Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 16.04.2013
+ W.P.(C) 465/2013, C.M. APPL. 899/2013
JALEY SINGH, S/O SH. HARDEVA RAM ……Petitioner
Through: Sh. Suresh Chand, Advocate.
Versus
UNION OF INDIA AND ORS. ….Respondents
Through: Sh. Tarun Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
%
1. The petitioner in these proceedings has a litany of complaints
against his employer, the Railway Protection Special Force (hereafter
“the Force”); however, the subject matter of his grievance specifically
is the penalty imposed upon him by the orders dated 18.01.2011,
31.05.2011 and 29.11.2011, which has resulted in the withholding of
three of his annual increments (“the penalty”).
2. The Force issued a charge sheet to the petitioner on 20.10.2010
in respect of an incident, which according to it, amounted to his
misconduct. The petitioner, driver of a heavy duty vehicle (truck), was
involved in an incident on 29.08.2010 at Gole Dakkhana, New Delhi,
W.P.(C) 465/2013 Page 1
with a Sashastra Seema Bal (SSB) heavy duty vehicle. The latter, i.e
SSB is a police organization. The incident was inquired into by one
Shri G.A. Khan, MTO; after receiving his report, the Force instituted
disciplinary proceedings which culminated in the impugned penalty
orders.
3. The petitioner alleges that the MTO who submitted his report,
which formed the basis of the penalty, did not in fact conduct any
inquiry; there was even no Vehicle Inspection Report on the record.
th
The inquiry was conducted on 29 of August, 2010 and on the basis of
the impressions of Shri Khan, the penalty was issued on the petitioner.
4. Dwelling on the incident, counsel for the petitioner submits that
the disciplinary and appellate authorities lost sight of the sheer
improbability of the allegations. The petitioner’s truck had 20 armed
personnel, none of whose deposition was recorded or even called for.
It is submitted that one incident has led to three penal orders, i.e.
transfer, withholding of increments, and a censure - the last being a
punishment for asking a query under the Right to Information Act.
Further, the SSB driver was rash, and tried to overtake the Petitioner’s
truck, which was idle due to a traffic jam. The petitioner relied on the
fact that his truck did not suffer any damage, but that its bumper
(fender) was pulled from the rear side, which clearly revealed that the
SSB truck hit it while on the move.
5. Mr. Tarun Sharma, learned counsel for the Force relied on the
counter affidavit and contended that this Court would not disturb
findings of fact recorded by a disciplinary authority. The Force did not
W.P.(C) 465/2013 Page 2
choose to engage itself in a detailed inquiry, since the other
organization was also a security agency. Further, even a First
Information Report (FIR) was not lodged, having regard to the
sensitivity of the situation. The Force did not make a big issue, even
though its vehicle was damaged. Instead, it chose to initiate only
minor penalty proceedings. Its official recorded the version of the
petitioner, as well as the SSB, and on visual inspection of the vehicle
concluded that the petitioner was at fault. There can be no objection to
this procedure, since in minor penalty proceedings, the charged
employee cannot insist upon the right to elaborate oral hearing and
cross examination of witnesses. Counsel emphasized that this Court
should desist from interfering with the penalty orders on the basis of
appreciation of rival versions, which should not be undertaken in
exercise of Article 226 proceedings.
6. Concededly in the present case, there was no formal inspection
of the two vehicles to determine the nature and extent of damage; nor
was any eyewitness neutral to the dispute - in the sense of those other
than the drivers, examined by either the disciplinary authority or the
MTO, Shri Khan. Significantly, the Force records that 20 armed
personnel were in its vehicle, driven by the petitioner. Yet none was
examined, or asked to narrate what happened.
7. As to the incident itself, the petitioner states that the SSB
vehicle was driven fast, and it damaged the Force’s truck, while
overtaking. The latter truck was stationary, on account of a traffic jam.
The MTO’s report dated 01.09.2010 curiously records that:
W.P.(C) 465/2013 Page 3
“……….it seems that GR1/DVR Jaley Singh could
not control his speed and he hit SSB truck No. 01-BC-
0960 in the right side and SSB truck which was in front
Bn truck got damaged from the left hand side and ran
ahead after hitting the right side of the truck SSB truck.
Driver Jaley Singh in his statement has stated that
his truck was not moving due to traffic jam if so SSB
truck would also been stuck up in Traffic and therefore
there is no question of any accident when asked about the
damage to the bumper, driver Jaley Singh reply bumper
was not damaged when, I myself saw the twisted bumper
on the spot and even know the scratches of the
straightened bumper are still visible. It shows the driver
Jaley Singh is concealing the truth in order to proof
himself innocent………..”
8. The report, contains questions put to the petitioner by the MTO.
One of the queries was “Q.4. There are marks on left side of the
front of your truck while the SSB truck is damaged on left side near
the rear wheel and it shows that you are responsible for the
accident.” The sheer improbability of this observation of the MTO,
i.e. two vehicles heading in the same direction, being damaged due to
an accident, both in the left side, hits the reader of the document. The
other interesting aspect is that in the report, the MTO speaks of
confabulations between him, officials of the SSB and his superior
officer. He also reportedly insisted that the driver (i.e. the petitioner)
“must get something to get the truck repaired otherwise his service
record may be spoiled. AC/SSB did not agree to pay any damage and
said both are force it is between both of us and the mistake is of your
driver, on this Delhi Police S.I. Kanaya Lal Yadav said since it is
personal matter settle the issue I am posted at P.S. Jagat Puri and my
W.P.(C) 465/2013 Page 4
Quarter No. is 15, Type-III and my phone no is…..bring the truck to
me at about 9:00 AM tomorrow morning I will get the body of the
truck repair and that too in the factory secretly so that nobody comes
to know about the incident…………….”. This account is very
revealing, in the Court’s opinion. There would have been no question
of repairing the Force’s truck in the manner offered by the SSB’s
officer, if the petitioner had been at fault.
9. The Court had the benefit of looking into the official records at
the time of hearing. There is no document showing technical
inspection; there are no photographs. The disciplinary and appellate
authorities have merely rubberstamped the so-called report of Shri
Khan, the MTO, into findings. The entire procedure adopted by the
Force, to issue the penalty order of withholding of three increments,
smacks of unfairness and arbitrariness.
10. To compound the error in what can only be termed as adding
insult to injury, the Force, through a letter dated 18.11.2011, doubted
the petitioner’s loyalty in the following manner:
“XXXXXX XXXXXX XXXXXX
Further his loyalty and dedication to the department is
also very much doubtful, in as much as he went to RTI in
the matter of fitness of RPSF vehicle, instead of bringing
it to the notice of administration and in that matter he
kept the administration in an embarrassing position. For
which also he was issued with a minor penalty charge
sheet and punished with Censure…”
W.P.(C) 465/2013 Page 5
Shockingly, the same letter went on to recommend the petitioner’s
transfer.
11. The Court has no doubt that the above letter is a vengeful act,
calculated to break the morale of the petitioner. Not content with
issuing an unfair and unjust penalty of withholding of three
increments, the Force has further penalized the petitioner in respect of
the same act, for (what it views as) his temerity in seeking information
connected with the incident. Clearly, the penalty of censure is
arbitrary; to the extent a recommendation for transfer is made, that
order too is punitive. The said order (dated 18.11.2011) is also
declared as unfair and arbitrary.
12. In view of the above discussion, the Writ Petition has to
succeed. All the orders impugned, i.e. dated 18.01.2011, 31.05.2011
and 29.11.2011 and the Order dated 18.11.2011 (No.
6BN/Sr.Co/Conf/2011 filed as Annexure P-4) are hereby quashed. The
Writ Petition and its accompanying application are allowed. No costs.
S. RAVINDRA BHAT
(JUDGE)
SUDERSHAN KUMAR MISRA
(JUDGE)
APRIL 16, 2013
W.P.(C) 465/2013 Page 6
Decided on: 16.04.2013
+ W.P.(C) 465/2013, C.M. APPL. 899/2013
JALEY SINGH, S/O SH. HARDEVA RAM ……Petitioner
Through: Sh. Suresh Chand, Advocate.
Versus
UNION OF INDIA AND ORS. ….Respondents
Through: Sh. Tarun Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
%
1. The petitioner in these proceedings has a litany of complaints
against his employer, the Railway Protection Special Force (hereafter
“the Force”); however, the subject matter of his grievance specifically
is the penalty imposed upon him by the orders dated 18.01.2011,
31.05.2011 and 29.11.2011, which has resulted in the withholding of
three of his annual increments (“the penalty”).
2. The Force issued a charge sheet to the petitioner on 20.10.2010
in respect of an incident, which according to it, amounted to his
misconduct. The petitioner, driver of a heavy duty vehicle (truck), was
involved in an incident on 29.08.2010 at Gole Dakkhana, New Delhi,
W.P.(C) 465/2013 Page 1
with a Sashastra Seema Bal (SSB) heavy duty vehicle. The latter, i.e
SSB is a police organization. The incident was inquired into by one
Shri G.A. Khan, MTO; after receiving his report, the Force instituted
disciplinary proceedings which culminated in the impugned penalty
orders.
3. The petitioner alleges that the MTO who submitted his report,
which formed the basis of the penalty, did not in fact conduct any
inquiry; there was even no Vehicle Inspection Report on the record.
th
The inquiry was conducted on 29 of August, 2010 and on the basis of
the impressions of Shri Khan, the penalty was issued on the petitioner.
4. Dwelling on the incident, counsel for the petitioner submits that
the disciplinary and appellate authorities lost sight of the sheer
improbability of the allegations. The petitioner’s truck had 20 armed
personnel, none of whose deposition was recorded or even called for.
It is submitted that one incident has led to three penal orders, i.e.
transfer, withholding of increments, and a censure - the last being a
punishment for asking a query under the Right to Information Act.
Further, the SSB driver was rash, and tried to overtake the Petitioner’s
truck, which was idle due to a traffic jam. The petitioner relied on the
fact that his truck did not suffer any damage, but that its bumper
(fender) was pulled from the rear side, which clearly revealed that the
SSB truck hit it while on the move.
5. Mr. Tarun Sharma, learned counsel for the Force relied on the
counter affidavit and contended that this Court would not disturb
findings of fact recorded by a disciplinary authority. The Force did not
W.P.(C) 465/2013 Page 2
choose to engage itself in a detailed inquiry, since the other
organization was also a security agency. Further, even a First
Information Report (FIR) was not lodged, having regard to the
sensitivity of the situation. The Force did not make a big issue, even
though its vehicle was damaged. Instead, it chose to initiate only
minor penalty proceedings. Its official recorded the version of the
petitioner, as well as the SSB, and on visual inspection of the vehicle
concluded that the petitioner was at fault. There can be no objection to
this procedure, since in minor penalty proceedings, the charged
employee cannot insist upon the right to elaborate oral hearing and
cross examination of witnesses. Counsel emphasized that this Court
should desist from interfering with the penalty orders on the basis of
appreciation of rival versions, which should not be undertaken in
exercise of Article 226 proceedings.
6. Concededly in the present case, there was no formal inspection
of the two vehicles to determine the nature and extent of damage; nor
was any eyewitness neutral to the dispute - in the sense of those other
than the drivers, examined by either the disciplinary authority or the
MTO, Shri Khan. Significantly, the Force records that 20 armed
personnel were in its vehicle, driven by the petitioner. Yet none was
examined, or asked to narrate what happened.
7. As to the incident itself, the petitioner states that the SSB
vehicle was driven fast, and it damaged the Force’s truck, while
overtaking. The latter truck was stationary, on account of a traffic jam.
The MTO’s report dated 01.09.2010 curiously records that:
W.P.(C) 465/2013 Page 3
“……….it seems that GR1/DVR Jaley Singh could
not control his speed and he hit SSB truck No. 01-BC-
0960 in the right side and SSB truck which was in front
Bn truck got damaged from the left hand side and ran
ahead after hitting the right side of the truck SSB truck.
Driver Jaley Singh in his statement has stated that
his truck was not moving due to traffic jam if so SSB
truck would also been stuck up in Traffic and therefore
there is no question of any accident when asked about the
damage to the bumper, driver Jaley Singh reply bumper
was not damaged when, I myself saw the twisted bumper
on the spot and even know the scratches of the
straightened bumper are still visible. It shows the driver
Jaley Singh is concealing the truth in order to proof
himself innocent………..”
8. The report, contains questions put to the petitioner by the MTO.
One of the queries was “Q.4. There are marks on left side of the
front of your truck while the SSB truck is damaged on left side near
the rear wheel and it shows that you are responsible for the
accident.” The sheer improbability of this observation of the MTO,
i.e. two vehicles heading in the same direction, being damaged due to
an accident, both in the left side, hits the reader of the document. The
other interesting aspect is that in the report, the MTO speaks of
confabulations between him, officials of the SSB and his superior
officer. He also reportedly insisted that the driver (i.e. the petitioner)
“must get something to get the truck repaired otherwise his service
record may be spoiled. AC/SSB did not agree to pay any damage and
said both are force it is between both of us and the mistake is of your
driver, on this Delhi Police S.I. Kanaya Lal Yadav said since it is
personal matter settle the issue I am posted at P.S. Jagat Puri and my
W.P.(C) 465/2013 Page 4
Quarter No. is 15, Type-III and my phone no is…..bring the truck to
me at about 9:00 AM tomorrow morning I will get the body of the
truck repair and that too in the factory secretly so that nobody comes
to know about the incident…………….”. This account is very
revealing, in the Court’s opinion. There would have been no question
of repairing the Force’s truck in the manner offered by the SSB’s
officer, if the petitioner had been at fault.
9. The Court had the benefit of looking into the official records at
the time of hearing. There is no document showing technical
inspection; there are no photographs. The disciplinary and appellate
authorities have merely rubberstamped the so-called report of Shri
Khan, the MTO, into findings. The entire procedure adopted by the
Force, to issue the penalty order of withholding of three increments,
smacks of unfairness and arbitrariness.
10. To compound the error in what can only be termed as adding
insult to injury, the Force, through a letter dated 18.11.2011, doubted
the petitioner’s loyalty in the following manner:
“XXXXXX XXXXXX XXXXXX
Further his loyalty and dedication to the department is
also very much doubtful, in as much as he went to RTI in
the matter of fitness of RPSF vehicle, instead of bringing
it to the notice of administration and in that matter he
kept the administration in an embarrassing position. For
which also he was issued with a minor penalty charge
sheet and punished with Censure…”
W.P.(C) 465/2013 Page 5
Shockingly, the same letter went on to recommend the petitioner’s
transfer.
11. The Court has no doubt that the above letter is a vengeful act,
calculated to break the morale of the petitioner. Not content with
issuing an unfair and unjust penalty of withholding of three
increments, the Force has further penalized the petitioner in respect of
the same act, for (what it views as) his temerity in seeking information
connected with the incident. Clearly, the penalty of censure is
arbitrary; to the extent a recommendation for transfer is made, that
order too is punitive. The said order (dated 18.11.2011) is also
declared as unfair and arbitrary.
12. In view of the above discussion, the Writ Petition has to
succeed. All the orders impugned, i.e. dated 18.01.2011, 31.05.2011
and 29.11.2011 and the Order dated 18.11.2011 (No.
6BN/Sr.Co/Conf/2011 filed as Annexure P-4) are hereby quashed. The
Writ Petition and its accompanying application are allowed. No costs.
S. RAVINDRA BHAT
(JUDGE)
SUDERSHAN KUMAR MISRA
(JUDGE)
APRIL 16, 2013
W.P.(C) 465/2013 Page 6