Ram Janam Singh vs Govt. Of Nct Of Delhi And Ors.
2006 Latest Caselaw 2042 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner Ram Janam Singh an Inspector with the Delhi Police has filed the present writ petition seeking quashing of order of punishment dated 21st March, 2000, Appellate order dated 28th April, 2003 and orders dated 24th November, 2004 and 4th March, 2005 passed by the Central Administrative Tribunal, Principal Bench, New Delhi. By the impugned order of punishment, petitioner was awarded forfeiture of two years approved service permanently for a period of two years entailing reduction in pay by stages from Rs.8,700/- per month to Rs. 8,300/- per month for a period of two years from 2nd March, 2000. It was further directed that the petitioner would not earn increment of pay during the period of reduction and on expiry of the period the reduction will have the effect of postponing his future increments of pay. The impugned order also imposed punishment on Head Constable Jagbir Singh and Constable Surinder Singh Bhaduria which is not the subject matter of the present writ petition. The petitioner had preferred an appeal before the Appellate Authority which was dismissed vide order dated 28th April, 2003. Thereafter, the petitioner preferred an O.A. No. 1162/2004 challenging the impugned order of punishment and the Appellate order dated 28th April, 2003. There was no appearance on behalf of the petitioner on 8th July, 2004, 25th August, 2004 and 24th September, 2004.

2. In these circumstances, the O.A. came to be dismissed for non-prosecution on 24th November, 2004. The petitioner moved M.A. No. 47/2005 before the Tribunal for restoration of the O.A. dismissed in default for non-prosecution. By a detailed speaking order, the Tribunal vide order dated 4th March, 2005 dismissed the application for restoration. The Tribunal while dismissing this application for restoration noticed the conflicting and contradictory stands that had been taken by the petitioner. It noticed that the petitioner, apart from the M.A. 47/2005 in question, had filed another application dated 23rd December, 2004 through his previous Advocate. The said application bore the date 9th December, 2004. Petitioner withdrew this application. Curiously petitioner had taken the position in the application under consideration i.e M.A.47/2005 before the Tribunal on 24rd December, 2004 that he came to know about the dismissal of the O.A. on 14th December, 2004. It is pertinent to notice here that the application for restoration which was filed on 23th December, 2004 was withdrawn due to objection raised by the registry.

3. In these circumstances, the Tribunal noticed that the plea that he came to know of dismissal of the O.A. on 14th December, 2005 was palpably false since the application which was withdrawn bore the date 9th December, 2005. This apart, the Tribunal came to the conclusion that no grounds had been made out explaining or disclosing sufficient cause for the non-appearance of the petitioner on the various dates. Petitioner had not lodged any complaint with Bar Council or taken any action against his counsel for alleged dereliction of duty.

4. We have heard learned Counsel for the petitioner in support of the writ petition. Learned Counsel for the petitioner submitted that in the interest of substantial justice as he had a good case on merits, the petitioner ought to be heard and he should not be made to suffer for the fault of his counsel.

5. A litigant after engaging a counsel is expected to diligently pursue his case. In the present case, the Tribunal has found that the petitioner himself hardly pursued the case and his conduct does not inspire any credibility.

6. Apart from the fact that the impugned order of Tribunal cannot be faulted with in dismissing the O.A. for non-prosecution, we are unable to agree with the petitioner that there was no misconduct committed by the petitioner and he could not be held liable for the acts of his subordinates. In the departmental proceedings, the allegation that two Constables working under the petitioner, on the complaint of his sister-in-law, had dispossessed one Jagdish from his shop by removal of his goods and put the lock of his sister-in-law, was substantiated. The above was done without registering any DD entry or case by the petitioner at the police station. The petitioner and others were held guilty of the charges of misconduct in the departmental inquiry and findings of which were upheld by the Appellate Authority.

7. It is not necessary for us to dwell into the merits of the matter save to notice a patent infirmity in the punishment imposed by the impugned order, which even though the O.A. has been dismissed, needs to be rectified in the exercise of the writ jurisdiction, without disturbing the finding of misconduct.

8. We find that while imposing punishment, the Disciplinary Authority passed the following penalty order for the petitioner and two other Constables:

Therefore, I award them the punishment of forfeiture of two years approved service permanently for a period of two years entailing reduction in the pay of Inspector Ram Janam Singh No. D-1/291, HC Jagbir Singh, 187/NE and Constable Surinder Singh Badhuria No.1423/NE by stages from Rs.8700/- p.m. to Rs. 8300/- p.m., Rs.4475/- p.m. to Rs.4305/-p.m. and Rs.3875/- p.m. to Rs.3725/- p.m. respectively for a period of two years with effect from the date of issue of this order. They will not earn increment of pay during the period of reduction and on expiry of this period the reduction will have the effect of postponing their future increment of pay

9. The punishment in so far as it stipulates that it forfeits service of 2 years with reduction in salary would be in order. However, the direction that during the period of reduction no increment would be earned and the punishment would have the effect of postponing future increments of pay, runs counter to the provision of Rule 8(d)(ii) of the Delhi Police (Punishment and Appeal) Rules, 1980. This legal position is now fairly well settled. Reference is invited to the decision of the Division Bench of this Court in Shakti Singh v. Union of India and Ors. reported at 2002 (VIII) AD (Delhi) 529 and decision of the Division Bench in Harpal Singh v. Union of India in WP(C) No.11040/05 to which one of us, (Manmohan Sarin, J) is a party.

10. This Court in the exercise of its powers under writ jurisdiction can correct such a mistake itself to shorten the litigation, rather than to remand the case to the Tribunal. Reference may usefully be made to B.C. Chaturvedi v. Union of India and Ors. . The Supreme Court observed that High Court /Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. The present case is one where the punishment imposed suffers from a patent error, i.e. being contrary to statutory Rules, thus is amenable to correction in writ jurisdiction.

11. As already observed, the direction that during the period of reduction no increment would be earned and the punishment would have the effect of postponing future increments of pay runs counter to the provision of Rule 8(d)(ii) of the Delhi Police (Punishment and Appeal) Rules, 1980. Accordingly, the punishment awarded by the Disciplinary Authority in the case of petitioner shall stand modified to punishment of forfeiture of two years approved service permanently for a period of two years entailing reduction in the pay of Inspector Ram Janam Singh No.D-1/291 by stages from Rs.8700/- pm to Rs.8300/- pm for a period of two years with effect from the date of issue of the order.

Writ petition is dismissed save for modification in the order of punishment, as above.