Delhi High Court
Yatender Kumar Pandey vs Uoi & Ors. on 24 July, 2012
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Manmohan Singh
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24 July, 2012
+ W.P.(C) 12185/2004
YATENDER KUMAR PANDEY ..... Petitioner
Represented by: Mr.S.A.Saud, Advocate.
versus
UOI & ORS. ..... Respondents
Represented by: Ms.Saroj Bidawat, Advocate
with Dy.Cmdt.Bhupinder Sharma,
Law Officer, BSF.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MANMOHAN SINGH
PRADEEP NANDRAJOG, J. (ORAL)
1. Of the various contentions pleaded in the writ petition, learned counsel for the petitioner states that in view of the departmental record produced pertaining to the petitioner's trial at the Summary Security Court Force, he gives up all contentions urged save and except one.
2. A very funny submission has been advance before us. It is urged that for a similar offence i.e. making false allegations against superior officers, in the past penalty awarded to the petitioner was confinement to line for 28 days and thus for a similar offence repeated penalty of dismissal from service has to be disproportionate. Counsel urges that if for same offence 28 days force custody is sufficient penalty, then it does not stand to logic or reason that petitioner should be dismissed from service.
3. The petitioner joined service on March 28, 1989 and was W.P.(C) 12185/2004 Page 1 of 4 dismissed from service vide order dated August 07, 2002. He was charged for making false acquisitions against his superior officers. He was found guilty at the trial, and in respect of the trial and the evidence, as noted by us above, learned counsel makes no submissions.
4. With respect to the contentions urged, we may only note the averments made in para 1 and par 2 of the counter-affidavit under the caption: BRIEF FACTS OF THE CASE. It is pleaded as under:-
"(1) No.89131358 Ex-Const. Yatender Kumar Pandey was enrolled in order Security Force on 28/03/1989 and was posted to 72 Bn BSF on 04/09/93 from 141 Bn BSF. As per the service record of the petitioner, following punishments were awarded him during the short span of service:-
a) Awarded 28 days Regorous imprisonment in force custody by the Commandant 72 BN BSF on 23-11- 1994 for the offence committed under Section-19
(a) of the BSF Act.
b) Awarded 21 days Rigorous imprisonment in force custody on 24-03-2000 by the Commandant 72 BN BSF for the offence committed under Section-19 (a) of the BSF Act.
c) Awarded confinement to line for 28 days on 19-03-
2001 by the Commandant 72 BN BSF for the offence committed under Section-34 (a) of the BSF Act.
d) Awarded sentence to be dismissed from service by the Summary Security Force Court tried on 6 th and 7th Aug'2002 for the offences committed under Section -34 (a) and 40 of the of the BSF Act-1968.
(2) The petitioner was a habitual latecomer from leave. Details of overstayal period regularized during the entire period of the petitioner are as under:-
W.P.(C) 12185/2004 Page 2 of 4(i) 29 days OSL (Overstayal from leave) regularized by granting 29 days Earned Leave with effect from 10/09/90 to 07/10/90.
(ii) 19 days OSL from 60 days Earned Leave regularized by granting 19 days Earned Leave with effect from 12/05/97 to 30/05/97.
(iii) 16 days OSL from 49 days Earned Leave regularized by granting 16 days Earned Leave with effect from 01/12/98 to 18/12/98.
(iv) 31 days OSL regularized by granting 31 days Earned Leave with effect from 06/07/99 to 06/08/99.
(v) 15 days Casual leave converted after 42 days OSL, regularized by granting 15 days Earned Leave with effect from 14/10/99 to 28/10/99 to 23/11/99.
(vi) 54 days OSL with effect from 05/12/2000 to 27/1/2001 regularized by granting 54 days Earned Leave.
(vii) 02 days Casual leave converted after 01 day OSL regularized by granting 07 days Earned Leave with effect from 13/11/01 to 19/11/01."
5. Suffice would it be to state that that petitioner's service profile is far from satisfactory. It is settled law that where an employee indulges in repeated misconduct, on the subject of penalty to be imposed, past conduct can be considered. We may highlight that on seven occasions, the misdemeanour of over-staying leave was condoned by regularizing the leave. Thrice before has the petitioner been sentenced to undergo W.P.(C) 12185/2004 Page 3 of 4 either RI for 21 days and 28 days or confinement to the lines for 28 days. One, out of the three offences was of leveling false allegations against superior officers. This offence was indulged for a second time. It cannot thus be said that the penalty levied is excessive. That in the past for a similar offence a lesser penalty was levied is no ground to seek parity on the subject of penalty for the reason a wrong repeated twice, at the repeated stage of the wrong, would make the wrong an aggravated wrong.
6. The writ petition is dismissed.
7. No costs.
PRADEEP NANDRAJOG, J.
MANMOHAN SINGH, J.
JULY 24, 2012 KA W.P.(C) 12185/2004 Page 4 of 4