Rajbir Singh vs Uoi & Ors.
2009 Latest Caselaw 5065 Del

i.17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Decision : December 08, 2009

+                     W.P.(C) 12251/2004

        RAJBIR SINGH                       ..... Petitioner
                  Through:         Mr.H.S.Dahiya, Advocate.

                      versus

        UOI & ORS.                     ..... Respondent
                  Through:         Mr.Satyakam, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?                        No
     3. Whether the judgment should be reported in the Digest?
                                                                  No

PRADEEP NANDRAJOG, J. (ORAL)

1. On 23.12.2000 a charge memo was issued and

served upon the petitioner. The indictment against the

petitioner is in the following words:-

"On 20.10.2000 at about 12:15 hours force member met the Commandant outside of his office without permission and in connection with his leave did not behave properly and did unnecessary arguments, which is gross misconduct and indiscipline."

2. The petitioner submitted his response on

23.12.2000 and in the response to the charge memo brought

out two facts.

3. The first fact brought out was that he went to meet

the Commandant during the rest period of class at 12:15 hours

and thus the part of the indictment that he met the

Commandant outside his office without permission was

incorrect. For, having left during rest period, the question of

taking any permission from anybody did not arise.

4. With respect to the indictment of not behaving

properly and indulging in unnecessary arguments with the

Commandant, the petitioner denied the same and stated that

he was constrained to meet the Commandant on account of

having received information that his wife was seriously ill and

the petitioner wanted to obtain leave from the Commandant.

The petitioner pointed out that since the Commandant was not

inclined to sanction leave he requested him to pass necessary

orders on his leave application so that if the leave was

rejected, he could approach the senior officer. With reference

to the latter part of the charge of not behaving properly with

the Commandant and engaging with the Commandant in

unnecessary arguments, the petitioner drew attention to an

entry at serial No.312 in the General Diary as per which it was

recorded that at 12:15 hours the petitioner had visited the

office of the Commandant. The petitioner pointed out that

General Diary entry was entered as per information given by

the Commandant and the same did not record that the

petitioner did not behave properly with the Commandant or

engaged in unnecessary arguments. Thus the petitioner relied

upon a document prepared contemporaneously which did not

record any verbal dialogue between the petitioner and the

Commandant.

5. The Competent Authority held that the petitioner

had not been able to make out a defence. Noting that the

petitioner admitted having met the Commandant in the

verandah outside the office of the Commandant, it was held

that it is apparent that he had met the Commandant. With

respect to the dialogue which the petitioner had with the

Commandant, it stands recorded that being excited the

petitioner was not speaking properly. So recording, conclusion

drawn is that the petitioner committed gross indiscipline by

speaking in excited manner with a senior officer for which

penalty of stoppage of increments for two years with future

effect was inflicted upon the petitioner vide order dated

18.2.2001.

6. The petitioner preferred an appeal against the order

of penalty. He met with partial success. Vide order dated

13.8.2001 the penalty was reduced to one year.

7. On 6.11.2001 vide Annexure P-8 the petitioner was

issued a promotion order promoting him to the rank of Sub

Inspector. But, in view of the penalty imposed the said order

of promotion dated 6.11.2001 was kept in abeyance till

penalty was over.

8. The petitioner preferred a revision against the

appellate order which was turned down i.e. dismissed vide

order dated 11.2.2002.

9. Thereafter, after one year of the penalty period

being over the petitioner was promoted.

10. The grievance in the writ petition is that the penalty

imposed upon the petitioner is without any basis. It is urged

that the disciplinary authority failed to give any reasons, in

that, the defence of the petitioner has not been dealt with.

11. From a perusal of the brief resume of facts afore-

noted, it is apparent that the charged against the petitioner

has two limbs. Firstly, meeting the Commandant without

permission at 12:15 hours on 20.10.2000 and the second of

not behaving properly with the Commandant and engaging the

Commandant in unnecessary arguments.

12. Qua the first part of the charge we note that the

petitioner has taken a defence of there being rest period of

class at 12:15 hours and thus the petitioner required no

permission to meet the Commandant. With reference to the

charge of not behaving properly and engaging the

Commandant in unnecessary arguments the petitioner had a

two-fold defence. Firstly, it has not been indicated as to what

words were used by him and secondly the General Diary entry

at Serial No.312 does not record that the petitioner had

indulged in any unbecoming conduct or having engaged the

Commandant in an unnecessary discussion. With reference to

the General Diary entry, the petitioner highlighted that the

same was recorded as per information given by the

Commandant. To put it simply, the petitioner was highlighting

that the contemporaneous conduct of the Commandant did

not evidence that the petitioner had any verbal altercation

with the Commandant.

13. With reference to the order passed by the

Disciplinary Authority, the Appellate Authority and the

Revisional Authority, we note that the defence has not even

been considered.

14. All the three orders proceeded on the basis as if the

Commandant's words were the last and final word and had to

be treated as the Gospel Truth.

15. We note that without noting, much less dealing with

the defence, the disciplinary authority has relied upon some

fact finding inquiry report which was not even supplied to the

petitioner. We further note that the Disciplinary Authority,

while passing the final order has not even referred to as to

what was spoken by, said or done by the petitioner. It is

simply stated that the petitioner spoke in an excited manner

with a senior officer and misbehaved.

16. Misbehaviour is not a matter of fact. It is a

conclusion to be drawn from a fact i.e. something done or

spoken. What is the conduct or spoken words which has to be

labeled as misbehaviour has not been set out.

17. If it is intended to be conveyed by the order that

the misbehavior was speaking in an excited manner to a

senior officer, in said eventuality, the words spoken off should

have been highlighted.

18. Under the circumstances, we are left with no option

but to quash the impugned orders.

19. The writ petition is allowed. Impugned order dated

1.2.2001 passed by the Disciplinary Authority, the order dated

13.8.2001 passed by the Appellate Authority as also the order

dated 11.2.2002 passed by the Revisional Authority are

quashed.

20. Mandamus is issued to the respondents to promote

the petitioner with effect from the date he was required to be

promoted in terms of the order dated 6.11.2001.

21. Noting that the said order has not been given effect

to after one year penalty period was over, we direct the

respondents to grant seniority and pay all consequential

benefits to the petitioner by treating him as having been

promoted as a Sub Inspector with effect from the date the

person immediately junior to the petitioner was promoted.

22. Salary difference required to be paid by the

petitioner in terms of the present order would be paid within

12 weeks from today.

23. The petitioner is entitled to costs against the

respondents in sum of Rs.5,000/-.

PRADEEP NANDRAJOG, J.

DECEMBER 08, 2009                 SURESH     KAIT, J
Dharmender