Taj Mohd. vs Union Of India Through The ...
2013 Latest Caselaw 570 Del

$~19
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Dated of decision: 06.02.2013
+       W.P. (C) 710/2013

        TAJ MOHD.                                                 ..... Petitioner
                              Through:       Mr. R. K. Shukla, Advocate.

                              versus

        UNION OF INDIA THROUGH
        THE SECRETARY AND ORS                                   ..... Respondent

                        Through:             Appearance not given.

CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE R.V. EASWAR

S. RAVINDRA BHAT, J: (OPEN COURT)

The petitioner is aggrieved by an impugned order made by Commandant, 45th Battalion, ITBP on 03.08.2011. The appeal preferred by him to the concerned Deputy Inspector General was rejected on 03.07.2012.

2. Briefly the facts are that the petitioner has been working as a Constable in the ITBP since 1987 and was deployed along with two other constables on 02.07.2011, to bring back another ITBP Constable (Water Carrier Ankur Rana). The team was directed to report back to the Battalion on 14.07.2011. The writ petition is unclear as to whether all the three reported on the same day. It is, however a fact that the petitioner returned on 18.07.2011. The respondent issued a chargesheet on 20.07.2011 seeking an explanation and further demanding why penalty is not to be imposed upon the petitioner. The petitioner's explanation was that he returned with Ankur Rana and that there was no cause for the respondents to impose any penalty. It is also alleged that an order directing record of evidence (ROE) in accordance with the provisions of the ITBP Act was issued but

subsequently rescinded. In this background on 03.08.2011 the competent authority issued the penalty of severe reprimand. The petitioner thereafter appealed to the Deputy Inspector General. At the stage of the appeal he relied upon the affidavit of one Pritam Chand, resident of Village Ambadi, PO Malan, District Kangra, Himachal Pradesh, who was also the father of Water Carrier Ankur Rana. In that affidavit the deponent stated that on 13.07.2011 the petitioner Taj Mohd. left the village to the Unit. The appellate authority after taking the affidavit into consideration declined to interfere with the penalty and rejected the appeal.

3. The petitioner argues that after deciding to proceed formally and record the evidence the respondents should not have proceeded with the matter summarily and ought to have given full and fair opportunity to him to rebut the charges levelled. It was argued that the delay of reporting back was only a small one i.e. of 3-4 days and ought not to have been visited with the penalty of severe reprimand which is disproportionate.

4. This Court has considered the submissions and averments. The petitioner does not deny that he reported back to duty on 18.07.2011, even though he was required to report back on 14.07.2011. As to what was the position with the other two Constables deployed along with him is unknown. The petitioner does not mention that they returned back along with him, either in the appeal made to the appellate authority or in the present petition. This silence is not only baffling but points out to the likelihood that he alone reported late along with Ankur Rana. If such is the correct situation, the petitioner naturally owed a reasonable explanation for his reporting back to the duty late.

5. As far as the question of illegality in the order recalling the direction to record the evidence is concerned, the Court sees no infirmity with the order. The respondents initially were of the opinion that the petitioner's misconduct required a more severe response. Later, however, they recalled that order and proceeded to

initiate minor penalty proceedings culminating in a severe reprimand. There is no reason why such approach can be characterised as arbitrary or unfair. As far as the question of proportionality of penalty goes the Court is unpersuaded with the petitioner's submissions. Late reporting in the facts and circumstances of the case by 3-4 days required some penalty order once the facts were established. That this Court, if asked to second guess and act as an administrative body might take perhaps more lenient view is no ground to interfere. No interference with the order is required as it does not entail such drastic consequences as in the case of stoppage of increments or other severe forms of penalty. For the above reasons, the Court finds no infirmity in the impugned order. The writ petition is accordingly dismissed.

S. RAVINDRA BHAT, J

R.V.EASWAR, J FEBRUARY 06, 2012 hs