R.D. Sharma vs Union Of India & Ors.
2011 Latest Caselaw 5918 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) Nos.7409/1999


%                       Date of Decision: 05.12.2011


R.D. Sharma                                                 .... Petitioner
                        Through Nemo

                                 Versus

Union of India & Ors.                                    .... Respondents

                        Through Nemo


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

1. The petitioner has challenged the order dated 14th July, 1987

whereby the respondents had imposed the punishment of "Censure" on

the petitioner. The petitioner was earlier given a "warning". By the order

dated 16th August, 1989, another punishment of "Censure" was

imposed on the petitioner.

2. Brief facts to comprehend the dispute between the parties are

that the petitioner was serving in the Central Industrial Security Force

(hereinafter referred to as „CISF‟) Unit PTPS Panki, Kanpur as

Constable. During his service the petitioner was served with a charge

sheet under Rule 35 of the CISF Rule, 1969 by the office letter dated 7th

June, 1987 by the Assistant Commandant stipulating that while being

detailed for Khere Magazine duty from 2100 hours to 0500 hours on

28/29th May, 1987, during a checking conducted at 0415 hours on 29th

May, 1987 the petitioner was found lying on the roof top of Khere

Magazine with Head Constable B.L. Behrawat and that he was fast

asleep at the time with his rifle and ammunitions. It was further stated

that the actions of the petitioner amounted to gross misconduct and

negligence towards his duty while being posted on a sensitive post like

Magazine.

3. The petitioner was asked to make a representation against the

allegations imputed against him. The petitioner submitted a

representation on 2nd June, 1987 and he confessed that he had felt

drowsy and consequently he slept and he regretted for the same. The

Assistant Commandant took notice of the allegations and the

representation of the petitioner and observed that the petitioner had felt

repentance from his heart for his lapse and therefore he was let off with

only a warning to be more careful in the future.

4. Thereafter, the Disciplinary Authority, i.e. the Assistant

Commandant, CISF, changed the punishment from warning to that of

„Censure‟ by final order No. CISF/AC/P.B.A./7/87-1879 dated 14th

July, 1987. According to the petitioner, since he had already been given

a warning for the same charge, therefore, the Disciplinary Authority had

exercised his powers very arbitrarily and illegally in absolute disregard

of the provisions of law by enhancing the punishment.

5. Another charge sheet was issued by the Deputy Commandant

against the petitioner vide Memorandum No.

DC(P)/Z.1/CISF/BSL/13/89-1690 dated 16th June, 1989 , proposing to

take action against him on the ground that the petitioner had

overstayed on leave for a period of 10 days from 15th -24th March, 1989

without the permission/sanction from the competent authority. He had

thereby committed an act of gross misconduct. The petitioner submitted

his representation against the charges made against him on 1st August,

1989. He represented that he had fallen sick during the leave period.

He had got the treatment from Primary Health Centre Bagga from 15th

to 23rd March, 1989. It was further stated by him that he had informed

the Company Commander about his illness well in time. The medical

certificate showing that he was unfit at the time was also appended

with his representation.

6. The Deputy Commandant after taking into consideration the

representation of the petitioner and the allegation made against him

held that his explanation was unsatisfactory since the petitioner was

supposed to join the duty on 15th March, 1989, the day that he was

allegedly declared unfit, however, the journey time from his home to the

unit was more than one day. Thus, it was inferred that the petitioner

was required to leave his home on 13th March, 1989 itself so that he

could resume his duties on 15th March, 1989, which he did not do and

therefore, it was inferred that he had already decided to overstay his

leave and thereafter he had procured the medical certificate. The

Deputy Commandant, therefore, in exercise of his powers under Rule

29(A) read with Schedule II of the CISF Rules, 1969 awarded the

punishment of "Censure" on the petitioner, while regularizing the period

of overstay of leave from 15th to 24th March, 1989.

7. Due to the punishments imposed on the petitioner he wasn‟t

allowed to cross the Efficiency Bar in the year 1989-1990 in the scale of

Rs. 825-15-EB-20-1200 and he also did not receive any increment for

the said period. Eventually, he was allowed to cross the Efficiency Bar

in the year 1991, however, the increments of the period of 1989-1990

was still not given to the petitioner inspite of crossing the Efficiency

Bar.

8. The petitioner submitted an application dated 9th December, 1997

to the DIG, CISF whereby he prayed that he be given the pay scale of

Rs. 1060/- in parity of his batchmates who were recruited with him,

instead of Rs. 1040/- from the time of crossing the Efficiency Bar in the

year 1989. The petitioner gave numerous reminders demanding that

action be taken as requested by him, however, no response was

received from the respondents.

9. Ultimately, the petitioner by way of communication dated 2nd

August, 1999 requested that he be given a copy of the order by which

he was denied the crossing of the Efficiency Bar in 1989-1990, due to

which one increment of the petitioner was also withheld. In reply to the

petitioner‟s application, a reply was received by him from the CISF Unit,

PTPS Panki vide letter No.E-36017/CISF Doc/1999 dated 24th August,

1999 by which the petitioner was informed that as per service order no.

165/90 dated 2nd April, 1990 he was not allowed to cross the Efficiency

Bar because he wasn‟t found fit.

10. The petitioner, therefore, approached this Court and invoked the

writ jurisdiction of this Court praying, inter alia, that the orders dated

14th July, 1987 and 16th August, 1989 be set aside and that the

respondents be directed to grant the increment with arrears to the

petitioner from the due date when the petitioner was allowed to cross

the Efficiency Bar in the year 1991 in accordance with the CISF rules

and orders.

11. The respondents had filed a counter affidavit on 18th July, 2000

whereby they have contended that the Efficiency Bar was enforced with

effect from 1st January, 1990, however, the petitioner was found unfit to

cross the said Efficiency Bar by the Departmental Promotion Committee

Board constituted at that time. It is also contended that on holding a

subsequent review by the DPC board, the increment above the

Efficiency Bar was released with effect from 1st January, 1991 at Rs.

920/- per month vied USO Part-II No. 154/91 dated 19th March, 1991.

The respondents have further stated that the application of the

petitioner requesting that he be granted one increment withheld from

him during the period 1989-90 was sent to the DIG/BSL Bokaro by

letter dated 21st July, 1998. In response, the DIG by letter dated 21st

August, 1990 had intimated that the Efficiency Bar was enforced with

effect from 1st January, 1990 and that the increment over the said stage

was released with effect from 1st January, 1990 at Rs. 920/- per month.

The same was communicated to the petitioner by letter dated 8th

September, 1998. Subsequently, the petitioner‟s case was also taken up

by the IG(NS) for the review/examination of the same, however, after

due consideration the case of the petitioner was rejected and the

decision regarding the same was conveyed to the petitioner by letter

dated 12th March, 1999.

12 Today the matter has come for hearing before this Court for its

final disposal which was listed at the end of „After Notice Miscellaneous

Matters‟. However, no one is present on behalf of the petitioner. The

matter has already been passed over once, however, despite the

opportunity given, no one has appeared on behalf of either of the

parties. There is no justifiable reason for non appearance of parties or

their counsel.

13. In the circumstances, this Court is left with no alternative but to

dismiss the petition for the non-appearance of the petitioner and his

counsel. Therefore, the writ petition is dismissed in default and all the

applications are also disposed off.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

December 05, 2011

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