was made in the general<br \/>\ndiary.\n<\/p>\n<p>18.    On being questioned by the Inquiry Officer, the petitioner<br \/>\nstated that on hearing the cry of &#8216;Chor Chor&#8217;, he left the unit<br \/>\nlines without permission or even informing the CHM or the<br \/>\nsentry on duty. That PW-1 and PW-2 had not beaten him, but<br \/>\nonly a tussle had taken place between him and PW-1 and that<br \/>\nPW-2 had separated them. He stated that he did not submit<br \/>\nany written complaint to a senior officer regarding the incident<br \/>\nas he did not find it necessary to do so. He agreed that<br \/>\nCt.A.K.Singh stated in his written statement that he i.e. the<br \/>\npetitioner had gone to a party on the night of the incident. He<br \/>\nfurther stated that he had not seen any suspicious person<br \/>\noutside the unit lines and that he did not go to the dispensary,<br \/>\ndespite direction by the Coy Commander, due to non-<br \/>\navailability of a transport.\n<\/p>\n<p>19.    The Inquiry Officer submitted a report holding that both<br \/>\ncharges were established and furnishing a copy of the report<br \/>\nof the Inquiry Officer to the petitioner for his response and<br \/>\nconsidering the same, the Disciplinary Authority, taking into<br \/>\naccount that in the past, 3 departmental actions were taken<br \/>\n<span class=\"hidden_text\">W.P.(C) No.2120\/1998                          Page 8 of 14<\/span><br \/>\n against the petitioner, 1 of which was quashed but 2 penalties<br \/>\nremained, in view of petitioner being indicted once again,<br \/>\nlevied penalty of dismissal from service vide order dated<br \/>\n6.7.1996 against which statutory appeal was rejected on<br \/>\n1.11.1996 and the Revisional remedy failed when vide order<br \/>\ndated 8.12.1997 the revision was rejected.\n<\/p>\n<p>20.    The present petition was filed challenging the order<br \/>\nlevying penalty, the order rejecting the appeal and the order<br \/>\nrejecting the revision petition.\n<\/p>\n<p>21.    The 1st point urged was that the petitioner was denied an<br \/>\nopportunity to defend before an unbiased inquiry officer and<br \/>\nfor which it was highlighted that on 3.5.1996 the petitioner<br \/>\nhad desired a change of the Inquiry Officer which request was<br \/>\ndenied without a justifiable cause.\n<\/p>\n<p>22.    As noted by us herein above while noting the relevant<br \/>\nfacts that petitioner\u201fs letter dated 3.5.1996 gives no reason on<br \/>\nbasis whereof petitioner desired change in the Inquiry Officer<br \/>\nand thus we hold that the Disciplinary Authority was fully<br \/>\njustified in turning down the said request.\n<\/p>\n<p>23.    It was then urged that the Inquiry Officer was prejudiced<br \/>\nagainst the petitioner and for which the proof was that the<br \/>\nwitnesses were not examined in the presence of the petitioner<br \/>\nwho was not allowed to even cross-examine them and<br \/>\nrealizing that petitioner\u201fs signatures were to be found on each<br \/>\npage where testimony was recorded, it was urged that<br \/>\nsignatures of the petitioner were obtained on blank sheets.\n<\/p>\n<p>24.    Original record was perused by us at the hearing. The<br \/>\nrecord shows that on each and every sheet of paper on which<br \/>\ndeposition of the witnesses has been recorded, the signatures<br \/>\n<span class=\"hidden_text\">W.P.(C) No.2120\/1998                          Page 9 of 14<\/span><br \/>\n of the witness, the Inquiry Officer and even the petitioner have<br \/>\nbeen obtained.\n<\/p>\n<p>25.    We find that in the appeal filed before the Appellate<br \/>\nAuthority it has not been alleged that petitioner\u201fs signatures<br \/>\nwere obtained on blank sheet. It is simply stated therein that<br \/>\npetitioner was denied an opportunity to cross-examine the<br \/>\nwitnesses. Now, record shows that opportunity was granted to<br \/>\nthe petitioner to cross-examine witnesses and exercising the<br \/>\nsame he has cross-examined PW-1.        It is apparent that the<br \/>\nplea taken in the writ petition and during arguments that<br \/>\nsignatures of the petitioner were obtained on blank sheet is an<br \/>\nafterthought to overcome the fact that PW-1 has withstood the<br \/>\ncross-examination. We need to highlight that a perusal of the<br \/>\nrecord would reveal that the pen used to record the deposition<br \/>\nof the witnesses, the cross-examination and questions put by<br \/>\nthe Inquiry Officer has been used by the petitioner to pen his<br \/>\nsignatures and name; the same pen has been used by the<br \/>\nwitness to pen his signature as also has been used by the<br \/>\nInquiry Officer to pen his signatures. This belies the stand of<br \/>\nthe petitioner that his signatures were obtained on blank<br \/>\ndocuments. In any case, the final nail in the coffin of the stand<br \/>\ntaken by the petitioner is the fact that if his signatures were<br \/>\nobtained by the Inquiry Officer on blank papers we would have<br \/>\nexpected the petitioner to have contemporaneously raised a<br \/>\ngrievance before the Competent Authority and we find that the<br \/>\npetitioner has not done so. The silence of the petitioner is a<br \/>\npointer to the lie being now spoken.\n<\/p>\n<p><span class=\"hidden_text\">W.P.(C) No.2120\/1998                         Page 10 of 14<\/span><\/p>\n<p> 26.    It was then pleaded that material witnesses were not<br \/>\nexamined. The material witnesses stated were Ct.A.K.Singh,<br \/>\nCt.R.P.Singh and the Coy Commander.\n<\/p>\n<p>27.    It was not the obligation of the department to multiply its<br \/>\nwitnesses. If the petitioner desired upon the belief that there<br \/>\nwere material witnesses, nothing prevented him from moving<br \/>\nan application before the Inquiry Officer to summon the 3 as<br \/>\nhis defence witnesses.       The petitioner did not move any<br \/>\napplication. In fact, at the preliminary hearing he categorically<br \/>\nsaid that he does not desire to examine any one as a witness<br \/>\nin defence.       We note that after prosecution evidence was<br \/>\nrecorded, as is to be found in the order-sheet of 23.5.1996,<br \/>\npetitioner, when questioned: Whether he desires to lead<br \/>\nevidence in defence, replied in the negative.\n<\/p>\n<p>28.    It was then urged that prejudice was caused to the<br \/>\npetitioner at the inquiry        because   of the fact          he   was<br \/>\ntransferred, upon being suspended pending inquiry, to the<br \/>\nheadquarter at Bokaro.\n<\/p>\n<p>29.    As noted herein above the Unit of the petitioner and the<br \/>\nplace where inquiry was held is CCL Unit at Dhori. It has not<br \/>\nbeen pleaded in the writ petition that the 2 were so apart that<br \/>\nthe petitioner could not appear before the Inquiry Officer. In<br \/>\nany case, record shows that the petitioner has participated on<br \/>\neach and every date when the inquiry was held and thus there<br \/>\nis no scope for any argument that due to being transferred and<br \/>\nattached at the headquarters pending inquiry and the seat of<br \/>\nthe inquiry being CCL Unit at Dhori, a prejudice was caused to<br \/>\nthe petitioner at the inquiry.\n<\/p>\n<p><span class=\"hidden_text\">W.P.(C) No.2120\/1998                            Page 11 of 14<\/span><\/p>\n<p> 30.    It was then urged that except for the self-serving<br \/>\nstatement of HC B.L.Chaudhry, there was no evidence to<br \/>\nsustain the second charge and in respect of the first it was<br \/>\nurged that the petitioner went out of the unit lines as he heard<br \/>\ncries of \u201eChor Chor\u201f from outside the unit lines and the natural<br \/>\nreaction would be to rush out and try and apprehend the thief.\n<\/p>\n<p>31.    Pertaining to the defence of the petitioner that he went<br \/>\nout of the unit lines, driven by instinct, when he heard cries of<br \/>\n\u201eChor Chor\u201f, we would highlight that save and except a<br \/>\nsuggestion given to PW-1, the petitioner has not even<br \/>\nsuggested the same to PW-2 and PW-3 who have just not been<br \/>\ncross-examined, the petitioner did not take the line of cross-<br \/>\nexamination qua PW-1 to any further point save and except a<br \/>\nmere suggestion. We note that notwithstanding the petitioner<br \/>\nnot having cross-examined PW-2 and PW-3, since he projected<br \/>\nsaid line of defence when he cross-examined PW-1, the Inquiry<br \/>\nOfficer has questioned PW-2 and PW-3 whether cries of \u201eChor<br \/>\nChor\u201f were heard by them and the answer by the 2 is \u201eNo\u201f.\n<\/p>\n<p>32.    Now, the petitioner admitted having left the Unit lines<br \/>\nwithout permission or even intimation and whether the reason<br \/>\nthereof was as projected by the petitioner or as projected by<br \/>\nthe prosecution, is a question of fact and it is settled law that<br \/>\nin a judicial review proceedings it would be impermissible to<br \/>\ndissect evidence with respect to a question of fact. As long as<br \/>\nthere is evidence to sustain a finding of fact returned by the<br \/>\nInquiry Officer and accepted by the Disciplinary Authority, the<br \/>\nWrit Court cannot fiddle with the evidence to find out where<br \/>\nthe greater probability rests.     This may be permissible in<br \/>\nexercise of an appellate jurisdiction.\n<\/p>\n<p><span class=\"hidden_text\">W.P.(C) No.2120\/1998                         Page 12 of 14<\/span><\/p>\n<p> 33.    Pertaining to charge No.1 it is not that the only evidence<br \/>\nis of the injured Head Constable for the reason, as noted<br \/>\nherein above by us, testimony of PW-2 read with reference to<br \/>\nthe answers given by him when examined by the Inquiry<br \/>\nOfficer would reveal that the petitioner assaulted PW-1 and<br \/>\nPW-1 had to be rescued by PW-2. The testimony of PW-3 is<br \/>\nevidence of an incident having taken place in that PW-3 had<br \/>\nstated that at the roll call the petitioner showed an injury on<br \/>\nhis hand as proof of even the petitioner having suffered an<br \/>\ninjury and for which the justification given by the petitioner is<br \/>\nas per his statement before the Inquiry Officer and as noted<br \/>\nherein above.\n<\/p>\n<p>34.    We have noted that apart from the testimony of PW-1,<br \/>\nthere is proof in the form of medical papers showing that PW-1<br \/>\nwas injured and as regards the petitioner, through the<br \/>\ntestimony of PW-3 we have the fact that the petitioner never<br \/>\ngot himself medically examined in spite of being told to have<br \/>\nhimself     medically   examined        and   the       reluctance       of   the<br \/>\npetitioner to get himself medically examined is an inferential<br \/>\nfact that either the injury was not a fresh one or was so trivial<br \/>\nthat    the    petitioner   did   not    want       a    contemporaneous<br \/>\nmemorandum being prepared with respect thereto.\n<\/p>\n<p>35.    Be that as it may, for the same reasons which we have<br \/>\nrecorded herein above pertaining to the 1st charge, adopting<br \/>\nthe same for the 2nd i.e. not to enter into an appellate<br \/>\ndiscussion on the evidence, we hold that there is sufficient<br \/>\nevidence to establish charge No.2 and with respect to<br \/>\nAnnexure-B to the writ petition, photocopy of a medical<br \/>\nprescription alleged to be pertaining to the petitioner, we may<br \/>\n<span class=\"hidden_text\">W.P.(C) No.2120\/1998                                     Page 13 of 14<\/span><br \/>\n simply note that said document was never produced before<br \/>\nthe Inquiry Officer and has surfaced as an annexure to the writ<br \/>\npetition and thus has to be ignored by us for want of<br \/>\nauthenticity.\n<\/p>\n<p>36.    On the last submission relating to proportionality of the<br \/>\npenalty suffice would it be to state that in the past for 2<br \/>\nmisdemeanours penalties were levied upon the petitioner. A<br \/>\n3rd penalty was quashed by the High Court. Instant incident<br \/>\nwould thus be the 3rd misdemeanour.\n<\/p>\n<p>37.    Assaulting      a   superior   officer   is      not      a   minor<br \/>\nmisdemeanour and thus we do not find the penalty levied to<br \/>\nbe disproportionate.       It may be highlighted that in 11 years<br \/>\nservice this was the 4th inquiry faced by the petitioner. In the<br \/>\nearlier 3, 2 penalties had attained finality while the 3rd was set<br \/>\naside. It is settled law that when repeated misdemeanours are<br \/>\ncommitted, past conduct can be considered on the issue of<br \/>\nproportionality of the sentence.\n<\/p>\n<p>38.    We dismiss the writ petition but refrain from imposing<br \/>\ncosts.\n<\/p>\n<p>                                      (PRADEEP NANDRAJOG)<br \/>\n                                            JUDGE<\/p>\n<p>                                       (SUNIL GAUR)<br \/>\n                                           JUDGE<br \/>\nSEPTEMBER 01, 2011<br \/>\ndk<\/p>\n<p><span class=\"hidden_text\">W.P.(C) No.2120\/1998                                 Page 14 of 14<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Delhi High Court M.C.Mishra vs Uoi &amp; Ors. on 1 September, 2011 Author: Pradeep Nandrajog * 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 &#8230;.. Petitioner Through: Ms.Aishwarya Bhati, Advocate and Ms.Jyoti Upadhyay, Advocate. versus UOI &amp; [&hellip;]<\/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-215752","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>M.C.Mishra vs Uoi &amp; Ors. on 1 September, 2011 - Free Judgements of Supreme Court &amp; 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\/m-c-mishra-vs-uoi-ors-on-1-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.C.Mishra vs Uoi &amp; 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