* HIGH COURT OF DELHI: NEW DELHI
Judgment reserved on: September 2, 2009
Judgment pronounced on: September 14, 2009
+ W.P. (C) No. 2153 of 1991
M.I. Siddiqui ... Petitioner
Through: Mr. Rajjiv Kumar Ghawana,
Advocate
versus
Cement Corporation of India & Others ... Respondents
Through: Mr. Arun Birbal, Advocate.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SUNIL GAUR, J.
*
1. Petitioner- M.I. Siddiqui, was Officer on Special Duty with the respondent-Cement Corporation of India Ltd. (hereinafter referred to as the 'respondent-Corporation').
2. In June, 1991, petitioner was dismissed from service on account of misconduct purported to have been committed by him in the year 1988. In October, 1990, he was served with Memorandum (Annexure-A) requiring him to submit a written statement of his defence within ten days on the five Articles W.P. (C) No. 2153 of 1991 Page 1 of Charge, which pertain to his falsification on record by approving in back date i.e. on 9th March, 1998, a proposal submitted to him on 10th March, 1998, for extension of date of a tender enquiry for the work of fabrication of steel cable trays, with a view to enable M/S Patny Systems (P) Ltd., Secundrabad, to submit their offer. At the relevant time, petitioner was working as Chief General Manager with respondent-Corporation at Adilabad. Another Charge against the petitioner was that he had ordered his subordinates to accept shorter length of galvanized cable trays from M/S Patny Systems (P) Ltd., Secunderbad as against the sanctioned measurements, as per purchase order of 28th March, 1988, and petitioner thereby had purportedly caused undue benefit to M/S Patny Systems (P) Ltd. at the cost of interest of the respondent-Corporation. The third Charge against the petitioner was of showing undue favour to M/S Patny Systems (P) Ltd. by extending date of tender and by considering their offer, which was liable to be rejected and by limiting tender, in which enquiry was issued to selected parties and ultimately, in deciding to place Order on M/s Patny Systems Pvt. Ltd. for Rs.2.84 lacs on single tender basis on the same date, i.e. on 10th March, 1988.
W.P. (C) No. 2153 of 1991 Page 2
3. The substance of the fourth Charge against the petitioner was that he approved the proposal for limited tender enquiry on 5th March, 1988, for the work of steel cable trays at an approximate cost of Rs. 4 lacs on the ground of urgency, which did not exist and with a view to procure material worth Rs.2.84 lacs from M/S Patny Systems (P) Ltd. on single tender basis and thereby Purchase Policy was violated.
4. The last Charge against the petitioner was of misusing his powers in getting a pencil sketch of the drawing prepared for M/S Patny Systems (P) Ltd. through departmental Draftsman in the year 1988 and by directing Senior Foreman (Mechanical) to collect quotation for supply of galavanised cable trays from the parties known to the petitioner, while recording in the minutes of meeting that the Manager (MM) would take action on the quotations and by directing Manager (MM) to issue enquiry letters without addresses of the parties to be contacted at Hyderabad for the purpose of getting quotations and approving proposal to address only to four parties in limited tender enquiry of 5th March, 1988 and of nominating himself on the Tender Committee for the purpose of negotiating with the parties.
W.P. (C) No. 2153 of 1991 Page 3
5. A statement of defence to the Memorandum (Annexure
-A) was submitted by the petitioner as Annexure-B, wherein he has tried to justify the decision taken by the Tender Committee, as he had claimed that this decision was taken in consultation with the Technical and Commercial Head of the department to purchase better material at a cheaper rate. Not satisfied with the statement of defence submitted by the petitioner, a charge-sheet (Annexure-C) was served upon the petitioner, who was called upon to appear before the Enquiry Officer at one month's notice i.e. on 15th April, 1991. It is evident from the order sheet (Annexure-C) of the enquiry proceedings that the petitioner had sent a telegram, which reads as:-
"REGRET UNABLE TO ATTEND ON FIFTEENTH-SIDDIQUI" It is evident from the order sheet (Annexure-C) that the petitioner was intimated on 29th March, 1991, that if he fails to turn up for departmental enquiry, then the proceedings against him would be held ex parte.
6. It appears from Order sheet (Annexure -C) that on 15th April, 1991, petitioner did not join the enquiry proceedings and since witnesses were present, the enquiry proceeded ex parte. The evidence of witnesses present was recorded by W.P. (C) No. 2153 of 1991 Page 4 the Enquiry Officer. Enquiry Officer vide Communication of 24th April, 1991, (Annexure -G) had responded to petitioner's letter of 16th April, 1991, regarding postponement of the enquiry and apprised the petitioner about the ex parte proceedings which had taken place on 15th April, 1991. However, petitioner vide letter of 2nd May, 1991, had sought opportunity to select a Defence Assistant to defend him in the enquiry and it was stated that he can do so after recovering from his illness. Vide Communication of 16th May, 1991, (Annexure - H), petitioner had expressed loss of faith in the Enquiry Officer. On 16th May, 1991, the ex parte enquiry concluded with the Enquiry Officer holding that the five Articles of Charge stood completely proved against the petitioner. Enquiry Report was sent to the petitioner on the next day vide Annexure-I, permitting the petitioner to make Representation/ submission against the Enquiry Report. It is no where stated in this petition if any Representation/ submission against the Enquiry Report was made to the Disciplinary Authority. Vide Order of 4th June, 1991, (Annexure-J) the Disciplinary Authority inflicted punishment of „dismissal from service‟ upon the petitioner, which is under challenge in this petition on various grounds.
W.P. (C) No. 2153 of 1991 Page 5 7. The basic stand taken by the petitioner is that the
enquiry proceedings against the petitioner stood vitiated as there was violation of principal of natural justice on the grounds which are enumerated as under:-
(a) Regular enquiry undertaken by respondent No.3 enquiry officer without complying with the antecedents steps:-
(i) Petitioner not allowed to nominate his defence assistant;
(ii) not permitted to go through the records to submit list of additional documents and witnesses;
(iii) Not supplied with the copy of the rules asked for.
(b) malafide intention of the respondents to hold ex-parte enquiry exhibited from the very beginning
(i) denial of leave and illegal rejection of medical certificates.
(ii) time schedule persistently set in communication in a manner so as to prevent the petitioner from acting in time.
(iii) Malafide and extra ordinary interest of respondent no.2
(c) Request for change of enquiry officer ignored.
(d) Telegraphic communication to stay exparte action ignored.
(e) Trying to create Asemblance of compliance with the procedure instead of actually doing so.
(f) Ex-parte enquiry conducted on the false assumptions that the petitioner was feigning illness.
(g) The statement of management witnesses at ex-parte enquiry did not emanate as a result of examination by the enquiry officer. They are prepared statements just taken on record.
(h) The petitioner should have been given opportunity to cross examine the witnesses of the management on the next date of hearing i.e. 2.5.1991 whose statements were recorded ex-parte on 15.4.1991. Instead the petitioner was asked to produce his own defence. These statements cannot therefore be relied upon.
W.P. (C) No. 2153 of 1991 Page 6
8. Amongst the other grounds taken in this petition, the prominent ones are that no opportunity for making a Representation against the Enquiry Report was given and the Enquiry Report as well as the impugned order disclosed non application of mind. The foremost ground taken by the petitioner is that although the Tender Committee was collectively responsible for taking unanimous decision which was subject matter of the Enquiry Report but petitioner alone has been made scapegoat. In support of the aforesaid stand, counsel for the petitioner has relied upon decisions reported in 2008 (8) SCC 236 ; 1985 (3) SCC 378; 1991 (1) SCC 588; 1993 (1) SCC 431; AIR 1987 SC 2043 but special emphasis has been made by petitioner's counsel upon the decision of the Apex Court in the case of „Bongaigaon Reginery & Petrochemicals Ltd. & Others vs. Girish Chandra Sarma‟ 2007 (7) SCC 206 and the pertinent observations made therein reads as under:-
"If the finding recorded by the inquiring officer is not sound it related to perversity then the appellate court in writ appeal cannot estop the counsel from raising the same. More so, the Division Bench after considering the matter has found that the whole approach was perverse because the respondent alone has been made a scapegoat. When the decision of all the three Committees was unanimous, then to take one and put the entire blame on him is definitely perverse approach and the court cannot stand to the W.P. (C) No. 2153 of 1991 Page 7 technicalities so as to defeat the ends of justice. Thus, the submissions of the learned Additional Solicitor General has no merit."
9. On the quantum of punishment, it has been urged by counsel for the petitioner that it is totally disproportionate and reliance has been placed upon decision reported in 149 (2008) DLT 291.
10. On the contrary, the stand of the respondents is that when Disciplinary Authority accepts the Enquiry Report then it is not required to give separate reasons and the punishment Order cannot be labeled as 'non speaking one'. To support this contention, reliance has been placed on decisions reported in JT 2005 (8) 125; 1995 SCC (L & S) 1376 and 1988 SCC (L & S ) 246.
11. Without accepting that the Enquiry Report was not furnished to the petitioner, respondents contend that the petitioner had failed to show as to how non furnishing of Enquiry Report to him has caused any prejudice to him and learned counsel for the respondent has relied upon decisions reported in 2005 SCC (L & S ) 200 & 2008 (2) SCC 45 to contend that petitioner was required to show as to how he was prejudiced by alleged non supply of Enquiry Report. The contention advanced by counsel for the respondent is that nobody had stopped the petitioner to nominate a Defence W.P. (C) No. 2153 of 1991 Page 8 Assistant and if he had not done so, it was at his own risk. A roaming and fishing enquiry is not permissible. It is so contended by respondent's counsel who relies upon decisions reported in 1996 SCC (L & S ) 1280 & 1976 SCC (L & S ) 463. It is urged on behalf of the respondents that adjournment for a period of three months was disallowed by the Enquiry Officer in view of the provisions of CVC Manual. Respondents contend that petitioner was not sanctioned medical leave because he had failed to appear before Medical Board and had sought to delay this enquiry on the pretext of his illness which was rightly not accepted by the Enquiry Officer. Reliance has been placed by respondent's counsel upon decisions reported in (2003) 3 SCC 605; 2003 SCC (L&S) 468; 2005 SCC (L& S) 567; 2006 SCC (L&S) 1290 and 2008 (2) SCC 431 to contend that this Court while exercising power of judicial review is not called upon to act as appellate authority and to substitute its own conclusions on merits as well as on the penalty imposed and to substitute the penalty imposed with some other penalty.
12. It is worthwhile to note that in the written submissions placed on record, special emphasis has been laid on the W.P. (C) No. 2153 of 1991 Page 9 preliminary objection taken by the respondents in their counter affidavit and it reads as under:-
"The petitioner has filed the instant petition against the impugned dismissal order without exhausting the remedy of appeal as available to him. The Board of Directors of the Respondent Corporation has been acting as an appellate authority against the disciplinary orders passed by Chairman-cum-Managing Director of the respondent corporation. Thus it was open for the petitioner to file an appeal against the impugned dismissal order before the Board of Directors of the respondent corporation".
13. After having heard counsel for the parties at length and upon perusal of the material on record and the decisions cited, this Court is of the considered opinion that since the enquiry proceedings were ex parte and the crucial aspect of petitioner being made the scapegoat, whereas the other members of the Tender Committee were allowed to go scot free, needed re-appreciation by the Appellate Authority, the petitioner ought to have availed of the statutory remedy of appeal. It is not in dispute that the appeal against the impugned Order (Annexure-J) lies to the Board of Directors of the respondent-Corporation. In the normal course of events, this Court would have been hesitant to now relegate the petitioner to avail of the statutory remedy of appeal, but in the peculiar facts and circumstances of this case, it is deemed appropriate to direct the petitioner to file a W.P. (C) No. 2153 of 1991 Page 10 statutory appeal under Section 41 of the „Cement Corporation of India Ltd. Conduct, Discipline and Appeal Rules‟, within a period of eight weeks from today. In view of the specific objection taken by respondent regarding alternative remedy being insisted upon, the respondent would be precluded from taking any objection regarding the limitation to permit the petitioner to avail of the statutory remedy of appeal.
14. In case petitioner files the statutory appeal within the above stipulated time, then the respondent is directed to decide the same expeditiously and preferably within a period of eight months of the filing of the appeal. In case, no appeal is preferred against the impugned Order then, the impugned Order shall be deemed to be final. Anything stated herein shall not be construed as an expression on merits by the Appellate Authority.
15. This petition stands disposed of in the aforesaid terms.
16. No costs.
SUNIL GAUR, J.
September 14, 2009 rs W.P. (C) No. 2153 of 1991 Page 11