Puran Chand vs Bses Rajdhani Power Limited
2009 Latest Caselaw 3134 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C.) No. 10818/2009

%                   Date of Decision: 12th August, 2009


# PURAN CHAND.
                                                    ..... PETITIONER
!                   Through: Mr. Nagender Deswal, Advocate.

                                   VERSUS

$ BSES RAJDHANI POWER LTD.
                                                          .....RESPONDENT

^                   Through: Nemo.

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not?YES

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

S.N.AGGARWAL, J (ORAL) The petitioner in this writ petition is aggrieved by an industrial

award dated 16.05.2009 passed by the Industrial Adjudicator by which

his removal from service of the respondent has been found to be just and

legal.

2        Heard.

3        The petitioner was appointed as a Mazdoor in Delhi Electrical

Supply Undertaking and after he had worked for about 26 years in DESU,

he was served with a charge-sheet vide Office Memorandum dated

09.03.1988. The article of charges framed against him are contained in

document, Annexure P-5 at page 80 of the paper book which is extracted

below:-

"Shri Pooran Chand while working as Mazdoor DESU in Zone- 702, R.K. Puram, New Delhi during the period 1981-82 but bogus

signatures on dockets No. 983, 1370, 1658 and 1659 and draw the huge electrical material from Jangpura Store of DESU against the same illegally and unauthorisedly in the name of Sharan Kumar. This material was neither required nor reached the site for the purpose of maintenance and thus misappropriated the same.

Thus Shri Pooran Chand committed misconduct by failing to maintain absolute integrity and devotion to duty and thereby contravened the provisions of Rules 3 (1)(i) & (ii) of the CCS (Conduct) Rules, 1964."

4 A domestic inquiry into the charges was held against the petitioner

in which he was found guilty of the charges leveled against him. A

criminal case vide RC No.29/1985 was also registered against the

petitioner under Section 120-B read with Section 409, 467 & 471 IPC but

he was acquitted in the said criminal case vide judgment and order dated

26.09.1989 passed by Mr. Dinesh Dayal, then MM, New Delhi. The

domestic inquiry against the petitioner was started in 1988 and was

completed sometime in 1996. By the time inquiry against the petitioner

was completed, he had already been acquitted in the criminal case.

However, the disciplinary authority after considering the inquiry report

and other relevant material decided to remove the petitioner from its

service and accordingly the petitioner was removed from the service of

the erstwhile DESU w.e.f. 03.04.1996. The petitioner aggrieved by his

removal from service of erstwhile DESU filed a statutory appeal before

the Appellate Authority but his appeal was rejected by the Appellate

Authority vide its order dated 29.10.1997. After dismissal of his appeal by

the Appellate Authority, the petitioner raised an industrial dispute with

regard to his removal from the service of the respondent (erstwhile

DESU) and the said dispute was referred by the appropriate Government

for adjudication to the Labour Court. The Labour Court vide its order

dated 06.05.2009 has decided the inquiry issue against the petitioner

and in favour of the respondent. After deciding the inquiry issue vide

order dated 06.05.2009 in favour of the management, the court below

vide impugned award dated 16.05.2009 has confirmed the removal of the

petitioner from the service of the respondent (erstwhile DESU).

5 Mr. Nagender Deswal, learned counsel appearing on behalf of the

petitioner has relied upon a judgment of the Hon'ble Supreme Court in

Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr, JT 1999 (2) SC

456 to contend that when a delinquent employee has been acquitted in a

criminal case, it would be unfair to remove him from service on the basis

of inquiry report. Mr. Deswal has placed reliance on para 34 of the

judgment in Capt. M. Paul Anthony's case (Supra) and para 34 of the said

judgment reads as under:-

"There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, the raid conducted at the appellant's residence and recovery of incriminating articles therefrom. The findings recorded by the Inquiry Office, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the raid and recovery at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow

the findings recorded at the ex-parte departmental proceedings, to stand."

6 I have given my anxious consideration to the above arguments

advanced by learned counsel appearing on behalf of the petitioner but I

could not persuade myself to agree with him. The judgment of the

Supreme Court in Capt. M. Paul Anthony's case is not applicable to the

facts of the present case. In Capt. M. Paul Anthony's case, the

departmental proceedings against the delinquent employee were ex-

parte and in that case, it was found that the management was not able

to prove the raid and recovery held at the residence of the delinquent

employee. This is not the case in the present case. It will be relevant to

refer to the findings of the Industrial Adjudicator contained in its order

dated 06.05.2009 on inquiry issue which is extracted below:-

"Now turning to evidence on record, the workman himself admitted in his cross-examination that it was correct that domestic enquiry was held against him in this matter and the name of enquiry officer was Sh.S.N. Jha; that he (workman) was informed about the first date of domestic enquiry by his counsel Sh. M.L. Saini; that this domestic enquiry continued for 23 years; that Sh. M.L. Saini used to appear with him (workman) in the domestic enquiry as defence nominee; that Ex. MW1/1 proceedings bear his signatures at point A and the signatures of his Defence Assistant at point B; that it was correct that enquiry officer used to get the signatures at the end of the proceeding and he attended every date of enquiry proceedings; that all other proceeding sheets which are part of Ex. MW1/1 running into 225 pages bear his signatures as well as signature of his Defence Assistant at points 'A' and 'B' respectively; that he received memorandum dated 09.03.88 with articles of charges in his office and he replied the same through his AR; that it was correct that he (workman) preferred an appeal against the order of his termination which was rejected by General Manager; that it was correct that Ex.

MW1/8 was the copy of rejection of his appeal; that he had appeared on each and every date of his proceedings before enquiry officer. In this way, it is crystal clear from the own admissions of the workman to the above effect coupled with other entire oral as well as documentary evidence on record that the domestic enquiry in this matter was conducted by the management against the workman fairly and properly in accordance with the principles of natural justice by giving all the reasonable and fair opportunities of being heard to the workman herein. Hence, the enquiry issue is decided against the workman and in favour of the management.

7 I am in complete agreement with the findings on the inquiry issue

recorded by the Industrial Adjudicator. A perusal of the above extracted

portion of the impugned order dated 06.05.2009 would show that the

petitioner had contested the inquiry proceedings thoroughly inasmuch as

225 pages of the inquiry proceedings were all signed by him. He had fully

participated in the inquiry proceedings and therefore, it cannot be said

that he could not defend himself in the inquiry proceedings. The charges

against the petitioner were proved against him in the domestic inquiry

held by the Inquiry Officer. Merely because he was acquitted in the

criminal case cannot be a ground to say that the charges against him

have not been proved. This Court exercising writ jurisdiction under Article

226 of the Constitution is not sitting in appeal over an award of the

Industrial Adjudicator. The High Court exercising writ jurisdiction under

Article 226 of the Constitution can interfere in the impugned award of the

Industrial Adjudicator only in case the findings contained in the impugned

award suffers from perversity.

8 On going through the record and after considering the submissions

made by learned counsel appearing on behalf of the petitioner, I do not

find any perversity in the impugned award that may call for an

interference by this Court in exercise of its writ jurisdiction under Article

226 of the Constitution.

This writ petition, therefore, fails and is hereby dismissed in limine.

AUGUST 12, 2009                                        S.N.AGGARWAL, J
'a'