N.K. Tripathi vs Govt. Of Nct Delhi & Ors.
2009 Latest Caselaw 2538 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
6.

+      LPA 169/2009


       N.K. TRIPATHI                               ..... Appellant
                             Through: Mr. Narendra Mukhi, Adv.

                         versus


       GOVT. OF NCT DELHI & ORS.            ..... Respondents
                      Through: Mr Rajiv Nanda, Adv.

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE MANMOHAN


                              ORDER

% 09.07.2009

The appellant was employed as a Demonstrator in Aditya Solar Show

Room under the DEDA w.e.f. 29.3.1993. On 8.8.1996, the appellant 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 Conditioners at Aditya Solar Shop

Respect Sir,

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

Regarding the matter I beg to say that 4 Nos of ACs 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.

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 take back all the ACs from officers residence. So that ACs may be installed in the Aditya Shop.

Thanking you,

Yours faithfully

Sd/- Dated: 08/08/1996 (NK Tripathi) Demonstrator."

2. The Director (E), DEDA appointed the Deputy Director as Enquiry

Officer to ascertain the truth of the allegations made by the appellant in the

above mentioned letter. The Deputy Director submitted a preliminary

enquiry report in which he concluded that the complaint made by the

appellant was totally vague and based on false assumptions.

3. On 28.11.1996, the appellant 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 complainant on 8.8.96 to Director (E) that out of the 4 ACs sanctioned for Aditya only 1 AC has been installed. He has alleged that some officers are using ACs 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) Rules 1964 as applicable to the employees of DEDA."

4. The Enquiry Officer gave a report on 6.11.1998 holding that the charge

against the appellant was proved. Accepting the report of the Enquiry

Officer, the Disciplinary Authority, respondent No.4 herein, by order dated

3.12.1998, dismissed the appellant from service. On 10.12.1999, the

departmental appeal filed by the appellant was dismissed by Respondent

No.3.

5. Being aggrieved, the appellant preferred a writ petition in this Court

being WP(C) No.1081/2000 in which he raised several contentions regarding

validity of the enquiry proceedings as well as the order of dismissal. The

writ petition was heard by Dr. S. Muralidhar, J. who, inter alia, held that there

was no illegality in the enquiry proceedings and the charges were proved.

The learned Judge, however, came to the conclusion that the penalty of

dismissal imposed on the appellant was disproportionate. After referring to

the decision of the Supreme Court in Union of India v. B.C. Chaturvedi,

(1995) 6 SCC 497, the learned single Judge observed:

"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 a moral turpitude. The noting on the file in 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 of 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 this 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 leveled against me in according to punishment granted by him.

13. That my abrupt dismissal from service on flimsy ground is whimsical, arbitrary and mala fide. This has forced me to starve to death along with all my family and this amount to deprivation of the fundamental

rights of myself 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, penalty in all and sundry cases, the authorities would end up 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."

(emphasis supplied)

6. Consequently, the learned Judge quashed the impugned order of the

Appellate Authority dated 10th December, 1999 and directed the Appellate

Authority to once again consider the question of the quantum of punishment.

The appellant was 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 would give him a personal hearing. The learned Judge also

noted that DEDA has ceased to be operational and the directions given in the

judgment would have to be complied with by the appropriate authority in the

Government of NCT of Delhi, under which the DEDA was functioning before

its closure.

7. In pursuance of the above decision of the learned Judge, the Appellate

Authority granted personal hearing to the appellant and vide his order dated

17.11.2006, modified the penalty of dismissal from service as compulsory

retirement. The order of the Appellate Authority dated 17.11.2006 is

reproduced below:

"ORDER

Whereas a charge sheet under rule 14 of CCS (CCA) Rules, 1965 was issued to Sh.N.K.Tripathi, Demonstrator, DEDA vide memo No.F.9(313)/ 96/DEDA/Admn/16641 dated 28.11.1996.

And whereas an inquiry into the charge enumerated in the charge sheet was held by Sh.Y.P.Manjula, Accounts, DEDA and the charges were proved in the said inquiry.

And whereas in the exercise of the power conferred under CCS(CCA) Rule 1965 the Disciplinary Authority imposed a penalty of dismissal from service which shall ordinarily be a disqualification for further employment under the government on Sh.N.K.Tripathi, Demonstrator vide order No.F.9(313)/96/DEDA/Admn/273-278 dated 03.12.1998.

And whereas the appeal dated 16.12.1998 preferred by Sh. N.K.Tripathi, Demonstrator against the order of the Disciplinary Authority was rejected by the Appellate Authority vide order No.F.9(313)DEDA/Admn/748 dated 10.12.1999.

And whereas the Hon'ble High Court of Delhi vide order dated 22nd September, 2006 ( received on 16th October, 2006) in the matter of N.K.,Tripathi Vs. Govt. of NCT of Delhi in WP (C) No.1081/2000 set aside the order dated 10th December, 1999 passed by the Appellate Authority and directed to reconsider the departmental appeal of the petitioner herein, limited to the question of quantum of punishment, and pass a reasoned order thereon not later than 17th November, 2006 under intimation to applicant. It is further directed to pass appropriate consequential orders, if any.

And whereas the Hon'ble High Court of Delhi vide above said order directed to give the petitioner a notice of personal hearing, also through the counsel for the petitioner, on any date after 20th Oct.2006 and not later than 3rd Nov. 2006.

And whereas, the Hon"ble Court of Delhi vide above said order permitted the petitioner 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 the date of above said orders and in any event not later than 3rd October, 2006.

And whereas, a notice bearing No.9 (313096/ DEDA/Admn/6788-90 dated 26/10/06 was issued to Sh. N.K.Tripathi for personal hearing on 31/10/06. And Sh.N.K.Tripathi was heard, in person, by me on 31st October, 2006.

And whereas, Sh.N.K.Tripathi has not placed any further relevant material or documentary evidence to the question of quantum of punishment before me.

Now, therefore, I, J.K.Dadoo, Chairperson, DEDA/Appellate Authority, in compliance of the order of

Hon'ble High Court of Delhi dated 22/09/06 in WP(C) No.1081/2000 and also taking into consideration of the relevant records and facts and circumstances of the case in detail and in the larger interest of justice, in exercise of the powers conferred under CCS(CCA) Rules, 1965, modify the penalty of dismissal from service imposed upon Sh. N.K.Tripathi, Demonstrator by the disciplinary authority vide order NO.F.9/(313)96/DEDA/Admn/ 273-278 dated 03.12.1998 as compulsory retirement.

I order accordingly,

Sd/-

(J.K.Dadoo) Chairperson, DEDA/Appellate Authority"

8. The appellant challenged the order of the Appellate Authority in WP(C)

No. 151/2007. The writ petition was dismissed in limine by the learned

single Judge by the impugned order dated 13.2.2009. Being aggrieved, the

appellant has preferred this Letters Patent Appeal under Clause 10 of Letters

Patent.

9. Learned counsel appearing for the appellant strenuously contended

that the imposition of punishment of compulsory retirement in the instant

case by the Appellate Authority in fact amounted to imposition of

punishment of dismissal. This according to him is on account of the fact that

even by passing an order of compulsory retirement, the appellant would not

be benefitted because the total number of years of service which has been

rendered by the appellant with the respondent is only about five years or so.

Learned counsel submitted that the Appellate Authority did not pass a

speaking order in spite of the specific directions issued by Dr. S. Muralidhar,

J. Learned counsel submitted that the effect of the order of the Appellate

Authority is economic death to the appellant and his family. On the other

hand, the learned counsel appearing for the respondents submitted that the

learned single Judge has taken into consideration all the aspects of the

matter and has rightly dismissed the petition and that there is no need to

interfere with the order of the learned single Judge.

10. We have given our anxious consideration to the submissions made at

the Bar and in our view, it is impossible to sustain the order of the Appellate

Authority. In the first place, the Appellate Authority did not pass a speaking

order even though a specific direction was given by this Court in WP(C)

No.1081/2000. The Appellate Authority merely stated in his order that after

taking into consideration the relevant records and the facts and

circumstances of the case and in the larger interest of justice he is

substituting the penalty of dismissal by compulsory retirement. This is not a

reasoned or a speaking order. The Appellate Authority did not consider the

findings recorded by Dr. S. Muralidhar, J. in his order dated 22.9.2006. The

Appellate Authority also failed to consider the effect of the punishment on

the appellant and whether any other lesser punishment would be more

appropriate in the facts and circumstances of the case. By substituting the

punishment of dismissal by compulsory retirement, the Appellate Authority

has virtually maintained his earlier order of dismissal inasmuch as the

appellant, having not rendered the requisite period of qualifying service, is

not entitled to any pensionary benefits and the compulsory retirement, in the

facts of the case, operates as dismissal. Ordinarily we would have remitted

the matter back to the Appellate Authority for a fresh consideration of the

matter, but having regard to the fact that the appellant has been out of

service for more than ten years and the matter has been once remanded to

the Appellate Authority, we feel it appropriate to impose a lesser punishment

in terms of the order dated 22.9.2006 passed by Dr. S. Muralidhar, J. Having

considered the nature of the charge proved against the appellant, we are of

the view that a punishment of stoppage of two increments for a period of two

years without cumulative effect would serve the ends of justice.

11. In the result, the appeal is allowed. The punishment of compulsory

retirement is substituted by the punishment of stoppage of two increments

for a period of two years without cumulative effect. The respondents are

directed to reinstate the appellant with 25% back wages and consider him

for absorption in some department of the Government of NCT of Delhi on the

similar lines as other employees of DEDA were absorbed in the State

Government service.

CHIEF JUSTICE

MANMOHAN, J JULY 09, 2009 pk