Delhi High Court

Prem Prakash Gupta vs Union Of India & Ors. on 24 August, 2017

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

              +       WP(C) No.1417/2014

                               Date of Decision: 24th August, 2017.

     PREM PRAKASH GUPTA                               .... Petitioner
                 Through:            Mr.Sanjeet Kumar, Adv.

                         Versus

     UNION OF INDIA & ORS.                      ....Respondents
              Through   Mr.Ruchir Mishra, Adv. with Mr.Mukesh
                        K. Tiwari, Adv.

     CORAM:
     HON'BLE MR. JUSTICE VIPIN SANGHI
     HON'BLE MS. JUSTICE REKHA PALLI

     VIPIN SANGHI , J (ORAL)

     1.    The petitioner has preferred the present petition to assail the

     order dated 5th July, 2013 passed by the Principal Bench, Central

     Administrative Tribunal, New Delhi in Original Application

     No.375/2011. The said Original Application (OA) preferred by the

     petitioner/applicant, to assail the disciplinary proceedings initiated

     against him and the consequential order passed thereof, has been

     dismissed. The petitioner has also sought a declaration that the period




          WP(C) No.1417/2014                                  Page 1 of 13
 under suspension from 9th August, 2005 to 27th December, 2005 be

treated as spent on duty for all purposes.

2.    The petitioner, at the relevant time, was serving as a Public

Relation Officer with the respondents at Meerut. During the course of

his functioning, he was required to submit a verification report in

respect of a firm called M/s Silver Stone Communication, Jai Devi

Nagar, Meerut, verifying the authenticity of the said firm.              The

petitioner, accordingly, gave his verification report.   On the basis of

the said verification, during the period 21 st June, 2005 to 21st July,

2005, a sum of Rs.98,100/- for 109 V.P. Money Orders was paid to

the said firm. However, subsequently, it was found that the said firm

was fake.     Consequently, disciplinary proceedings were initiated

against the petitioner for submitting a false report.

3.    The petitioner was initially placed under suspension on 9 th

August, 2005. The suspension of the petitioner was revoked on 27 th

December, 2005.       In the meantime, on 19th October, 2005, the

petitioner was issued a charge-sheet by the disciplinary authority. The

Article of Charge, as translated, reads as follows:-

              "Article-I While working as PRI (P) Meerut City
             HPO during 28-04-2005 to 21-07-2005 verified the
             so called firm M/S Silver Stone communication, Jai
             Devi Nagar, Meerut only on the basis of rent receipt
     WP(C) No.1417/2014                                   Page 2 of 13
                of shop No.01 dated 25-04-2005 for Rs 800/- a
               deposit slip of advance of Dena Bank for Rs.3000/-
               and a ration card issued on address:- 130-Sharma
               Nagar, while the proprietor of the firm named
               Sh.Rakesh Bhasin stated on 29-07-2005 before
               Sh.SS. Negi O/S % the SS Pos Meerut. That the pass
               book of the firm is not yet prepared and the deposited
               amount has been returned to him and even the
               registration of the Firm is not made while under the
               mail orders system from business customers willing
               to do, could have been completed in prescribed
               Questionire Form under which the Firm Regn.
               Certificate, Details of Bank A/C Number, PAN of
               Income tax, Sales Tax PAN No, nature of business
               etc. and obtained other some requisite informations
               could have been verified from concerned offices.
               Therefore the verification of the firm could not be
               done properly resulting which to the firm which was
               found Fake in the enquiry a sum of Rs.98100/- for
               109VP MOs was paid during 21-06-05 to 21-07-05.
                       It is therefore alleged that while working afore
               said capacity Sh. PP Gupta failed to maintain
               devotion to duty and worked as non becoming of a
               Govt. servant and there by violated rule 3(1) (ii) and
               3(I) (iii) of CCS (Conduct)."
4.       Pursuant to the departmental inquiry the inquiry officer vide

report dated 1st March, 2008 found the petitioner guilty of the

misconduct.       Consequently, the disciplinary authority-after duly

complying with the requirements of law and granting an opportunity

to the petitioner to make his representation, accepted the inquiry

report      and     punished      the    petitioner with the penalty of

withholding of      his   next   one    increment   without    cumulative

     WP(C) No.1417/2014                                     Page 3 of 13
 effect for a period of four years. He also directed that the suspension

period between 9th August, 2005 and 27th December, 2005 be treated

as dies non for the purpose of increment, leave, pension etc.

5.      The petitioner, then preferred an appeal before the Appellate

Authority. The Appellate Authority upon perusal of the appeal and

the order passed by the disciplinary authority, issued a show cause

notice to the petitioner proposing to enhance the punishment. The

said show cause notice was issued on 22nd August, 2008. To the said

show cause notice, the petitioner submitted his reply on 4th September,

2008.     The appellate authority considered the said reply of the

petitioner and by a detailed order, rejected the representation made by

the petitioner and enhanced the punishment to reduction of basic pay

of the petitioner by four stages from Rs.6350/- to Rs.5750/- for a

period of two years with cumulative effect. He maintained the order of

the disciplinary authority to the effect that the period of suspension

from 9th August, 2005 to 27th December, 2005 be treated as dies non

for all purposes i.e. for the purposes of increment, leave and pension.

Further appeal preferred by the petitioner was rejected by the Post

Master General, Bareilly Region vide detailed order passed on 5th

August, 2010.     Consequently, the petitioner preferred the aforesaid


     WP(C) No.1417/2014                                  Page 4 of 13
 Original Application. The Tribunal did not find any merit therein and

dismissed the same.         However, the Tribunal has directed that a

separate order be passed regarding the manner of treatment of the

suspension period by the competent authority, after giving show cause

notice to the petitioner.

6.    The first submission of learned counsel for the petitioner is that

he has been subjected to two different punishments for the same

misconduct. Not only has his pay been reduced as directed by the

Appellate Authority but the period spent on suspension between 9th

August, 2005 & 27th December, 2005, has been directed to be treated

as dies non.

7.    We do not find any merit in this submission of counsel for the

petitioner. It is for the competent authority to pass an order directing

the manner in which the suspension period has to be treated by resort

to Rule 54-B of the Fundamental Rules.         An order directing the

period spent on suspension as dies non is not punitive. There is no

question of double jeopardy, as claimed by the Petitioner.

8.    Since the suspension of the petitioner was revoked, pending

finalization of the disciplinary proceedings, sub-rule (6) of FR 54-B is

attracted. The competent authority was, therefore, entitled to review


     WP(C) No.1417/2014                                  Page 5 of 13
 on its own motion, after conclusion of the proceedings, as to how the

said period should be treated under sub-Rule (3), or sub-rule (5), as

the case may be. Since the petitioner has been found guilty, sub-rule

(3) of FR 54-B is not attracted.       The competent authority was,

therefore, required to follow the procedure prescribed in FR 54-B (5).

Rule 54-B (5) reads as under:-


             "F.R. 54-B (5)       In cases other than those falling
             under sub-rules (2) and (3) the Government servant
             shall, subject to the provisions of sub-rules (8) and
             (9) be paid such amount (not being the whole) of
             the pay and allowances to which he would have
             been entitled had he not been suspended, as the
             competent authority may determine, after giving
             notice to the Government servant of the quantum
             proposed and after considering the representation,
             if any, submitted by him in that connection within
             such period (which In no case shall exceed sixty
             days from the date on which the notice has been
             served) as may be specified in the notice."
9.    The Tribunal has, accordingly, directed that the show cause

notice be issued to the petitioner on the aspect of treatment of the

suspension period. The eventual order that may be passed on this

aspect cannot be considered to be a penalty arising out of the

disciplinary proceedings. The aforesaid submission of the petitioner

is, accordingly, rejected.




     WP(C) No.1417/2014                                    Page 6 of 13
 10.    The next submission of learned counsel for the petitioner is that

the Appellate Authority, while enhancing the penalty imposed upon

the petitioner by the disciplinary authority, has not provided any

justification thereof. He further submits that the order passed by the

appellate authority is bereft of any reasons as to why the penalty has

been enhanced. The appellate order, inter alia, states as under:-


              "8. On the basis of above facts and after
              assessment of arguments in appeal it is clear that
              the Appellant in his appeal has not mentioned any
              fact which may be admitted.
                     In the representation dated 04-09-08 also the
              Appellant has not offered any new fact by which
              the allegations leveled against him could be
              disproved. The allegations are of grave nature
              which are proved as True in the enquiry. I do
              feel that the Punishment awarded by the
              disciplinary Authority is not commensurate with
              the allegations and is much less that the
              justification. Therefore I issue the modified
              orders as follows:-
                                   ORDER

I therefore enhance the punishment given by the Disciplinary Authority and order the reduction of pay in the basic pay of the official for four stages from Rs.6350/- to Rs.5750/- for two years with cumulative effect and the period of suspension from 09-08-05 to 27-12-05 be treated as Dies non for the purpose of increment, leave and pension. This order will be effective from the date of original punishment order. Accordingly I

disposed of the Appeal of Shri Prem Prakash Gupta APM (SB) Meerut Cantt."

(Emphasis supplied)

11. Learned counsel for the petitioner has also placed reliance on

the decision of the Supreme Court in R.P. Bhatt Vs. Union of India &

Others (1986) 2 Supreme Court Cases 651, to submit that the

Appellate Authority is bound to apply its mind on the appeal preferred

by the delinquent employee and he cannot summarily dismiss the

same. The Appellate Authority should state its reasons for confirming

the order passed by the disciplinary authority and should have stated

the reasons as to why the penalty has been enhanced.

12. Having heard learned counsel for the petitioner, we do not find

any merit in the aforesaid submission as well. A perusal of the order

dated 26th June, 2009 passed by the Appellate Authority shows that

the submissions advanced by the petitioner in response to the show

cause notice issued to him, have been dealt with, one by one. We

have perused the said order and do not find any infirmity in the same.

The appellate authority has observed that the punishment awarded by

the disciplinary authority was not commensurate with the allegations

and was much less than what was justified in view of the proven

misconduct of the petitioner.

13. The order dated 5th August, 2010 passed on further appeal by

the petitioner, also deals with the submissions of the petitioner point-

wise. The said order, inter alia, states as under:-

"6. The points raised by the appellant in his appeal dated 03.11.2008 are discussed ad seriatim below.

6.1 The assertions/sequences narrated by the appellant are not convincing. That the order passed by disciplinary authority and reviewing appellate authority are based upon the gravity of misconduct committed by the petitioner.

6.2 The assertion/sequence narrated by the appellant is not admitted. That the charge sheet issued to the appellant is clean, specific and liable to be proved. These cannot be quashed merely due to omission of quoting relevant Departmental rules in any case.

6.3 The assertion/sequence narrated by the appellant is not admitted. The verification of the said fake firm was carried out by the appellant deceitfully and insincerely. Sri Rakesh Bhasin, proprietor of the firm, in his statement dated 29.07.05, has clearly stated that deposit slip for Rs.3000/- for opening of account at Dena bank Meerut with a/c No.52110 and application form No.148710 a/t Labour office, Meerut was shown to the appellant during the course of verification. This reveals that neither the relevant PB was issued by Dena Bank nor Reg. No. was issued by the Labout

office, Meerut. Hence the firm was not in existence and was fake one.

6.4 The main charge against the appellant was verification of fake firm. As mentioned in previous para, this firm was verified by the appellant mainly on the basis of these documents i.e., deposit receipt & application form. Based on these & verification report of appellant, payment of VPMOs & delivery of VP articles were released to the proprietor of the fake firm. Besides, as per statement of proprietor dtd 29.07.05, neither the account was opened in Bank nor registration No. issued by Labour office, Meerut. Thus the assertion/sequence narrated by the applicant is not admitted.

6.5 The charges leveled against the appellant are specific and confirmed one and based on documentary proof. Disciplinary authority and reviewing appellate authority had passed their orders after thorough examination & relevant documents and gravity of misconduct. Thus the assertion/sequence narrated by the applicant is not admitted.

6.6 The available additional documents, as required by the appellant, were supplied through the PO concerned on 24.05.07 for the purpose of providing full opportunity to the appellant. Hence plea is not acceptable.

6.7 On receipt of defence statement of appellant dtd 07.11.05 in which he did not admit the charges, procedure was followed by the then disciplinary authority by appointing IO & PO and initiated

inquiry. As such the version of appellant is totally wrong.

6.8 Full opportunity was provided by the IO to the appellant during the course of enquiry. Hence the plea taken by the appellant is not acceptable.

6.9 By verifying bogus firm, the appellant had not paid devotion to his duty and acted as unbecoming a Govt. servant. As such he violated Rule 3.1(ii) and 3.1(iii) of CCS(CCS) Rules,1964."

xxx xxx xxx

"7. Keeping in view of the above facts, it is clear that the appellant has not put forth any convincing reason to accept in his defence. As such it is obvious that due to deceitful verification of the fake firm by the appellant, a sum of `.98,100/- was paid to the owner of the fake firm, for which the appellant was fully responsible. The reviewing Appellate authority has considered all the aspects of the case and decided as per Departmental rules and procedures. Hence, I am of the opinion that the punishment awarded by the Reviewing Appellate Authority is perfectly commensurate with the allegations leveled against the appellant. As such, I hereby reject the appeal and confirm the punishment imposed to the appellant by the Reviewing/Appellate authority. The appeal dated 14.08.09 preferred by Sh.Prem Praksh Gupta, BCR PA. Meerut Cantt. Is accordingly disposed of."

14. The aforesaid provides more than the adequate justification for

enhancing the punishment eventually awarded to the petitioner. The

Appellate Authority has found, and rightly so, that the conduct of the

petitioner was fraudulent and deceitful. He was the person

responsible for conducting the process for verification of the firm M/s

Silver Stone Communication. He was the one who had verified the

authenticity of the said firm. On that basis, large amount of money

was released to the said firm, and the firm was subsequently found to

be fake. The petitioner could not explain in the course of the inquiry,

as to how the said had happened. If he had genuinely verified the

credentials of the said firm, the same would not have happened.

15. In our view, even the punishment awarded by the Appellate