N.K. Tripathi vs Govt. Of Nct Of Delhi & Ors.
2009 Latest Caselaw 533 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) NO. 151/2007

                                        Reserved on : 04.02.2009
%                                       Date of decision: 13.02.2009

N.K. TRIPATHI                                             .... Petitioner

                       Through Mr. Narender Mukhi, Advocate

                                   Versus

GOVT. OF NCT OF DELHI & ORS.                              .... Respondents

                       Through Mr. Mukesh Gupta, Advocate


HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether reporters of Local papers may be
      allowed to see the judgment?                                No
2.    To be referred to the reporter or not?                      Yes
3.    Whether the judgment should be reported in
      the Digest?                                                 Yes


V. K. SHALI, J.

*

1. This is a third round of litigation initiated by the petitioner. The

petitioner, in the instant case, has challenged the order dated 17th

November, 2006 passed by the respondent imposing punishment of

compulsory retirement on the petitioner. The petitioner has essentially

challenged the quantum of punishment as being disproportionate to the

proved misconduct of the petitioner.

2. That briefly stated the facts are that petitioner was employed as a

Demonstrator in Aditya Solar Show Room under the Delhi Energy

Development Agency (hereinafter referred as DEDA) w.e.f. 29th March,

1993. It was alleged that on 8th August, 1996 the petitioner wrote a

letter to Director (E), DEDA which reads as under:

"Regarding the matter I beg to say that 4 Nos of AC‟s were sanctioned for Aditya Solar Shop. But till date here is only one AC has been installed. It has also heard by some reliable sources that some officers of DEDA using AC in their own residence"

3. As a consequence of this letter, the Director (E), DEDA appointed

Deputy Director (DEDA) as an inquiry Officer to find out the truth in the

allegations made by the petitioner. After holding a preliminary enquiry

the allegations made by the petitioner that out of four Air Conditions

only one Air conditioner was installed at Aditya Solar Show Room was

found false. The petitioner was, accordingly, departmentally proceeded

and a charge sheet dated 28th November, 1996 was given to him for

violating Rule 3(i)(iii) in the petition it is mentioned as 3 (d) (iii) of CCS

(Conduct), 1964 applicable to the petitioner. The petitioner submitted

his defence. The management and the petitioner delinquent adduced

the evidence the charge against was held to have been proved.

4. The Disciplinary Authority accepted the report of the inquiry

officer and dismissed the petitioner from the services of DEDA on 3rd

December, 1998. The petitioner aggrieved by the said order of

dismissal challenged the same by way of writ petition bearing No.

6539/1998 in the High Court of Delhi. However, the said writ petition

was dismissed as withdrawn as the petitioner had not availed an

alternative efficacious remedy of preferring an appeal to the Chairman,

DEDA.

5. The petitioner accordingly, in terms of the said order of High

Court of Delhi preferred an appeal against the imposition of

punishment to the Chairman, DEDA which did not yield any result.

Accordingly the petitioner filed the another writ petition bearing no.

1081 of 2000 challenging his order of dismissal. Apart from the

challenge the punishment of dismissal on the ground of proportionality

various other challenges with regard to the holding an inquiry were laid

in the writ petition. All these challenges made in the petition were

negatived by the learned Single Judge of this Court. However, so far as

the question of the punishment of dismissal imposed on the petitioner

is concerned, it was set aside on the ground of being disproportionate to

proved misconduct of the petitioner in making a false complaint to his

superior officers on the ground that the said complaint did not involve

any moral turpitude and financial irregularity and the action of the

petitioner was seen to be a "failed attempt" by self-appointed „whistle

blower‟. Though the learned Single Judge was of the opinion that the

conduct of the petitioner was not the one which can be condoned but

certainly it did not warrant the dismissal of the petitioner. Accordingly,

the learned single Judge vide its judgment dated 22nd September, 2006

set aside the order of dismissal and the remanded the matter back to

the Appellate Authority with the directions that the petitioner will be

given an opportunity to place all relevant material which may be

mitigating factors before the disciplinary authority further that he will

be given an oral hearing and then with regard to the quantum of

punishment a decision will be taken. The learned Single Judge relied

upon the pronouncements of the Hon‟ble Supreme Court in catena of

authorities starting from Union of India Vs. B. C. Chaturvedi (1995) 6

SCC 497, Union of India Vs. G. Ganayutham (1997) 7 SCC 463 and

Om Kumar Vs. Union of India (2001) 2 SCC 386 and came to the

conclusion that instead of substituting the punishment by the Court it

would be in line with the aforesaid pronouncements to permit the

Appellate Authority to impose the punishment. That is how the

petitioner was given an opportunity to place the material before the

Appellate Authority and thereafter the impugned order dated 17th

November, 2006 has been passed imposing punishment of compulsory

retirement on the petitioner instead of dismissal as was done earlier.

6. I have heard the learned counsel for the petitioner on the

quantum of sentence. It was urged by the learned counsel for the

petitioner that the imposition of punishment of compulsory retirement

in the instant case by the Appellate Authority by the impugned order

dated 17th November, 2006, in fact, tantamounted to imposition of

punishment of dismissal. This on account of the fact that even by

passing an order of compulsory retirement the petitioner will not be

benefited because he will not be able to get the pensionary benefits

because the total number of years of service which has been rendered

by the petitioner with the respondent organization is only about five

years or so.

7. As none was present on behalf of the respondents, therefore, the

Court did not have the advantage of hearing the submissions on behalf

of the respondent in support of its imposition of punishment vide

impugned order dated 17th November, 2006.

8. I have perused the record and considered thoughtfully the

submissions made by the learned counsel for the petitioner. The

impugned order dated 17th November, 2006 shows that in compliance

to the earlier decision given by the learned Single Judge dated 22nd

September, 2006, the petitioner was given an opportunity of placing

documentary evidence on record with regard to the question of

quantum of sentence yet not even a single document has been placed

by the petitioner before the Appellate Authority. The petitioner was

also given a personal hearing by the Appellate Authority and it is only

after considering the relevant record the petitioner was visited with the

punishment of compulsory retirement in place of dismissal.

9. There is no dispute about the fact that the compulsory retirement

is the punishment different then the dismissal. Admittedly dismissal

carries with it not only a stigma to take up further employment but also

results in forfeiture of pensionary and other benefits while as in the

case of compulsory retirement there is no such disability suffered by the

incumbant. The learned counsel‟s submissions that the compulsory

retirement in the instant case amounts to the dismissal is on account of

assumption that the petitioner despite being compulsorily retired will

not be able to get the pensionary or other benefits. But this

assumption or analogy is fallacious on account of the fact that there is

a distinction between compulsory retirement which is imposed by way

of punishment and which is visited on an incumbent in public exigency

of service under FR 56 where the incumbent ought to have either

entered of the service before 35 years of age and attained an age of 50

years or in other cases attained the age of 55 years so as to enable him

to get the pensionary benefits. In the instant case, merely on account

of the fact that the petitioner has served the organization only for a

period of five years and as a consequence of this compulsory retirement

the petitioner will not be able to earn the pensionary benefits, on

account of not having served the minimum tenure of service, does not

make the Court to draw an inference that the punishment of

compulsory retirement becomes punishment of dismissal.

10. Therefore, I feel that there is no merit in this submission of the

learned counsel for the petitioner that the punishment of compulsory

retirement in fact in the instant case tantamount to punishment of

dismissal. So far as the questions of proportionality of punishment is

concerned I feel that the certain amount of leeway has to be given to the

Appellate Authority to run its own business so as to maintain proper

discipline of the organization.

11. It is vehemently urged by the learned counsel for the petitioner he

ought to have been visited with a punishment of stoppage of increment

with cumulative effect or reduction in rank or something of the like

nature so that his job could have been saved. The Apex Court has not

been approving the practice of the High Court substituting the

punishment and has been advocating the remand of the matter for

imposition of punishment in case it comes to the conclusion that the

punishment in a given case is disproportionate to the proved

misconduct.

12. In the instant case, imposition of a punishment lesser then

compulsory retirement would have also been of no consequence

because it has come on record that the organization itself has been

wound up, therefore, even if the punishment lesser than the

compulsory retirement is imposed, the organization having been wound

up it would be hardly being any succor to the petitioner.

13. For the reasons mentioned above, I am of the considered opinion

that the punishment which has been imposed on the petitioner cannot

by any stretch of imagination be said to be disproportionate to his

proven misconduct or tantamounts to the punishment of dismissal.

The writ petition of the petitioner is totally misconceived and

accordingly the same is dismissed. No order as to costs.

FEBRUARY 13, 2009                           V.K. SHALI, J.
KP