G.S. Gill vs Electronics Corpn. Of India & Ors.

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


+                              WP(C) No.3061/1995


%                                                        January 22, 2013


         G.S. GILL                                          ..... Petitioner
                      Through:      Mr. Arun Birbal, Adv.



                      versus


         ELECTRONICS CORPN. OF INDIA & ORS.      ..... Respondents

Through: Ms. Shaveta Chaudhary, Adv.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition under Article 226 of the Constitution of India is filed by the petitioner/G.S.Gill seeking quashing of the penalty order dated 10.6.94 and the appellate order dated 30.4.95 dismissing the appeal of the petitioner. By the penalty order dated 10.6.94, the petitioner was visited WP(C) No.3061/1995 Page 1 of 19 with the penalty of removal from service not amounting to a disqualification for future employment.

2. The facts of the case are that the petitioner joined the first respondent corporation-Electronics Corporation of India Limited as a Tradesman A (class IV employee) with a basic qualification of matriculation on 1.1.1968. Petitioner was thereafter promoted to UDC on 1.1.72, to Office Assistant on 1.1.77 and then to Assistant Officer on 1.1.1980. During his employment with the respondent No.1, the petitioner obtained a qualification known as Sahitya Sudhakar by the Bombay Hindi Vidyapeeth, Bombay. This qualification as per the petitioner was equivalent to B.A(Hindi) inasmuch as the petitioner filed and relied upon before the enquiry officer a letter dated 5.6.1985 issued by Ministry of Education wherein the Sahitya Sudhakar examination conducted by the Bombay Hindi Vidyapeeth, Bombay has been recognized as equivalent to B.A. examination at Hindi level. Recognition is accordingly granted to the Sahitya Sudhakar courses with equivalence thereof to B.A. (Hindi). As per the petitioner, the employer corporation accepted this qualification of the petitioner equal to graduation by the employer‟s letter dated 20.3.1986. This letter dated 20.3.1986 of the employer congratulates the petitioner for the attaining of WP(C) No.3061/1995 Page 2 of 19 Sahitya Sudhakar qualification equivalent to B.A. in Hindi level. This letter dated 20.3.1986 concludes by noting that the additional qualification of the petitioner will be taken on record for the purpose of the petitioner‟s career growth. It is undisputed before me by the parties that the petitioner was promoted from Assistant Officer to Liaison Officer on 1.3.1985, and for which, the respondent-corporation accepted Sahitya Sudhakar qualification as equivalent to graduation in B.A.(Hindi). This position of promotion of the petitioner to the post of Liaison Officer is final because admittedly there till date have not taken place any proceedings to revert the petitioner from a Liaison Officer to an Assistant Officer. The difficulty started for the petitioner when the petitioner applied for being promoted to a Senior Liaison Officer in around the year 1991. A chargesheet was then issued to the petitioner on 25.2.1992 wherein two charges were leveled against the petitioner. The first charge was that the petitioner obtained the P. G. Diploma course from Delhi Institute of Management and Services (in short „DIMS‟) on the basis of sponsorship for the employer company in July, 1981 but had taken admission to the course by suppressing facts and giving a false declaration to the DIMS Institute that the petitioner was a graduate. The second charge against the petitioner was that a letter of DIMS dated WP(C) No.3061/1995 Page 3 of 19 30.5.1991 given by the petitioner to the employer/respondent No.1 was a false and fabricated document inasmuch as it is stated that the P.G.Diploma acquired was on the basis of one year duration whereas the course was not of one year. Since the language of the chargesheet would become material for the purpose of the present case, I would reproduce the relevant portion of the chargesheet, and which reads as under:-

"Certain allegations as contained in para-2 have been made against you and based on the allegations, you are accordingly charged with misconduct as enumeration in para-3 below:

2. Allegations:-

2.1 It has been reported that you have acquired PG Diploma in IRPM by taking admission in Delhi Institute of management & Services on the basis of sponsorship from the company in the year July 1981 with Roll No.50706. It has now been found, on verification, from the above institute that you had indicated in the application that you were a graduate (B.A.) at the time of admission into the above course. But, as per the records available, you are not a full fledged graduate as the certificate "Sahitya Sudhakar" possessed by you in Hindi from Bombay Hindi Vidyapith is not treated as equivalent to the degree and you have not passed any degree examination from any recognised University. You have thus obtained the admission in DIMS and acquired the said PG Diploma suppressing the facts regarding qualification and also giving a false declaration to the Institute that you were a graduate.

2.2 It has also been reported that you have produced a letter issued by Dy.Registrar of DIMS certifying that the said PG Diploma acquired by you is of one year‟s duration. But, it has now been found, on verification, that the said letter purported to have been issued by Dy.Registrar of DIMs is fabricated and false.

2.3 It is therefore, alleged that you have obtained admission into the said diploma course by fraudulent means suppressing the factual information and also produced a false document with an intention to get promotion to the next higher grade, through the course is not recognised.

3. You are therefore alleged to have committed the following misconducts under Rule 5 of Conduct, Discipline and Appeal Rules of the Company. Charges i. Furnishing false information and document. ii. Commissioner of an act subversive of discipline or of good behaviour.

xxxxxxxxx"

3. On the basis of the chargesheet, enquiry proceedings were held on two dates. First date of the enquiry proceedings is 17.12.1992 at Hyderabad and the second date of the enquiry is 5.7.1993 at Delhi. The proceedings were shifted to Delhi by the respondent suo moto without any consent being obtained from the petitioner, though the respondent-employer claimed that the shifting was done because the petitioner was posted at Delhi. The petitioner claims violation of principles of natural justice, inter WP(C) No.3061/1995 Page 5 of 19 alia, on the ground that the Defence Assistant engaged by the petitioner was posted at Hyderabad and the petitioner therefore suffered grave prejudice because the Defence Assistant could not travel to Delhi.

4. The Enquiry Officer gave his report dated 24.7.93 holding the petitioner guilty of the charges alleged in the chargesheet. Following are the findings of the Enquiry Officer:-

"FINDINGS OF THE ENQUIRY OFFICER Charge No.1 : Furnishing false information and document.

Charge no.1 stands substantiated with the following evidences:

i) Obtained admission in PG Diploma of DIMS in the year 1980 stating that his educational qualification is B.A. (exhibit no.5). This is further confirmed by exhibit no.6.

ii) It is very clear from the exhibit no. 5 that the duration of the Course is six months but the DE has submitted a false certificate from Dy Registrar, DIMS, New Delhi (exhibit no.2) to the effect that the course duration is one year.

iii) Again, this exhibit no.2, signed by Dy Registrar of DIMS is found false with exhibit no.6 issued by Director, DIMS who has categorically stated that they WP(C) No.3061/1995 Page 6 of 19 do not have any Dy Registrar to issue such letters on their behalf.

iv) Submission of Sahitya Sudhakar examination Certificate in the year 1987 though it was issued on 5.8.1984.

Charge no.2: Commission of an act subversive of discipline or of good behaviour.

Charge no.2 stands substantiated with the following evidences:

i) Submission of false information to both Management as well as to DIMs that he is a Graduate.

ii) Submission of fabricated documents such as exhibit no.2.

iii) Misleading the Management that Sahitya Sudhakar examination is equivalent to B.A. in getting promotion knowing fully well that he is APO, and going to be considered for the post of PO/Liaison Officer.

iv) Misleading the educational institution like Indira Gandhi National Open University and University of Mysore in seeking admission for higher studies as if his basic qualification is Graduation.

v) Submission of PG Diploma Certificate stating that it is one year course.

vi) Submission of a Certificate from a Private Institute like DIMS which is not affiliated to any University of recognised by any State Govt. Or Government of India.

vii) Knowing fully well being in Public Sector Undertaking recognition of the qualification as laid down by Ministry of Education, the DE submitted a false certificate.

Copy of the Proceedings and the relevant exhibits are enclosed.

                                                  (N. K. TULI)
                                               ENQUIRY OFFICER

            To:      Chairman & Managing Director ECIL."

5. Learned counsel for the petitioner has argued before me the following points:-

i) The sum and substance of the chargesheet is that the Sahitya Sudhakar qualification is not equivalent to B.A. examination and secondly of the documents dated 30.5.1991 issued by DIMS stating that the P.G. Diploma course passed by the petitioner is wrongly being said as being equivalent to one year course. It is argued that the case of allegedly suppressing of the qualification of Sahitya Sudhakar as being equivalent to graduation has been alleged to form the basis of wrong admission in the P.G. Diploma course of DIMS, i.e giving a false declaration to the DIMS Institute by the petitioner as being a graduate is incorrect so far as the aspect of suppressing of required qualification of the petitioner being WP(C) No.3061/1995 Page 8 of 19 a B.A. graduate for obtaining P.G. Diploma course, because the respondent No.1/employer never at any point of time sought to deny the letter of the Ministry of Education dated 5.6.1985 whereby the Sahitya Sudhakar examination was treated as equivalent to B.A. examination at Hindi level, and on the basis of which the petitioner was admittedly promoted by the respondent No.1 itself from Office Assistant to a Liaison Officer, and admittedly there is no demotion sought to be made of the petitioner from Liaison Officer to an Assistant Officer and therefore, the charge of any concealment against the petitioner for furnishing of any false information is incorrect. So far as the aspect of the document dated 30.5.1991 having not been issued by DIMS is concerned, it is argued on behalf of the petitioner that there is no reason for the petitioner to forge the said document which is on the letterhead of DIMS, besides the fact that no oral evidence was led on behalf of the department in the enquiry proceedings to show the fabrication of this letter except filing a letter dated 1.8.1991 from DIMS that the letter dated 30.5.1991 was not issued by DIMS. It is also argued that the substance qua this allegation in the chargesheet basically is that the P.G.Diploma course is wrongly said to be of one year duration, and in the enquiry proceedings it was sought to WP(C) No.3061/1995 Page 9 of 19 be made out by the respondent No.1 that the diploma course was only of six months duration, but this was a new point not found in the chargesheet.

ii) There has been gross violation of principles of natural justice in the facts of the present case because the onus to prove the charges was on the employer, but the employer led no oral evidence whatsoever of even a single witness to prove the charges against the petitioner. Violation of principles of natural justice is also alleged on the ground that after second and the final hearing was conducted on 5.7.1993, documents being Ex.Nos. 16 to 19, 21 and 23 were allowed to be filed on behalf of the respondent No.1 without giving copies of the same to the petitioner or calling upon the petitioner to meet the same. Violation of principles of natural justice is also alleged on account of violation of the provision of Rule 34 of the Rules framed by the respondent No.1 with respect to conduct of enquiries in that it was mandatory for the department to have examined witnesses to prove its case, and department is erred in conducting a summary enquiry without leading evidence to prove its case or giving any opportunity to the petitioner to lead evidence in support of his case.

6. On behalf of the respondent No.1, its counsel has supported the report of the Enquiry Officer by contending that there has been suppression of facts on behalf of the petitioner that the petitioner actually was not a graduate in B.A. and, also the letter of DIMS dated 30.5.1991 is a forged and fabricated document and which becomes clear from the letters dated 1.8.1991 (Ex.4) and 8.10.1991 (Ex.6) of DIMS to the respondent No.1. It is also argued on behalf of the respondent No.1 that the petitioner got the P.G. Diploma course by producing of false document so that the petitioner can get promotion with the respondent No.1/employer to a higher grade.

7. I have already reproduced the relevant portion of the chargesheet dated 25.2.1992 above. Firstly, in my opinion, chargesheet is not very happily worded. When we read para 2.1 in substance, what actually is alleged against the petitioner is that the petitioner obtained admission in DIMS and acquired the P.G.Diploma course by suppressing facts with regard to his qualification as he was not a B.A. as stated in the application to DIMS. There is no other allegation in this para 2.1 of the chargesheet. Therefore, the issue which arises is whether the petitioner had suppressed any material fact in obtaining the P.G.Diploma course from DIMS because he wrongly alleged himself as B.A. whereas he was not.

8. In this regard, I am of the opinion that it cannot be said that the petitioner was guilty of any alleged suppression of facts inasmuch as the petitioner had way back in the year 1985 given the letter of the Ministry of Education dated 5.6.1985 to the respondent No.1 wherein it is said that the Sahitya Sudhakar examination of Bombay Hindi Vidyapeeth is equivalent to B.A. examination at Hindi level. The respondent No.1 also accepted this fact by its letter dated 20.3.1986 and confirmed that this qualification would be taken note of for the career growth of the petitioner, and the petitioner was promoted from the post of Asst. Officer to Liaison Officer on 1.3.1985 taking Sathiya Sudhakar as equivalent to graduation course. There will however remain the issue of the qualification of Hindi Sahitya Sudhakar being of 1984 but the petitioner in July, 1981 applying for P.G.Diploma course stating that he is B.A. in his application.

9. The aforesaid facts show that there is with respect to the alleged suppression by the petitioner an existence of a grossly vexed question of fact. On the one hand, the petitioner was given the letter by the respondent No.1 dated 20.3.1986 accepting Hindi Sahitya Sudhakar as equivalent to B.A. examination for Hindi level and so promoted on that basis, however, there can be an issue with respect to whether the petitioner was mandatorily WP(C) No.3061/1995 Page 12 of 19 bound to have a B.A. qualification for applying for the P.G.Diploma course with DIMS and whether he had such qualification in the year 1981. On this aspect, neither any evidence was led nor any documentary record exists in the enquiry proceedings as to what is the required qualification for applying to the P.G.Diploma course of DIMS.

10. So far as the aspect of the letter dated 30.5.1991 being forged is concerned on the one hand the petitioner seems to have a case that the letter cannot be a forgery because it is on the letterhead of the DIMS (though it does not have a reference number) and signed by the Deputy Registrar, but the said institute being a private institute for some reason is now wanting to back out of the said letter and which aspect can only be made clear if opportunity is given to the petitioner to lead evidence to establish the fact that the letter dated 30.5.1991 of DIMS is not a forged and fabricated document. Similarly, respondent No.1 in fact besides simply filing letters of DIMS and which are simply accepted as Ex.4 and Ex.6 have not called any witness from DIMS to prove these letters and nor has an opportunity been given to the petitioner to cross-examine such witnesses as also lead his own evidence to deny the assertions which have been made by the DIMS in its letters dated 1.8.1991 and 8.10.1991.

11. After having given the respective facts of the present case, and the respective stands of the parties, it will be necessary at this stage to refer to Rule 34 of the Rules of the respondent No.1-Corporation with particular emphasis on sub-Rules 1, 3, 6, 11 and 12 and which read as under:-

"1) No order imposing any of the major penalties specified in Clauses (v), (vi) and (vii) of Rule-32 shall be made except after an inquiry held in accordance with this Rule.

.........

3) Whether it is proposed to hold an inquiry, the Disciplinary Authority shall frame definite charges on the basis of the allegations against the employee. The charges, together with a statement of the allegations on which they are based, a list of documents by which and a list of witnesses by whom the charges are proposed to be substantiated shall be communicated in writing to the employee who shall be required within such time as may be specified by the Disciplinary Authority not exceeding 15 days), to either specifically admit or deny any or all charges, through a written statement.

..........

6) The employee against whom misconduct is alleged may take the assistance of any other employee of public servant but is not entitled to engage a legal practitioner for the purpose.

..........

11) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charges WP(C) No.3061/1995 Page 14 of 19 are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the employee. The Presenting Officer shall be entitled to re- examine, the witnesses on any points on which they have been cross-examined, but not on a new matter, except with the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit.

12) Before the close of the prosecution case, the Inquiring Authority may, in its discretion allow the Presenting Officer to produce evidence not included in the charge- sheet, or may itself call for new documentary evidence or recall or re-examine any witness. In such case the employee shall be given opportunity to inspect the documentary evidence before it is taken on record, or to cross-examine a witness, who has been so summoned."

12. A reference to the aforesaid Rules show that there is an innate obligation of the Enquiry Office in cases such as the present where vexed questions of facts exist to allow oral evidence to be led i.e witnesses being examined, and they being cross-examined and also the fact that if new documentary evidence after hearing was led by respondent No.1 then further opportunity is given to the affected party i.e petitioner ought to have been given to not only explain the documents, but to lead additional evidence in rebuttal. Admittedly all the aforesaid requirements of Rules have not been followed by the Enquiry Officer because the entire enquiry is completed in WP(C) No.3061/1995 Page 15 of 19 two hearings, one at Hyderabad and another at Delhi. As already stated above no oral evidence has been led by the respondent No.1 and no date was fixed for the petitioner to lead his evidence. Also, various documents being Exs.16 to 19, 21 and 23 which have been relied upon by the enquiry officer were never given to the petitioner so that the petitioner can in any manner explain the same or can lead the evidence to rebut the contents of the same.

13. By the impugned proceedings the petitioner has been removed from service, and which is a drastic penalty against the petitioner. An order which is so harsh as the one in question being removal from the service will have to be decided with respect to charges alleged on detailed evidence which is led on behalf of both the parties. What emerges from the record of the Enquiry Officer in the present case is a very cursory and inadequate endeavour to comply with the requirements of natural justice especially the compliance qua the specific sub-Rules of Rules 34 of leading of oral evidence, cross-examination of the witnesses of the other party and allowing an affected party to lead additional evidence and finally if the department is allowed to lead documentary evidence at the fag end of the enquiry and that too without copy of such document being furnished to the affected party then opportunity for rebuttal evidence had to be given to the petitioner. In WP(C) No.3061/1995 Page 16 of 19 my opinion, therefore it is necessary that in the facts of the present case, that the penalty order dated 10.6.1994 and the appellate order dated 30.4.1995 are set aside being violative of the principles of natural justice. It will be open to the respondent No.1 to conduct fresh enquiry proceedings against the petitioner, and that enquiry proceedings shall follow the applicable Rules qua the principles of natural justice. I may state that what strongly persuades me to set aside the impugned orders is basically because the respondent No.1 has in fact acted upon the Hindi Sahitya Sudhakar qualification of the petitioner to give him promotion from the post of Assistant Officer to a Liaison Officer, and which promotion admittedly till date is not sought to be set aside by the respondent No.1, and which promotion was given taking the Hindi Sahitya Sudhakar qualification as a graduation /B.A. I do not express my opinion on merits in one way or the other because this aspect will be ultimately decided by the Enquiry Officer/disciplinary authority and the appellant authority after principles of natural justice are followed both in letter and spirit.

14. At this stage, counsel for the petitioner has drawn my attention to Rule 29(4) of the Rules with respect to conduct of disciplinary proceedings and which Rule reads as under:-

"Rule 29(4) Where a penalty of dismissal or removal from service imposed upon an employee is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, the employee shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal or removal and shall continue to remain under suspension until further orders."

15. Accordingly, by following the Rule 29(4) I order that in case the respondent No.1 decides to hold further enquiry against the petitioner, the petitioner will be deemed to be placed under suspension from the date of the original order of dismissal or removal and shall continue to remain under suspension until further orders of the appropriate authority. Whatever monetary benefits which have to flow to the petitioner on compliance of Order 29(4) of the Rules shall in accordance with law be given to the petitioner by the respondent No.1.

16. In view of the above, the writ petition is allowed and the impugned orders dated 10.6.1994 and 30.4.1995 are set aside, giving liberty to the respondent No.1 if it so thinks fit, to conduct further enquiry against the petitioner in accordance with law.

17. Parties are left to bear their own costs.

VALMIKI J. MEHTA, J JANUARY 22, 2013 ak WP(C) No.3061/1995 Page 19 of 19