Si/Ro Avdesh Puri vs Union Of India & Ors.
2011 Latest Caselaw 5705 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    WP(C) No.2627/2011 & CM No.5607/2011

%                         Date of Decision: 24.11.2011

SI/RO Avdesh Puri                                           .... Petitioner

                       Through Mr.Suman Doval, Advocate

                                 Versus

Union of India & Ors.                                    .... Respondents

                       Through Mr.D.S.Mahendru, Senior Govt. Counsel


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

1.      Whether reporters of Local papers may              YES
        be allowed to see the judgment?;
2.      To be referred to the Reporters or                 YES
        not?; and
3.      Whether the judgment should be                      NO
        reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioner has challenged the order dated 15th December,

2010, whereby a General Force Court (GFC) was convened and the

petitioner was directed to submit three names from the Bn./Sector of

the Special Frontier for appointment of any one of them as the

defending officer or in case the petitioner was willing to engage a lawyer

to represent him in GFC, then the same was allowed as well. It was also

stipulated that the date of GFC would be informed to the petitioner by

the Special Frontier Headquarter, ITBP. The petitioner also sought an

appropriate writ order or direction against the respondents directing

them to act on their promotion letter dated 30th April, 2009.

2. The petitioner contended that he had joined the Indo Tibet Border

Police (ITBP) as Head Constable/RO in the year 1983 and on 30th April,

2009 he was given a letter of promotion to the rank of Inspector.

According to the petitioner, on account of the disciplinary proceedings

pending against him, he has not been conferred the rank of Inspector

and he is still working in the rank of Sub Inspector/Radio Operator

(SI/RO).

3. The petitioner contended that one Ramesh Chandra alongwith

one Kulshetra on 18th February, 2009 had complained against him

alleging that despite having four children, the petitioner is enjoying the

benefits of the Family Planning allowance on the basis of the false

documents submitted by him and that the mark sheet of the

Matriculation/11th Class of the petitioner is also forged.

4. On the complaint against the petitioner, a memorandum dated

20th February, 2009 was issued which was replied to by the petitioner

by reply dated 23rd February, 2009.

5. According to the petitioner, he had pleaded guilty during his

summary trial and, therefore, the sentence of forfeiture of seniority for

the purpose of promotion for a period of one year was awarded to him

on 2nd September, 2009. The sentence was imposed on the petitioner

under Section 58 of the ITBPF Act, 1992. The petitioner was also

sentenced with recovery of benefit of one special increment drawn

under the small family norms w.e.f. 27th March, 1991 to 2nd September,

2009.

6. According to the petitioner, he was issued a memorandum dated

25th February, 2010 along with a charge sheet, which contained four

specific charges against him. The charges made against the petitioner

were that he had signed a document knowing that the document

contained false statements; that he claimed monetary benefit under the

small family norms with the intent to cause wrongful gain to himself;

that he claimed LTC in respect of family members with intent to cause

wrongful gain to himself and at the time of enrollment he willfully gave

false answers to a question set forth in the prescribed forms of

enrollment, which was put to him by the enrolling officer before whom

he appeared for the purpose of being enrolled. According to the

petitioner, he had appeared for summary trial on 16th August, 2010,

however, on the said date the Competent Authority did not assemble

and he was informed by the staff that since the petitioner had already

been punished vide order dated 2nd September, 2009 no additional

orders under Section 58 was required. Thereafter, the two rounds of

Record of Evidence had culminated into the order under Section 58 on

2nd September, 2009 and no order on 16th August, 2010 the petitioner

received yet another memorandum dated 15th December, 2010 whereby

the General Force Court Martial was directed to be convened against

the petitioner. Against the said memorandum the petitioner made a

representation dated 3rd January, 2011 to the Director General, ITBP

through the proper channel requesting that the proceedings be dropped

against him. Meanwhile, the petitioner had also challenged the said

memorandum before this Court under its writ jurisdiction, however, he

withdrew the same with the liberty to file a fresh petition which was

recorded by order dated 4th February, 2011. In response to the

representation of the petitioner dated 3rd January, 2011 the Inspector

General had replied by communication dated 7th March, 2011 that the

previous summary proceedings which culminated in the punishment

order dated 2nd September, 2009 had been set aside by order dated 23rd

November, 2009 on account of procedural errors. Therefore, the

petitioner was tried again on the fresh chargesheet on 25th October,

2010, pursuant to which the Record of Evidence submitted its report by

the letter dated 9th September, 2010 wherein sufficient evidence was

found on the charges framed against the petitioner. Therefore, the

petitioner filed the present writ petition requesting that the

memorandum dated 15th December, 2010 be quashed. Meanwhile, the

petitioner had appeared for the Summary Trial held on 26th May, 2011

and by order dated 1st June, 2011 he was imposed the punishment

under Section 58(2)(a) and (c) of the ITB Police Force Act and Rules,

1992. The punishment of forfeiture of seniority for the purpose of

promotion for a period of one year and the punishment of recovery of all

the benefits/special increment drawn on account of small family norms

from 27th March, 1991 till the date of penal deductions was imposed on

him.

7. The learned counsel for the respondents on the basis of the reply

filed on 12th July, 2011 has contended that the summary trial

proceedings conducted earlier against the petitioner was set aside by

order dated 23rd November, 2009 on the ground of procedural error. It

was, therefore, contended that the petitioner could be tried again and

that it would not amount to a de-novo trial. Pursuant to the said order,

a fresh charge sheet dated 25th February, 2010 containing four charges

was issued against the petitioner. The ROE proceedings were conducted

and by letter dated 9th September, 2010 recommendation for holding

the General Force Court was made against the petitioner. It is pleaded

by the respondents that during the scrutiny by the ROE, sufficient

evidence was found against the petitioner on the first and second

charge, however, evidence on the fourth charge was found to be

insufficient and no evidence was found on the third charge. Thereafter,

memorandum dated 15th December, 2010 was issued regarding the

convening of the General Force Court trial, however, later on,

considering the length of service of the petitioner and the nature of first

and second charge, the petitioner was tried summarily on 26th May,

2011 wherein the petitioner pleaded guilty to the two charges and the

punishment was imposed which was communicated by order dated 1st

June, 2011.

8. Learned counsel for the respondents contended that the General

Force Court trial against the petitioner pursuant to the communication

dated 15th December, 2010 was not held and rather the petitioner was,

thereafter, tried summarily on 26th May, 2011.

9. On account of these facts and circumstances, the learned counsel

for the petitioner on instructions does not press the relief of quashing

and setting aside the communication dated 15th December, 2010

whereby according to the petitioner, the respondents had sought to

convene a General Force Court against the petitioner.

10. The next prayer of the petitioner is to direct the respondents to

act on their promotion letter dated 30th April, 2009. The petitioner in

his writ petition has contended that he was given a letter dated 30th

April, 2009 indicating that he has been promoted to the rank of

Inspector. The petitioner, however, has not filed the copy of the letter

dated 30th April, 2009.

11. In reply to the allegations made by the petitioner regarding his

promotion to the rank of Inspector and communication of letter dated

30th April, 2009, the respondents in their counter affidavit dated 12th

July, 2011 have contended that the promotion of the petitioner has

been withheld on account of pendency of the disciplinary case. The

respondents have also not produced the letter dated 30th April, 2009 or

any other letter indicating that the petitioner has been promoted to the

rank of Inspector.

12. Despite the specific and categorical pleading that the petitioner

was communicated a letter dated 30th April, 2009 promoting him to the

rank of Inspector, on the query by this Court as to why letter has not

been produced, the learned counsel for the petitioner, Mr.Suman Doval,

has contended that the petitioner was communicated orally that he has

been promoted to the rank of Inspector by letter dated 30th April, 2009,

though the said letter was never received by the petitioner.

13. This is not disputed that the petitioner was tried by the summary

trial on 26th May, 2011 and that he has been awarded the punishment

of forfeiture of seniority for the purpose of promotion for a period of one

year. The said decision was also communicated by order dated 1st

June, 2011. Therefore, the period of forfeiture of seniority has not yet

expired.

14. In the circumstances, since the penalty of forfeiture of seniority

for the purpose of promotion for a period of one year has been imposed

on the petitioner, which period has not expired, the petitioner is not

entitled for promotion during the said period of one year from the date

of the punishment, i.e. 26th May, 2011. Consequently, the petitioner is

not entitled for promotion up till 25th May, 2011. Nothing has been

produced by the petitioner to show as to what were the terms and

conditions for the promotion allegedly communicated to the petitioner

by letter dated 30th April, 2009. The learned counsel for the petitioner

has also taken contradictory stand, as in the petition it is contended

that letter dated 30th April, 2009 regarding the petitioner's promotion to

the rank of Inspector was communicated him, however, during the

arguments the learned counsel contended that the petitioner was

intimated orally that by the alleged letter the petitioner has been

promoted to the rank of Inspector. In the absence of the copy of the

said letter it cannot be ascertained as to on what terms and conditions

the petitioner was promoted. The respondents have taken a categorical

stand that the petitioner is not entitled for the promotion and that his

promotion has been withheld on account of the punishment imposed on

the petitioner. Learned counsel for the petitioner in the circumstances

has not been able to substantiate the claim that the petitioner is

entitled to promotion though he is undergoing the punishment of

forfeiture of seniority for the purpose of promotion for a period of one

year. Consequently, the petitioner is not entitled for the relief seeking

directions to the respondents to promote the petitioner in terms of letter

dated 30th April, 2009.

15. Considering the entirety of the facts and circumstances, the

petitioner has failed to make out any case for the grant of any relief to

him. The petitioner is not entitled for any promotion during the period

of one year from 26th May, 2011 when the punishment of forfeiture of

seniority for the purpose of promotion was awarded to the petitioner.

The writ petition, therefore, in the facts and circumstances, is without

any merit and it is, therefore, dismissed.

CM No.5607/2011

The order dated 26th April, 2011 pertaining to the above

application directing that the petitioner to be not tried at the General

Security Force Court pursuant to the memorandum dated 15th

December, 2010 is vacated. In any case, the respondents themselves

have decided not to convene the General Security Force Court, and the

petitioner has also not pressed his claim of quashing the memorandum

dated 15th December, 2010 since he has already been tried summarily

by the respondents on 26th May, 2011.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

November 24, 2011.

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