T.R. Gupta vs Municipal Corporation Of Delhi ...
2005 Latest Caselaw 1295 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The petitioner is aggrieved by orders dated 13th February, 1997 and 18th January, 1999 through which he was dismissed from the services of the respondents (hereafter called 'the MCD'). He has also aggrieved by an order dated 7th October, 2002 by which his representation was turned down.

2. The petitioner was an Executive Engineer working with the MCD. In that capacity, he was officiating as a Superintending Engineer, at the Jhandewalan Workshop. On 20th December, 1995, the petitioner was implicated in a criminal case. The allegation ade against him was that he demanded a bribe/illegal gratification of Rs. 5,000/-. A First Information Report was lodged against the petitioner and he was taken into custody. Subsequently, he was released and placed under suspension.

3. The petitioner's defense was that he was falsely implicated and that the complaint, which led to the case, was in reality addressed against another employee. It is alleged that the real culprit was never investigated or brought to book by the authorities. The order of suspension of 27th December, 1995 was continued by another order dated 4th June, 1996. By the first impugned order dated 13th February, 1997, the petitioner was dismissed from the services in exercise of the power vesting with the MCD o dispense with the requirement of holding an enquiry on the ground that it was not practicable to do so in the circumstances of the case. The power to punish an employee for mis-conduct is contained in Section 95 of the Delhi Municipal Corporation Act. Sub-section (2) mandates that the power can be exercised after due opportunity is given to an employee, to answer to the charges. Proviso (b) to the sub-section, which is identical to the Delhi Municipal Corporation Services (C and A) Regulations, 1959 (The Regulations') reads as follows:

"Where the authority empowered to remove or dismiss an officer or other employee is satisfied for reasons to be recorded in writing that it is not reasonably practricable to follow the procedure in these regulations, the Disciplinary Authority, may, consider the circumstances of the case and pass such orders thereon as deem fit."

4. The disciplinary authority invoked this power, and dispensed with the enquiry. The authority which passed the order of dismissal reasoned as follows:

"The facts and circumstances of the case are such that it would not be reasonably practicable to hold the departmental inquiry against Shri Tuki Ram Gupta, Superintending Engineer (Auto) by adhering to the procedure prescribed in the DMC Service (Control and Appeal) Regulations, 1959, for the obvious reason that during the entire process of departmental proceedings, the complainant and the other witnesses of the department would be put under the fear of threat who would not dare to depose against Shri Tki Ram Gupta, Superintending Engineer (Auto) holding the post of Head of the Department and in the prevailing circumstances conducting of departmental proceedings has virtually become not practicable. It would be extremely difficult for the complainant, registered supplier of the auto parts to MCD and other witnesses to muster enough courage against Shri Tuki Ram Gupta, Superintending Engineer (Auto) due to fear of severe reprisal from him. For this reason, it may not be reasonably practicable to hold a quick and unbiased inquiry against Shri Tuki Ram Gupta, Superintending Engineer (Auto) adhering to the procedure aid down in DMC Service (Control and Appeal) Regulations, 1959, whose act has already indicated criminal propensity on his part."

5. The petitioner appealed to the Lt. Governor against the order. At that stage, he was granted a hearing. The Appellate Authority affirmed the order of the disciplinary authority dismissing the petitioner and dispensing with the requirement of holding in enquiry. The reasoning of the Lt. Governor is found in the following extract of his order:

"I have also gone through the relevant records of the case placed before me and find that Shri Anil Goel, a registered supplier of Auto parts to MCD had sent a complaint against one Shri H.M. Gandhi, A.E. Alleging harassment and demanding money for claring his pending bills. Shri Gandhi had recommended stern action against the firm. On 19.12.1995 when Shri Anil Goel contacted the appellant, he informed that his firm was going to be blacklisted for future supplies and demanded Rs. 5,000/- from him for showing favor for not blacklisting the firm. The appellant finally agreed at an amount of Rs. 4,000/- and directed Shri Anil Goel to pay the bribe money in the evening of 20.12.1995 so that the process of blacklisting the firm could be stopped. As shri Anil Goel did not want to pay the bribe to the appellant, he lodged a written complaint with the Anti-corruption Branch of the CBI. However, on 20.12.1995, the complainant could arrange Rs. 2,000/- only. The appellant told Shri Anil Goel that he should pay the balance amount of Rs.2,000/- very soon and only then he would see that his firm was not blacklisted. It is on record that the appellant received the bribe money through his right hand and after counting the tainted G.C. Notes kept the same in the back pocket of his pant, which was recovered by the trap team in the presence of independent witnesses. From the material available on record, the demand and acceptance of bribe money stand proved beyond any shadow of doubt."

6. The petitioner was subsequently acquitted in the criminal proceedings on 8th February, 2002. The order acquitting the petitioner gave him the benefit of doubt. However, reliance has been placed on certain observations in the body of the judgment, to say that there was no evidence connected the demand with the petitioner.

7. Mr. M.N. Krishnamani, Learned senior counsel for the petitioner submits that impugned orders are not sustainable in law. It is submitted that the fundamental principle of law is that no-one can be condemned un-heard and that the facts this case did no warrant exercise of power under Regulation 9 to dispense with an enquiry. It was submitted that if the reasoning of the authorities were to be affirmed, no senior official can never be proceeded with in a normal enquiry and would have to be saddled with a penal order without being heard or without being afforded an opportunity to present his defense. Learned counsel also submitted that the petitioner was not even granted the opportunity of notice to explain his case; the authorities straightway proceed to determine that it was not practicable to hold an enquiry and passed the impugned orders of dismissal.

8. Mr. Kewal Singh Ahuja, learned counsel for the respondent MCD, supported the impugned orders. He stated that the nature of the position or post held by the petitioner, namely, an In-charge Superintending Engineer in Auto Parts was such that the complainant, an Auto Dealer, and other witnesses would not have come forward and deposed independently. The Petitioner was in a position to dominate and influence the course of the enquiry proceedings. It was also submitted that the authorities could have taken action and dispensed with the petitioner's service since has been in custody and remained there 48 hours, but nevertheless it was deemed appropriate by the department to proceed and pass the impugned orders. It was also submitted that the requirement of the regulation did not contemplate a show cause notice and the procedure contemplated, though exceptional, was one that did not admit of a show cause notice, reply and further consideration. It was also submitted that the subsequent acquittal of the petitioner did not alter the legality of the original order of dismissal. The acquittal was not honourable, and the petitioner was granted benefit of doubt by the criminal court.

9. There is no dispute about the facts of this case. The petitioner was admittedly charged with having committed certain offences; a First Information Report (FIR) was lodged and he had to stand trial. During the course of those criminal proceedings, the petitioner was placed under suspension and eventually, the MCD passed the impugned orders dismissing him from the service. The question that arises, therefore, is whether the procedure adopted in the present case, namely, in not holding an enquiry but dismissing the petitioner on the basis of allegations deemed to be sufficient material, is justified in law.

10. It is too well settled that every action of an administrative or executive authority which visits adverse or evil consequences upon a citizen or any person has to be preceded by rules of natural justice or at least fair procedure. This more so in cases where an employee's services are sought to be terminated. Elaborate rules mandating the procedure, regarding the holding of an enquiry enabling employees to present their case in a fair manner, giving them sufficient opportunity to depose in the proceedings, and cross examine witnesses deposing against them, present arguments to persuade the authority that they are innocent, are prescribed in number of rules and regulations governing the issue. A small area has been carved out to cater to exceptional cases i.e where the nature of charge is either so sensitive or public interest warrants that an enquiry would not be either practicable or would lead to unfair results. One such instance has been dealt with by Constitution Bench Judgment in Union of India v. Tulsi Ram Patel . In that case, the Court was concerned with the interpretation of Article 311 of the Constitution of India which empowers the competent authority to dispense with an enquiry if it was deemed to be not reasonably practicable to hold it. It was held as follows:

"The condition precedent for the application of Clause (b) is the satisfaction of the disciplinary authority that 'it is not reasonably practicable to hold' the inquiry contemplated by Clause (2) of Article 311. What is pertinent to note is that the words used are 'not reasonably practicable' and not 'impracticable'. According to the Oxford English Dictionary 'practicable' means 'Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible. 'Webster' Third New International Dictionary defines the word 'practicable' inter alia as meaning 'possible to practice or perform : capable of being put into practice, done or accomplished: feasible'. Further, the words used are not 'not practicable' but 'not reasonably practicable'. Webster' Third New International Dictionary defines the word 'reasonably' as 'in a reasonable manner: to a fairly sufficient extent'. Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by Clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would note reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevet them from doing so or where the government servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that Clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and mist fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty."

11. The principles enunciated in Tulsi Ram were applied in several other subsequent judgments; the Supreme Court tested the assertion of employers wherever made about the reasonable impracticability to hold an enquiry, and when found wanting, or unwarrated, set aside the order of dismissal. In the case reported as Jaswant Singh v. State of Punjab, it was held as follows:

"The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."

12. In the case of Chief Security Officer v. Singasan Rabi Das, , the Supreme Court held as follows:

"In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witnesss of the security/other railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view there reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal wintesses and they could not be said to be placed in and delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. In this view it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result the appeal fails and is dismissed."

13. The obligation to follow an objective standard, in dispensing with the requirement of holding an enquiry, and dismissing an employee, was reiterated in the recent decision of the Supreme Court in Indian Rly. Construction Co. Ltd. v. Ajay Kumar,(2003)SCC 579, in the following manner:

"11. It is not in dispute that under the Indian Railway Construction Co. Ltd. (Conduct, Discipline and Appeal) Rules, 1981 (hereinafter referred to as 'the Rules') the disciplinary authority could dispense with an enquiry. Reasons are to be recorded in writing and the authority is to be satisfied that it is not reasonably practicable to hold an enquiry in the manner prescribed in the Rules. Rule 30 reads as follows:

"30. Special procedure in certain cases. Notwithstanding anything contained in Rule 25 or 26 or 27, the disciplinary authority may impose any of the penalties specified in Rule 23 in any of the following circumstances:

(i) * * *

(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these Rules.

It is also not in dispute that one of the penalties specified in Rule 23 is dismissal from service.

12. It is fairly well settled that the power to dismiss an employee by dispensing with an enquiry is not to be exercised so as to circumvent the prescribed rules. The satisfaction as to whether the facts exist to justify dispensing with enquiry has to be of the disciplinary authority. Where two views are possible as to whether holding of an enquiry would have been proper or not, it would not be within the domain of the court to substitute its view for that of the disciplinary authority as if the court is sitting as an appellate authority over the disciplinary authority. The contemporaneous circumstances can be duly taken note of in arriving at a decision whether to dispense with an enquiry or not. What the High Court was required to do was to see whether there was any scope for judicial review of the disciplinary authority's order dispensing with the enquiry. The focus was required to be on the impracticability or otherwise of holding the enquiry."

14. Regulation 9, (which has been resorted to in this case) in my opinion, falls in line with a provision akin to Article 311 of the Constitution of India. What is to be borne in mind is that the normal rule, where the employee is sought to be dismissed is the holding of an enquiry, and affording fair opportunity; dispensing with an enquiry is an exception which can be resorted to in the most stringent of the circumstances and justified fairly.

15. The submissions in this case by the petitioner are of two fold. First, the orders in question were not preceded by notice. On this, there is no dispute. The respondents position is that no notice was necessary. On this aspect, the law is clear; even where the statute or the rules do not expressly deal with or mandate notice, courts of law always infer an obligation to issue notice followed by fair consideration of the reply or representation. This is supported by the reasoning in Canara Bank and Ors. v. Debasis Das and Ors., , where the Supreme Court held that the concept of natural justice has undergone a great deal of change in recent years and that the nature of duty to be performed under the statute can be implied wherever express consideration mandate any notice and principles of natural justice are not prescribed. The Court held as follows:

"Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed there under. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life."

Therefore, it is far too late in the day for the respondent MCD to contend that notice was not necessary as per the regulation and therefore there was no obligation to grant or issue it to the concerned employee, namely, the petitioner, nor even consider his representation in that regard.

16. The second issue, which arises the meaning of the expression 'not reasonably practicable'. This has to be read along with the obligation of the MCD (in the enacting part of Section 95(2) which is imperative terms) to hold an enquiry in each and every case, as a prelude to penalty or disciplinary order which is contemplated and eventually passed. A consideration that would be valid to conclude that it is 'not reasonably practicable' in one given case may not be valid and justifiable in another case. In other words, there is no absolute standard or yardstick as to what would be reasonably not practicable, to hold an enquiry. Nevertheless, one common principle, or standard which has to be borne in mind, is that an enquiry is the normal rule and the exception would be a situation where the employee can be dismissed without an enquiry. Practicable has, therefore, to be construed in the light of that reality. So viewed, the expression 'practicable' would imply that either the witnesses are not available or that the nature of the charge is so sensitive that it would not be in public interest to hold a full-fledged inquiry and that the materials are sufficient to warrant the view to be taken. This requirement ought to be construed in the strictest possible manner where the principles of natural justice are not followed but are dispensed with. If these principles are kept in mind, the view taken by the MCD in my considered opinion cannot be supported in law. This reasoning is supported the judgment in Tulsi Ram's case, and the subsequent application of its ratio in the cases of Jaswant Singh and Singasan Rabi Das, where the Supreme Court has insisted that the mere ipse dixit of the disciplinary authority, on the subject, is not sufficient; there should be objective material to lead to such a conclusion.

17. Apart from the bland reasoning contained in the order of the disciplinary authority that the petitioner held a high or senior position in which it was possible for him to influence the witnesses, there is no recital of any objective material to come to such conclusion; nor it was placed during the course of these proceedings. Even the order does not indicate whether at all any such witnesses expressed apprehension or unwillingness to come forward to depose in a normal enquiry proceeding. Blind acceptance of such a subjective opinion, premised on an unsubstantiated assertion, would lead to startling results, where all senior officials and employeesG(tm) services can be dispensed with if they are charged with similar offences, on the ground that they would potentially influence the witnesses. The appellate order too, merely mirrors that reasoning. The appellate authority, in addition considered certain other materials, which do not appear to have been put to the petitioner. In my considered opinion, rat on ale given for dispensing with an enquiry cannot be supported; it would not measure up to the requirement of the rule that it is not reasonably practicable to hold the enquiry; the order, is thus arbitrary. It is also contrary to Regulation 9(2) under which the respondents MCD were under an obligation to issue a notice in all fairness to the petitioner calling upon him to explain his version. In these circumstances, the impugned order cannot be sustained.

18. In view of the above discussion, the petition is entitled to succeed. The orders dated 13th February, 1997, 18th January, 1999 and 7th October, 2002 are hereby quashed. The MCD is at liberty to consider the materials afresh and pass an appropriate order on the issue of action to be taken against the petitioner. While doing so, the MCD shall also take into consideration the judgment of the criminal court acquitting the petitioner. The MCD shall consider and pass an appropriate order within a period of six weeks from today. dusty.