Central Administrative Tribunal - Delhi
New Delhi This The 2Nd Day Of December vs Union Of India on 2 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.4003 of 2010
with
2) OA No.4004 of 2010
New Delhi this the 2nd day of December, 2010
Honble Shri Shailendra Pandey, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
Madan Lal Meena,
R/o A-205, Chhattarpur
New Delhi
.. Applicant
VERSUS
1. Union of India
Through
Secretary,
Ministry of Home Affairs,
North Block,
New Delhi
2. Commissioner of Police,
ITO, New Delhi
3. Jt. Commr. of Police,
Armed Police, Delhi
Through Ministry of Home Affairs ITO,
New Delhi
Dy. Commr. Of Police,
VII Bn. DAP, Malviya Nagar
New Delhi
Asstt. Commr. Of Police,
T.M.L.7th Bn. DAP,
Malviya Nagar,
New Delhi
.. Respondents
(By Advocate: Shri S.K.Thakur, for the applicant)
O R D E R
Dr. Dharam Paul Sharma, Member (J) Since common questions of law arise in the two captioned applications involving similar set of facts and same parties including the counsel, arguments were heard in both these matters on 30.11.2010 at the admission stage and orders were reserved. The present order decides both these applications.
2. In OA-4003/10, the applicant was awarded the penalty of censure vide order dated 11.6.2007 for his failure to mention the factum of registration of FIR that was registered on the instructions of the then Joint Commissioner of Police (vigilance) while referring the case to the prosecution branch for advice. An appeal filed against this order was turned down by the appellate authority vide its order dated 21.9.2007. Copies of these orders are collectively annexed as Annexure-A1. The applicant did not seek further redressal in respect of these orders within the prescribed period of limitation.
3. In OA-4004/10, the applicant was awarded penalty of censure vide Order dated 1.9.2006 on the allegations that an FIR No.487/01 under sections 342/506/370/357/376/34 IPC, PS Shakarpur which was registered on 22.9.2001 remained pending for 5 months with the applicant without any action in the case. It was alleged that when the said case was transferred to the applicant on 27.7.2002, he was well aware that the prime accused had not been arrested in the case but took the case very casually and lightly even being well aware of the fact that it was a case of heinous crime. His predecessor and successor Sub Inspectors were also proceeded against for their lapses in the investigation of the case. The appeal filed by the applicant against this order of penalty was turned down by the appellate authority vide order dated 5.2.2007. Copies of both these order are collectively annexed as at Annexure A-1. In this case too, the applicant did not seek any further redressal in Court of law within the prescribed period of limitation.
4. It transpires that the respondents issued guiding principles of granting promotions vide Standing Order No.378/2009 dated 29.7.2001. The guidelines, inter alia, provide for punishments awarded during the last 10 years preceding the year of DPC to be taken into consideration. The guidelines further provide mode of calculation of adverse points based upon the various punishments awarded to the delinquent candidate/officer in the last 10 years. Accordingly, if an officer on assessment of record of punishment gets more than 10 adverse points, he would not be empanelled in that particular year. While combining the two penalties of censure impugned in these two applications together with the punishment awarded to the applicant in past, the same would render him disqualified for promotion having earned more than 10 adverse points. The applicants case is that had these guidelines known to him earlier, he would have challenged the punishment of censure awarded to him in 2002 which he had not challenged at that time. Realizing that he would not now be eligible for promotion in view of the new guidelines, he has filed the present applications challenging both the penalties of censure which have in the meantime become time barred for the reason the present applications have been filed after about three-four years since their respective imposition. The applicant has now challenged the guidelines, referred to above, on the ground of these being retrospective in operation.
5. It may, however, be noted in this regard that the applicant has not mentioned about the DPC, if any, which have held him ineligible for promotion and the present application has been filed on the basis of apprehension that he might not be able to earn next promotion in the next DPC in view of the guidelines, referred to above, and the penalties awarded to him in the last 10 years without having taken up this matter with the respondents. In view of this, the applications seem to be pre-mature in so far as his apprehension based on said guidelines is concerned.
6. Furthermore, the applications are open to another objection for not being based on single cause of action under Rule 10 of the Central Administrative Tribunal (Procedure) Rules, 1987. It was open to the applicant to seek one or more reliefs provided that they are consequential to one another. The applicants case does not fall in this category for the reason; firstly the penalty of censure in the past was imposed when the aforesaid guidelines were not in existence and secondly, the applicant is yet to be considered for promotion in view of the said guidelines on the assessment of penalties imposed in the past 10 years.
7. Besides, the relief claimed by the applicant in so far as the award of penalties of censure is concerned, the same is time barred having been filed after three-four years of imposition of penalties, as the case may be.
8. The applicant has also filed applications for condonation of delay in both these cases under Section 151 without mentioning the relevant Act/Code in which the said Section is contained. Apparently, this seems to be under Section 151 of the Code of Civil Procedure ( in short CPC). Section 21 of the Administrative Tribunals Act, 1985 expressly states that the Tribunal shall not be bound by the procedure laid down in the Code ofCivil Procedure,1908 but shall be guided by the principles of natural justice and subject to the provisions of this Act and the rules framed thereunder shall have the power to regulate its own procedure. Para 3 of both these applications for condonation of delay is in identical terms and reads as follows:
3. That the applicant had filed the present original application on 22.09.2010 and took the same back because all the documents were not available with the appellant at that time and also that an application seeking condonation of delay in filing the present Original Application could not be signed. The applicant was on various Security Duties at the Commonwealth Games held in New Delhi being part of Delhi Police. The appellant has been able to produce all the requisite documents and also sign the application seeking condonation of delay in filing the present Original Application and is seeking the permission of this Honble Court and praying that the delay in refilling of aboutdays may be condoned.
9. Having bestowed our careful consideration to the contents of Para 3, referred to above, we are of the considered view that the applicant has not been able to satisfy us that he was prevented from filing application in time, in so far as impugned orders of penalty of censure are concerned, by sufficient cause. The applications are liable to be dismissed as time barred in so far as the relief claimed by the applicant against penalty of censure is concerned.
10. In OA-4003/10, the applicants contention has been that the prosecution branch did not recommend the prosecution in the case in view of the Civil nature of the dispute between the parties. Therefore, no case of misconduct is made out even if he has omitted to mention the particulars of FIR registered in the case while referring the matter to the prosecution branch.
11. In OA-4004/10, it has been contended by the applicant that the applicant could do little to trace the accused within short span of July, 2002 to October, 2002. The Station House Officer had even formed a special team to trace the accused but to no avail. The applicant did not have any knowledge/information as to the address and fathers name of accused Ayub Khan and even the victim was untraceable and ultimately the accused persons including Ayub Khan were acquitted by the Court of Sessions Judge, Karkardooma, Delhi vide its judgment dated 4.10.2006 for the reason that the prosecution has miserably failed to prove the case against either of the accused. The Court observed that it was only the complainant who could have proved the allegations made by her against the accused at the trial and accordingly the charges framed against them but she failed to appear and depose before the Court.
12. These contentions as referred to above cannot be looked into in view of the limited scope of judicial review in disciplinary matters which does not warrant reappraisal of evidence. The principles governing judicial review in disciplinary matters have been very aptly summed up by the Honble Supreme Court in the case of High Court of Judicature at Bombay through its Registrar Vs. Uday Singh and others, AIR 2997 SC 2286, as follows:-
It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellate on complaints relating to service conditions of employees. It is the exclusive demain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessary correct in the view of the Court or Tribunal, when the conclusion reached by the authority is based on evidence. Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence It has further been observed by the Honble Supreme Court in the aforementioned case that:
the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see what there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion. Applying the aforesaid principles to the facts of the present cases, there cannot be said to be a case of no evidence. We are of the considered view that there was evidence on record to reach to the conclusion that the applicant had committed misconduct based on which a reasonable man would be justified in reaching the conclusion which has been arrived at by the respondents. The conclusion drawn by the respondents authorities are based on evidence on record and support the respective findings. The applicant too has received fair treatment as no infraction of rules has been pointed out by the applicant.
13. The applicant seeks to assail the legality of guidelines for the reason that these tend to operate retrospectively when it provided consideration of the service records of the applicant for the last 10 years. In support of this contention, the learned counsel for the applicant relied upon the case of Uday Pratap Singh and others Vs. State of Bihar and others (1994 Supp.(3) SCC 451) wherein the Honble Supreme Court, inter alia, observed that executive orders cannot be operative retrospectively so as to destroy a right which has crystallized. The learned counsel for the applicant further referred to the case of Union of India and others Vs. Sangram Keshari Nayak ( (2007) 6SCC 704) wherein the Honble Supreme Court, inter alia observed that Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefore.
14. These observations were made in the context of DPCs recommendations when no vigilance enquiry was pending against the applicant. We do not think that these case are of any help to the applicant for neither he has been denied consideration so far by any DPC nor any of his right has already crystallized. Suitability of the candidate for promotion is determined in DPC based on his past performance. Taking into consideration the past service record of the candidates in terms of the guidelines would not inculcate an element of retrospectivity in the operation of these guidelines for such a consideration by the DPC, is necessarily governed by the rules and guidelines that are in position at the time of holding the DPC meeting in question. The contention that these guidelines are bad in law for being retrospective in their operation is misconceived. The DPC would consider such of the guidelines and other rules and provisions as are in existence at the time of holding its meeting at a given time.
15. In the facts and circumstances of the case and for the reasons stated above, we do not find any merit in these applications. Accordingly, both the original applications are dismissed. No order as to costs.
Let a copy of this order be placed on each of the case files.
(Dr. Dharam Paul Sharma) (Shailendra Pandey)
Member (J) MemberA)
/usha/