R.P. Tewari vs Gen. Manager, Indian Oil ...
2000 Latest Caselaw 598 Del

ORDER

A.K. Sikri, J.

1. Petitioner in this writ petition is challenging order of suspension dated 16th March, 1981 enquiry proceedings held thereafter between 8th September, 1982 and 2nd June, 1983 into the charges levelled against the petitioner vide charge-sheet dated 16th March, 1981 and order of termination dated 31st July, 1984. In order to decide the controversy raised in this petition, it is not necessary to state the facts in detail and only relevant facts which were stressed and pointed out by both the parties at the time of arguments are noted below Vide charge-sheet dated 16th March, 1981 allegations against the petitioner related to taking away of two containers, each of 20 litres capacity filled with ATF AV gas from Indian Oil Corporation stock which were found in his car when checked by security staff of air force at sub-guard room while he was taking these containers. Allegations to this effect as mentioned in the charge-sheet read as under:-

"On 12-2-81 you were in General Shift at Palam AFS looking after the AV-1 checks. During your duty hours you had gone of your own to Air Force Technical Area without proper permission and authorsation. You brought two containers of 20 litres capacity each filled with ATF and AV Gas from the I.O.C. stock and carried the same in your car. At about 1715 hours while leaving the Technical Area of Air Force you were checked by the Security staff of Air Force at Sub Guard Room. On their findings two containers of 20 litres capacity each filed with ATF and AV gas in your car, you informed the Security Staff in writing that you were taking these containers, filled with products, for IOC Laboratory. You should have reported this matter to APTM Palam which you did not do. On enquiring about this incident, you admitted bringing two contain ers filled with product and keeping the same through Shri Ashok Kumar, Casual Worker, in the workshop. However, when investigation was made in your presence in the workshop on 24-2-81, it was revealed that instead of 2 containers of 20 litres capacity each filled with ATF and AV Gas, 2 containers of 2 litres capacity each filled with product was found. You have not accounted for 2 containers of 20 litres capacity each filled with ATF and AV Gas brought by you on 12-2-81 from Air Force Technical Area. You had, thus, taken out these two containers unauthorisedly with the intention of stealing the product."

2. Charge-sheet further mentions that in the past also petitioner was ven four charge-sheets for serious lapse of misconduct on which disciplinary proceedings were in progress. Petitioner submitted his reply dated 7th April, 1981 denying all these charges. An enquiry Committee consisting of Shri K.K. Sethi and Shri V.V. Jain was appointed to look into the charges. After the conclusion of the enquiry, Enquiry Committee submitted its report holding that charges stood proved against the petitioner. Petitioner was given show cause notice dated 12th April, 1984 issued by General Manager. Indian Oil corporation as per which it was tentatively decided to remove petitioner from service of the Corporation and he was given an opportunity to show cause against the proposed action. Petitioner submitted his reply dated 9th May, 1984 submitting that enquiry was farce. He challenged con-stitution of the Enquiry Committee and its findings. He also submitted that principles of natural justice were violated as he was not given proper opportunity to defend himself and therefore entire enquiry proceedings were vitiated. However, by order dated 31st July, 1984 petitioner was imposed the punishment of removal from service. Petitioner preferred appeal dated 12th October, 1984 against the same which was also rejected by letter dated 22nd January, 1985. Thereafter, petitioner filed this writ petition.

3. The first argument addressed by learned counsel for the petitioner was that mentioning of earlier charges in the impugned charge-sheet created bias inasmuch as petitioner was painted black by highlighting his previous conduct and this would have influenced the Enquiry Office while conducting the enquiry against the petitioner. I am not impressed by this argument. The Enquiry Officers have confined themselves to the charges which are the subject matter of the impugned charge-sheet and have rendered their findings on the said charge on the basis of material produced on record. The mentioning of the earlier charge-sheet and the punishment imposed therein would have bearing only at the stage when the charge levelled in the impugned charge-sheet is proved and the disciplinary authority has to decide the quantum of punishment because while deciding so the disciplinary authority is within its power to take into consideration the past conduct of the petitioner.

The next contention of the petitioner was that the findings of the Enquiry Officer were perverse and based on "no evidence". He submitted that charge was treated to be proved on the basis of exhibit P-4 before the Enquiry Officer which was an "extract of occurrence". However, only copy was produced and the original occurrence book which contained this particular occurrence was not produced. It was submitted that original document would have shown the genuineness of this document inasmuch as it was petitioner's case that exhibit P-4 was a fabricated document. It was also submitted that the person who recorded this entry was also not produced to prove the authenticities of this document. Another document on which reliance was placed by the Enquiry Officer was exhibit P-3 as per which petitioner had given permission to take out two containers containing ATF AB gas. His submission was that even this document was tampered with inasmuch as in the original document the words were "containing 4 litres" which were changed to "containing 40 litres" and numerical `4' was changed to "40". It was further submitted that there was no report from any quarter about the shortage, no stock register was produced either witnesses made the statement on the basis osf hearsay only and therefore findings recorded by the Enquiry Officers, based on hearsay, were consequently perverse.

4. It was also submitted that the petitioner had infact made request for opinion of hand writing expert on exhibit P-3 for taking the opinion whether '4' and 'O' appearing therein were written at the same time with the same ink and bear the same hand writing. However, this request was arbitrarily rejected by the Inquiry Officer in the hearing held on 23rd June, 1981 on the ground that reference to hand writing expert was not necessary.

5. Rebutting this argument it was submitted by Mr. Jagat Arora, learned counsel for the respondent that the findings of the Inquiry Officer were based on material on record and it could not be said that it was a case of "no evidence". The Inquiry Officer took into consideration the documents produced on record (including exhibit P-3 and P-4) as well as oral testimony of the witnesses. However, it is explained in the counter affidavit that Presiding Officer made all possible efforts to call and produce Cpl. Chahar of air force who was an eye witness in this case before the enquiry but it was impossible to produce him as he was posted to forward area. An extract from the occurrence register of Air Force Station, Palam duly certified by the air force authorities was produced before the inquiry authority through Management witness Shri I.R.K. Murthy, who in his examination-in-Chief in his cross-examination of the petitioner had confirmed that on 12th December, 1981 he met Cpl. Chahar who showed him the occurrence Book when the incident was recorded. This is further confirmed by him that this is the certified true extract of the same occurrence. Book as seen by him. The occurrence book being highly confidential document of Air Force Station, Palam could not be produced before the Enquiry Committee in original.

6. I am staisfied wih the explanation given by the respondents in the counter affidavit. "Extract of occurrence (exhibit P-4) was produced as the air force could not produce the entire occurrence book being a highly confidential document. Accordingly, if certified copy of the extract of occu-rence dated 12th December, 1981 was produced, it was a right course of action being adopted in these circumstances. Petitioner did not suffer any prejudice and was right to cross examine on this document. The authenticity of the document cannot be disputed which was duly certified by the air force authorities. Moreover, in the departmental enquiry strict rules of evidence are not applicable and even hear say evidence is admissible once proper explanation for that is shown (see J.D. Jain Vs. State Bank of India reported in 1982 LTC 356).

7. The contention of the petitioner with respect to exhibit P-3 is also misconceived. His allegation that "4" litres, is changed to "40" litres is belied by exhibit P-4 which is the "extract of occurrence" and as per which petitioner was, caught while he was carrying two plastic containers of 20 litres each which will quantify to 40 litres and not 4 litres. In view of this obvious and concrete position, the Inquiry Officer did not deem it necessary to call for hand writing expert and rightly so. However, the Inquiry Officer in his report, which is a detailed one, has dealt with all the aspects of the case in detail and arrived at the findings that petitioner was found carrying two containers of 20 litres capacity each containing ATF AV gas by the security staff for which he was asked to prepare a gate pass before he was allowed to leave. The relevant portion of the findings of the Inquiry officer may be reproduced below:-

Findings:-

The prosecution case has conclusively proved the following facts:

     1. Shri R.P. Tewari was not on duty at the Air Technical area and      had gone there of his own. 
 

     2.  He  was found to carry two containers of 20  litres  capacity  each containing ATF and AV Gas by the security staff for which he was asked to prepare a gate pass before he was allowed to leave. 
 

     3. A copy of the gate pass produced as exhibit P-3 clearly  indicates that two samples containers of capacity 20 litres have been   taken out. 
 

     4.  The certified true copy of the occurrence Book also  indicates that two samples containers of 20 litres capacity have been taken   out by IOC rep., Shri R.P. Tewari on 12.2.1981. 
 

     5.  The  letter No.3W/C. 1706/1/P4 dated 13/2/1981  from  Station Security  Officer, Air force Station Palam shown as  exhibit  P-2 also  conveys  the fact that two sample containers of  20  litres capacity had been taken out. 
 

     Based on the above facts, it is proved that the containers  taken  out  were of 20 its capacity and not 2 lts capacity as  contended  by the defense. 
 

The defense plea that Shri Tewari brought two containers of two ltrs each and kept them behind the refrigerator is untrue as this was not the appropriate place for keeping samples. In the first place he should not have left his place of duty and gone to the technical area during this duty hours for his personal work. Secondly, he has not proved as to why he did not report about bringing two sample containers to the officer on duty, neither lodged it anywhere. Shri Murthy, was in terminal when Shri Tewari returned from the technical area. Shri Tewari did not feel the necessity of reporting the matter to Shri Murthy on his return from Technical area. As per Shri tewari he informed Shri Murthy on phone the same evening of the occurrence but this fact has not been brought out in the cross-examination of a Shri Murthy by him.

Shri Tewari has stated that there no product stored in the Air-force technical Area by IOC. It is not understood as to why two plastic containers, which are not our normal type of sample containers had been taken out by Shri Tewari on the advise of an outsider (Shri S.K. Sharma, Jr. Warm Officer) who is not connected directly with the sampling work. Moreover, Shri S.K. Sharma, Jr. Warrant, Officer has not appeared as witness on behalf of Air orce but has appeared in his personal capacity.

The containers used for sampling purposes are only of aluminimum. Plastic containers are not being used for sampling purpose, and therefore, this can be construed as having been planted through Shri Ashok Kumar, casual workman to save himself.

By APIM (Maintenance) Shri Verghese and Sh Y. Kumar, Aviation Supdt, who were present at the Palam Airport Terminal did not see Shri Tewari. In case Shri Tewari had come to the Terminal he would have definitely act them.

We have applied our mind on the oral and documentary evidence produced by both the parties and have come to the conclusion that the Charges No.1,3,4,5 have been proved as Shri Tewari left his place of duty without permission and went to the area of occurrence of his own and carried unauthorisedly 2 containers of 20 litres capacity each filled with ATP and AV Gas from the technical area of Air Force. He has abused and misused his official osition as an Aviation supdt, for the above acts.

The charges of theft and misappropriation in connection with the orporation's property is also proved as he had taken two containers of 20 litres capacity each filled with ATF and AV gas but only planted 2 plastic containers of 2 litres capacity each when he came to know that this matter would be reported to the higher authorities. Assuming though not admitting that he has brought the product on Corporation's account from Technical area of Air Force he should have brought two containers of 20 litres capacity ach filled with productes to Palam APS and handed over to the APTM Palam and account for the same but he has not done it. In view of this he had stoles the Product for his own personal use."

8. It cannot be said to be a case of "no evidence" or "perverse findings" nd therefore needs no interference. It is not the function of this Court to sit as appellate authority over the findings recorded by the Inquiry Officer based on material on record. This principle is stated and restated time and again by Apex Court as well as by High Courts following the mandate of Apex Court.

9. It was next contended that the appellate authority, before the petitioner submitted his appeal against the order of disciplinary authorityh was Director (Marketing) as is clear from letter dated September 17, 1984 written by the respondent to the petitioner. However, infact the appellate authority was Managing Director which is clear from the schedule attached to Conduct, Discipline and Appeal Rules, 1980 of Indian Oil Corporation Ltd. Therefore, according to learned counsel for the petitioner, the appeal being decided by Director (Marketing) was not decided by the appropriate authority. In the counter affidavit it is explained that the Director (Marketing) is at the Head Office of the respondent-Corporation at Bombay. s per the Conduct, Discipline and ppeal Rules, 1981 (hereinafter referred to as CDA Rules, for short) the petitioner was supposed to submit his appeal to Director (Marketing) through General Manager, New Delhi whose order was appealed against and General Manager, New Delhi had then to forward the appeal alongwith the record of the case to the appellate authority for consideration. However, the petitioner submitted his appeal directly to Director (Marketing) which was not proper inspite thereof Director (Marketing), the appellate authority considered his appeal and after applying his mind rejected the same. Thus the appeal is infact considered. It was further submitted that in case of the petitioner, appellate authority, is Director (Marketing) and CDA Rules which superseded the Discipline and Appeal rules are meant for officers. In view of this explanation given by the respondent there is no force in this plea of the petitioner either. The appeal was disposed of by the authority who was authorised to do so.

10. It was also contended that although General Manager was the disciplinary authority, in the show cause notice dated 12th April, 1984 the expression used is "we" at various places which shows so that it is not the General Manager alone but more then one person have examined the case and issued the show cause notice. This argument is an argument in despair and it is noted to be rejected. The show cause notice dated 12th April, 1984 is signed by General Manager. Merely because the expression "we" instead of "I" is used in the show cause notice, it may not necessarily lead, to the inference that more than one person have acted as disciplinary authority. It is a matter of common knowledge that such expression are used frequently even by the Courts.

11. The next contention of the petitioner was that the appellate order is a non-speaking and therefore warranted to be set aside on this ground.

12. I had called for records. It transpires that Appellate Authority had first rejected the appeal by order dated 10th January, 1985 which was conveyed to the petitioner by communication dated 21st August, 1985. However, the main representation dated 8th February, 1985 which was again considered by the Appellate Authority was rejected. No doubt no reasons were given in both the orders and it is only stated that the Appellate Authority had carefully considered his appeal. One can normally remand the case back to Appellate Authority for fresh consideration of the petitioner's appeal and disposal by speaking order. However, because of the following two reasons I am not adopting this course of action:-

     (a) The impugned order is of the year 1985 and more than 15 years      have passed in the process; 
 

     (b) A perusal of the appeal filed before the Appellate  Authority  shows that the contentions taken in the said appeal are the  same      as advanced before, me which are considered and rejected in  this  judgment.  
 

13.  In  view of above, no useful purpose would be served in remanding  the e back to the Appellate Authority. This Writ Petition accordingly  fails and is hereby dismissed. Rule stands discharged. 
 

14.  There shall be no order as to costs.