Shri Parmeshwar Prasad vs The Chairman & Managing Director, ...
2009 Latest Caselaw 2354 Del

        * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  WP (C) No. 162/1996

                                Judgment reserved on: 06.02.2009

%                               Judgment delivered on: 30.05.2009


Shri Parmeshwar Prasad,                          ...... Petitioner
                   Through: Mr. Mohinder J.S. Ruppal, Advocate

                   versus


The Chairman & Managing Director,
M/s NTPC                                        ..... Respondent
                  Through: Mr. Janaranjan Das, Advocate with
                  Mr. Swetaketu Mishra, Advocate for respondent.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

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

2.   To be referred to Reporter or not?                      Yes

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


KAILASH GAMBHIR, J.

*

By way of this writ petition filed under Articles 226/227 of

the Constitution of India and Articles 14 and 21 of the Constitution of

India the petitioner seeks to challenge the order of the disciplinary

authority dated 8.6.1995 whereby the Disciplinary Authority had

imposed the punishment of removal from service on the petitioner

from his post of Deputy Manager, PMI, NOIDA in terms of Rule 23 (f)

of the NTPC CDA Rules and of the order of the Appellate Authority

dated 13/16.10.1995 whereby the Appellate Authority upheld the

order passed by the Disciplinary Authority. The petitioner also seeks

directions to treat him in continuous employment of the NTPC with

full consequential benefits.

Brief facts of the case relevant for deciding the present

petition are as under:-

The petitioner joined the service of the National Thermal

Power Corporation (in short NTPC) on 26.11.1979 as Executive

Trainee and after completion of training on 25.11.1980 he was posted

in Contracts Department w.e.f. 26.11.1980. On 20.12.1990 a charge

sheet was issued to the petitioner leveling allegations of passing

official information for monetary considerations to M/s Modern

Insulators Ltd., Abu Road in respect of the tender for supply of 400 KV

Solid Core Bus Post Insulators. In order to conceal his own identity,

the petitioner brought in his real uncle Shri Ram Naresh Prasad,

proprietor of M/s Global Construction Company and Sh. Shiv Kumar

Dua, Deputy Superintendent , (O&M), BTPS. The role assigned to

Sh. R.N. Prasad was to enter into an agreement with M/s Modern

Insulators Ltd., for sales promotion and to receive commission @ 2%

of ex works price of the package from them under the guise of liaison

work. Mr. S.K. Dua, enquiry officer of NTPC was introduced as

representative of M/s Global Construction Company to M/s Modern

Insulators Ltd. and he was assigned the role to pass on relevant

information obtained from the petitioner to M/s Modern insulators

Ltd. After pronouncement of the award of Package No. CC-4930-510

for Kahalgaon STPP in favour of M/s Modern Insulators Ltd. vide

letter dated 20.4.1988, it made payment to the tune of Rs.2,36,026.00

as credited in the current account No. F-5/736 of M/s. Global

Construction Company with State Bank of India, Kanhar Bagh, Patna.

As per the respondent, by this act, the petitioner not only exhibited

dishonesty in connection with the business of NTPC but also became a

beneficiary in acceptance of commission from M/s Global Construction

Company. According to the respondent, the petitioner not only acted

in a manner prejudicial to the interest of the company but also failed

to maintain good discipline and behavior and failed to maintain

absolute integrity and acted in a manner unbecoming of a public

servant. According to the charge sheet, the above acts of the

petitioner were violative of Rule 4 (1), (3) & 5 (1) (5) & 20 of CDA

Rules of NTPC. A similar charge sheet was also issued to S.K. Dua

who was named as co-accused in the charge sheet along with the

petitioner. An Inquiry Officer was appointed on 20.12.1990 to

inquire into the charge against the petitioner as well as against said

Sh. S.K. Dua. The Inquiry Officer held the inquiry jointly in the

matter. During the inquiry, the prosecution did not produce the only

material witnesses, namely, Sh. P.K. Rastogi and Sh. R. N. Prasad,

thereby depriving the petitioner valuable opportunity of cross-

examining them. As per the petitioner, while on the one hand, both

the material witnesses were withheld by the prosecution from the

inquiry, on the other hand, their earlier statements made during

investigation were wrongfully taken on record by the Inquiry Officer

and were also taken into consideration to indict the petitioner. The

Inquiry Officer submitted his report on 18.11.1991 holding the

charges as proved against the petitioner. The petitioner submitted his

objections on the report of inquiry on 21.4.1992 but the Disciplinary

Authority took inordinately long time to take the final decision. The

Disciplinary Authority passed his final order on 8.6.1995. While

passing the final order the Disciplinary Authority imposed the penalty

of removal from service on the petitioner but without dealing with the

objections raised by the petitioner against the finding of enquiry

report As per the petitioner, none of the charges leveled in the

charge sheet were proved against him and the conclusion of guilt and

the imposition of penalty were illogical and arbitrary. According to

the petitioner, the Disciplinary Authority adopted double standards in

the case of the petitioner in juxtaposition to the other officer Sh. S.K.

Dua who was exonerated on the ground that the statement of Sh. P.K.

Rastogi, of M/s Modern Insulators recorded by the investigating

officer cannot be taken on record since he failed to report before the

investigating officer but while implicating the petitioner the authority

relied on the statement of same very witness. The petitioner

preferred an appeal before the Appellate Authority on 10.7.1995 but

the same was rejected by a cryptic order dated 16.10.1995 without

dealing with the various grounds mentioned in the appeal and without

affording a personal hearing to the petitioner for which he had

earnestly requested. Aggrieved by the said two orders the petitioner

has preferred the present petition.

Counsel for the petitioner Mr. Mohinder Uppal vehemently

contended that the orders passed by the Disciplinary Authority and

the Appellate Authority are based on no material and are a classic

example of non-application of mind on the part of both these

Authorities. The order of the Disciplinary Authority, as per the

counsel for the petitioner, was also discriminatory as against the

petitioner since, based on the same charges, the other Officer Mr.

S.K. Dua who was also serving on the same post of Deputy

Superintendent in Badarpur Thermal Power Station, was exonerated.

The contention of the counsel for the petitioner was that Disciplinary

Authority had adopted double standards with regard to the case of the

petitioner and the said S.K. Dua who was charge sheeted being

involved in the same transaction and based on the same material the

Inquiry Officer held both of them guilty but the Disciplinary Authority

adopted a different yardstick in exonerating Mr. S.K. Dua while

awarding punishment of removal to the petitioner. According to the

counsel for the petitioner, the role assigned to Mr. S.K. Dua and that

to the petitioner was so inextricably intertwined that no separate

decision could have been taken by the Disciplinary Authority that too

by taking two extreme positions of exonerating the one and

implicating the other. Finding serious fault with the proceedings of

the Inquiry Officer, the counsel contended that the enquiry officer

wrongly and illegally placed reliance on the statement of two

witnesses i.e. Sh. R.N. Prasad and Sh. P.K. Rustgi who never

appeared to depose before the Inquiry Officer. The contention of the

counsel for the petitioner was that the said two witnesses gave their

statements to the vigilance officer but they were never examined

before the Inquiry Officer, where alone, the veracity of the testimony

of these witnesses could have been tested after their cross-

examination by the petitioner. Counsel thus urged that without there

being any corroborative material on record, the petitioner has been

linked with the alleged receipt of 2% commission by Mr. R.N. Prasad

from the successful tenderer M/s Modern Insulators Limited. Inviting

attention of this court to the counter affidavit filed by the

respondents, the counsel submitted, that the respondents have

admitted that the statements of those two witnesses i.e. of Mr. Prasad

and Mr. Rastogi were not relied upon by the Disciplinary Authority

and with this admitted position there was no other material before the

enquiry officer or the Disciplinary Authority to come to the conclusion

of finding involvement of the petitioner to hold him dishonest in

passing official information to M/s Modern Insulators Limited in

respect of the tender in question and for arranging commission for his

alleged uncle Mr. R.N. Prasad, proprietor of M/s Global Construction

Company from M/s MIL. Counsel for the petitioner further

submitted that as per the mandate of the said rule the Enquiry officer

in his report was required to mention about gist of articles of charges

and a statement of imputations of mis-conduct, gist of defence of

employee in respect of each article of charge and assessment of

evidence in respect of each articles of charge and ultimately the

findings on each articles of charge and the reasons in support thereof.

Not only this, counsel contended that on the failure of the enquiry

officer to specifically deal with the evidence on record and to give

reasons for each and every charge, the report not only shows non-

application of mind on the part of the enquiry officer but is a non-

speaking report. Similarly even the disciplinary authority did not deal

with the various contentions raised by the petitioner pointing out

various discrepancies and illegalities committed by the enquiry

officer in his report. Counsel thus contended that the order of the

disciplinary authority is as illegal as that of the enquiry officer. Not

only this, the disciplinary authority adopted double standards while

dealing with the case of the petitioner and that of Mr. S.K. Dua as

based on the same material Mr. S.K. Dua was discharged while major

penalty of dismissal was imposed upon the petitioner. The contention

of the counsel for the petitioner was that once the charges against Mr.

S.K. Dua were not found to be proved leads to his exoneration, then

no different order could have been passed by the Disciplinary

Authority as against the petitioner based on the same charges and the

same evidence. Assailing the order of the Appellate Authority, the

counsel submitted that the appellate authority also violated the

principles of natural justice by not granting any personal hearing to

the petitioner and by endorsing the order of the Disciplinary Authority

without application of mind.

Counsel for the appellant specifically invited attention of

this court to rule 32 of the Conduct Discipline and Appeal Rules of

NTPC to contend that the said Rule was majorly violated by the

Appellate Authority. For better appreciation. Rule 32 of the Conduct

and Disciplinary and appeal Rules of NTPC is referred as under:-

Rule 32 Appeals

(I ) An employee may appeal against an order imposing upon him any of the penalties specified in Rule 23 or against the order of suspension referred to in Rule 20. The appeal shall lie to the authority specified in the schedule.

(ii ) An appeal shall be preferred within one month from the date of communication of the order appealed against. The appeal shall be addressed to the Appellate Authority specified in the schedule and submitted to the authority whose order is appealed against. The authority whose order is appealed against shall forward the appeal together with its comments and the records of the case to the appellate authority within 15 days. The appellate authority shall consider whether the findings are justified or whether the penalty is excessive or inadequate and pass appropriate orders within three months of the date of appeal. The appellate authority may pass order confirming, enhancing reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any another authority with such direction as it may deem fit in the circumstances of the case;

Provided that if the enhanced penalty which the appellate authority proposes to impose is a major penalty specified in clauses (e), (f) and (g) of Rule 23 and an enquiry as provided in Rule 25 has not already been held in the case, the appellate authority shall direct that such an enquiry be held in accordance with the provisions of Rule 25 and thereafter consider the record of the enquiry and pass such orders as it may deem proper. If the appellate authority decides to enhance the punishment but an enquiry has already been held as provided in Rule 25, the appellate authority shall give a show cause notice

to the employee as to why the enhanced penalty should not be imposed upon him. The appellate authority shall pass final order after taking into account the representation, if any, submitted by the employee.

Counsel for the petitioner also invited attention of this

court to para 8 of the counter affidavit filed by the respondent

wherein they admitted that statements of two witnesses , namely, PW

3; Mr. R.K. Rastogi and PW 4 Mr. R.N. Prasad were recorded by the

vigilance department and since they did not appear before the enquiry

officer therefore the same not relied upon by the disciplinary

authority but still the stringent punishment of removal was awarded

to the petitioner by the disciplinary authority.

In support of his arguments counsel for the petitioner

placed reliance on the following judgments:-

AIR 1969 SC 983 Central Bank of India Vs. Prakash Chand Jain AIR 1986 SCC Ram Chander Vs. Union of India & Others (1998) 3 SCC 227 Ministry of Finance & Anr.

Vs. S.B. Ramesh (1999) 2 SCC 10 Kuldeep Singh Vs. Commissioiner of Police and Others AIR 2006 SC 1748 Narinder Mohan Arya Vs. United India Insurance Co. Ltd.

(2008) 3 SCC 469 Divisional Forest Officer, Kothagudem Vs. Madhusudan Rao

WP ( C) No. 5096/1994 DHC Smt. Sunita Rani Vs. Union of India (2006) 11 SCC 147 Director Marketing, Indian Oil Corporatioin Ltd. vs. Santosh Kumar (2007) 1 SCC 437 Mathura Prasad Vs. Union of India (2007) Vol 7 SCC 206 Bongairaon Refineries & Petrochemicals Ltd. vs. Girish Chandra Sharma

Refuting the said submissions of the counsel for the

petitioner, the counsel for the respondent Mr. Janaranjan Das,

submitted that this court under Article 226 of the Constitution of

India will not exercise jurisdiction to act as an Appellate Authority

over the findings arrived at by the Enquiry Officer duly confirmed by

the Disciplinary Authority. Counsel for the respondent further

contended that sufficient opportunity was afforded to the petitioner

during the course of the enquiry proceedings and the enquiry officer

found the charges proved against the petitioner based on statements

of various witnesses and documentary material placed on record.

The contention of the counsel for the respondent was that unlike a

civil or criminal trial misconduct on the part of the delinquent

employee is not required to be proved beyond reasonable doubt. The

enquiry officer found sufficient material on record to prove mis-

conduct on the part of petitioner to prove imputations made against

him in the article of charges. Counsel thus urged that this court will

not take another possible view simply because the same was one

possible view which could have been taken by the enquiry officer and

the Disciplinary Authority. The counsel further argued that this court

while exercising supervisory jurisdiction of Judicial Review under

Article 226 of the Constitution of India will only examine as to

whether the findings given by the enquiry officer are wholely

perverse, illegal or irrational and the order of punishment passed by

the disciplinary authority can shake the conscious of this court and if

not, then this court ordinarily will not interfere in the order of

punishment awarded by the disciplinary authority. Justifying the

exoneration of the other co-accused Mr. S.K. Dua, the counsel

submitted that he was given the benefit of doubt on account of the

fact that the main witness Mr. P.K. Rastogi (PW 3) who had identified

him as the man impersonating as representative of M/s Global

Construction Company was not produced before the enquiry officer

for his cross-examination. Counsel thus submitted that the petitioner

cannot claim parity with the said co-accused who was differently

placed than the petitioner. Counsel for the respondent further

submitted that the letter dated 12.3.1988 referred to in the statement

of imputations clearly disclosed settlement of percentage fixed

between M/s Modern Insulators Ltd. and M/s Global Construction

Company. The contention of the counsel for the respondent was that

the said letter was duly exhibited as PEX-4 before the enquiry officer

and therefore, it cannot be said that the enquiry officer did not rely

upon the said letter. Counsel further submitted that it was duly

proved before the enquiry officer that the commission amount was

duly credited in the account of the Global Construction Company

through cheques/DDs for a sum of Rs.71.506.50, Rs.71,506.50 and

Rs.93,013/-, respectively. PW 2 Mr. A.K. Sen proved the same and

letter issued by the bank confirming the said credit of cheques was

duly proved as Ex. PEX-15. Counsel also submitted that the

petitioner failed to rebut the statements made by PW 1 Sh. Pradep

Vaidya and PW 2 Sh. A.K. Sen and therefore their statements

remained unchallenged. Even the testimony of PW 6 and PW 7 were

also not rebutted by the petitioner in their cross-examination and

therefore, their testimony also remained unchallenged before the

enquiry officer. Even the petitioner had admitted his relationship

with Sh. R.N. Prasad as that of his uncle and nephew before the

enquiry officer and, therefore, the petitioner cannot be heard to say

that there could be many such similar names dealing with the

tenderor M/s Modern Services Limited. Counsel thus submitted that

sufficient evidence was available before the Enquiry Officer and

before the Disciplinary Autority so as to hold the petitioner guilty for

mis-conduct in terms of articles of charges issued against him. In

support of his argument counsel for the respondent has placed

reliance on the following judgments:-

1997 (3) SCC 72 Indian Oil Corporation Ltd. & Anr.

Vs. Ashok Kumar Arora 1997 (3) SCC 657 at page 659, Rae Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh and ors.

1998 (2) SCC 394 Commissioner and Secretary to Govt. & Ors. Vs. C. Shanmugam 1999 (8) SCC 90 R.S. Saini Vs. State of Punjab 2001 (9) SCC 575 at page 7577 Syed Rahimuddin Vs. Director General, CSIR & Ors.

2003 (3) SCC 583 at page 591 Lalit Popli Vs. Canara Bank & Ors.

2005 (3) SCC 254 Divisinal Controller, KRTC (NWKRTC) Vs. A.T. Mane 2006 (7) SCC 212 State Bank of India & Ors. Vs. Ramesh Dinkar Pande AIR 1970 SC 748 Union of India & Ors. Vs. K.

      Rajappa Menon
            1987 Suppl. SCC 582 Ram Kumar Vs. State of
      Haryana
            1991 Suppl. (2) SCC 12         Indian Institute of
      Technology, Bombay Vs. Union of India & Ors.





              I    have     heard       learned        counsel        for     the     parties        at

considerable length and perused the record.

It is a settled legal position that the scope of judicial review

while exercising jurisdiction under Article 226 of the Constitution of

India so as to examine the correctness of facts arrived at by the

enquiry officer and the punishment imposed upon by the Disciplinary

Authority, is extremely narrow and limited. Under Article 226 of the

Constitution of India the High Court would not interfere with the

findings recorded by the enquiry officer just as a matter of course.

The Court while exercising jurisdiction under Article 226 of the

Constitution of India will not assume the role of an appellate

authority. In this regard, the Hon'ble Apex Court in India Oil

Corporation Ltd. & Anr. Vs. Ashok Kumar Arora - (1997) 3 SCC

72 observed as under:-

20. At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee. There is a catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of

this Court on this topic viz. State of A.P. v. S. Sree Rama Rao1, State of A.P. v. Chitra Venkata Rao2, Corpn. of the City of Nagpur v. Ramchandra3 and Nelson Motis v. Union of India4.

At the same time, it is also not in dispute that the disciplinary

proceedings held before the domestic tribunals are of quasi judicial

character and therefore, it is necessary that such tribunals must

arrive at its conclusions on the basis of some evidence with some

degree of satisfaction clearly pointing out the guilt of the delinquent

and does not leave the matter in a suspicious state. In this regard,

the Apex Court in Nand Kishore Prasad Vs. State of Bihar and

ors. AIR 1978 SC 1277 observed as under:-

"Disciplinary proceedings before domestic Tribunal are of a quasi judicial character ; therefore, the minimum requirement of the rules of natural justice is that the Tribunal should arrive at its conclusion on the basis of some evidence, i.e. evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof even in domestic inquiries".

It was reiterated in Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and others, 1984 (4) S.C.C. 635 (5) as under :

"It is equally well-settled that where a quasi-judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated".

As mere suspicion cannot take the place of proof even in

domestic enquiries. If there is no evidence to sustain the charges

framed against the delinquent officer than he cannot be held guilty as

in that event the findings recorded by the enquiry officer would be

assessed as perverse being not supported and substantiated by any

evidence on record. The legal position which stands crystalised

through various authoritative pronouncements of the Apex Court and

of High Courts places the delinquent employee approaching the High

Court to a very heavy responsibility to put a strong case to show that

the findings of misconduct arrived at by the domestic tribunal are

perverse findings based on no legal evidence or based on mere

conjectures and surmises or the same suffers from some apparent

illegality or from the vice of non-application of mind warranting

interference under Article 226 of the Constitution of India. A broad

distinction, therefore, has to be maintained between the decision

which is perverse and those which are not. If a decision is arrived at,

based on no evidence or evidence which is thoroughly unreliable that

no reasonable or prudent person would act upon it, than such an

order would be certainly treated as a perverse order and if there is

any evidence on record which is acceptable or which is sufficient

enough clearly pointing out, to the guilt of the delinquent employee

than the conclusions based on such evidence would not be treated as

perverse and, ordinarily would not be interfered with. Judgment

cited from both the sides supports the above principle of law.

In this regard in Central Bank of India Ltd. Vs. Prakash

Chand Jain AIR 1969 SC 983 as under:-

4. The court then proceeded to consider whether the Tribunal in that case had acted rightly, and noted that one had merely to read the order to be satisfied that the Tribunal had exceeded its jurisdiction in attempting to enquire if the conclusions of fact recorded in the enquiry were justified on the merits. The Tribunal did not hold that the enquiry was defective or the requirements of natural justice had not been satisfied in any manner. The court then indicated that the Tribunal had proceeded to examine the evidence, referred to some discrepancies in the statements made by witnesses and had come to the conclusion that the domestic enquiry should not have recorded the conclusion that the charges had been proved against the workmen in question. It was then held that, in making these comments against the findings of the enquiry, the Tribunal clearly lost sight of the limitations statutorily placed upon its power and authority in holding the enquiry under Section 33(2)(b). The court then indicated the principle applicable by saying:

"It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under Section 33(2)(b). It is conceivable that even in holding an enquiry under Section 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence".

5. These decisions make it clear that, when an Industrial Tribunal is asked to give its approval to an order of dismissal under Section 33(2)(b) of the Act, it can disregard the findings given by the Enquiry Officer only if the findings are perverse. The test of perversity that is indicated in these cases is that the findings may not be supported by any legal evidence at all. This principle was further affirmed in a different context in State of Andhra Pradesh v. S. Sree Rama Rao 3 where this court had to consider whether a High Court, in a proceeding for a writ under Article 226 of the Constitution, could interfere with the findings recorded by departmental authority in disciplinary proceedings taken against a Government servant. The court held:

"But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

Further paras 6 to 10 of the decision in Kuldeep Singh Vs.

Commissioner of Police & Ors (1999) 2 SCC 10 is also relevant

and the same is reproduced as under:-

6. It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the enquiry officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the appellate authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority.

10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person

would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.

Para 26 of the decision in Narender Mohar Arya Vs. United

India Insurance Co. Ltd. AIR 2006 SC 1748 in as under:-

26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the enquiry officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. (See State of Assam v. Mahendra Kumar Das2.) (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice. (See Khem Chand v. Union of India3 and State of U.P. v. Om Prakash Gupta4.) (3) Exercise of discretionary power involves two elements--(i) objective, and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. (See K.L. Tripathi v. State Bank of India5.) (4) It is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstances of each case but the concept of fair play in action is the basis. (See Sawai Singh v. State of Rajasthan6.) (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal. [See Director (Inspection & Quality Control) Export Inspection Council of India v. Kalyan Kumar Mitra7.] (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. (See Central Bank of India Ltd. v. Prakash Chand Jain8, Kuldeep Singh v. Commr. of Police9.)

Based on the above legal position let me deal with the facts

of the present case to see whether the petitioner has made out a case

for interference by this court while exercising power of judicial review

under Article 226 of the Constitution of India to upset the findings of

the enquiry officer and punishment imposed by the Disciplinary

Authority and the order passed by the Appellate Authority. It is not in

dispute that the petitioner Mr. S.K. Dua was charge sheeted for his

alleged mis-conduct of passing official information for monetary

consideration to M/s Modern Insulators limited in respect of a tender

for the supply of 400 KV Solid Core Bus Post Industries. It would be

relevant to reproduce the chargsheet issued against the petitioner as

under:-

STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SH. SHIV KUMAR DUA, DY. SUPDT. (O&M), BTPS, Employee No. 54578.

Shri Shiv Kumar Dua, while functioning and posted as Sr. Engineer/Dy. Supdt. (O&M), Badarpur Thermal Power Project during the year 1987-88 evidently entered into an arrangement with Shri Parmeshwar Prasad, Employee No.:00826, Dy. Manager (Contracts), Corporate Centre, National Thermal Power Corporation Ltd. New Delhi and Shri Ram Naresh Prasad, proprietor M/s Global Construction Co. to pass on the official information for monetory considerations to M/s Modern Insulators Ltd. , Abu Road, in respect of tender package Nos. CC-4930-510 for Kahalgaon STPP and CC43-046 for Farakka STPP for supply of 400 KV Solid Core Bus Post Insulators. Sh. Shiv Kumar Dua impersonating as "Shri Sunil" and posing himself as a representative of M/s Global Construction Company, passed on the relevant

information received from Shri Parmeshwar Prasad , Dy. Manager, (Contracts), NTPC , who was dealing with the above referred packages to M/s Modern Insulators Ltd. Abu Road subsequently, M/s Modern Insulators limited were awarded a contractor of 400 KV Bus Post Insulators for Kahala Gaon STPP vide LOA No. ; 01;CC;4930--

510/AL dated 20.4.88 for Rs.1,47,61,500.

Sh. Shiv Kumar Dua by his above said act not only exhibited dishonesty in connection with the business of NTPC but also acted in a manner prejudicial to the interest of the company, and failed to maintain good discipline and behavior. Sh. S.K. Dua further failed to maintain absolute integrity and acted in a manner unbecoming of a public servant. The above acts of Sh. Shiv Kumar Dua, thus are violative of Rule 4 (1) (3) & Rule 5 (1) (5) & (20) of CDA Rules of NTPC.

The main plank of argument of counsel for the petitioner

was that two important material witnesses were not produced before

the enquiry officer for their cross-examination and their statements

were believed as truthful even though recorded during the

investigation by the vigilance officer. Another contention raised by

the counsel for the petitioner was that although the enquiry officer

placed reliance on the statements of these two witnesses but the

disciplinary authority reached to his own conclusions and held the

petitioner guilty of mis-conduct based on the other material even after

ignoring the statements of the said two witnesses, namely, P.K.

Rastogi and Mr. R.N. Prasad. It is not in dispute that based on the

same evidence, the enquiry officer did not find the other

chargesheeted employee, Mr. S.K. Dua, guilty of mis-conduct but he

was exonerated by the Disciplinary Authority on the ground that the

main witness Mr. P.K. Rastogi was not produced before the enquiry

officer who identified him as impersonator to represent M/s Global

Construction Company for liasoning with M/s Modern Insulators

Ltd., Abu Road. The argument raised by the counsel for the petitioner

was that once the other charge sheeted employee was exonerated by

the Disciplinary Authrority the entire vital link to establish and

implicate the petitioner also vanishes. The effect of exoneration of

Mr. S.K. Dass as per the counsel for the petitioner was that his

exoneration would mean that he neither acted as representative of

M/s Global Construction Company and he never contacted M/s

Modern Insulators Ltd., nor he ever received any communication

from the petitioner to be illegally passed on to M/s Global

Construction Company and then to M/s Modern Insulators Ltd.

relating to the tender in question. Counsel for the petitioner strongly

urged that the role of S.K. Dua was so inextricable intertwined with

that of the petitioner, that his exoneration would necessarily lead to

exoneration of the other co-accused.

Undoubtedly, Mr. S.K. Dua as per the charge sheet

issued against him was the front man of the petitioner to pass on the

official information for monetary considerations to M/s Modern

Insulators Ltd. in respect of the tender in question who impersonated

himself as (Sunil) and then to pose himself as representative of M/s

Global Construction company and exoneration of Mr. Dua based on

the same material, documentary and oral, has upset the entire story

as set up by the respondents against the petitioner, as well, in the

absence of any other incriminating material against the petitioner.

No doubt Sh. S.K. Dua was exonerated primarily on the ground that

Sh. P.K. Rustagi of M/s Modern Insulators limited failed to appear

before the enquiry officer to depose against Mr. Dua as Mr. Rastogi

was the only witness who had identified Mr. Dua in his statement

recorded before the vigilance officer. Once the charges were not

found to have been proved against Mr. Dua, then, certainly the

important missing link in the chain of events to implicate the

petitioner also gets weakened.

The enquiry officer in his enquiry report based his

conclusions on the two statements i.e. one made by Mr. R.N. Prasad

(PEX-11) alleged uncle of the petitioner and sole proprietor of M/s

Global Construction Company and the statement of Sh. P.K. Rastogi

(PEX-12) of M/s Modern Insulators Ltd. The enquiry officer also

placed reliance on the depositions of PW 1,2,5 6 & 7 and documents

exhibited by the prosecution referred to as PEX-10-15-18 & 19 and

defence exhibits referred as DEX-13 & DEX-14. The enquiry officer

also found that after the letter of award dated 20.4.1988 in favour of

M/s Modern Insulators Limited, payments to the tune of

Rs.2,36,026.00 were credited in the current account No. F-5/736 of

M/s Global Construction Company with State Bank of India, Kanhar

Bagh, Patna towards their commission. This finding of fact was

arrived at by the enquiry officer based on PEX-1,2,3,10,11,12 & 15

and depositions of PW 1,2,5,6 & 7. Counsel appearing for the

respondent has failed to categorically point out as on what basis the

enquiry officer found the involvement of the petitioner in the award of

the said contract in favour of M/s Modern Insulators Limited. Various

documents proved on record and the deposition made by the

prosecution witnesses does show that the petitioner was functioning

as Deputy Manager (Contracts) and in his official capacity had all

access to the relevant files and documents concerning the said award

of the said tender and he was also to lias with the tender committee

members in his official capacity. The documents and statements

proved on record also exemplify that M/s Modern Insulators Limited

was awarded a contract in question for the supply of 400 KV Solid

Core Bus Post Insulators and M/s Modern Insultators limited had

engaged the services of M/s Global Constructions Company of which

Mr. R.N. Prasad was the proprietor to lias on their behalf for

facilitating the award of contract in their favour. It was also proved

on record that payment of Rs.2,36,026.00 was made by M/s Modern

Insulators Limited through three separate cheques and the said

amount was duly credited in the account of Mr. R.N. Prasad in his

current account being maintained with State Bank of India, Kanhar

Bagh, Patna. In the face of the aforesaid material the crucial question

which arises for consideration is whether the documents and the oral

evidence produced before the enquiry officer proves complicity of the

petitioner in abusing his official position for dishonest purposes in

terms of imputations made against him in the chargesheet. It is a

settled legal position that the case against the delinquent employee

before the domestic tribunal has not to be proved beyond any

reasonable doubt and it can be based on preponderance of

probabilities. In this regard the Hon'ble Apex Court has in Lalit

Popli Vs. Canera Bank & Orisa - (2003) 3 SCC 583 observed as

under:-

16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (See State of Rajasthan v. B.K. Meena 2.) In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.

Nevertheless, for holding the delinquent employee to be

guilty of charges framed against him, the evidence may not be

foolproof or sufficient enough to establish a clearcut case against such

an employee but at least some reliable evidence has to be brought

forth before the enquiry officer and same should be proved for

holding such an employee to be guilty of charges framed against him

in the charge sheet. The enquiry officer is not supposed to base his

findings merely on conjectures or draw inferences out of blue without

having any incriminating material to support such findings. This what

has happened in the present case as would be evident from the

findings of the enquiry officer and that of the order passed by the

Disciplinary Authority. Two material witnesses i.e. Mr. R.N. Prasad,

proprietor of M/s Global Construction Company alleged uncle of the

petitioner and Mr. P.K. Rastogi of M/s Modern Insulators Limited

were the only vital links to prove the complicity of the petitioner in the

said deal for monetary consideration but these witnesses never

appeared before the enquiry officer although as per the respondent

sufficient efforts were made to produce them before the enquiry

officer and therefore, the case of the petitioner is no way different,

than that of Mr. S.K. Dua who was exonerated by the order of

disciplinary authority. There is a reference of one letter dated

12.3.1988 issued by one Mr. C.M. Jain , Joint Executive President of

M/s Modern Insulators Limited to M/s Global Construction Company

on the address bearing house No. 35-C, Block-A-12, /35C, Pocket A-

12, Kalkaji Extension, New Delhi which was the accommodation

leased by the company in favour of the petitioner at the relevant point

of time and on the said letter there was also an endorsement in the

name of the petitioner as "Attention Mr. P. Prasad" but the said letter

was not proved on record and even relied upon by the enquiry officer

in his report. The only other evidence which could have proved

involvement of the petitioner were some payments received by the

petitioner from his uncle Mr. R.N. Prasad after the alleged deal and

the subsequent deposit of these payments by the petitioner with

Nagarjuna Society for the purchase of flat by the petitioner but no

incriminating evidence was proved on record to show that the

payments of Rs.35,000/- and Rs.30,000/- were received by the

petitioner from the said Mr. R.N. Prasad, rather the petitioner

sufficiently proved on record the source of the said payments from his

father and one Mr. Arvind Kumar and thereafter deposit of the same

with the Nagarjuna Society. Undoubtedly, Mr. R.N. Prasad and Mr.

P.K. Rastogi in their depositions before the vigilance officer made

disclosure to show involvement of the petitioner but the testimony of

the said witnesses who were never produced before the enquiry

officer cannot be given any credence or weightage as the petitioner

never got an opportunity to cross-examine the said witnesses. In the

light of the above discussion, I do not find that the charges against the

petitioner can sustain based on the material placed by the

respondents before the enquiry officer. Apparently, the findings of

the enquiry officer against the petitioner are wholely illegal, perverse

and irrational. The enquiry officer also did not deal with the defence

statement at all in his enquiry report which further shows that the

enquiry officer has not taken a balanced view of the material placed

before it.

The Disciplinary Authority in his order dated 8.6.1995 did

not properly appreciate the inherent perversity in the findings arrived

at by the enquiry officer and in a most cavalier manner upheld the

findings of the enquiry officer and imposed the punishment of removal

of the petitioner from service. The Appellate Authority did no better

job by upholding the order of the disciplinary authority without giving

any reasons after dealing with various contentions raised by the

petitioner in his appeal. The Appellate Authority thus also failed to

discharge its legal obligation to properly deal with the pleas raised by

the petitioner and to pass a reasoned order and instead blindly

following the order passed by the Disciplinary Authority. In this

regard the Hon'ble Apex Court has in Ram Chander Vs. UOI - AIR

1986 SC 1173 as under:-

Again, in Som Datt Datta v. Union of India3 a Constitution Bench of this Court rejected the contention that the order of the Chief of the Army Staff confirming the proceedings of the General Court Martial under Section 164 of the Army Act, 1950 and the order of the Central Government dismissing the appeal of the delinquent officer under Section 165 of the Act were illegal and ultra vires as they did not give reasons in support of the orders, and summed up the legal position in these words:

"Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, there is no legal obligation that the statutory tribunal should give reasons for its decision. There is also no general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision."

In view of the foregoing discussion, the order of removal

passed by the Disciplinary Authority dated 8.6.1995 and order of

Appellate Authority dated 13/16.10.1995 are set aside. Since the

order terminating service of the petitioner is being set aside, the

respondent NTPC is directed to reinstate the petitioner within one

month of this order with all consequential benefits and continuity of

service.

The appeal is allowed in the above terms.

May 30, 2009                                                     KAILASH GAMBHIR,J.