Khem Chand Khattar vs Municipal Corporation Of Delhi ...
1987 Latest Caselaw 440 Del

JUDGMENT

P.K. Bahri, J.

(1) By virtue of this writ petition the petitioner has challenged the orders of the respondent No.1 by which he has not been granted selection grade while his juniors have been granted selection grade. He has prayed that he may be granted selection grade retrospectively with effect from the 5th September 1971. He has also prayed for payment of all arrears and other benefits with effect from the 1st of September 197 Tin the selection grade. He has also challenged in this very writ' the order of punishment withholding four increments.

(2) The facts, in brief, are that the petitioner was employed as Assistant Teacher by respondent No. 1. Municipal Corporation of Delhi since October 1959 in the pay scale of Rs. 68-170 which was revised to Rs. 118-225 in the year 1960 retrospectively from October 16, 1959. He was promoted to the post of Assistant Teacher on March 1, 1961. As per orders of the Government of India dated November 26, 1971, which had been adopted by respondent No. 1 vide resolution dated June 21, 1971, the pay scale had been revised to Rs. 165-350 and 15% posts has been declared as selection grade posts in the scale of pay of Rs. 340-20-400 with effect from September 5, 1971 and the selection grade was to be granted on the basis of seniority subject to fitness. It is the case of the petitioner that on the basis of the aforesaid revision of. pay scale his juniors-respondent 4 to 6 have been placed in selection grade while the petitioner's case has been kept under consideration. The petitioner has mentioned that be is duly qualified to be granted selection grade and without any rhyme and reason his case has not been considered for grant of selection grade in spite of making representations to respondent No. 1. Then the petitioner has averred that vide order dated February 5, 1971, a punishment had been awarded to him of stoppage of four increments with further effect and he apprehends that his selection grade has been withheld on account of that particular order of punishment. He has urged in the-petition that the said punishment could not result in depriving the petitioner of his right to be given selection grade even during the period his increments were to remain stopped. ( The petitioner also averred that the charges on which the inquiry was held and punishment was awarded were vague and false and that the whole inquiry proceedings were vitiated as they were held in violation of rules of natural justice inasmuch as the petitioner was not given the copies of necessary documents in spite of demands and he was also not allowed inspection of the record. He has also averred that he was not allowed to participate in the inquiry proceedings on a particular date of hearing inasmuch as his Head Master did not permit him to leave the school to attend the inquiry proceedings. He has also pleaded that the findings of the Inquiry Officer are not based on any evidence and the disciplinary authority had not given any reasons for coming to the said findings and his appeal was dismissed by the appellate authority without giving any reasons. So, on account of these deficiencies in the inquiry proceedings and other matters, the petitioner seeks the writ of this Court for quashing the punishment awarded to him of stoppage of four increments.

(3) This particular writ petition filed on June 13, 1974, while admittedly the punishment order was made in the year 1971 and his appeal was also dismissed in the year, 1971. In the whole of the writ petition it was not .explained as to why the petitioner has not brought the writ petition in the right earnest when his appeal was dismissed by the appellate authority in the year 1971 and punishment was confirmed. In para 38 of the writ the petitioner mentioned that he had made an application for review of the order of punishment dated March 1971 but that review application had been dismissed. The said order dismissing the review petition has been communicated to him very recently. Admittedly there was no power of review vested in respondent No. 2- Municipal Commissioner under the provisions of the Delhi Municipal Corporation Act or the Rules framed there under, it is not disclosed by the petitioner as to when he had sought the review and when the same was rejected by the respondent No. 2. In any case the petitioner had no right to move any application for seeking review of the order from respondent No. 2 and the petitioner is definitely guilty of laches in not filing the writ petition promptly when his appeal was dismissed and the order of punishment was confirmed. Counsel for the petitioner has argued that the petitioner has instituted a civil suit challenging the order awarding the punishment but later on the had withdrawn that suit with permission of the court to file fresh suit on the same cause of action and thereafter he had filed the application for review and after the said application was rejected, the petitioner has filed the present petition. The suit was withdrawn on November?, 1973. It is not possible to agree with the learned counsel for the petitioner that the petitioner is not guilty of laches. In case the petitioner was aggrieved by the order awarding punishment, he should have continued with his suit and should not have withdrawn that suit on any ground whatsoever.

(4) Coming to the merits regarding the challenge to the order of punishment, the first point to be noted in the present case is that the petitioner for the first time in this writ petition has made some grievance regarding his being not supplied certain copies of documents or inspection of the record by the authorities which objection he did not raise in the grounds of appeal. It is true that before the start of inquiry the petitioner had made certain applications praying that he may be given copies of the documents showing his appointment as a clerk in the examination where he had allegedly worked and copy of the report of any handwriting expert indicating that his signatures appeared on the acquittance roll and any other record showing that be had performed some work as a-clerk in the examination and the daily attendance register where he might have put in attandance. The facts leading to the taking of disciplinary proceedings against the petitioner in brief, were that he had been allegedly deputed to work as a clerk in the middle school examination held in between the period March 18, 1968 to March 28,1968 and was stated to have been paid Rs. 48.00 as sort of honorarium but a complaint was made against the Head Master Shri Laksmi Narain that he had embezzled Rs. 48.00 which in fact had not been paid to the petitioner. The allegations against the petitioner was that he had made that false complaint and had taken up a false plea that he had not been paid Rs. 48.00 .

(5) In the grounds of appeal, copy of which has been filed by the petitioner himself as annexure XIII-A, shows that he never made any grievance in appeal that he had been deprived of any opportunity of looking up the record There was no handwriting expert engaged by the department. So, the question of supplying any copy of report of handwriting expert to the petitioner did not arise A perusal of the grounds of appeal shows that the attendance register of the employees, who worked in the examination including the petitioner, was produced and proved in the inquiry proceedings. The only grievance made by the petitioner in the grounds of appeal was that no signatures of any of the employees have been obtained and presence of the employees had been shown by putting the fetter 'P'. So, it does not lie in the month of the petitioner to assert in the writ petition for the first time that he had suffered any prejudice or disadvantage for non-supply of any copies of any documents.

(6) Another grievance made in the grounds of appeal was that on one of the hearings his Head Master had not permitted him to attend the proceedings The Inquiry Officer had written a letter to the Head Master concerned. It was not the same Head Master who figured in the dispute but as the petitioner had been admittedly transferred to some other school and the said Head Master had written back denying that the petitioner ever was prevented by him from attending the inquiry proceedings. The inquiry report shows that the petitioner absented from the inquiry proceedings and did not produce any evidence and submitted only his written arguments. The grievance was made that certain witnesses of the department were examined' in the absence of the petitioner, but I find that during the course of the inquiry the petitioner did not make any application for recalling any witnesses to enable him to cross-examine those witnesses. After the inquiry had been completed it does not give any right to the petitioner to make a grievance of this particular fact. I may mention that the petitioner himself did not appear before the Inquiry Officer when witnesses were being examined. So, he cannot have any grievance on that score. It has been vehemently argued before me that the findings of the Inquiry Officer are not based on any documentary evidence and the best evidence in the shape of documents was not produced before the Inquiry Officer. I do not agree with this contention because a perusal of the grounds of appeal filed by the petitioner himself shows that necessary documents were proved before the Inquiry Officer in the shape of the attendance register, acquittance roll and the Inquiry Officer bad found that the petitioner had taken a false plea that he was-not present in the school on the day the alleged amount was purported to have been paid to the petitioner. In a writ petition the court is not to reappraise the evidence and come to a different finding. It was not necessary for the Inquiry Officer to have discarded the oral evidence of the persons who Along with the petitioner had performed the duties in the aforesaid examination and had received the necessary honorarium Along with the petitioner. I do not find any merit in the contention of the petitioner that the inquiry report is vitiated with any infirmity either in the proceedings or in its findings.

(7) Counsel for the petitioner has next argued that no reason had been given by the appellate authority while dismissing the appeal filed by the petitioner or by the disciplinary authority by which the punishment had been awarded to the petitioner, The disciplinary authority had mentioned in the order that it agreed with the reasons and findings given by the Inquiry Officer There is no rule or law which requires that while affirming the findings of the Inquiry Officer the disciplinary authority or the appellate authority had to give separate reasons. Counsel for the petitioner has made reference to Ram Chander v. Union of India & Others, 30 (1986) Dlt 282, in support of his contention that in case the appellate authority fails to give reasons while dismissing the appeal the appellate order should be treated as illegal. However, the perusal of the judgment shows that a particular Rule 22(2) of the Railway Servants (Discipline & Appeal) Rules. 1968, came up for consideration which was to the following effect : "22(2). In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider- (a) whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) "whether the findings of the disciplinary authority are warranted by the evidence on the record; and (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or service; and pass orders- (i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case." The Hon'ble Supreme Court had noticed the judgments in Som DuttDatta v. Union of India & Others, , Tara Chand Khatri v. Municipal Corporation of Delhi, & Others, and Madhya Pradesh Industries Ltd. v. Union of India ^Others, , in which it has been held that it is not necessary to give reasons in support of findings when there is no such requirement of law which makes incumbent on any authority to give reasons. Reference is also made to State of Madras v. A.R. Srinivasan, AIR1986-SC1827. However, the Hon'ble Supreme Court while construing the said Rule 22(2), quoted above, came to the conclusion that this particular Rule contemplates that the appellate court should give reasons in support of its findings. No such general law has been laid down in this judgment that in the absence of any rule or law requiring giving of reasons the authority dismissing the appeal or deciding the matter has to give any reasons. In the case of Som DuttDatta (supra), Section 164 of the Army Act, 1950 and the Court Martial proceedings show that no reasons have to be given and there can be conviction brought about by using one word"' "guilty". It was held that apart from any requirement imposed by the statute or statutory rules either expressly or by necessary implication, there is no legal obligation that statutory tribunal should give reasons for its decisions. It was further observed that there is also no general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. So, the order of the disciplinary authority or of the appellate authority cannot be considered vitiated for failure of the said authorities to give reasons for their decisions as there is no rule or statute brought to my notice in the case of employees of the Municipal Corporation of Delhi that it was obligatory on the part of the said authorities to give reasons in support of their findings. So, the challenge of the petitioner to the orders imposing punishment on him of stoppage of four annual increment fails.

(8) I may mention that in the writ the petitioner also wanted the relief that his pay should be refixed in the revised pay scales but it is admitted fact that his pay has been fixed in the revised pay scales and no controversies survive between the parties in that respect. The only point which remains to be considered in the present writ petition is whether the respondent was right in not considering the petitioner for promotion to selection grade during the period his punishment of stoppage of four increments was to remain in force. In the counter filed to this writ petition it has been pleaded by the respondent that as long as the punishment awarded to the petitioner remained in force the petitioner had no right to be considered for being promoted to selection grade. It is true that the petitioner although had alleged in his rejoinder that the respondent had considered the cases of some other employees and granted them promotions in the selection grades even though their periods of punishments remained in force, yet in the reply affidavit filed by the respondent these facts were controverter and nothing was brought on record that the averments made by the petitioner were correct. So, in the absence of any material in support of the petitioner's claim in this regard it cannot be held that the respondent had given discriminatory treatment to the petitioner.

(9) However, the crucial question still remains as to whether the petitioner was entitled to be considered for being granted selection grade or not during the period his punishment of stoppage of four increments remained in force. For the misconduct in respect of which the disciplinary proceedings were taken against the petitioner, the petitioner had been already punished but the mere fact that the petitioner had been punished for some lapse earlier does not mean that his case should not be at all considered for promotion to selection grade It is admitted on both sides that the selection grade is to be granted on the basis of seniority-cum-fitness. It is for the department to decide whether the petitioner should be granted selection grade or not but the department cannot refuse to consider the case of the petitioner for the grant of selection grade only on the ground that his period of punishment is not yet over. The punishment of stoppage of four increments had been awarded on a particular misconduct of the petitioner and the said punishment would not debar the right- of the petitioner to be considered for -promotion to selection grade if he otherwise deserves the same. The petitioner cannot be punished twice for one misconduct. He has been already awarded appropriate and r.equisite punishment for his misconduct while directing stoppage of four increments. That should not stand in the way of the respondent in considering whether the petitioner should or should not be granted selection grade from the date he became entitled to be considered for the same.

(10) Hence, I partly allow this writ petition and direct the respondent to consider the case of the petitioner for the grant of selection grade from the date his juniors had been granted selection grade. If the respondent finds him fit to be granted the selection grade then he ought to be granted selection grade retrospectively. The respondents shall consider the case of the petitioner within three months from today. In view of the partial success of the petitioner in the writ petition, I leave the parties to bear their own costs.