Bijender Pal Dhaka vs The Govt. of NCT of Delhi and Others

Dipak Misra, C.J.—Heard Ms. Sumedha Sharma, learned Counsel for the Petitioner and Mr. Anjum Javed and Mr. Nirbhay Sharma, learned Counsel for the Respondents.

The subject matter of challenge in this writ petition is the order dated 13th January, 2010 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short, "the tribunal) in O.A. No. 2669/2008 whereby the tribunal has declined to interfere with the punishment imposed on the Petitioner, i.e. forfeiture of two years approved service for a period of two years.

As the factual matrix would unfold, a charge sheet was framed against the Petitioner in a departmental enquiry on the allegation that while the Petitioner was posted in FRRO attached to Indira Gandhi International Airport, he had put the official stamp on the migration clearance of one Zubir Ahmed, who had visited India on a visa on 23rd July, 2003 and had taken exit India permission on 17th December, 2004. The said visa was valid till 22nd December, 2004. As the allegation would further reflect instead of Zubir Ahmed leaving the country, one Del Agha, an Afghan national, was allowed to leave the country on the basis of the migration clearance granted by the Petitioner to him. It is also alleged that the Petitioner had overlooked the LOC notice.

The Inquiry Officer filed the report that the charges levelled against the Petitioner were not proven. Thereafter, the disciplinary authority recorded a note of dissent by following the due procedure of giving notice and sent the same to the Petitioner for his response. The Petitioner submitted a representation. Thereafter, the disciplinary authority as indicated hereinbefore imposed the penalty.

Being dissatisfied with the same, the Petitioner preferred a departmental appeal, which did not meet with success and aggrieved by the same, he approached the tribunal for quashing of the punishment on the ground that the disciplinary authority, in his note of dissent, had recorded findings in a categorical manner, which would indicate that he had already made up his mind. The tribunal analyzing the material on record declined to interfere with the order of punishment, which has been affirmed in appeal.

Learned Counsel for the Petitioner has invited our attention to the note of dissent, which has been brought on record at page 53 of the paper book. It is urged by her that there is a formation of opinion in a categorical manner, which is not permissible in law.

Learned Counsel for the Respondents has submitted that reasons had been ascribed by the disciplinary authority while recording his difference of opinion with the inquiry report and that the tenor of the language in a way shows that there has been a formation of the mind with regard to imposition of punishment. In this context, we may refer with profit the decision in Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, , wherein the Apex Court has held thus:

The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.

In view of the aforesaid enunciation of law in the field, we are required to peruse the note of dissent of the disciplinary authority. On a close scrutiny, the said authority has stated thus:

I have gone through the entire D.E file alongwith statements of P Ws and documents exhibited during D.E. proceedings. The statement of Inspr. B.S. Rathi is very much crucial vide which he has deposed that on 12.5.05 while reconciling the record, it was detected that the photograph on the Form-III were different on the issued form, as the photographs an office copy was not resembling with copy issued to the Pax namely Zubir Amed. On further enquiry it was found that the photograph on the copy issued to Pax Zubir Ahmed was not of him but it was of one Del Agha an Afghan National who left for Afghanistan on the Form-III issued to Zubir Ahmed by replacing his own photographs. Del Agha was a registree in FRRO office as an Afghan National as he was saying(sic) in India for the last many years. As such there was a forgery, which could not be detected by the clearing officer-SI Bijendra Pal Dhaka No. D-3235. PW-1 Shri Satya Narain Mishra Reader to AF Shift-C immigration IGI Airport has deposed that stamp C-5/12 was issued to SI Bijendra Pal Dhaka No. D-3235, PW-2 HC Sushil Kumar No. 16/F posted in HAE Branch of FRRO has proved his posting in Shift-C Immigration. Thus there is sufficient evidence against SI Bijendra Pal Dhaka No. D-3235 that he failed to check the identity of the Pax and could not detect the forgery. Hence, I differ from the findings of the E.O.

In our considered opinion, there is no pre-conceived decision with regard to imposition of punishment. Reasons have been ascribed, which are required to be ascribed as per the law laid down by the Apex Court. Thus, we do not find any merit in this writ petition and accordingly the same stands dismissed without any order as to costs.