OM PRAKASH vs. INSPECTOR GENERAL/N.S. AND ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on : January 06, 2015
% Judgment Delivered on : January 12, 2015



+ W.P.(C) 2884/2005
OM PRAKASH ..... Petitioner
Represented by: None

versus

INSPECTOR GENERAL/N.S. AND ORS ..... Respondents
Represented by: Mr.Inderjit Singh, Advocate.

AND
+ W.P.(C) 2438/2006
RATAN SINGH ..... Petitioner
Represented by: None

versus

UNION OF INDIA AND ORS ..... Respondents
Represented by: Ms.Geeta Sharma and
Mr.Ujjwal Jain, Advs.

AND
+ W.P.(C) 19649/2005
PREM SINGH ..... Petitioner
Represented by: Mr.Chandan Kumar, Advocate.

versus

UOI AND ORS ..... Respondents
Represented by: Ms.Barkha Babbar, Advocate
for UOI
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI

W.P.(C) No. 2884/2005, 2438/2006 & 19649/2005 Page 1 of 17

PRATIBHA RANI, J.
1. The challenge in these writ petitions is to the final orders dated
November 07, 2003 passed by the Disciplinary Authority and orders passed
by the Appellate Authority whereby the penalty of removal from service
imposed on all the three petitioners, was upheld in appeal. It is desirable
that all the three writ petitions should be disposed of by common order as all
the three petitioners were charged for the incident dated August 05, 2003
wherein constable Raja Bhaiya Singh suffered injuries at the hands of three
petitioners as well for their refusal to undergo medical examination. The
respondents after initiating separate disciplinary proceedings against the
three petitioners, imposed penalty of removal..
2. The Article of Charges framed against the writ petitioners are as
under:-

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3. Since the petitioners did not plead guilty to the charges levelled
against them, in the separate inquiry proceedings in all seven witnesses have
been examined by the respondents in support of the charges. On considering
the evidence adduced during the course of inquiry, the Inquiry Officer
arrived at the conclusion that the charges against the three petitioners had
been proved by the respondents.
4. The Disciplinary Authority vide order dated November 07, 2003
imposed penalty of removal from service, observing that the petitioners were
not fit to be retained in Force. The appeal preferred against the penalty order
of removal from service was rejected. The revision preferred before
Inspector General North Sector met the same fate.
5. These writ petitions have been filed with a prayer to quash the
impugned orders with direction to the Respondents to reinstate the
petitioners with all consequential benefits.
6. The respondents contested the writ petitions by filing counter
affidavits claiming that the finding of guilt has been passed on sufficient
material and the penalty imposed commensurate with the guilt proved
against the three petitioners who are members of disciplined force. Further
the Presenting Officer could not be appointed during disciplinary
proceedings for the reason that the disciplinary authority did not receive any
amendment to CISF Rules, 2001 regarding appointment of a Presenting
Officer which otherwise is discretionary. More so, the Presenting Officer
has to present the case on behalf of disciplinary authority and the prejudice
in such a situation, if any, could be only to the respondents and not to the
petitioners.
7. When the writ petition came up for hearing, none appeared on behalf
of the petitioners Om Prakash and Ratan Singh in W.P.(C) Nos. 2884/2005
W.P.(C) No. 2884/2005, 2438/2006 & 19649/2005 Page 5 of 17

& 2438/2006. Mr.Chandan Kumar, Advocate appearing on behalf of the
petitioner Prem Singh in W.P.(C) No. 19649/2005 submitted that the
petitioner was never medically examined to ascertain that he was under the
influence of alcohol at the time of incident. Further he had no enmity or
hostility with Constable Raja Bhaiya Singh which could be a reason for the
petitioner to assault him. It has also been urged before us that the doctor who
medically examined the injured Constable Raja Bhaiya Singh was never
produced before the Inquiry Officer and during the inquiry proceedings the
injured was unable to show any scar mark to establish that he had suffered
injuries at the hands of the petitioners on August 05, 2003. Learned counsel
for the petitioner Prem Singh further submitted that Constable Rajbir Singh,
who was also sleeping in the same room, has not witnessed the occurrence
and that there was absolutely no material before the Disciplinary Authority
to record a finding of guilt against the petitioner Prem Singh and impose a
penalty of removal from service. Learned counsel for the petitioner Prem
Singh also submitted that the inquiry is vitiated for the reason that during
inquiry proceedings, Rule 36(5)(c) of CISF Rules, 2001, which came into
force with effect from June 09, 2003, was not complied with by appointing a
Presenting Officer and in fact Inquiry Officer himself has examined the
witnesses which vitiates the disciplinary proceedings against the petitioner.
He has also drawn the attention of the Court to the fact that the alleged
weapons of the offence i.e. Belt and Danda have not been recovered which
creates a doubt about the correctness of charges levelled and held to be
proved against the petitioner. By placing reliance on the decision reported as
AIR 1975 SC 1331 Sukhdev Singh & Ors. vs. Bagatram Sardar Singh
Raghuvanshi and Anr. , learned counsel for the petitioner Prem Singh
submitted that the order to remove the petitioner from service being contrary
W.P.(C) No. 2884/2005, 2438/2006 & 19649/2005 Page 6 of 17

to the rules and regulations governing him needs to be set aside by this
Court.
8. Learned counsel for the respondents submitted that the order of
penalty is based on finding of Inquiry Officer wherein he held that the
charges against the petitioners stand proved. It was urged before us that the
amendment in Rule 36 (5)(c) of CISF Rules, 2001 came into force with
effect from June 09, 2003 but the same did not come to the notice of the
disciplinary authority. However, the petitioners have not been able to show
the prejudice, if any, caused to them for non-appointment of Presenting
Officer which otherwise, as per rules, is not mandatory.
9. While justifying the penalty of removal, learned counsel for the
respondents has drawn the attention of this Court to the past misconduct of
petitioners Ratan Singh and Prem Singh repeatedly for which penalties were
imposed. Petitioner Om Prakash had no record of past misconduct but as the
Article of Charges against him pertaining to the incident dated August 05,
2003 being proved, were of grave nature, the penalty imposed on him
commensurate with the gravity of the charges.
10. Before dealing with the rival contentions, to avoid repetition we
prefer to note here that during the course of inquiry, seven witnesses have
been examined to prove the charges against the petitioners on different
dates. After giving details of the PWs with their date of examination
hereunder, we shall refer their names.

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11. We have perused the record of the disciplinary proceedings initiated
against the three petitioner to ascertain whether it is a case of no evidence
against the petitioners as well the material on the basis of which the Inquiry
Officer arrived at the conclusion that the charges have been proved.
12. Statement of injured Raja Bhaiya Singh is to the effect that on August
05, 2003 while he was lying on his cot and his roommate Rajbir Singh was
also lying in his cot, petitioner Prem Singh was missing from his bed. At
about 2200 hrs. all the three petitioners entered his room. Petitioner Prem
Singh bolted the door from inside and all of a sudden all the three petitioners
started assaulting him. Petitioner Ratan Singh was having belt and petitioner
Prem Singh was having danda in his hand whereas petitioner Om Prakash
tried to hold him. He was assaulted with belt and danda. He ran towards the
door, unbolted the door and raised alarm.
13. Inspector S.S. Chauhan had also confirmed the incident while
deposing that when he was watching TV in the Recreation Room on the first
floor, he heard noise and looked down to see what was happening. He had
seen Raja Bhaiya Singh bleeding from his head and the petitioners in
aggressive mood and extending threat to Raja Bhaiya Singh that next time
W.P.(C) No. 2884/2005, 2438/2006 & 19649/2005 Page 9 of 17

he would not be spare. Inspector S.S. Chauhan had also stated that he
directed the three petitioners to undergo medical examination as they
appeared to be under the influence of alcohol for which they refused saying
that unless and until the entire unit would be medically examined they will
not go for medical examination. Inspector S.S. Chauhan had taken the
injured Raja Bhaiya Singh to the Government Hospital at Kullu for
necessary medical treatment.
14. SI Ram Singh had also seen constable Raja Bhaiya Singh bleeding
from his head and the petitioners smelling alcohol as well the refusal to
undergo medical examination.
15. PWs J.P. Rana, Diwan Singh and Girind Singh had also seen injured
bleeding and the petitioners being in state of intoxication and their refusal to
undergo medical test.
16. Constable Rajbir Singh though stated that he had not seen the incident
despite being present in the same room, confirmed the incident to the extent
that after hearing some noise when he got up from the cot, he saw inspector
S.S.Chauhan, clerk Diwan Chand, Ram Singh and constable Raja Bhaiya
Singh standing near the stairs in the hall and about some quarrel with Raja
Bhaiya Singh. He stated that he saw inspector Sahab asking the petitioners
to undergo medical examination and they told him why their medical
examination should be conducted. Thus, he supported charge under article 2
to the above extent.
17. We have also perused the MLC of injured Raja Bhaiya Singh. The
MLC records:-
‘Date and hour of arrival – 6/8/03 at 12.05 am
Alleged h/o assault by other colleagues by Constable Ratan
Singh, Constable Om Prakash, Constable Prem Singh at
around 10 PM on the night of 5.8.03.
O/E : 1. There is small abrasions over occepital region of scalp.
W.P.(C) No. 2884/2005, 2438/2006 & 19649/2005 Page 10 of 17

Fresh bleeding present.
2. Contusion mark over back at neck left shoulder region
and on left side.
3. Tenderness left wrist found.’

18. The Inquiry Officer on consideration of statement of witnesses
examined by the respondents and MLC of injured Constable Raja Bhaiya
Singh, held the following facts to be proved:
(i) The petitioners were seen running from the room of Raja Bhaiya
Singh by PWs Diwan Chand and S.S.Chauhan.
(ii) PWs Diwan Chand, J.P.Rana, Ram Singh, Girand Singh and
S.S.Chauhan had seen Raja Bhaiya Singh bleeding from his head.
(iii) All the three petitioners were seen in aggressive mood, smelling
alcohol having no control on their limbs i.e. legs and tongue.
(iv) All the three petitioners were heard threatening Raja Bhaiya Singh
that though he managed to save on that day, they would attack on him again.
(v) All the three petitioners when asked to undergo medical examination,
refused for the same stating that unless the entire Unit is medically
examined, they would not undergo medical examination.
19. The Inquiry Officer also noted that PW Rajbir Singh, who was
sleeping on his cot in the same room where injured Raja Bhaiya Singh was
attacked, suppressed the facts claiming that he was sleeping at that time
which was highly improbable. But even Constable Rajbir Singh confirmed
that he got up on hearing some noise and came out of the room. He saw
S.S.Chauhan, Diwan Chand, Lachhu Ram and Raja Bhaiya standing near the
staircase leading to first floor and some other members of the force were
present in hall from whom he came to know about the quarrel with Raja
Bhaiya Singh by Ratan Singh, Prem Singh and Om Prakash. He also
confirmed that when S.S.Chauhan asked all the three petitioners to undergo
W.P.(C) No. 2884/2005, 2438/2006 & 19649/2005 Page 11 of 17

medical test, they refused saying that incase medical is to be conducted, it
should be of entire Unit.
20. The Inquiry Officer also noted that none of the petitioners could
produce any evidence in their defence.
21. The Appellate and Revisional Authorities duly considered the record
and were of the view that all the three petitioners had entered the room of
Raja Bhaiya Singh, assaulted him due to which he sustained injuries as
recorded by the doctor after medical examination of Raja Bhaiya Singh.
Further from the statement of prosecution witnesses Diwan Chand, J.P.Rana,
Ram Singh, Girand Singh and S.S.Chauhan, it was proved that all the three
petitioners were under the influence of alcohol at that time and despite
directions by the superior officer, the petitioners refused to undergo medical
examination. While taking note of the plea that the weapons of offence
were not seized and no FIR was registered, same was rejected observing that
in departmental inquiry, the charges are required to be proved on the
preponderance of probabilities and evidence and it being a case of
misconduct which could be dealt with by the department, non-registration of
FIR was insignificant.
22. We find no force in the submissions made by learned counsel for the
petitioner Prem Singh that non-examination of doctor is sufficient to infer
that there was no such injury and that the MLC is dated August 06, 2003.
No doubt, in this case the doctor who medically examined constable Raja
Bhaiya Singh was not examined by the Inquiry Officer but the factum of
medical examination of constable Raja Bhaiya Singh at Health and Family
Welfare Department, District Kullu at 12.05 AM was never challenged
during inquiry proceedings. Rather the petitioners tried to take advantage of
the fact that the date on the medical examination report was August 06,
W.P.(C) No. 2884/2005, 2438/2006 & 19649/2005 Page 12 of 17

2003. The Inquiry Officer recorded that the date changed after midnight,
hence in respect of the incident which took place on the night of August 08,
2003, the injured was taken to the hospital and medically examined after
midnight (12.05 AM), thus medical examination report was rightly bearing
the date August 06, 2003.
23. Non-examination of the medical officer by the Inquiry Officer in the
facts and circumstances is of no consequence as the Inquiry Officer has
based his findings on the statement of witnesses namely Diwan Chand,
J.P.Rana, Ram Singh, Girand Singh and S.S.Chauhan who had seen
constable Raja Bhaiya Singh bleeding from his head. Thereafter he was
taken to Health and Family Welfare Department, District Kullu, Himachal
Pradesh for his medical examination.
24. Another contention of petitioner Prem Singh is that in the absence of
Presenting Officer, the petitioner has been prejudiced as Inquiry Officer has
examined the witnesses. Learned counsel for the petitioner Prem Singh has
failed to bring on record any prejudice being caused to the petitioner Prem
Singh just for the reason that in compliance of Rule 36 (5)(c) of CISF Rules,
2001, the Presenting Officer was not appointed.
25. It may be advantageous to refer to the decision of Supreme Court
reported as AIR 1994 SC 1074 Managing Director, ECIL Hyderabad vs.
B.Karunakar , wherein it was held that whether prejudice has been caused to
an employee or not has to be considered in the facts and circumstances of
each case. Relevant observation in this regard appear in para 7 (v) of the
report as under:
“7…….
(v) The next question to be answered is what is the effect on the order
of punishment when the report of the Inquiry Officer is not furnished
W.P.(C) No. 2884/2005, 2438/2006 & 19649/2005 Page 13 of 17

to the employee and what relief should be granted to him in such
cases. The answer to this question has to be relative to the punishment
awarded. When the employee is dismissed or removed from service
and the inquiry is set aside because the report is not furnished to him,
in some cases the non- furnishing of the report may have prejudiced
him gravely while in other cases it may have made no difference to
the ultimate punishment awarded to him. Hence to direct
reinstatement of the employee with back-wages in all cases is to
reduce the rules of justice to a mechanical ritual. The theory of
reasonable opportunity and the principles of natural justice have been
evolved to uphold the rule of law and to assist the individual to
vindicate his just rights. They are not incantations to be invoked nor
rites to be performed on all and sundry occasions. Whether in fact,
prejudice has been caused to the employee or not on account of the
denial to him of the report, has to be considered on the facts and
circumstances of each case. Where, therefore, even after the
furnishing of the report, no different consequence would have
followed, it would be a perversion of justice to permit the employee to
resume duty and to get all the consequential benefits. It amounts to
rewarding the dishonest and the guilty and thus to stretching the
concept of justice to illogical and exasperating limits. It amounts to a
"unnatural expansion of natural justice" which in itself is antithetical
to justice.”

26. We may also note that petitioner Prem Singh cannot derive any
advantage by placing reliance on Sukhdev Singh & Ors. vs. Bagatram Srdar
Singh Raghuvanshi & Anr. (Supra) for the reason the questions arising for
consideration before Hon'ble Supreme Court were:-
(i) Whether an order for removal from service contrary to regulations
framed under the Oil and Natural Gas Commission Act, 1959, the
Industrial Finance Corporation Act, 1948; and the Life Insurance
Corporation Act, 1956 would enable the employees to a declaration
against the statutory corporation of continuance in service or would
W.P.(C) No. 2884/2005, 2438/2006 & 19649/2005 Page 14 of 17

only give rise to a claim for damages.
(ii) Whether an employee of a statutory corporation is entitled to claim
protection of Arts. 14 and 16 against the Corporation. In short the
question is whether these statutory corporations are authorities within
the meaning of Art. 12.
27. The Petitioner Prem Singh has not been able to establish that the act
of the respondents was in violation of the terms governing his service
conditions. Thus, the prejudice, if any, in the absence of Presenting Officer,
could be only to the department and not to the petitioners. Similarly, non-
seizure of belt and danda is also no ground to interfere with the impugned
orders for the reason that burden of proof on prosecution in disciplinary
proceedings is not like that of a criminal trial. Whereas in a criminal trial,
the prosecution is required to prove its case beyond reasonable doubt,
disciplinary proceedings require evaluation of evidence based on
preponderance of possibilities. Even strict rules of evidence do not apply.
Further during cross examination, the petitioners have not been able to
establish that the testimony of the prosecution witnesses are not worthy of
credence.
28. Instance of past misconduct of petitioners Prem Singh and Ratan
Singh wherein repeatedly penalties have been imposed on them as well
gross misconduct of petitioner Om Prakash in assaulting his colleague by
entering in his room when he was about to sleep and assaulting him with
belt and danda and threatening him, have also been taken note of by the
Inquiry Officer as well the Appellate and Revisional Authorities. Their
refusal to undergo medical examination to ascertain whether they were
under the influence of alcohol at that time, had also been viewed seriously
by the Authorities. Thus, there was sufficient evidence before the Inquiry
W.P.(C) No. 2884/2005, 2438/2006 & 19649/2005 Page 15 of 17

Officer to prove the charges, which by any yardstick, were sufficient to
prove the Article of Charges framed against the Petitioners, which are of
grave nature.
29. The Supreme Court while considering the scope of interference by the
High Court in the decision of departmental authorities in the decision
reported as AIR 1963 SC 1723 State of Andhra Pradesh & Ors. vs. S.Sree
Rama Rao observed:-
‘7. The High Court is not constituted in a proceeding Under
Article 226 of the Constitution a court of appeal over the
decision of the authorities holding a departmental enquiry
against a public servant: it is concerned to determine whether
the enquiry is held by an authority competent in that behalf,
and according to the procedure prescribed in that behalf, and
whether the rules of natural justice are not violated. Where
there is some evidence, which the authority entrusted with the
duty to hold the enquiry has accepted and which evidence may
reasonably support the conclusion that the delinquent officer is
guilty of the charge, it is not the function of the High Court in a
petition for a writ Under Article 226 to review the evidence and
to arrive at an independent finding on the evidence. The High
Court may undoubtedly interfere where the departmental
authorities have held the proceedings against the delinquent in
a manner inconsistent with the rules of natural justice or in
violation of the statutory rules prescribing the mode of enquiry
or where the authorities have disabled themselves from
reaching a fair decision by some considerations extraneous to
the evidence and the merits of the case or by allowing
themselves to be influenced by irrelevant considerations or
where the conclusion on the very face of it is so wholly
arbitrary and capricious that no reasonable person could ever
have arrived at that conclusion, or on similar grounds. But the
departmental authorities are, if the enquiry is otherwise
properly held, the sole judges of facts and if there be some legal
evidence on which their findings can be based, the adequacy or
reliability of that evidence is not a matter which can be
permitted to be canvassed before the High Court in a
proceeding for a writ Under Article 226 of the Constitution.’
W.P.(C) No. 2884/2005, 2438/2006 & 19649/2005 Page 16 of 17

30. We notice that the finding by the Inquiry Officer to the effect that the
charges against the delinquent officials have been proved as well the orders
of the Appellate Authority and Revisional Authority are detailed and
reasoned one. All the pleas put forth by the petitioners have been dealt with
while maintaining the finding of the Inquiry Officer and the penalties
awarded to the petitioners which commensurate with the Article of charges
proved against them.
31. For the foregoing reasons, we do not find any merit in the writ
petition.
32. Writ petitions bearing W.P.(C) Nos.2884/2005, 2438/2006 and
19649/2005 are accordingly dismissed.
33. No costs.

(PRATIBHA RANI)
JUDGE



(PRADEEP NANDRAJOG)
JUDGE
January 12, 2015
‘st’
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