S.L. Varun vs Delhi Power Company Ltd. And Anr.
2007 Latest Caselaw 724 Del

JUDGMENT

Sanjiv Khanna, J.

1. By way of present appeal, the appellant-Mr. S.L. Varun has challenged judgment dated 5th April, 2004 dismissing his writ petition and upholding order of the disciplinary authority and the appellate authority.

2. The appellant was an employee of the Delhi Vidyut Board. He was served with a charge sheet dated 5th April, 2000 on the ground that he was found indulging in theft of electricity, which conduct was highly unbecoming as he was an employee of Delhi Vidyut Board and warranted imposition of stiff major penalty.

3. As per the enquiry report, the charge was held to be proved. By order dated 20th May, 2002 passed by the disciplinary authority, penalty of removal from service was imposed on the appellant. An appeal was filed and vide order dated 29th June, 2002, the Chairman Delhi Vidyut Board partly allowed the appeal converting the penalty of removal from service to one of compulsory retirement. The appellant, therefore, became entitled to terminal benefits.

4. These orders imposing penalty and the enquiry report were challenged in the writ petition, which was dismissed by the impugned judgment.

5. During the course of arguments, Learned Counsel for the appellant in substance raised two contentions. Firstly, principles of natural justice had been violated as the joint inspection report relied upon by the department along with the charge sheet was not furnished to the appellant. In this regard it was also submitted that Delhi Vidyut Board had issued guidelines for joint inspection in cases where a consumer was found indulging in direct theft of electricity. These guidelines it was submitted were not followed. Secondly, it was submitted that there was violation of Article 311(1) of the Constitution of India as major penalty has been imposed by an authority subordinate to the appointing authority. Though not argued, in the written submissions filed by the appellant has also alleged that there was no theft of electricity by the appellant and the allegations in this regard were false. It is also stated in the written submissions that some other employees against whom similar allegations of theft of electricity were made had been let off with minor penalty. Plea of discrimination has been raised.

6. Learned Counsel for the respondent, on the other hand, controverter the above submissions and had argued that the penalty imposed was valid and the competent disciplinary authority had passed the impugned order imposing penalty. She relied upon the judgment passed by the learned Single Judge.

7. Along with the memorandum and charge sheet dated 5th April, 2000, Delhi Vidyut Board had enclosed photocopy of the joint inspection report dated 2nd March, 2000. Learned Counsel for the respondent submitted that this report dated 2nd March, 2000 was not supplied. He relied upon letter dated 13th April, 2000 written by the appellant as well as some other correspondence. A perusal of these letters show that the appellant did not specifically ask for the joint inspection report dated 2nd March, 2000. The appellant had requested the respondent to furnish list of documents by which the articles of charge were proposed to be sustained. In fact, in the reply filed by the appellant to the memorandum and charge sheet dated 2nd May, 2000, the appellant has admitted as under:

The kind attention of the Hon'ble Disciplinary Authority is invited to the list of documents by which the article of charge framed is proposed to be sustained. The same is Annexure III. As per this document the only relied upon document by the prosecution is a photocopy of joint inspection report dated 2-3-2000, which is stated to be on the IR's. It would therefore be seen that no proper inspection as per laid down procedure was carried out. The required information and documentation necessarily to be obtained before arriving at a conclusion that it is a case of theft is missing.

8. In view of the above, the contention of the appellant that he was not served with a copy of the joint inspection report along with the memorandum and charge sheet is false and incorrect. The said contention has to be rejected.

9. It was submitted that a joint inspection report cannot be relied upon as the raiding party did not follow the guidelines prescribed vide office orders dated 08.6.1999, 19.7.1999 and 26.2.1997. Learned Counsel for the appellant submitted that as per the guidelines, the Joint Inspection Report should have been handed over to the consumer/representative at the site against a dated acknowledgment. In case of refusal, a copy should have been pasted and also sent under registered post. It is argued that the raiding party did not collect material evidence at the spot i.e. wire, cable etc. used for by-passing the meter.

10. This plea was not in specific terms raised before the enquiry officer or the Disciplinary Authority. Before the Disciplinary Authority, the appellant had requested for furnishing two other photographs, which were taken by the Inspecting Team. The said photographs were duly furnished.

11. Before the enquiry officer, the plea taken by the appellant was that the flat in question was not in physical possession of the appellant and no one from his family was present. The Joint Inspection Team reported that no electricity meter was installed in the flat and it was found that the appellant was indulging in direct theft of electricity by stealing the same from D.V.B, L.T. Switching System /L.T. Common bus-bar. Photographs of the fridge in the said flat showed that it had food articles including perishable goods, milk, cooked food etc. The appellant has not contented that an electricity meter was installed for recording consumption of electricity in the flat.

12. PW-1, Mr. Vinod Sharma, Asstt. Engineer (Vigilance) proved the Joint Inspection Report along with the photographs. He has also stated that when the raiding party reached the flat, a lady claiming to be the wife of the appellant had opened the door. Mr. Vinod Sharma was cross examined but his testimony that the lady who claimed to be his wife had opened the door remained unchallenged. Another member of the raiding party Mr. Shailesh Mathur, Junior Engineer, (JE) also proved the Joint Inspection Report and the photographs. Two more members of the raiding party were also examined. With this evidence on record, it cannot be believed that no raid was conducted and the report submitted by the inspection team is false and incorrect. The photographs taken by the Joint Inspection Team have also been filed. Therefore, even if we disregard the Joint Inspection Report, there is sufficient material and evidence to show that the appellant had indulged in direct theft of electricity. If there was any violation of the guidelines, it was for the appellant to cross examine the witnesses and confront them with the violations. This was not done.

13. It is well settled that unless there is an express provision in the Constitution or other law, evidence obtained in an illegal search cannot be thrown out and disregarded. The test of "admissibility" of evidence is its relevance and not whether it was obtained in an illegal search or seizure. In the case of State v. N.M.T. Joy Immaculate , it was observed as under:

14. The High Court after holding that the order granting police custody is ex facie illegal has further held that the so-called confession and alleged recovery has no evidentiary value. It has also been held that the investigation conducted by P-1 and P-4 police with reference to the accused is not bona fide and false records have been created to implicate the accused. The question then arises whether the High Court was right in making the aforesaid observations, even if it is assumed that the order dated 6-11-2001 granting police custody was illegal (though we have held above that the aforesaid order being a purely interlocutory order, no revision lay against the same and the High Court committed manifest error of law in entertaining the revision and setting aside the said order). The admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence Act. The Evidence Act or the Code of Criminal Procedure or for that matter any other law in India does not exclude relevant evidence on the ground that it was obtained under an illegal search and seizure. Challenge to a search and seizure made under the Criminal Procedure Code on the ground of violation of fundamental rights under Article 20(3) of the Constitution was examined in M.P. Sharma v. Satish Chandra by a Bench of eight Judges of this Court. The challenge was repelled and it was held as under: (AIR pp. 306-07, para 18) A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution-makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches.

15. The law of evidence in our country is modelled on the rules of evidence which prevailed in English law. In Kuruma v. R. 1955 AC 197 an accused was found in unlawful possession of some ammunition in a search conducted by two police officers who were not authorised under the law to carry out the search. The question was whether the evidence with regard to the unlawful possession of ammunition could be excluded on the ground that the evidence had been obtained on an unlawful search. The Privy Council stated the principle as under: (All ER p. 239 B) The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained.

15.1. This question has been examined threadbare by a Constitution Bench in Pooran Mal v. Director of Inspection (Investigation) and the principle enunciated therein is as under: (SCC pp. 363-64 & 366, paras 23 & 24)

If the Evidence Act, 1872 permits relevancy as the only test of admissibility of evidence, and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor is it open to us to strain the language of the Constitution, because some American Judges of the American Supreme Court have spelt out certain constitutional protections from the provisions of the American Constitution. So, neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search.

So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English law, and courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. Where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.

14. The second contention of the appellant is also liable to be rejected.

15. The third contention of the appellant is that Member (Administration) was not a competent authority to impose stiff major penalty. It was submitted that the appellant was appointed as Assistant Commissioner on the recommendation of the UPSC by Delhi Electric Supply Committee (DESC, for short) in 1986 and, therefore, said Committee was the appellant's appointing authority. The said Committee later on became Delhi Vidyut Board (DVB) and accordingly the order of punishment could have been only passed by Delhi Vidyut Board (DVB) and not by Member (Administration). Reliance in this regard was placed upon Article 311(1) of the Constitution of India and the following judgments:- Krishna Kumar v. Divisional Asstt. Electrical Engineer , Mysore SRTC v. Mirja Khasim Ali Beg , Ashok Kr. Monga v. UCO Bank and Ors. , Gafoor Mia Kausal v. Director, DMRL reported in 1988 (6) ATC 675 and Union of India and Ors. v. R. Reddappa and Anr. .

16. It may be noted that this contention was not raised before the learned Single Judge and was given up.

17. Article 311(1) of the Constitution of India reads:

311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-

(1)No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

18. The said Article is applicable to an employee of the Central Government or an employee of the State Government. It is not applicable to employees of Delhi Vidyut Board as they are not employees of the Central or the State Government. Reference in this regard can be made to the decision of the Supreme Court in the case of Ajit Kr. Nag v. G.M. (PJ), Indian Oil Corporation Ltd. .

19. Learned Counsel for the appellant, however, had contended that even if Article 311(1) is not applicable, the appellant could not have been dismissed or removed from service by an authority subordinate to the appointing authority. In this regard, Learned Counsel relied upon the CCS (CCA) Rules. The argument of the Learned Counsel for the appellant is liable to be rejected on two grounds: Firstly, the letter of appointment dated 21st November, 1986 relied upon and filed by the appellant along with CM No. 12519/2005 is written by Administrative Officer (General) and is in the form of an Office Order. The said letter states that on the recommendation of UPSC, the appellant has been appointed as Assistant Engineer in the Delhi Electric Supply Undertaking pursuant to meeting of DESC held on 22.5.1986. It is not stated in the letter that DESC is the appointing authority. There is nothing to show that DESC was the appointing authority of the appellant. Office order appointing the appellant states that the letter had been issued with approval of Additional General Manager (Technical).

20. The respondents in their additional affidavit filed on 03.3.2006 have stated that DESC was not the appointing authority of the appellant. They have also pointed out that after formation of DVB on 24.2.1997, the powers which were being earlier exercised by Additional General Manager were to be exercised by the corresponding Members of the Board. Thereafter, vide notification dated 25.5.1999, it was resolved by the Delhi Vidyut Board that all future proceedings of disciplinary/ vigilance nature will be held as per CCS (CCA) Rules 1965 subject to the conditions specified in the said notification. Sub para 5 of the said notification specifically states that the appointing authority/appellate Authority/disciplinary authority had been decentralized and delegated as per Schedule annexed to the notification. Schedule to this notification was further modified by an office order dated 02.4.2002. As per the said notification, the appointing authority for the post of Assistant Engineer was Member (Administration) and the authority competent to impose stiff major penalty was also Member (Administration). The appellate Authority was the Chairman of Delhi Vidyut Board.

21. Secondly, Rule 12(2) of CCS (CCA) Rules further stipulates that any of the penalties specified under Rule 11 can be imposed by the "Appointing Authority" or the authority specified in the Schedule in this behalf or any other authority empowered in this behalf by a general or speaking order of the President. Rule 12(2) of the CCS(CCA) Rules reads:

Without prejudice to the provisions of Sub-rule (1), but subject to the provisions of Sub-rule (4), any of the penalties specified in Rule 11 may be imposed on-

(a) a member of a Central Civil Service other than the General Central Service, by the appointing authority or the authority specified in the schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the President;

(b) a person appointed to a Central Civil Post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the appointing authority or the authority specified in the Schedule in this behalf.

22. Difference in the language of Article 311(1) of the Constitution of India and Rule 12(2) of the CCS (CCA) Rules may be noticed. Article 311(1) uses the words "authority subordinate to that by which he was appointed". The words used in Rule 12(2) of the CCS (CCA) Rules are different. Under the said Rules, the "Appointing Authority" or the authority specified in the Schedule or an authority which is duly empowered by a speaking or general order is competent to award penalty.

23. Notification dated 25th May, 1999 made the provisions of CCS (CCA) Rules, 1965 applicable to the employees of Delhi Vidyut Board. However, that was subject to various exceptions. Exception (v) reads as under:

Appointing Authorities Disciplinary Authorities/Appellate Authorities in the prevalent Regulations have been decentralized and delegated further to empower appropriate authorities and they shall be as per the schedule annexed herewith. The staff major penalties of compulsory retirement, removal from service and dismissal from service, shall not be imposed by any authority lower than the Appointing Authority.

24. A reading of Exception (v) shows that the requirement under the provisions of CCS (CCA) Rules, 1965 was modified and unlike Article 311(1) of the Constitution of India, major penalties of compulsory retirement, removal from service and dismissal from service could be imposed by the authority as mentioned in the schedule of the notification dated 25th May,1999. This schedule was subsequently amended on 2nd April,2002. As per the schedule on the date of the penalty order dated 20th May,2002, the appointing authority and the authority competent to impose major stiff penalty was Member (Administration). Unlike Article 311(1), Exception (v) does not require that major penalty should not be imposed by an authority subordinate to that by which he was appointed but by the authority specified in the schedule but not lower than the appointing authority. Admittedly the order of punishment has been passed by an authority mentioned in the applicable schedule and the appointing authority.

25. The Supreme Court in the case of State Bank of India v. S. Vijaya Kumar while examining similar provisions contained in Regulation 55(2)(a) of the relevant State Bank of India Rules has observed:

24. Now so far as the right which has been conferred on the employees of the State Bank contained in Regulation 55(2)(a) is that such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority. Thus a comparison of the provisions contained in Article 311(1) of the Constitution and the right guaranteed to the employees of the State Bank under Regulation 55(2)(a) shows that there is a material difference between the language used in the two provisions. Under Article 311(1) the words used are by which he was appointed. In Regulation 55(2)(a) there are no such words by which he was appointed and in its place the only right guaranteed is that the employee shall not be dismissed by an authority lower than the appointing authority. Thus the right guaranteed in case of the officers or employees of the State Bank is that the order of dismissal cannot be passed by an authority lower than the appointing authority. A perusal of the relevant Regulations and Rules mentioned above clearly go to show that the Chief General Manager had become the appointing authority of the employees in question under Regulation 55(2)(a) with effect from July 1, 1974. Admittedly the orders of dismissal have been passed long after these amendments when the Chief General Manager had already become their appointing authority under the Regulations and the Rules. The right that an officer or employee of the State Bank of India cannot be dismissed from service by an authority lower than the appointing authority is a creation of statutory rules and regulations. So far as the right or protection guaranteed under Article 311 of the Constitution is concerned, it applies to members of the Civil Service of the Union or an All India service or a Civil Service of a State or who holds a civil post under the Union or a State. Admittedly the employees of the State Bank do not fall under any one of these categories and they cannot seek any protection under Article 311(1) of the Constitution. The employees of the State Bank can only claim such rights which have been conferred under Regulation 55(2)(a) of the General Regulations. The only right conferred under the said provision is that the officers or employees of the State Bank cannot be dismissed by an authority lower than the appointing authority. With the risk of repetition it may be stated that on the date when the order of dismissal has been passed, Chief General Manager had already become the appointing authority and as such the order of dismissal has not been passed by an authority lower than the appointing authority.

25. Apart from the view taken by us as mentioned above the Regulation 55 has been amended by a resolution of the Central Board dated August 25, 1988 with retrospective effect. It has now been made clear in the explanation that for the purpose of Clause (b) the term appointing authority shall mean and include the authority who has been designated as such in respect of such class or grade of officers or employees to which the officer or employee concerned, as the case may be belongs at the time when such order is passed or any proceeding leading to such order or termination is initiated. This provision now concludes the controversy if any and clearly provides that the appointing authority shall mean and include the authority who has been designated as such at the time when such order is passed. It was contended on behalf of the Learned Counsel for the employees that the Bank had no power to amend the Regulations with retrospective effect. We see no force in this contention. Section 50(2)(a) of the Act clearly provides that all regulations made under this section shall have effect from such earlier or later date as may be specified in the regulation. Thus the regulations can be made to give effect from earlier dates also as may be specified in the regulations. We find no force in the contention of Learned Counsel for the employees that they had vested right in this regard and the same could not have been taken away by making regulations with retrospective effect. There cannot be any vested right in such a matter. As already mentioned above it was a right conferred under Regulation 55(2)(a) and the same can be amended with retrospective effect also in case the authority competent to make regulations has been given a right to make regulations with retrospective effect. It has been held in State of Jammu & Kashmir v. Triloki Nath Khosa that it is well settled that a government servant acquires a "status" on appointment to his office and as a result his rights and obligations are liable to be determined under statutory or constitutional authority which for its exercise requires no reciprocal consent. In Bishun Narain Misra v. State of Uttar Pradesh it was held that new rule reducing the age of retirement from 53 years to 55 years could not be said to be retrospective. The proviso to the new rule and the second notification were only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule therefore, could not be struck down on the ground that it was retrospective in operation. In Roshan Lal Tandon v. Union of India it was held that the legal position of government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the pubic law and not by mere agreement by the parties. Emolument of the government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the government without the consent of the employee. It was further held in the above case that the petitioner had no vested contractual right in regard to the terms of his service and that the same can be altered unilaterally. We may further add that the prohibition if any to alter the terms and conditions can be found only under the Constitution of India and in case power of the rule or law making authority is not circumscribed or limited by any constitutional mandate then it has power to amend such terms and conditions of service unilaterally without the consent of the employee. In the cases in hand before us the right whatsoever conferred on the employees of the State Bank was on the basis of Regulation 55(2)(a) and the Central Board of the Bank was authorised to amend such regulations from any date under Section 50(2)(a) of the Act.

26. In view of the above, it is apparent that there has been compliance with the relevant notification dated 22.5.1999 read along with modified Schedule notified vide office order dated 02.4.2002.

27. The last contention of the appellant is that he has been discriminated as a major penalty of compulsory retirement has been awarded to him, while others have been given minor penalties. This contention also has no merit and is liable to be rejected.

28. Learned Single Judge in this regard has pointed out that other employees who were found guilty of committing theft of electricity, were much lower in rank and the appellant alone was of the rank of executive engineer. This by itself as pointed out by the learned Single Judge distinguishes the case of the appellant from other employees who were also found guilty of committing theft of electricity.

29. Moreover, the question of whether the penalty imposed upon, the appellant is disproportionate has to be decided on it's own facts and not on the basis that some other employees were let off by awarding minor penalties. Article 14 of the Constitution, is positive in nature and cannot be used in a negative manner. Merely because some other employees have been wrongly let off lightly, it does not mean that the punishment imposed on the appellant should be reduced to minor penalty though major punishment is justified. It is also well settled that while examining the question of proportionality of punishment, the courts do not act as the appellate authority or the disciplinary authority. The test is whether punishment awarded shocks judicial conscience of the court. The appellant was an employee of DVB and was found to be stealing electricity in the flat allotted to him. It cannot be said that the penalty of compulsory retirement is disproportionate and shocks judicial conscience. The appellant has received terminal benefits.

30. In view of the reasons given above, we do not find any merit in the present appeal and the same is dismissed. No costs.