* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 28.4.2010
+ W.P.(C) NO.5582/1999
S.C. UPADHYAY ......Petitioner
Through: Mr.A.K.Verma, Advocate.
Versus
THE HINDUSTAN PAPER CORPORATION .......Respondent
Through: Mr.R.K.Gupta, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not?
Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. Petitioner S.C.Upadhyay was appointed as a Sales Supervisor with the respondent namely Hindustan Paper Corporation (hereinafter referred to as „HPC‟) on 30.9.1980. After seven years of service, he was confirmed to the post of Assistant Manger (Sales) with effect from 1.8.1987. On 30.6.1992, he was promoted as Depot Manager (Sales). During the course of his employment, in the intervening period between the year 1993 to 1994 he had allegedly committed irregularities amounting to a W.P.(C) No.5582/1999 Page 1 of 11 serious misconduct. This was during the period when he was posted as Depot Manager (Sales) and functioning as Incharge of the Delhi depot. Allegation was that the petitioner individualy and/or in conspiracy with K.A.Khan, DGM (Sales) as also the authorized clearing agent M/s Chawla Brothers of Delhi along with other dealers/stockists caused wrongful loss to the corporation with a view to cause wrongful gain for himself as well as to the dealers and clearing agents which ran into several crores.
2. In view of this prima facie allegation a departmental enquiry was initiated against the petitioner. The enquiry was conducted under Rule 25 of the HPC Conduct, Discipline and Appeal Rules (hereinafter referred to as „the Rules). Show cause notice was issued to the petitioner on 1.9.1995 seeking his explanation. In the course of the enquiry, four charges were framed against him which read as follows:
I. That by acting individually and/or in conspiracy with others to cause wrongful gain to the Clearing Agent and dealers and thereby causing wilful loss to the Corporation to the tune of several crores of rupees Shri S.C. Upadhyay appears to be guilty of misconducts as defined in Clause 5(i) of HPC CDA Rules.
II. By maintaining and/or causing to be maintained improper records relating especially to the Clearing Agent‟s accounts and activities besides others, Shri Upadhyay appears to be guilty of misconducts as defined in Clauses 5(x) and 5(xxxii) read with Clauses 5(xxii) of the HPC CDA Rules.
III. By virtue of the aforesaid acts of omission/commission, Shri S.C.Upadhyay failed to maintain absolute integrity as envisaged in W.P.(C) No.5582/1999 Page 2 of 11 Rule 4(a)(i) of the CDA Rules of the Corporation and thus appears to be guilty of misconduct as defined in Clause 5(xxxiv) of HPC CDA Rules.
IV. By virtue of the aforesaid acts of omission/commission, Shri S.C.Upadhyay failed to maintain devotion to duty as envisaged in Rule 4(a)(ii) and thus appears to be guilty of misconducts as defined in Clauses 5(c) and 5(xxxiv) of HPC CDA Rule.
3. On behalf of the department, one witness Sh.S.K.Dass was examined who was subjected to cross-examination by the petitioner. He was the Executive (Vigilance). As per his version and as is evident from the report of the enquiry officer he had deposed that he had checked the documents for the periods 1993- 1994 and 1995-1996. He had submitted his investigation report on 17.8.1995; the petitioner i.e. S.C.Updhayay was incharge of the Delhi depot at the relevant time; the dates of the money receipts for freight issued by the railway authorities reflected that the date of the clearance of the goods and the date of the invoices ultimately raised on the stockists were much after such dates; presumption being the goods were retired in time and immediately sent or received by the stockists although the stockists were billed for such supplies at much later dates. In his cross-examination, PW-1 had stated that the Goods Receipt Register (GRR) was maintained to record the materials received by the Delhi office; he had denied the suggestion that his conclusions were based on mere inferences. No witness was examined on behalf of the W.P.(C) No.5582/1999 Page 3 of 11 petitioner. The enquiry officer had put questions to the petitioner which was recorded in the minutes of the enquiry held on 25.7.1996.
4. In conclusion, charge no.1 which related to misconduct as defined in Clause 5 (i) of the Rules was held not proved. Charge no.2 was a charge relating to the misconduct of the petitioner as defined in clause 5 (x) and 5 (xxxii) read with clause 5 (xxii) of the Rules. Clauses 5 (x), 5 (xxxii) and 5 (xxii) are reproduced as under:
Clause 5 (x): Neglect of work or negligence in the performance of duty including malingering or showing down of work.
Clause 5 (xxii): Abetment of or attempt at abetment of any act which amounts to misconduct.
Clause 5 (xxxii): Wilful falsification, defacement or destruction of any official document/record.
This charge stood proved. The enquiry officer while discussing the evidence adduced by the department held that the respondent had in fact not contradicted the fact that proper record was not being maintained at the relevant time at the depot; he was admittedly the Depot Manager (Sales) at the relevant time and incharge of the Delhi Depot. Enquiry officer held him guilty of misconduct as defined under clause 5 (x) i.e. the charge of negligence and the charge of abetment as defined in clause 5 (xxii) i.e. abetment of allowing the records to be falsified which in turn amounted to a misconduct. Charge 3 was held partly proved and the delinquent petitioner was held guilty of having violated clause 4 (a) (i) of the Rules which reads as under:
W.P.(C) No.5582/1999 Page 4 of 11
"Every employee of the Corporation shall at all times
(i) Maintain absolute integrity"
Enquiry officer had further held that the continued action of the petitioner in allowing the clearing agent and the stockists to gain at the cost of the corporation and having knowledge of what was going on would show that the petitioner had failed to maintain devotion to his duty in terms of clause 4 (a) (ii) of the Rules; as such charge no.4 also stood partly proved.
5. The Disciplinary Authority vide its order dated 20.5.1997 agreed with the findings of the enquiry officer. The representation of the petitioner dated 17.4.1997 was considered by the disciplinary authority and after due consideration of the report of the enquiry officer the oral evidence and other documentary evidence produced before the enquiry officer, had endorsed the findings of the enquiry officer. In terms of rule 24 of the Rules penalty of removal from service which shall not be a disqualification for future employment (as specified in rule 23 (f) of the Rules) was awarded to the petitioner.
6. The order of the Disciplinary Authority was the subject matter of an appeal; the appellate authority vide its order dated 30.8.1998 after having considered the explanation given by the petitioner in the course of hearing before it confirmed the finding of the Disciplinary Authority; appeal was dismissed.
7. Writ petition was filed 11 months later i.e. in July, 1999. W.P.(C) No.5582/1999 Page 5 of 11
8. The contention of the petitioner is that the enquiry officer has based his report on no evidence. It is speculative. Although charge no.1 has been disproved yet the other charges i.e. charge no.2 and part of charge no.3 and part of charge no.4 have been held proved which is a misappreciation of the evidence by the enquiry officer as all the charges are overlapping one another and if the first charge i.e. charge no.1 had remained disproved the question of the proof of charge no.2 and part proof of charge no.3 and part proof of charge no.4 could not arise. Even otherwise charges proved against the petitioner relate to the improper maintenance of the records of the Corporation which admittedly were being maintained as per the past practice in the Corporation; petitioner being a mere Depot Manager was not in the capacity to make any large administrative changes. The charge of abetment which necessarily postulates an active role on the part of the petitioner has also not been established; reliance has been placed upon a judgment of the Supreme Court reported in Kishangiri Mangalgiri Goswami vs. State of Gujrat JT 2009 (2) SC 84 and another judgment reported in Shri Ram vs. The State of U.P. AIR 1975 SSC 175 to substantiate this submission. The 17 years unblemished career record of the petitioner has been overlooked. The punishment imposed by the disciplinary authority is also disproportionate qua the charges proved and thus violative of Articles 14 and 21 of the Constitution; the extreme penalty of W.P.(C) No.5582/1999 Page 6 of 11 dismissal of service could not have been awarded even assuming although not admitting that the charges stood proved.
9. The counter arguments of the respondent have been heard. It is stated that the petitioner has been held guilty of a serious misconduct; his integrity has been assailed and devotion to duty which are basic requirements and the sacrosanct duty of every employee have been questioned and held against him. In these circumstances, penalty of removal from service with no further disqualification from future employment is not in any manner disproportionate. In fact, the petitioner has already got a job.
10. The report of the enquiry officer dated 16.1.1997 is detailed; it has gone into each and every charge leveled against the petitioner. Misconduct has been defined in Rule 5 of the Rules; it has various sub-heads. Charge no.1 relates to misconduct as is defined in Rule 5 (i) of the Rules. It relates to theft, fraud or dishonesty in connection with the business or property of the Corporation. Although wrongful loss had been assessed, yet who was responsible could not be pointed. As such, this charge was held not proved. Charge no.2 was specific; it related to the imputation against the petitioner of maintaining improper records qua the clearing agent accounts and activities with reference to misconduct as defined in clause 5 (x), 5 (xxii) and 5 (xxxii) of the Rules. Clause 5 (x) is negligence in the performance of duty; clause 5 (xxii) relates to an abetment of or attempt at abetment of W.P.(C) No.5582/1999 Page 7 of 11 any act which amounts to misconduct. This charge is independent and distinct from Charge no.1. Enquiry officer had held that the petitioner‟s role so far as the clearing agents‟ activities and the extent to which they were allowed to run the show and take advantage at the cost of the Corporation was proved. It cannot thus be said that if charge no.1 stood disproved, Charge no.2 could not be proved. Similarly, charge no.3 related to the integrity of the petitioner qua his acts/omissions and commissions. Charge no.4 related to the acts/omissions and commissions of the petitioner in relation to his devotion to duty. Charge no.3 and charge no.4 were also independent of charge no.1. The submission of the counsel for the petitioner that all charges are overlapping and if the first charge stood disproved the others i.e. charge no.2, 3 and 4 could not be proved is a misreading of the charges; each is independent of one and other; this is evident from the statement of the articles of charges; and still further qualified by the distinct definition of misconduct under each charge-head as defined in the Rules under which the petitioner has been charge-sheeted. Petitioner has himself admittedly committed omissions; he knew all along the malpractices prevailing in the Corporation at the time when he was the Depot (Sales) Incharge, yet knowingly he allowed the same to continue.
11. The penalties as envisaged are contained in clause 23; they are of two categories, minor and major. Petitioner having been W.P.(C) No.5582/1999 Page 8 of 11 held guilty on account of charge no.2, part of charge no.3 and part of charge 4 was imposed the major penalty under clause 23 (f) i.e. removal from service which shall not be a disqualification for future employment. It is not a dismissal which would have foreclosed all his future chances of employment. Keeping in view the nature of the charges proved against the petitioner which are grave irregularities committed by him in his service tenure clearly amounting to a negligence in his duty which in turn had permitted the falsification of the accounts and records of the respondent; these knowing lapses in duty had its consequent ramifications. In these circumstances, it cannot be said that the penalty is either excessive or disproportionate. It calls for no interference.
12. In Union of India vs. Parma Nanda 1989 SC 1185 observations of the Supreme Court in this regard are relevant "27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter. ....... W.P.(C) No.5582/1999 Page 9 of 11
In the light of the principles to which we have called attention and in view of the aforesaid discussion, the order of the Tribunal imposing a lesser penalty on the respondent cannot, therefore, be sustained. He was found guilty of the charge framed against him. He was a party to the fraudulent act for self aggrandisement. He prepared bogus documents for withdrawal of salary in the name of Ashok Kumar who was not working in his Division. He has thus proved himself unbecoming and unworthy to hold any post. Any sympathy for charitable view on such officials will not be conducive to keep the streams of administration pure which is so vital for the success of our democracy."
13. Subsequently in another judgment reported in 2002 7 SC 168 The Regional Manager & Disciplinary Authority, State Bank of India, Hyderabad and Anr. Vs. S. Mohammed Gaffar Supreme Court had endorsed this view and the following observations are extracted herein as under:
"10. The High Court seems to have overlooked the settled position that in departmental proceedings, insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or Appellate Authority is either impermissible or such that it shocks the conscience of the High Court, it should not normally interfere with the same or substitute its own opinion and either impose some other punishment or penalty or direct the authority to impose a particular nature or category of punishment of its choice. It is for this reason we cannot accord our approval to the view taken by the High Court in disregard of this settled principle. Consequently, the appeal is allowed, the judgment of the Division Bench is set aside and that of the learned Single Judge shall stand restored. No costs."
14. This court sitting in writ jurisdiction cannot substitute the findings of the competent authority with its own view unless the reasoning given by the court below is perverse or arbitrary. It is also not the case of the petitioner that the principles of natural justice have been flouted.
W.P.(C) No.5582/1999 Page 10 of 11
15. The Supreme Court in the words of Mathew, J. in UOI vs. Sardar Bahadur AIR 1970 SC 679 has observed:
"A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings, with the respondent was one which reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials, If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be convassed before the High Court."
16. Petition is without merit; it is dismissed.
(INDERMEET KAUR) JUDGE April 28, 2010.
rb W.P.(C) No.5582/1999 Page 11 of 11