Dinesh Kumar vs Uoi And Others
2012 Latest Caselaw 1043 Del

        *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment reserved on: 07.02.2012
                                        Judgment pronounced on: 15.02.2012

+       W.P.(C) 1438/2011


DINESH KUMAR                                                     ...         Petitioner
                                        versus

UOI AND ORS.                                                      ...        Respondents

Advocates who appeared in this case:
For the Petitioner         :     Petitioner-in-person
For Respondents            :     Mr Jatan Singh with Mr Karan



CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN


V.K. JAIN, J.

1. This writ petition is directed against the orders dated 21.07.2009 and

21.04.2010 passed by the Central Administrative Tribunal, Principal Bench, New

Delhi(hereinafter referred to as "the Tribunal). The facts giving rise to the filing of

this petition are as follows:

The petitioner, who was employed as Deputy Field Officer(DFO) in

Aviation Research Centre(ARC), Cabinet Secretariat, Government of India, since

24.08.1999, was transferred from ARC, Delhi to ARC Doomdooma (Assam) where

he joined on 13.06.2005. A charge-sheet dated 08.08.2008 was served upon him

alleging (i) insubordination by refusing to take over the charge of Library at ARC

Doomdooma and (ii) refusing to resume duties at ARC Doomdooma after availing

earned leave for 13 days. Though the petitioner replied to the charge-sheet, he did

not turn up before the Inquiry Officer and the inquiry was therefore, held ex parte.

A copy of the Inquiry Report was provided to the petitioner and vide order dated

26.06.2009, he was dismissed from service.

2. O.A. No. 1829/2009 was filed by the petitioner before the Tribunal

impleading only Special Secretary ARC as the respondent. Out of the 15 reliefs

sought in the application, 12 related to sending Shri S.K.Tripathy, Special

Secretary ARC and several other persons including his wife to judicial custody,

payment of compensation amounting to Rs.25 lacs and freezing of account of all

the above referred persons. The remaining three reliefs pertained to the setting

aside of the order of the dismissal of the petitioner from service and seeking his

reinstatement with consequential benefits. The OA was dismissed vide order dated

21.07.2009. Thereafter, the petitioner filed an appeal against his dismissal from

service. The appeal was dismissed by the appellate authority vide order dated

15.09.2009. OA No.2977/2009 was then filed by the petitioner challenging the

order dated 26.06.2009, whereby he was dismissed from service as well as the

order dated 15.09.2009 whereby his appeal was rejected. He also sought a

direction that Shri S.K.Tripathy, Special Secretary ARC be convicted and

sentenced under Section 307/219/166/167/120-B of IPC and he be paid

compensation amounting to Rs.50 lacs on account of deterioration of the health of

his mother due to litigation. The O.A. as well as M.As were dismissed vide

impugned order dated 21.04.2010.

3. We have heard the petitioner, who appeared in person, as well as the learned

counsel for the respondent. In O.A. No.1829/2009, which was decided on

21.07.2009, the petitioner claimed that certain documents had not been supplied to

him. The Tribunal after examining those documents found them to be extremely

vague, some of them being the documents pertaining to proceedings under the

Public premises (Eviction of Unauthorized Occupants) Act, 1971. The petitioner

contended before the Tribunal that the aforesaid documents would show the

malicious intentions of the respondents in proceeding against him. The Tribunal,

however, did not find any substance in the contention. It was noted that the

petitioner had not availed the opportunity to defend himself before the Inquiry

Officer and the plea of mala fides had not been established. The Tribunal also did

not believe the claim of the petitioner that the Inquiry Report was not supplied to

him. In this regard, the Tribunal noted that in his letter dated 04.05.2009 alleging

non-receipt of Inquiry Report, the petitioner had falsely claimed that he had not

even been informed of the reasons for holding the departmental inquiry whereas in

fact, he had received the memorandum of charge and also sent replies dated

19.08.2008 and 06.10.2008, denying the charges. The Tribunal was of the view

that the petitioner had not been truthful in the matter. It was also held by the

Tribunal that the petitioner had not availed the remedy of appealing against the

order of the disciplinary authority and no grounds had been adduced for not filing

the appeal in view of the provisions contained in Section 20(1) of the

Administrative Tribunal Act, the application was not admissible.

4. In the second round of litigation, the petitioner again claimed that copy of

the charge-sheet was not given to him and he was not given an opportunity to

defend himself in the inquiry. The Tribunal noted that while dismissing O.A.

No.1829/2009 filed by the petitioner, no liberty was given to him to file an appeal

and he could not be allowed to re-agitate the same points by way of another O.A.

The Tribunal accordingly dismissed the second OA filed by the petitioner.

5. During the course of hearing before us, the petitioner could point out no

legal infirmity in the order passed by the Tribunal. He did not dispute that not only

was the charge-sheet received by him, he had also replied to it on 19.08.2008 and

06.10.2008 as is noted in the order dated 26.06.2009 whereby he was dismissed

from service. He did not dispute that he did not participate in the inquiry, despite

having an opportunity to do so. He did not bring to our notice any communication

asking for documents in order to enable him to defend himself before the Inquiry

Officer. In order to succeed, the petitioner was required to satisfy us that he had

asked for certain documents, which were relevant to the charges against him and

non-supply of those documents had prevented him from defending himself before

the Inquiry Officer or otherwise prejudiced him. The petitioner, however, has not

been able to do so. When we asked the petitioner as to why he did not participate

in the inquiry, he had no plausible answer to give. When we asked him as to why

he did not take charge of the Library at ARC Doomdooma and why he did not join

ARC Doomdooma after availing earned leave for 13 years, the only answer given

by the petitioner was that the officers at ARC Doomdooma were indulging in

corruption and he apprehended a threat to his life. However, there is absolutely no

material on record to indicate any threat to the life of the petitioner at ARC

Doomdooma. Even if there was any such threat, the appropriate remedy for the

petitioner was to lodge a report with the police in this regard, but, he could not

have refused to join his duties at ARC Doomdooma merely because he

apprehended threat to his life if he went to Doomdooma. In any case, the petitioner

did not appear before the Inquiry Officer to substantiate the plea taken by him to

justify his absence from duty. We, therefore, find no merit in the contention.

6. During the course of hearing, it transpired that the petitioner had been

transferred from ARC Doomdooma to ARC Charbatia (Orissa) with effect from

31.05.2008, vide order dated 29.04.2008. When we asked the petitioner as to why

he did not joint at Charbatia in case he apprehended his life at Doomdooma, he had

no satisfactory answer to give and made a bald allegation that the officers at

Charbatia were also in connivance with the officers at Doomdooma and, therefore,

he had a threat to his life at Charbatia as well.

7. As regards the allegation that the copy of the Inquiry Report was not

provided to the petitioner, we notice that the same was sent to the petitioner not

once but twice; firstly on 27.04.2009 and then on 03.06.2009. Hence, this ground

taken by the petitioner also has no merit.

8. While considering a challenge to the order of punishment passed in

departmental proceedings, the Court cannot re-assess the evidence led during the

inquiry nor can it interfere with the finding recorded therein on the ground that

another view in the matter is equally possible on the basis of the material on record.

Once the Court finds that the inquiry was conducted fairly and properly, there was

no denial of natural justice and the findings recorded therein are based on some

evidence, it is not open to the Court to interfere with such findings, unless it is

shown that the finding is clearly perverse. Yet another ground on which the Court

can interfere with the findings recorded in a disciplinary proceeding is the violation

of a statutory rule or where the order passed by the disciplinary authority is

arbitrary or mala fide or is based on extraneous considerations. In the case before

this Court, the inquiry has been conducted in a proper and fair manner, the Inquiry

Officer had been sending copies of every proceeding to the petitioner, despite the

fact that he was not participating in the inquiry. The evidence was led during the

course of the

inquiry and therefore, it cannot be said that the findings recorded therein are based

on no evidence. As noted earlier, even during the course of hearing before us, the

petitioner did not dispute that he had not joined duty either at Doomdooma or at

Charbatia. Therefore, it cannot be said that the view taken by the disciplinary

authority is such a view which no reasonable person could have taken on the basis

of the material available to him. The allegations of mala fides also do not stand

substantiated. We, therefore, find no ground to interfere with the view taken by the

Tribunal.

9. As regards proportionality of punishment, it is no more res integra that

neither the Tribunal nor this Court can interfere with the punishment awarded in

departmental proceedings, unless it is shown that the punishment is so outrageously

disproportionate as to shock the conscience of the Court. It is primarily for the

Disciplinary Authority to decide what punishment the act committed by the

employee warrants and it is not permissible for the Court to direct a lesser

punishment only because it considers that the lesser punishment would be more

reasonable as compared to the punishment awarded by the Disciplinary Authority.

In the facts and circumstances of the case, considering the persistent refusal of the

petitioner to join duty, firstly at Doomdooma and then at Charbatia, we see no

reason to interfere with the punishment awarded to the petitioner.

The writ petition is devoid of any merit and is, therefore, dismissed.

V.K.JAIN, J

BADAR DURREZ AHMED, J

FEBRUARY 15, 2012 'sn'