Bombay High Court
Nandkishor Pannalal Agrawal vs The Managing Director City And ... on 19 March, 2025
2025:BHC-AUG:8000-DB
wp-2607-2018.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2607 OF 2018
Nandkishor Pannalal Agrawal,
Age: 68 yrs Occu.
Ex-Superintending Engineer,
CIDCO [NT], Aurangabad &
R/o. Plot No. 15, Dwarkapuri,
Behind Patwardhan Hospital,
Aurangabad-431005 ..Petitioner
VERSUS
1. The Managing Director,
City and Industrial Development Corporation of
Maharashtra Ltd. Nirmal Building,
2nd Floor, Niriman Point, Mumbai-400021.
2. The Chief Accounts Officer,
CIDCO, Bhawan, 5th Floor CBD, Belapur,
New Mumbai -400614
3. Manager [Personnel] CIDCO, Bhawan,
3rd Floor CBD, Belapur,
New Mumbai -400614 ..Respondents
...
Advocate for the Petitioner : Mr. Irale Patil D.R.
Advocate for Respondent Nos.1 to 3 : Mr. Ajay S. Deshpande
...
CORAM : S.G. MEHARE AND
SHAILESH P. BRAHME, JJ.
RESERVED ON : MARCH 12, 2025
PRONOUNCED ON : MARCH 19, 2025
JUDGMENT :
- (PER S.G. MEHARE, J.)
1. Rule. Rule made returnable forthwith. Heard finally
with the consent of the parties.
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2. The petitioner has impugned the order of dismissal dated
03.11.2003 issued under the signature of Chief Engineer and General
Manager (Tech) and order passed in appeal dated 09.01.2006 passed
by the Managing Director, CIDCO of Maharashtra Limited.
3. Brief facts of the case were that the petitioner was the
Superintendent Engineer (NT), CIDCO Aurangabad. On the
complaint of the contractor, the petitioner was trapped in anti-
corruption case. A charge sheet was filed against him and he was
arraigned as an accused. In the interregnum, departmental inquiry
was initiated against him. A charge sheet was served upon him
calling upon him to explain the charges of demand of bribe and
acceptance while discharging official duty which is fraud and
dishonesty with the corporation that amounts to misconduct under
sub-rule 31 and 34 of the Regulation 25 of Chapter IV of The City and
Industrial Development Corporation of Maharashtra Limited Service
Regulations, 1972 ('Service Regulations' for short). The petitioner
faced the inquiry and held guilty. The requisite procedure was
followed and by order dated 03.11.2003, he has been dismissed from
services with immediate effect. He has preferred the appeal against
the dismissal order on 10.11.2003. The appeal was dismissed on
09.01.2006. Against that order after twelve years, he has preferred
this writ petition praying to quash and set aside both impugned
orders. He was acquitted of the charges of corruption by the Special
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Court. His acquittal is challenged by the respondents and the appeal
is still pending.
4. The petitioner has impugned the orders under challenge
mainly on three grounds that the complainant who alleged the
charges of corruption was not examined, the charge sheet was not
served by the competent authority and the order dated 03.11.2003
dismissing him is not passed by the competent authority as defined
under The Service Regulations.
5. Learned counsel for the petitioner has vehemently argued
that unless the complainant is examined, it could not be said that the
charges of corruption have been established. His examination was
essential for granting opportunity to the petitioner to rebut the
allegations. However, instead of examining the complainant, Deputy
Superintendent of Police from Anti-Corruption, who did the
investigation of the crime has been examined. He has been
incorrectly relied upon. He was not the aggrieved person against the
petitioner. He is merely an investigation officer. The charges of
demand and accepting the bribe could be established only by the
complainant. The Superintendent of Police, Anti-Corruption Branch
examined by the corporation/respondent did not know the reason. It
is a matter of intention that could be established only by examining
the complainant. He would also argue that the charge sheet could
have been served upon him by the competent authority. However, the
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Manager (Personnel) has served upon him the charge sheet. The
Manager (Personnel) was not the person competent and authorized to
serve the charge sheet upon him.
6. The next limb of his arguments were that in view of the
definition of the term 'Competent Authority', the competent authority
is either the Managing Director or the Officer declared by him as
competent authority. The Chief Engineer and General Manager
passing the order of punishment was not the competent authority.
This is an apparent illegality. To bolster his arguments, he relied on
the case of Bharat Petroleum Corporation Limited and Others Vs. Anil
Padegaonkar, (2020) 5 SCC 474, Tejpal Singh (Dead) through Legal
Representatives Vs. Union of India, (2018) 14 SCC 343 and State of
U.P. and Ors Vs. Ram Naresh lal, AIR 1970 SC 1263.
7. He would also submit that since the charges were not
established properly, the authorities serving the charge sheet upon
him as well as passing the order of imposing the penalty were not
competent authorities, the entire inquiry is vitiated. The petitioner
has already attained the age of superannuation. Therefore, all the
service benefits be granted to him deeming him to be reinstated.
8. Learned counsel for the petitioner also vehemently
argued that there shall be no delegation of power by the delegate.
Therefore also, passing the dismissal order is illegal. He prayed to
allow the writ petition.
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9. Learned counsel Mr. Deshpande for the contesting
respondents opposed the contention of the petitioner. He would
submit that the authorities, who have served upon the charge sheet
and the order of dismissal were competent and authorized. The
petitioner did not prefer the appeal in time. There is delay and latches
on the part of the petitioner in not approaching the Court
immediately. He waited till the Special Court concluded the trial of
corruption against him. On this sole ground, the petition is liable to
be dismissed. He would submit that the observations in para 10 of
the case of Bharat Petroleum (supra) relied upon by the petitioner
supports the case of the respondents. He countered the arguments of
the learned counsel for the petitioner contending that both authorities
issuing charge sheet as well as passing the dismissal order were
appointed by the Managing Director. He would submit that the order
dismissing the petitioner dated 03.11.2003 is the communication by
the Chief Engineer and General Manager. It was in fact an order of
the Joint Managing Director of CIDCO Ltd. Clause 5 sub-clause (b) of
the Service Regulations has been incorrectly considered while passing
the orders. He supports both impugned judgments and orders and
prayed to dismiss the petition.
10. To answer the question, whether authorities issuing the
charge sheet or passing the order of termination were competent
authorities, Clause No.5(b) of Service Regulations is to be considered.
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Clause 5(b) defines the term 'Competent Authority' means the officer
declared as such by Managing Director by a general or special order.
The Managing Director may declare different officers as competent
authorities for different purposes under these Service Regulations.
Learned counsel for the petitioner is right that the competent
authority is either the Managing Director or an officer declared
appointed by a general or special order. The Managing Director can
declare different officers as competent authorities for different
purposes. For the purpose of inquiry and passing the appropriate
order after inquiry, the Managing Director had declared the
competent authority. As far as the service of the charge sheet is
concerned, it appears that it was served upon the petitioner by
Manager (Personnel). The initiation of the inquiry is the process to be
done by the official concerned. The said officer should be officially
concern only to serve the copy of charge sheet. In view of the
definition of the competent authority, we are not agreeable with
learned counsel Mr. Irale that the person who served him a copy of
charge sheet should be a 'Competent Authority' as defined under
Clause 5(b) mentioned above. The record reveal that after the charge
sheet was served, the Chief Administrator (NT) was appointed as an
inquiring officer. The petitioner has faced the inquiry before him.
After complying with the requisite formalities, he placed his report to
the Chief Administrator (NT) for appropriate orders. So, it could be
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said that the inquiry was conducted by the person declared as
competent authority. However, the order dismissing the petitioner
reveals that the Managing Director of CIDCO has appointed the Joint
Managing Director of CIDCO as competent authority under sub-clause
(b) of Clause 5 of the Service Regulations. The order of termination
does not bear his signature. The signatory of the order of the
dismissal observed was that the Managing Director of CIDCO has
appointed the Joint Managing Director of CIDCO Ltd as competent
authority as provided under Clause 5 sub-clause (b) of the CIDCO
Service Regulations Act delegating the Chief Engineer and General
Manager (Tech) of CIDCO as competent authority in this matter. The
contents of the order of dismissal itself shows that the Managing
Director did not appoint Chief Engineer and General Manager as the
competent authority under Clause 5 sub-clause (b) of the Service
Regulations. Reading the definition of competent authority, one could
understand, unless the Managing Director declares a person for a
specific purpose as competent authority, no one other than such
person declared is a competent authority. Reading the contents of the
order, delegating the powers to the Chief Engineer and General
Mananger (Tech) by Joint Managing Director, it is delegation of the
power by delegate. The principle that a delegate cannot delegate
power is called "delegatus non potest delegare". This Latin maxims
means that delegate cannot further delegate. However, there are
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some cases where sub-delegation is allowed. For example, statute
was granted him to allow it or it may be implied or permitted in
exigency or necessity. In some cases, delegate has authority to sub
delegate all the powers to another person or agency. This is based on
the principle that the delegate should have the flexibility to distribute
the workload. In other words, it could be said that the powers can
only be delegated to another authority if the statute expressly or
clearly permits him. Legislative powers cannot be sub delegated.
11. Reading the impugned order, the Joint Managing Director
of CIDCO was appointed as competent authority for passing an
appropriate order after submitting the inquiry report by the inquiring
officer. The Service Regulations are silent about delegation of the
power by the delegate. Nor the learned counsel for the CIDCO
pointed out that the service regulations provide for sub delegation.
Therefore, we are satisfied that the order dismissing the petitioner
under the signatures of Chief Engineer and General Manager (Tech) is
illegal and on that count, the said order deserves to be vitiated.
12. So far as the ground of non-examination of the
complainant is concerned, it is a matter of examination of the record.
The petitioner has raised these grounds in the appeal. There were two
fact findings. Considering the scope of Article 226 of the Constitution
of India, this Court cannot re-appreciate the evidence. In view of the
above observations, the effect of non-examination of the complainant
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is consequential. Hence, we express the opinion that it is immaterial
to comment on that ground at this juncture.
13. The next question that arises for consideration is, could
this petition be entertained for the above defects after such a long
period of twelve years.
14. In the case of Bharat Petroleum (supra), the Hon'ble
Supreme Court relying on the definition of competent authority under
Rule 3(h) of 1976 Rules applicable to the parties to the proceeding
held that DGM was competent to issue charge sheet. Besides,
employee neither in his reply to charges nor in departmental appeal
raised any issue pertaining to competency of DGM to issue charge
sheet but raised it for first time in writ petition. Para 11 of the said
case has been relied upon by the learned counsel for contesting
respondents and contended that since the petitioner has been
dismissed on the ground of delay and latches, the said issue cannot be
dealt with and on this sole ground, the petition deserves to be
dismissed. However, in the last two lines of the said paragraph, the
Hon'ble Supreme Court observed that nonetheless, since a
fundamental issue of jurisdiction has been raised, we shall proceed to
examine the issue. The expressions were clear that the issue of
jurisdiction of the competent authority was the issue of jurisdiction
that should be examined though the petition has been filed belatedly.
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We do not find substance in the argument of the learned counsel for
the contesting respondents.
15. In Tejpal Singh (supra), on the basis of the facts of the
case and considering the relevant rules, it was held that the order of
removal was passed by the officer who was lower in rank than the
General Manager is not permissible. Since the appellant was passed
away, the Hon'ble Supreme Court observed not to remit the matter
back.
16. Delay and latches is one of the ground to refuse the relief.
To examine the diligence of the petitioner, some facts needs to be
examined. The petitioner was suspended on 24.04.2001. The inquiry
was completed and report was submitted to the authority on
15.04.2002. The dismissal order was dated 03.11.2003. The appeal
was preferred on 10.11.2003 and concluded on 09.01.2006.
Thereafter, since 2006 to 2018, the petitioner did not impugned the
order of Appellate Authority. After the judgment of Special Judge
(P.C. Act) dated 27.01.2016, the petitioner approached this Court in
2018. It seems that the petitioner was waiting for the judgment of
the Sessions Court. After the said judgment, the petitioner waited for
about two years. The conduct of the petitioner reveals that he was
not diligent. The arguments of the learned counsel for the petitioner
reveal that the petitioner was expecting to take the benefit of the
judgment of acquittal. The law is very clear on the point of the effect
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of judgment of the Criminal Court acquitting the accused. Otherwise
also, he was charged with serious offence of demanding and
accepting bribe. The overall conduct of the petitioner was not
satisfactory and he was not seen diligent. We uphold the arguments
of the learned counsel for the contesting respondents that the petition
deserves to be dismissed on delay and latches. Hence, we proceed to
pass the following order :
ORDER
(i) Writ Petition stands dismissed.
(ii) No order as to costs.
(iii) Rule stands discharged.
(SHAILESH P. BRAHME, J.) (S.G. MEHARE, J.)
Mujaheed//
