Nathu Lal, Inspector vs Director General, Central ...
1998 Latest Caselaw 898 Del

JUDGMENT

K. Ramamoorthy, J.

1. The petitioner was working as Inspector (Executive) in the Central Industrial Security Force. His case was considered for being promoted to the post of Assistant Commandant and he was recommended by the DPC which was held in October, 1994. Pursuant to the DPC, he was promoted. But that was cancelled on the basis that the petitioner was fined by the Metropolitan Magistrate to the tune of Rs. 40/- in a petty offence and the petitioner was given a show-cause notice and he was imposed a punishment of stoppage of two increments.

2. Subsequently, on the 21st of July, the petitioner was promoted to the post of Assistant Commandant (Exe) w.e.f. 24.11.1996. The order dated the 21st of July, 1997 reads as under :

"The President is pleased to appoint Shri Nathu Lal, Inspector (Exe) on promotion notionally to the rank of Asstt. Commandant (Exe) on regular basis with effect from 24.11.96. However, he will draw pay and allowances of the post of Assistant Commandant(Exe) from the date of assumption of charge of that post. He assumed the charge of the post of Asstt. Commandant(Exe) at CISF 12th Res.Bn.Farakha(WB) with effect from 27.6.97 (Forenoon).

2. The notional date of promotion in the rank of Assistant Commandant(Exe) would only safeguard his seniority and he will not be entitled few arrears of pay and allowances of the post of Assistant Commandant(Exe) from 24.11.96 to 26.6.97."

3. The petitioner has challenged the order dated the 23rd of January, 1995 imposing the punishment of with-holding of increments for two years without cumulative effect, and the petitioner seeks a writ of mandamus directing the respondents to give him promotion to the post of Assistant Commandant as per the earlier order of promotion, which was kept in abeyance and cancelled.

4. The case of the respondents is that the SHO, Lodhi Road Police Station informed the CISF Headquarters at New Delhi about the imposition of fine, by the Metropolitan Magistrate, by his letter dated the 1st of September, 1993. On the basis of letter of the SHO, Lodhi Road Police Station, the petitioner was given a show-cause notice dated the 28th of November, 1994. The petitioner sent his reply on the 8th of December, 1994. The Deputy Inspector General heard the petitioner on the 16th of January, 1995 and passed the order on the 23rd of January, 1995 imposing the punishment stated above. In view of the punishment, the order of promotion dated the 17th of November, 1994 was cancelled on the 2nd /3rd of February, 1995. After the two years period, the petitioner was promoted by order dated the 21st of July, 1997, which is already extracted. According to the respondents, once there has been a conviction, the department has to take note of it and proceed against the concerned official in accordance with rules. Therefore, the petitioner cannot challenge the order cancelling the promotion or the order imposing the punishment.

5. Mr. N. Kinra, the learned Counsel for the petitioner, submitted that respondents had no jurisdiction to issue the show-cause notice on the basis of imposition of penalty by the Magistrate without giving any specific finding on the gu i 11 of the petitioner and there was no moral turpitude involved. The petitioner had fully explained the circumstances under which he had to pay the fine and he was not guilty of any. offence. According to the learned Counsel for the petitioner, Mr. N. Kinra, unless there was a trial by a Criminal Court and finding of guilt, the respondents cannot seek to take disciplinary action against the petitioner.

6. The learned Counsel for the petitioner, Mr. N. Kinra, relied upon the judgment of the Supreme Court in "Pawan Kumar v. State of Haryana and Anr.", . The learned Counsel submitted that the Disciplinary Authority had assumed that once there is an imposition of penalty by a Metropolitan Magistrate that the petitioner had been found guilty of the offence alleged, and therefore, the respondents were justified in taking disciplinary action against the petitioner. The learned Counsel for the petitioner, Mr. N. Kinra, submitted that the respondents had taken more than a year from the receipt of information in taking action against the petitioner. The learned Counsel for the petitioner submitted that the DPC had recommended his case in October, 1994 whereas the information about the imposition of fine had reached the department on the 1st of September, 1993. Therefore, the petitioner should have been given promotion as per the recommendation of the DPC held in October, 1994.

7. The learned Counsel for respondents, Ms. Rekha Palli, submitted that once the fact that there was an imposition of fine by a Metropolitan Magistrate as against the petitioner is accepted, the petitioner cannot be heard to contend that there was no conviction in the eyes of la wand there was no moral turpitude involved and the respondents should not shut their eyes to the order passed by the Metropolitan Magistrate.

8. On the first of September, 1993, the Metropolitan Magistrate, Patiala House, imposed a fine of Rs. 40/- on the petitioner. On the same day, the SHO, Lodhi Road Police Station, wrote to the CISF Headquarters, as I noticed above, about the imposition of fine. On the 28th of November, 1994, the show-cause notice was issued, which is in the following terms:

"Whereas, it has been reported that on 30.8.94 Insp Exe No. 751040027 N.L. Azad of C1SF Unit, BALCO, Korba (presently posted to CISF Unit, BIOP DEP-14) was arrested by Lodhi Road Police for a crime under Sections 91/97, Delhi Police Act, in that he had tried to molest a minor girl aged 10 years, daughter of Sh. A.L. Das, R/o Pragati Vihar Hostel, New Delhi. The case was presented in the Court of Shri Sukh Dev Singh, Metropolitan Magistrate, Patiala House, New Delhi on 1st Sept., 93. The Hon'ble Court has disposed of the case in summary trial and imposed a fine of Rs. 40/- on Shri Azad. As per Court's Order, he deposited the amount in the Court on the same day.

2. Whereas, in accordance with the provisions of CCS (Conduct) Rules, 1964. Inspr. Azad was also duty bound to intimate the Department about his arrest and prosecution immediately, but he failed to do so. It was an intimation from SHO, Lodhi Road Police Station, who has informed the CISF HQrs. at New Delhi about the incident vide his letter dated 1.9.93.

3. And Whereas, the undersigned has carefully considered the record of the case an'd the conduct of Insp Exe N.L.Azad which has led his prosecution and conviction by the Court, as aforesaid, and is of the opinion that in the circumstances of the case the penalty of with-holding of increment for 2 years without cumulative effect is warranted to be imposed on him. 11 is, therefore, proposed to impose the said penalty on him under Rule 37(a) of CISF Rule, 1969.

4. Now, Therefore, No. 751040027 Insp Exe N.L. Azad is called upon to make a representation against the above proposed penalty, if any. The representation against the proposed penalty should be made in writing and submitted so as to reach the undersigned within 15 days from the receipt of this notice by Insp / Exe N.L. Azad. If no representation is received within the stipulated period, it would be presumed that he has nothing to say against the above proposal and orders will be passed by the undersigned accordingly."

9. The petitioner sent his reply on the 28th of December, 1994 and the facts stated by him are relevant and, therefore, it is extracted below :

"In reply to your above show-cause notice, I may submit that I was working in North Zone Hqrs. and CISF HQrs., New Delhi in Crime & Int. Wing w.e.f. 18.6.1987 to 23.8.1991. During this period, I was staying with family at Flat No. 1446, Lodhi Road Complex (Near Pragati Vihar Hostel) and was taking milk regularly from milk booth (DMS) which is situated in the middle of Lodhi Road Complex and Pragati Vihar Hostel. In the year 1991, a quarrel had happened between me and Smt. & Shri I.P. Singh, who were the residents of Pragati Vihar Hostel for standing on queue for taking milk. Shri Bodh Prakash, HC of CISF was also present there during this time (statement of above HC is enclosed).

After my tenure was over in New Delhi, I was posted to NTPC Korba and my wife was staying at Lodhi Road Complex, New Delhi. Most unfortunately, I had Neralgia Paresthetica and was referred to Safdarjung Hospital, New Delhi (Refer slip and medical papers enclosed). I was staying with family and getting medical treatment at Safdarjung Hospital, New Delhi. On 30.8.1993 at about 18.30 hrs. I was coming to my residence and taking the advantage of my ill-health, Shri I.P. Singh along with 4 to 5 personnel assaulted and misbehaved with me and they only shouted and created commotion. During that time I was alone. Delhi Police who was on patrolling in that area reached the place of occurrence immediately. All the 5 persons made allegation against me and all of us visited the Lodhi Colony Police Station. Smt. I.P. Singh made a complaint that I have teased here daughter (Lark ion Ko Cherna Haa). The daughter of Shri I.P. Singh is of hardly 5 to 6 years old. I gave my introduction to the police and tried to explain the truth, but police did not listen to me and it appeared to me that police is influenced more by Shri I.P. Singh and his associates. After the arrival of SHO, I explained the position and he immediately allowed to go after signing the P.R. Bond. This was completed by 30th Night and 31st August was holiday.

On 1.9.1993, I appeared before the Magistrate and within a span of one minute time, the Magistrate told me that I am fined Rs. 40/- and after paying the fine, you can go. I tried to explain the position before the Magistrate, but he was not prepared to listen to me. He again told me that case has been finalised, you can go. I Had Mergin Faresthetica and was physically handicapped. I had gone to Delhi to get treatment and to bring my wife to Korba to look after me. I was suffering from mental agony. I had neither money nor physical power nor influence to appear before higher Court, but I tried to get rid of the trouble for my treatment. During that juncture of my life, peace of mind was basic requirement. I paid the fine and came out.

From the above position it is clear that I have not at all tried to molest a minor girl aged 10 years, daughter of Shri A.L.Das as alleged in the show-cause notice. The complaint lodged against me in the Lodhi Road Police Station will speak the truth. In fact, I was trapped in a net laid down by Smt. & Shri I.P. Singh raising an issue against me due to personal enmity with me. I was also physically assaulted by the resident of the Pragati Vihar Hostel believing the complaint raised by Smt. & Shri I.P. Singh. Since most of the residents of that hostel are employed in higher ranks in Central Government service, police favoured them taking me in custody. I have been convicted by Court without giving me an opportunity to defend myself. The Court has also passed an order of conviction symmetrically without giving the details and conclusion as to how I have been found guilty. I had to admit the conviction to get relief of mental agony which does not mean that I have committed the crime. Every citizen of India will prefer to pay Rs. 40/- as fine to avoid Court and notice harassment. Therefore, from such a Court order, the department cannot assess my offence to deal me further departmentally because, police did not submit an evidence report to the Court on the basis of the complaint submitted to them. Therefore, if I am punished again by the department, I will be denied the natural justice, because I was not punished on a proven offence, therefore, such an offence should not be taken as a cogent against me. On 22.10.1993, I reported back at Korba and gave an application addressed to Dy. Commandant, CISF KSTPP Korba on 25.10.1993 (photocopy enclosed). I also personally explained him everything and he was satisfied and told that 1st your application with me and in appropriate time in case of any enquiry, action will be taken. After some time, I understood that some query came from CISF Hqrs., New Delhi and my application was forwarded to Force Hqrs., New Delhi. Earlier to informing to DC CISF KSIPP Korba, the case was very well brought to the knowledge of Shri S.C. Mehta, the then DG, CISF at his residence through Shri K.S. Khati, IO II, IB on 4.9.93 since I was taking treatment at Hospital.

The principle of Article 20(2) of the Constitution is clear that "a man must not be put twice in peril for the same offence". The Court summary judgment is not sufficient to enable the Court to come to the conclusion as to whether good and sufficient reasons exist within the prescribed rule for imposing the another punishment.

Sir, my promotion to the rank of Assistant Commandant has already been considered by the DPC. Accordingly, Force Directorate has already released my promotion before issuing me the instant show-cause notice. Since no disciplinary proceeding was contemplated against me on the day of release of my promotion, I may kindly be relieved on promotion.

Lastly, I may kindly be submitted that I belong to SC community and hails from a very poor farmer family. I am also suffering from mental agony for not having a child after a couple of years of marriage and dispute of my agricultural land. The with-holding of my promotional this stage for imposition of a punishment will add my mental agony to an unbearable stage. Therefore, it is still decided that I shall be awarded a punishment, I may kindly be permitted for your interview to explain my defense in person."

10. On the 23rd of January, 1995, the order imposing the penalty had been passed. The order reads as under:

"Whereas No. 751040027 Inspr(Exe) N.L. Azad of CISF Unit, SIDP Dep. 14 has been convicted on a criminal charge, to wit, under Sections 91/97 of Delhi Police Act on the complaint of a resident of Pragati Vihar.

And Whereas the conduct of No. 751040027 Inspr (Exe) N.L.Azad which led to his conviction as aforesaid was considered by the undersigned and it was provisionally decided to impose the penalty of "withholding of increment for 2 years without cumulative effect".

"And Whereas No. 751040027 Inspr (Exe) N.L. Azad was issued a show-cause notice vide No. V-15014/4/L&R/94/3451 dated 28.11.94 giving him an opportunity to make a representation against the proposed penalty. Inspr (Exe) Azad submitted a representation on 8.12.94 in which he has pleased that in the year 1991 he had a quarrel with Smt. and Shri Y.P. Singh implicated him on a false charge of teasing a minor girl. Lodhi Road Police took him into custody on the basis of complaint by the residents of that area and produced him before the Metropolitan Magistrate on 1.9.1993. The Magistrate did not offer him a chance to explain his case and finalised it in a summary trial fining him Rs. 40/-. He has also stated that he paid the fine of Rs. 40/- to escape harassment and therefore did not contest it. He has pleaded that from the Court order the department cannot assess the gravity of his offence accurately. If he is further punished by the department it will tantamount to denial of natural justice.

His representation has been carefully considered by the undersigned and it is found that there are no convincing grounds to alter the proposal of punishment. The judgment passed by the Metropolitan Magistrate clearly shows that the complaint against No. 751040027 Inspr (Exe) N.L. Azad has been taken cognizance of and for which he has been convicted and fined Rs. 40/- by the Metropolitan Magistrate. The pleas made by Inspr (Exe) N.L.Azad are irrelevant as the police case against him originated from a complaint to the police by Shri N.K. Jain, Member Secretary of Pragati Vihar Hostel Complex based on a report made to him by Shri A.L. Das, a Civilian Officer, residing at Pragati Vihar, regarding the misdemeanour of Inspr. (Exe) Azad with his minor daughter in a lift of the building.

Now Therefore, in exercise of the powers conferred by Rule 37(a) of CISF Rules, 1969, the undersigned hereby imposed the penalty of "with-holding of increment for 2 years without cumulative effect" on No. 751040027 Inspr(Exe) N.L.Azad.

As requested by the individual he was heard in person by the undersigned on 16.1.95. He failed to bring any thing new points to consider in his favour.

A copy of this order to be supplied to No. 751040027 Inspr(Exe) N.L.Azad free of cost."

11. The Deputy Inspector General, who heard the petitioner on the 16th of November, 1995, had not even noted what was stated by the petitioner before him. While imposing the punishment, the Deputy Inspector General was bound to give the reasons for imposing the punishment and mention the details of the representation made by the petitioner. The petitioner had mentioned in the explanation that there was some sort of misunderstanding between the petitioner and the person who made the complaint and a false case had been fabricated against the petitioner, and having regard to the circumstances, the Magistrate, without recording any finding, imposed a fine of Rs. 40/-, in a summary trial, treating the matter as a petty one. The Deputy Inspector General in the light of the facts stated by the petitioner in the explanation, should ha vecalled upon the complainant to explain the position to find out whether the petitioner was guilty of any offence. That was not done.

12. The Supreme Court in "Pawan Kumar v. State of Haryana and Anr.", (supra) had to consider a similar si tua tion wherein the appellant before the Supreme Court was dismissed from service. The Supreme Court had observed:

"We had required of the respondents to produce before us the copy of the judgment whereby the appellant was convicted for the offence. As was expected only a copy of the institution/summary register maintained by the Court of the Chief Judicial Magistrate, Bhiwani was placed before us showing that the appellant on 4.6.1980 was imposed a fine of Rs. 20/-. A copy of the treasury challan supporting that the fine paid was deposited by the Chief Judicial Magistrate the same day has also been produced. The copy of the summary register neither discloses the substance of the allegations put to the appellant, nor the words in which the plea of guilt was entered. It is of no significance that the appellant treats himself a convict as he had pleaded guilty. Ex-facie it only shows that the entry concerns FIR No. 231 of 3.6.1980 under Section 294, IPC. Therefrom it is difficult to discern the steps taken in the summary trial proceedings and what had the appellant pleaded to as guilty, whether to the allegations in the FIR or to the provision of the IPC or any other particular? Mere payment of fine of Rs. 20/- does not go to show that the conviction was validly and legally recorded. Assuming that the conviction is not open to challenge at the present juncture, we cannot but deprecate the action of the respondents in having proceeded to adversely certify the character and antecedents of the appellant on the basis of the conviction per se, opining to have involved moral turpitude, without satisfying the tests laid down in the policy decision of the Government. We are rather unhappy to note that all the three Courts below, even when invited to judge the matter in the said perspective, went on to hold that the act/s involved in conviction under Section 294, IPC per se established moral turpitude."

13. In the light of the decision of the Supreme Court, I am satisfied that the order passed by the Deputy Inspector General on the 23rd of January, 1995 cannot at all be sustained. That was perhaps the reason that in spite of receipt of information on 1.9.1998 (sic. 1.9.1993), till 28.11.1994 no action was taken against the petitioner and that was not even brought to the notice of the DPC held in October, 1994. The appellate authority had concurred with the view taken by the Disciplinary Authority and had confirmed the order of the Disciplinary Authority by its letter order 8.6.1995. The petitioner was not found guilty of any moral turpitude and the imposition of Rs. 40/- by the Metropolitan Magistrate without any finding of guilt on the facts after recording evidence cannot, in law, be put against the petitioner. Consequently, the petitioner is entitled to succeed.

14. The writ petition is allowed. The orders dated 23.1.1995 and 8.6.1995 are set aside. The order dated 23.3.1996 passed by the Inspector General of Police on appeal against the order cancelling the promotion made is also set aside. The respondents shall pass appropriate orders modifying the order dated 21.7.1997 giving promotion to the petitioner as per the decision of the DPC held in October, 1994 and as per the order dated 17.11.1994, and grant the petitioner all consequential benefits.

15. There shall be no order as to costs.