Delhi High Court
Bijender Pal Dhaka vs The Govt.Of Nct Of Delhi & Ors. on 2 June, 2011
Author: Dipak Misra,Chief Justice
26.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3975/2011
Date of order: 2nd June, 2011
BIJENDER PAL DHAKA ..... Petitioner
Through Ms. Sumedha Sharma,
Advocate.
versus
THE GOVT.OF NCT OF DELHI & ORS. ..... Respondents
Through Mr. Anjum Javed & Mr. Nirbhay
Sharma, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether 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 ?
DIPAK MISRA, CJ.:
Heard Ms. Sumedha Sharma, learned counsel for the
petitioner and Mr. Anjum Javed and Mr. Nirbhay Sharma,
learned counsel for the respondents.
2. The subject matter of challenge in this writ petition is the
order dated 13th January, 2010 passed by the Central
Administrative Tribunal, Principal Bench, New Delhi (for short,
„the tribunal‟) in O.A. No. 2669/2008 whereby the tribunal has
declined to interfere with the punishment imposed on the
W.P. (C) No. 3975/2011 Page 1 of 6
petitioner, i.e. forfeiture of two years approved service for a
period of two years.
3. As the factual matrix would unfold, a charge sheet was
framed against the petitioner in a departmental enquiry on the
allegation that while the petitioner was posted in FRRO attached
to Indira Gandhi International Airport, he had put the official
stamp on the migration clearance of one Zubir Ahmed, who had
visited India on a visa on 23rd July, 2003 and had taken exit
India permission on 17th December, 2004. The said visa was
valid till 22nd December, 2004. As the allegation would further
reflect instead of Zubir Ahmed leaving the country, one Del
Agha, an Afghan national, was allowed to leave the country on
the basis of the migration clearance granted by the petitioner to
him. It is also alleged that the petitioner had overlooked the
LOC notice.
4. The Inquiry Officer filed the report that the charges levelled
against the petitioner were not proven. Thereafter, the
disciplinary authority recorded a note of dissent by following the
due procedure of giving notice and sent the same to the
petitioner for his response. The petitioner submitted a
representation. Thereafter, the disciplinary authority as
W.P. (C) No. 3975/2011 Page 2 of 6
indicated hereinbefore imposed the penalty.
5. Being dissatisfied with the same, the petitioner preferred a
departmental appeal, which did not meet with success and
aggrieved by the same, he approached the tribunal for quashing
of the punishment on the ground that the disciplinary authority,
in his note of dissent, had recorded findings in a categorical
manner, which would indicate that he had already made up his
mind. The tribunal analyzing the material on record declined to
interfere with the order of punishment, which has been affirmed
in appeal.
6. Learned counsel for the petitioner has invited our attention
to the note of dissent, which has been brought on record at page
53 of the paper book. It is urged by her that there is a formation
of opinion in a categorical manner, which is not permissible in
law.
7. Learned counsel for the respondents has submitted that
reasons had been ascribed by the disciplinary authority while
recording his difference of opinion with the inquiry report and that
the tenor of the language in a way shows that there has been a
formation of the mind with regard to imposition of punishment.
In this context, we may refer with profit the decision in Punjab
W.P. (C) No. 3975/2011 Page 3 of 6
National Bank Vs. Kunj Bihari, 1998 SC 2713, wherein the
Apex Court has held thus:
"22. The result of the aforesaid discussion
would be that the principles of natural justice
have to be read into Regulation 7(2). As a
result thereof whenever the disciplinary
authority disagrees with the inquiry authority
on any article of charge, then before it records
its own findings on such charge, it must
record its tentative reasons for such
disagreement and give to the delinquent
officer an opportunity to represent before it
records its findings. The report of the inquiry
officer containing its findings will have to be
conveyed and the delinquent officer will have
an opportunity to persuade the disciplinary
authority to accept the favourable conclusion
of the inquiry officer. The principles of natural
justice, as we have already observed, require
the authority, which has to take a final
decision and can impose a penalty, to give an
opportunity to the officer charged of
misconduct to file a representation before the
disciplinary authority records its findings on
the charges framed against the officer."
8. In view of the aforesaid enunciation of law in the field, we
are required to peruse the note of dissent of the disciplinary
authority. On a close scrutiny, the said authority has stated
thus:
W.P. (C) No. 3975/2011 Page 4 of 6
" I have gone through the entire D.E file
alongwith statements of PWs and
documents exhibited during D.E.
proceedings. The statement of Inspr. B.S.
Rathi is very much crucial vide which he has
deposed that on 12.5.05 while reconciling
the record, it was detected that the
photograph on the Form-III were different on
the issued form, as the photographs an
office copy was not resembling with copy
issued to the Pax namely Zubir Amed. On
further enquiry it was found that the
photograph on the copy issued to Pax Zubir
Ahmed was not of him but it was of one Del
Agha an Afghan National who left for
Afghanistan on the Form-III issued to Zubir
Ahmed by replacing his own photographs.
Del Agha was a registree in FRRO office as
an Afghan National as he was saying(sic) in
India for the last many years. As such there
was a forgery, which could not be detected
by the clearing officer-SI Bijendra Pal Dhaka
No. D-3235. PW-1 Shri Satya Narain Mishra
Reader to AF Shift-C immigration IGI Airport
has deposed that stamp C-5/12 was issued
to SI Bijendra Pal Dhaka No. D-3235, PW-2
HC Sushil Kumar No. 16/F posted in HAE
Branch of FRRO has proved his posting in
Shift-C Immigration. Thus there is sufficient
evidence against SI Bijendra Pal Dhaka No.
D-3235 that he failed to check the identity of
the Pax and could not detect the forgery.
Hence, I differ from the findings of the E.O."
9. In our considered opinion, there is no pre-conceived
decision with regard to imposition of punishment. Reasons have
been ascribed, which are required to be ascribed as per the law
laid down by the Apex Court. Thus, we do not find any merit in
W.P. (C) No. 3975/2011 Page 5 of 6
this writ petition and accordingly the same stands dismissed
without any order as to costs.
CHIEF JUSTICE
SANJIV KHANNA, J.
JUNE 02, 2011
VKR
