Central Administrative Tribunal - Delhi
Hc Suresh Kumar, Pis No. 28824105 vs Govt. Of Nct Of Delhi Through ... on 16 October, 2006
ORDER Shanker Raju, Member (J)
1. Applicant, a Head Constable in Delhi Police, has sought quashing of order dated 17.1.2005, whereby a major punishment, following an enquiry, has been inflicted upon him as well as appellate order dated 26/5/2005, whereby on seeking benefit of decision in the case of co-defaulter Constable Narender Kumar v. Union of India in OA-32/2003 decided on 16.9.2003 and on implementation, entailing a minor penalty of censure against Constable Narender Kumar having been rejected to be entertained, are impugned.
2. Applicant, along with one Constable Narender Kumar has been proceeded against in a departmental enquiry (DE) for alleged misconduct of accepting illegal gratification detected by PRG team on a finding of guilt by the Enquiry Officer was imposed a major punishment. Applicant has not preferred an appeal against the order. However, Constable Narender Kumar when assailed his punishment order in OA-32/2003, an order passed on 16.9.2003 set aside the punishment with liberty to respondents to pass fresh order. As fresh order of 1.7.2004 imposed upon Constable Narender Kumar a minor penalty of censure and the period of suspension having been treated as spent on duty, it led to an appeal filed by applicant, claiming benefit of the aforesaid decision.
3. The appellate authority vide impugned order dated 26.5.2005 holding that case of Constable Narender Kumar cannot be generalized and applicant having not preferred an appeal cannot be extended benefit of the order of the Tribunal and the appeal has not been accepted for consideration.
4. Learned Counsel of applicant states that when persons having regard to the role and alleged misconduct imputed in one case has been awarded a minor penalty of censure as an implication of the decision of the Tribunal, applicant is also entitled to be accorded extension of the benefit, which cannot be denied and would constitute invidious discrimination violative of Articles 14 and 16 of the Constitution of India.
5. On the other hand, learned proxy counsel appearing for respondents vehemently opposed the contentions and stated that applicant had not preferred any appeal and the case of Constable Narender Kumar was on a different footing. Accordingly, the benefit of the same cannot be extended to applicant.
6. We have carefully considered the rival contentions of the parties and perused the material on record.
7. In the appeal preferred by applicant he has sought benefit of the decision of the Tribunal and has also prayed in equity the condonation of delay in submission of the appeal. The appellate authority despite such a request having been made, in his order did not consider the same and the matter was not considered on merits. As per Rule 24 of the Delhi Police (Punishment & Appeal) Rules, 1980, nothing precludes the appellate authority to decide an appeal being time barred made beyond 30 days of the order to be disposed of on merits if the delay has occurred beyond the control of the appellant. This clearly shows that there must have to be a consideration, as a condition precedent, on the aspect of limitation and a finding recorded thereon.
8. As in the present case appellate authority has not taken into consideration the above aspect of the matter when the subsequent decision of the Tribunal in the case of a co-defaulter when implemented on 1.7.2004, immediately an appeal preferred by applicant whereas he has prayed for condonation of delay, non-consideration on merits would not only be violative of the Rules but would also constitute deprivation of right to file remedy before the departmental authorities and also denial of a reasonable opportunity.
9. A constitution Bench decision of the Apex Court in K.C. Sharma and Ors. v. Union of India and Ors. 1998 (1) SLJ SC 54, ruled that when one is identically situated cannot be deprived of the benefit of the decision of the Court.
10. As a joint departmental enquiry was held where Constable Narender Kumar was alleged of the same misconduct on remand by the Tribunal having imposed a minor penalty of censure and the treatment of the suspension period as spent on duty, applicant who is squarely covered by the ratio, cannot be meted out a differential treatment, even in the matter of punishment which would be violative of dicta laid down by the Apex Court in Tata Engineering & Locomotive Co. Ltd. v. Jitender Pd. Singh and Anr. 2002 SCC (L & S) 909.
11. In the result, for the foregoing reasons, OA is partly allowed. Impugned orders are set aside. Matter is remitted back to the appellate authority to dispose of the appeal of applicant in the light of the decision of this Tribunal in OA-32/2003 (supra) and extension thereof to applicant in the matter of penalty at par with Constable Narender Kumar by passing a detailed and speaking order, within a period of two months from the date of receipt of a copy of this order.No costs.