Vijay Singh vs Wadia Institute Of Himalayan ...
1989 Latest Caselaw 322 Del

JUDGMENT

M.K. Chawla, J.

(1) The petitioner is an M. Com and his specialised in Accountancy. At the relevant time. he was working as an Administrative Officer with the respondent Wadia Institute of Himalayan Geology Society, Dehradun, (hereinafter referred to as the Society. Besides others, his duties were to supervise and maintain the accounts and point out irregularities in the purchase of material instruments and other items required for the proper functioning of the society. During the course of his service, he is alleged to have incurred the wrath of one Dr. G. C. S. Gaur, a scientist working in the Society, in the back-drop of the following circumstances :-

(2) In the beginning of January, 1979, Dr. G. C. S. Gaur indented a piece of equipment of which the only specialisation he vouchsafed was "a small glass blowing unit". At that time, neither the petitioner nor any member of the staff including the scientist belonging to other disciplines knew as to what a glass blowing unit was. Dr. Gaur did not furnish any details of the said unit. The petitioner was, however, instructed to issue letters "inviting quotations from 5 firms whose names were suggested by Dr. Gaur. One of these firms namely. Narayan Chemicals and Scientific Stores was later on found to be bogus, with which Dr. Gaur had direct dealings. In due course, the firms sent the tenders which were personally opened by the Director of the Society. The tender of M/s. Narayan Chemicals and Scientific Stores was duly approved by the Purchase Committee and the Director of the Society. The petitioner, however, placed an order for the purchase of the equipment on them. The petitioner Along with another scientist Dr. A. K. Khanna was directed to take delivery of the unit from Delhi. At the time of taking of delivery of the equipment in a packed state, the supplier made the following endorsement on the delivery challan :

"PARTS of glass blowing unit".

The petitioner under a bona fide belief understood this to mean the parts of complete glass blowing unit, as ordered. When these parts of the glass blowing unit were brought to the society by the petitioner, he got them entered in the appropriate register in the belief that they were complete in all respects. Nobody, including Dr. Gaur cared to inspect the unit with the result that no complaint about its incompleteness was received.

(3) Just before the expiry of the financial year, the supplier M\s. Narayan Chemicals and Scientific Stores submitted their bill for the equipment supplied, describing it as a complete glass blowing unit. In good faith, having received no complaint from any quarter and believing that the equipment he had brought from Delhi was the complete equipment, the petitioner indorsed the bill for payment and the same was paid by cheque by the society. Later on, during the course of exchange of correspondence between the society through Dr. Gaur and the supplier, it transpired that some parts of the equipment were found to be short. In the absence of the petitioner from Dehradun, Shri Gaur got appointed one Shri S. R. Jaiswal, Deputy Superintendent of Police, Central Bureau of Investigation to investigate about the missing parts of the "glass blowing unit". The Superintendent of Police, C. B. I. completed the enquiry and submitted the report concluding : "REGULAR departmental action for major penalty against Shri Vijay Singh, Administrative Officer and for minor penalty against Shri Deepak Ganguli, besides suitable action against Dr. G.C.S. Gaur is, therefore, recommended. The Institute may also consider banning of business dealings with M/s. Narayan Chemicals and Scientific Stores, Delhi. It is also recommended that a self-contained note may be passed on to the Commissioner, Sales Tax, Delhi bringing out evasion of sales tax by the firm."

This report was duly considered by the Director of the respondent Institute. After examining the report, the Director came to the conclusion :- "FROM the above explanations, it is apparent that Shri Vijay Singh, Administrative Officer has not misconducted himself by showing any favor to the firm nor Shri Deepak Ganguli, Storekeeper had misconducted himself by recording a false entry as alleged. Dr. Gaur could be at fault by not bringing the defect in the unit to the notice of the Director or the Store section. Suitable action will be initiated after hearing from you. It may also be brought to your kind notice that after report of the C.B.I., the firm M/s. Narayan Chemicals and Scientific Stores has been blacklisted and firm orders passed not to deal with this firm in future."

(4) This recommendation did not find favor with the Joint Secretary, Department of Science and Technology who required the Director to initiate the departmental enquiry against Shri Vijay Singh, Administrative Officer for having committed misconduct, inasmuch as he showed undue favor to M/s. Narayan Chemicals and Scientific Stores, Mori Gate, Delhi, by placing the supply orders dated 7-2-79 for the supply of glass blowing unit to the society and managed to pay an amount of Rs. 84001- to the said firm, without actual receipt of the entire parts of the unit from the said firm. The enquiry was conducted by Smt. Mala Srivastava, C.I.D. as suggested by the Joint Secretary. She suggested the imposition of a major penalty on the petitioner. The Enquiry Officer never submitted her report to the disciplinary authority of the society, but sent the same to the Joint Secretary, Ministry of Science and Technology, who in turn directed the society to accept the report and impose a major penalty on the petitioner. As a consequence of the recommendation of the enquiry officer, the petitioner was demoted as Assistant Administrative Officer in the pay-scale of Rs. 650-1200 with pay fixed at the stage of Rs. 8451- p.m.

(5) The petitioner exhausted all his administrative remedies by submitting representation to the Director, Institute and appeals etc. but with no results.

(6) In the present petition, under Article 226 of the Constitution of India, the petitioner has sought the issuance of an appropriate write, order or direction for quashing the charge sheet dated 8-4-82 and 22-9-82 issued by the respondent society and all subsequent proceedings thereon, including the report dated 8-12-82 of the Enquiry Officer and the final order of punishment dated 10-5-83, on numerous grounds.

(7) The Director of the respondent-society in his counter raised a number of preliminary objections to the maintainability of the petition inter alia, alleging :

(1)that this court has no territorial, jurisdiction to entertain and try the petition, as no part of cause of action wholly or partly has arisen in Delhi;

(2)that the respondent-society is not a Corporation or a creature of the Statute and does not fall within the definition "State" as defined under Article 12 of the Constitution of India;

(3)that it is neither the instrumentality nor the agency of the government. Rather it is governed by its own Memorandum of Association and the Rules framed there under.

In this case the departmental enquiry was held keeping in view the principles of natural justice. There is no error apparent on the face of the record not there exists any legal infirmity with the impugned order so as to exercise the extraordinary jurisdiction of this Court. On merits, the respondent justified their action to in it sate the enquiry proceedings and the imposition of penalty.

(8) Learned counsel for the respondent in support of the first preliminary objection that no part of any cause of action has arisen in Delhi, pointed out that initially in the year 1968, the registered office of respondent no. 1 society was set up at Delhi, but subsequently in the year 1976, the entire organisation of the respondent-society was shifted to Dehradun, and since then neither the registered office nor any office or sub-office of the respondent society is located in Delhi. The petitioner was employed and posted at Dehradun office of the society. All the actions in consequence of the charge sheet and subsequent orders were passed at Dehradun. These arguments are quite contrary to the documents proved on the record. The respondent has not placed any certificate of the Registrar of Societies, Delhi or that of U.P. showing that the registered office of the respondent society has shifted to Dehradun. It stands established that when the petitioner filed the present writ, the registered office of the respondent society was very much in Delhi. Moreover, the whole of the enquiry proceedings were initiated, completed and consequent directions for the imposition of penalty were issued from Delhi. Annexure B-1 is the office Memo, dated 22-3-1982 whereby Vijay Shankar. Joint Secretary, Department of Science and Technology, informed the Director of the respondent society that the Government of India in consultation with the Central Vigilance Com-mision, recommends that the departmental proceedings turn major penalty against the petitioner be instituted and Smt. Vijaymala Srivastava be appointed as the enquiry officer If this office order had not been issued, then there was no occasion for the Director to initiate the enquiry proceedings as in his orders, he had already exonerated the petitioner (Annexure A-2). The record further shows that the enquiry officer conducted all the proceedings at New Delhi. Further more, vide Annexure F, the enquiry officer Smt. Mala Srivastava submitted her report to the Joint Secretary Department of Science and Technology at New Delhi on 1st of January, 1983. This recommendation was then communicated to the Director of the respondent-society at Dehradun. The Director in these circumstances had no option but to accept the advice of the concerned Ministry and C.V.C. to impose the major penalty. In the present writ petition, the petitioner has not only challenged the charge sheet but also the enquiry proceedings and the imposition of the penalty. All these actions having taken place at New Delhi, it does not lie in the mouth of the respondent to challenge the jurisdiction of this Court to entertain and decode the present petition.

(9) The plea on the second aspect is that respondent no. 1 is a society registered under the Societies Registration Act. It is being governed by its Memorandum and Articles of Association and the rules framed there under which have no statutory binding. In fact, the society is neither receiving any grant from the Government of India nor is under its management or control or the creators of any statute and as such is not a "State" as defined under Article 12 of the Constitution of India.

(10) Before dwelling on this question, one has to keep in mind the relevant law laid down by the Supreme Court in case reported as Ajay Hasia etc. versus Khalid Mujib Sehra-vardi and others, .(1) In this case, the status of Regional Engineering College, Srinagar as to whether it can be said to be an authority failing within the definition of 'State' in Article 12 of the Constitution of India or not, was under consideration. The Supreme Court aid down the following test :- "IT is immaterial for determining whether a Cooperation is an authority whether the Corporation in created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existance. The Corporation may be a statuary corporation created by a statute or it may be a Government company or a company formed under the Companies Act or it may be a society registered under the Societies Registration Act or any other similar statute. Whatever be its genetical origin, it would be an "authority" within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article 12. A juristic entity which may be "State" for the purpose of Parts Iii and Iv would not be so for the purpose of Part Xiv or any other provision of the Constitution."

(11) In order to determine if the respondent is an authority created under a Statute or is governed by certain statutory provisions for its proper maintenance and administration, one has first to go into facts.

(12) The petitioner has alleged that respondent no. 1 is a juristic person, being a society registered under the Societies Registration Act and is also an agency and instrumentality of the Central Government subject to its Rules, for the purpose of carrying on research in various aspects of Himalyan Geology. Under Articles 4 and 5 of its Memorandum of Association and various Rules, it is clear that its over all control is with the Central Government which is fully responsible for its funding and activities. Under Article 5 of the respondent society, the Central Government has been authorised to issue such directions to the society as it may consider necessary for the furtherance of the objects of the society and for ensuring their proper and effective functioning. Rules .19 talks of the Constitution of the, governing body of the society. It lays down that : "THE general superintendence directions, control and administration of the affairs of the society its income and its property shall be vested in the governing body of the society which shall exercise all the powers of the society including, without prejudice to the generality of the foregoing, the power to acquire and sell property provided prior sanction of the Government of India will be obtained. ........."

Under this Rule, the governing body of the society shall consist of the following :-

1.President. to be appointed by the Government of India;

2.8 Professors of geology from universities nominated by the President;

3.Director General, Geological Survey of India (Ex officio)

4.Surveyor General (Ex officio)

5.Chairman, University Grants Commission (Ex officio) or his nominee;

6.Two persons nominated by the Central Govern- ment from academic organisation; interested in Himalayan geology;

7.A representative of the Ministry of Education;

8.A representative of the Ministry of Finance;

9.Director (Ex officio).

Further more, under rule 48, the accounts of the society as certified by the Auditors together with the Audit report thereon has to be forwarded annually to the Central Government. Even the Amendments of the Rules and Regulations have to be carried out with the prior sanction of the Central Government. In this view of the matter, it can safely be inferred that the respondent society is under the overall control and supervision of the Central Government. Even for day to day affairs, it has to look for guidance to the Government. All these facts will bring the society within the ambit of the law Jaid down in Ajay Hasia (supra).

(13) Under similar circumstances, this court in a case reported as Master Vibhu Kapoor vs. Council of Indian School Certificate Education and another, examined the Rules end Regulations of the respondent society to decide if it ha'; acquired the statutory recognition by the State thus bringing the society within the definition of "State". During the course of the discussion, the Division Bench observed as under:-- "THE Rules and regulations of the first respondent read earlier show governmental supervision, if not control. Two of the members of the society are to be nominated by the Government which. at its choice may either be full even less on assessors. The Director of Education/public institutions (or his deputy) of the State in which a school affiliated to the first respondent exists is a member of the society. So not only functional but also structurally the first respondent is deeply impregnated with governmental character and is admittedly discharging the public function. If such an organisation is not to bs regarded as an authority on the basis of the rules enunciated in Ajay Hazia's case (supra) we do not brow which other can. We, therefore, hold that the first respondent is an authority within the moaning of the control as used in Article 226 of the Constitution of India. It is a limb of the Government . in discharging the public function of imparting education and, therefore, a petition under Article 226 of the Constitution of India for issue of a writ of certiorari or mandamus or both is maintainable."

This authority fairly and squarely applies to the facts of the present case.

(14) This aspect yet can be looked into from another angle.

(15) In the additional affidavit filed on 3rd March, 1989, the petitioner has placed on record the office memorandum dated 17th July, 1987, issued by the Under Secretary to the Government of India, Ministry of Science and Technology, whereunder the Ministry of Science and Technology, Government of India desired the Department of Personnel and Training, to issue notification under Section 14(2) of the Administrative Tribunal Act, 1985, to bring this Institution under the purview of Central Administrative Tribunal Act. What is its effect ? Under Article 323-A of the Constitution of India, the Parliament can by law provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of sen ice of persons, appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of Government of India or of any corporation owned or con,trolled by the Government of India. In pursuance of this provision, the legislature has enactedthe Administrative Tribunals Act, 1985, to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and post in connection with the affairs of the Union etc. The said Act received the assent of the President on February 27, 1985.

(16) Section 14(2) of the Administrative Tribunals Act 1985 provides as under :- "THE Central Government may by notification apply w.e.f. such date as may be specified in the notification, the provisions of sub-sec. (3) to local or other authorities within the territory of India or under the control of the Government of India and ;to corporations (or societies) owned or controlled by Government, not being a local or other authority or corporation (for society) controlled or owned by a State Government."

It is under this provision, the Under Secretary, Department of Science and Technology, Ministry of Science and Technology, Government of India, New Delhi, vide its letter . dated 17th July, 1987, requested the Under Secretary, Department of Personnel and Training, Ministry of Personnel and Administrative Reforms, Government of India, New Delhi to issue notification u/s 14(2) of the Administrative Tribunal Act so as to bring the respondent organisation society which is an autonomous institution under its control and supervision, monetarily as well administratively, under the purview of the Central Administrative Tribunal Act.. 1985. In this letter, it is made clear that the respondent society Along with other 11 institutions have already adopted Central Government Rules and Regulations for their day to' day functioning. According to the service Bye laws of these societies/institutions, the governing body is the competent authority to take final decision in the matters of service of their employees.

(17) The admissions contained in this letter as well as the admitted facts alleged in the petition leave no doubt that the respondent society is fully funded and controlled by the Central Government and thus a State within the meaning of Article 12 of the Constitution of India amenable to the writ Jurisdiction. This preliminary objection has no force, and merits dismissal at preliminary stage.

(18) On merits, the petitioner has a foolproof case against which the respondents have no answer. The case of the petitioner is that Dr. S. C. D. Sah, Director was a prosecution witness in the enquiry proceedings held against the petitioner and also acted and participated as a member in the meeting of the Disciplinary Committee which imposed the punishment: of demotion upon the petitioner. This Decision was conveyed by Dr. Sah himself, vide order dated 10th May, 1983. According to the learned counsel, the entire proceedings of the said Disciplinary Committee which imposed the punishment of demotion thus stand vitiated.

(19) The respondents' case is that Dr. Sah was the ex officio Secretary of the governing body. Therefore, as per the rules of society, his presence was otherwise essential. The decision to impose penalty on the petitioner was taken by the Members of the governing body in which Dr. Sah had no say.

(20) This stand of the respondent is not only false to their knowledge but is also misleading and contrary to the record. As per the Constitution of the respondent society (Annexure I), the Director of the respondent-society is the ex officio member and not ex officio Secretary of the governing body. As per clause 21 of the Constitution of the respondent society, the Registrar of the Institute is the non-member Secretary of the governing body. Clause 21 lays down : "THE Registrar of the Institute shall be the not-member Secretary of the Governing body and Secretary to the Society."

As per clause 29 of the Constitution, 4 members of .the governing body could constitute a quorum at any meeting of the governing body. This body has 17 members. The presence of Dr. Sah (Director), ex officio member of the governing body was, therefore, not at all necessary. The respondents themselves admit that Dr. Sah did participate in the meeting as a member of the governing body which passed the impugned order inflicting punishment upon the petitioner, Under similar circumstances, this court in the case reported as Managing Committee Srsd, Higher Secondary School Lajpat Nagar and another, vs. D. R. Kapila and others, 1984(2) S. L. J. Law Journal, 538, (3) held as under :-

"THE situation is worst in this case. Shri B . N, Bhaskar has appeared before the Enquiry Officer in support of Charge no. 12. Shri B. N. Bhaskar appeared on behalf of the management. Shri Jagan Nath Sharma has also appeared as a Witness on behalf of the management in support of charges 1, 2, 11 and 12. Shri M. C. Gupta has also appeared as a witness on behalf of the management in support of charge No. 11. Their evidence may be necessary to establish the aforesaid charges and for that reasons they may have been tendered for evidence before the Enquiry Officer but once having appeared as witnesses on behalf of the management in support of the charges, they had disqualified themselves to sit as members of the disciplinary authority. In my view, the Tribunal has rightly held that the enquiry was vitiated because it was not held in accordance with the principles of natural justice. There was such a travesty of Principles of natural justice in three of the witnesses on behalf of the management .appearing to support the charges and then sitting as members of the disciplinary authority to. appraise that evidence to return the finding of the guilt against Shri Kapila. In "Manak Lal, Advocate v. Dr. Prem Chand Smghvi and others" held :

"IT is well settled that every member of a tribunal that is called upon to try issues in judicial of quasi-judicial proceedings must be able to act judicially; and it is of the essence of the judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such, the test is not whether in fact bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not be only done but must also appear to be done."

No witness can be a judge nor a judge a witness. The doctrine of necessity does not apply in the case before me. "The constitution of the disciplinary authority is provided in Rule 18. It does not lay down any coram. Admittedly, four members of the disciplinary committee had imposed the punishment as a result of the departmental enquiry. A teacher who is a member of the managing committee of the school, nominated by the chairman of such managing Committee is one of the members of the disciplinary committee. Shri Mehar Chand Gupta was the member in this case. It is admitted that another teacher was qualified to constitute member of the disciplinary committee. There was no question of invoking the doctrine of necessity in this case. The Chairman of the managing committee and the Manager of the School had disqualified themselves to be a judge after they appeared as witnesses during the enouiry. They could have opted to remain out of the proceedings of the disciplinary Committee after the receipt of the report of the Enquiry Officer. In view of this concluding, I am not inclined to go into other questions urged by the counsel for the parties at the Bar."

(21) In the face of this authoritative pronouncement by this Court which is applicable to the facts of the present case, learned counsel for the respondent has no answer. On this short ground, the petition is liable to succeed.

(22) In the result, the petition is accepted and the impugned orders of framing of charge sheer, the enquiry report and the final order of punishment dated 10-5-83 are hereby quashed. The petitioner shall be deemed to be in service and entitled to all the consequential benefits that would have accrued to him if' the impugned orders had not been passed. The petitioner shall also be enticed to costs, assessed at Rs. 2,5001-.