Om Parkash vs Chief Justice, High Court Of Delhi
2003 Latest Caselaw 771 Del

JUDGMENT

Pradeep Nandrajog, J.

1. By this judgment CW No. 592/2001 and CW No. 1360/2001 are being disposed of. Though various grounds have been urged in the two writ petitions in support of the relief prayed for, but during arguments, Counsel restricted their arguments only on two issues, namely, (i) petitioners have been visited with penalty without their being any material on record; and (ii) the penalty imposed is excessive and on the principle of proportionality is liable to be set aside.

2. Backdrops of the case leading to the filing of the two writ petitions are that Shri Om Parkash, petitioner in CW No. 592/2001, was working as Orderly in the Court of Mr. Sunil Gaur, Additional District Judge, Delhi, at the relevant time i.e. February, 1996 and the petitioner in CW No. 1360/2001, Shri Radhey Shyam was working as Reader in the Court of the said Judge. File No. RCA. 33/95 titled "Krishan Kumar v. Shiv Nath" was lost during that period. On a report being made by Mr. Sunil Gaur, Additional District Judge, Delhi, a fact finding inquiry was conducted, on the basis of which the petitioners were charge-sheeted. The charges levelled were that they acted with gross negligence which led to the loss of the file in question. An inquiry was conducted by Mr. M.C. Garg, Additional District Judge, Delhi. The finding returned was that both the petitioners were guilty of the charge of negligence. The inquiry report was placed before the Disciplinary Authority, i.e. the District Judge, Delhi, who called upon the petitioners to submit their representation, if any, against the inquiry report and thereafter proceeded to dispose of the matter as the Disciplinary Authority. It was held that the charges stood proved. Shri Radhey Shyam was visited with the penalty of withholding of five grade increments without cumulative effect. Shri Om Parkash was visited with the penalty of reduction of pay by five stages from Rs. 3,475/- to Rs. 3,215/- in the time scale of Rs. 2610-3540 for a period of one year w.e.f. 1.12.1999. It was further ordered that Shri Om Parkash will not earn any increment of pay during the period of reduction and reduction will have the effect of postponing his future increment of pay. The orders of the Disciplinary Authority qua both the petitioners are dated 22,12.1999.

3. Appeals were preferred before the Appellate Authority. Various grounds were urged in the appeals. Both the appeals were dismissed vide order dated 8.11.2000, and the order of penalty imposed by the Disciplinary Authority was confirmed.

4. Petitioner Radhey Shyam is still in service, but the petitioner Om Parkash stood retired on 30.4.2000.

5. We have been shown the record of the inquiry conducted. It is not disputed by the petitioners that the file of RCA No. 33/95 was lost from their custody. It is not disputed by Shri Radhey Shyam that as Reader of the Court, i t was his duty to ensure that the judicial files are protected with care. It is not disputed that the file was lost on 28.2.1996. The case pleaded by Shri Radhey Shyam is that on 28.2.1996, Shri Om Parkash, who was working as Peon, took the files from the almirah of the Ahlamad of the Court and after placing them on the table of the Reader, he was responsible for the loss of the file as he left the Court-room unattended and that when he reached the Court at about 9.50 a.m. he found that the case files of that day had been taken out by the orderly from the almirah and upon checking he found that the file was missing.

6. The case pleaded by Shri Om Parkash is that he came to the Court at about 9.45 a.m. on 28.2.1996. The Court-room of Mr. Sunil Gaur, Additional District Judge, Delhi was open and as usual, he took out the articles such as telephone, pen stand, coat, etc. which was used by the Presiding Officer from the chamber almirah of the Presiding Officer. Thereafter, he opened the almirah of the Reader, the key of which was normally kept in the drawer of the Court-room and he took out three bundles of the case files and kept the same by the side where Reader sits. This he claims was done as per routine. Thereafter, it is alleged by Shri Om Parkash that he took out the cause list from the almirah and went to paste the same outside the Court. At that time, when he was pasting the cause list, Ahlamad of the Court and Shri Radhey Shyam entered the Court. It is stated by Shri Om Parkash that none entered the Court-room except the Ahlamad and the Reader.

7. The two versions aforesaid have been discussed by the Inquiry Officer and his findings are as under:

"It is not possible at this juncture to crystallise the position as to whether the file in question was lost before Shri Om Parkash, Orderly, took out the file from the Almirah or it was lost subsequently after it was taken out from the Almirah. In both the events, the use of key, which was kept in the Court premises itself in unlocked place by the Reader Shri Radhey Shyam would have been instrumental for opening of the lock of the Almirah, where the file was kept. Obviously, if it is the duty of the Reader of keep the file in safe and sound custody, putting the key in a place which is unlocked and is known to every one will certainly be an act of negligence and if this conduct is taken in relation to his official duties, it will amount to misconduct."

8. It has not been disputed by Shri Radhey Shyam that it was his duty to keep the custody of the key and, therefore, it cannot be said that there is no material on record to hold Shri Radhey Shyam guilty. We accordingly reject the submission of Shri Radhey Shyam that he has been visited with penalty without their being any material or evidence on record.

9. Coming to the second contention of Shri Radhey Shyam, the Disciplinary Authority as well as the Appellate Authority have considered the issue as to what penalty should be visited to Shri Radhey Shyam. Both the Authorities have duly considered the fact that due to negligence, judicial record has been lost. The penalty imposed on Shri Radhey Shyam is without cumulative effect that result thereof would be that he would regain his five grade increments after five years. We do not find the penalty imposed upon him as being disproportionate.

10. Coming to the petition of Shri Om Parkash, it is apparent from his case that he took out the files from the almirah and left the same unattended when he proceeded to affix the cause list outside the Court-room. It cannot, therefore, be said that there is no evidence on record to indict Om Parkash and, therefore, the contention of Shri Om Parkash that he has been visited with the penalty without there being any material or evidence on record does not find any merit with us and we have no hesitation in rejecting the said plea raised by him.

11. Adverting to the second plea raised by Shri Om Parkash that the penalty imposed was disproportionate to the gravity of offence, Counsel argued that both the Disciplinary Authority as well as the Appellate Authority have returned categorical findings that primarily it was the duty of the Reader to ensure proper custody of the key of the almirah. It was argued that Shri Om Parkash was Orderly and had to obey the directions issued to him by the Reader. The Reader would have the key in the drawer with instructions to Shri Om Parkash to take out the files. Counsel argued that it was the duty of Shri Radhey Shyam to give the key to Shri Om Parkash to take out the files when Shri Radhey Shyam had reached the Court. It was contended that the Orderly of the Court, Shri Om Parkash was not to have custody of the files with him. Counsel, therefore, argued that negligence of Shri Om Parkash could not be more than that of Shri Radhey Shyam. Therefore, it was argued that the penalty imposed upon Shri Om Parkash, being more than the penalty imposed upon Shri Radhey Shyam, same suffered from the vice of disproportionality.

12. As noted above, the penalty imposed upon Shri Om Parkash was reduction in the pay by five stages in the time scale for a period of one year with further orders that he will not earn any increment of pay during the period of reduction and reduction will have the effect of postponing his future increment of pay.

13. Considering the fact that Shri Om Parkash was the Orderly of the Court and the primary responsibility of keeping custody of the key and the files was that of Shri Radhey Shyam, we are of the opinion that Shri Om Parkash could not be visited with the penalty more than the penalty which was imposed upon Shri Radhey Shyam. We accordingly partially allow the writ petition filed by Shri Om Parkash and modify the penalty imposed upon him to bring it at par with the penalty imposed on Shri Radhey Shyam. It is directed that the impugned orders dated 22.12.1999 passed by the Disciplinary Authority and the order dated 8.11.2000 passed by the Appellate Authority stand modified to the effect that the penalty imposed upon Shri Om Parkash is modified to "withholding of five grade increments without cumulative effect". This bring the penalty inflicted upon Shri Om Parkash at par with the penalty inflicted upon Shri Radhey Shyam.

14. CW No. 1360/2001 is accordingly dismissed. CW No. 592/2001 is partly allowed as indicated in the preceding para.