Shri Triloki Nath, S/O Late Shri ... vs The Delhi Power Company Limited, ...
2002 Latest Caselaw 1569 Del

JUDGMENT

Vijender Jain, J.

1. This writ petition is directed against the issuance of order/memo dated 15.3.2000 issued by the respondent, inter alia, stating respondent's disagreement with the finding of the enquiry officer. Law is well-settled that the disciplinary authority can, if satisfied otherwise, disagree with the funding of the enquiry officer, however, in such eventuality the charged officer has to be given show cause notice so as to enable him to reply to the disciplinary authority.

2. Learned counsel for the petitioner has contended that the Board of the respondent on 22.2.2002 itself made up its mind that the petitioner was to be removed from the service. It was contended that the petitioner's reply to the said memo dated 15.3.2000 was not even considered and the whole purpose of giving a show cause notice or reasonable opportunity was defeated as the decision to remove the petitioner from service had been taken by the Board before the said notice dated 15.3.2000 was issued. It was further contended that petitioner had filed a Civil Writ Petition bearing No. 4487/1999 against the compulsory retirement on the same charges. The petitioner was compulsorily retired pursuant to the order passed by the respondent on 23.7.1999. The said writ petition was disposed of by this court with the following order :-

"Departmental enquiry was held against the petitioner and thereafter he was imposed the penalty of compulsory retirement. The present writ petition challenging the imposition of this penalty has been filed inter alia on the ground that under the Rules of the respondent no such punishment is specified. This very question came up for consideration in CW 5238/99 entitled Budh Singh v. Delhi Vidyut Board and Anr. and Vide judgment dated 15th December, 1999 I took the view that such penalty which was not prescribed in the rules could not be imposed.

When this matter came up for hearing on 2nd February, 2000 in view of the aforesaid decision, counsel for the respondent stated that respondents are reconsidering the matter and may withdraw the impugned order and take appropriate action prescribed under the rules.

Mr. P.K. Saxena; Legal Assistant of Respondent/Delhi Vidyut Board, who is present in the court submits that the Board has withdrawn earlier impugned order dated 21st July, 1999 vide which the petitioner was imposed the penalty to compulsory retirement. he further submits that the Board will take fresh action after sending note of dissent to the petitioner as it has disagreed with the findings of enquiry officer and after giving him opportunity to make the representation.

As the impugned order dated 21st July, 1999 imposing the penalty of compulsory retirement on the petitioner with effect from July 23, 1999 stands withdrawn, the effect of this will be that the petitioner be reinstated in service with consequential benefits. However, the respondent will be at liberty to pass fresh orders in according with law.

Accordingly, writ petition stands disposed of."

3. It is contended by the learned counsel for the petitioner that the said order was passed by this Court on 14.3.2000 and the memo issued on 15.3.2000 was in total disregard to the order passed by this Court as well as to circumvent the order passed by this Court. In this connection, reliance has been paced by the counsel for the petitioner on Shri I.S. Sandhu v. Shri Tajinder Khanna and Anr. Contempt Petition No. 8/19098 in CWP No. 4041/1994 decided on 24.4.1998.

4. Another argument which has been advanced by the learned counsel for the petitioner was that enquiry officer exonerated the petitioner from all charges. In terms of the disciplinary authority Rules governing the service condition of the petitioner, which is at page-219 of the paper book, Rule 4(4) postulates as to when further enquiry can be held. No further enquiry was held against the petitioner, yet petitioner was suspended on 15.3.2000 retrospectively from 21.7.1999.

5. Adverting on the factual position of the matter, counsel for the petitioner has contended that no penalty was imposed on the A.G.M.(A) or Deputy Chief Accountant, who were also instrumental in dealing with the matter. Ms. Acharya has also contended that the appellant authority while exercising its power could not have enhanced the penalty imposed on the petitioner and in support of her contentions has cited Mohd.Ramjan Khan v. UOI and Surjit Ghosh v. Chairman/M.D., UCO Bank .

6. On the other hand, learned counsel for the respondent has contended that memo dated 15.3.2000 was a show cause notice given to the petitioner disagreeing with the view of the enquiry authority and after considering the reply given by the petitioner on 30.5.2000, the respondent's Board imposed penalty of removal and the order removing the petitioner was issued on 20.6.2000. It was contended that a departmental enquiry was conducted against the petitioner on the charges and enquiry officer came to the finding that charge against the petitioner was not proved and Board, considering the fact that the petitioner was responsible for taking into account the external factors in order to give benefit in favor of the consumer, did not agree with the finding of the enquiry officer and proposed the penalty of removal from service. Ms. Bhargava has contended that CWP No. 4487/1999, it was decided by this court, it was observed that respondent was at liberty to pass fresh orders in accordance with law. It was contended that the reply of the petitioner was considered after issuance of the memo dated 15.3.2000 and keeping in view the gravity of misconduct of the petitioner, the Board decided to impose the penalty of removal from service. In support of her contention, counsel for the respondent has cited Board of Management of S.V.T. Educational Institution and Anr. v. A Raghupathy Bhat and Ors. and on the basis of this authority as well as Indian Oil Corporation Ltd. and Anr. v. Ashok Kumar Arora . It was contended on the basis of these authorities that in case of departmental enquiry and finding recorded therein the High Court does not exercise the powers of appellate authority. It was further contended that High Court will not interfere in the cases where it is found that domestic enquiry is not vitiated because of non-observance of principles of natural justice, non-denial of reasonable opportunity or is not based on no evidence or punishment is not totally disproportionate to the proved misconduct of an employee and, therefore, under the provisions of Sub-rule (4) of Rule 4 of the Disciplinary Rules of the respondent, respondent was within their right to suspend the petitioner under Sub-rule (4).

7. I have given my careful consideration to the arguments advanced by the learned counsel appearing for both the parties. In the instant case charges against the petitioner were framed, enquiry officer was appointed and the report of the enquiry officer is from pages 53 to 83 of the paper book. The enquiry officer after discussing in detail the evidence, the relevant material, recommended as under :-

".....

Taking all the analysis as above and due consideration given to all the statements given by the PWs and DWs it is clear that Shri Triloki Nath cannot be held responsible whether in regard to the acceptance of the rent agreement as being taken a valid document on the advice of Legal Cell of DESU or making a reassessment of the bill of Rs. 1,27,497.47 on the basis of the approval accordingly by the Director (EDP). The charges against Shri Triloki Nath are, therefore, not proved beyond all doubts."

8. There is no dispute to the proposition of law that the disciplinary authority can disagree with the finding of the enquiry officer. The Memo, which was issued to the petitioner dated 15.3.2000 was issued in view of the disagreement by the disciplinary authority with the report of the enquiry officer. In normal circumstances this show cause notice could have been construed to be a proper show cause notice issued by the respondent but keeping in view the decision already taken by the respondent on 22.2.2000, which is at page-93 of the paper book, which is to the following effect :-

".....

Keeping in view the aforementioned facts, the board unanimously resolved to hold the charges against Shri Triloki Nath as fully proved in disagreement with the findings of the enquiry officer and that a Show Cause notice to Shri Triloki Nath directing him to show cause as to why he should not be removed compulsorily from service be issued....."

the memo dated 15.3.2000 in aforesaid background was ruse and camouflage of requirement to give show cause notice as on 14.3.2002 it was not stated before the Court that Board has already taken a decision on 22.2.2000 to remove the petitioner from service. This Court in CWP No. 4487/1999 had directed the respondent that the petitioner was to be reinstated in service with consequential benefits. No order has been placed by the respondent reinstating the petitioner in service with consequential benefits. On 14.3.2000 the prayer of the petitioner was allowed and liberty was granted to the respondent to pass fresh orders in accordance with law. The respondent has, without first reinstating the petitioner with consequential benefits, clamped upon the petitioner memo dated 15.3.2000.

9. It is the admitted case of the parties that after initiation of the enquiry from 1995 till 1999 the petitioner was never placed under suspension. If the petitioner was not placed under suspension when the enquiry was conducted, why after the writ petition was disposed of by this Court on the very next day the petitioner was placed under suspension. I do not see any force in the arguments of the learned counsel for the respondent that Rule 4(4) of the Disciplinary Rules of the respondent permits them to place a person, like the petitioner, under suspension. Sub-rule (4) of Rule 4 is to the following effect :-

"Where as penalty of dismissal, removal or compulsory retirement from service imposed upon an officer or other employee is set aside or declared or rendered void in consequent of or by a decision of a court of law and the disciplinary authority on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, such officer or employee shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further order."

10. The aforesaid rule postulates further enquiry and suspension of the delinquent officer. In the case before hand, no further enquiry has been held by the respondent. Therefore, reliance placed by the respondent on sub-rule 4 of Rule 4 of the Disciplinary Rules is mis-placed.

11. It was argued by the counsel appearing for the petitioner that the memo dated 15.3.2000 had taken into consideration the affidavit of consumer, however, no copy of the said affidavit was given either at the time of enquiry to the petitioner no the same was subsequently sent to him at the time of issuance of memo dated 15.3.2000. Though, at the time of arguments it was argued by Ms. Anita Bhargava that copy of the suit filed by the consumer was relied upon document, that was supplied to the petitioner. I perused through the same but I do not find any affidavit in the suit. If the relied upon suit was the basis of passing the impugned order then why affidavit was used as the basis in the absence of any affidavit. To my mind, copy of the affidavit on which reliance has been placed by the disciplinary authority as well as the Board in its meeting held on 22.2.2000, ought to have been supplied to the petitioner. Supreme Court in Yoginath D. Bagde, v. State of Maharashtra and Anr. held :-

"Where the Rules in regard to giving opportunity to officer are silent and the Disciplinary Authority also does not give an opportunity of hearing to the delinquent officer and records findings, different from those of the Inquiring Authority that the charges against the officer were established, "an opportunity of hearing" may have to read into the Rule by which the procedure for dealing with the Inquiring authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be 'not guilty' by the Inquiring Authority, is found 'guilty' without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded. In such a case, the Rule does not specifically provide that before recording its own findings, the Disciplinary Authority will give an opportunity of hearing to a delinquent officer. But the requirement of "hearing" on consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with. This is in consonance with the requirement of Article 3119(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution."

12. When the disciplinary authority disagreed with the finding recorded by the enquiry officer in favor of the charged officer and came to the conclusion that the charges against the officer were proved, the bias as portrayed in view of the decision already taken by the disciplinary authority on 22.2.2000 would indicate that the delinquent officer was not given a proper opportunity to indicate that the finding recorded by the enquiry officer do not suffer from any error and that there was no occasion for the disciplinary authority to take a different view.

13. Law is well settled that when the enquiry is conducted by the enquiry officer, its report is not final or conclusive and disciplinary proceedings do not stand concluded. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by it. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, opportunity of hearing has to be granted. It is all the more iniquitous where the charged officer succeeds before the enquiry officer, the disciplinary authority must provide all the relevant documents on the basis of which disciplinary authority has disagreed with the report of the enquiry officer. Non-supply of the affidavit which was the only reasons of differing with the report of the enquiry officer to the charged officer, in my mind, vitiates the decision of disciplinary authority.

14. As a matter of fact, in this case it was the statement made by the respondent themselves before this Court in CWP No. 4487/1999 that penalty of compulsory retirement was not a notified penalty and the same could not have been imposed and that is why that order retiring the petitioner compulsorily was withdrawn. In this case the enquiry has already been concluded way back in March'1998, which was started in the year 1995. The opportunity granted to the petitioner, in view of the mind having already been made up by the respondent, was sham and illusory. The order passed by the respondent terminating the services of the petitioner dated 20.6.2000 cannot, therefore, stand the scrutiny of law and the same is hereby quashed. Rule is made absolute. As the petitioner has superannuated on 28.2.2002, no relief in terms of reinstatement can be granted, however, the petitioner shall be entitled to all the consequential benefits till the date he has superannuated and all the pensionary benefits thereafter.

15. Petition stands disposed of accordingly.