Delhi High Court
Ex Si/Gd I.A.Khan vs Uoi & Ors. on 23 October, 2009
Author: Pradeep Nandrajog
i.3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 23rd October, 2009
+ W P (C) 8184/2009
EX SI/GD I.A.KHAN ..... Petitioner
Through: Ms. Rekha Palli, Advocate and
Ms. Amrita Prakash, Advocate
versus
UOI & ORS. ..... Respondents
Through: Mr. Pankaj Batra, 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? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in
the Digest? No
PRADEEP NANDRAJOG, J. (Oral)
1. Rule DB.
2. Heard for disposal.
3. The petitioner was employed as a constable under
CRPF on 7.5.1970 and earned promotions reaching the post of
a Sub Inspector. Further promotional post available for the
petitioner was the post of inspector. All was fine in the service
career of the petitioner till a turbulence took place in the year
2007.
4. In the said year, the petitioner was posted in D-10
Bn. CRPF, Kulai in District Dhalai, Tripura.
5. For being promoted to the post of an inspector, the
petitioner was required to undertake a SSICC course, and for
which, he was selected for detainment in No.31 SSICC course.
6. The turbulence took place at this stage.
7. According to the petitioner due to his excellent
service record, notwithstanding he was holding the rank of a
Sub-Inspector, he was assigned the duty of Officer Commander
of the company.
8. On 18.3.2007, along with 42 other personnel, the
petitioner was directed to go out for intelligence duty. One
HC/GD B.D.Barma posted in the General Branch met with a
fatal accident while riding a private motorcycle. He i.e. HC/GD
B.D.barma was outside the precincts of the camp ostensibly in
an operational intelligence collection duty.
9. According to the petitioner, B.D.Barma was deputed
for the duty by the Commandant 10th Bn. who put the blame
on the petitioner.
10. As per the petitioner, the Commandant, to save his
own skin, without serving a charge memo and without granting
an opportunity to be heard, vide order dated 30.4.2007,
imposed a penalty of censure upon the petitioner holding that
the petitioner had permitted B.D.Barma to keep a private
conveyance in the camp and had permitted him to move out of
the camp for official work in his private conveyance. It was
alleged that due to dereliction of duty by the petitioner, the
death of a member of the Para Military Force has resulted.
11. As per the petitioner, in spite of being selected for
being deputed at No.31 SSICC Course, he was not permitted to
proceed and the movement order was withdrawn resulting in
his being sent back to the 10th Bn. CRPF, Kulai. This resulted in
his not being promoted to the post of Inspector.
12. According to the petitioner the order of censure is
not only mala fide but is in violation of the principles of natural
justice and since it has adversely affected his further
promotional career, instant petition was filed praying that the
order dated 30.4.2007 imposing the penalty of censure be
quashed and a mandamus be issued to the respondents to
promote the petitioner to the rank of an Inspector. The
petitioner superannuated as a Sub-Inspector on 30.6.2008.
Consequential benefits have been prayed for.
13. As per the counter affidavit filed, the order of
censure dated 30.4.2007 has not come in the way of the
promotion of the petitioner. It is stated that for the year 2006-
07 the grading awarded to the petitioner was 'Average' and as
per the standing order No.6/1999, the impediment in the
promotion of the petitioner and even his detainment in SSICC
course is of his being rated as 'Average' in the ACR grading for
the year 2006-07.
14. Learned counsel for the petitioner states that the
petitioner has not filed any representation against the ACR
grading for the year 2006-07 since the same has been
supplied to the petitioner and in the absence of the same
being supplied, the petitioner is handicapped in making any
representation. Counsel urges that the petitioner has simply
been informed of being graded as 'Average' in the year 2006-
07.
15. It is not in dispute that the order of censure was not
preceded by any show cause notice being issued to the
petitioner.
16. It does not matter whether, at the moment, the
respondent has not predicated its decision on the penalty
order of censure.
17. It is possible that the order imposing the penalty of
censure may have an adverse impact upon the petitioner for
the reason we propose to dispose of the writ petition requiring
the respondents to supply the ACR grading including the basis
thereof for the year 2006-07 to the petitioner with a right to
the petitioner to make a representation against the same. If
the representation of the petitioner is accepted and his ACR
grading is upgraded, it is possible that the order of censure
may then come in the way of the petitioner.
18. Suffice would it be to state that any order which
visits a penal consequence upon the person against whom the
order is passed is entitled to an opportunity of a fair hearing.
19. Since the order of censure was not preceded by any
show cause notice or the service of a charge memo upon the
petitioner, we quash the order dated 30.4.2007 imposing the
penalty of censure upon the petitioner.
20. It would be open to the respondents to serve a
show cause notice or a charge memo proposing minor penalty
of censure. If the respondents do so within 8 weeks from
today, the petitioner would submit a written response thereto
within further 4 weeks. Reasoned decision after granting a
personal hearing of the petitioner would be taken and
conveyed to the petitioner within further 4 weeks.
21. Needless to state, if the respondent chooses not to
levy any penalty that would be end of the matter. Should the
penalty be re-imposed, remedy as per law would be available
to the petitioner.
22. Pertaining to the ACR grading for the year 2006-07,
learned counsel for the respondent states that within 8 weeks
from today, the respondent would supply the petitioner his
ACR grading as per rules. Counsel states that the petitioner
would be granted 4 weeks time to file response thereto and
that a decision on the representation submitted by the
petitioner would be taken within further 4 weeks and
communicated to the petitioner.
23. Needless to state if the ACR grading of the
petitioner is, on review, enhanced, the respondents would
reconsider the case of the petitioner for promotion to the rank
of an inspector as per rules.
24. Should the respondents reject the representation of
the petitioner, remedy as per law would be available to the
petitioner.
25. The writ petition stands disposed of in aforesaid
terms.
26. There shall be no order as to costs.
27. Copy of this order be supplied dasti to learned
counsel for the parties.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
OCTOBER 23, 2009
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