Brahm Prakash vs Union Of India & Ors.
2009 Latest Caselaw 2853 Del

*           HIGH COURT OF DELHI : NEW DELHI

            Judgment reserved on : July 20, 2009
            Judgment delivered on: July 27, 2009

+                  W.P. (C) No. 6396/2003

Brahm Prakash                               ...   Petitioner
                   Through: Petitioner in person.

                                versus

Union of India & Ors.                  ...  Respondents
                Through: Ms. Padma Priya, 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. Unauthorized absenteeism by the Petitioner in the year 2001,

while he was working as Assistant Manager, Centaur Hotel, New

Delhi, led to his removal from service, consequent upon a

departmental inquiry, which is under challenge in this petition.

2. Initially, the departmental inquiry against the Petitioner was

conducted by Shri S.K. Bakshi, Deputy General Manager of the

Respondent - Hotel and as per the Inquiry Report (Annexure P-17),

Petitioner did not participate in the said inquiry and in the meanwhile

W.P. (C) No. 6396/2003 Page 1 Inquiry Officer Mr. S.K. Bakshi was transferred outside Delhi and the

inquiry against the Petitioner was conducted by Shri K.S. Panwar.

Petitioner was informed to appear before the Inquiry Officer Mr. K.S.

Panwar, on 24th April, 2003 at 14.30 hours, but the Petitioner did not

appear and another chance was given to the Petitioner to explain his

position. But, due to the non-appearance of the Petitioner before the

Inquiry Officer, the inquiry proceeded ex-parte. Ms. D. Sangma,

Deputy Manager, Mr. Mahesh Sharma, Senior Assistant Manager

Lobby, Mr. R.D. Sharma, Assistant Manager Lobby (Times Office In-

charge) of the Respondent-Hotel, had deposed in the inquiry

proceedings.

3. The finding of the Inquiry Officer as per the Inquiry Report of

10th June, 2003 (Annexure P-17) is as under:-

"All the above factors/observations confirm that Mr.Brahm Prakash is habitual absentee and irregular in attendance. He has not shown any improvement on the lapses on his part in spite of best efforts made by his colleagues, seniors and the management. Hence, the above omissions and commissions on the part of Mr. Brahm Prakash are clear violation of Regulation 60 of the Hotel Corporation of India Limited Employees Service Regulations and as such the charges of misconduct leveled against him vide charge sheet No.HO/Admn/122, dated 10/15.1.2002 are proved and he is responsible for these lapses on his part."

W.P. (C) No. 6396/2003 Page 2

4. Respondent-Hotel vide order of 23rd July, 2003, (Annexure P-

19), imposed the penalty of removal from service upon the Petitioner

under Regulation 78 of the Hotel Corporation of India Limited

Employees Services Regulations.

5. Regulation 87 of Hotel Corporation of India Limited Employees

Services Regulations, as applicable, provides for statutory Appeal

against the Inquiry Report (Annexure P-17), but the Petitioner did not

avail of it. The reason for not availing of the remedy of statutory

Appeal, as given by the Petitioner, is that statutory Appeal had to be

filed before the Managing Director of the Hotel Corporation of India

and in March, 2003, Shri R.C. Aggarwal was the Managing Director

of the Hotel Corporation of India and he had harbored ill will against

the Petitioner, as in March, 2003, the first wife of Mr. R.C. Aggarwal,

alongwith his son, came to the office of Hotel Corporation of India and

requested the Petitioner that they wanted to meet Mr. R.C. Aggarwal

and the Petitioner did not know about the strained relations of Shri

R.C. Aggarwal with his first wife and he had sent his first wife with her

son inside to meet Mr. R.C. Aggarwal and due to this, Mr. R.C.

Aggarwal was unhappy with the Petitioner and deliberately the Inquiry

Officer was changed, as the earlier Inquiry Officer Shri S.K. Bakshi

had exonerated the Petitioner from the charge of absence from duty

on 5th March, 2002 and the charge sheet of 10th/15th January, 2002

was dropped. According to the Petitioner, he was surprised to learn

W.P. (C) No. 6396/2003 Page 3 on 22nd May, 2002 that Mr. S.K. Bakshi, Deputy General Manager,

Administration had been appointed as an Inquiry Officer in respect of

charge sheet of 15th January, 2002 regarding the charge of

unauthorized absence from duty against the Petitioner. Order of 5th

March, 2002, (Annexure P-6) purporting to exonerate the Petitioner

is, infact, an order granting leave to the Petitioner from the period

from 21st December, 2001 to 2nd March, 2002, but without pay. It

does not talk of exoneration of the Petitioner of the charges, as

contained in the Charge sheet (Annexure P-4).

6. Petitioner has sought to justify the absence from duty of

seventy six days by stating that his father had expired on 9th January,

2002 and his mother was bed ridden owing to cataract and he was

the only person, who was to look after his ailing parents and he was

pre-occupied with the treatments of his ailing parents.

7. Petitioner has relied upon an order of 23rd May, 2002 of the

Respondent-Hotel to show that in a similar case of absence from

duty, similarly placed employee, Mr. R. Malik, of the Respondent-

Hotel, was let off with a warning, whereas in the case of the

Petitioner, a harsh punishment of removal from service has been

arbitrarily imposed, which is patently illegal. Re-instatement in service

with retrospective effect with consequential benefits has been sought

by the Petitioner.

W.P. (C) No. 6396/2003 Page 4

8. The contesting Respondents in the counter affidavit, have

raised preliminary objection regarding maintainability of this petition

and have asserted that effective alternate remedy by way of appeal

was available to the Petitioner, which has not been availed of. On

merits, it has been stated by Respondents that the facts have been

distorted and present petition is mis-conceived.

9. In the rejoinder, the averments made in the Writ Petition have

been reiterated by the Petitioner.

10. Petitioner has chosen to argue this petition himself and had

submitted that he has already placed on record his written

submissions and had urged this Court to decide this petition in the

light of the written submissions, placed on record by him.

11. Counsel for Respondents has also placed on record a short

synopsis of submissions. Both the sides have made oral submissions

as well. The written submissions placed on record by the Petitioner

are more or less on the same lines as is the Writ Petition.

12. The reason put forth by the Petitioner for by-passing alternate

remedy of appeal and review, as provided under Regulations 87 and

88 of Hotel Corporation of India Limited Employees Services

Regulations is that Mr. R.C. Aggarwal, Managing Director of the

Respondent-Hotel was biased against him. In deciding the question

of bias, human probability and ordinary course of human conduct

W.P. (C) No. 6396/2003 Page 5 have to be taken into consideration. Apex Court in "Dr. G. Sarana vs.

University of Lucknow and others", AIR 1976 SC 2428, on the bias

aspect, has observed as under:-

"What has to be seen in a case where there is an allegation of bias in respect of a member of an administrative Board or body is whether there is reasonable ground for believing that he was likely to have been biased."

13. Petitioner wants this Court to believe that simply because the

Petitioner had permitted first wife of Mr. R.C. Aggarwal, Managing

Director of the Respondent-Hotel to meet him in the office, would be

sufficient for Mr. R.C. Aggarwal to hold a grudge against the

Petitioner. In normal course, the Peon-cum-Attendant outside the

office of the Managing Director of the Hotel or the Private Secretary

of the Managing Director of the Hotel is the person, who would permit

any person to meet the Managing Director of the Respondent-Hotel

and that too, after the Managing Director agrees to meet such a

person. Petitioner does not state in his petition or in the written

submission as to what was the occasion for the first wife of

Mr.R.C.Aggarwal, to have come to the Petitioner and had sought the

permission from the Petitioner to purportedly meet her husband Mr.

R.C. Aggarwal. To say the least, allegation of bias, leveled against

Mr. R.C. Aggarwal, then Managing Director of the Respondent-Hotel

W.P. (C) No. 6396/2003 Page 6 lacks substance and is not sufficient to permit the Petitioner to by-

pass the remedy of Statutory Appeal.

14. The law must take its own course. This Court in "Tej Singh vs.

FCI, (152) 2008 DLT 243, has noticed that existence of alternative

remedy is not an absolute bar to exercise the jurisdiction under Article

226 of Constitution of India but at the same time, the person invoking

the writ jurisdiction, without exhausting the alternate remedy has to

make a strong case as to why the available remedy has not been

exhausted.

15. During the course of the arguments, it was brought to the notice

of this Court by counsel for the Respondent that Mr.R.C. Aggarwal is

no more the Managing Director of the Respondent-Hotel and it was

stated on behalf of the Respondents that the Petitioner must be

relegated to avail of the alternative remedy, which is efficacious one.

16. It stands acknowledged in "Madhukar & Ors. Vs. Sargam &

Ors.", AIR 2001 SC 2171, that remedy of appeal is valuable right. In

the facts of instant case, it would be indeed appropriate to relegate

Petitioner to avail of remedy of appeal.

17. This Court is conscious of the fact that the time for filing of the

statutory Appeal against the order of Inquiry Officer has elapsed but

since the Petitioner is being relegated to obtain the alternative

remedy, therefore, the time spent by the Petitioner here, before this

W.P. (C) No. 6396/2003 Page 7 Court, has to be excluded. Meaning thereby, Petitioner's statutory

Appeal under Regulation 87 of Hotel Corporation of India Limited

Employees Services Regulations shall be entertained by the Authority

concerned under the aforesaid Statute, as the delay in filling of the

statutory Appeal deserves to be condoned.

18. Petitioner is granted one month time from today to prefer the

statutory Appeal under Regulation 87 of the Hotel Corporation of

India Limited Employees Services Regulations against the impugned

orders (Annexure P-17 and Annexure P-19) and it is expected that

the Appellate Authority would expeditiously decide the Petitioner's

statutory Appeal, preferably within a period of three months of being

apprised of this order.

19. This petition is disposed of, with the observation that anything

stated herein shall not be taken to be an expression on merits while

deciding Petitioner's appeal.

20. No costs.

SUNIL GAUR, J.

July 27, 2009
pkb




W.P. (C) No. 6396/2003                                          Page 8