Mahesh Kumar vs Learned District And Sessions ...
2010 Latest Caselaw 2166 Del

 *               IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                       W.P(C) No.3289/2008

                                                              26th April, 2010
 MAHESH KUMAR                                              ...... Petitioner

                                Through:        Mr. Ashok Gurnami and Mr. Ranjan
                                                Roy, Advocates.
                         VERSUS

 LEARNED DISTRICT AND SESSIONS JUDGE DELHI & ORS
                                        ....Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

%

SANJAY KISHAN KAUL, J (Oral)

The petitioner was appointed as an LDC in the office of District and

Sessions Judge, Delhi and was posted as an Ahlmad in the Court of MM from

April 2000 to June 2000. It is during this period of time that one file titled as

„State Vs. K.P.Santosh‟ under Section 103 of the Delhi Police Act, 1973 was mis-

placed. This resulted in suspension of the petitioner on 29.6.2000 and an enquiry

was ordered against the petitioner.

A memorandum dated 30.1.2001 was issued by the learned District and

Sessions Judge to the petitioner along with statement of charges framed against

him. In terms of the statement of article of charges, the act of the petitioner in

misplacing the file and failing to trace out the same (the file was subsequently

traced out) was stated to amount to gross negligence, carelessness and lack of

devotion to duty constituting the mis-conduct within the meaning of Rule 3 of the

CCS(Conduct) Rules, 1964. The petitioner denied the charges and thus an enquiry

proceeded where evidence was led. The enquiry officer of the rank of an

Additional Sessions Judge found that the petitioner had omitted to do what he was

required to do in performance of his official duties and acted without due

diligence, care and precaution while performing his duties. The file had been

subsequently traced out which showed that the delinquent official did not even

make an endeavour to properly trace out the file which was lying in the almirah

without any order sheets or even the bail bond of the accused.

The Disciplinary Authority examined the report of the enquiry officer and

considered the representation of the petitioner against the enquiry report gave the

following findings:

"After the inquiry was concluded, copy of the inquiry report was given to him. He made representation and submitted that he was not given sufficient time to trace out the documents. His wife had given birth to a female baby by a major surgery and he proceeded on leave. He prayed for lenient view. I consider that the misconduct of the delinquent official is very grave and unbecoming of his post. He was having the responsibility of maintaining files of the court and the record of the court. It seems that he had intentionally placed the file in the almirah for an ulterior motive and the order sheet and bail bond were removed from the file. If the file had been simply misplaced, it would have been found with order sheet and bail bond. But it is not a case of simple misplacement and seems to be an deliberate conduct. I consider that delinquent official is liable for major punishment. He is removed from service. However, his removal shall not be a disqualification for further service in the Government. Formal orders be issued."

The petitioner aggrieved by the same preferred an appeal which was

considered by the learned Single Judge on the Administrative side but the same did

not cut-ice, and was dismissed on 28.9.2007. The appellate order other than saying

that the misplacement of file appears to be a deliberate attempt on the part of the

appellant which is a grave mis-conduct and unbecoming of government servant

says nothing more.

The petitioner aggrieved by the orders, filed this petition under Article 226

of the Constitution of India. On the first hearing itself on 29.4.2008, notice was

confined to the submissions on the quantum of sentence especially taking into

consideration the plea of the petitioner that there was no material on record to

show that the conduct of the petitioner in misplacing the relevant order-sheets and

the bail bond amounted to a deliberate mis-conduct.

We have heard learned counsel for the petitioner and perused the record.

None has put in appearance for the respondent. Even though, the matter is at

Item No. 5 on the „Regular Board‟ and it is 3.30 PM.

We find that the imputation of misconduct qua the petitioner was only that

of negligence and carelessness and there was no imputation of any deliberate act of

concealing the file for any collateral purpose. The findings of the Enquiry Officer

are also to the effect that the petitioner was blame-worthy of negligence and

carelessness.

It is the Disciplinary Authority which gave a new twist to the finding by

seeking to impute a deliberate act of concealing the file. We have already

extracted the relevant portion of the findings of the then learned District &

Sessions Judge who was the Disciplinary Authority. The Disciplinary Authority

has found that "it seems that he had intentionally placed the file in the almirah with

ulterior motive and the order sheet and bail bond were removed from the file". We

find that no such imputation was made against the petitioner nor the petitioner had

an opportunity to defend any such imputation. Not only that, we fail to understand

how it "seems" to the Disciplinary Authority and what was the material on the

basis of which such a conclusion has been drawn of an ulterior motive. The fact

that the file was without certain order-sheet and bail bond only show that these

papers were not connected with the file when it remained misplaced. The order of

the Appellate Authority also does not go any further.

We are thus of the considered view that this allegation of an ulterior motive

and deliberate misconduct, that being the only question to be examined, cannot be

found against the petitioner as it is a case of negligence which was imputed to the

petitioner.

Now coming to the issue of quantum of punishment arising from the

aforesaid finding, we are guided by the pronouncement of the Supreme Court in

Dev Singh Vs. Punjab Tourism Development Corporation Ltd. & Anr (2003) 8

SCC 9. The facts were similar. There was a misplacement of an office file. In the

absence of any ulterior motive, punishment of dismissal from the service was held

to shock the judicial conscience and was re-placed with a punishment of

withholding of one increment including of stoppage of efficiency bar in

substitution of punishment of dismissal awarded by the Disciplinary Authority

with a further rider that the appellant therein would not be entitled to any back

wages for the period of suspension. The Supreme Court, being mindful of the

scope for interference in an appeal against punishment imposed by Disciplinary

Authority observed as under:-

"6. A perusal of the above judgments clearly shows that a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the abovenoted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such as case."

The petitioner is stated to be aged about 38 years. The incident is about a

decade old when he was only about 28 years old and at the anvil of service. The

petitioner had a child soon before the incident which is given as an excuse, though

we make it clear that absence from duty for such a reason can hardly be accepted.

There is no prior case of misconduct against the petitioner. We thus adopt the

course of action following the judgment in the Dev Singh's case (supra) in

substituting the order of dismissal with an order of withholding of one increment

including stoppage of efficiency bar. We further direct that the appellant will not

be entitled to any back wages other than the suspension allowance already paid to

him till the formal order is issued by the competent authority reinstating petitioner

in service, subject to the condition that the petitioner rejoins the service. Needful

be done by the competent authority within one month from the date of

communication of the order.

The writ petition stands allowed in the aforesaid terms leaving the parties to

bear their own costs.

Copy of the order be sent expeditiously to the District and Sessions Judge,

Delhi, for necessary compliance.

SANJAY KISHAN KAUL, J

VALMIKI J. MEHTA, J

April 26, 2010/ib