Balvinder Singh Nigah vs General Manager (Operations) ...
2009 Latest Caselaw 2852 Del

*                   HIGH COURT OF DELHI : NEW DELHI

              Judgment reserved on: July 21, 2009
            Judgment pronounced on: July 27, 2009

+                        W.P. (C) No. 6641 of 2002

%       Balvinder Singh Nigah              ... Petitioner
                  Through: P.P. Khurana, Senior Advocate,
                            with Ms. Tamali Wad, Mr.
                            Birender Singh and Ms. Seema
                            Pandey, Advocates

                                  versus

        General Manager (Operations)
        Hotel Corporation of India Limited ... Respondent
                  Through: Mr. Sandeep Sethi, Senior
                            Advocate with Mr. Sumit Gahlot,
                            Advocate.

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 1st December, 1991, petitioner - Balvinder Singh

Nigah, was working as Assistant Manager (Catering) with

respondent - Hotel Corporation of India, Delhi, a wholly

owned company of Air India and he had attended Flight

No. AI-III, which had arrived from Chennai (Madras) at

Delhi Airport (Domestic) and Mr. Anil Bhise, Aircraft

W.P. (C) No. 6641/2002 Page 1 Engineer called the petitioner inside the Aircraft and

showed a suspicious object to the petitioner, which was

found inside the First Class Gallery of the Aircraft and it

turned out to be an explosive device i.e. a bomb which

was planted to blow up the Aircraft.

2. In respect of the aforesaid incident, criminal

proceedings were launched against the petitioner and the

petitioner was interrogated and was charged with

commission of offence under the Explosive Substance Act,

read with provisions of TADA Act. It is a matter of record

that the criminal proceedings, against the petitioner,

ended in his acquittal on 4th February, 2002, as the

prosecution was not able to prove its case beyond

reasonable doubt. However, respondent had served a

Charge-sheet, Annexure P-15, on the petitioner, on 9th

May, 2002, regarding the aforesaid incident and in

substance, the charge against the petitioner was that he

was not allocated Flight No. A1- III, but still the petitioner

was found on the aforesaid Flight and this amounted to

misconduct under the Hotel Corporation of India

Employees' Service Regulations (herein after referred to

as the "Regulations"). In pursuance to the charge-sheet,

Annexure P-15, domestic inquiry commenced.

W.P. (C) No. 6641/2002 Page 2

3. The main relief sought in this petition is to quash the

charge-sheet, Annexure P-15, as on the subject matter of

this charge-sheet, the petitioner was tried by a criminal

court and was acquitted. According to the petitioner,

serving of the charge-sheet, Annexure P-15, upon the

petitioner is an abuse of the powers by the respondent

and is mala-fide. The other reliefs sought in this petition

are of striking down Regulation- 76(3) of the Regulations

in question, being ultra vires the Constitution of India.

Subsistence allowance was also claimed for the period

petitioner had remained behind bars in the criminal case.

4. Learned Senior Counsel for the petitioner points out

that in view of the order of 14th February, 2007, the

challenge to the constitutional validity of Regulation-76(3)

of the Regulations in question had become entirely

academic and he presses this petition only in respect of

the validity of the charge-sheet, Annexure P-15, in the

face of the verdict of acquittal returned by the criminal

court in favour of the petitioner.

5. By virtue of the interim orders passed by this Court in

this petition, departmental proceedings against the

petitioner continued and culminated into an Inquiry Report

in August, 2002, but the same could not be acted upon by

the respondent, as this court had restrained the W.P. (C) No. 6641/2002 Page 3 respondent from implementing it, in case it was adverse

to the petitioner. However, the Disciplinary Authority was

allowed to proceed to pass an order on the Inquiry Report

and this was done by this Court on 25th July, 2006.

However, learned Senior Counsel for the respondent

states that respondent has not passed any order based

upon the Inquiry Report. Copy of Inquiry Report has been

placed on record by the respondent.

6. In short, the case of the petitioner is that the charge-

sheet, Annexure P-15, is not only vague but also does not

constitute misconduct within the meaning of Regulation-

60 of the Regulations in question and the charges have to

be definite as per Regulation-80 of the aforesaid

Regulations. According to the learned Senior Counsel for

the petitioner, after acquittal of the petitioner in the

criminal case, what remains in the charge-sheet is that

petitioner had attended Flight No. A1-III, though he was

not allocated the said Flight and nothing further is stated

as to what was the misconduct or adverse consequence of

petitioner's attending the aforesaid Flight. Furthermore, it

has been vehemently argued by learned Senior Counsel

for the petitioner that the Show Cause Notice/ charge-

sheet, Annexure P-15, is vitiated by long, inordinate

unexplained delay as the alleged incident is of December, W.P. (C) No. 6641/2002 Page 4 1991, whereas the impugned charge is of May, 2002. It

has been pointed out by learned Senior Counsel for the

petitioner that it was open to the respondent to have

initiated departmental action against the petitioner after

the incident in question but the respondent awaited the

outcome of the criminal trial and has thereafter, now,

belatedly instituted departmental proceedings against the

petitioner, which smacks of balant arbitrariness and ought

not to be, allowed to continue. Reference has been made

to the decisions reported in AIR 1984 SC 1361; 1994 (4)

SLR 397; (1986) 3 SCC 454; 1967 (2) SLR 476; AIR 1957

SC 51 and 1990 (supl) SCC 738 to assert that there has to

be a valid charge-sheet, upon which domestic inquiry can

proceed and a fair hearing presupposes a precise and a

definite charge, which can be understood and effectively

met during the inquiry proceedings and if the charges are

vague, it is a fatal defect, which vitiates the entire

proceedings.

7. There can be possibly no dispute with above referred

legal position. However, respondent refutes the aforesaid

factual stand of the petitioner and learned Senior Counsel

for the respondent points out that the essence of the

charge against the petitioner was that he unauthorizedly

handled Flight No. A1-III, which was not allocated to him W.P. (C) No. 6641/2002 Page 5 and thereby, the petitioner has contravened Clauses-

60(5), 60 (20) and 60(25) of the Regulations of the

respondent. Thus, it is argued on behalf of the respondent

that there is no vagueness or ambiguity in the charge-

sheet, Annexure P-15, and the present petition is

premature. Reliance has been placed upon the decisions

of the Apex Court reported in JT 2005 (8) SC 425; JT 2006

1 SC 444; 2007 (II) AD (SC) 930; 1994 (1) SCALE 631; AIR

2005 SC 3417 and JT 2005 (8) SC 425 to contend that

acquittal of the delinquent employee by a criminal court

cannot preclude the respondent-Corporation from taking

action against the delinquent, as it is permissible under

the Rules. In the last, it has been urged on behalf of the

respondent that the petitioner has not assailed the Inquiry

Report in these proceedings and as per the Regulation-79,

it is the Disciplinary Authority which is required to take the

decision on the Inquiry Report and if the petitioner is

aggrieved by the decision of the Disciplinary Authority, he

has a remedy of appeal under Regulation-87 in question.

8. After having heard both the sides and upon perusal

of the material on record and the decisions cited, I would

like to state at the very outset that the scope of the

disciplinary proceedings and the criminal proceedings is

distinct and independent of each other. While considering W.P. (C) No. 6641/2002 Page 6 the correctness of the decision of the Disciplinary

Authority, the court is not be influenced by the outcome of

criminal proceedings. Apex Court in the case of "Ajit

Kumar Nag vs. General Manager (PJ) Indian Oil Corporation

Ltd. and others" 2005 SCC (L & S) 1020 on this aspect

has observed as under:-

"The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused, "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability".

9. In any case, what this court is required to examine at

this stage is not the merits of the charge which has been

found to be proved against the petitioner vide Inquiry

Report of 29th August, 2002, but is required to see if the

charge-sheet, Annexure P-15, is vague and is hit by

Regulation-80, which requires the charges to be definite

W.P. (C) No. 6641/2002 Page 7 one. The relevant Clause- 3 of Regulation-80 in question

reads as under:-

"Where it is proposed to hold an inquiry, the disciplinary authority shall frame definite charges on the basis of the allegations against the employees. The charges together with a statement of the allegations, on which they are based, a list of documents by which and a list of witnesses by whom, the articles of charge are proposed to be sustained, shall be communicated in writing to the employee, who shall be required to submit within such time as may be specified by the Disciplinary Authority (not exceeding 7 days) a written statement whether he admits or denies any of or all the Articles of Charge".

10. A bare perusal of the charge-sheet, Annexure P-15,

spells out that the petitioner was not allocated Flight

No.1A-III, but he had attended the said Flight. Whether the

aforesaid conduct of the petitioner results into breach of

any Regulation or not, is a matter which is required to be

gone into in the domestic inquiry and it would be

premature to conclude at this stage whether the aforesaid

conduct of the petitioner would amount to a misconduct or

not? I am of the considered view that the charge-sheet,

Annexure P-15, is not vague and is not hit by Regulation-

80, which requires the respondent-Department to frame a

definite charge against the delinquent employee/

petitioner. In any case, since the petitioner has already

faced the inquiry and the copy of the Inquiry Report is on

record, therefore, the petitioner ought to avail of remedy W.P. (C) No. 6641/2002 Page 8 of appeal against it after the Disciplinary Authority passes

an order on the basis of the Inquiry Report in question.

11. In the light of the aforesaid, this petition is dismissed

and the Disciplinary Authority of the respondent is

directed to expeditiously pass an appropriate order in

accordance with law on the Inquiry Report of 29th August,

2002, and thereafter, in terms of Regulation-87, the

petitioner would have the remedy of appeal against the

order passed on the basis of the Inquiry Report.

12. This petition is accordingly disposed of while making

it clear that this Court in the present proceedings has not

gone into the merits of the charge-sheet, which is

required to be looked into by the Disciplinary Authority

and the Appellate Authority concerned, if needed.

13. No costs.

Sunil Gaur, J.

July 27, 2009
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W.P. (C) No. 6641/2002                                           Page 9