Shri K.D.Aggarwal vs The District & Sessions Judge & ...
2010 Latest Caselaw 3993 Del

                                                     UNREPORTED
I-31
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     W.P.(C) 5493/2010

SHRI K.D. AGGARWAL                                 ..... Petitioner
              Through:            Mr. Aly Mirza, Advocate

                    versus

THE DISTRICT & SESSIONS JUDGE & ORS. ..... Respondents
              Through: Ms. Avnish Ahlawat and Ms. Latika
                        Chaudhry, Advocates for the respondent
                        No.1.
                        Mr. Chetan Lokur, Advocate for Mr.
                        Viraj R. Datar, Advocate for the
                        respondent No.2.
                        Ms. Sana Ansari, Advocate for Ms.
                        Zubeda Begum, Advocate for the
                        respondent No.3.

%                            DATE OF DECISION: August 30, 2010

CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

A.K. SIKRI, J. (ORAL)

1. Rule DB.

2. Since original record is produced, learned counsel for the

respondents state that they are ready to argue the matte finally on the

basis of the record and it is not necessary to file the counter affidavit.

With the consent of the parties, we have taken up the matter for final

disposal at this stage itself.

3. The petitioner herein was initially appointed as lower division

clerk in the Court of District & Sessions Judge on 06.10.1969.

Thereafter he was appointed as Ahlmad, and during the period 1984 to

1990 he worked as Ahlmad in the Court of Land Acquisition Collector,

Tis Hazari Courts, Delhi. In 1990, he was promoted as Reader and

thereafter he started working as Reader in various Courts. Sometime in

September, 1994, when the petitioner was posted as Reader in the Court

of Shri P.S. Teji, Additional Sessions Judge, Karkardooma Courts, he

was called by Shri S.M. Aggarwal, the then Additional District Judge,

Delhi for tracing out part of execution files in certain cases. The

petitioner could not trace the same. The matter was reported by Shri

S.M. Aggarwal, ADJ to the District & Sessions Judge, Delhi informing

about the loss of those files. The District & Sessions Judge treated it as

lapse on the part of the petitioner and thus petitioner was served with

charge-sheet in the year 1997 levelling the allegation of losing those

execution files. A departmental inquiry was ordered. In the

departmental inquiry, witnesses appeared on behalf of the prosecution to

press and prove the charge. On the basis of this inquiry, the inquiry

officer submitted her report on 26.05.2001 holding that the charges

against the petitioner stood proved. The petitioner filed his reply thereto,

which was not found satisfactory by the disciplinary authority, namely,

the District & Sessions Judge, who passed orders dated 17.05.2004

imposing the punishment of dismissal upon the petitioner. Against this

order, petitioner filed writ petition to this Court, which was, however,

disposed of on 17.09.2009 giving an opportunity to the petitioner to

prefer departmental appeal as that is the statutory remedy available to the

petitioner which was not exhausted before filing the writ petition. In

these circumstances, the petitioner thereafter preferred an appeal on

14.10.2009, which has been dismissed by the appellate authority vide

orders dated 07.12.2009. Challenging the orders passed by the

disciplinary authority as well as the appellate authority, present writ

petition is filed by the petitioner.

4. Learned counsel for the petitioner made certain submissions on

the basis of evidence of CW-3 Shri Karimullah, Nazir and submitted that

his testimony would show that the petitioner was not responsible for the

loss of the file. He also submitted that he was not given any chance to

cross-examine Shri Karimullah. We, however, did not find any force in

these submissions after going through the record. At this stage, the

learned counsel for the petitioner gave up the challenge to the validity of

holding of the departmental inquiry and his entire thrust was on the

quantum of punishment imposed upon the petitioner. In this behalf, his

submission were as follows:-

(i) The petitioner had 35 years of service to his credit.

(ii) Even in respect of the loss of file, he submitted that there were

exterminating circumstances inasmuch as petitioner was not in the

charge of that record at the time when inquiry was made and he was

asked to trace out the file. It was pointed out that he was posted as

Ahlmad in the Court of Land Acquisition Collector, Tis Hazari Courts,

Delhi upto 1990 and it was in 1994 when he was asked to trace those

files when at that time he was working as Reader in some other Court.

(iii) No malice was alleged or motive imputed upon the petitioner in

the charge-sheet as far as loss of files is concerned.

(iv) There was no pecuniary loss caused to any person or the

department nor any such allegation was made in the charge sheet. He

also submitted that in many other cases relating to other such officials,

where charge of loss of file was proved, much lesser penalties were

awarded and in no other case punishment of dismissal was given.

5. In the aforesaid circumstances, his plea was that the penalty of

dismissal from service to a person like him who had rendered 35 years of

service was shockingly disproportionate. It was pleaded that as a result

of dismissal the petitioner would not only loose his gratuity but will also

not be entitled to receive pension. On this basis, plea was made by

learned counsel for the petitioner that the punishment of dismissal,

which was harsh, should be interfered with.

6. Learned counsel for the petitioner has also referred to the

judgment of Division Bench of this Court in Om Parkash vs. Chief

Justice, High Court of Delhi, 106 (2003) DLT 456 and also a Single

Judge of this Court in Ramesh Chander Vashisth vs. Chief General

Manager, State Bank of India and Anr., 2002 (62) DRJ 193.

7. We find from the order of the appellate authority that these facts

were not pleaded before the appellate authority and no case that the

punishment is harsh or disproportionate was made out. We are confident

that had these facts been pleaded before the appellate authority, appellate

authority would have taken into consideration all these factors while

examining as to whether the punishment of dismissal imposed by the

disciplinary authority needed to be interfered with and/or the petitioner

was to be given lesser penalty. In these circumstances, we are of the

view that the matter be remitted back to the appellate authority for fresh

consideration on the quantum of penalty and while doing so the appellate

authority shall also keep in view the observations made by the

disciplinary authority in the impugned order, as per which the

punishment of dismissal was found to be justified by the disciplinary

authority. The petitioner shall make a representation, on the basis of

directions given in this order, within two weeks to the appellate authority

and we are hopeful that the matter shall be decided by the appellate

authority as expeditiously as possible.

8. Writ petition stands disposed of in the above terms.

A.K. SIKRI, J.

REVA KHETRAPAL, J.

AUGUST 30, 2010 km