Harish Kumar vs District And Sessions Judge, ...
2014 Latest Caselaw 4549 Del

$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Decided on: 17.09.2014

+      W.P.(C) 8577/2009
       HARISH KUMAR                                .....Petitioner
                          Through : Ms. Prachi. V. Sharma, Advocate.
                          Versus

       DISTRICT AND SESSIONS JUDGE, DELHI AND ANR.
                                              ......Respondents

Through : Ms. Avnish Ahlawat with Ms. Latika Chaudhary, Advocates.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

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1. In the present petition, an order of the District Judge dated 21.04.2005, removing the petitioner for misconduct, and the order of the appellate authority confirming that removal order, are impugned.

2. The brief facts are that the petitioner, an employee in the Delhi District Court at Tis Hazari was served with a memorandum on 24.10.2000, initiating an inquiry against him under Rule 16 of the CCS (CCA) Rules, 1965 (hereafter called "the Rules"). The substance of the charges leveled were that he acted negligently and carelessly in regard to the custody of files relating to a criminal proceeding - State v. Dalip Bansal & Rakesh under Sections 28/112 of the Delhi Police

W.P.(C) 8577/2009 Page 1 Act, PS Karol Bagh. The inquiry into the charges was on the basis that at its culmination, the petitioner, if found guilty, would be imposed with minor penalty. During the course of proceedings, the disciplinary authority relied upon the documentary material as well as the statements of some witnesses who were permitted to be cross- examined. Likewise, the petitioner - delinquent official - was permitted to lead evidence in support of his plea of innocence. At the conclusion of the inquiry, the officer in his report dated 20.11.2004 held that the destruction of the original kalandara or records was within the petitioner's knowledge and that it was his primary duty to keep the judicial record in safe custody. The Inquiry Officer thereafter went on to say that:

"However, since the matter is pending against the delinquent since 1998 and he had suffered trial for last about 5-6 years and that even the destructed documents were reconstructed, so these facts be kept in mind while awarding punishment to him."

3. The Inquiry Report was furnished to the petitioner who represented against the finding. The disciplinary authority, i.e. the District Judge, on 07.04.2005, discussed the material which formed the basis of the Inquiry Report and was of the opinion that the petitioner had connived with the accused and destroyed the material documents from the judicial record, and consequently directed a notice to be issued to him, calling for his views. The petitioner appears to have represented against the proposal - which was furnished to him on 11.04.2005. This representation was made on 23.04.2005. However,

W.P.(C) 8577/2009 Page 2 even before that, on 21.04.2005, the disciplinary authority proceeded to impose major penalty of removal. In the appeal preferred to the appellate authority, the petitioner argued that having initiated proceedings under Rule 16 of the Rules, if the disciplinary authority was of the opinion that the facts indicated warranting of imposition of major penalty, a show-cause notice under Rule 14 of the Rules and consequent proceedings had to be drawn, and that in the absence of such procedure, the imposition of major penalty was contrary to law. This argument was, however, turned down. The removal from service is, therefore, challenged before this Court.

4. Learned counsel argued that having adopted the procedure for minor penalty under Rule 16 of the Rules, the disciplinary authority ought not to have prejudiced the petitioner, at the fag-end of the proceeding, without following the procedure prescribed, by imposing major penalty. It is contended that in major penalty proceedings under Rule 14 of the Rules, the officer concerned is put to notice of the possibility of the imposition of major penalty and can, therefore, respond to the notice and present appropriate evidence which might be elaborate. On the other hand, minor penalty proceedings are premised upon the imposition of lighter punishment for which the response would be of an entirely different kind. Learned counsel relied upon a learned Single Judge decision of this Court in Jeet K. Saroha (decided on 06.02.2007). The Court in that instance had set aside the major penalty imposed upon the employee by the District Judge in a similar circumstance, and held that when a delinquent official is charge sheeted for minor penalty, major penalty cannot be imposed upon him.

W.P.(C) 8577/2009 Page 3 Learned counsel also relied upon the ruling of the Supreme Court in Kulwant Singh Gill v. State of Punjab 1991 Supp. (1) SCC 504.

5. It is contended on behalf of the respondents that as noticed by the appellate authority, the petitioner cannot complain of prejudice because he was given opportunity to lead his evidence. Highlighting that a show-cause notice was issued before imposition of major penalty, learned counsel argued that whatever had to be said and urged was done before the disciplinary authority, and only the nature of penalty was to be decided upon. Having presented his point of view, once the disciplinary authority was of the opinion that major penalty was warranted, the petitioner could not now question the wisdom of that decision which was based upon materials gathered during the inquiry.

6. The short question which requires decision is whether the imposition of major penalty after initiation of minor penalty proceedings, and receiving the Inquiry Officer's report in such minor proceeding, is justified. There is no doubt that there is a difference in the procedure adopted, depending on whether the penalty is major or minor. Rule 16 of the Rules governs minor penalty procedure. It does not confer a right upon the employee to lead evidence; the power to permit the employee to lead evidence is discretionary. However, the procedure for imposition of major penalty, under Rule 14, is more elaborate. This is evident form the fact that the rule making authority, in its wisdom, has felt that where the imposition of a minor penalty could have a lasting impact, such as by stoppage of increments, then

W.P.(C) 8577/2009 Page 4 major penalty procedure must be followed, as stipulated in Rule 16(1A) of the Rules:

"16. Procedure for imposing minor penalties

XXXXXX XXXXXX XXXXXX

(1-A) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government servant under clause (a) of that sub-rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of Rule 14, before making any order imposing on the Government servant any such penalty."

7. It is apparent, therefore, that in the case of imposition of even a minor penalty, such as stoppage of increment at the fag-end of an employee's career, if there is likelihood of an impacting upon his pension or other terminal benefits, the disciplinary authority is obliged to start the inquiry procedure afresh and initiate major penalty proceedings. In the present case, there is no dispute that the proceedings were based upon a charge sheet and the procedure adopted under Rule 16 of the Rules. It was at the decision-making stage that the decision making authority, by a volte-face, decided to impose major penalty.

8. We notice that even though the direction to issue a show-cause notice was given on 07.04.2005, along with the Inquiry Officer's

W.P.(C) 8577/2009 Page 5 report which proposed major penalty, in effect, the show-cause notice was issued on 11.04.2005; the petitioner's response was made on 23.04.2005. By that time, the disciplinary authority had already imposed the penalty on 21.04.2005. These aspects appear to have escaped the notice of the appellate authority completely, who held that the petitioner was not prejudiced at all. As discussed earlier, the ruling in Saroha (supra) and Rule 16(1-A) of the Rules underline that if at any stage the disciplinary authority feels that major penalty (or a minor penalty having a lasting, adverse impact on pension etc.) is likely to be imposed, a Show Cause Notice under Rule 14 is necessitated and proceedings have to begin afresh. Clearly, therefore, the imposition of major penalty of removal, without complying with the procedure for major penalties, in this case is indefensible.

9. The above observations would have disposed of this petition and ordinarily the Court would have left it to the discretion of the disciplinary authority to take-up the matter afresh. However, during the course of hearing, this Court had suggested that instead of relegating the matter, after setting aside the penalty to the disciplinary authority, a minor penalty be imposed in the present proceeding itself. The petitioner was present in Court; he was agreeable to this course. The matter was accordingly adjourned for a day to be appropriately considered by the disciplinary authority, which has now concurred to the proposal through its counsel, which was communicated during the hearing today.

W.P.(C) 8577/2009 Page 6

10. In view of the above discussion, the impugned order of removal is hereby set aside and substituted with minor penalty of withholding two increments with cumulative effect for two years. This will have the effect of postponing his increments for the period of duration of the penalty, i.e. two years.

11. Consequently, the petitioner shall be reinstated in service without arrears of salary and allowance, but with continuity of service and consequential benefits of notional increments after giving effect to the penalty for the period he was out of employment, for purposes of fitment in the scale etc. The period out of employment will also be taken into consideration for the purpose of terminal, pensionary and other retiral benefits. The directions in this proceeding shall be complied within six weeks.

12. The writ petition is partly allowed in the above terms.

Order dasti.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) SEPTEMBER 17, 2014

W.P.(C) 8577/2009 Page 7