Shri Azad Singh vs Union Of India & Others
2009 Latest Caselaw 2992 Del

*                  HIGH COURT OF DELHI : NEW DELHI

               Judgment reserved on : July 28, 2009
              Judgment delivered on: August 04, 2009

+                  W.P. (C) No. 2250/1994

Shri Azad Singh                          ...   Petitioner
                   Through:   Mr. S.K. Gupta, Mr. Ajay Singh and Mr.
                              Arun Singh, Advocates

                                versus

Union of India & Others                       ...   Respondents
                 Through:     Mr. V.K. Rao, Advocate for
                              Respondents No. 2 and 3.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.    Whether the Reporters of local papers may
      be allowed to see the judgment?

2.    To be referred to Reporter or not?

3.    Whether the judgment should be reported
      in the Digest?

SUNIL GAUR, J.

*

1. On 11th February, 1988, Petitioner was Upper Divisional Clerk

(UDC) with Respondents No. 2 Corporation and on that day, he is

said to have misbehaved with the senior officer of Respondents No. 2

and in this regard, disciplinary proceedings were initiated by

Respondents No. 2 against the Petitioner, which culminated into

dismissal of the Petitioner from service. On the basis of the Inquiry

Report (Annexure P-17), impugned order (Annexure P-22) dismissing

the Petitioner from service was passed by Respondents No. 2 on 28th W.P. (C) No. 2250/1994 Page 1 January, 1993. Petitioner had preferred a statutory Appeal (Annexure

P-23) against the order of dismissal and vide order (Annexure P-25),

impugned order of dismissal was affirmed by the Appellate Authority.

In this petition, the Petitioner is seeking quashing of his dismissal

order (Annexure P-22) and the consequential reliefs.

2. The stand of the Petitioner is that he was the General Secretary

of the Staff Union of Respondents No. 2 - Corporation and he used

to take up grievances of the staff of the Corporation with the

Management of Respondents No. 2 from time to time and so, the

Petitioner had become eye sore to the Management of the

Respondents No. 2 -Corporation and the Managing Director of

Respondents No. 2 - Corporation had several times, threatened the

Petitioner with dire consequences because of Petitioner's active

participation in the Staff Union activities. According to the Petitioner, a

false complaint was made by Mr. R. Dayal, then Deputy Chief

Engineer of the Respondents No. 2 -Corporation against the

Petitioner regarding Petitioner misbehaving with above said Mr. R.

Dayal, in the evening of 11th February, 1998. It was also alleged that

the Petitioner was under the influence of liquor at the time of this

incident and the Petitioner had purportedly become furious because

senior officer Mr. R. Dayal had not cleared the file pertaining to

Petitioner's "efficiency bar" for a long time. Petitioner is alleged to

have told his senior officer R. Dayal that he had decided to leave the

W.P. (C) No. 2250/1994 Page 2 Respondents No. 2 -Corporation and he would shoot him and this

was purportedly said by the Petitioner in the presence of Chowkidar

Balbir Singh and in the presence of the employees Mathew and

Jeewan Singh.

3. On the basis of the complaint (Annexure P-1) made by Mr. R.

Dayal against the Petitioner, inquiry proceedings (Annexure P-2)

commenced against the Petitioner. Since the Inquiry Officer was

transferred, therefore, vide order (Annexure P-11) a new Inquiry

Officer was appointed and the Deputy Law Officer of the

Respondents No. 2 - Corporation was appointed as a Presenting

Officer and the Petitioner also sought the assistance of a legal

practitioner to defend him in the inquiry proceedings, but vide order

(Annexure P-15) the aforesaid request of the Petitioner was declined.

4. The case of the Petitioner is that he was not allowed to enter

the premises of Respondents No. 2 - Corporation without permission

and on 7th October, 1992, he was telegraphically informed that he has

to appear before the Inquiry Officer on the next day and when the

Petitioner went to the premises of Respondents No. 2 - Corporation,

he was not allowed to enter and in this regard, he had sent a letter to

the Inquiry Officer. It is a matter of record that evidence of three

witnesses was recorded by the Inquiry Officer on that day and on the

next date, Petitioner had led his evidence before the Inquiry Officer

and thereafter, the inquiry against the Petitioner concluded vide

W.P. (C) No. 2250/1994 Page 3 Report (Annexure P-17) holding the Petitioner guilty of threatening

Mr. R. Dayal, then Deputy Chief Engineer of Respondents No. 2 -

Corporation. Impugned order (Annexure P-22) is based on the Inquiry

Report (Annexure P-17).

5. Challenge to the impugned order (Annexure P-22) by the

Petitioner is on the ground that there is no evidence on record to

support the charge against the Petitioner and the alleged incident, in

fact, did not take place. Gross violation of principles of natural justice

is alleged by the Petitioner by asserting that opportunity to cross-

examine of the witnesses was not afforded to the Petitioner and thus,

there is a denial of a legal right, which vitiates the inquiry proceedings

and thereby nullifying the impugned order (Annexure P-22). The

grievance made by the Petitioner that he was pitted against the

Respondents No. 2 - Corporation, who was defended by the

Presenting Officer, who was a Law Officer earlier, and thus, the

Petitioner was discriminated against by the Respondents No. 2 -

Corporation. Finally, it is stated on behalf of the Petitioner that the

order (Annexure P-25) dismissing Petitioner's statutory Appeal is a

non-speaking order, which is against principles of natural justice.

6. To meet the aforesaid case set up by the Petitioner, contesting

Respondents No. 2 - Corporation, in its counter affidavit, has denied

that the Petitioner was not allowed to have the assistance of Mr. N.P.

Kapila, Deputy Manager (Finance) SAIL to assist the Petitioner in the

W.P. (C) No. 2250/1994 Page 4 inquiry proceedings. It is pointed out that vide letter of 22nd October,

1988, the Petitioner was granted permission, who had Mr. Kapila as

his Defence Assistant and it is categorically denied that the

employers of Mr. Kapila has refused to relieve him to assist the

Petitioner in the inquiry proceedings. It has been specifically denied

that the Petitioner was not permitted to join the inquiry proceedings

on 8th October, 1992. The stand of the contesting Respondents No. 2

- Corporation is that since the order based on Inquiry Report was

legal, therefore, it was accepted by the Appellate Authority and in

such a situation, the order of the Appellate Authority need not be a

speaking one. It is asserted by the contesting Respondent that the

principles of natural justice have been complied with and the

punishment awarded is proportionate to the charge proved and

therefore, this petition deserves dismissal.

7. In the rejoinder filed by the Petitioner, the contents of the writ

petition have been reiterated.

8. After having heard counsel for the parties and upon perusal of

the material on record, I find that what is required to be seen is that

as to whether the Petitioner was granted an effective opportunity of

hearing or not, or whether there is violation of principles of natural

justice or not.

9. The charge (Annexure-I) framed against the Petitioner is as

under:-

W.P. (C) No. 2250/1994 Page 5 "Shri Azad Singh, while functioning as UDC in the NRDC, on 11th February, 1988 at about 7.30 PM had misbehaved with a senior Officer of NRDC, namely Shri R. Dayal, Dy. Chief Engineer, by abusing him and threatening him with dire consequences, when Shri R. Dayal was leaving the office premises after official duties Shri Azad Singh was also found to be in a drunken state during the above alteration.

Shri Azad Singh, by his above acts, exhibited lack of devotion to duty, and conduct unbecoming of an employee of NRDC, thereby contravening Rule 22 and is also violating of Rule 3(1)(ii)(iii) of the Central Civil Services (Conduct) Rules, as applicable to the employees of NRDC.

Sd/- N.K. Sharma"

10. The three points for determination as formulated by the Inquiry

Officer in these inquiry proceedings are as follows:-

"(i) Whether Shri Azad Singh was present at the main gate of the office between 7.30 PM on 11.12.1988.

(ii) Whether Shri Azad Singh was under the influence of liquor on 11.12.1988 at the time of altercation.

(iii) Whether Shri Azad Singh use abusive language against Shri R.Dayal and threatened to shoot him."

11. According to the contesting Respondents, this incident was

witnessed by Mr. P.T. Mathew, Mr. Balbir Singh (Security Guard) and

Driver - Ram Lal and their evidence was recorded by the Inquiry

W.P. (C) No. 2250/1994 Page 6 Officer on 8th October, 1992. As per the proceedings sheet,

(Annexure P-19) of this date, Petitioner was telegraphically informed

a day earlier about this hearing and the Petitioner did not appear

before the Inquiry Officer on 8th October, 1992 and as reflected in the

inquiry proceedings (Annexure P-19), he had sent a letter, whereby

he had stated that he was not allowed to enter the premises of the

Respondents No. 2 - Corporation. It is interesting to note that in the

appeal (Annexure P-23), the stand taken by the Petitioner was that

he could not appear before the Inquiry Officer on the date when the

evidence was recorded because he had received telegram on the

date of hearing at noon time, i.e., at 1 PM, whereas, the inquiry was

fixed on that day at 10.30 AM. No grievance has been made by the

Petitioner in his appeal (Annexure P-23) about the lack of assistance

to him in the inquiry proceedings, nor is it stated in the appeal

(Annexure P-23) that the request of the Petitioner to provide Mr. N.P.

Kapila, as Defence Assistant was denied by Respondents No. 2 -

Corporation to him.

12. In the written synopsis filed by the Petitioner, he has maintained

that he had received the telegram on 8th October, 1992 at noon time,

i.e., at 1 PM and when the Petitioner had reached the office of the

Respondents No. 2 - Corporation on that day, he was not allowed to

enter the premises.

W.P. (C) No. 2250/1994 Page 7

13. To test the aforesaid stand of the Petitioner, the proceeding

sheet (Annexure P-19) of the next date of hearing before the Inquiry

Officer, i.e., of 21st October, 1992, has been perused and it reveals

that Petitioner had informed the Inquiry Officer that he could not

appear on the last date because he had received the telegram on the

day of the hearing only, i.e., on 8th October, 1992, but it is matter of

record that the telegram (Ex.D-1) indicated that it was sent on 7th

October, 1992 and it had the stamp and date on it. What is pertinent

to note is that it is evident from this order sheet (Annexure P-19) that

the Petitioner had not requested the Inquiry Officer to recall the

witnesses of the Department for cross-examination and on that day,

Petitioner had stepped into witness box and had deposed before the

Inquiry Officer. Not only that, he had got two more witnesses

examined in his defence.

14. This court is conscious of the fact that the merits of the case

are not to be gone into in the writ proceedings and the evidence on

record is not to be re-appreciated. However, for a limited purpose,

evidence of the Petitioner (Annexure P-19) needs to be looked into

and the purpose is to find out as to whether the Petitioner, in his

evidence, had stated anything about the circumstances which

restrained him from participating in the inquiry proceedings. Evidence

of the Petitioner (Annexure P-19) is completely silent about the

grievances made by the Petitioner before this court, i.e., regarding

W.P. (C) No. 2250/1994 Page 8 lack of assistance by Defence Assistant and about Petitioner

receiving telegram in the noon time on the date of hearing or about

alleged vindictive attitude of respondent Nos. 2 & 3. It is also silent

regarding petitioner being stopped from entering venue of Inquiry on

8th October, 1992. Nothing had stopped the Petitioner from placing on

record the certificate of the Postal Authorities and of proving it to

show that the telegram was received by him on the date of hearing,

i.e., on 8th October, 1992 at noon time.

15. Now the Petitioner cannot be heard to say that he was not

given effective opportunity to cross-examine the witnesses or that he

was not permitted to have the assistance of a Defence Assistant. In

the face of the evidence of Mr. P.T. Mathew, Senior Assistant,

Complainant - Mr. R. Dayal and Driver - Mr. Ram Lal (Annexure P-19

(colly) it cannot be said that the present case is of no evidence.

Petitioner, in his evidence before the Inquiry Officer, has taken a plea

of alibi, which has not been accepted by the Inquiry Officer.

According to the Petitioner the charge against him was of threatening

Mr. R. Dayal with dire consequences, whereas, as per Inquiry Report

(Annexure P-17), Petitioner was found guilty of threatening to shoot

Mr. R. Dayal. I fail to understand as to what difference aforesaid

variation in the nature of the allegation would make. There is no

worthwhile difference between threatening a person with dire

W.P. (C) No. 2250/1994 Page 9 consequences and of threatening to shoot him. It is nothing more

than hair splitting.

16. Since the Petitioner did not avail of the opportunity to cross-

examine the witnesses of the department, therefore, it does not lie in

the mouth of the Petitioner to say that there is delay of four days in

lodging of the complaint by Mr. R. Dayal. It was open for the

Petitioner to have cross-examined the Complainant about it. Since

there is no denial of the opportunity to the cross-examine the witness

of the department by the Respondent, therefore, it cannot be said that

there is any violation of principles of natural justice.

17. Upon perusal of the Inquiry Report (Annexure P-17), I find that

it does not disclose any non-application of mind. In fact, Inquiry

Report (Annexure P-17) reveals that the Inquiry Officer has fully

applied his mind and has come to a conclusion that it did not stand

proved that the Petitioner was under the influence of liquor. However,

the plea of alibi of the Petitioner has been rejected by the Inquiry

Officer of merits, while dealing with the evidence and the Inquiry

Officer has fairly concluded that the charge stands partially proved to

the extent that the Petitioner had threatened Mr. R. Dayal and this

conduct of the Petitioner is unbecoming of an employee, which is

violating of Rule 3(1)(iii) of the Central Civil Services (Conduct) Rules,

1964.

W.P. (C) No. 2250/1994 Page 10

18. In my considered view, the Inquiry Officer has acted in a most

fair manner in conducting the inquiry and the impugned order

(Annexure P-22) based upon the Inquiry Report (Annexure P-17)

does not suffer from any material or procedural irregularity.

19. As regards order of the Appellate Authority (Annexure P-25) is

concerned, it is evident therefrom that it has concurred with the

impugned order (Annexure P-22), which is based upon the Inquiry

Report (Annexure P-17), which is self speaking and detailed one.

When the Appellate Authority affirms the decision of the Disciplinary

Authority, then it need not give separate reasons. It has been so

declared by the Apex Court in the case of "S.N. Mukerjee vs. Union of

India", (1990) 4 SCC 594. I do not find any infirmity in the decision

making process adopted by the Respondents No. 2 - Corporation,

nor do I find any violation on the principles of natural justice by the

Respondents No. 2 - Corporation in this case. The Inquiry Report

(Annexure P-17) and the impugned order (Annexure P-22) based

thereon is well considered order and it does not stand vitiated by any

extraneous consideration. Impugned order is neither arbitrary nor

capricious. No good ground for quashing the impugned order is made

out. This petition deserves dismissal and is accordingly dismissed.

20. No costs.

SUNIL GAUR, J.

August 04, 2009
Pkb/rs


W.P. (C) No. 2250/1994                                          Page 11