S.Gopinath Nair (Through Lrs) vs Union Of India & Ors.
2011 Latest Caselaw 3776 Del

                                                                        A-7
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision: 5th August 2011.

+      W.P.(C) 12780/2009

       S.GOPINATHAN NAIR
       (THROUGH LRS)                           ..... Petitioner
                     Through:        Mr.Raj Kumar Sherawat and
                                     Mr.Naresh Kumar Sharma,
                                     Advocates
                       versus

    UNION OF INDIA AND ORS.             .....Respondents

Through: Mr.Preeti Dalal and Ms.Vijaya Rout, CRPF.

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SUNIL GAUR

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

2. To be referred to Reporter or not?

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

PRADEEP NANDRAJOG, J

1. Petitioner's services with the respondents is with a checkered history.

2. Joining service under CRPF as a Sub Inspector the petitioner joined service on 25.5.1971 and there was no blemish in his career till FIR No.207/1984 was registered for offences punishable under Section 409, 420, 467/471 of IPC.

3. For the same alleged acts, initiating disciplinary proceedings, a charge sheet was served upon the petitioner on 1.3.1989.

4. At the inquiry, he was substantially found not guilty but was WP (C) No. 1533/1998 Page | 1 indicted for having committed technical procedural wrongs and as a result penalty of dismissal from service was inflicted upon the petitioner vide order dated 17.4.1991.

5. The petitioner challenged the penalty by filing a writ petition before the High Court of Kerala and the same was allowed on 19.11.1998. The petitioner was directed to be reinstated in service, but without any back wages.

6. The Court noted that the indictment against the petitioner was not of a serious nature and no loss had resulted to the department.

7. It may be noted that the criminal case which was registered against the petitioner was pending when he was reinstated in service.

8. Unfortunately for the petitioner, his and his wife's health deteriorated and he could not join service as a result of his reinstatement. He sought to be voluntarily retired. The request was turned down by the respondents for the reason petitioner was facing a criminal trial and thus it was opined that he could not be voluntarily retired from service.

9. Petitioner did not join service as a consequence of the reinstatement directed by the Kerala High Court and this resulted in a charge sheet dated 12.2.2004 being issued for unauthorized absence which resulted in the penalty of petitioner being dismissed from service being inflicted on 20.12.2005. Appeal filed by the petitioner was rejected on 23.6.2006 and the Revision filed was rejected on 28.8.2006.

10. On 29.4.2008 petitioner was acquitted at the criminal trial and thereafter instant petition was filed on 15.10.2009 challenging the order dated 20.12.2005 dismissing petitioner from service, the order rejecting the appeal being the order dated 23.6.2006 and the order

WP (C) No. 1533/1998 Page | 2 dated 20.8.2006 rejecting the revision petition.

11. During the pendency of the writ petition, petitioner has died and survived by his wife and children.

12. It may be noted that as a result of the petitioner being directed to be reinstated in service as per decision of the Kerala High Court the competent authority directed that the period post 30.4.1991 i.e. when petitioner was dismissed from service till his reinstatement would not entitle the petitioner to any service benefits except for purposes of pension.

13. It is apparent that the petitioner served the department for 20 years between the year 1971 to the year 1991.

14. Learned counsel for the petitioner states that the writ petition may not be decided with reference to the challenge made as prayed by the petitioner. Conceding that the petitioner would be in the wrong in not joining service after he was reinstated by the Kerala High Court, which decision came in favour of the petitioner on 19.11.1998, learned counsel prays that the penalty of dismissal from service may be mitigated from that of dismissal from service to one of compulsory retirement; requiring respondents to treat petitioner having served, for purposes of pension from 25.5.1971 till 19.11.1998 and be paid pension accordingly.

15. Noting that the petitioner has been honorably acquitted at the criminal trial and that the technical default committed by him resulting in his being dismissed from service on 30.4.1991 was found to be without any justification by the Kerala High Court, which decision has attained finality as also the fact that the petitioner's wife as also the petitioner were extremely unwell by the time petitioner was directed to be reinstated and keeping in view that the petitioner has died during the pendency of the writ petition, we are

WP (C) No. 1533/1998 Page | 3 of the opinion that ends of justice require the penalty of dismissal from service to be converted into one of compulsory retirement with further direction that for purposes of pension qualifying service would be treated from 25.5.1971 till 19.11.1998.

16. The date on which the petitioner would be treated as compulsory retired would be 20.12.2005 i.e. the date when the penalty was levied. Thus, till petitioner was alive, pension would be disbursed as per Rules and with effect from the date he died, family pension would be disbursed as per Rules.

17. Needful would be done within 12 weeks from today.

18. No costs.

19. Dasti.

                                 PRADEEP NANDRAJOG, J



                                 SUNIL GAUR, J
AUGUST 05, 2011
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WP (C) No. 1533/1998                                         Page | 4