Smt. Chandni Luthra vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1823 Del

JUDGMENT

Manju Goel, J.

1. Admit.

2. The petitioner is the Senior Vice President of respondent No. 2, India Tourism Development Corporation ('ITDC' in short). She is challenging in this writ petition a memorandum dated 17.1.2006 issued by Mr. Pradip Kumar, Commissioner of Departmental Inquiries appointed by the ITDC, the charge-sheet dated 2.8.2005 and the appointment of an Inquiry Officer vide order dated 23.8.2005. She is also claiming a mandamus seeking her appointment as interim C&MD of ITDC retrospectively w.e.f. 5.4.2005.

3. The facts leading to the filing of the present writ petition are as under:

Petitioner was the Vice President of the Duty Free Trade Division ('DFT' in short) of ITDC during the period from October, 1998 to May, 2001. At that time the Duty Free Purchase Committee consisted of four members, namely, the petitioner as Vice President (DFT), General Manager (Purchase), General Manager (Business and Development) and General Manager (Finance). A Member of Parliament in June, 2002 sent a complaint to respondent No. 1 alleging misconduct against the petitioner on account of certain over purchase of liquor by the Duty Free Purchase Committee for sale through various Duty Free shops in the country. A CBI inquiry was held. The CBI concluded that there was no proof of pecuniary benefits derived by any member of the Purchase Committee. No financial loss of any kind was attributed to the petitioner. There were, however, certain other observations in the report of the CBI relating to injudicious decisions about purchase. Thereafter a reference was made to the Central Vigilance Commission (CVC in short). The petitioner feeling victimized, submitted certain representations to the CVC. At that time she was awaiting her promotion to the post of C&MD, ITDC. The petitioner alleges that although there was no response from the CVC, the petitioner received a charge-sheet on 2.8.2005 to which the petitioner sent a detailed reply. Thereafter, on 23.8.2005 another order was passed to the effect that there were sufficient grounds to appoint an Inquiry Officer. She was then served with the memorandum dated 17.1.2006 from the Inquiry Officer Mr. Pradip Kumar.

3. The petitioner has listed several grounds for making her prayers. However, at the time of arguments, the following grounds were pressed:

(i) The petitioner was not heard before the charge-sheet was issued to her:

(ii) The charge-sheet was selectively issued to her and not against the other officers and in this manner the action of issuing the charge-sheet and the memorandum were arbitrary:

(iii) She had been already exonerated by the CBI and, therefore, there was no occasion for any charge-sheet:

(iv) The Vigilance advice had been selectively applied against her and others named in the Vigilance advice were not proceeded against:

(v) The charge-sheet had been issued by a person not competent to issue the charge-sheet, being junior to her:

4. No law has been shown requiring a hearing before issuance of a charge-sheet. The petitioner made certain representations to the CVC. The petitioner's counsel says that those representations were required to be heard and disposed of before the charge-sheet could be issued. The course suggested by the petitioner could have been a possible course to proceed in the matter. However, for that reason, the charge-sheet cannot be quashed.

5. So far as the arbitrariness is concerned, the petitioner's allegation is that she has been charge-sheeted whereas the others, who were equally guilty, have not been charge-sheeted. The others who should have been charge-sheeted, according to the petitioner, are one Mr. A.K. Bhargava and Mr. R.Parashar. ITDC in its counter affidavit has said that both Mr. Bhargava and Mr. Parashar were proceeded against in the same manner as the petitioner is being proceeded against. The grouse of the petitioner is that Mr. Bhargava has been given a promotion whereas the petitioner has not been given a promotion. This cannot be a ground for seeking the relief which the petitioner is seeking. Mr. Bhargava, it appears from the counter affidavit, has gone through the procedure of inquiry. The petitioner has obtained an order of stay from this Court against the inquiry on 25.1.2006 and, therefore, the proceedings in the inquiry are held up on account of her own request. So far as the plea that the advice of the Vigilance is being selectively used against her is concerned, it can be said that the report of the Vigilance has not been placed before the Court. No plea on the basis of this report can be raised by the petitioner.

6. So far as the petitioner's plea of having been exonerated by the CBI is concerned, the same can be examined only with reference to the CBI report. The petitioner's plea that she has been exonerated altogether is not correct. The report placed in the file as Annexure-A to the writ petition shows how orders were placed for purchase of various liquor items without examining the trends in the market which resulted in piling up of stocks and shortage of accommodation.

7. Some of the observations of the CBI that have gone against the petitioner are as under:

(a) The Blue Nun sparkling wine was a new introduction and no test marketing was done for Mumbai which was in contravention to the ITDC Manual and as a result 9081 bottles were found lying unsold as on 4.10.2002.

(b) The aforesaid procurement of Blue Nun Sparking wine and the Gift packs were made without conducting the requisite test trial in contravention of Section 8, para-3 of ITDC DFT Manual.

(c) The purchase order was split up in order to bring the value of the purchase order within the financial power of the Vice President, ITDC.

(d) The stock of Jack Daniel Whisky were not uniformly distributed.

(e) In the matter of procurement of Old Mull Whisky the petitioner approved two proposals against the sale trends.

8. The CBI concluded that a huge quantity of foreign liquor were purchased against the sale trends and that such purchases were "injudicious". In the final paragraph, the CBI submitted that the action, as deemed fit, may be initiated.

9. Thus, the petitioner cannot say that she was fully exonerated and, therefore, no charge-sheet could be issued to her. In fact, the statement of articles of charge framed against the petitioner only shows that these were the very allegations on which the charge-sheet was based.

10. Coming to the question of competence of the officer issuing charge-sheet, it is found that the memorandum placed on the record by the respondent is signed by Mr. M.S. Manchanda, Chairman and Managing Director. It is not disputed that the Chairman and Managing Director can issue the statement of charges. Even if he had held the post temporarily, that would not mean that he could not have issued the statement of memorandum of charges.

11. Thus, on facts itself the petitioner is unable to show that there is any ground for her for getting the charge-sheet or the inquiry quashed. Respondent's counsel has cited a few judgments to bring-forth the plea that the Court should not interfere with the disciplinary proceedings at such a preliminary stage. In Dy. Inspector General of Police v. K.S. Swaminathan the Supreme Court held that examining the correctness of charges at the stage of charge was beyond judicial review and all that the Court could see was whether the statement of facts and material supplied to the delinquent discloses the alleged misconduct. In the case of Union of India v. Ashok Kacker 1995 SCC (L and S) 374 it was held that an application to challenge a charge-sheet without inquiry and action of the disciplinary authority was premature. The Supreme Court opined that the charged officer has full opportunity to reply to the charge-sheet and to raise all points available to him during an inquiry that follows the charge-sheet and that it was wrong on the part of the Administrative Tribunal to entertain an application for quashing the charge-sheet. In Union of India v. Upendra Singh it was further held that it was wrong on the part of the Administrative Tribunal to interfere at an interlocutory stage when an inquiry was in contemplation.

12. By now it is a settlement principle of law that the court should be slow in interfering with a proposed disciplinary action at the stage of inquiry. This is not the function of this Court to hold that the charges are false or frivolous even before an inquiry into the charges has taken place. The petitioner is fully entitled to respond to the charge-sheet which she has already done. It is only in the inquiry that the charges can be proved or disproved. At this stage, there is nothing on the basis of which the charges can be said to be frivolous or incorrect.

13. The petitioner has also asked for promotion with retrospective effect. Petitioner has pleaded in the writ petition that she could have been promoted pending the disciplinary proceedings. It will not be fair on the part of the petitioner to ask for a stay in the inquiry and at the same time ask for promotion pending the inquiry.

14. In all fairness, the petitioner should participate in the inquiry and seek a promotion only when she is so exonerated. The case of Union of India and Ors. v. K.V. Jankiraman and Ors. has been cited by the petitioner's counsel. If the petitioner wants to take the benefit of the case of Janakiraman and Ors. (supra), she must go through the inquiry.

15. In view of the above, no relief in the writ petition can be given to the petitioner. Hence, the petition is dismissed. All pending applications stand disposed of accordingly.