Central Administrative Tribunal - Delhi
Asi Adalat Singh vs Government Of Nct Of Delhi And Ors. on 18 July, 2006
Equivalent citations: 2007(3)SLJ260(CAT)
ORDER Shanker Raju, Member (J)
1. By virtue of this O.A. applicant, who was an Assistant Sub Inspector (ASI), prays for the following reliefs:
In view of the facts and grounds mentioned herein above and other relevant material, the applicant respectfully prays that:
(i) To quash and set aside order dated 14.12.04 and 29.4.04 punishing applicant and rejecting appeal by the respondents.
(ii) The findings of the E.O. may also be set aside and respondents may be directed to grant all consequential benefits.
(iii) The show cause notice dt. 14.9.2004 and the impugned order dated 8.4.2005 may be quashed and set aside being illegal. The minor punishment may be directed as not having any effect on the promotion of the applicant.
(iv) Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
2. A brief factual matrix, relevant to be highlighted, transpires that applicant, who was functioning as an ASI and posted in PS Gokul Puri, was admitted to promotion list E-1 (Executive) w.e.f. 28.2.2003 on a DPC held earlier to this and was deputed for upper school training course, which he has completed in October 2003. He was awaiting his admission to promotion list E-II and further actual promotion as Sub Inspector (SI). On an allegation that applicant on 15.12.2002 arrested one Aamir Khan under Sections 107/151 Cr. P.C. and prepared a personal search memo of the accused vide DD entry No. 46-B of the even date. However all the articles were deposited in Malkhana except Rs. 230 seized from the accused as his personal search.
3. An enquiry was held under Rule 16 of the Delhi Police (Punishment and Appeal) Rules, 1980, where five defence witnesses were examined. On submission of the defence statement applicant was held guilty of the charge and had represented against the finding. The Disciplinary Authority (D.A.) ruled out any mala fide on the part of applicant and for his negligence in investigation imposed a major punishment of temporary forfeiture of one year's approved service with proportionate reduction in the pay with the following observations:
He was also heard in O.R. on 21.4.2004 by the undersigned. I have gone through the D.E. file, statement of P.Ws., findings of the E.O., defence statement of the defaulter and representation and other material on record, in the light of present facts and circumstances of the case. The E.O. has substantiated the charge after taking into consideration all the statement, material documents. I fully agree with the finding of the E.O. There does not appear to bemala fide on his part but he has miserably failed in carrying out the investigation as per defined procedure, thus failed in depositing the recovered cash of Rs. 230 only in Malkhana. Though, the same amount has been indicated in the seizure memo placed on file during the process of investigation. This has been proved on the basis of documentary evidences. Keeping in view the total facts into consideration, I hereby award him a punishment of forfeiture of one year approved service temporarily for a period of one year entailing proportionate reduction in his pay with immediate effect.
4. The aforesaid order was assailed before the Appellate Authority, which rejected the appeal, in agreement with the D.A. on 14.12.2004.
5. A show cause notice was issued to applicant under Rule 7(ii) of the Police (Promotion and Confirmation) Rules, 1980, proposing to remove his name from the promotion list E-I on the ground that he failed to maintain good conduct and is not fit to shoulder higher responsibilities attached to the rank of SI.
6. The aforesaid notice was responded to and on rejection of appeal against the punishment the Additional Commissioner of Police by an order dated 2.4.2005, holding that applicant is guilty of a misconduct of the nature reflecting upon his character and establishing his complete unfitness to hold higher post, removed his name from the promotion list E-I, which gives rise to the present O.A.
7. In so far as challenge to the punishment order is concerned, Mr. Arun Bhardwaj, learned Counsel appearing for applicant, contends that there is non-application of mind by the authorities, as there is no material to substantiate the guilt of applicant.
8. It is also stated that charge is proved on mere presumption.
9. In so far as the plea against removal of applicant's name from promotion list is concerned, it is stated that the orders have been issued on non-application of mind, misconduct is not on corruption or moral turpitude and the minor penalty (though in fact is major) does not affect promotion.
10. Learned Counsel also stated that the removal of name of applicant from the promotion list when no mala fides have been proved is merely on administrative lapse, which does not prove his unfitness to hold the higher post and amounts to double jeopardy.
11. On the other hand, Mr. Ajesh Luthra, learned Counsel appearing for respondents, in so far as challenge to the disciplinary proceedings is concerned, stated that the same has been inflicted on the basis of sufficient evidence brought on record, as applicant was found negligent in investigation for non-following the due procedure, the punishment imposed is as per rules and commensurate with the misconduct.
12. As regards removal from promotion list, learned Counsel has explained to us the promotion list E-I and states that mere inclusion in the promotion list E-I is like figuring in the select list without any indefeasible right to be appointed and promoted.
13. Learned Counsel further states that the vires of Rule 7(ii) of the Delhi Police (Punishment and Appeal) Rules, 1980 has already been affirmed by a Division Bench of his Tribunal in O.A. 1233/97 in SI Prem Mitter v. Union of India and Ors. decided on 29.7.98. By giving sequence of events, learned Counsel stated that whereas the misconduct has taken place on 15.12.2002, DPC was held subsequently and the removal of the name of applicant on proposal on a show cause notice has been done in the year 2004.
14. Learned Counsel stated that promotion cannot be claimed as a matter of right; only right of consideration is available. It is in this backdrop stated by placing reliance on a decision of the Apex Court in Union of India and Ors. v. K.V. Jankiraman and Ors. 1993 SCC (L&S) 387, that even subsequent events to the DPC, i.e., infliction of major punishment would be sufficient to withhold promotion.
15. Learned Counsel states that inclusion of a person, who has been punished and had shown his unfitness is against a public policy. Learned Counsel stated that if a person even if he is found fit, is later on punished would not amount to double jeopardy, as held by the Apex Court in Union of India and Ors. v. K. Krishnan 1992 Supp. (3) SCC 50. Learned Counsel has also relied upon a decision of the Apex Court in State of T.N. v. Thiru K.S. Murugesan and Ors. , to contend that denying promotion on penalty is not a double jeopardy.
16. Learned Counsel has also relied upon DoPT guidelines of 1992 and Clause 17.9, where it is laid down that one who suffers from any vice even after DPC and before actual promotion should be denied promotion.
17. Mr. Luthra when pitted with a decision of the Apex Court in Lt. Governor, Delhi and Ors. v. H.C. Narinder Singh (2004) 13 SCC 342, wherein after out of turn promotion removal of name from promotion list has been held to be double jeopardy, stated that the aforesaid decision is distinguishable as there is no question of any out of turn promotion to be included in promotion list moreover Rule 7(ii) of the Rules ibid has not been considered. Learned Counsel stated that in Narinder Singh's case (supra) as per its ratio decidendi no law is laid down.
18. Whereas in rejoinder learned Counsel of applicant states that initiation of an enquiry against a police officer as per Rules is from the date of summary of allegations, which has been issued to applicant only on 15.9.2003 and as the DPC has considered his record and has not placed it under sealed cover, the subsequent punishment which is not within the zone of consideration or considered, has no effect over his promotion.
19. Lastly, it is contended that whereas mala fides have not been established the show cause notice and the order issued do not show reasons and consideration of the findings of the D.A., where applicant has been held allegedly guilty of negligence in following the procedure but neither any allegation of corruption or moral turpitude have been levelled, which clearly establishes fitness of applicant for promotional post.
20. We have carefully considered the rival contentions of the parties and perused the material on record.
21. In our considered view and as per admission of applicant during the course of departmental enquiry as to his inadvertence in not depositing Rs. 230 the charge is established and proved against him and the punishment inflicted upon him cannot be interfered with, as the charge has been established against him on the basis of the evidence brought on record as well as there is no procedural infirmity in the conduct of the disciplinary proceedings.
22. As far as relief of quashing of the order of major penalty is concerned, the same is rejected. However, we observe that the D.A. on receipt of the findings of the E.O. clearly ruled even after agreeing with the E.O. that there is nomalafide on the part of applicant and the only misconduct established is not carrying out the investigation as per the defined procedure, which is affirmed by the Appellate Authority by observing that at best the negligence of applicant has been established.
23. In so far as the vires of Rule 7(ii) ibidis concerned, as in Prem Mitter's case (supra) though at the show cause notice stage applicant has approached the Tribunal, yet the vires was upheld, but in a different context, we are not deliberating on this issue.
24. As regards the decision of the Apex Court Narinder Singh' case (supra), it is a case where the petitioner who was promoted on out of turn as Head Constable had undergone training and was a confirmed Head Constable. He has been proceeded against for a major penalty and was imposed the penalty as well. At this point of time a notice issued under Rule 7(ii) of the Rules to remove name of petitioner on response was challenged before the Tribunal, which on the basis that the notice amounts to double jeopardy allowed the O.A. When it is assailed before the Apex Court what has been the ratio decidendi, i.e., actually decided by the Court and the principles of law laid down is that in the matter of promotion if proceedings entails subsequently a punishment the proposed action to deny promotion or reversion contemplated on the same set of facts would amount to double jeopardy. However, no opinion has been expressed on the ambit or scope of any rule.
24A. It is trite law that under Article 141 of the Constitution of India a decision of the Apex Court is a binding precedent, even an obiter dictate binding on all subordinate Courts.
25. The aforesaid brings us the concept of ratio decidendi. As per the decision of the Apex Court in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. , the Apex Court in a three-Judges Bench held that the ratio decidendi of a case is the principle of law that decided the disputes in facts of the case.
26. In Haryana State Coop. Land Development Bank v. Neelam 2005(2) SLJ 218 (SC) : 2005 SCC (L&S) 601, ratio decidendi is defined as a decision which is an authority for what it decides and not what can be logically deduced.
27. The Apex Court in another three-Judges Bench decision in Kalyan Chandra Sarkar v. Rajesh Ranjan , held that every judgment must be read in its particular facts and generality of expression are not exposition of whole of law but are qualified by the particular facts.
28. In the wake of the above applying the aforesaid, the decision in Narinder Singh's case (supra) is an authority in the matter of promotion of a police official, who subsequently being punished with a major penalty, the denial of promotion or reversion on the same set of facts, i.e., conduct probed into in the enquiry on which the police official is punished, is observed to be amounted to double jeopardy.
29. It is not a case before the Apex Court where the decision is to be treated as per incuriam, as the decisions per incuriam are those decisions which are rendered in ignorance of the earlier decisions or oblivious of the statutory rules, as held by the Apex Court in a Constitution Bench decision in Central Board of Dawoodi Bohra Community v. State of Maharashtra . The Apex Court in Narinder Singh's case (supra) was conscious of the rules, i.e., Rule 7 (ii) of Rules (ibid) but no opinion has been expressed, as without going into the legality of the rules the matter has been found to be a case of double jeopardy.
30. From the above, we find that the issue in question was reversion of a promoted police official on a subsequent event on infliction of a major penalty on same set of facts. In such a view of the matter cancellation of promotion when the police official had already been promoted on consideration of the record except the punishment, which is subsequent, the case was found to be double jeopardy. Strictly speaking, denial of promotion may not be a punishment under the Delhi Police (Punishment and Appeal) Rules, 1980, yet once DPC is held, considered the record and then adjudged the police official fit, a subsequent event at best in terms of the DoPT guidelines, as referred to ibid, before actual promotion takes place would have entailed any rejection of the person unfit for promotion but on a condition precedent that when the DPC is held the proceedings should be in vogue and sealed cover is resorted to.
31. From the perusal of Rule 16 of the Promotion Rules ibid we find that an ASI with minimum six years of service has to undergo selection through a DPC and on its recommendations one is brought in respect of seniority to promotion list E-I. The only requirement to be brought to promotion list E-II is suo moto or may be automatically brought to promotion list E-II of actual promotion as SI. There is no procedure in the Rules to again subject the ASI in list E-I to undergo scrutiny while selection by the DPC.
32. What is discernible from the aforesaid rule is that once a person in list-I successfully completes the course he is to be brought in the E-II and promoted as SI to the next higher post as a matter of right. In such an event there is no consideration of his erstwhile record, which has already been considered by the DPC and adjudged the person fit.
33. In the above backdrop, learned Counsel tries to distinguish the case of Narinder Singh's case (supra) with the present by stating that whereas list E-I is only a select list and Head Constable Narinder Singh was promoted out of turn.
34. The import of Rule 7(ii) clearly applies to those who are in the promotion list. For the sake of convenience, Rule 7(ii) of the Rules is reproduced below:
The conduct and efficiency of men on promotion list shall be, at all times, watched with special care. Any offer whose name exists on the promotion list, if found guilty of a misconduct of nature reflecting upon his character or fitness for responsibility or who shows either by specific acts or by his record as a whole that he is unfit for promotion to higherrank shall be reported to the Deputy Commissioner of Police, Head Quarters (1), Delhi in respect of persons on lists 'A' to 'E' and to Additional Commissioner of Police (Administration) Delhi in respect of officers on list 'F'. However, final decision regarding removal of names(s) from a promotion list shall be taken by the Appointing Authority only after giving show cause notice to the individual.
35. If one has regard to the above, on its liberal, grammatical and harmonious construction Rule 7 in its first part describes the list maintained for selection regulating promotion course and Sub-rule (ii) is a substantive rule. A person is stated to be in promotion list unless he completes the training and thereafter is substantively appointed on confirmation to the post. Rule 19(ii) of the Rules ibid in case of outstanding sportsmen or those police officials who have shown exceptional gallantry to the extent of 5% of the vacancies the promotions are to be made which would be regularized on completion of the prescribed training course. Accordingly with the completion of the training as far as seniority of those persons is concerned, promotion list drawn would figure them at the bottom. As such, there cannot be any discrimination between a person who has been promoted out of turn till he completes the training and brought on the promotion list with that of a person in the promotion list, as both, for all purposes, would be in the process of either being promoted or re-promoted or in the process of being confirmed.
36. Basically what has been the ratio decidendi in Narinder Singh's case (supra) is that once a person is promoted irrespective of whether through promotion list or the other methods if subsequently punished he cannot be reverted or denied promotion on the same set of facts.
37. Assuming that vires of Rule 7(ii) ibid in its entirety has been upheld in Prem Miner's case (supra), yet has an underlined object that even after existing on promotion list if one is found guilty of a misconduct, which reflects upon his character for fitness for responsibility in turn unfitness for promotion, his conduct and efficiency if watched, would have to be removed from the list on a show cause notice.
38. We agree that one cannot be paid premium on misconduct or a conduct, which is unbecoming of a Government servant. But such a rule would have far cascading repercussions. If a person in promoted he always remains on a promotion list even after promotion and then in that even if he is punished departmentally, his promotion even after confirmation would not be final and would be subject to the conduct and efficiency by which promotion has to be cancelled. This is such a glorious uncertainty, which is far from any rationale or logic.
39. Another aspect of the matter is that if the promotion has to be subjected to conduct and efficiency the aforesaid efficiency would have to be restricted to some point of time. If the DPC has held the person fit the fitness is on the selection held by the DPC and as per Rule 5 of the Promotion Rules promotion from one rank to other has to weigh efficiency and honesty as the main factor but on probation once the conduct is to be watched and if not found suitable he would be reverted. But as the confirmation now is restricted to entry grade only the aforesaid goes redundant. The fact remains that if the DPC has found a person fit and recommended promotion and at that time no departmental enquiry was initiated, as in the present case, the summary of allegations was issued and after the DPC was held there is no question of applicant being put under sealed cover but before actual promotion if one of the conditions exists as per the DoPT O.M. ibid, at best one is to be placed under sealed cover. As this has not been done, the ultimate outcome of major penalty, which is a subsequent event, would not fall within the scope of DPC, which is not to be held at the stage of promotion list E-II, would not, in any manner, affect the promotion of applicant, which is to be suo moto as per the seniority. In such an event Rule 7(ii) of the Rules would go redundant and would have no applicability though its vires may be upheld by the Tribunal.
40. In this view of the matter, we are of the considered view that the decision of the Apex Court whereas Rules have not been considered, cannot be treated as per incuriam, asde hors the rules the action of respondents was found illegal and as there cannot be any discrimination in the matter of promotion, whether out of turn or in a promotion list. The principle of double jeopardy when action is based on same set of facts, on which penalty is inflicted, would still remain double jeopardy and the dicta of the Apex Court, which is binding on us does not suffer from the vice of per incuriam and would squarely apply to the present case.
41. Another angle which vitiates the show cause notice issued in the present case is Rule 7 (ii) itself. As a condition precedent for invoking Rule 7 (ii) is that a person who is in the promotion list is found guilty in disciplinary proceedings of a misconduct of a nature which reflects upon his character or fitness for responsibility or by the acts as on record as a whole one is unfit for promotion to the higher rank. The show cause notice issued to applicant by the respondents proposing removal of his name from the promotion list E-I is basically on the ground that applicant was awarded a major punishment and his name has been brought in the secret list of officers having doubtful integrity. The aforesaid was represented to. The Appointing Authority while removing the name of applicant from promotion list E-I has not applied his mind and acted mechanically and without recording any reasons and going into the factual position of the misconduct or the punishment imposed by the D.A. on its ipsi dixit removed the name on the ground that the misconduct established against applicant reflects upon his complete unfitness to hold higher post. Though the discretion is absolute, yet it has to be exercised in a judicious manner. While acting as a quasi-judicial authority it is incumbent to have fairness in the action which is sine qua non of fair play. The concerned authority has forgotten and deliberately oblivious of the final order passed in the departmental enquiry, where it is clearly observed that the misconduct of applicant does not show any mala fide but it is only a failure to carry out the investigation as well as the findings of the Appellate Authority. The only negligence established in the act of applicant and neither any moral turpitude nor any charge regarding corruption has been established. The character and fitness of applicant has to be judged not in air but on specific grounds and material. The only material before the respondents was the punishment and appellate order, which were not at all taken into consideration by the concerned authorities. Applicant has been held to be negligent only in investigation without any mala fides would, by no stretch of imagination, as a logical and rationale conclusion amounts to his unfitness for holding higher rank.
42. The authorities have passed a bald order as a ritual not in accordance with law.
43. In the result, for the foregoing reasons, though we do not interfere with the punishment imposed upon applicant, yet the O.A. is partly allowed. Impugned show cause notice and order of removal of applicant from promotion list E-I are set aside. As a result thereof, respondents are directed to restore back to applicant promotion list E-I and thereafter in the event his colleagues and juniors are admitted to promotion list E-II and actually promoted he would also be meted out the same treatment and in that event he shall be entitled to all consequential benefits. Respondents are further directed to carry out the aforesaid directions within a period of two months from the date of receipt of a copy of this order. No costs.