IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 2360 of 2009 and CWP No. 2367 of 2009. Date of Decision: 15.9.2011 CWP No. 2360 of 2009 Rajesh Chauhan …Petitioner. Versus. Union of India and others … Respondents CWP No. 2367 of 2009 Chuni Lal …Petitioner. Versus. Union of India and others … Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Petitioner(s): Mr. Vipinder Roach, Advocate. For the Respondents: Mr. Sandeep Sharma, ASGI in CWP No.2367/ 09 Mr. Ravinder Thakur CGSC in CWP No.2360/09 Deepak Gupta, J (oral) 1. Both these petitions are being disposed of by a common judgement since similar questions are involved. 2. Both the petitioners (Rajesh Chauhan in CWP No. 2360 of 2009 and Chuni Lal in CWP No.2367 of 2009) joined the Sashastra Seema Bal (SSB) as constables in the year 1996. They were both posted 2 in West Bengal in West Midnapore District for assembly election duty on 6th April, 2006. The case against the petitioners is that on 6th April, 2006 both the petitioners alongwith another constable Ramesh Pandey had gone to Gidhni bazaar and consumed liquor. It is alleged that one of the constables teased a young girl and tried to catch hold of her hand. When she objected, the constables ran back to the camp. The father of the girl came to the camp and the two petitioners were brought before him and he allegedly identified Chuni Lal as the person who had teased his daughter. He, however, in his written complaint has also stated that he did not want to pursue the matter further and the offender be forgiven. The Assistant Commandant Shri H.K.Gupta rebuked the petitioners for having misbehaved with a young girl and told them that their action was totally unbecoming of a member of Sashastra Seema Bal. The Assistant Commandant proposed that he would give them punishment of seven days pack drill. It is alleged that on being so rebuked, petitioner Rajesh Chauhan lost his temper, banged the door and left the office of the Assistant Commandant. Chuni Lal, however, did not dispute 3 the punishment nor did he say anything harsh to his officers. 3. The case of the respondent is that thereafter Rajesh Chauhan went to his quarter took out his loaded SLR rifle, shot one round in the air and then came outside the camp and shot two more rounds in the air and threatened to kill the Assistant Commandant and other subordinate officers. He also allegedly used un-parliamentary and abusive language against his subordinate officers. On account of this accident disciplinary proceedings were initiated against Constable Rajesh Chauhan on the following charges:- 1). Consumption of local made liquor in village Khera Jhora. 2). Creating nuisance in public place in an intoxicated state under the influence of liquor. 3). Firing three rounds of ammunitions from his SLR with an intention to kill Assistant Commandant H.K.Gupta and using abusive and un-parliamentary language against the Assistant Commandant. 4). Threatening to shoot the subordinate officers of the company and using abusive and un- parliamentary language against them. 5). On being asked to surrender and lay down his weapon, Rajesh Chauhan allegedly laid down the following conditions:- i) That the Assistant Commandant should apologize to him by touching his feet. 4 ii) The Assistant Commandant should give an assurance that no action should be taken against Rajesh Chauhan. 6). The last charge against Rajesh Chauhan is that when he was placed under suspension and his headquarter was fixed at Balrampur (U.P.) he left the headquarter on 2.6.2006 without permission and returned back only on 11.6.2006. 4. Rajesh Chauhan admitted charge No.6 in toto. As far as charge No. 3 is concerned, he admitted that he had fired three rounds but according to him he did not do so with an intention to kill anybody. He also denied having used un-parliamentary language against anybody. Charges 1 and 2 were held to be not proved against Shri Rajesh Chauhan but charges 3 to 6 were found to have been proved by the Inquiry Officer. Thereafter, penalty of dismissal from service was imposed upon him. The petitioner filed CWP No. 1738 of 2007 in this Court and vide judgement dated 19.08.2008 the respondents were directed to reconsider the case of Shri Rajesh Chauhan. The respondents have again rejected the claim of Shri Rajesh Chauhan and upheld the penalty of dismissal from service imposed upon him. 5. As far as Chuni Lal is concerned, the charges against him were as follows:- 5 1). That he had consumed local made liquor in village Khera Jhora. 2). That he had created nuisance in the public place by catching the hand of a local girl in an intoxicated state under the influence of liquor. 3). That he used to frequently visit Khera Jhora in search of local made liquor, chicken, etc. and used to roam in the village without permission from the competent authority. 6. The Inquiry Officer, after conducting the inquiry, came to the conclusion that article of charges 1 and 3 had not been proved against Chuni Lal but article of charge 2 stood proved. The Assistant Commandant agreed with the findings on charges No. 2 and 3 but in respect of charge No.1 differed with the Inquiry Officer and proposed the penalty of dismissal from service upon Chuni Lal. Thereafter, dismissal order was passed. Appeal filed by Chuni Lal was rejected. He also approached this Court by filing CWP No.1739 of 2007 which was allowed in similar terms by a learned Single Judge of this Court. Thereafter the review petition has again been rejected. Hence, the present petition. CWP No. 2360 of 2009 of Shri Rajesh Chauhan. 7. Learned counsel for the petitioner submits that the entire case foisted upon Shri Rajesh Chauhan is false. According to the learned counsel, Rajesh 6 Chauhan had not teased any girl and in fact neither the girl nor her father had made any complaint against him. However, Shri H.K.Gupta, Assistant Commandant, was bent upon in falsely involving the petitioner in a case of molestation and therefore, the petitioner was provoked and due to provocation he went back to his room, took out his rifle and fired three rounds in the air. He submits that there is no evidence to show that any un-parliamentary or abusive language was used by the petitioner Rajesh Chauhan. 8. Since the careers of the petitioners are involved and they have been dismissed from service, I have gone through the entire record of the inquiry in detail. This Court is not to sit in appeal over the inquiry report but only to determine whether the conclusion arrived at by the Inquiry Officer is reasonable and plausible one. Shri H.K.Gupta, Assistant Commandant was the first witness who was examined by the department. According to him on 9.4.2006 Inspector Seva Singh alongwith three other constables reported to him that a villager of village Gidhni had reported that constables of SSB were wandering in their village in an intoxicate state and one constable had outraged the modesty of a 7 minor girl. Thereafter at about 4.00 p.m the complainant, Prem Krishan Mahto came to the his office-cum-residence and submitted a written complaint against both the constables. He called both Chuni Lal and Rajesh Kumar to his office. Prem Krishan Mahto identified the two constables. Thereafter he sent back the complainant after assuring him that action would be taken against the defaulters. He then rebuked the two constables for lowering the decorum of the force and Rajesh Chauhan left his office-cum-residence after banging the door in an undisciplined manner. Thereafter one constable Vikas Gupta sent a message that Rajesh Chauhan had started firing and was abusing the Assistant Commandant and subordinate officers. He was asked to calm Rajesh Chauhan but Rajesh Chauhan laid down certain conditions. He has also stated that the accused used un-parliamentary and abusive language. The only question put to him by Rajesh Chauhan is that he had himself not seen the accused firing or abusing. His explanation is that he was told by the other officials about the incident. 9. Many other witnesses including sub-inspector Manohar Lal, M.C.Paul have fully supported the version of the employer and Shri Rajesh Chauhan 8 has not chosen to cross-examine them despite being given an opportunity to cross-examine them. Rajesh Chauhan does not deny that he fired three rounds and that he also left his headquarter without any permission. Therefore, these two charges stand proved. The charge of using abusive language against the higher officials is also borne out from the evidence on record. 10. In a uniformed service, discipline has to be maintained. In case there is lack of discipline in these services there will be a chaos. The facts clearly indicate that the petitioner got agitated and fired three rounds in the air and abused his subordinate officers. After suspension he admittedly left the headquarter without permission. This shows total lack of discipline and complete insubordination. Such a person cannot be retained in the armed forces. The contention of Shri Vipinder Roach, learned counsel for the petitioner is that the petitioner got agitated because he was falsely implicated cannot be accepted because no such suggestion was put to any of the witnesses including Shri H.K.Gupta and such defence has been taken for the first time only in the defence statement filed by him. It is clearly an after thought. Therefore, I find 9 no merit in the petition, which is accordingly rejected. CWP No. 2367 of 2009 of Shri Chuni Lal. 11. The case of Chuni Lal is totally different from that of Rajesh Chauhan. Even as per the statement of the Assistant Commandant when he rebuked Chuni Lal and Rajesh Chauhan, Chuni Lal did not protest and even accepted the proposed punishment of seven days pack drill without any protest. The first charge against Shri Chuni Lal was that he had consumed liquor in the village. The Inquiry Officer held that this charge was not proved. The disciplinary authority differed with the finding of the Inquiry Officer but did not give any opportunity to the petitioner before differing with the report of the Inquiry Officer. Even otherwise, I find that the report of the Inquiry Officer is absolutely correct. He has come to the conclusion that there is virtually no evidence worth the name to show that Chuni Lal had consumed liquor in the village. No medical examination of the delinquent official was carried out to find out whether he had consumed liquor or not. Surprisingly, in the case of Rajesh Chauhan the same charges were held to be not proved though the allegation is that Chuni Lal and Rajesh Chauhan 10 were drinking together. In the case of Rajesh Chauhan on identical grounds the disciplinary authority did not differ with the report of the Inquiry Officer but in the case of Chuni Lal he differed from the same. It is obvious that since there was no other charge against Chuni Lal the disciplinary authority just wanted to make sure that Chuni Lal is found guilty on one pretext or the other. 12. As far as Charge No. 2 relating to the molestation of a minor girl is concerned, in my opinion, if this charge is proved then no leniency can be shown. However, I find that this is a case of no evidence whatsoever. The english version of the complaint given by the girl’s father reads as follows:- “Sir, With humble submission it is intimated that my daughter went to give vegetable at 1130 hrs. to other house. A small girl was also with my daughter. A constable held the girl’s hand and told her to accompany him to Ashram. The girl refused and ran away. Then the constable fled away to camp. I request you to forgive him for the first time.” 13. A perusal of this complaint reveals that when the daughter of the complainant alongwith another small girl were in the Bazar one constable held her hand and asked the girl to accompany him to the Ashram. The girl refused and ran away and then the 11 constable fled away to the camp. He also requested that the constable may be forgiven. It is obvious that the father was not present at the spot. He could not identify the constables. There were three constables, Rajesh Chauhan, Chuni Lal and Ramesh Pandey. The statement of the girl or the daughter of the complainant was not recorded. Neither the statement of the complainant was recorded. Chuni Lal has been found guilty of charge No.2 only on the statements of various officials who stated that the complainant told them that Chuni Lal had held the hand of the girl. However, this is not borne out from the written complaint or from any other material on record. Therefore, this is a case of no evidence whatsoever and none of the charges against Chuni Lal were proved and it is apparent that he has been dismissed from service for extraneous reasons. 14. In view of the above discussion the petition filed by Chuni Lal has to be allowed and the petition filed by Rajesh Chauhan is dismissed. 15. CWP No. 2367 of 2009 filed by Shri Chuni Lal is allowed. The inquiry report in so far as it found Chuni Lal guilty of charge No.2 is set-aside. Consequently, the order of dismissal dated 17th June, 2007 is also quashed and set aside and lastly the 12 review order passed pursuant to the orders of this Court on 19.08.2008 is set-aside. The petitioner shall be deemed to be in service throughout and shall be entitled to all consequential benefits. He is directed to be reinstated in service on or before 30th November, 2011 and all monetary benefits shall be paid to him latest by 31st December, 2011 failing which the respondents shall be liable to pay interest @ 12% per annum on the monetary benefits so payable from the date of termination of the service of the petitioner. 15th September, 2011. ( Deepak Gupta ) ™ Judge.