R.C. Gupta vs Delhi Vidyut Board And Ors.
2006 Latest Caselaw 1656 Del

JUDGMENT

S. Muralidhar, J.

Page 3138

1. The petitioner challenges an order dated 29.4.1999 passed by the Delhi Vidyut Board (DVB) disposing of the departmental appeal of the petitioner whereby the penalty awarded by the Disciplinary Authority, viz., reduction to minimum of the time-scale for a period of five years was modified to that of reduction in his time-scale of pay by three stages for a period of three years with cumulative effect. It was further directed that during the period of reduction, the petitioner will not earn increments and after the expiry of the reduction period it would have the effect of postponing future increments.

Background facts

2. The facts leading to the filing of the present writ petition are that the petitioner was first appointed as Inspector Grade II on 26.4.1963 in the DVB. On 5.1.1988 he transferred to the post of Assistant Engineer (Zone), Najafgarh. He was transferred to Assistant Engineer (District) on 10.6.1988. While on the said post, he was given additional charge of Assistant Engineer (PS - Power Supply) by a written order dated 3.10.1989 which reads thus:

Page 3139 You are requested to look after the work of AE(PS) in addition to your own duties without any remuneration. This arrangement is done in the interest of work, temporarily.

3. On 14.4.1991, the Delhi Electric Supply Committee, a statutory body under the DMC Act, 1957, took a policy decision to increase the development charges at Rs. 24/- per sq. yard effect from 11.4.1981. An Office Order implementing this change was signed by the Chief Engineer (Commercial) on 29.4.1991 stating that the revised charges would be effective from 11.4.1991. It is an admitted position that in the Commercial Section of the DVB at District Najafgarh, this order dated 26.4.1991 was received only on 17.5.1991.

4. In the meanwhile, on 13.5.1991 certain prospective consumers of Amar Colony, Nangloi deposited the charges, as per the pre-revised rates, for new electricity connections. A complaint dated 21.6.1991 was lodged by one Girdhari Lal, Mahasachiv, Amar Colony (Nangloi) Welfare Association (Regd.), which led to a surprise check of the Commercial Section, Najafgarh by the Vigilance Staff of Delhi Electric Supply Undertaking (DESU) on 9.9.1991. It is stated that 23 files relating to the new connections of the Amar Colony were found pending. The inspection also revealed that on 7.8.1991 the applicants had been issued letters advising them to deposit the difference in the development charges.

5. On 14.1.1993 a memorandum was issued to the petitioner along with the charge which reads as under:

Shri R.C. Gupta, E.No. 4179, while working in District Najafgarh as AE(PS) during the year 1991-92, with malafide intention failed to maintain proper supervision over the working of Commercial Section(D) NJF under his direct charge, which resulted in abnormal delay of about three months in granting 23 new DL connections in favor of residents of Amar Colony (Nangloi) and violated the instructions laid down in the office order No. CO.II/Coml.26/85-86/2 dated 6.5.1985.

Thus, the said Shri R.C. Gupta failed to maintain absolute integrity and showed lack of devotion to duty and committed himself in a manner unbecoming of a public servant in violation of Rule 3 of CCS(Conduct) Rules, 1964, as applicable to DESU employees.

6. In the statement of imputation, it was stated that the action taken by the Commercial Department on 7.8.1991 asking the applicants to deposit the difference of development charges and was just to cover up the delay. This specific imputation was that Shri R.C. Gupta, AE (PS) being immediate supervisor did not bother to take the fate of aforesaid connections lying pending for about three months without any valid in violation of instructions laid down in office order No. Co.II/Coml.26/85-86/2 dated 6.5.1985.

7. The petitioner, on 5.2.1993, replied to the charges denying any illegality or misconduct committed by him. As regards what happened on 13.5.1991, this is how the petitioner explained it:

On 13.5.1991 a large number of residents of Amar Colony (Nangloi) thronged our office for acceptance of securities on account of new Domestic light connections. The day was the day when the entire dealing Page 3140 commercial staff was spared for training for General Election Duty for the Lok Sabha including the Commercial Supdt. who is competent to finally release such connections as per standing office order No. CO-II/Comml.-26/85-86/2 dated 6.5.1985. They were, therefore, advised to submit some of the applications only. It was not possible to manage the whole lot due to limitation of staff in order to ensure thorough checking and up keep of records and further communications with the connected departments and to keep track. But instead of Realizing our reasonable limitations they started agitating and raised cat-call even being accompanied with responsible representatives of their Welfare Association. This attracted attention of this worthy XEN of District Najafgarh also. Keeping in new the persistent attitude of the public and to cope with the urgency where as I volunteered myself to finally approve acceptance of the case in the absence of the Commercial Supdt. and worthy XEN (D.Ngf) spared the services of a junior clerk namely L.S. Chauhan (who is conversant with Commercial work) to scrutinize the documents and process the cases. The cases which were complete in all respects were dealt with on the same day

8. The petitioner submitted that the staff could not arbitrarily take any action in either rejecting the actions for non-payment of the increased development charges or give connections without collecting the increased charges. He added:

Further as required the delay in processing the cases of new connection or any delay thereof is the responsibility of the Commercial Supdt. concerned and the staff who is directly dealing. However, the enquiries conducted by the undersigned in the matter revealed that these connection cases were kept pending as the charges of the development were reported to be revised in the enhanced side and if these cases were released the Undertaking will be in the loss of revenue and in this process some delay had taken place which is justified because it was in the revenue interest of the Undertaking although it may cost some difficulties to the applicants leading to some grievances which is regretted. Hence my case may also not be singled out simply on this reason in a blazed and arbitrary manner merely on workable propositions on wild, vague and indefinite charges which are not tenable and are unwarranted by the facts and circumstances of the case as assumption cannot take place of proof by means of acceptable evidence

9. In the departmental enquiry, the DVB took the stand that Shri R.C. Gupta is not directly responsible for the delay as sufficient subordinate staff were working with him, i.e., CS/Hd. Clerk/Dealing Clerk (Senior Clerk) but he cannot be escaped from the responsibility being the AE(PS) in the District.

9. In appraising the evidence against the petitioner, the Enquiry Officer found, after analyzing the Office Order dated 6.5.1985 that the responsibility for ensuring timely grant of new domestic connections was not that of the petitioner. In this context, the enquiry officer found as under:

From the above provisions of Ex.S-4, S-4A to S-4H as referred to above, it is further evident that the C.O. as AE (PS) has no role to play so far as Page 3141 the domestic light connection is concerned. He is also not required to come into contact of the applicants directly. In fact it is the Counter Clerk, Head Clerk and Commercial Superintendent who are to attend the public of the applicants of new connections of domestic light as the present applications are concerned. When the C.O. under the provisions of the office order violation of which by C.O. is alleged in the charge sheet, has nothing to do while dealing the applications of domestic light connection, than the question of violation of the said order by C.O. is not substantiated as per facts on record and as such this charge/allegation he acted in violation of the said order fails. In this connection it appears that while investigating the case and preparing the charge sheet the above aspect has not been properly examined and considered with full application of mind and the allegation for violation of this order has been framed without positive evidence in support of the charge

The Enquiry Officer found that Sh. Girdhari Lal, the complainant was not the concerned applicant, whose files were collected by the Vigilance. Further, the complaint did not contain the names and addresses of those applicant from whom the alleged gratification was demanded. None of the concerned applicants had made any such complaint to any officer and authority. Even Sh. Girdhari Lal the complainant was not contacted to testify in the enquiry. The Enquiry Officer concluded:

The applications in question were received from the individual applicant as alleged on 13.5.1991. On the other hand the rates of development charges were increased as per office order dated 26/29.4.1991 Ex.D-3 which was effect since 11.4.1991 then in these circumstances it was not in the interest of DESU to release cases without the recovery of balance amount of development charges from each applicant. Accordingly, the delay lies mostly on the part of each individual applicant

Accordingly, the Enquiry Officer returned a finding that the charge against the petitioner was not proved.

10. The Disciplinary Authority, upon a consideration of the report of the Enquiry Officer, differed with the findings and held that the petitioner was directly responsible for the lapses. It was of the view that charge of ineffective supervision against Shri R.C. Gupta, AE is also clearly established. Therefore, it proposed to impose the penalty of reduction to the minimum of the time scale for a period of five years on the petitioner. A show cause notice along with a copy of the enquiry report was issued to the petitioner on 10.7.1997. The petitioner submitted a detailed reply dated 29.9.1997 praying exoneration and pointed out as under:

I have worked in the interest of the undertaking but instead of appreciating my services for doing good work on three posts of AE(D), AE(S/Sin) & AE(PS). I have been put to unnecessary harassment, mental agony/torture and financial loss for several years due to pendency of this case since 1992

11. By an order dated 20.3.1998, the DVB considered the reply of the petitioner and rejected his explanation and awarded the penalty as proposed Page 3142 in the show cause notice. Thereafter, the petitioner preferred a departmental appeal to the Chairman, DVB became to be disposed of by the impugned order dated 29.4.1999 modifying the penalty as already indicated hereinabove.

12. There is one aspect that has to be dealt with at this stage. With the passage of the Delhi Electricity Reforms Act, 2000 (DERA), the DVB has been reconstituted into six separate entities. The concerned entity, for the purposes of the present case, is the North Delhi power Ltd. (NDPL), Respondent No. 3. An application, C.M. No. 3057, has been filed on behalf of Respondents 1 and 2 (Delhi Power Supply Co. Ltd. TRANSCO) seeking their deletion. A Division Bench of this Court has in a judgment dated 30.3.2006 in LPA No. 98 of 2005 (Govt. of NCT of Delhi v. K.R.Jain) held that after the unbundling of the DVB by the DERA, the new entities would inherit the liabilities of the erstwhile DVB including the liability arising out of dues of the employees. In that view of the matter C.M. 3057 of 2006 is allowed.

Submissions of counsel

13. Mr. Devashish Bharuka, the learned Counsel for the petitioner submits that the enquiry officer had, after considering the entire evidence, come to the conclusion that the charge was not proved. Therefore, the conclusion reached to the contrary by the disciplinary authority, without indicating any reasons was based on no evidence. He submitted that since the disciplinary authority differed with the enquiry officer it was incumbent on it to disclose the reasons for such difference in the show cause notice issued to the petitioner on 10.7.1997. He further submitted that such reasons must emanate from the show cause notice itself and not, as in the instant case, in the subsequent order inflicting the penalty. The learned Counsel for the petitioner has placed reliance upon the judgment of the Hon'ble Supreme Court in Amar Nath Chowdhury v. Braithwaite & Co. Ltd. , to contend that a non-speaking order by the disciplinary authority would warrant interference by the Court. He has also placed reliance upon the judgment in State of Bihar v. Lakshmi Shankar Prasad . Finally, he submitted that the appellate authority erred in rejecting the petitioner's departmental appeal and imposing a reduced penalty, when on the facts of the case, there was no justification in imposing any penalty whatsoever.

14. Mr. Vikram Nandrajog, learned Counsel for the NDPL submitted that the charge against the petitioner was that of ineffective supervision. Referring to the Office Order dated 6.5.1985 of the DESU which lays down the details as regards the duties and responsibilities of the officers and staff in processing applications for new electricity connections, learned Counsel submitted that the petitioner had failed to supervise the concerned staff which had resulted unavoidable delay in processing the applications. He submitted that the petitioner himself admitted his role in receiving the applications from the residents Page 3143 of Amar Colony (Nangloi) on 13.5.1991 itself and there was no valid explanation for the failure to process the applications immediately thereafter. He repeatedly stressed that although the petitioner himself may not directly responsible for ensuring the electricity connections, he had a supervisory role which he failed to discharge. As regards the specific charge against the petitioner is that he had acted with malafide intention, learned Counsel submitted that failure on the part of the petitioner to take action within three months and in not informing the applicants about the increased development charges in time amounted to dereliction of duty and this was what was meant by the words malafide intention. He further submitted that the petitioner could not take advantage of a subsequent event, viz., the increase in the development charges which admittedly came to his knowledge only after the receipt of applications from the various applicants, in order to explain away his failure to supervise the timely processing of the applications in question.

Legality of the order of the Disciplinary Authority

15. The contention regarding the legality of the order 20.3.1998 of the Disciplinary Authority may be first examined. The Board (Disciplinary Authority) first issued a memorandum dated 10.7.1997 indicating that it was differing with the report of the enquiry officer. The relevant portion of the said memorandum, reads as under:

The Board considered the AGM(A)'s letter No. VC-455-457/92 and 601-602/92-Vig./Ts/Mtg/102 dated 26.5.1997 in regard to the disciplinary proceeding against S/Shri D.R. Sharma, Commercial Supdt. (Retd), E.No. 9679 and R.C. Gupta, AE, E.No. 4179 in VC-455-457/92 and 601-602/92, the enquiry reports and other connected papers. The Board did not agree with the findings of the Inquiry Officers holding the charges against S/Shri D.R. Sharma, Comml. Supdt. (Retd.) and R.C. Gupta, AE AS NOT PROVED. The available records revealed that on receipt of the complaint of illegal gratification, the Vigilance Department found 23 applications dated 13.5.1991 for new connections pending without any action even after three months. The applicants would have been informed immediately on receipt of applications for deposit of enhanced development charges, or the difference in development charges could have easily been included in any subsequent bill, as in the case of other applicants. Thus, Shri D.R. Sharma is directly responsible for the lapses in question. The charge of ineffective supervision against, Shri R.C. Gupta, AE is also clearly established

16. Nowhere in the above extracted portion is there any reason given for the conclusion reached in respect of the petitioner. The lines preceding the last two lines which say that the charge of ineffective supervision against Shri R.C.Gupta, AE is also clearly established only pertain to the other officer, Sri D.R Sharma and not the petitioner. No reasons for the Boards conclusion in respect of the petitioner are to found in the above memorandum. It is only in the order dated 20.3.1998 imposing the punishment on the petitioner that the following reasons have been given:

That in respect of Shri R.C. Gupta, A.E.'s disciplinary case, his reply to show cause notice proposing the penalty of reduction to the minimum of the time scale for a period of five years is not satisfactory. He has not Page 3144 raised any now point. It is clear that no prompt and effective action was taken on the said 23 applications pending for providing new connections, even after the receipt of office order dated 26.4.1991 regarding the enhancement of development charges, on 17.5.1991. The applications were received on 13.5.1991 and first action could be taken only on 7.8.1991 for informing the applicants to deposit balance of development charges. This reveals that concerned officials in commercial section did not take timely action for disposal of the said applications even after their return from election duty.

Since Sh. R.C. Gupta the charged officer, was looking after the work of AE(PS), therefore, he was required to keep watch over the working of commercial section, under his supervision and to review the cases lying pending without any reason. As such the charged officer is responsible for lack of effective supervision. Thus, the Board confirms the proposed penalty, i.e., reduction to the minimum of the time scale for a period of five years on Shri R.C. Gupta, AE. During the period of reduction, he will not seen any increment and after the expiry of the reduction period, it will have the effect of postponing of future increments.

18. In the first place, it was not open to the disciplinary authority not to inform the petitioner of the reasons for differing with the enquiry officer and indicate those reasons only in the final order imposing the penalty. Where the disciplinary authority, as in the instant case, chooses to differ with the enquiry officer and seeks to reverse the finding of no guilt, hold the charged officer guilty and impose a punishment, the disciplinary authority will have to give valid and cogent reasons as well as disclose the material upon which it is basing its decision. These reasons will have to be supplied to the charged officer along with enquiry report and the show cause notice to which the charged officer is expected to respond. The importance of affording a meaningful opportunity to the charged officer at this stage has been explained by the Hon'ble Supreme Court in Punjab National Bank v. Kunj Behari Mishra and in Yoginath D.Bagde v. State of Maharashtra . The order of the Disciplinary Authority in the present case cannot, on this ground, be sustained in law.

19. The second problem with order of the Disciplinary Authority is that it proceeds on incorrect understanding of DVB's Office Order dated 6.5.1985 assigning the duties and responsibilities to the officers of the various posts. It attributes to the petitioner as AE (PS) a role larger than what is envisaged in the said Office Order. The relevant clauses of the said Office Order are as follows:

2.The counter clerk in the commercial section shall scrutinize the documents and other details in the application and get the omission/discrepancies removed. In case the documents furnished are insufficient or not in order, proper rejection slip shall be issued under the signature of Commercial Supdt./Assistant Engineer (PS).

Page 3145

4. After confirmation of payment deposit has been received from the Cash Counter, the Counter Clerk will prepare a progress card and put up to Commercial Superintendent for scrutiny and signature and send the same to the Zone along with Test Report. Simultaneously, another sheet will be prepared giving the details of consumers' name, address, load, security deposit and K. No. which will be sent to MSR for preparation of meter book sheet. Draft proforma of sheet to MSR is also enclosed. The papers to Assistant Engineer (Zone) as well as MSR will be sent by the next working day without fail.

7. The Test Report duly completed in all respects by the Inspector shall be submitted to Assistant Engineer (Zone) office within next three days positively.

10. On receipt of K. No. proforma from AE(Zone), the meter particulars as mentioned in the K. No. proforma viz., meter number, type of meter, amperes/volts, multiplication, factor, initial reading shall be recorded on the meter book sheet already having been prepared and inserted in the meter book. Meter reader on his next round of the reading of the meter book, will record the readings of the new meter and also check the correctness of the meter particulars. In case, the meter is not found installed, the fact will be reported to MSRI/AFO who will sort out the matter with the Assistant Engineer (PS) and the AE(zone) at the time of monthly reconciliation.

16. Monthly reconciliation of K.Nos allotted and energized will have to be done by AE (PS). AFO and AE (Zone) to identify the and K. No. which could not be energized due to various reasons. The process of reconciliation shall be done under the supervision of Executive Engineer (D) and monthly report submitted to Superintending Engineer (D) for monitoring.

20. The above clauses do not envisage any direct role of the AE(PS) in ensuring the prompt processing of applications for new electricity connections. Clause 2 only states that annexed documents furnished are insufficient and or not in order, proper rejection slip shall be issued under the signature of Commercial Supdt./Assistant Engineer (PS). It does not indicate any time limit within which AE (PS) will have to send such communication. Clause 4 states that after confirmation of payment deposit, has been received from the cash counter, the counter clerk will prepare a progress card and put up to the Commercial Superintendent for scrutiny and signature and send the same to the Zone along with Test Report. Here again, there is no role for the AE (PS). The person who comes in the picture at this stage is AE (Zone). It is only in Clause 16 that it is stated that monthly reconciliation of K.Nos. allotted and energized will have to be done by AE (PS). The task of identifying the K.Nos. which could not be energized due to various reasons is assigned to the AFO and AE (Zone).

21. Since the above clauses were repeatedly referred to by the learned Counsel for the respondent, the Court enquired whether the petitioner was at the relevant also assigned the duties of AE (Zone). The learned Counsel for the respondent was asked to furnish any documentation that may indicate this. However, no such information has been provided. On the other hand, an additional affidavit dated 19.9.2006 has been filed by the petitioner stating that he was never holding the additional charge of AE (Zone) at the Page 3146 relevant point in time. Therefore, the reasons given by the Disciplinary Authority for differing with the Enquiry Officer's report is based on an incorrect understanding of the precise role of the petitioner as AE (PS). Thirdly, although the petitioner was charged with acting with malafide intention what has been held proved by the Disciplinary Authority is not this charge. In fact there is no iota of evidence to bring home this charge against the petitioner. In this context, a reference may be made to the decision in Sher Bahadur v. Union of India where the Hon'ble Supreme Court emphasized that there must be some evidence which links the charged officer with the misconduct alleged against him. The Court proceeded to hold as under (SCC Page 144 Para 7):

Evidence, however, voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report, in view of oral, documentary and circumstantial evidence as adduced in the enquiry, would not in principle satisfy the rule of sufficiency of evidence

Thus, the order dated 20.3.1998 of the Disciplianry Authority was based on no evidence and this is yet another ground to invalidate it.

22. As far as the Appellate Authority is concerned, it does not advert to the correctness or otherwise of the report of the Enquiry Officer despite the petitioner specifically urging in his appeal that the said report should be accepted in its entirety. The Appellate Authority also does not give sufficient reasons for awarding a penalty, although a lesser one. For these reasons, the order dated 29.4.1999 of the Appellate Authority also cannot be sustained. Conclusions

23. For all the above reasons, the order dated 20.3.1998 passed by the Disciplinary Authority as well as the order dated 29.4.1999 passed by the Appellate Authority are hereby set aside. Consequently, the petitioner stands exonerated of all the charge as has been held by the Enquiry Officer. The petitioner has retired during the pendency of the writ petition. The respondent will now proceed to treat the petitioner as not having suffered any punishment whatsoever and compute and pay to the petitioner the retiral and consequential benefits and pension, if any, on that basis. The respondent will also pay to the petitioner Rs. 5,000/- as costs of this litigation. The above computation and payment of all retiral benefits and costs should be done within a period of eight weeks from today and in any event not later than 20.11.2006.

24. With the above directions, the writ petition is allowed. Further, for the reasons stated in para 13 above, CM 3057/2006 is also allowed.