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2008 DIGILAW 1030 (DEL)

I. P. Estate, New Delhi v. H. C. Manohar

2008-11-06

MADAN B.LOKUR, SURESH KAIT

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SURESH KAIT, J. 1. The present writ petition is filed against the order of Central Administrative Tribunal, Principal Bench in OA No. 1312/2002 decided vide order dated 27th of May, 2003. 2. The legal issue before us is whether the punishment of Censure can extend beyond the period of six months or not. 3. The charge memo issued to the Respondent was that the Respondent while being posted in South-West Zone/PCR, on receipt of surprise checking report from 24th November, 1997 to 30th November, 1997 by Vigilance Branch revealed that he was deputed for duty on PCR van Z-28 based at Village Barroli on Bijwasan Road. During checking he was not found performing his duty properly and most of the time he was found on the Old High-Way near village Kapashera with ulterior motive for extorting money from the bus/truck drivers. The driver of Z-70 based at Fun and Food Village, Kapashera, also confirmed and disclosed that PCR Z-29 frequently takes round of the border area during the duty hours of HC Pratap Singh No:1035/PCR 1/C van. On earlier occasion also ACP/South West Zone checked the van on 15th November, 1997 at 10.50 P.M. the Respondent was neither found on the base nor any call was given to him at that time. On these allegations, a departmental inquiry was conducted and a report submitted to the disciplinary authority. 4. The punishment of Censure was awarded vide order dated 13th October, 1998. On 12th November, 2001 the DPC considered the Respondent for promotion but he was found not fit for promotion for the rank of Assistant Sub-Inspector (ASI). The aforesaid DPC found the Respondent unfit for promotion as the censure as stated above would have an effect of five years for not being recommended for promotion. Aggrieved by not accepting his candidature for promotion, the Respondent had filed the representation on 10th December, 2001 against being found unfit for promotion. The same was rejected by the Competent Authority through communication to the Respondent vide letter dated 6th February, 2002. The Respondent being aggrieved of the aforesaid rejection, filed OA 1312/2002 in the Central Administrative Tribunal, Principal Bench. The aforesaid OA was allowed. The Petitioner (Department) herein has challenged the aforesaid Central Administrative Tribunals order in the present writ petition. 5. The same was rejected by the Competent Authority through communication to the Respondent vide letter dated 6th February, 2002. The Respondent being aggrieved of the aforesaid rejection, filed OA 1312/2002 in the Central Administrative Tribunal, Principal Bench. The aforesaid OA was allowed. The Petitioner (Department) herein has challenged the aforesaid Central Administrative Tribunals order in the present writ petition. 5. The case of the Respondent is, that he has an unblemished record of service and as many as 107 commendation certificates to his credit. He was charged first time on 24th December, 1997 on the allegation that he was away from point of duty. He has rebutted the allegation and submitted that he has been away only to accompany the Head Constable In-charge of the PCR, who has gone to take medicine being unwell. The same explanation was given in his letter dated 29th December, 1997, submitted to the authority. It is to be noted that the Respondent herein was granted the next grade under the ACP Scheme on 9th October, 2001 but by order dated 13th November, 2001 his name was withheld from inclusion in the promotion list D-1 (Executive) on the alleged ground of indifferent record and corruption. The Respondent made a representation dated 10th December, 2001 against the exclusion from the promotion list D- 1(Executive). The same was rejected on 12th February, 2002 which has resulted in filing of OA in the Central Administrative Tribunal. 6. The main ground for challenging the rejection order dated 12th February, 2002 was that the effect of punishment of Censure for promotion is valid for six months only. Censure issued in October, 1998, should not have come in the way of his promotion beyond April, 1999, but the same has been carried to November, 2001, which was totally illegal, improper and in violation of the Constitutional provisions of Articles 14 and 16 of the Constitution. Respondents version is that he has been denied promotion on the ground of imposition of Censure on corruption charge has no basis at all, as the charge- sheet nowhere referred to any demand or acceptance of illegal gratification. Respondents version is that he has been denied promotion on the ground of imposition of Censure on corruption charge has no basis at all, as the charge- sheet nowhere referred to any demand or acceptance of illegal gratification. Only the charge on the Respondent that he has been away from the place of duty for a period of less than an hour, when he had gone with permission to purchase medicine for his colleague and Incharge of the PCR, who was unwell and the same did not amount to absconding from duty. However, he had contended that there was no complaint from anyone against him and there was nothing adverse in his service record except the censure and furthermore, he had stated that in October, 2001, the Respondent had been granted the next scale under the ACP Scheme but declined the inclusion of his name in the promotion list D1(Executive) in November, 2001 was contrary to all canons of administrative jurisprudence. 7. We have heard the case at length from both sides and are of the opinion that the case made by the Petitioner against the Respondent herein that while being posted in South/West Zone/PCR, the Respondent was along with other found moving near village Kapashera with ulterior motive for extorting/collecting money from the Bus/Truck drivers is baseless. The Petitioner herein had neither issued any charge-sheet nor led any evidence thereto. The case of the Petitioner herein was that if the punishment of censure is awarded on the charges of corruption, moral turpitude and gross dereliction of duties in protecting Government properties. Reliance is placed on the circular of Delhi Police particularly for consideration of the promotion of an employee and more particularly clause (iii), which is reproduced below. Officers who were awarded any major/minor punishment in the preceding 5 years on charges of corruption, moral turpitude and gross dereliction of duty to protect Government property, or major punishment within two years on charges of administrative lapses, from the date of consideration were not recommended. 8. We have gone through the charges mentioned in the charge-sheet; there is no charge of corruption, moral turpitude, moral gross negligence and carelessness which is not an impediment for being promoted to list D-1(Executive) as the case of the Respondent does not come within the purview of clause (iii) of the DPC guidelines ibid. 8. We have gone through the charges mentioned in the charge-sheet; there is no charge of corruption, moral turpitude, moral gross negligence and carelessness which is not an impediment for being promoted to list D-1(Executive) as the case of the Respondent does not come within the purview of clause (iii) of the DPC guidelines ibid. The action of the Petitioner herein for not considering the name of the Respondent for the promotion list is bad in law. It is important to refer to the definition of moral turpitude as contained in the Judicial Dictionary by K.G.Iyer, 1998 edition wherein the moral turpitude has been defined as under : The term `moral turpitude is rather a vague one and it may have different meanings in different contexts. The term has generally been taken to mean to be a conduct contrary to justice, honesty, modesty or good morals and contrary to what a man owes to a fellowman or to society in general. It has never been held that gravity of punishments is to be considered in determining whether the misconduct involves moral turpitude or not. [Durga Singh v. State of Punjab, AIR 1957 Punj 97]. The expression `moral turpitude is not defined anywhere. But it means any thing done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness or character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so, if it discloses vileness or depravity in doing of any private or social duty which, a person owes to his fellowmen or to the society in general...... [Baleshwar Singh v. D.M. and Collector, AIR 1959 All 71 ] Moral turpitude signifies baseness, depravity or wickedness of character or disposition. Mere negligent omission to supply ticket does not involve moral turpitude. [ Rajdeo Pooranlal v. State Industrial Court, 1979 MPLJ 298(DB] Furthermore, moral turpitude is also defined under Instruction No.3 in Rule -3 of CCS (Conduct Rules) 1964 is as under -: Gross moral misconduct-Acts subversive or discipline-Riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline. 9. The Petitioner herein relied upon the judgment of Central Administrative Tribunal, Principal Bench in OA No. 285/2002 delivered on 10th May, 2002 in the matter of HC-No 464/NW Budh Ram v. NCT of Delhi and Ors. 9. The Petitioner herein relied upon the judgment of Central Administrative Tribunal, Principal Bench in OA No. 285/2002 delivered on 10th May, 2002 in the matter of HC-No 464/NW Budh Ram v. NCT of Delhi and Ors. The censure was given on the charges as below: On 13th February, 1996 on the allegation that while on escort duty of under trial prisoner in TADA case Gurmeet Singh on 30th October, 1996 on a surprise check applicant was found to have coming out of the canteen along with two persons who had come to meet UTP on a scooter. As a result of this involvement of the applicant the UTP could have escaped from the police custody. Applicant was alleged to have committed a gross negligence, carelessness and dereliction in discharge of his official duties. 10. The charges in that OA were serious in nature whereas the charges in the present case are not serious and similar. Further the Petitioner herein relied upon another judgment Sukhbir Singh v. Commissioner of Police, Delhi and Ors. In that case also the allegations were : that during a surprise check organized by DCP/Traffic on 2803.90 at 7.4.30 p.m. in Punjabi Bagh Circle, it was found that radar checking was being conducted by TI/Punjabi Bagh along with 4 Zos at Pitampura on Outer Ring Road. SI Sukhbir Singh No.D-4125 (applicant herein), a ZO challaned one truck driver in which he seized his driving licence. Later it was found to have accepted Rs.200/- as compounding fee from the driver and returned the driving licence. The sub Inspector only acknowledged the receipt of that amount on the copy of the challan given to the driver but did not make any entry on the copy in his challan book which should have been done simultaneously. The above act on the part of SI Sukhbir Singh amounted to gross misconduct in this discharge of his official duty. 11. After perusal of the aforesaid charges the person involved in that case had challaned one truck driver in which he has seized his driving licence and was found to have accepted Rs. 200/- as compounding fee from the driver and returned the driving licence. 11. After perusal of the aforesaid charges the person involved in that case had challaned one truck driver in which he has seized his driving licence and was found to have accepted Rs. 200/- as compounding fee from the driver and returned the driving licence. The charged officer in that charge-sheet acknowledged the receipt of that amount on the copy of challan given to the driver but did not make any entry on the copy of the challan book which should have been done simultaneously. After perusal of the aforesaid case we are of the opinion that the charges in the aforesaid case were very serious in nature and loss to the public exchequer. Whereas in the present case none of the elements, mentioned in both the above referred cases, are present. 12. The Honble Division Bench of this Court has decided the similar issue in case titled Commissioner of Police and others v. Rajender Singh and others, 151(2008) DLT 322, while referring the circular order dated 3922-325-CB1 dated 23rd September, 2002 was in vogue. Cause (v) of this circular being relevant, is reproduced below: At the relevant time, i.e. in the year 1994, when the case of the Respondent became ripe for consideration for promotion, circular order dated 3922-325/CB-I dated 23rd September, 1992 was in vogue. The said circular laid down the principle to be observed while holding a departmental promotion committee meeting for admission of names to the promotion lists. This circular being relevant, is reproduced herein below: Officers who have been awarded censures during the last 6 months with no other punishment may also be allowed to be brought on promotion list provided they do not have any other major punishment. However, the effect of Censure by debarring the official for promotion by six months shall continue. 13. Bare reading of the aforesaid circular also clarifies that officers who have been awarded censure are not barred from being brought on the promotion list, provided they do not have any other major punishment. 14. We are of the considered opinion that in the present case the punishment of censure awarded to the Respondent herein did not carry any element of moral turpitude but was inflicted mainly on account of a minor or a casual lapse in performance of his duty. The effect of the censure cannot go beyond six months. 14. We are of the considered opinion that in the present case the punishment of censure awarded to the Respondent herein did not carry any element of moral turpitude but was inflicted mainly on account of a minor or a casual lapse in performance of his duty. The effect of the censure cannot go beyond six months. We find no discrepancy in the judgment passed by the Central Administrative Tribunal in OA No. 1312/2002 vide order dated 27th May, 2003. 15. The Respondent suffered approximately seven years in contesting the case, we therefore, impose costs of Rs. 15,000/- to be paid to the Respondent by the Petitioner. 16. The writ petition has no merit and is dismissed accordingly. All the pending applications are also disposed of.