N.K. Tripathi vs Govt. Of Nct Of Delhi And Ors.
2006 Latest Caselaw 1652 Del

JUDGMENT

S. Muralidhar, J.

Page 3078

1. This petition challenges an order dated 3.12.1988 passed by the Director, Delhi Energy Development Agency (DEDA) dismissing the petitioner from service and an order dated 10.12.1999 passed by Respondent No. 3, the Chairman DEDA dismissing the petitioner's departmental appeal against the dismissal order.

Background Facts

2. The petitioner was employed as a demonstrator in Aditya Solar Show Room under the DEDA with effect from 29.3.1993. On 8.8.1996 the petitioner wrote to the Director (E), DEDA a letter which reads as under:

To

The Director (E)

Delhi Energy Development Agency (Govt. of NCT of Delhi) New Delhi-110062

Sub: Requirement of Air Conditioner's at Aditya Solar Shop.

Respected Sir,

Most respectfully I want to invite you kind attention on the above matter.

Regarding the matter I beg to say that 4 Nos of AC's were sanctioned for Aditya Solar Shop. But till date here is only one AC has been installed. It has also heard by some reliable sources that some officers of DEDA using AC in their own residence.

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At Aditya Solar Shop the internal atmosphere is becomes very hot. And consumers just returned back thus our programmes are being affected.

It is therefore, requested you to taken back all the AC's from officers residence. So that AC's may be installed in the Aditya Solar Shop.

Thanking you,

Dated : 08/08/1996

Yours faithfully

Sd/-

(N.K.Tripathi) Demonstrator

3. The Director (E), DEDA appointed the Deputy Director as an Enquiry Officer to ascertain the truth of the allegations made by the petitioner in the abovementioned letter. The Deputy Director submitted a Preliminary Enquiry Report ('hereafter Preliminary Report') in which he noted that the petitioner refused to give any further information about the installation of the air conditioners at the residence of the officers. The Deputy Director found that against the sanction of four air conditioners, only one air conditioner had been purchased. Accordingly, it was concluded that the complaint made by the petitioner was totally vague and based on false assumptions.

4. On 28.11.1996 the petitioner was served with a charge sheet containing the following article of charge:

That Shri N.K.Tripathi, Demonstrator while working at Aditya Solar Show Room at Connaught Place has sent a false complaint on 8.8.96 to Director (E) that out of the 4 AC's sanctioned for Aditya only 1 AC has been installed. He has alleged that some officers are using AC's at their residence these may be taken back and installed at Aditya. By making false allegations against the officers, Shri N.K.Tripathi, Dem by his above act exhibited conduct unbecoming of Govt. Servant. Thereby violating of Rule 3(d)(iii) of the CCS (conduct) Rule 1964 as applicable to the employees of DEDA.

The petitioner was asked to submit his written defense within ten days of the receipt of the charges and also to state whether he wished to be heard in person.

5. On 11.12.1996 the petitioner wrote to the Director, DEDA whereby he demanded a copy of the Preliminary Report and also the statement of witnesses referred to in the list of witnesses annexed as annexure 4 to the charge sheet. The petitioner stated in the said letter the above said documents I am desiring in accordance with the advice of my legal expert whom I have engaged in my matter. This was followed by another letter dated 25.2.1997 where the petitioner informed the Enquiry Officer that he was nominating one Shri S.N.Tripathi, UDC as his defense assistant and demanded that said Shri Tripathi be summoned for the next date of enquiry.

6. The Enquiry Officer gave a report on 6.11.1998. As regards the charge that he had made false allegations against the officers and thereby accepted the conduct unbecoming of a Government servant, the Enquiry Officer held as under:

Charge No 1 is proved on the following grounds:

I Shri Tripathi made the complaint against the officer of DEDA for using the three Air Conditioners mean for Aditya at their residence while these Page 3080 were never purchases till date and hence contention of Shri Tripathi (CO) cannot be accepted.

ii While asking for quoting the name of the officers at whose residence these Air Conditioners were being used Shri Tripathi could not quote the name of the officer and rather failed to produce even a single witness or evidentiary document in support of his allegations. As per his statement it was only on hearsay and as such hearsay is not tenable.

7. The Enquiry Officer also held that the complaint made by the petitioner on 8.8.1996 was found to be false and even during the enquiry he could not produce any witness or document in support of such charge made by him against certain officers.

8. Accepting the report of the Enquiry Officer, the Disciplinary Authority, Respondent No. 4 herein, by an order dated 3.12.1988 dismissed the petitioner from service. On 10.12.1999, Respondent No. 3 dismissed the petitioners departmental appeal.

Submissions of Counsel

9. Shri Pradeep Kumar, learned Counsel for the petitioner submits as under:

(a) The enquiry proceedings were vitiated since the defense witnesses sought to be produced by the petitioner were not summoned by the Enquiry Officer. Even the petitioner was not questioned by the enquiry officer as was mandated by the rules.

(b) The Enquiry Officer ought to have entertained the request of the petitioner for the appointment of a defense assistant and the denial of the same had caused the petitioner severe prejudice. Documents sought for by the petitioner were not supplied.

(c) The order by the Disciplinary Authority is a non-speaking order and therefore, violative of Rules 53(3) and (4) of the (CCS)(CCA) Rules. Likewise, the order of the Appellate Authority is also a non-speaking order.

(d) The enquiry itself was not held in accordance with the law because on 6.10.1998, the petitioner attended the enquiry but the Enquiry Officer was not present. The petitioner was never informed that the next hearing was to be on 26.11.1998. The petitioner has been severely prejudiced on this score because he could not be expected to attend the proceedings unless he was informed of the date of hearing. In the circumstances, the enquiry could not have been concluded on 6.10.1998.

(e) The penalty of dismissal imposed on the petitioner was disproportionate. All that the petitioner was seeking in his complaint of 8.8.1996 was to ensure that there was no misuse of the assets of the Respondent and this had not been appreciated in a proper perspective.

Counsel for the petitioner placed reliance on the decisions in D.I.G., Central Industrial Security Force v. S.K.Ray 1995(1) SLR 133 (Cal); R.P.Bhatt v. Union of India A.T.R 1986 SC 149, Ministry of Finance v. S.B. Ramesh 1998 (1) SC SLJ 417 and Bhagat Ram v. State of H.P. .

Page 3081

10. Mr.Shirish Kumar, learned Counsel appearing for the Respondent on the other hand submitted as under:

(a) There was absolutely no violation of principle of natural justice or any of the Rules in the enquiry proceedings since the petitioner had been given numerous opportunities to adduce evidence and to defend himself. By his own conduct, the petitioner is disentitled to any relief on this score.

(b) The petitioner's initial complaint was proved to be false and even at that stage petitioner refused to co-operate in the enquiry. The petitioner has persisted with his allegations thereafter as well and, therefore, the conduct of the petitioner was unbecoming of a Government servant. It was not possible for the Respondent to retain a person who kept making false allegations against its officers.

(c) The petitioner was given a personal hearing by the Disciplinary Authority. The Appellate Authority also gave him a personal hearing. Therefore, there is no violation in that score. In any event both the orders give the reasons for rejection of the petitioner's contentions.

The counsel for the Respondent relied on the decisions in A Sudhakar v. Post Master General Hyderabad ; V. Ramana v. A.P. SRTC & Ors 2006 SCC ( L&S) 69;TNCS Corpn Ltd. v. K. Meerabai 2006 SCC (L&S) 265; State of UP v. Sheo Shankar Lal Shrivastava; Hombe Gowda Education Trust v. State of Karnataka ; North East Karnataka Road Transport Corpn. v. Ashappa ; State of Punjab v. Ram Singh ; LK Verma v. HMT and Mahindra and Mahindra v. NB Narawade .

The proceedings before the Enquiry Officer

11. This Court examined the record of the enquiry proceedings in order to satisfy itself whether the principal grievance of the petitioner concerning violations of procedure was justified. It appears that at the very first sitting on 25.2.1997, the petitioner was asked by the Enquiry Officer (EO) if he could indicate name of the officers of DEDA in whose house the air conditioners were fitted, as stated by him in his complaint dated 8.8.1996. To this the petitioner replied:

I have no official knowledge about this. I have only heard from the other officials of DEDA and I do not have any evidentiary proof of it.

Page 3082

12. The next relevant date was 12.6.1997 when the Enquiry Officer recorded the request of the petitioner for physical verification of the total air conditioners purchased so as to bring the facts to light. It was recorded that the Presenting Officer agreed to provide the list of all air conditioners by 25.6.1997. Thereafter the enquiry was adjourned to 20.10.1007 and then to 7.11.1997. The record of the proceedings on 7.11.1997 reads as under:

The photocopy of stock position has been handed over to Shri N.K.Tripathi and asked him to come with proper reply on the next meeting scheduled for 25.11.1997 (at 3 pm) for the purpose of argument. Sd/- 7.11.1997

13. On 27.8.1998 the Enquiry Officer again asked petitioner to give any evidentiary document in support of his complaint and recorded the reply of the petitioner as under:

Shri N.K.Tripathi, Demonstrator stated that he has no evidentiary document with him in support of his complaint but it is clear that after the complaint filed by me the three A.C.s which were being utilised at the residence of some powerful officers were shifted immediately at Aditya Solar Shop and they are still installed there till date.

The proceedings thereafter reads as under:

I asked Shri Tripathi as to whether he can name any officer in whose house/residence the A.C.s of DEDA were being utilised.

Shri Tripathi in reply to this question has stated that the he has the name with him but he does not want to disclose it in the interest of Agency.

I asked Shri Tripathi if enquiry goes against him, even than he will not disclose the identity of the officers in whose residence these were installed prior to making the complaint.

Shri Tripathi in his reply told that in case any thing goes against him due to the result of the present enquiry he will disclose the name of the officers in whose residence these systems were installed prior to making the complaint and he will also name the other officers who are still enjoying the facilities of Agency property. Can you give any witness in support of your complaint?

Yes. I can but I will produce the witness and supporting documents with regards to installation of 3 A.C.s which were shifted from the residence of officers of the Agency on the next date i.e on 16.9.1998. Case therefore will be heard on 16.9.1998. Sd/- 27.8.1998

14. At this stage, it must be mentioned that every order passed by the Enquiry Officer in the record sheet bears the initials of the petitioner and the Presenting Officer on the left hand margin thus indicating that each of them has noted the order and also the next date.

Page 3083

15. The proceedings of the Enquiry Officer on 16.9.1998 read as under:

Present:Shri N.K.Tripathi on 16.9.98 and requested for some more time for producing evidentiary documents in support of the complaint made by him. The next date is fixed for 6.10.98 Sd/- 16.9.98

The above proceedings of 16.9.1998 also bear the initials of the petitioner on the left hand margin thus indicating that he was aware of the next date as well. On 6.10.1998 the proceedings of the Enquiry Officer reads as under:

6.10.98 was fixed for hearing on the request of Shri N.K.Tripathi, Demonstrator while he was present on 16.9.98. Till 5.30 pm the undersigned remained in the office but Shri Tripathi did not appear before the Enquiry Officer to defend his case and to produce evidentiary document in support of his complaint made against the officer of DEDA. Since Shri Tripathi did not appear before the undersigned to defend his case, despite sufficient opportunity of being heard in person was given to him, the undersigned left with no alternative but to submit the report and conclude the inquiry.

Shri N.P.Singh was present but due to absence of Shri N.K.Tripathi nothing could be proceeded in the matter. Sd/- 6.10.98

16. Thus it is clear that on 6.10.1998 the petitioner was not present before the Enquiry Officer. In relation to the hearing on 6.10.98, the petitioner states in his writ petition in para 10 as under:

That the petitioner was asked to appear before the Enquiry Officer on 6.10.1998. However, when the petitioner appeared for the enquiry, the Enquiry Officer himself was not present. There was no communication about the next date of hearing.

The petitioner, however, is silent about the steps he took to ascertain the next date of hearing, if indeed he had attended the hearing on 6.10.98 and did not find the Enquiry Officer. This explanation offered by the petitioner for his absence on the next date of hearing on 6.10.1998, does not inspire confidence considering the fact that the petitioner had been attending all the hearings previous to this hearing. The only inference that can be drawn is that the petitioner has been seeking time before the Enquiry Officer repeatedly to produce evidence including the hearing on 16.9.1998 previous to 6.10.1998. Not being able to obtain such documentary evidence or witnesses before the next date, and he possibly chose to stay away.

17. In the above circumstances, this Court is of the considered view that the Enquiry Officer cannot be faulted for proceeding to close the enquiry on 6.10.1998 in the absence of the petitioner. As the record of the enquiry proceedings shows, the petitioner had been given numerous opportunities to produce either his witnesses or the documents and he appears to have made no effort to do so.

Page 3084

18. It is settled law that a violation of the principles of natural justice will vitiate the disciplinary proceedings only where the denial of an opportunity has resulted in prejudice to the person aggrieved [Managing Director ECIL v. B.Karunakar ]. On a conspectus of the above facts, this Court holds that there was no denial of a fair opportunity to the petitioner by the Enquiry Officer. This disposes of the contentions of the petitioner on this score.

Questions of procedure

19. As regards the denial of a defense assistant and the failure to supply the relevant documents, it requires to be noticed that the Respondents do not deny that the petitioner had made such a request. However, at the enquiry, the petitioner does not appear to have insisted on having a defense assistant. If indeed he had taken his defense assistant along, the Enquiry Officer may not have objected to it. There was no need for the Enquiry Officer to summon a defense assistant. The decision in Bhagat Ram v. State of Himachal (supra) relied upon by the counsel for the petitioner, turns on its own facts and does not have any application in the instant case.

20. Even as regards the summoning of the defense witnesses, the enquiry proceedings do not show that the petitioner made such a request which was turned down by the Enquiry Officer. The petitioner could have easily brought his witnesses along and if such witnesses were then not permitted to be examined, the petitioner would have had a legitimate grievance on this score. The Enquiry Officer in disciplinary proceedings is not expected to invariably issue summons to witnesses. It is always open to the charged official to bring his witnesses along. In S.C.Girotra v. United Commercial Bank 1996 (I) LLJ 10 (para 4) it was held that where the charged officer failed to specify the names of the officers whom he wanted to examine at the inquiry, he could not be heard to make a grievance on that score later. In this connection a reference may also be made to the decision in V.K.Gopal v. H.M.T Ltd. 1994 Lab IC 2310 (Kar.) (paras 21 and 27). Therefore, there is no merit in this submission as well.

21. As regards the production of additional documents, the enquiry proceedings reveal that the documents demanded by the petitioner were in fact, given to him. Further, if the stock register produced by the Management was sufficient to demonstrate that the petitioner had made a false complaint, which is what he was charged with, then the petitioner cannot possibly insist that further evidence by way of witnesses for the Management ought to be produced. It is for the Enquiry Officer to decide if the evidence produced before him was sufficient to bring home the charge. It does appear that the documents produced before the Enquiry Officer were sufficient for that purpose. Therefore, even this grievance is without basis. Where the petitioner has chosen to stay away from the Enquiry for no valid reason, as discussed Page 3085 hereinabove, he cannot be heard to say that the Enquiry officer should have questioned him on the circumstances appearing against him. That occasion did not arise because the petitioner was not present at the hearing on 6.10.1998 when the Enquiry Officer proceeded to close the enquiry.

22. For all the above reasons, there is no merit in the submissions of the petitioner that the disciplinary proceedings in the instant case stood vitiated on account of procedural irregularities.

Copy of Enquiry Report not furnished to the petitioner?

23. The petitioner then submitted that the report of the Enquiry Officer was not given to him by the Disciplinary Authority and he was not given an opportunity to make representation in terms of Rule 15(2) of the CCS (CCA) Rules. However, in para 13 of the writ petition the petitioner himself has stated that vide memo dated 11.11.1998, the Respondent No. 4 supplied a copy of the Enquiry Report to the petitioner asking him to make his representation if any, against the findings of the Enquiry Officer. And it is further stated in para 14 that the petitioner made his representation thereto on 26.11.1998. Therefore, this ground is entirely without basis.

Speaking Orders

24. The petitioner's submission that the Disciplinary Authority's order is non-speaking, is also not correct. The relevant portion of the order of Disciplinary Authority reads as under:

And whereas, the undersigned has carefully looked into the whole case and has also gone through the charges framed against Shri N.K.Tripathi, Demonstrator, the Enquiry Report received from Shri Y.P.Munjal, Enquiry Officer, on 9.11.1998 and the reply received from Shri N.K.Tripathi, Demonstrator, in response to the memo dated 11.11.1998 and also given an opportunity of personal hearing on 2.12.98 to Shri N.K.Tripathi, Demonstrator.

Now, therefore,in exercise of the powers conferred under CCS (CCA) Rules, 1965, the undersigned hereby imposes the penalty of dismissal from service which shall ordinarily be a disqualification for future employment under the Govt on Shri N.K.Tripathi, Demonstrator.

This order will be effective with immediate effect.

25. Likewise, the Appellate Authority also has in his order dated 10.12.1999 observed as under:

AND WHEREAS this case has come up before the undersigned as the Appellate Authority, I have gone through the charge sheet IO's findings, order of Disciplinary Authority dated 3.12.1998, relevant case record and representation of Shri N.K.Tripathi, Demonstrator. Also Shri N.K.Tripathi has been heard in person by me. It is observed that Shri N.K.Tripathi has neither given any fresh point in his representation nor submitted any documentary evidence in support of his contention which is based of hearsay. Since charge against the official is proved beyond the doubt in making of false complaint during the inquiry, I do not find any reason to disagree with the order of Disciplinary Authority dated 3.12.1998, whereby penalty of dismissal has been Page 3086 imposed upon Shri N.K.Tripathi. Therefore, I reject his appeal herewith and order accordingly.

26. It is again fairly well settled that where neither the Disciplinary Authority nor the Appellate Authority differ with the Enquiry Officer, they need not give elaborate reasons for their concurring orders. Therefore, there is no basis in the submissions of the petitioner on this score.

Disproportionate punishment?

27. Finally, the petitioner submits that the punishment awarded is disproportionate. The enquiry against the petitioner resulted from the petitioners written complaint dated 8.8.1996 which talked only about the misuse of certain air conditioners by the officers of DEDA. The petitioner, who also happened to be an office bearer of the employees union, filed a separate writ petition in this Court seeking a CBI investigation into the irregularities and the said writ petition was dismissed. It is submitted that even if it is assumed that a charge of making a false complaint is proved against the petitioner, the punishment of dismissal from service is indeed disproportionate and in violation of the principles laid down by Hon'ble Supreme Court in this regard. Learned Counsel for the Respondent, on the other hand, insisted that making of a false complaint against the officers was a gross act of indiscipline which warranted the most severe punishment.

28. On the conspectus of the law laid down by the Hon'ble Supreme Court, the scope of judicial review of the punishment awarded is indeed limited. A reference may be made to the decision in Union of India v. B.C.Chaturvedi (1995) 6 SCC 497 where it was held (SCC p. 762 para 18)

18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof

This view has been reiterated in the later decisions in Union of India v. G.Ganayutham and Om Kumar v. Union of India (2001) 2 SCC 386.

29. Turning to the facts of the present case, it may first be noticed that this is not a case where the charged official has been held guilty of any financial irregularity or any act involving moral turpitude. The noting on the file in Page 3087 regard to the award of punishment by the Disciplinary Authority reads as under:

Even otherwise the Service record of the official is tainted. He has in the past been punished with minor penalty for using extremely abusive and filthy language on a file in connection with the life partner (wife) of the Junior Accounts Officer.

Keeping in view the enquiry report, which is judicious and the past record of the official, I feel that justice can be served only by awarding the penalty of dismissal from service, which shall ordinarily be a disqualification for further employment under the Govt. This order will be with immediate effect. F.C. Of order be put up.

30. The above note on the file by the Disciplinary Authority refers to one incident in the past where the petitioner had been awarded a minor penalty for using extremely abusive and filthy language on a file in connection with the life partner (wife) of the Junior Accounts Officer. It appears from the record that this material has influenced the punishment awarded by the Disciplinary Authority without the petitioner being aware that such material was going to be used against him for awarding the extreme punishment of dismissal from service. Nothing else has been quoted by the Disciplinary Authority for justifying the so-called past record of the official.

31. The Appellate Authority also does not appear to have weighed the factors in coming to the conclusion that the punishment awarded by the disciplinary authority was justified. In his departmental appeal, the petitioner had pleaded as under:

12. That even the disciplinary authority did not apply his mind while imposing severest punishment of dismissal and he remained unable to weight the charge levelled against me in according to the punishment granted by him.

13. That my abrupt dismissal from service on flimsy ground is whimsical, arbitrary and malafide. This has forced me to starve to death along with all my family and this amount to deprivation of the fundamental rights of my self and my family to live without following procedure prescribed and established by law and thus is gross violation of Article 21 of Constitution of India.

There is nothing in the order of the Appellate Authority which indicates that the said authority had considered the above points or the various factors relevant for the award of the extreme punishment of dismissal from service. Importantly, the Appellate Authority does not appear to have considered whether any other lesser punishment would be more appropriate in the facts and circumstances of the case.

32. On a consideration of the charge for which the petitioner has been held guilty, viz., making a false complaint against the officers that they were probably using air conditioners meant for the showroom in their residences, the punishment of dismissal from service does appear disproportionate. At best, this was a failed attempt by a self-appointed whistleblower. Surely, such conduct should not be condoned but then does it warrant dismissal? By using the ultimate penalty in all and sundry cases, the authorities would end up Page 3088 losing the distinction between the really serious cases and the lesser ones. On a consideration of the all of these factors, it is held that the punishment of dismissal from service inflicted on the petitioner is disproportionate to the charge for which the petitioner has been found guilty.

33. However, in view of the settled position of law explained in several decisions of the Hon'ble Supreme Court that the punishment awarded by the Authority cannot be straightway substituted by the High Court in exercise of its jurisdiction under Article 226 of the Constitution, the only consequential direction that can be given in these proceedings is to require the Appellate Authority to once again consider the question of the quantum of punishment. The petitioner is given the liberty to place whatever material he may have which is relevant to the issue of quantum of punishment before the Appellate Authority who will give him a personal hearing.

34.The counsel for the DEDA stated that since the filing of this petition, DEDA has ceased to be operational. However, the concerned department of the Government of the National Capital Territory of Delhi (Respondent No. 1) under the control of which the DEDA was functioning would be the concerned authority for the purposes of implementing the directions to be given in the present case. In the circumstances, it is clarified that the directions given hereafter in this judgment to the Appellate Authority would have to be complied with by the appropriate authority in the Govt. of NCT of Delhi dealing with such matters.

35. Accordingly it is directed as under:

(i) The impugned order dated 10.12.1999 passed by the Appellate Authority is set aside.

(ii) The Appellate Authority will reconsider the departmental appeal of the petitioner herein limited to the question of quantum of punishment in light of this judgment.

(iii) The petitioner is permitted to place any further material that he may have relevant to the question of quantum of punishment before the Appellate Authority within a period of three weeks from today and in any event not later than October 13, 2006.

(iv) The Appellate Authority will give the petitioner a notice of personal hearing, also through the counsel for the petitioner, on an any date after October 20, 2006 and not later than November 3, 2006. If the petitioner does not appear on that date after having been served with the notice, the Appellate Authority can proceed and decide the appeal.

(v) The Appellate Authority will take a decision and dispose of the departmental appeal of the petitioner by a reasoned order not later than November 17, 2006. The Appellate Authority will also pass appropriate consequential orders, if any and communicate the said decision to the petitioner without delay.

(vi) Counsel for the respondents will communicate the contents of this order to the respondents without delay to enable them to implement the directions in accordance with the time schedule indicated.

36. With the above directions writ petition is disposed of with no order as to costs.