Delhi High Court
Nanak Chand vs Distt. & Sessions Judge, Delhi & ... on 18 December, 2012
Author: Sanjiv Khanna
$~20.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITON (CIVIL) NO. 2519/2012
Date of decision: 18th December, 2012
NANAK CHAND ..... Petitioner
Through Mr. Prag Chawla & Mr. Azmat H.
Amanullah, Advocates.
versus
DISTT. & SESSIONS JUDGE, DELHI & ANR.... Respondents
Through Ms. Latika Chaudhury, Advocate
for Ms. Avnish Ahlawat, Advocate for
respondent No. 1.
Mr. Mayank Mikhail Mukherjee, Advocate
for Mr. Viraj R. Datar, Advocate for
respondent No. 2.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P.GARG
SANJIV KHANNA, J. (ORAL)
The petitioner was appointed as a Lower Division Clerk in the
Office of the District and Sessions Judge on 3rd March, 1964 and he
retired from service on 31st March, 2005.
2. During his service, the petitioner faced three departmental
proceedings which were initiated on or before 1975. In one of the
departmental proceedings, he was dismissed from service on 23rd
October, 1975. In view of the dismissal order, the two other
departmental proceedings were kept in abeyance and no final order
was passed.
3. The petitioner challenged his dismissal from service before the
Central Administrative Tribunal and succeeded vide decision dated
14th January, 1987.
4. He was reinstated and promoted as Upper Division Clerk with
effect from 6th June, 1980. He was upgraded to the scale of Assistant
with effect from 11th November, 1986 and continued in the said scale
upto 31st October, 1990. Thereafter, he was granted upgraded Senior
Assistant's scale with effect from 1st November, 1990. After about 12
years and 9 months from the date of reinstatement in 1987, in 1999 the
petitioner was served with a memo under Rule 15A of the CCS(CCA)
Rules, 1965 enclosing therewith inquiry report dated 5 th April, 1975
pertaining to the second departmental proceedings. The petitioner
protested and contested, but penalty of dismissal from service was
directed vide order dated 22nd September, 2003. This order was
challenged in a departmental appeal, with success. The appeal was
allowed by order dated 31st August, 2007. The appellate order records
that the petitioner was reinstated in the year 1987 and it was wrong and
incorrect for the department to sleep over the other departmental
proceedings for 12 years and 9 months. The departmental inquiry
initiated should have been concluded within a reasonable period.
5. The District and Sessions Judge, Delhi thereupon passed an
order under Fundament Rule 54-A(3) directing that the petitioner be
paid full pay and allowances for the period between the date of
dismissal, i.e., 22nd September, 2003 till the date of superannuation,
i.e., 31st March, 2005. The period was directed to be treated as period
spent on duty for all purposes, i.e., leave, pay etc. The aforesaid order
records that the third departmental proceeding was pending and grant
of retirement benefits shall be taken after conclusion of the inquiry in
the third departmental proceedings.
6. It took about another 17 months for the third departmental
enquiry to be concluded and vide order dated 27 th January, 2009,
punishment of censure was imposed. The order itself refers to the
charge which relates to the conduct of the petitioner in the year 1974,
when he was working as an Ahlmad.
7. As the aforesaid punishment of censure was imposed vide order
dated 27th January, 2009, the Departmental Promotion Committee's
recommendation/conclusions for promotion to the post of
Superintendent for the years 2001, 2002 and 2003 which were kept in
sealed covers, have not been opened. The respondents had resorted to
sealed cover procedure in the said years as the second and third
departmental proceedings were pending.
8. The grievance of the petitioner is that due to the failure to open
the sealed covers, he has been denied an opportunity of promotion to
the post of Superintendent. The respondents have pointed out that
there are no statutory service rules for promotion to the said post, but
selection is normally made on the basis of seniority-cum-fitness.
9. The stand taken by the respondents is that sealed covers are not
required to be opened as the petitioner has suffered punishment of
censure in the third departmental proceedings vide order dated 27th
January, 2009. The respondents rely upon paragraph 17.6.2 of
Swamy's Manual on Establishment and Administration under Chapter
54 of the CCS(CCA) Rules, 1965.
10. The respondents may be technically right, but the facts of the
present case are very peculiar in nature. Admittedly, the departmental
proceeding in which the petitioner has been indicted and punishment of
censure had been imposed pertains to the year 1974 but punishment
was imposed only on 27th January, 2009. There is a long delay of
around 35 years. The petitioner had rejoined the office of the District
Judge and had worked from 1987 onwards. The respondents took
more than 12 years and 9 months to reinitiate the two departmental
proceedings after rejoining. It was in these circumstances that the
departmental appeal, preferred by the petitioner against the order of
dismissal in the second departmental proceeding was allowed. The
order of dismissal was quashed with the direction that the petitioner
should be reinstated in service. In normal course, even if the petitioner
had suffered the penalty of censure, the effect thereof would have
lasted for six months and not beyond. Thus, in case the departmental
proceedings had been initiated within reasonable time after the
petitioner rejoined service in 1987 and an order of censure was passed,
he would have suffered the effect thereof for a period of 6 months
only.
11. In view of the aforesaid position, we without interfering with the
order of censure, deem it appropriate to ask the respondents to open the
sealed cover and consider the petitioner for notional promotion to the
post of Superintendent. We clarify that the petitioner will not be
entitled to back wages and in case it is found that the petitioner is
entitled to promotion, he will be only granted higher pension with
effect from the date the writ petition was filed. The writ petition is
accordingly disposed of. No costs.
SANJIV KHANNA, J.
S.P. GARG, J.
DECEMBER 18, 2012
VKR/NA
