Pratik Saxena vs Uoi & Ors.
2012 Latest Caselaw 6967 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Decision: December 05, 2012

+                          WP(C) 7541/2012

       PRATIK SAXENA                                ..... Petitioner
                Represented by: Ms.Rekha Palli, and Ms.Amrita
                Prakash, Advocates.

                                  versus

       UOI & ORS.                                    ..... Respondents
                 Represented by: Mr.Amrit Pal Singh, Advocate with
                 Asstt.Comdt.Satyendra Kumar Jha, CISF.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (Oral)

1. Heard for final disposal at the stage of preliminary hearing itself since learned counsel for the respondents states that the writ petitioner has filed all relevant record necessary to be considered for disposal of the writ petition.

2. The charge memo dated January 25, 2011 listing the charge pertaining to negligence towards duty/indiscipline against the petitioner reads as under:-

"Force No.032570069 SI/Exe. Pratik Saxena of „A‟ Coy, North Block, Zone - I, New Delhi was nominated for S.T.F. Commando Course conducted at R.T.C. Barwaha between 10.05.2010 to 03.07.2010 but the force member came back to Unit without completing the course. The Force member did not inform the Competent Authority about the reasons for abandoning the course in between. The above said act is symbol of your gross negligence for duty, indiscipline and

disobedience of instructions of the superior officers."

3. Denying the charge the petitioner informed that due to medical problems he could not complete the RTC Course and as regards he not informing the Competent Authority about the reasons for abandoning the course he highlighted that the movement order itself records the reason why the petitioner was being sent back by the authorities at Barwaha and that said movement order was handed over by him to the Competent Authority when he reported back.

4. Levying the minor penalty of „censure‟, vide order dated February 01, 2011 the Deputy Commandant opined as under:-

"The statement of the force member is not acceptable as on 16/06/2010 (afternoon) movement order was issued by RTC Barwaha and under the special comments it was stated that "The above force member did not show any interest during the course and was on medical rest between 19.05.2010 to 04.06.2010." which clearly show that the delinquent force does not have any interest in the STF Course and he came back to the unit without completing the course on the excuse of back pain."

5. Now, it was not the charge against the petitioner that he feigned a sickness by claiming that he had a back pain. The charge was of not informing the authority the reason for abandoning the course in between. The order passed by the Disciplinary Authority inherently admits that the movement order issued by RTC Barwaha directing petitioner to report back contained the reason why the petitioner was being made to abandon the course in between.

6. Nobody can be punished for a reason other than the charge. If the charge against the petitioner was that he feigned a medical sickness, he would have then responded adequately. We highlight once again that

the charge is of not informing the reason to the Competent Authority for abandoning the RTC course and the penalty levied is on account of the reason that the reason for the petitioner to abandon the STF Course was a mere ruse and we highlight the words used in the penalty order : ' on the excuse of back pain'. To allege against a person that the back pain is an excuse would obviously mean that the person is feigning a physical infirmity. If this was the substratum of the allegation, nothing prevented the authorities to so allege.

7. Instant case is one of the reason for the penalty being other than the reason for the charge.

8. Now, the act of indiscipline alleged against the petitioner as per the charge is of not informing the Competent Authority about the reasons for abandoning the course in between. Since the factual basis is missing, we hold that it cannot be held that the petitioner committed an act of indiscipline. The movement order conveyed the reason why petitioner did not complete the RTC Course.

9. The writ petition is allowed. Impugned order dated February 01, 2011 and the appellate order dated May 11, 2011 as also the revisional order dated October 31, 2011 levying the penalty of „censure‟ and upholding the same thereafter are quashed. Mandamus is issued to remove the penalty entered in the service book of the petitioner. We also quash the penalty of warning pertaining to the same act of the petitioner in reporting back without completing the RTC course levied by the Assistant Commandant on September 23, 2010 and would wonder as to how two penalties i.e. one of „warning‟ and the other of „censure‟ could be inflicted on the same charge.

10. From the petition it appears that the two penalties have adversely affected petitioner‟s consideration for promotion to the rank of

an Inspector in May 2012, but since pleadings on the said issue are vague, we direct that if a DPC was held which considered the penalties afore- noted and the same have adversely affected petitioner‟s entitlement to be promoted, review DPC would be held within the next 16 weeks. If successful completion of RTC Course is a pre-requisite for promotion, since petitioner has not completed the course, he may not be promoted.

11. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE DECEMBER 05, 2012 dk