Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment Reserved on : 4 January, 2011
th
Judgment delivered on : 12 January,2011
+ W.P.(C) 4838/1993
MALKHAN SINGH ..... Petitioner
Through: Mr.Shyam Babu,Advocate
versus
UNION OF INDIA. ….. Respondent
Through: Mr.Neeraj Chaudhary and Mr.Mohit
Auluck, Advocates for UOI.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
SURESH KAIT, J.
1. Alleging that the petitioner claimed reimbursement
for stated medical expenses and in respect whereof furnished
false medical documents during the period 15.03.1989 to
22.02.1992 in sum of ` 6281.40 a memorandum of charge was
issued on 25.04.1992 by the Deputy Commandant CISF Unit,
NFL Bhatinda. In response to the said memorandum the
petitioner filed a reply denying the charge.
2. Considering the reply filed by the petitioner and
finding the same inadequate, the Group Commandant
appointed Sh.G.P.Rathore, Deputy Commandant CISF Unit
Sawer Mines, Udaipur as the Enquiry Officer vide order dated
02.07.1990.
3. During inquiry the Enquiry Officer recorded
statement of five prosecution witnesses, all of whom were
W.P. (C) No.4838/1993 Page 1 of 7
cross-examined by the petitioner. Defence statement of the
petitioner was also recorded.
4. The petitioner had not denied receiving ` 6281.40
under 16 medical bills furnished by him and supported by the
prescriptions of Dr.P.L.Sharma, Dr.M.M.Mathur, Dr.D.P.Sharma
and Dr.S.N.Sharma, all of whom were examined during inquiry
and all of whom denied having issued the prescriptions relied
upon by the petitioner.
5. Petitioner filed an application before the inquiry
officer praying that the chemist(s) from whom he had
purchased the medicines and had obtained receipt be
summoned and their evidence recorded; which application was
dismissed holding that there was no necessity to summon said
chemist(s).
6. Taking into consideration all the material facts
proved by the prosecution as well as documentary evidence
made available, the Enquiry Officer came to the conclusion
that charge framed against the petitioner stands proved
beyond doubt.
7. Furnishing a copy of the inquiry report to the
petitioner and considering his reply and rejecting the same,
vide order dated 16.12.1992 the disciplinary authority passed
the penalty of “dismissal from service” upon the petitioner.
8. The petitioner preferred an appeal against the final
order dated 16.12.1992 which was dismissed by the appellate
authority vide order dated 23.04.1993 which reads as under:-
(i) Petitioner while working in CISF unit Zawar Mines
Hindustan Zinc Limited , Udaipur got treated himself and
his family members w.e.f. 15.03.1989 to 22.02.1992
through medical reimbursement application with the ill
intention of earning money fraudulently from Hindustan
Zinc Limited.
(ii) According to the petitioner in the charge-sheet
W.P. (C) No.4838/1993 Page 2 of 7
claiming of false please have been leveled against him
but in the statement of allegation it is stated that he has
not got any treatment, therefore, this is a contrary to
charge and statement of allegation.
(iv) The appellate authority has considered enquiry
report that the most of the bills were issued by Raj
Ayurvedic Medical Store who is famous for such acts.
Though the petitioner made an application before the
Enquiry Officer to call for the original bills from the
aforesaid medical store but the same was not
considered on the ground that the petitioner
submitted bills, prescription slips, there was no
reference of the dates in the OPD register.
The appellate authority was of the view that there was
no need of handwriting expert opinion with regard to
the verification of Doctor’s signatures. If the petitioner
had any doubt on doctor’s statement or on their
signatures, he was duty bound to produce proof in that
regard.
All the documents demanded by him were supplied by
the Enquiry Officer. The Enquiry has been conducted
according to the rules and sufficient opportunities
have been afforded to the petitioner for his defence.
Accordingly, the appellate authority confirmed the
order of the Disciplinary Authority.
The counsel for the petitioner has raised legal issue
that Deputy Commandant who issued the charge-
sheet was not competent under Section 34 of CISF.
9. Three submissions were urged at the hearing of the
writ petition. It was firstly urged that the Dy. Commandant
could not issue the charge sheet as he was not the disciplinary
authority and that it was only the commandant who could act
as the Disciplinary Authority. Second contention urged was
that by not permitting the chemist(s) whose receipts were filed
by the petitioner to obtain medical reimbursement the Inquiry
Officer had denied the petitioner a fair opportunity to make
good the defence. Lastly it was urged that the findings
returned by the Inquiry Officer are without any reasons.
W.P. (C) No.4838/1993 Page 3 of 7
10. The first plea requires this Court to look at Rule 29A
Rule 31 and Rule 34 of the CISF Rules 1969 and Schedule II
thereto.
11. Rule 29A reads as under:-
“Rule 29A.Disciplinary Authority:-The disciplinary authority
in respect of a member of the force for the purpose of
imposing any particular penalty or the passing of any
disciplinary order shall be the authority specified in this
behalf in Schedule II under whose administration control of
the member is serving and shall include any authority
mentioned in the said Schedule superior to such authority.”
12. Rule 31 reads as under:-
“ 31.Nature of penalties:- The following penalties may,
for good and sufficient reasons and as hereinafter
provided, be imposed on a member of the Force,
namely—
(a) Dismissal
(b) Removal
(c) Compulsory retirement
(d) Reduction to a lower class or grade or rank or to a
lower time scale or to a lower stage in the time-
scale of pay;
(e) Withholding of increment or promotion
(f) Removal from any office of distinction or
deprivation of special emolument;
(g) Fine to any amount not exceeding 7 days’s pay;
(h) Censure
13. Rule 34 reads as under:-
“ 34.Procedure for imposing major penalties :-
(1) Without prejudice to the provisions of the Public
Servants (Inquiries) Act, 1850 (37 of 1850), no order
imposing on a member of the force any of the
penalties specified in Clause (a) to (d) of rule 31 shall
be passed except after an inquiry held as for as may
be in the manner hereinafter provided.
(2) The disciplinary authority shall frame definite
charges on basis of the allegation on which the
inquiry is proposed to be held. Such charges together
with a statement of the allegations on whch they are
based, shall be communicated in wirting to the
member to the force and he shall be required to
submit, within such times as may be specified by the
W.P. (C) No.4838/1993 Page 4 of 7
disciplinary authority a written statement on his
defence and also to state whether he desires to be
heard in person.”
Explanation :- In this Sub-rule and sub-rule (3) the
expression “the disciplinary authority” shall include the
authority competent under these rules to impose upon
the member of the Force any of the penalty specified in
clauses (e) to (h) rule 31.
(3) ……
(4) ……
(5) ……
(6) ……
(7) ……
(8) ……
(9) ……
(10) ……
(11) ……”
14. As per Schedule II the Disciplinary Authority listed
pertaining to orders relating to dismissal, removal and
compulsory retirement is Commandant and pertaining to
reduction of pay, grade or rank, withholding increment or
promotion or censure the Disciplinary Authority is
Commandant as well as Deputy Commandant.
15. As per Rule 31 penalty envisaged under Clause (a),
(b) and (c) has obviously to be inflicted by the Commandant
for the Commandant would be the Disciplinary Authority to
levy said penalties. But, the question arises whether the
charge sheet should also emanate from him.
16. Relevant would it be to note that the procedure for
imposing major penalties is provided by Rule 34 and it
envisages that no penalty contemplated by clauses (a) to (d)
of Rule 31 can be levied except after an inquiry is held, which
as per sub-rule (2) of Rule 34 has to be pursuant to definite
charges communicated in writing to the member of the Force
W.P. (C) No.4838/1993 Page 5 of 7
by the Disciplinary Authority and as per the explanation to
sub-rule (2) of Rule 34, for the purposes of sub-rule (2) as also
sub-rule (3) the Disciplinary Authority includes the authority
competent to impose penalties specified under clause (e) to
(h) of Rule 31 and thus it is apparent that the rules
contemplate a Disciplinary Authority for the purposes of
framing a charge and a Disciplinary Authority for the purposes
of levy of penalty and the two can be different. Suffice would
it be to note that as per Schedule II penalties envisaged by
clause (e) to (h) of Rule 31 can be levied by the Deputy
Commandant and thus it is apparent that by virtue of the
explanation aforenoted the Deputy Commandant would be the
authority competent to frame the charge sheet.
17. Thus, the first contention urged is of no use to the
petitioner.
18. As regards the second contention urged it is to be
noted that the four doctors on the strength of whose medical
prescription the petitioner claimed to have purchased
medicine from various chemists have denied before the Inquiry
Officer of having issued the prescriptions and thus it did not
matter whether the chemist would support the receipt or the
bills issued by them. Thus, no prejudice is caused by not
examining the chemists concerned. If the prescriptions, which
were the basis on which medicines could be purchased were
proved to be fabricated that was the end of the matter.
19. As regards the third plea, it may be noted that the
Inquiry Officer has discussed the evidence very elaborately
and has highlighted the features of the facts proved by the
prosecution witnesses with reference to the statement of the
four doctors followed by noting the defence statement.
W.P. (C) No.4838/1993 Page 6 of 7
Thereafter the admitted facts have been enumerated as also
the disputed facts. While discussing the admitted and the
disputed facts the Inquiry Officer has analyzed the evidence
and at the end under the caption „ Findings ‟ has concluded that
the charge stands proved. Learned counsel for the petitioner
kept on labouring that what is penned under the caption
„ Findings’ is without reasons ignoring that under the caption
„ Findings ‟ conclusions have been recorded and the reasoning
is in the preceding 3 paragraphs. It hardly matters what the
caption is. As long as reasons are to be found it would be
sufficient compliance with law.
20. The writ petition is accordingly dismissed. But we
refrain from imposing cost since the petitioner is without a job.
(SURESH KAIT)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
JANUARY 12, 2010
‘mr’
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