Sanjay Binjola v. Union Of India And ORS
$~7 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 2457/2012 SANJAY BINJOLA ..... Petitioner Through:
Mr.Ankit Rajgarhia and Ms.Shaurya Sahay, Advocates versus UNION OF INDIA AND ORS.
..... Respondents Through:
Mr.Gaurav Sarin, Sr.Panel Counsel with Mr.Ajitesh Kir and Ms.Veera Angrish, Advocates
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA
O R D E R
% 13.08.2015 1.
The petitioner who was appointed as a Constable in the IndoTibetan Border Police (ITBP) on 20.08.1990 was chargesheeted for disorderly behaviour on 27.11.1992 on account of alleged drunkenness. The charge levelled was for offences under Section 10 of the Central Reserve Police Force Act, 1949 (hereinafter referred to as "the CRPF Act"). The ITBP was governed by the CRPF Act in those days.
2.
The petitioner was acquitted of the charge under Section 10 (c) but convicted under Section 10 (n) i.e. consumption of excess liquor and sentenced to imprisonment upto three months by the learned judicial magistrate who tried the case.
3.
The petitioner preferred an appeal but his plea was rejected by the Sessions Judge on 03.04.1998. The criminal revision petition by the respondent to the High Court of Allahabad also met with the same fate. The Sessions Judge to whom the petitioner appealed reduced the
sentence from three months to upto the rising of the court but at the same time maintained the conviction.
4.
The respondent's revision petition was rejected against which he preferred a Special Leave Petition to the Supreme Court, which was allowed and the resulting criminal appeal was finally decided on 02.05.2001. After discussing the facts and maintaining the conviction, the Supreme Court invoked the provisions of Section 3 & 4 of the Probation of Offenders Act,1958 and directed that the petitioner's sentence would be substituted to one of his maintaining the peace for two years and furnishing a bond to that effect. It was also directed that he would be entitled to benefit of Section 12 of the Probation of Offenders Act, 1958.
5.
The ITBP reinstated the petitioner into services on 15.10.2001 pursuant to directions of the Supreme Court but treated his period of absence i.e. 13.12.1992 to 11.09.2001 as "dies non". The petitioner's representations against this were of no avail. He consequently, approached this court by way of W.P.(C) 8066/2002 (disposed of on 21.09.2005) and again by way of W.P.(C) 3386/2006 wherein the court by its order dated 19.11.2009 directed the respondents to grant a personal hearing to the petitioner and reconsider the issue of how the period of absence should be treated. The respondents by order dated 06.06.2011 rejected his representation. In these circumstances, he has once again approached this court in these proceedings. 6.
It is contended that given the declaration by the Supreme Court the petitioner was entitled to the benefit of Section 12 of the Probation of Offenders Act, 1958, complete denial of any service benefits such
as arrears of salary and treating his entire period on account of this conviction as "dies non" is extremely harsh and oppressive. It is submitted that even the Sessions Judge had directed the respondents to grant service benefits and effect of denial would be contrary to the Supreme Court's order. Learned counsel for the ITBP relies upon the judgment of Supreme Court reported as Baldev Singh vs. Union of India and Others AIR 2006 SC 531 and contends that even in the case of acquittal, the period spent out of employment was treated as "dies non" and service benefits in respect of pension was also denied. It is submitted that since the conviction was ultimately maintained by the Supreme Court even while granting benefit under the Probation of Offenders Act, the petitioner cannot contend that he was treated unfairly.
7.
It is evident from the above factual narrative that the conviction of the petitioner was not faulted and thus eventually upheld by the Supreme Court. At the same time the court was careful in declaring that the petitioner would be entitled to the benefit of Section 12 of Probation of Offenders Act. Now the authority of ITBP to appropriately treat the period of absence cannot be questioned - such power is conferred upon it in the concerned rules. The Fundamental Rule 54A is also one example of such power where in the event of dismissal of an employee being set aside the various eventualities have been contemplated where the public employer or the Central Government has to treat the period of absence in one way or the other for the purpose of service benefits. In this court's opinion the treatment of the entire period of absence during the time the petitioner
was out of employment on account of dismissal - for what was ultimately deemed to be a trivial misconduct - (considering that he was merely sentenced till the rising of the court) is harsh and disproportionate. At the same time granting the petitioner what he seeks in these proceedings be uncalled-for, given that the conviction has been maintained. Thus, this is not an appropriate case where the Respondent should be directed to pay arrears of salary for the period of absence. Rather we direct that the respondent should not treat the period of absence as "dies non" and at the same time grant all consequential benefits such as notional increments and appropriate fixation/fitment in a grade. If promotion is based upon seniority, the period of absence shall also be treated as continuous service for such purpose, except arrears of salary. However, if the promotion is based on any other criteria, the petitioner cannot claim such promotion and would have to fulfil the requisite prescribed eligibility conditions. 8.
The respondents are therefore directed to pass consequential orders in the light of above directions. The impugned order dated 06.06.2011 is consequently set aside. The respondents shall comply with the directions contained in the present order within eight weeks from today.
9.
The writ petition is disposed of in the above terms. 10.
Dasti.
S. RAVINDRA BHAT, J DEEPA SHARMA, J AUGUST 13, 2015/rb