R.K. Gupta vs National Building Construction ...
1998 Latest Caselaw 114 Del

ORDER

K. Ramamoorthy, J.

1.The petitioner has challenged the order of dismissal dated 11.02.1985. The facts culminating in filing the writ petition can be stated very brieflyinthe following terms. The petitioner had studied B.Com (Hons.) On 28.01.1963 he was appointed as Supdt.(Accounts) by the first respondent M/s National Building Construction Company Ltd. In April 1964 he was promoted as Assistant Accounts Officer. In November 1965, he was promoted as Cost Accounts Officer. In December 1967, he was promoted as Senior Accounts Officer. In or about October 1969 he was appointed as Financial Adviser and Chief Accounts Officer of the Corporation. That is the second in hierarchy of the first respondent after Chairmancum-MD in the Organization. On 28.02.1983 the petitioner sent a letter seeking voluntary retirement and also give three months notice. The second respondent Mr. S.C. Kakur who was the Chairman-cum Managing Director at that time by a letter dated 01.03.1983 wrote to the petitioner that there was no scheme of voluntary retirement in the Corporation but agreed to relieve the petitioner of his duty on the petitioner's paying the balance of notice period. The second respondent wrote in that letter " the proceedings for major penalty were contemplated against you at the time of relief". The petitioner filed C.W. no. 450/83.

2. On 05.04.1983 this court passed the following order in the writ petition whereby the petitioner and the Chairman-cum-Managing Director were asked to withdraw their respective letters. The petitioner returned for duty after the order passed by this court.

5.4.83:

Present: Mr. Ambrish Kumar for the petitioner.

Dr. Anand Prakash for the respondents.

Rule D.B.

The petitioner came to this court with the allegation that he had asked for voluntary retirement as per his letter dated 28th February, 1983. The petitioner claimed that as he had completed 20 years of service he may be permitted to seek voluntary retirement. The respondent, however, informed him by its letter of 1st March, 1983 that there was no scheme for voluntary retirement but as from his letter it was clear that he wanted to be relieved of his dutes, the Corporation was relieving him of his duties with effect from 1st March, 1983 and paying him the balance for the notice period. The petitioner apparently was dissatisfied and by his letter dated 1st March 1983 communicated that he had asked for voluntary retirement and that he was returning the cheque for the notice period.

Show cause was issued and reply has been filed. Dr. Anand Prakash, the learned counsel appearing for the Corporation stated and that is his stand in the reply also, that there were some disciplinary proceedings Contemplated against the petitioner. And there is no voluntary retirement scheme at present in the Corporation, therefore, the question of any benefit of voluntary retirement scheme could not have been contemplated by the petitioner, more so because he is a financial adviser and he would in the normal course have to know all the schemes.

Dr. Anand Prakash says that the petitioner has already been relieved of his services but if the petitioner is taking the stand that he does not want to leave the services and wants to withdraw the letter dated 28th February 1983 the same can be permitted to be done if the petitioner should put it in a formal letter asking for the withdrawal of the letter dated 28th Feburary 1983. Of course, counsel for the petitioner stated that he is withdrawing this letter. A formal letter, however, should be put in by the petitioner withdrawing the letter dated 28th Feburary 1983. Dr. Anand Prakash says that after the letter is with-drawn the letter issued on 1st March, 1983 relieving the petitioner from service will be withdrawn and cancelled. The result of course will be that the petitioner will be back in service. Dr. Anand Prakash makes it clear that as mentioned in the letter dated 1st March 1983 there were some major penalty proceedings contemplated against the petitioner and the corporation should not be deemed to have given up its right to take those steps or any other appropriate measures. We clarify that our decision in no way restrains or prevents the corporation from taking any appropriate steps against the petitioner that are available to it under the law. Now when the petitioner is to be treated in service the relationship between the employer and employee continues and normal rights and obligations both of the employer and employee will govern the relationship.

3. On 08.04.1983 the petitioner was suspended from service in view of contemplated disciplinary proceedings against him. On 06.07.1983 the Corporation asked the petitioner to submit the details of the assets and liabilities and the petitioner furnished the same.

4. On 29.03.1984, almost a year after the order of suspension the Corporation issued a charge sheet to the petitioner containing four charges and an inquiry officer was appointed after the petitioner gave reply to the charges. On 09.07.1984, Mrs. Jyotsna Diesh (4th Respondent) was appointed as the Inquiry Officer. On 21.07.1984, the Inquiry Officer commenced the inquiry.

5. On 06.08.1984, the petitioner requested for the production of certain documents by the Corporation. The Inquiry Officer passed the order permitting the inspection. On 05.10.1984 the petitioner informed the Inquiry Officer that the documents directed to be given inspection had not been given.

6. On the 5th to the 17th October 1984, the Inquiry was held. On 17.10.1984 the petitioner made a request to the Inquiry Officer to adjourn the inquiry till 22nd October 1984 to enable examination of a witness Mr. P.N. Sadhu who were given a report after completing his tour and that held refused by the Inquiry Officer.

7. On 24.11.1984 the Inquiry Officer submitted his report. By Memo dated 26.12.1984 the Corporation sent a copy of the report to the petitioner. The petitioner was given time to file his explanation. On 08.01.1985, the petitioner filed writ petition No. 85/85 challenging the same. On 09.01.1985, the petitioner made a representation against the Inquiry report. On 11.02.1985, the petitioner was served with an order of dismissal by the Corporation. On 15.02.1985 the writ petition was presented in this court challenging the order of dismissal. On 21.02.1985, CW No. 85/85 filed on 08.01.1985 was withdrawn by the petitioner. On 03.09.1985, this court issued Rule DB in the writ petition.

8. The main grounds of challenge mentioned in the synopsis submitted by the learned counsel for the petitioner are:

1. Delay in holding the inquiry;

2. Relevant documents asked for by the petitioner were not given inspection and that resulted in great prejudice to the petitioner and that it would amount to ;violation of principle of natural justice and which would vitiate the inquiry.

3. The findings of the Inquiry Officer on the charges are not based on any evidence and the report is vitiated by the perversive approach.

4. Mr. S.C. Kapur, the CMD of the National Building Construction Corporation had initiated inquiry against the petitioner did not agree with him on a few aspect of admission, and therefore initiation of inquiry is vitiated.

9. Before I deal with the charges the principle applicable to the matter has to be stated. The court in a writ petition of this nature is not sitting in appeal over the matter. The department is not bound by the rules of evidence. The department should have necessary materials to prove the charges against the delinquent official and the material produced by the department should be clear and cogent and the department should hold the inquiry in accordance with the principles of fair play and justice. The findings given by the inquiry officer should be on the basis of evidence produced by the department. The department cannot act on mere conjectures and surmises for the purpose of coming to the conclusion whether the finding rendered by the inquiry officer are supported by evidence or not. The department should give sufficient opportunity to the delinquent official and should produce all the materials in its custody so that the truth could be easily found out.

10. With the above principles in mind we now proceed to survey the charges and the documents produced by the NB and the oral evidence adduced before the Inquiry Officer. Before we embark on the inquiry, the general idea about the documents should be set out.

11. The presenting Officer on behalf of the NB Exhibited documents marked as S-1 to S-15 before the Inquiry Officer. The Petitioner marked Exhibits D-1 to D-13. Exhibit S-1 is a letter dated 7/8th of November 1978 from B.P. Dave, Chief Project Manager to the Officer on Special Duty, NB mentioning about the requirements of the University for starting the work. Exhibit S-2 is a letter dated 16.11.1978 from Mr. B.P.Dave, Chief Project Manager to the Officer on Special Duty. Exhibit S-3 is a letter 05.12.1978 by Mr. K.G. Salvi, Officer on Special Duty to Shri B.P. Dave, Chief Project Manager. The total amount for plant and machinery for Baghdad University that could be spent was fixed at Rs. 2,71,500 ID. Exhibit S-4 is a file pertaining to the purchase of Impala Car. The car was purchased on 22.03.1979. Exhibit S- 5 is a book according to presenting officer, which shows the history sheet of the Impala Car. Exhibit S-6, is a survey report about the car because the car was under repair. Exhibit S-7 is stated to be a copy of the regis- tration book. Exhibit S-8 is a letter dated 27.04.1983 stated to be offered given by the Yusul A. Alghanimoa Sons W.L.L. Exhibit S-9 is a letter dated 01.06.1983 letter from M/s Khalid Al-Tayar Establishment. Exhibit S-10 is stated to be a tour report of P.N. Sadhu from 21.09.1981 to 23.09.1981. Exhibit S-11 is stated to be the cash book of Baghdad University. Exhibit S-12 also is stated to be cash book. Exhibit S-13, is a survey report of Car No. 5183 (Impala Chevrolet) by R.S. Joon, A.E.(Mech.). Exhibit S-14 is again stated to be a survey report by Mr. Sat Prakash, Assistant Manager (Admn.). Exhibit S-15 is stated to be a letter dated 30.08.1983 from M.L. Choudri, DMM (BPT).

12. Exhibit D-1 is a letter dated 15.12.1978. Exhibit D-2 is a accounts manual of the Accounts Officer. Exhibit D-3 is a T.A Bill of the petitioner (Mr. R.K. Gupta). Exhibit D-4, is stated to be survey report of Car No. 5183 (Impala Chereslot) at Baghdad by Mr. S.S. Kapoor, Regional Manager (E&M) Baghdad. Exhibit D-5 is telex message message from NB to First Secre- tary (Commercial) Indian Embassy at Washington. Exhibit D-6 is dated 28.06.1983 is a telax message from Indian Embassy to Washington. Exhibit D- 7 is a copy of the note dated 02.03.1979 wherein the Chairman-cum- Managing Director had approved the action of the Chief Project Manager. Exhibit D-8 is a letter from R.K. Gupta (petitioner) to the respondent. Exhibit D-9 is a printed pamphlet about the Arabian Consumer. Exhibit D-10, is a letter dated 27.01.1970. Exhibit D-11 is a letter dated 17.12.1978. Exhibit D-12 is a folder containing cash vouchers for Impala Car. Exhibit D-13 is a folder containing cash vouchers relating to purchase of Libya/Iraq.

13. The Corporation examined four witnesses. SW-1 Mr. S.S. Kapoor. SW-2, R.S. Joon, Assistant Engineer (Mech.) NB. SW-3 Mr. Sat Prakash, Asstt. Manager (Personnel) NB, SW-4 Shri M.L. Choudhary, Deputy Materials Manager, NB.

14. The petitioner examined three witnesses. DW-1 Shri S.L. Gupta, Finan- cial Advisor and Chief Accounts Officer of the NB. DW-2, Shri N.K. Jindal, Chartered Accountant. DW-3 Shri R.K. Gupta, the petitioner himself.

15. We shall now take up the analysis of the charges and the evidence available on record. Charge No.1. Charge No.1 reads as under:

Shri R.K. Gupta, FA&CAO in connivance with Shri B.P. Deve the then Chief Project Manager, Irag had recorded a false note dated 22.03.1979 to the effect that there was no sole selling agent for Impala Car at Kuwait Whereas the scrutiny of the relevant records reveal that M/s Yusuf A. Alghanim & Sons W.L.L were the sole selling agent for Impala car during the above mentioned period. Shri Gupta had, therefore, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of an employee of the Corporation. He has thus contravened Rule 3(1) of the NB Service (Conduct)Rules, 1969.

16. The statement of imputation of misconduct or misbehaviour runs as follows:

Shri R.K. Gupta, FA&CAO (now under suspension) was sent as Head Office Observer for purchase of Plant & Machinery for University Works, Baghdad (Iraq) in March, 1979. During the above period, an Impala car was purchased on 22.03.1979, at Kuwait from M/s Khalid Al Tayyar Establishment, Kuwait for an amount of KD 2750 by the then CPM, Iraq together with Shri R.K. Gupta, Head Office Observ- er for the University Works, Baghdad, Iraq.

The Project Manager (University Works, Baghdad) and Finance Manager during their visit to Kuwait in the third week of February 1979 had obtained quotations from M/s Abdul Nazzar & Co., of Kuwait, who are the sole selling agent for Toyota vehicles for purchase of Toyota corolla car, Toyota land cruisor, Mini bus, Land cruisar pick up and from M/s Alganim of Kuwait who were main dealers for American Car for purchase of Chevrolet Impala car. It has been revealed that Shri B.P. Dave, the then CPM and Shri R.K. Gupta FA & FAO did not contact M/s Yusuf A.Alaghanim & Sons who were and are the sole selling agent for the Chevrolet Impala car but recorded the following false note dated 22.03.1979:

"Since for Impala, there is no sole selling agent, the undersigned alongwith Head Office observer (i.e., FA & CAO) contacted other dealers also".

It is seen from the records that for the purchase of Toyota vehicles, both these officers made purchases from authorised sole selling agents, but in case of Chevrolet Impala car they did not contact the sole selling agent. Shri Gupta had, therefore, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of an employee of the Corporation. He had thus contravened Rule 3(1) of the NB Service (Conduct) Rules, 1969.

17. The Inquiry Officer dealt with the case of Disciplinary Authority in the following terms:

Shri R.K. Gupta, Charged Officer was functioning as FA &CAO (under suspension) in National Buildings Construction Corporation Ltd. it was brought out that the charged officer in connivance with Shri B.P. Dave, the then Chief Project Manager, Iraq recorded a false note to the effect that there was no sole selling agent for Impala car in Kuwait whereas, M/s Yusuf A. Alganim & Sons W.L.L. was the sole selling agent for Impala car during the relevant period.

18. The Inquiry Officer summarized the defense of the petitioner in the following terms:

The charged officer stated on page 8 of his written brief that he was only a non technical observer from the head office, he was not expected to locate sole selling agents and that this function had already been performed by the local purchase committee. He argued that M/s Alghanim were main dealers and that there was no rule of Government of India or N.B.C.C. making it obligatory to make purchases from the sole selling agents. He added that according to para 18 (pages 5) in chapter entitled stores on the N.B.C.c.s Manual (Ex. D-2) it was enjoined upon the purchase committee to negotiate with the lowest bidder and not the sole selling agent (page 9 of written brief). According to the Charged Officer he was directed by the C.M.D. in Ex. D-7 to proceed to Kuwait as observer for arranging funds for the purchase.

19. From this the N.B.C.C. sought to prove that M/s Yusuf A.OA Alghanim & Sons W.L.L. was the sole selling agent for Impala car in March 1979 and the petitioner who was to oversee the purchase failed to see that it was pur- chased from the sole selling agent. The car had been purchased for Rs. 80,000/- not from a sole selling agent.

20. In support of the conclusion it can be stated that the Inquiry Officer relied upon the statement of Shri S.S. Kapoor (SW-1) and documents Exhibits S-8 and S-10. The Inquiry Officer had referred to the evidence of Shri N.K.Jindal (DW-2) but has not considered his evidence in its proper per- spective. He has stated in his evidence that since October 1981 till date he had been looking after the Electrical, Mechanica Sections of all the projects of NB in Iraq. Therefore, he would admit that he was not in Iraq in March 1979. He would state " the LPC (Local Purchase Committee) consists of one member from Finance Wing, One member from Technical Wing and the Projects Director. There is a Head office Observer to assist the LPC in finalising the purchase." He would further state " M/s Alganim Company of Kuwait were the sole selling agents for Chevrolet Impala car in Kuwait." He express his view on Exhibit S-10 and he would state " I have been shown Exhibit S-10. I agree that the main and sole selling agent of Chevrolet Car are M/s Alghanim in Kuwait as per the statement of Mr. P.N. Sadhu, Ex-Chief Engineer, NB." He would assert "I do not agree with the statement made by Mr. Dave and Mr. R.K. Gupta that there is no sole selling agents for Impala Car in Kuwait." He referred to the statement dated 22.03.1979 in Exhibit S- 4 at page 27. He would further assert " there is a sole agent for Chevrolet Impala car in Kuwait as stated by me earlier and it has been there for several years." This is purely an inference. In the cross-examination he would state "In Kuwait M/s Alghanim & Sons are the sole agent for Impala Car. Whereby we received the quotation from M/s Alghanim & Sons in Kuwait. On their quotation they have written that they are the sole agent". He gives his opinion on mere conjucture. It is believed that M/s Alghanim & Sons were also the sole agent in 1979. In the re examination he would state " the price offered by M/s Alghanim & Sons main dealer for American car is mentioned at page 26 of Exhibit S-4" Here he would not state that the Company was the sole selling agent. The petitioner examined Mr. N.K. Jindal as DW-2 on this aspect of the case. Mr. N.K. Jindal was examined on 17.10.1994. He is a Chartered Accountant. He was working as Finance Manager from December 1978 to October 1981 in NB's Branch, Baghdad. Therefore, it is clear that in March 1979 he was in Baghdad and he must have been person- ally aware of the transactions in question. There is a remark in the margin at page 26 of S-4. Mr. Jindal states that that margin note was made by Mr. Philips. Mr. Jindal DW-2 states "I visited M/s Alganim with Shri Philips. This remark was expressed by M/s Alganim in my presence. They never told us that they were sole seelling agents for any American Car." He would further state "we had visited Khalid Al-Tayar Establishment. They told us that they were also main dealers of American Cars. I think this establishment had as many as 300 new cars of different models and makes". It may be noticed that the car was purchased for Rs.80,000/- only from Khalid Al- Tayyar Establishment. In the cross examination, no question was put to Mr. N.K. Jindal about this aspect. Therefore, the statement made by Mr. N.K. Jindal in his Chief Examination remained uncontroverted. Exhibit S-8, is a letter dated 27.04.1983 from Yusul A. Alghanim & Sons W.L.L. to the NB. The letter would read as follows:

SOLE AGENT FOR: GADILAC, PONTIACS, CHEVROLET, OLDSMOBILE & OPEL YUSUF A. ALGHANIM & SONS W.L.L.

27TH April 1983

Messrs National Buildings Construction Corporation Ltd., 15-901-19 Karada Trkhita P.O.Box -1003 Baghdad.

Dear Sirs,

Attention: Project Director.

We are pleased to submit hereunder our best cash Export prices for the following vehicle for your kind consideration:

1. Chev. Impala KD 3975/- 1983 Model Type-12 Special Export KD 0300/-

Net:

KD.3675/-

DELIVERY PERIOD - ONE WK EX OUR GARAGE

While thanking you in anticipation, hope that our prices will meet your approval and are looking forward to receive your firm order.

Yours faithfully, sd/-

Naser Diab Manager, (A.O) Kuwait Dealership

21. No one from the Company has been examined. No details about the Company were filed before Inquiry Officer by the NB. Exhibit SW-1 has not explained as to what was written by the NB to that Company and what was the necessity for NB to write to the Company in April 1983 and whether NB had any transaction with that Company in 1983 upto the particular date and it is not shown as to when this letter was received by the NB. In the absence of the crucial facts the letter by itself is not proof of its contents. No doubt, the Inquiry Officer is not to go by the rules of evidence but there must be some materials to prove the facts. The NB had not chosen to produce the relevant basic facts to prove this letter.

22. Exhibit S-10, is a photocopy of what is stated to be tour reports of Mr. P.N. Sadhu to Kuwait from 21.09.1981 to 23.09.1981. The report runs as under:

Tour Report of P.N. Sadhu to Kuwait from 21.09.1981 to 23.09.1981.

The tour was primarily undertaken for following:-

a) To ascertain from dealers in Kuwait about Purchase procedures generally adopted by prospective buyer of Chevrolet Cars.

b) To ascertain the exact position about the condition of DATSAN Car given for repairs and get it despatched to BAGHDAD.

The above tour undertaken as per the verbal orders of CVO/CHD during my visit to Delhi in September 1981. Purchase of Cheverlet Car:

It was ascertained from Kuwait market that main agents for selling of Chevrolet cars is with M/s Al Ghanim & Sons. I met the representative of M/s Al Ghanim & Sons.

It was also ascertained that Kuwaiti nationals or other companies can also directly get cars imported from U.s.a. without going through the authorised agent of M/s Alghanim & Sons. However, this practice of importing cars directly is usually done only of few individuals.

It was also ascertained that there are companies/Individuals who sell these imported cars to prospective buyers. But these type of transactions are usually done by individuals and not Companies. The companies normally purchase Cars from authorised dealers.

It was also mentioned that M/s Wahda Trading Company from whom the Chevrolet Car has been purchased is dealing in Spare Parts (main business). his shop did not indicate any activity of selling Cars. M/s Wahda Trading Company is a firm owned by a Kuwaiti but the firm is managed in Partnership by an Indian by name Mr. Anand.

In conclusion, it is not an uncommon feature in Kuwaiti market to purchase cars from unauthorised dealers who directly import Cars from Kuwait, though 99% of the purchasers are directly made from authorised agent.

SENDING OF DATSUN CAR

Datsun Car was sent for repairs to Kuwait in July 1983. This car though repaired could not be brought back to Baghdad due to difficult proceedure followed by Kuwaiti and Iraqi custom authorities. The party was contacted and vehicle got dispatched to Baghdad. This was done by getting a Jordanian driver to drive the vehicle from Kuwait to Baghdad. The papers concerning the vehicles, fixing up of Jordanian driver at Kuwait were completed. The vehicle was then dispatched to Baghdad.

Sd/-

  (P.N. Sadhu)

23. There is a note by the Chairman in the following terms:

I had request Shri P.N. Sadhu to enquire into the matter on his way back from Iraq. His stay at Kuwait from 21.09.1981 to 23.09.1981 may kindly be approved. Detailed comment on Shri P.N. Sadhu's report with follows.

24. Mr. P.N. Sadhu was not examined by NB. The petitioner sought to examine him but he was not permitted by the Inquiry Officer. The contents of the report given by Mr. Sadhu in the absence of his evidence cannot at all be taken into account. The Inquiry Officer has proceeded on mere surmises.

25. Mr. N.K. Jindal DW-2 had stated "during my stay at Baghdad till October 1981 I never came across any controversy as to who was the supplier of the impala car". There was no cross examination on this point and it is never the case of NB that there was any complaint from any quarter about the purchase. No material has been produced by the NB to show that there was any complaint from anybody for the purchase of impala car. The learned counsel for the NB at the time of arguments submitted the question was raised on the floor of the Parliament and it was only thereafter the CMD initiated action. This is wholly without any basis on record. Mr. Jindal would further state " I visited Kuwait with Shri Philip in February 1979 as a member of the Local Purchase Committee for various vehicles". Therefore, if any fact was to be elicited, NB ought to have done it through this witness. NB failed to do that.

26. Mr. Jindal would further state that "Impala Car was received by Shri Prasar and Shri Philips, the Project Manager (Civil Engineer) inspected it. Neither Shri Prasar nor Shri Philips was examined nor was the statement challenged in the cross-examination. Mr. N.K. Jindal would further state " I remember I and Philip had collected return quotations from seller of cars in Kuwait during February 1979. These quotations etc. were in the custody of Project Manager". This was also not challenged in the cross-examination. Mr. S.S. Kapur (SW-1) would admit in the cross-examination " when it has been pointed out that the LPC Negotiates with one or two lowest offers it means that the lowest bidders are not for same make as the sole agents for one type of car is only one so the LPC compares the specifications and then recommends the most suitable choice. LPC can recommend an alternative equivalent and cheaper car if the LPC so desires". Here Mr. Dave was not examined. No action was taken against him. The LPC had approached a trader in the field with business in large scale as stated by Mr. N.K. Jindal (DW- 2) One cannot infer that the LPC just for the purpose of acquiring impala car for the University had decided to have transactions with the persons without any status in the trade with a view to making an unjust gain. Therefore, the Inquiry Officer must have been circumspect and all the materials placed on record and the cumulative effect must have been considered from the correct angle.

27. Now let us go to the assessment of evidence by the Inquiry Officer. The note made by Mr. C.J. Philip in the margin of document Exhibit S-4 is noticed by the Inquiry Officer. The note at page 7 of S-4 is quitted in the following terms:

"Negotiations were carried out further on 19.03.1979, 20.03.1979 with M/s Abdul Nasser & Co. who are sole selling agents of Toyota. The party refused to sell the vehicles even at the prices mentioned above since there is 3% price rice in last one month, with persuation with their Head Office by U/S & F.A., the dealer agreed to sell the same price.

Since for Impala, there is no sole selling agents, the u/s along with HO observer viz., FA & CAO contacted other dealers also and the lowest price was offered by Khalid A.r.Tayyar Est. for 1979 Impala as KD 2750/- which was found to be lowest. 1978 Model was now not available with any dealer.

Therefore, it was approved to purchase Toyota vehicles at prices mentioned here above and Impala 1979 model at KD 2750/-. The prices are Ex. Showroom and the dealer have therefore, been requested to send the vehicles on Trailer to Baghdad Custom Point. The cost of freight, insurance, exit permit charges, etc., shall be tilled by the party. these charges approx. works out to KD 187 plus KD 86. Since to avail the best price quoted, the party insisted for cash payment and therefore, M/s Abdul Nasser & Co. has been given advance payment by cheque of KD 15790/-. The price for Impala cars was decided this afternoon and therefore, a full payment of KD 2750/- was paid in cash and the Impala car was to be passed on to M/s Toyota agent so that this car can also go on the same trailer".

28. The petitioner had made the following remarks:

"Seeing the trend of the market and the monopolistic conditions prevailing, we have no option to go but to agree to the payment terms. This was perhaps the best bargain in the circumstances".

The Inquiry Officer would say:

Negotiations were carried out on 19.03.1979 and 20.03.1979 by Shri Dave and Shri Gupta with various parties. Whereas, negotiations were carried out with M/s Abdul Nasser & Co. stated to be the "main dealers" of Toyota cars in Shri Phillips note and "sole selling agent" in Shri Dave's note, it is seen that there were no negotiations with M/s Alganim and Sons stated to be the main dealer for American cars (page 26 Ex. S-4) by Shri Phillip. It is interesting to note that the names of the parties with whom negotiations were made is not indicated, neither is there any mention of the rates quoted by the different parties.

29. The Inquiry Officer obviously had not considered the evidence of DW-2 when he said that the quotations were with the Project Manager and those quotations had not been produced by the NB. The Inquiry Officer in para 3.3.4 has stated that "SW-1 categorically staged on page 2 that M/s Alganim Company of Kuwait were the sole selling agents for Chevrolet Impala cars in Kuwait and had been there for several years." This is a purely conjecture. In support of this the Inquiry Officer would proceed to say: Exhibit S-8 is a letter from Alghanim & Sons. On top of this letter it is clearly and prominently written that they are sole Agents for Cadillac Chevrolet, Oldsmobile and Opel i.e., American cars. Exh. S-10 is a tour report of Shri P.N. Sadhu, Ex. Chief Engineer, NB who was deputed to Kuwait in September, 1981 to ascertain from dealers in Kuwait about purchase procedures generally adopted by prospective buyers of Chevrolet cars. The report clearly shows that M/s Al Ghanim and Sons were the main agents for selling Chevrolet cars.

30. In Para 3.3.6 the view of the Inquiry Officer is based on this statement. "It is thus clear from the evidence of SW-1, Ex. S08, Ex. S-10 as well as the notes on pages 26 to 27 Ex. S-4 that there is hardly any difference between the terms sole selling agency and main selling agency as far as this case is concerned. As Explained by S.W-1, sole selling agencies are those agencies who are authorised to sell a particular type of car and they can appoint subagents for sale of these cars. So far as a purchaser is concerned there is hardly any difference if the agency is termed sole selling agency or main selling agency. Whatever benefits/advantages are available to a purchaser from a sole selling agency are got from the main agent as well."

31. Dealing with the evidence of DW-2, the Inquiry Officer observed:

"Shri Jindal, F.M (D.W.2) while admitting that the remark at page 26 (Ex.S-4) regarding M/s Alghanim being main selling agent was by Shri Phillip P.M., stated that when he visited M/s Yusuf A. Alghanim & Sons with the Project Manager, the former did not say that they were sole selling agents. This statement is not correct as Ex. S.8 clearly shows that M/s Alghanim were sole selling agents."

32. When there is no cross-examination by the NB, the Inquiry Officer cannot say that the statement of DW-2 would not corret. When S-8 cannot at all be taken into account on basic and fundamental principle of law without going to the rules and evidence under the Evidence Act, 1872.

33. The Inquiry Officer deals with the evidence of DW-3, the petitioner R.K. Dave, in the following terms: "Further in his deposition at page 30-31, the charged Officer as DW-3 stated that neither M/s Alghanim & Sons nor M/s Khalid Al Tayyar Est. were the sole distributors of American cars in Kuwait but they were the main dealers of American cars. In this context, it is seen from the letter dated 1.6.1983 from M/s Khalid Al Tayyar Est. Kuwait that they were not sole agents for all cars but were private auto importing Establishment in Kuwait since 1973. The Charged Officer's statement regarding the status of M/s Khalid Al Tarrarest. is thus proved false on the basis of the statement of the firm themselves."

34. She refers to the letter dated 0.1.06.83 which is marked Exhibit S-9. The letter reads as under:

KHALID ALTAYYAR ESTABLISHMENT EXHIBITIONS: KHALID BIN WALID ST.

SHARQ KUWAIT

Date June 1, 1983 National Building Construction Corporation Ltd.

Dear Sir,

With reference to your telex and Inquiry by Mr. O.P. Goel of your company project Director it is our pleasure to offer you our loest price on the following Cars. We are not sole agent for all cars. We are not sole agent for all cars. We are Private Auto. Importing Est. in Kuwait Since 1973. Chevrolet Impala 1983 KD3600/- (Delivery 4 to 6 Weeks after your order, Chevrolet Caprice 183 KD 4000/- (Delivery same time)

Buick Park avenue 1983 KD 5100/- (Same time) 5 in stock now. Olds Mobile 98 Brg. 1983 5100/- (same time) 4 in stock now.

As we learned from Mr. goel you buy toyota cars from Al. Sayer even so we are not a dealr for this cars to we can offer you good prices than they do:-

Please telex back what makes you need from toyota and we will offer you our prices. toyota cars now we have in stock: Corona DX 1.8. If you need any other Toyota cars we can get your within 2-3 weeks time.

For your information we can offer you also any type of Honda Cars. Hope to hear from you soon.

Sd/ Khalid Al-Tayar Auto Est. Omar Abduemana Marketing Manager.

35. It has not been pointed out as to how this letter was obtained. The concerned persons had not been examined. There is absolutely nothing on record to show the circumstances under which the letter was written by the author. It was never the case of the Petitioner that Khalid Al Tayyar was the sole agent. The Inquiry Officer has extracted the note at page 27 in Exhibit S-4 had referred to Exhibit S-9 to come to the conclusion that the statement of the petitioner about Khalid Al Tayyar Establishment is false. The Inquiry Officer in the report had not applied her mind to the material on record.

36. The Inquiry Officer makes a digression in para 3.2.8 by making a distinction between the sole selling agent and main agent and whether the car was purchased from the sole selling agent or the main agent. The Inquiry Officer observed:

"Finally the fact that no distinction was observed between sole agent or main agent is evident from the notes at pages 26 and 27 of Ex. S.4 and approval given by him. M/s Badly Maser & Co. Shri Phillip P.M. at page 26 but was stated to be sole selling agent of Toyota by Shri Dave. On the other hand M/s Alghanim who was stated to be main dealer for American cars by Shri Phillip was conveniently ignored by Shri Dave as well as the Charged officer."

37. The Inquiry Officer decides that "the Charged Officer's arguments that he was not expected to locate the sole selling agents and that he had only gone there to arrange funds for the purpose is not accepted." The observations of the Inquiry Officer is that the "negotiations were carried out with the parties on 19.03.1979 and 20.03.1979 by Shri Dave and the Charged Officer and the other two members of the L.P.C. viz. Project Manager and Finance Manager were ignored," is not at all supported by any evidence. The Finance Manager was examined as DW-2 Mr. N.K. Jindal and his evidence is contra to what the Inquiry Officer had observed. The Inquiry Officer would assume "in this case it is seen that all norms and rules were flouted". This is also not supported by any evidence. The Inquiry Officer would further observe " the evidence shows that quotations were not called from different firms and deal with finalised by Shri Dave and the Charged Officer with M/s Khalid Al Tayyar who was not even a main dealer of Impala Cars but was only a private Auto Importing Establishment in Kuwait." This is also contrary to the evidence and the status of M/s Khalid Al Tayyar has been spoken to by DW-2 about which there was no cross-examination at all.

38. The approach of the Inquiry Officer is fully biased is evident from what she observed " there is in fact no evidence to show that M/s Khalid Al Tayyar was the lowest bidder". The Inquiry Officer had completely ignored the circumstances under which the Impala Car was purchased for Rs. 80,000/- and the payment was made and there was no objection from any quarters. The Inquiry Officer had concluded:

"It has, therefore, been established that the Charged Officer in connivance with Shri B.P. Dave, the then C.P.M. Iraq recorded a false note dated 22.03.1979 to the effect that there was no sole selling agent for Impala car at Kuwait whereas M/s Alghanim and Sons were the sole selling agents for the same during the relevant period. Article of Charge 1 has thus been established against the Charged Officer."

39. It is not established by the NB that in the year 1979, M\s Alghanim & Sons was the sole selling agent for the Impala Car. We now proceed to Charge No.2. Charge No.2 is in the following terms:

"The said Shri R.K. Gupta further connived with Shri B.P. Dave, the then CPM, Iraq in not pointing out in their note dated 22.03.1979 that there was no approval of the competent authority for purchase of Impala car. Shri R.K. Gupta had thus failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of an employee of the Corporation. He had thus contravened Rule 3(1) of the NB Service (Conduct) Rules, 1969."

40. In the report the Inquiry Officer would refer to the case of the disciplinary authority in the following manner:

The case of the Disciplinary Authority is that the Charged Officer further connived with Shri Dave in not pointing out in their note dated 22.03.1979 that there was no approval of the competent authority for purchase of Impala Car.

41. The defense of the petitioner is mentioned by the Inquiry Officer in the following words:

The Charged Officer's defense is that in Government Undertakings, the Chief Executive considering emergency of the situation authorises purchases/actions which are ratified by the Board of Directors. The Charged Officer explained that though purchases were mooted in December, 1978 the actual approval of the Board was accorded on 02.05.1979 (page 10 of written brief of the Charged Officer). The Charged Officer added that the C.P.M was competent to authorise such purchases, nevertheless in this particular case, the C.M.D. had approved the purchase of Impala car and his short deputation to Kuwait in

42. Before dealing with Charge No.2 the question of malice on the part of second respondent Mr.S.C. Kapur the then CMD of the NB has to be considered which would give us about which the way in which he was responsible for the action against the Petitioner.

43. The car was purchased as per the decision of the LPC for Rs. 80,000/- in March 1979 in Iraq. The petitioner was to oversee the transactions. Mr. N.K. Jindal DW-2 was working in Baghdad in the year 1979 had deposed that there was no controversy about the purchase. Nothing is mentioned about Mr. Dave, the Chief Project Manager of Baghdad who was the Officer, Incharge of the Organisation at that time.

44. On 02.05.1979, there was a meeting of the Board of the NB, nobody had raised any of the dispute about the purchase of the car. The then CMD was present at the meeting and who had signed Exhibit D-7, which is the approved of the note of the office which is in the following terms:

NB Ltd.

2nd March 1979

I have sent a list of requirements of plants & machining, vehicles, materials etc. for University makes vide my letter No. BCD/UB/670 dated 17.12.78.

As already agreed to by you, majority of items have already been considered. However, the SCV including the Chevrolet Car for VIPs and clients could not yet be purchased by LPC during their recent visit to Kuwait in Feb. 79 due to non-availability of funds. Despite my repeated reminders, funds have not been arranged by HQ. I request HQ may please arrange to place the funds requested on SOS basis so that LPC may buy the cars & avoid hire charges.

Sd/-

2/3/79.

45. According to the petitioner there were differences of opinion between him and Mr. S.C. Kapur and the petitioner did not agree with the CMD in respect of a few matters and the CMD, therefore, wanted to take action against the Petitioner. It is well settled that malice in law is a matter of inference from facts placed before the court. Mr. Kapur the second respondent had not produced any material to show that he received any complaint from Baghdad about the purchase of the car. There is a tour report by Mr. P.N. Sadhu which is stated to the year of 1979 marked as Exhibit S-10. He has not been examined. When he summoned by the petitioner to examine on his side that was refused by the Inquiry Officer without assigning any reasons. It is obvious from the attitude of the Inquiry Officer that she had acted according to what dicates Mr. S.C. Kapur. We put a question to the learned counsel appearing for the NB to know about the present position of Shri S.c. Kapur. The learned counsel submitted that he had retired from service. He has not even chosen to file an affidavit in reply to the writ petition. The Government of India should have taken note of the gross-misuse of powers of Mr. S.C. Kapur. Mr. S.C. Kapur, the then CMD. To complete the chain of events in this behalf, it may be noticed that Mr. S.C. Kapur has directed to take statement from Mr. M.L. Choudhari (SW- 4), and the statement taken by Mr. Kapur, Mr. Choudhari was marked as Exhibit S-15.

When we look at the way in which the Inquiry has been conducted by examining SW-4, the failure to examine Mr. P.N. Sadhu and Mr. Phillip and letting off Mr. Dave. the inference is irresistible that Mr. S.C. Kapur had started the process with a view to punishing the petitioner and he had determined to go his own gait and untrammeled by the basic principle of natural justice. The petitioner relied upon Exhibit D-7 to prove his case of approval of the then CMD Mr. S.C. Kapur, had signed Exhibit D-7 as I have noticed above. The case of the NB is that that is not available in the file. The signature of the then CMD is not disputed by the NB. The petitioner during the course of the inquiry sought a direction to the presenting officer to produce documents. The Inquiry Officer directed the NB to give inspection of documents that was not done and this aspect was not dealt by the Inquiry Officer at all apparently at the instance of Mr. S.c. Kapur, the second respondent. SW-4 would depose that he was working as Purchase Officer in Baghdad Unit from 1977 to September 1979. He would confirm the statement given in Exhibit S-15. He would state that Mr. S.C. Kapur, Chairman, took statement (Ex. S-15) at Bombay, the statement was recorded in his office at Bombay. He would state that nobody was present and he gave his statement through his memory. The statement was taken by Mr. S.C. Kapur at Bombay on 13.03.1983. No detailed discussions or analysis would be necessary to come to a decision that Exhibit S-15 had been brought into the existence by Mr.S.C. Kapur for the purpose of Inquiry. We are very much concerned to see such a state of affairs and such an action by the CMD by Mr. S.C. Kapur with jurisprudence should have been approved by the Board of NB and should have decided to himself punishment of dismissal. The Supreme Court had held that any action of the administrative authority taken for an extraneous and collateral purpose, is vitiated. The petitioner had made specific allegation against the 2nd respondent Mr. S.C. Kapur that because he did not oblige the second respondent in certain matters and he he chosen to initiate the disciplinary proceedings against him. The 2nd respondent has not chosen to file any reply. The facts of the case would also go to prove the case of the petitioner. The 2nd respondent is guilty of misusing the power. The position was clearly laid down by the Supreme Court reported in Express Newspapers Pvt. Ltd,. and ors Vs. Union of India and ors. in the following Words

The use of of a power for an 'alien' purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order.

The Supreme Court approved the view of the Judicial Review of Administrative Action by Professor De Smith 4th edition in the following terms:

The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it may be said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred.... A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly

The learned Judge has observed:

If the Court concludes that the discretionary power has been used for an unauthorised purpose it is generally immaterial whether its repository was acting in good or bad faith. But there will undoubtedly remain areas of administration where the subject matter of the power and the evident width of the discretion reposed in the decision maker render its exercise almost whole beyond the reach of judicial review. In these cases the Courts have still asserted jurisdiction to determine whether the authority has endeavoured to act in stood faith in accordance with the prescribed purposes. In most instances the reservation for the case of bad faith is hardly more than a formality. But when it can be established, the Courts will be prepared to set aside a judgment or order procured or made fraudulently despite the existence of a generally worded formula purporting to exclude judicial review.

The Supreme Court further laid down:

Bad faith is here understood by the learned author to mean intentional usurpation of power motivated by considerations that are incompatible with the discharge of public responsibility. In requiring statutory powers to be exercised reasonably, in good faith, and on correct grounds, the Courts are still working within the bounds of the familiar principle of ultravires. The Court assumes that Parliament cannot have intended to authorise unreasonable action which is therefore ultra vires and void. This is the express basis of the reasoning in many well-known cases, on the subject. A necessary corollary is that, as usual throughout administrative law, we are concerned only with acts of legal power i.e. acts which, if valid, themselves produce legal consequence.

The Supreme Court has further held:

In general, however, the Courts adhere firmly to the wise meaning of 'jurisdiction' since this is the sheetanchor of their power to correct absues. They appear to be willing to stretch the doctrine of ultra vires to cover virtually all situations where statutory power is exercised contrary to some legal principles. There are many cases in which a public authority is held to have acted for improper motives or irrelevant considerations or have failed to take account of relevant considerations, so that its action is ultra vires and void: H.W.r. Wade's Administrative Law, 5th Edition at pp 42, 348 and 369. The learned author aptly sums up situations in which error of jurisdiction may arise at p.42.

"Lack of jurisdiction may arise in many ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. it would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity".

Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act of order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S.Pratap Singh Vs. State of Punjab . A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland Vs. Overtown, 1904 AC 515, that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred. It was said by Warrington C.J. in Short V. Poole Corporation (1926)1 CH 66 that:

"No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative".

In Lazarus Estates Ltd. Vs. Beasley (1956) 2 QB 702 at Pp 712-13 Lord Denning, LJ said:

"No judgment of a Court, no order of Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything".

"See also in Lazarus case at p.722 Lord Parker, C.J:

"`Fraud' vitiates all transactions known to the law of however high a degree of solemnity."

All these three English decisions have been cited with approval by this Court in Pratap Singh's case.

In Dr. Ram Manohar Laohia Vs. State of Bihar, , it was laid down that the Courts had always acted to restrain a misuse of statutory powers and more readily when improper motives underlie it. Exercise of power for collateral purpose has similarly been held to be a sufficient reason to strike down the action. In state of Punjab Vs. Ramjilal, it was held that it was not necessary that any named officer was responsible for the act where the validity of action taken by a Government was challenged as mala fide as it may not be known to a private person as to what matters were considered and placed before the final authority and who had acted on behalf of the Government in passing the order. This does not mean that vague allegations of mala fide are enough to dislodge the burden resting on the person who makes the same though what is required in this connection is not a proof to the hilt, as held in Barium Chemicals Ltd. Vs. Company Law Board the abuse of authority must appear to be reasonably probable.

47. The Supreme Court in State of Punjab and others Vs. Chaman Lal Goyal (1995)2 S 570 held that in order to give a finding on mala fide the petitioner should make clear allegations and the particular official concerned should be add as a party. Here these two conditions are fulfillled by the petitioner.

48. Mr. S.C. Kapur the then CMD did not think to file counter affidavit and that would go to show that he had nothing to deny.

49. In the light of this, the position Mr. S.C. Kapur was wholly instrumental in framing the charges against the petitioner is clearly established.

50. We shall now go to the examination of the materials relating to charge No.2. Mr. S.C. Kapur, SW-2 does not speak about this approval. Mr. R.S. Joon was examined as SW-2 would state that he joined as JE in February 1979 at Baghdad. He would touch on the condition of the car. He would refer to Exhibit S-5 which is stated to be a history sheet of the car. he would also refer to Exhibit S-13 stated to have been a letter written by him. There is no date in the letter. It is stated to be in reply to the letter dated 21.08.1983. The evidence of SW-2 does not show anything about the question of approval.

51. Mr. Sat Prakash, was examined as SW-3 on 16.10.1984. He would refere to Exhibit S-14 which is stated to be a statement with reference to note dated 22.07.1983 by Mr. Kapur. While signing Exhibit S-14, apparently Mr. Sat Prakash has put the date in ink as 26.07.1983. As per this note of Mr. Sat Prakash Exhibit S-13 was on 27.07.1983. The documents marked as Exhibit D-3 as TA Bill claimed by the petitioner. Exhibit D-4 was a letter sent by SW-1 Mr. S.C. Kapur to Mr. Sat Prakash the letter reads as under:

Sub: Survey Report of Car No.5183.

(Impala Chereslot) at Baghdad.

Impala car bearing Registration 5183 Model No.IL 69 G 91146192 was purchased on 15.04.1979. A survey report has been prepared for write off of this car as it is beyond economical repair as per its present mechanical condition.

The car in question has done only 46572 Km as per its meter. This Km run does not justify write off. The car has done much more mileage than this indicated by its meter. This would depend upon the condition of the car at the time of its purchase.

Since you have been one of the users of the said car immediately after its purchase, it is desired to have your opinion about the condition and performance of the car when used by you.

You are requested to give your opinion at the earliest to enable us to finalise the Survey Report.

Sd/ Regional Manager(E&M) Baghdad.

52. What was the provocation to Mr. S.C. Kapur to write such a letter on 22.07.1983 is not mentioned any where in the proceedings. A reading of the letter would also show the letter had been made up. In the cross-examination, Mr. Sat Prakash SW-3 would state "I received Exhibit D-14 in a sealed cover. It is not understood why should the witness state about the sealed cover and though sealed envelop had not been produced and that only shows the artificial nature of the evidence. SW-4 Mr.M.L. Chowdhary who gave a statement of Mr. S.C. Kapur, Exhibit S-15 would also speak about the condition of the car which in our view is not a relevant aspect.

53. SW-4 in the Chief Examination about the car would state:

Kuwait. It was a cash bill. The cash bill is a bill the payment is made immediately an the counter. The cash bill contains the identification No. of the Impala car in question. The cash memo was in the name of NB, Iraq.

54. At the end of the Chief Examination he would state that what he found at page 31 of Exhibit S-4 is not a bill. It is only a certificate and not legalized Chamber of Kuwait. This only shows that the witnesses were tutored to speak about the bill given by Wadha Trading Co. There was no dispute about the legality of the transaction at Baghdad. He would also admit that " this bill was seen by the Manager (Finance) and Project Manager. The name of the CPM was Shri Dave and the name of the Project Manager was Ex. C.g. Philips and the Finance Manager was Mr. Jindal."

55. The Inquiry Officer had referred to two matters which are not material at all for this charge and had referred to the fact that what was decided was to purchase for Impala (8 cylinder) Car and that was not with reference to Impala (6 cylinder) Car. She would refer to the meeting dated 02.05.1979 of the Board and no mention was made about the purchase of the Car. The Inquiry Officer instead of putting this aspect in favour of the petitioner ignoring Exhibit D-7 has put this against the petitioner. This shows the whole approach of the Inquiry Officer in considering the evidence. The fact that Local Purchase Committee decided to purchase the car was never disputed. It is clear from the record that the purchase of a car was to be done immediately and the car was purchased for Rs. 80,000/- for the purpose of the University. The Inquiry Officer would observe:

It is evident that even without obtaining administrative approval for the purchase of cars, import licences for some makes of the cars were obtained. Import licence was obtained for a 6 cylinder Chevrolet Impala Car and not for 8 Cylinder car which was actually purchased for the project subsequently. The cars were not covered by the administrative approval and this fact was known to Shri Dave as well as the Charged Officer.

57. This is no reasoning at all. The Inquiry Officer should have seen the materials on the basis of which purchase had been made. The Inquiry Officer would observed:

The Chevrolet Impala Car was meant for the use of senior officers of the project as well as visiting officers from Delhi and cannot, therefore, be termed as "essential equipment for the project" under any circumstances for which the Charged Officer had accorded relaxation to purchase without administrative approval. Further the car was purchased on 22.03.1979 and no efforts were made to take expost facto approval of the C.M.D. or Board of Directors subsequently either in the meeting of the Directors held on 02.05.1979 or in any other subsequent meeting. It is thus clear that there was no administrative approval covering the purchase of 8 cylinder Impala Car and this fact was not brought out by Shri Dave and the charged Officer on 22.03.1979 while approving the purchase vide Note at page 27 Ex. S.4"

58. This is a wholly perverse approach by the Inquiry Officer. The Enquiry Officer had accepted the in toto statement by the presenting officer about the production of the documents and had observed:

It is observed that the Charged Officer has asked for this note as a defense document but the Presenting Officer informed that such a note was not on record in the secretariat of C.M.D. or in the office of the FA & CAO or in the office of the CPM (Iraq). This note was also not available in the office of O.S.D. or in Monitoring Division. When this note was not available anywhere, it is not understood how the Charged Officer produced it from his own custody considering the fact that he is under suspension and is not handling any official record. In fact all if it was a genuine document. Further this note does not bear any despatch number, receipt number, diary no., which would be invariably recorded if it had been received or processed through the office secretariate of the CMD. As pointed out by the Presenting Officer on pages 14-15 of his brief Financial Sanctions or administrative approvals are not issued just on a note prepared by the CPM without examining the financial aspects including tender provisions etc., examined in detail either in the Tender Cell or the FA & CAO's office and is examined with reference to the main proposal and sanction. Further if this saction was genuine, then, Shri Dave as well as the Charged Officer should have made a reference to it in their notes on 22.03.1979 when the purchase of Impala car was concluded and approved. Hence, the absence of this document and no indication of its existence in any official record whatsoever together with the fact that it was not referred to either by the CMD or the charged Officer in the meeting of 2.5.1979 when the final sanctions for purchase of equipments was given, clearly shows that this document Ex. D-7 was fabricated subsequently in collusion with Shri B.P. Dave as well as Shri P.P. Dharwadker, Ex. C.M.D Ex. D-7 cannot therefore, be relied upon."

59. As we have noticed above Mr. P.P. Dharwadker, the signatures of P.P. Dharwadker in Exhibit D-7 was not disputed and no steps have been taken to examine Mr. Dharwadker in the inquiry and the conclusion by the Inquiry Officer is that the C.M.D had colluded with the petitioner. This is not at all justified as is based on no evidence. The Inquiry Officer had assumed without any basis that the purchase was without the approval of the Corporate Office. The Inquiry Officer would wind up with reference to charge No.2 observing: The Chevrolet Impala car was purchased on 22.03.1979 without the approval of the competent authority nor was any justification/requirement projected to the Head Office for the purchase of such a car.

60. The Inquiry Officer had commented upon the fact that there was no draft of Exhibit D-7 in the office. There is no receipt No. Diary No. despatch nu and there is record for the receipt or despatch. If that is the basis for testing the genuineness of the documents the Inquiry Officer had not considered the absence of those particulars with reference to Exhibits D- 4, S-13 and S-14. If the Inquiry Officer wanted to decided these procedural aspects to prove a particular document the same test should have been applied to the above three documents. The finding of the Inquiry Officer is based on no evidence and it cannot at all be sustained.

61. We shall now deal with Charge No.3. Charge No.3 reads as under:

The said Shri R.K. Gupta had also connived with the then CPM in making the payment for purchase of Impala car in cash against the rules of the Corporation. He had thus failed to main absolute integrity and devotion to duty and acted in a manner unbecoming of an employee of the Corporation and thereby violated Rule 3(1) of the NB Service (Conduct) Rules, 1969.

62. The Inquiry Officer noted the defense of the petitioner in the following terms:

The Charged Officer's defense is that many large firms in Kuwait and Baghdad do not accept payment by cheques. He referred to Ex. D-13 which contains a number of vouchers where among others, cash payments were made by NB's officers abroad even for large amounts."

63. The first witness SW-1 S.S. Kapoor would state in his evidence: .

I remember to have seen the gist of purchase procedure laid by NB in Exhibit D-1. I do not remember who was the Project Manager in Baghdad in March 1979."

64. This witness was working in Baghdad office from October 1981. In the cross-examination he would admit:

I have seen the Accounts Manual marked as Exhibit D-2. I agree that the register of plant and machinery and vehicle is maintained in each Unit level at Baghdad".

65. No such register has been produced. This witness does not also speak about the payment made for the car. Mr. R.S. Joon SW-2, SW-3, Mr. Satprakash and Mr. M.L. Chowdhary SW-4 also do not speak about the cash payment.

66. The petitioner Mr. S.L. Gupta, who was FA&CAO NB in his evidence on 17.10.1984 stated that he had come across the manual Exhibit D-2 and it has not been adopted by the Board of Director of NB. DW-2, Mr. N.K. Jindal Chartered Accountant who was the Finance Manager of NB from December 1978 till October 1979 in Baghdad stated that the CPM was competent to authorise the purchase. In the cross-examination nothing is elicited from him about the procedure and it was never suggested to him that the payment of cash for the purchase of Impala Car (Rs. 80,000/-) was not in accordance with the procedure. The Petitioner examined himself as DW-3.

67. He deposed in the chief examination:

Mr. Dave, CPM Baghdad had taken me round to major car dealer of Kuwait. We visited M/s Alganim & Alnasser besides other dealers. Later on we contacted Khalid Tayyar and other dealer also. Neither Alganim nor Altyar were the sole selling agent of American Cars in Kuwait. They said that they were the main dealer of American Car besides the other firms we contacted who also claimed to the Indian Dealers. We could verify the scale of their business by the number of cars available in their garriage, space occupied, location at which they are situated etc. I got a telex message from Delhi on 21st/22nd March, 1979 from Shri P.N. Sadhu the then contract Manager of Head Officer that I should collect a tender paper from Kuwaiti airways flight reaching Kuwait Airport at about 10.00 O,clock and should appoint an agent in consultation with Indian Embassy and then submitted the tender which was perhaps to be submitted on 22nd March 1979 itself. I did this job and could complete it by evening. As the agent could got be appointed and the time passed in contacting the embassy and the agent the tender could not be submitted and was brought back to India on the same night. I left Mr. Dave around 8.00 PM on 22nd March 1979. On the same night, I flew back to India. 22nd March 1979 was a Thursday. The negotiation with Altyar were done by Shri Dave in my presence on 19th, 20th and 21st March 1979. Mr. Dave ultimately made the selection of the car.

68. He however, deposed:

"there was no question of my allowing cash payment as Kuwait bank accounts are jointly operated by the CPM and Finance Manager, Baghdad. However, as both of them were not present in Kuwait and as I am a single operates I might have signed the cheque and given to Mr. Dave who is to account for in his Iraqi accounts.

He further deposed:

The CPM had kept the money. The payment was made by him to Altyar and other cars suppliers.

DW-3, further deposed:

I have no knowledge of any instructions from the Head Office against cash payment for purchases to be made abroad. There are a number of major payment in cash for purchases abroad not only for new machinery but even for old. This depended on the decision on the PD/CPM who were well conversant with the local conditions. This issue was discussed with the then CMD Shri P.P. Dharwadkar who left it to the discretion of PD/CPM who were the local difficulties prevailing in the country of their operation.

69. The witness also had spoken to the payment made in cash in other cases. He states:

"As per Exhibit D-13 for Break Project the cash payment of LD 3500 was made on 29th January 19799 by NB Libya for purchase of dozer. An other cash voucher is in the same folder for 11315 LDs paid by NB, Libya on 17th Sept. 1979 in lieu of a cheque."

About the role played by him he would depose:

"The head office Observers had to see the records available with the LPC or the CPM/PD and ensure that the negotiations are conducted in a proper way and best price is taken out from the technically competent parties."

He had further deposed:

"In Libya and Iraq where the Corporation has gone for the first time only in 1976/77, there local conditions were so different that normal rules as applicable in India could not rigidly be enforced there. As PD/CPM were more conversant higher officers enjoying powers even sometimes more than the Chairman in India have to be depended upon and their decisions used to be carried out in the interest of smooth working of the Corporation."

70. About the circumstances under which the purchase was made he would state:

"The question of mormulating of foreign manual was already underconsideration and DSD was assigned to this task. the suggestions me could not strictly be rectified till I left the Corporation. No there is no lapse on my part as the instructions for foreign works given for compilation depending on the difficulties/conditions perevcailing in different countries was given to the montering cell for foreign works which was constituted at my suggestion.

Q. You had stated that one of the difficulties you had as Head Office Observer was the fact that the LPC recommends the parties with whom negotiation are to be conducted in general. Did you have this difficulty in the case of purchase of Impala Car.? Ans. No.

The quotations from other parties were collected by the CPM from the different parties to whom we contacted. Recontacted both the parties viz. M/s Algainm & Sons & M/s Abdul Nazzir & Co. besides contacting other. In the case of Toyota Car after negotiations M/s Abdul Nazzar & Co. found to be the lowest. As far as Impala Car is concerned the attitude of M/s Alganim was rude and he did not reduce any price perhaps as only one vehicle was to be purchased from him. From the quotations of other dealers M/s Al-Tayar became the lowest and as such the purchase was agreed to on the recommendation of the CPM? Iraq with his. I do not agree that the note of 22nd March 1979 indicates that the negotiations were not carried out with M/s Alganim & Co. We do negotiate with this also besides other parties."

71. DW-3 had further deposed:

"I have already mentioned that there were no rigid rules in regard to the purchase in third countries and the CPM or the PD used to take the most economical decision."

72. A question was put to him about the purchase of equipments from Kuwait and why LPC was not associated in them. The question and the answer would show the part played by the witness.

Q. LPC was formed by CPM for the purchases of equipments from Kuwait. When the negotiations for the purchase of Impala Car were being conducted LPC was not associated in them. why was this not pointed out by you as Head Office Observer to CPM, as there was no relation in regard to this?

Ans. The LPC for the purchase of equipments in the third country generally consisted of CPM, FM & CPM may associate any Project Manager. The purchase in this case was that of the cars and not the equipment. CPM has already obtained the recommendations of the other members of the LPC viz. FM and PM which are on record. The final decision was to be taken by the CPM himself. As I have already indicated the expenditure involved in TA/DA for foreign country is also to be seen when a particular purchases is effected. This is for the CPM to decide. No. He has not ignored the recommendations of LPC he has gone the most economical way for which I have agreed as a Finance representative.

He had also deposed:

There is no contradiction in the bottom para on page 27 of Ex. S.4 with regards to payment in cash or cheques made to M/s Abdul Nazsar & Co. Generally cash payment should be avoided but in foreign country this decision is left to the FM and PD/CPM who is well conversant with the local conditions and he has to take the decision. This was the practice. The question of purchasing the Impala car was already in the mind of the CPM and the decision was to be taken on 22nd March itself as we both had to leave Kuwait on that night. The CPM who is controlling the Kuwaiti accounts night have to make money other purchase also as such he might have kept this cash with him."

He further deposed:

"The payment was made to Mr. Dave and it was for him to account for it"

73. The Inquiry Officer ignoring the evidence on record and without giving a finding what was the procedure regarding the purchase of car and equipments in Libya and Iraq at the relevant time had given in report. The Inquiry Officer had observed in para 5.3.6 as under:

"It is observed from the note of 22.03.1979 at page 27 Ex.. S-4 that:-

"The price for Impala car was decided this afternoon and therefore, a full payment of KD 2750 was paid in cash".

This note clearly shows that the decision to make payment in cash was taken in the afternoon without giving any reasons. Further as brought out by the Charged Officer in his evidence as D.W.3 that he was to proceed to India immediately and banks were closed on 12.00 noon on thursday, the decision to withdraw the amount in advance i.e., in the forenoon and to hand it over to Shri Dave, before finalising the negotiation in favour of the firm was clearly malafide. The Charged Officer was the single signatory for operation of the Bank Account and he was the only officer who could draw money from the Bank in Kuwait. Shri B.P. Dave, CPM could not by himself sign the cheque, since the second signatory who should have been present to complete the formalities of LPC was not available at Kuwait. The normal course of action could therefore have been to draw a cheque for the specified amount in favour of the seller of the car but instead a cheque for 2850 KD was issued in favour of Shri Dave. Therefore, by this action the Charged Officer did not leave out any other method of payment to the party by Shri Dave and the only method left was by payment of cash."

74. The Inquiry Officer had completely ignored the charge that the petitioner had connived with Mr. Dave. There is absolutely nothing to show any connivance. The fact that the money was given to Mr. Dave is accepted by the Inquiry Officer. The observations that the decision to withdraw the amount in advance in the forenoon was clearly mala fide would show that the Inquiry Officer has not had the hang of the matter. The findings of the Inquiry Officer is that "it is thus apparent that the payment in cash was preplanned and the Charged Officer connived with the CPM in making payment for purchase of Impala car in cash against the rules of the Corporation is not at all correct on facts." The Inquiry Officer accepted referring to DW- 2 had not referred to any rules of the Corporation governing the purchase of equipment and car in Libya or Iraq or in any other foreign country.

75. The findings on charge No.3 is absolutely without any evidence.

We shall now deal with charge No.4. Charge No.4 reads as under:

The said Shri R.K. Gupta by his notings dated 22.03.1978 connived by giving false cover to the mala fide action of Shri B.P. Dave, the then CPM. He had thus failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of an employee of the Corporation. He has thus violated Rule 3(1) of the NB Service (Conduct) Rules, 1969.

76. The Inquiry officer had referred to the case of the disciplinary authority being, "that the car which was stated to be purchased from M/s Khalid Al Tayyar Establishment did not have a guarantee cover for defects which would come up during this period. It was brought out that a complaint has been received in the Corporation that Shri Dave in connivance with the Charged Officer had purchased an old Chevrolet Impala car whereas the Corporation was charged the price of a new car."

77. The Inquiry Officer has noted the defense of the petitioner, broadly being that he had returned to the Head Office on 22nd March 1979 itself and the car was receipted by Shri C.g. Phillip in April 1979 and so he was not responsible for the condition of the car. The Inquiry Officer has proceeded to consider this charge on mere surmises and there is absolutely no evidence on record about the condition of the car. The Inquiry Officer has assumed that M/s Alghamin and Sons was the sole selling agent for which there is absolutely no evidence. Before we passed any comments why report on the report of the Inquiry officer on this charge we feel that it is better to notice some crucial facts which would throw flood of light as to how the whole Inquiry had been started without any basis whatsoever just to take action against the petitioner by Mr. S.C. Kapur CMD.

78. Exhibit S-10 is stated to be the tour report of Mr. P.N. Sadhu from 21.09.1981 to 23.09.1981. It is a general one he refers to other matters in addition to Impala car. He would state that: the tour was primarily undertaken for following:

a) to ascertain from dealers in kuwait about purchase procedures generally adopted by prospective buyers of 'Chevrolet' Cars;

b) to ascertain the exact position about the condition of DATSOAN Car given for repairs and get it despatched to BAGHDAD.

79. Mr. P.N. Sadhu stated that the above tour was undertaken as per the verbal orders of the CVO/CMD during my visit to Delhi in September 1981. In the second page of exhibit S-10 Mr. P.N. Sadhu had stated " It was also ascertained that M/s Wahda Trading Company from whom the Chevrolet Car has been purchased is dealing in Spare Parts (main business). his shop did not indicate any activity of selling Cars. M/s Wahda Trading Company is a firm owned by a Kuwaiti but the firm is managed in Partnership by an Indian by name Mr. Anand.

80. This document cannot at all be considered because Mr. Sadhu had not been examined. The petitioner himself wanted to summon Mr. P.N. Sadhu to examine on his side that was refused by the Inquiry Officer. The car was purchased from from M/s A.R. Tayyar Est. Therefore, how Mr. Sadhu could say that the car was purchased from M/s Wahda Trading Company. Unless the concerned person was examined nothing can be said on this point. The Inquiry Officer has taken into account a document which can not be looked into even in departmental proceedings.

81. On 27.01.1982, Mr. S.S. Kapoor (SW-1) gave an inspection report which could be found in Exhibit S-6. The PsD had made endorsement on 03.08.1982 in the following terms:

M/F may kindly see there is no alternation but to write it off. He may suggest further line of action.

82. It is significant to notice that nothing had been mentioned about any irregularities in the purchase of the car. On 09.02.1982 Mr. S.S. Kapur SW- 1 wrote to Mr. A.K. Kaul, Sr. Project Manager Baghdad in the following terms: The proposal for repair of Impala Car was initiated by Shri Sarkar, AE(E). The Impala Car was inspected by the undersigned on 27.01.1982 and it was agreed by PsD that the car should be survey reported as it could not be repaired economically. Therefore, the entire case is returned herewith with the remarks that steps be taken to prepare full history case of the car for write off sanction of the Head Office giving details of date of purchase, book value, repair cost already incurred etc. etc. It may also be indicate in your proposal how the disposal should be made within the frame-work of our clients.

83. Mr. S.S. Kapur must have been fully aware of the circumstances and had proposed for sanction for writing off. Nowhere it had been mentioned that the car which had been purchased was old one. The noting Exhibit S-6 1981 onwards would bring out the real position with reference to the car. It is not known whether Mr. Dave was in service at that time. No action had been taken against Mr. Dave on the ground that old car had been purchased.

84. On 28.02.1983, the Petitioner sought voluntary retirement. The letter reads as under:

The Chairman, National Buildings Construction, Corporation Limited, New Delhi.

Sir,

I have completed 20 years service in NB on 27.01.1983. I now seek voluntary retirement from the Corporation and hereby give 3 months notice. I request you to kindly relieve me on 31.05.1983 and oblige.

Thanking you,

Yours faithfully, Sd/-

Dt.28.2.1983. (R.K. Gupta)

85. On 01.03.1983 the first respondent wrote to the petitioner in the following terms:

Dear Sir,

We refer to your letter dated 28.02.1983. As you are aware there is no scheme for voluntary retirement in our Corporation and as such the question of your seeking voluntary retirement from the Corporation does not arise.

However, the letter under reference makes it abundantly clear that you wish to be relieved of your duties, in this Corporation, for which you have given 3 months notice.

We accordingly relieve you of your duties as Financial Adviser and Chief Accounts Officer of the Corporation w.e.f. the afternoon of 1st March, 1983 by paying you pay for the balance notice period.

The proceedings for major penalty were contemplated against you at the time of relief.

86. On the same date the Petitioner wrote to the CMD in the following terms:

Sir,

Please refer to your letter of today which I have just received. I am rather shocked and surprised as there is no proceedings or charge against me whatsoever. Being a responsible officer of this Corporation, I would like you to communicate to me the charges, if any, as also to complete disciplinary proceedings, if any, before I am relieved. Therefore, in all fairness, I must be given the opportunity to reply for the charges if there is any or kindly withdraw the remarks in the concluding para of the letter.

The letter has been given to me after the cheque for notice period was handed over to me. I am returning herewith the cheque received for the balance notice period.

In view of the circumstances explained, I am still on duty and will be attending the office till such time a final decision is taken by your goodself in this regard.

87. The petitioner filed a C.W. No. 450 of 1983 in this court challenging the action of the NB not permitting him to have voluntary retirement. On 05.04.1983 this court passed the following orders:

5.4.83

Present: Mr. Ambrish Kumar for the petitioner.

Dr. Anand Prakash for the respondents.

Rule D.B.

The petitioner came to this court with the allegation that he had asked for voluntary retirement as per his letter dated 28th February, 1983. The petitioner claimed that as he had completed 20 years of service he may be permitted to seek voluntary retirement. The respondent, however, informed him by its letter of 1st March, 1983 that there was no scheme for voluntary retirement but as from his letter it was clear that he wanted to be relieved of his dutes, the Corporation was relieving him of his duties with effect from 1st March, 1983 and paying him the balance for the notice period. The petitioner apparently was dissatisfied and by his letter dated 1st March 1983 communicated that he had asked for voluntary retirement and that he was returning the cheque for the notice period.

Show cause was issued and reply has been filed. Dr. Anand Prakash, those learned counsel appearing for the Corporation stated and that is his stand in the reply also, that there were some disciplinary proceedings Contemplated against the petitioner. And there is no voluntary retirement scheme at present in the Corporation, therefore, the question of any benefit of voluntary retirement scheme could not have been contemplated by the petitioner, more so because he is a financial adviser and he would in the normal course have to know all the schemes.

Dr. Anand Prakash says that the petitioner has already been relieved of his services but if the petitioner is taking the stand that the does not want to leave the services and wants to withdraw the letter dated 28th February 1983 the same can be permitted to be done if the petitioner should put it in a formal letter asking for the withdrawal of the letter dated 28th Feburary 1983. Of course, counsel for the petitioner stated that he is withdrawing this letter. A formal letter, however, should be put in by the petitioner withdrawing the letter dated 28th Feburary 1983. Dr. Anand Prakash says that after the letter is withdrawn the letter issued on 1st March, 1983 relieving the petitioner from service will be withdrawn and cancelled. The result of course will be that the petitioner will be back in service. Dr. Anand Prakash makes it clear that as mentioned in the letter dated 1st March 1983 there were some major penalty proceedings contemplated against the petitioner and the corporation should not be deemed to have given up its right to take those steps or any other appropriate measures. We clarify that our decision in no way restrains or prevents the corporation from taking any appropriate steps against the petitioner that are available to it under the law. Now when the petitioner is to be treated in service the relationship between the employer and employee continues and normal rights and obligations both of the employer and employee will govern the relationship.

The petition stands disposed of as above.

No costs.

88. On 08.04.1983, the order of suspension was passed.

89. Under normal circumstances, one would have expected to the NB to proceed to frame charges on the basis of the material available on the date of order of suspension because it would be presumed that the public authority had applied its mind on the material available for taking action against its employee. From 24.11.1989 upto 28.02.1993 the materials produced by the NB would show that there was nothing against the petitioner. On 27.04.1983 the offer by M/s Yusuf A. Alghanim & Sons was obtained that is marked as Exhibit S-8. It reads as under:

SOLE AGENT FOR: CADILLAC, PONTIACS,CHEVROLET, OLDSMOBILE & OPEL.

YUSUF A. ALGHANIM & SONS W.L.L

27th April 1983

Messrs National Buildings, Construction Corporation Ltd., 15-901-19 Karada Irkhita P.O. Box-1003 Baghdad.

Dear Sirs,

We are pleased to submit hereunder our best cash Export prices for the following vehicle for your kind consideration:

1. CHEV. IMPALA

1983 MODEL TYPE-12 KD.3975/-

SPECIAL EXPORT DISCOUNT KD.0300/-

NET: KD.3675/-

DELIVERY PERIOD - ONE WK EX OUR GARAGE.

While thanking you in anticipation, hope that our prices will meet your approval and are looking forward to receive your firm order.

Yours faithfully, Sd/-

Naser Diab Manager, (A.O) Kuwait Dealership.

P.O. Box 223, Kuwait Telex 4900-7, Ganim, Cable: Autoarabi, Tel 830588 831588, 834588 C.r. 5744.

90. There is no proof that it was written by Yusuf A.Alghanim & Sons, the letter head itself is no proof that it had emanated from that Company. SW-1 and SW-4 do not say as to what the occasion for the Company to wrote to the NB on 27.04.1983. Who wrote from the NB to the Company is not known. The NB would rely upon what is typed out at the top of the letter that the Company is the sole selling agent for Cadillac, Pontiacs, Chevrolet, Oldsmobile & Opel. The crucial question would be whether it was the sole agent for the year 1979. The Company does not say that it was the sole agent in the year 1979. No one from the Company had been examined, therefore, this document also cannot be looked into.

91. On 01.06.1983, Khalid Al-Tayar Establishment is stated to have written to the NB. The letter reads as under:

June 1, 1983

National Buildings Construction Corporation Ltd.

Dear Sir,

With reference to your telex and inquiry by Mr. O.P. Goel of your Company Project Director it is our pleasure to offer you our lowest price on the following cars. We are not sole agent for all cars we are private Auto importing Est. in Kuwait since 1973.

Chevrolet Impala 1983 KD 3600/- (delivery 4 to 6 weeks after your order).

Chevrolet Caprice 183 KD 4000/- (Delivery same time).

Buick Park avenue 1983 Kd 5100/- (Same time). 5 in stock now.

Olds Mobile 98 Brg. 1983 5100/- (same time) 4 in stock now.

As we learned from Mr. Goel you buy Toyota cars from Al Sayer even so we are not a dealr for this cars to we can offer you good prices than they do:-

Please telex back what makes you need from Toyota and we will offer you our prices. Toyota cars now we have in stock:-

Crown Royal Saloon, Crown Super Saloon, Cressida GL 4 CY. and Corona DX 1.8. If you need any other Toyota cars we can get you within 2-3 weeks time.

For your information we can offer you also any type of Honda Cars.

Hope to hear from you soon.

Sd/-

Khalid Al-Tayyar Auto Est.

Omar Abduemana Marketing Manager.

92. Here also the witnesses examined on this side of the presenting officer do not speak about this document. None from Khalid Al-Tayyar Establishment had been examined. It has been failed to show that Khalid Al-Tayyar Establishment was not a sole agent for Impala Car. Having sold the car in 1979 it is not explicable as to how the Company came to give such a statement unless the person who wrote the letter was subject to cross-examination. Any statement made in this letter cannot be taken into account by the inquiry officer. Therefore, this document also has to be completely ignored in law. On 21.06.1983 there was a telex message from NB to the First Secretary Commercial in Indian Embassy Washington. The telex message reads as under:

0236433+ INSUMIS64333 2451 NB IK

JUNE 21 1983

ATTN FIRST SECRETARY (COMMERCIAL)

We are a Government of India undertaking executing civil construction works in Iraq (.) We are in some difficulty in sorting out one of our insurance case of our Chevrolet/Impala Car (.) We had purchased this car whose details are as follows:-

Model No. IL 69G 91146192

Chasis No. - 1191146192 12B-D&O 1043 18L-69-230733 29L-294-24B C-49D33

We are unable to locate the year of manufacture of this car(.) Can the Embassy help us in getting this information from the manufacturers of Chevrolet/Impala car(?) In case Embassy is not able to help in getting this information, kindly let us know Tlx number of the manufacturers so that we can directly HV this information from them(.) We shall be highly obliged for the assistance in the matter(.)

Kind regards,

NB-Baghdad

93. On 28.06.1983 there was a telex message from Indian Embassy to NB responding to Exhibit D-5. The latex message is as follows:

To NB Baghdad Iraq.

From: I dembassy Washington DC June 28 1983

Ref your tel dated 21st June 1983 regarding year of manufacture of yourChevrolet Impala Car (.) The car under reference was manufactured in 1971 (.) The telex No. of General Motors/Chevolrlet car is 556-1949(.) Over RR/281100 PL Ackoo

94. The telex had gone to NB Baghdad. The person who had sent the message was not examined and why such a message was sent on 21.06.1983 had not been explained. It may be noticed at this stage on 29.06.1983, Mr. Kapur apparently at the instance of CMD had been asked to give a report.

95. On 22.07.1983, the letter marked as D-4 by Mr. S.S. Kapur SW-1 to Mr. Mr. Sat Prakash, SW-3 in the following terms:

Sub: Survey Report of Car No.5183 (Impala Cherslot) at Baghdad.

Impala car bearing Registration model No.IL 69 G 91146192 was purchased on 15-4-79. A survey report has been prepared for write off of this car as it is beyond economical repair as per its present mechanical condition.

The car in question has done only 46572 Km as per its meter. This Km, run does not justify write off. The car has done much more mileage than this indication by its matter. This would depend upon the condition of the car at the time of its purchase.

Since you have been one of the users of the said car immediately after its purchase, it is desired to have your opinion about the condition and performance of the car when used by you.

You are requested to give your opinion at the earliest to enable us to finalise the Survey Report.

96. Mr. Kapoor SW-1 would not say in his evidence under what circumstances he came to write this, but he would state that the letter was sent in a sealed cover. Why should he make a statement about the sealed cover is really a matter of interest. Perhaps he wanted to give an air of verisimilitude to the action taken by him. On 26.07.1983 there is again what is called a survey report by Mr. Sat Prakash (SW-3) which is marked as S-14. It is stated in the letter which is in response to the letter from Mr. S.S. Kapur which is marked as Exhibit D-4. This is 3 months after the order of suspension. Mr. S.C. Kapur CMD manage to get the statement from Mr. N.L. Chaudhary (SW-4) on 30.08.1983 which is marked as Exhibit S-15 which reads as under:

NATIONAL BUILDINGS CONSTRUCTION CORPORATION LIMITED.

406, Arun Chambers, Tarde Main Road, Bombay -400034.

30.08.1983

The Chairman NB, Ltd.

New Delhi - (Camp Bombay).

Sir,

With reference to your personaly enquiry, Sir regarding purchase of Impala Car by Baghdad University Project, I want to inform that I handed the custom clearance of this car through one custom clearing agent. (This agent was doing the clearing good for the Corp.) and name I do not remember at the moment. the cash memo given to me for clearance was from M/s Wadhwa Traders Kuwait on the basis of which the custom clearance was arranged. After a week or so another voucher was forwarded.

The car was given to Mr. D.K. Ray RE University Project for his use.

At the time of clearance of the car, from custom, Shri Mohammed our office driver pointed out to me that the car was old model and did not start.

Thanking you,

97. The charged memo was issued on 29.03.1984 nearly after a year from the date of the suspension order. Therefore, the story about the condition of the car and that car was old one had been trotted out for the purpose of supporting the case of NB. The inquiry officer had assumed that obtaining warranty or guarantee was the work of the petitioner. No witness was exam- ined on the side of the NB would speak about this aspect. In the absence of any evidence on this aspect the observations by the Inquiry Officer that it was mala fide intention that warranty was not obtained is absolutely baseless. The Inquiry officer had proceeded on conjecture is clear from the observations "Exhibit S-10 which is a tour report of Shri P.N. Sadhu, Ex. Chief Engineer NB, clearly shows that the car was purchased from M/s Wadha Trading Company. It is seen that this shop was mainly dealing in spare parts and when Shri Sadhu visited the premises he did not see any activity of selling cars." The Inquiry Officer had also proceeded on surmises about the payment made to the Vendor. It is not necessary to go further to the Inquiry report as every sentence of the inquiry report is not at all supported by any evidence.

98. The learned counsel for the petitioner contended that on 06.08.1984 the petitioner requested the inquiry officer for a direction to the Presenting Officer to give inspection of certain documents and the Inquiry Officer granted permission for inspection and the NB did not give any inspection of the documents. We do not want to go into this aspect because we have taken view that the proceedings have been initiated at the instance of Mr. S.C. Kapur CMD and the findings of the Inquiry Officer are not based on any evidence. It is well settled that the court can consider the materials to find out whether the findings submitted were supported by any evidence. We have taken that exercise and we are clear of the view that findings are based on no evidence. There is absolutely nothing on record from which the action of the NB could be justified.

99. The Supreme Court had laid down in Tata Cellular Vs. Union of India 1994 (6) S 651 that if the weight of facts pointing to one course of action is overwhelming then a decision the other way cannot be upheld. This principle would squarely apply to the facts of this case. In our view there is only one conclusion possible and that is that the findings of the Inquiry Officer are not based on any evidence and the NB has failed to establish its case against the petitioner. Consequently, the petitioner is fully justified in filing the petition.

100. The learned counsel for the NB relied upon the following cases and submitted that the court cannot interfere with the findings rendered by the Inquiry Officer and confirmed by the Competent Authority.:

101. In Jasodhar Misra Vs. State of Bihar and others , the Supreme Court referring to the findings rendered by the Inquiry Officer and concurring with the view taken by the Inquiry Officer on merits dismissing the appeal. There is no discernible ratio laid down by the Supreme Court in this case applicable to the facts of this case.

102. In State Bank of India and others Vs. Samarendra Kisser Endow and another (1994) 2 SC 537, the law laid down by the Supreme Court in 1963 SC 1973 in State of A.P. Vs. S. Shri Armagh Rao is quoted and the same is in the following terms:

"The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental inquiry against a public servant; it is concerned to determine whether the inquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of inquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the inquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding... under Article 226 of the Constitution."

The Supreme Court also refer to the dictum laid down by the in Union of India Vs. Sirdar Bahadur (1972) 4 S 618 which had followed State of Orissa and ors Vs. Bidyabhushan Mohapatra that if the order of punishing authority can be supported on any finding as substantial misdemeanour for which punishment can be imposed, it is not for the court to consider whether the charge proved alone would have weight to the authority in imposing the penalty. Therefore, if the findings given by Inquiry Officer are not based on any evidence the courts shall certainly interfere.

104. In Union of India and ors Vs. Upendra Singh (1994) 3 S 357 the Supreme Court laid down in the following terms:

In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges.

105. The Supreme Court has laid down the principle clearly.

In The State of Orissa and another Vs. Murlidhar Jena AIR 1963 SC 404 the Supreme Court has laid down that if the findings recorded by the Administrative Tribunal are not supported by any evidence the High Court would be justified in setting aside such findings.

107. The learned counsel for the petitioner relied upon a number of decisions that if relevant documents are not furnished the inquiry will be vitiated. State of Madhya Pradesh Vs. Chintaman Sadashiva Waishampayan AIR 1961 SC 1623, Surat Singh and others Vs. S.R. Bakshi and others Lachhman Das Vs. Rent Control and Eviction Officer, Bareilly and another Union of India Vs. T.r. Varma ,

108. Learned counsel also referred to the judgement reported in State of U.P. and others Vs. Jagdeo Singh that court can interfere if in the domestic inquiry reasonable opportunity was not given to the charged employee.

109. The learned counsel referred to the following cases to show that the court can go into the correctness of the findings if they are not supported by any evidence:

110. Brij Nandan Kansal Vs. State of U.P. and another , Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and ors. . Learned counsel also refers to the judgment reported in C.P.Govil Vs. Union of India 1965 DLT 16

111. Learned counsel relied upon the decision of the Supreme Court reported in State of Assam Vs. Mohan Chandra Kalita & another AIR 1972 SC 2535 and Rex Vs. Daya Shankar Jaitly . The position that the inquiry officer to consider the evidence and under adverse findings on matters beyond the scope of the charge the report would become invalid in law.

112. Learned senior counsel referred to the judgment of the Supreme Court reported in S.Partap Singh Vs. State of Punjab . The Supreme Court on any action taken by the administrative for extraneous or collateral purpose would be vitiated on the part of malice. In view of the fact that we have gone into the evidence and have come to the conclusion that is not supported by any evidence. It is not necessary to discuss the case, cited by the learned Sr.counsel for the petitioner in detail.

113. Accordingly, the writ petition stands allowed. The order dated 11.02.1985 passed by the first respondent is set aside and the petitioner is entitled to all the consequential benefits. Relief as prayed for in prayer clause 2 and 3 are not necessary hence they are rejected.

114. The first respondent is directed to pay to the petitioner all the benefits which he is entitled to as per the rules as on the date of the order of suspension i.e. 08.04.1983 upto the date of superannuation. The payment shall be made within a period of three months from today. The petitioner shall be at liberty to apply to the Income Tax department for relief under Section 89 of the Income Tax Act, 1961 and the concerned officer of the Income Tax Department shall pass the order keeping in view the judgement of the Supreme Court in Sundaram Motors Pvt. Ltd. Vs. Ameerjan and another and Sant Raj and another Vs. O.P. Singla and another . There shall be no order as to costs.