In CONT.CAS (C) 198 of 2020 -DEL HC- It was necessary for authorities to ensure that disciplinary cases instituted against Government servant were not unduly prolonged and concluded expeditiously: Delhi High Court holds IGP and DIG guilty of Contempt for declining to grant notional promotions beyond the rank of Deputy Commandant
Justice Manmeet Pritam Singh Arora [02-06-2023]

Read Order: Prakash Kumar Dixit v Ajay Kumar Bhalla

Simran Singh

New Delhi, June 6, 2023: The Delhi High Court held that the petitioner could not be refused promotions because of the department’s failings, for the reason that for 26 years the petitioner was prevented from serving in active duty, solely on account of the acts and omissions of the respondent(s). The inability of the petitioner, therefore, to render mandatory field service or to complete residency period and pre-promotional courses was only on account of circumstances created by the respondent(s).

The Single-Judge Bench of Justice Manmeet Pritam Singh Arora stated that “The Petitioner has rightly contended that the Reinstatement order at paragraph 35 (v) expressly states that for the purpose of promotion the intervening period, i.e. 10.07.1995 to 23.12.2021, shall be treated as period ‘On Duty’. Thus, for the purposes of granting notional promotion to the Petitioner, the Respondent(s) were bound to consider the Petitioner ‘on duty’ for the said period and therefore, the reasons cited in the order dated 22.03.2023 for denying promotion is contrary to paragraph 35 (v) of the Reinstatement order and the unequivocal direction issued by the Division Bench vide judgment dated 24.12.2019.”

In the matter at hand, the petitioner was served with a charge sheet on 06.09.1989 and penalty of ‘removal from service’ was imposed on 10.07.1995. The said order imposing penalty of removal from service, after four (4) rounds of litigation was first set aside on 30.11.2012 by the Division Bench of Madhya Pradesh High Court and the petitioner was directed to be reinstated. The respondent(s) acted upon the said order dated 30.11.2012 belatedly on 12.08.2015 and while reinstating the petitioner, the respondent(s) immediately placed him under deemed suspension w.e.f. 10.07.1995, until further orders. Though the petitioner made representation against his deemed suspension on 05.10.2015, the respondent(s) failed to take any further steps in the disciplinary proceedings, which remained pending. It was during the pendency of a writ petition filed before this Court that the respondent(s) took the final decision on 16.10.2018 reiterating their decision of imposing penalty of ‘removal from service’ on the petitioner.

The petitioner by way of a writ petition had sought quashing of an order dated 16.10.2018 passed by the DIG (CR & Vig), Directorate General, Central Reserve Police Force (CRPF), whereby the penalty of ‘removal from service; was imposed on the petitioner.

The said order dated 16.10.2018 was set aside by the Division Bench by its judgment dated 24.12.2019 holding that the respondent(s) herein had fallen in serious error in the manner in which the petitioner’s case had been dealt with and directed his reinstatement from 10.07.1995 and further directed that the petitioner be ‘forthwith reinstated in service’. It had also issued unequivocal directions that for the purpose of pay fixation, seniority and all other consequential benefits including promotions, the date of his reinstatement will be 10.07.1995 (i.e., the date on which the petitioner was removed from service for the first time, after the charge sheet dated 06.09.1989 was issued to him).

Being aggrieved by the aforementioned order of the Division Bench, the respondents had appealed before the Supreme Court which was dismissed with the direction to the respondent to comply with the judgement of the Division Bench. The petitioner filed the present contempt petition due to wilful non-compliance of the unequivocal directions issued by a Division Bench of this Court vide judgment dated 24.12.2019.

Issues for consideration before the Bench

1. Relevant date for imposition of the minor penalty determined by the Division Bench.
2.  Petitioner’s entitlement, if any, to promotion to higher ranks.

The Court while navigating through the first issue noted that the respondents had submitted that the date of imposing minor penalty could never be retrospective and it had to be prospective. “There is no explanation offered by the Respondent(s) in the affidavit dated 13.03.2023 for imposing the minor penalty w.e.f. 16.10.2018 and not w.e.f. 10.07.1995, which is the date on which the penalty of “removal from service” was first imposed vide Presidential Order dated 10.07.1995.”

The Bench stated that it was a matter of record that the petitioner had been prevented from serving in CRPF since 10.07.1995 on account of the successive Presidential order(s) dated 10.07.1995, 12.08.2015 and 16.10.2018, which were all in furtherance of the Memorandum of Charges dated 06.09.1989.       The Division Bench in its judgment dated 24.12.2019 had unequivocally directed that the reinstatement of the petitioner had to take effect from 10.07.1995. Thus opined that the effect of the judgment of the Division Bench was to substitute the Presidential order dated 16.10.2018 and to set the clock back to 10.07.1995, so as to efface the smear of suspension and its consequences. Therefore, the stand of the respondent(s) that imposition of penalty had to be w.e.f. 16.10.2018 was expressly contrary to the directions issued by the Division Bench and contrary to the contents of the earlier Presidential Order(s) relied upon by the respondent(s), which consistently sought to impose penalty on the petitioner w.e.f., 10.07.1995 in one form or the other. It was thus held that the petitioner was correct in his contention that the minor penalty had to be imposed upon the petitioner, as directed by the Division Bench w.e.f. original date of removal, i.e., 10.07.1995 and not w.e.f. 16.10.2018.

The Court while dealing with the second issue with respect to the petitioner’s claim for promotion to the post of IG, CRPF, it was noted that it was a matter of record that the petitioner’s immediate junior held the post of IG, as on 14.09.2021 when the respondent(s) first considered the petitioner’s case for promotion in compliance with the judgment of the Division Bench.

The Bench noted the contentions of the petitioner that even if the respondent(s) had imposed the penalty, w.e.f. 16.10.2018, the petitioner was entitled to promotion till the rank of IG from 2021 till his date of retirement i.e., 31.03.2023. “In the facts of this case, the obstinate denial of the Respondent(s) to give effect to the judgment of the Division Bench in favour of the Petitioner is writ large.”

The Bench after perusing a catena of cases stated that the petitioner could not be refused promotions because of the respondents’ failings, for the reason that period from 10.07.1995 till 16.03.2021, wherein the petitioner was prevented from serving in active duty was solely on account of the acts and omissions of the respondent(s), as was evident from the judicial record. The inability of the petitioner, therefore, to render mandatory field service or to complete residency period and pre promotional courses was only on account of circumstances created by the respondent(s).

The Court disagreeing with the contention of the respondents that promotion was not a matter of right, opined that the promotion which was being offered to the petitioner was notional and not actual and thus, the respondent(s) in light of the judgment dated 24.12.2019, were obligated to grant notional promotion to the petitioner to the post held by his immediate junior.

The Bench noted that the record of this contempt petition would evidence that the respondent(s) had made piecemeal compliance of the Division Bench judgment dated 24.12.2019 and opined that neither the respondent(s) nor this Court in the exercise of its jurisdiction in the contempt petition could evaluate the right of the petitioner to be granted the notional promotion, which had already been directed to be granted by the Division Bench vide judgment dated 24.12.2019. “The Respondent(s) do not have any discretion in this matter and as directed by the Division Bench at paragraph 35 of the judgment dated 24.12.2019, the Respondent(s) only had to issue consequential directions to implement the judgment. Even, presently, since the Petitioner has superannuated on 31.03.2023, the grant of promotion to the Petitioner would only be notional and would have bearing on his rank, the pay fixation, seniority, subsistence allowance and the consequential benefits.”

The Bench stated that it was necessary for the authorities to ensure that the disciplinary case/criminal prosecution instituted against any Government servant was not unduly prolonged and that all efforts should be made to conclude the proceedings expeditiously so that the need for keeping the case of a Government servant in a sealed cover was limited. “However, in the facts of this case, it can be seen that the findings of the DPCs from 1995 have been kept in sealed cover and have not been acted upon due to the ongoing inquiry since the year 1995. The Respondent(s) action in this case plainly demonstrates non-compliance of the OM dated 14.09.1992 and the flagrant disregard for Division Bench’s judgment dated 24.12.2019.”

The Court thus opined that the respondent(s) order dated 22.03.2023 declining to grant further promotions to the petitioner beyond the rank of Deputy Commandant was in violation of the unequivocal directions issued by the Division Bench vide judgment dated 24.12.2019.

“The issuance of the Reinstatement order dated 08.03.2021 seeking to initially impose the minor penalty w.e.f., 08.03.2021; its modification on 10.03.2023 to impose the minor penalty w.e.f., 16.10.2018; the order dated 14.09.2021 declining to grant promotion to the Petitioner to the rank of Deputy Commandant; a fresh review on the issue of promotion and the grant to the rank of Deputy Commandant vide order dated 22.03.2023, all the aforesaid orders while evidencing a flip-flop on the stands taken by the Respondent(s) also evince the lack of willingness to comply with the judgment dated 24.12.2019 in its letter and spirit. The unwillingness of the Respondent(s) to grant the benefit of reliefs directed by the Division Bench vide judgment dated 24.12.2019 is writ large on the face of the record.”

The Court rejected the contention of the ASG that the petitioner must assail the order dated 22.03.2023 in an independent writ petition or seek clarification of the judgment dated 24.12.2019 in the disposed of writ petition, “The intent and directions issued by the Division Bench with respect to the promotion are clear and unambiguous. Further, directing the petitioner herein to start a fresh proceeding would be a travesty of justice and a mockery of the legal proceedings which culminated with the passing of the final judgment dated 24.12.2019 and which has been further upheld by the Supreme Court by its order dated 07.12.2020.”

The Court, therefore, opined that there was wilful disobedience by the respondent(s) of the directions issued by the Division Bench with respect to the implementation of the directions issued at paragraph 35 of the judgment dated 24.12.2019 with respect to pay fixation, seniority and all other consequential benefits including promotion. Accordingly held the Inspector General of Police (Pers.) and DIG (Pers), guilty of Contempt of Court under Section 2 (b) of the Contempt of Courts Act, 1971 for wilful disobedience of the directions issued by the Division Bench at paragraph 34 and 35 in judgment dated 24.12.2019.

“This Court, however, grants an opportunity of six (6) weeks to the aforesaid Contemnors to issue a fresh order granting promotion to the Petitioner to the rank of IG to bring him at par with his immediate junior as per the merit cum seniority list at the time of the appointment. In case, the Contemnors do not issue appropriate orders granting promotion to the Petitioner to the rank of IG within the time granted by this Court, the matter will be heard for sentencing on the next date of hearing.”  The matter had been adjourned for hearing on 31.08.2023.