Rajinder Prasad Kansal vs Lt. Governor Of Delhi And Ors.
2006 Latest Caselaw 2199 Del

JUDGMENT

J.M. Malik, J.

1. The petitioner was working as Deputy Registrar in Netaji Subhash Institute of Technology(to be referred as NSIT henceforth). He used to follow and implement the orders and policy decisions made by the Board of Governors(in short BOG) and General Council. In 2002 one Shri R.A. Agarwala was selected for appointment to the post of Prof. (Electronics) in the NSIT. The petitioner was not involved in the process of selection of said Prof. R.A. Agarwala. BOG and the Competent Authority had finalised the selection of appointment of Prof. R.A. Agarwala on the terms and conditions decided by the BOG. Sh. D.S. Nijjar, respondent No. 6, the then Joint Secretary, used to deal with all the files of administrative matters involving selection and appointment of the staff. D.S. Nijjar used to put various queries to the NSIT, raised certain objections and express his own opinions on the decisions arrived at by the Competent Authority i.e. BOG D.S. Nijjar was also instrumental and had played a leading role in all the important affairs of NSIT and appointment of Dr. Agarwala. He was present in the 23rd / 24th meetings of BOG which had considered the case of the appointment of Dr. Agarwala.

2. On 17th December, 2004 a memorandum was issued to the petitioner informing him that BOG proposed to hold an inquiry against him under Rule 14 of CCS(CCA) Rules, 1965. The said inquiry was in respect of issuing offer of appointment to Prof. R.A. Agarwala. The petitioner filed the reply on 17.03.2005. Sh. D.S. Nijjar, who was working as DIG(Prisons), Central Jail, Tihar, Hari Nagar was appointed as inquiry officer. It is alleged that he was appointed inquiry officer by the Directorate, which fully knew that Sh. Nijjar had been part and parcel of the decision making process and was present in the 23rd / 24th meetings of the BOG, wherein the case of appointment of Prof. Agarwala was considered. Request was made to change D.S. Nijjar but the needful was not done. On the contrary, the petitioner was directed to appear before him for a preliminary hearing on 25.04.2005 in Tihar Jail Complex. Prof. R.A. Agarwala superannuated in April 2006 at the age of 62 years from NSIT without any dispute and the above said inquiry was conducted six months after his retirement.

3. The petitioner has enumerated the following grounds in support of his case. It is pointed out that inquiry is illegal and in violation of principles of natural justice. Sh. D.S. Nijjar has been working in cahoots with the department for the last several years. He himself is a witness to the proceedings of the 23rd and 24th meetings of BOG. Mr. Nijjar was instrumental in the appointment of Prof. Agarwala and the department should proceed against Sh. D.S. Nijjar himself if they develop a notion that the appointment of Prof. Agarwala was improper or wrong. The allegation against the petitioner is that he had issued the offer of appointment to Prof. Agarwala in implementation of orders of the then BOG headed by the Chairman. The decision arrived by an earlier BOG cannot be overruled or changed by a successive BOG. Sh. D.S. Nijjar is working in the pay scale of 12,000-18,000, which is also the pay scale of the petitioner and hence the inquiring authority is not of a higher rank than the petitioner. A man cannot be a Judge in his own cause, because order of implementation of Prof. R.A. Agarwala was arrived at in the presence of Sh. Nijjar. The petitioner is being forced to appear before the inquiry authority in Tihar Jail, which is full of criminals and would not be a suitable place for conducting a departmental inquiry. It was, therefore, prayed that order dated 17.03.2005 appointing Sh. D.S.Nijjar as enquiry authority be quashed and memorandum dated 17.12.2004 / 22.12.2004 along with the statement of Article of Charge, Statement of Imputation of Misconduct being illegal be quashed. Lastly, CCS(CCA) Rules, 1965 are not applicable to the employees of NSIT, which is a registered society under Societies Registration Act, 1961.

4. The respondent has contested this petition.

5. I have heard the counsel for the parties. The learned Counsel for the petitioner vehemently argued that the petitioner has acted as per his duty, as per the decision of the BOG and the Selection Committee. The attention of the Court was invited towards authorities reported in Union of India v. K.K. Dhawan , Zunjarao Bhikaji Nagarkar v. Union of India , State of Punjab v. Ex. Ct. Ram Singh , Province of Bombay v. Khushaldas S Advani , Indian National Congress(I) v. Institute of Social Welfare , wherein it was held that acts performed in discharge of official duties cannot be a misconduct. It may constitute an error or negligence, but it cannot be made a basis of the chargesheet against the petitioner.

6. After mulling over the record and the above said authorities, I find no force in this argument. The petitioner was posted as Deputy Registrar. Prof. R.A. Agarwala was reemployed as Prof. in Division of Electronics and Communicating Engineering in the pay scale of 16,400-24,400 w.e.f. 31.05.2002. The knotty question involved hereinwith is whether an employee can be given reemployment. The petitioner was duty bound to see to it that whatever offer of appointment which was being made, was permissible in law or not. However, this problem must be investigated down to the ground. It is too early to speak one's piece on this matter. All the defenses are open to the petitioner. It cannot be said at this stage at which way the wind will blow. In an authority reported in Rt. Rev. B.P. Sugandhar Bishop in Medak v. D. Dorothy Dayasheela Ebeneser , it was held:

The Division Bench of the High Court could not quash the preliminary enquiry particularly when the management had made it clear, by the time the Division Bench disposed of the appeal, that the formal enquiry was yet to be held. The purpose of constituting the Commission of Enquiry was to hold only a preliminary enquiry to ascertain whether there was some truth in the complaints made against Respondent and whether there was enough material on the basis of which misconduct of Respondent 1 could be proved. The Division Bench failed to appreciate that at that stage no formal charge was required to be framed nor even participation by Respondent 1 was necessary. The Executive Committee had only broadly indicated to the Commission of Enquiry the nature and scope of the enquiry which they had to make and a copy of the terms of reference was served upon Respondent 1 only to enable her to put forward her explanation so that that also could be considered along with the report of the Commission of Enquiry before taking a decision as to whether a full-fledged regular enquiry was required to be made against her. There was hardly any role for the court to play at that stage. The learned Single Judge had rightly dismissed the writ petition as premature and it was not proper for the Division Bench to set aside that order and quash the constitution of the Commission of Enquiry and holding of a preliminary enquiry. It should have been appreciated that it was futile to pass such an order as the Executive Committee had already taken a decision by that time to hold a regular full-fledged enquiry and appointed an Enquiry Officer for that purpose.

The inquiry officer will find out whether it is a case of misconduct or error or negligence.

7. It was also submitted by the counsel for the petitioner that for the reasons detailed above, Sh. D.S. Nijjar should not hold the present inquiry. It was also argued that the petitioner may at one point of time may like to cite and summon Sh. D.S. Nijjar as a witness if the departmental inquiry proceeds.

8. This argument does not hold. The petitioner has failed to prove that Sh. D.S. Nijjar was instrumental in the decision of appointment of Prof. R.A. Agarwala. His presence in the body, which approved the appointment of Agarwala, does not stand proved. The decision of appointment of Prof. R.A. Agarwala was taken on 23rd meeting. Sh. D.S. Nijjar was not present on that day. In the 23rd meeting the BOG approved the agenda at Serial No. 19, which dealt with the appointment of Prof. R.A. Agarwala as Professor in Division of ECE at NSIT and constitution of the screening committee to adjudge his suitability for the post. It was the Chairman, BOG, who had taken action with respect to appointment of Prof. R.A. Agarwala and actual action was approved in the BOG 23rd meeting. In 24th meeting, Mr. D.S. Nijjar as Joint Secretary(TandTE) Govt. of NCT of Delhi and Ranbeer Singh, Additional Secretary Finance were present. They had attended the meeting but they did not have right to vote in the BOG. The BOG on 24th meeting first confirmed the minutes of 23rd meeting and then considered the letter of Sh. D.S. Nijjar dated 03.06.2002 with respect to enhancement of age of faculty members from 60 to 62 years and implementation of All India Council for Technical Education pay package. Both the issues are with respect to the faculty members where Shri D.S. Nijjar had presented the Government view to the BOG. Sh. D.S. Nijjar expressed some doubts on behalf of the Government with respect to the above said two issues and therefore no bias can be attributed to him.

9. In Major Suresh Chand Mehra v. defense Secretary, Union of India and Ors. , it was observed:

15. It was finally urged by Capt. Virendra Kumar that the entire proceedings held to award the punishment of severe reprimand, were bad in law because of mala fides. We find that this contention is totally baseless. In the petition the only allegation made is that it was the political clout of respondent 2 that led to the trial of the petitioner and the award of punishment to him. The petitioner, however, has failed to set out the nature of the political clout. The facts on the basis of which one could conclude that there was such a political clout, are nowhere to be found in the petition nor is there any allegation as to who were the persons connected with the inquiry on whom the said political clout operated. The allegation of mala fide appears to be totally without foundation and vague. As often observed, an allegation of mala fides can be easily made but it is difficult to prove. In our opinion, no investigation is called for into the allegation of mala fides made by the petitioner.

Sh. D.S. Nijjar is connected with the above said department. The above said department cannot disown him. Somebody connected with the department has to conduct the inquiry. Inquiry officer is not supposed to come from outside the department. The official views expressed by an officer cannot be equated with his personal views.

10. However, I find considerable force in the argument urged by the learned Counsel for the petitioner that the inquiry should not be held in Tihar Jail Complex. The learned Counsel for the respondent has pointed out that at present Mr. D.S. Nijjar is posted as General Manager, DTDC and no inquiry is to be held at Tihar jail. I hereby direct that no such like inquiry, whatsoever, should be conducted ever in the Tihar Jail. The prayer made by the petitioner in this context stands accepted.

11. The learned Counsel for the petitioner also argued that CCS(CCA) Rules are not applicable to the employees of NSIT. It was pointed out that BOG had decided vide order issued on 08.08.1999 that the service rules and other rules would apply to the employees of NSIT.

12. This is indeed a side show and not the heart of the problem. The petitioner himself has produced order dated 08.08.1999, which mentions about the service rules and other rules but at the foot of the document it also mentions:

4.7 : RESIDUARY CONDITIONS OF SERVICE

Any matter relating to conditions of service of an employee for which no provision is made in these Service Rules shall be determined by the Board subject to the Rules and Regulations of the Govt. of India.

The respondent's case also finds support from an authority reported in Prof. Vinod Kumar Bansal v. Lt. Governor and Ors. Decided by Hon'ble Mr. Justice S. Ravindra Bhat in W.P.(C) 9950/2005 dated 30.11.2005.

13. In the light of the above discussion, the petition has no merits and the same is, therefore, dismissed.