Raghubir Singh, Ex.Ad-Hoc ... vs Chief Justice Of Delhi High Court & ...
2008 Latest Caselaw 1822 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        WP (C) No.2586/1987


                                             Reserved on: 03.10.2008
                                        Date of decision :16.10.2008


RAGHUBIR SINGH, EX.AD-HOC ASSISTANT          ...PETITIONER
                    Through: Ms. Jyoti Singh and Mr. Ankur
                             Chibber, Advocates


                                  Versus


CHIEF JUSTICE OF DELHI HIGH COURT & ORS.     ...RESPONDENTS
                     Through: Mr.Viraj R.Datar, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?            No

2.        To be referred to Reporter or not?             No

3.        Whether the judgment should be
          reported in the Digest?                        No

SANJAY KISHAN KAUL, J.

1. The petitioner, an erstwhile employee of the High Court

working as an adhoc assistant, is aggrieved by the

departmental proceedings initiated against him which

have culminated in two punishments. The first

punishment is imposed by the Order dated 23.08.1986

withholding three time scale increments with cumulative

effect from 18.08.1986 and the Order dated 19.08.1986

imposing punishment of dismissal from service.

2. The petitioner started his career as an LDC on

06.02.1968 and earned his promotion as an adhoc

Assistant on 17.12.1979. A complaint was made by one

Sh. V.B.Aggarwal, the then Assistant, on 12.01.1984

alleging that the petitioner had exhorted Mr. Laxman

Dass Kondal to physically assault Mr. Aggarwal which

resulted in the said assault and in view of the complaint,

the then Chief Justice suspended both Sh. Raghubir Singh

and Mr.Laxman Dass Kondal and directed a regular

inquiry. On the same date, a complaint was also made

by Sh. D.S.Thakur and Sh.S.S.Kohli against the petitioner

and Sh. Laxman Dass Kondal while on the other hand

the petitioner made a complaint against Sh.V.B.Aggarwal

of misbehavior. The memorandum dated 16.01.1984

was issued forwarding the Memorandum, Articles of

Charge, Statement of Imputation, List of Documents and

List of Witnesses. Article of Charges reads as under:

"1. That the said Sh. Raghubir Singh while functioning as a permanent LDC/Ad hoc Assistant left his branch (Criminal Branch) and went unauthorizedly to the Accounts Branch accompanied by Sh.Laxman Dass Kondal, temporary Peon on 12.01.1984 at 11.55 AM.

2. That he so exhorted Sh. Laxman Dass Kondal that Sh. Laxman Dass Kondal physically assaulted Sh.V.B.Aggarwal, Assistant in the Accounts Branch on 12.01.1984 at 11.55 A.M. causing the said Shri.V.B.Aggarwal injury."

3. Sh.Dinesh Dayal then a member of the Delhi Judicial

Service was appointed as an Inquiry Officer and

Sh.R.C.Nangia, Deputy Registrar, as a Presenting Officer

on 17.10.1984 and the Chief Justice directed that the

disciplinary action against both the officials would be in a

common proceeding with a procedure prescribed in Rule

14, CCS(CCA) Rules, 1965 {'the said Rules' for short} to

be followed. On the inquiry being concluded, the

petitioner was found not guilty of the first charge but

guilty of the second charge. The petitioner was

consequently issued a Memorandum dated 25.07.1985

proposing to impose the penalty of withholding of three-

time scale increments and giving an opportunity to the

petitioner to respond to the same. The petitioner sent

replies dated 20.08.1985 and 24.09.1985 and ultimately

the Chief Justice by an Order dated 23.08.1986, after

considering the representation, imposed the penalty of

withholding of three increments with cumulative effect

with effect from 18.08.1986.

4. The more serious charge arose on account of the

Memorandum issued on 14.05.1984 arising from the

strike by certain officials on 16.01.1984. The charges

were as under:

" 1. That the said Sh.Raghubir Singh while working as an Adhoc Assistant hatched a conspiracy on 13th and 14th January, 1984 along with S/Shri.Laxman Dass, Baldev Raj, Hari Kishan, Mohd. Salim, Radhey Sham and certain other officials to strike and incite others to go on strike from 16th January, 1984.

2. That the said Sh.Raghubir Singh along with S/Shri.Laxman Dass,Baldev Raj, Hari Kishan, Mohd. Salim, Radhey Sham and certain other officials prevented the Frashes, Chowkidars and Sweepers from entering the High Court premises on 16th January, 1984 with the result that the Court could not start functioning before 12 noon."

5. The Presiding Officer and the Presenting Officer were the

same. It may also be noticed that the entry of the

petitioner and five others was banned in the High Court

from 31.01.1984 in view of the nature of charges unless

summoned and without the specific permission of the

Registrar. This was followed up by another Memorandum

dated 10.02.1984 in view of a request made by the

petitioner whereby the petitioner was permitted to take a

legal advice from anyone he likes but not in the High

Court premises and permitting him to attend the hearing

of the cases on the dates fixed. An order was also

passed on 27.09.1984 directing that a common

proceeding would be taken out against the petitioner and

10 other persons and the procedure under Rule 14 of the

said Rules would be followed.

6. The petitioner sought permission to have services of an

advocate instead of a government servant by a letter

dated 08.10.1984 since the Presenting Officer was a

legally qualified person and well conversant with law.

This request of the petitioner was, however, rejected by

an Order dated 15.10.1984 with the direction that the

petitioner can take assistance from any official in the

High Court who is in service or has even retired. The

reason for rejection of the request of the petitioner was

stated to be in accordance with Rule 14(8)(a) and (b) of

the said Rules, which read as under:

"8.(a) The government servant may take the assistance of any other government servant to prevent the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or the disciplinary authority, having regard to the circumstances of the case, so permits.

Note: The government servant shall not take the assistance of any other government servant who has two pending disciplinary cases on hand in which he has to give assistance.

(b) The government servant may also take the assistance of a retired government servant to present the case on his behalf, subject to such conditions as may be specified by the President from time to time by general or special order in this behalf."

7. It was the opinion of the Chief Justice that though the

Deputy Registrar may be holding a legal degree, he was

not a legal practitioner. The petitioner on 19.11.1984

requested the Inquiry Officer for legal assistance from

Sh.P.P.Kalra, Assistant, whose services were made

available to the petitioner. The inquiry proceeded and

the petitioner was found guilty of the first charge by the

Inquiry Officer in the report dated 10.06.1985. These

proceedings culminated in an Order dated 19.08.1988 of

the Chief Justice terminating the services of the

petitioner.

8. Learned counsel for the petitioner during the course of

arguments confined her submissions, as recorded in the

Order dated 18.09.2008, to two aspects:

i) The petitioner having sought assistance of a Legal

Assistant in the form of a qualified lawyer on

account of the fact that the Presenting Office was a

law graduate and the same being declined, there

was lack of adequate opportunity to the petitioner

to defend himself; and

ii) The punishment imposed on the petitioner was

disproportionate to the alleged misconduct.

9. Learned counsel for the petitioner referred to the fact

that Sh.R.C.Nangia, Deputy Registrar, who was the

Presenting Officer had a LLB degree. Not only that in the

capacity of a Deputy Registrar, he was performing

certain judicial functions. It was thus submitted that a

restrictive meaning to the relevant rule as given

aforesaid cannot be accepted that the Presenting Officer

was not a legal practitioner. Learned counsel for the

petitioner referred to the judgment of the Supreme Court

in Board of Trustees of the Port of Bombay v. Dilip Kumar

Raghavendrath Nadkarni and Ors; AIR 1983 Supreme

Court 109. The employer in the said case was

represented by a legally trained officer in inquiry and the

request of the employee to be represented by a lawyer

was refused. It was held that there was denial of a

reasonable opportunity of hearing to the employee. To

the effect are the observations made in

C.L.Subramaniam v. Collector of Customs, Cochin; (1972)

3 SCR 485.

10. The legal position which emerges from the aforesaid

judgment is not in doubt that if a legal practitioner

appears for the Department, the charged officer must

also be permitted to avail of the service of a legal

practitioner, if so desired, so that there is no disparity in

the competence of the persons prosecuting and

defending the case. The peculiar fact of the present

case is that the Presenting Officer was not a legal

practitioner though he had the legal qualifications and

was performing certain judicial functions. It could not

really thus be said that he was a novice in law. This

would require the petitioner to be given an adequate

opportunity through a proper and competent person.

The orders passed by the competent authority, however,

did give the petitioner an opportunity to engage the

services of anyone from the High Court including a

retired personnel. It is not in question that there were a

number of people with law qualifications who may be in

service or who may have retired at the relevant period of

time and the petitioner had full opportunity to engage a

person with law background to be at parity with the

Presenting Officer. The petitioner chose to have the

assistance of Sh.P.P.Kalra and thus it cannot be said that

there was lack of adequate opportunity to the petitioner.

The petitioner exercised the option for Sh.P.P.Kalra as

against any other person in the High Court serving or

retired having the legal qualifications.

11. The second aspect urged is on the proportionality of

sentence. There is no doubt that the petitioner has had

a career of almost 18 years when he was dismissed from

service. The petitioner had not even served the

minimum 20 years of pensionable service and thus even

conversion of the sentence into one of compulsory

retirement would not benefit the petitioner. Learned

counsel for the petitioner did seek to contend by relying

upon the judgment of a Division Bench of this Court in

Sube Singh (Ex.Sepoy)v. UOI & Ors; 140 (2007) DLT 26

that the course of action of deeming the petitioner to be

in service without pay and allowances could be followed

and thus the petitioner would earn his pensionable

service. This aspect was re-examined by the present

Chief Justice on the matter being referred by this Court

but he has not found it feasible to either do so or to grant

any kind of pensionable benefits taking a sympathetic

view of the matter in view of the fact that the offences

for which the petitioner was charged are serious.

12. In B.C.Chaturvedi v. Union of India (1995) 6 SCC 749, it

was observed as under:

"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The 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 then litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."

The abovementioned judgment of the Supreme Court

explains the scope of judicial review of an Order of

punishment passed by the disciplinary authority. The

scope of interference on the judicial side is more

restrictive than on the administrative side as only if the

issue of dis-proportionality of sentence stands the test of

the parameters of judicial scrutiny would an interference

be called for. If we examine the matter within the

scope, there could be no doubt that the offence charged

is extremely serious. The petitioner has been found to be

guilty of conspiracy to cause the staff of the High Court

to go on strike resulting in stoppage of work till 12 noon.

The stream of justice itself was affected by such action of

the petitioner who was found to be the kingpin in the

whole episode. The functioning of the Court cannot be

brought to a standstill in this manner and thus

undoubtedly the offence is extremely serious. Taking

into consideration the seriousness of the offence, one

cannot say that the sentence is so disproportionate to

the offence as to shock the conscience of the Court. We,

however, make it clear that the present order would not

come in the way of the competent authority, if it so

chooses, to entertain the representation of the petitioner

for reduction of sentence.

13. In view of the aforesaid reasons, we find no ground to

interfere under Article 226 of the Constitution of India.

14. Dismissed.

SANJAY KISHAN KAUL, J.

OCTOBER 16, 2008                                    MOOL CHAND GARG, J.
dm