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Som Dutt vs Gnct Of Delhi & Ors on 26 February, 2021

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw, Amit Bansal

$~3
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) 2506/2021
        SOM DUTT                                     ..... Petitioner
                         Through: Mr. A.K. Behera & Mr. Sourabh
                                    Ahuja, Adv.
                                 Versus
        GNCT OF DELHI & ORS.                         ..... Respondents
                         Through: Mr. Nilesh Kumar Singh, Adv. for
                                    Mrs. Avnish Ahlawat, Adv.
        CORAM:
        HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
        HON'BLE MR. JUSTICE AMIT BANSAL
                   ORDER

% 26.02.2021 CM No.7361/2021 (for exemption)

1. Allowed, subject to just exceptions and as per extant Rules.

2. The application is disposed of.

W.P.(C) 2506/2021

3. The petition impugns the order dated 17th March, 2020 of the Central Administrative Tribunal (CAT), of dismissal of OA No.1395/2018 preferred by the petitioner impugning the order dated 22nd September, 2016 of the Disciplinary Authority of the respondents Delhi Police of dismissal of petitioner from service as well as the order dated 15th January, 2018 of dismissal of the departmental appeal preferred thereagainst.

4. The counsel for the respondents appears on advance notice.

5. We have heard the counsel for the petitioner.

6. The counsel for the petitioner has argued, that (i) the petitioner, till his suspension on 29th January, 2016 was posted as a Sub-Inspector in Special Branch of Delhi Police, which is entrusted with the task of passport W.P.(C) No.2506/2021 Page 1 of 6 verification; (ii) in the time preceding the same, there was an acute shortage of personnel, for passport verification, and the petitioner himself, owing to the said shortage was given the work of passport verification of two police stations; (iii) passport verification was / is a time bound process, required to be completed within 21 days; (iv) the petitioner, in the second week of December 2015 and on 23rd December, 2015 submitted the reports of verification of passports of two and three persons respectively; (v) the petitioner, prior thereto only had suffered a knee injury and owing whereto was having difficulty in climbing stairs, for visiting residences on upper floors, for passport verification and had requested for change but which again was not permitted owing to shortage of staff; (vi) the petitioner thus submitted the aforesaid reports of verification of residence for passport verification by calling the applicants to the ground floor and on seeing them coming down from the staircase of the concerned residence; (vii) the petitioner, on 22nd January, 2016 happened to visit the said locality again for verification of residence of some other applicant and during the said verification learnt that the applicants, the reports of verification of whose passports the petitioner had given earlier, were in fact not residing there;

(viii) the petitioner was immediately alerted and on 22nd January, 2016 itself intimated the Passport Office of the error in his verification and also contacted the post office to stop the delivery of passports on the basis of report of verification submitted by the petitioner; (ix) on the basis of the intimation dated 22nd January, 2016 given by the petitioner himself of the error on his part, the petitioner on 29th January, 2016 was placed under suspension; (x) a vigilance inquiry was initiated against the petitioner, which did not find any malice, corruption or quid pro quo angle in the wrong W.P.(C) No.2506/2021 Page 2 of 6 verification aforesaid by the petitioner of the passports of the applicants aforesaid; (xi) a disciplinary inquiry was initiated and the inquiry officer submitted a report of, though the charge of wrong verification having been made out but again no mala fide or corruption having been established against the petitioner; and, (xii) the Disciplinary Authority, on the basis of the aforesaid report meted out the punishment of dismissal from service to the petitioner and the departmental appeal preferred by the petitioner was dismissed.

7. We have enquired from the counsel for the petitioner, whether the applicants of the passports aforesaid, used the passports and / or on the basis thereof have absconded from the country.

8. The counsel for the petitioner informs that while the passport of the two applicants whose report was verified in the second week of December, 2015 had been delivered, but they had not used the passports and the applicants, report of verification with respect whereto was submitted by the petitioner on 23rd December, 2015, had not even been delivered their passports and only the process of issuance of the passports was underway.

9. It is further informed that all the five passports were subsequently revoked / cancelled.

10. On enquiry of the age of the petitioner, it is informed that the petitioner, in 2016 had already rendered about 38 years of service and was due for superannuation on 30th September, 2018.

11. The counsel for the petitioner has also contended that the petitioner has an unblemished service record till 2016, with no disciplinary inquiries whatsoever having ever been initiated against the petitioner and the petitioner is a recipient of the President‟s Medal in 2002 and 40 W.P.(C) No.2506/2021 Page 3 of 6 Commendation Certificates.

12. The counsel for the respondents has drawn our attention to page 143 of the electronic file, being a part of the report of the order of the Departmental Appellate Authority, recording that the petitioner had given clear verification reports of all the five persons, without proper verification of residential address given by the applicants, "obviously, with malafide intentions and ulterior motives". The counsel for the respondents has also drawn our attention to the directions issued to the inquiry officers while conducting verification of passport, at page 154 of the electronic file, and has contended that the same itself cautions the personnel submitting report of passport verification, of the consequences of wrong verification. It is also contended that the job of passport verification is a sensitive job, permitting of no casualness or lacuna.

13. We have considered the rival contentions and are of the prima facie view that an error in passport verification, though undoubtedly capable of proving fatal with consequences for the entire country, if has not resulted in such consequences, needs to be dealt with sympathetically and a distinction needs to be made between an error resulting in fatal consequences and an error not resulting in any such consequences particularly when the incumbent himself has taken remedial steps for rectification of the error. The same punishment cannot be meted out to both the categories. It appears that neither the Disciplinary Authority nor the Departmental Appellate Authority nor the CAT have given due weightage to the factum of the petitioner himself, immediately on detecting the error, having taken rectification steps and which if had not been taken may have proved fatal.

14. We have thus enquired from the counsel for the respondents, whether the service record of the petitioner is indeed unblemished, as claimed by the counsel for the petitioner and what lesser punishment can be given to the petitioner, particularly since the petitioner has attained the age of superannuation.

15. The counsel for the respondents states that he has no instructions with respect to the past service record of the petitioner. With respect to the other query, he has drawn our attention to Rule 41 of the Central Civil Services (Pension) Rules, 1972 titled "Compassionate allowance" providing for payment of compassionate allowance not exceeding two-thirds of the pension or gratuity or both, to be payable in such facts in appropriate cases.

16. We are of the prima facie view that the error aforesaid in the last two years of service, should not, in the facts of the case, be permitted to wash out the pension which has been earned by the petitioner in the earlier 38 years of service.

17. We have toyed with the idea of excluding the period of service from 2016 till superannuation of the petitioner for computation of pension but are informed that the petitioner had already earned the maximum pension payable prior to the aforesaid incident and thus the same would not make any difference in the pension of the petitioner. It is however informed that since pension is computed on the basis of last drawn pay, the last drawn pay of the petitioner shall be taken as what was immediately drawn prior to suspension.

18. Issue notice.

19. Notice is accepted by the counsel for the respondents.

20. The counsel for the respondents is requested to take instructions on the past service record of the petitioner and the respondents are directed to, within two weeks, take a decision on what lesser punishment than of removal from service disentitling the petitioner to all retiral benefits, can be meted out in the facts of the case. If no decision is taken, we shall proceed to decide the matter.

21. While taking the said decision, the order dated 12 th February, 1996 of the Supreme Court in Special Leave Petition (C) No. 25491/1995 titled Ex. Constable Virender Singh Vs. Lt. Governor of Delhi, Annexure A-19 to the petition, be also taken into consideration.

22. List on 24th March, 2021.

RAJIV SAHAI ENDLAW, J.

AMIT BANSAL, J.

FEBRUARY 26, 2021 „gsr‟..