Indian Council Of Agricultural ... vs Dr.Sukh Pal Singh
2009 Latest Caselaw 4454 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C.) No.1002 of 2008

%                      Date of Decision: 04.11.2009

Indian Council of Agricultural Research (ICAR) and     .... Petitioners
Ors
                      Through Mr.S.S.Lingwal, Advocate.

                                  Versus

Dr.Sukh Pal Singh                                        .... Respondent
                       Through Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.    Whether reporters of Local papers may be allowed        YES
      to see the judgment?
2.    To be referred to the reporter or not?                  NO
3.    Whether the judgment should be reported in the          NO
      Digest?


ANIL KUMAR, J.

*

The petitioners Indian Council of Agricultural Research and Ors

have impugned the order dated 25th September, 2007 passed in O.A

No.192/2007, "Dr.Sukh Pal Singh v. Indian Council of Agricultural

Research and Ors" setting aside the penalty imposed on the respondent

as not sustainable in law and also holding that non consideration of the

appeal of the respondent on merits was deprivation of reasonable

opportunity to the respondent and was thus in violation of principles of

natural justice.

The respondent being the head of the regional centre had engaged

a driver Sh.Balwinder Singh on daily wages after it was approved by

National Bureau of Soil Survey and Land Use Planning, petitioner No.2.

After the engagement of the driver Sh.Balwinder Singh, his services

were also extended from time to time. Since the driver Sh.Balwinder

Singh completed 240 days of service he became entitled for temporary

status. When his services were sought to be discontinued, he filed a

petition being O.A No.1758/2000 before Central Administrative

Tribunal Principal Bench in which an interim relief dated 8th

September, 2000 was passed not to disengage him and, therefore, he

was re-engaged with effect from 12th September, 2000.

Consequent to the re-engagement of Sh.Balwinder Singh

pursuant to the order of the Central Administrative Tribunal, Indian

Council of Agricultural Research, petitioner No.3 issued a memorandum

dated 20th April, 2005 alleging irregularities in his appointment on daily

basis and after considering the reply of the respondent proposed action

under Rule 16 of CCS (CCA Rules), 1965 and initiated disciplinary

proceedings pursuant to the advice tendered by the Central Vigilance

Commission by memorandum dated 23rd March, 2006.

The order dated 13th July, 2006 was passed against the

respondent and the appeal filed by the respondent on 24th August, 2006

against the order dated 13th July, 2006 was also dismissed by order

dated 13th October, 2006.

The Tribunal has set aside the order imposing penalty upon the

respondent holding that though the Tribunal does not have jurisdiction

to reappraise the evidence or substitute its own view, however, applying

the test of common reasonable prudent man it has to be assessed

whether the findings recorded are perverse and whether a case of

misconduct is made out or not. The Tribunal found that the allegation

of non requisition from the employment exchange for employment of

casual labour before employment of the driver Balwant Singh was not

made out in the case of the respondent. It was also noticed that the

casual driver was not appointed spontaneously by the respondent,

rather the documents for employment of the casual worker/driver were

verified by a committee which also conducted interview and had

considered the case of the driver and, therefore, it was not the sole

decision of the respondent to engage the said casual driver.

It has also been noticed by the Tribunal that the engagement of

the driver was with the approval of the Director and, consequently, the

respondent who is only the head of the regional centre, cannot be held

responsible solely. The role of respondent not being significant in

appointment of the casual driver, was a relevant factor noticed by the

Tribunal to hold that no misconduct could be imputed to the

respondent, as the appointment was approved by the Director and the

selection was done by a committee constituted for the purpose who had

even interviewed the casual driver. The appointment of the casual driver

was also extended with the consent and approval of the Director which

was forwarded by the respondent and forwarding the papers for

extension of a casual driver would not amount to misconduct. This also

cannot be disputed that jurisdiction to discontinue the temporary driver

was with the Director and not with the respondent and the respondent

being a lower functionary could not be held responsible for the same. In

the circumstances, the employment of a casual driver and his

continuing in the service could not be imputed solely to the respondent

and thus no misconduct could be imputed to the respondent on the

basis of facts established before the enquiry officer and inference of any

lapse on the basis of evidence before the enquiry office could not be

arrived at by any reasonable person. The inferences against the

respondent were found to be ex-facie arbitrary without any legal basis

and consequently punishment awarded to the respondent was quashed.

This was also noticed by the Tribunal that the grant of temporary

status of casual driver was pursuant to the order passed by the

Tribunal in the proceedings initiated by the casual driver and not on

account of any act solely imputable to the respondent and, therefore, no

misconduct could be attributed to the respondent in the facts and

circumstances and consequently the Tribunal setting aside the order of

punishment against the respondent cannot be faulted.

The tribunal also noticed that Sh.Balwinder Singh, temporary

driver engaged by the petitioner was not related to the respondent or

connected with the respondent nor it has been shown in any manner

that respondent profited on account of employment of temporary driver

Sh.Balwinder Singh. In the circumstances, there were no ulterior

motives established in employment of driver for which the respondent

could be punished.

This cannot be disputed that if an action is taken by any

authority contrary to law, improperly, irrationally or otherwise

unreasonably, a court of law can interfere with such an action by

exercising power of judicial review. Consequently, the Tribunal could

consider whether the decision to punish the respondent who did not

have any sole role in appointment of the daily wage driver and who was

re-engaged pursuant to the order passed by the Tribunal in the petition

filed by the driver, was absurd or perverse or ex-facie arbitrary or so

capricious that no reasonable person could have arrived at such

conclusions. The Supreme Court in "High Court of Judicature at

Bombay vs. Shashikant S.Patil", (2000) 1 SCC 416 the stated the

ground of Judicial Review which are enumerated as follows:

(a). where there has been a violation of the principles of natural justice; or

(b). the proceedings have been held in violation of statutory regulations prescribing the mode of such enquiry; or

(c). the decision is vitiated by consideration extraneous to the evidence and merit of the case; or

(d). if the conclusion made by the authority is ex-facie arbitrary or capricious that no reasonable person could have arrived at such conclusions; or

(e). other very similar to the above grounds.

In the circumstances, the order of the Tribunal holding that the

punishment imposed on the respondent was not sustainable in law and

setting aside the order of penalty cannot be interfered with by this

Court in exercise of its jurisdiction under Article 226 of the Constitution

of India. The petitioners have not been able to make out any ground for

interference with the order of Tribunal in the facts and circumstances.

The writ petition in the facts and circumstances is without any merit

and it is, therefore, dismissed.

ANIL KUMAR, J.

November 04, 2009                                         VIPIN SANGHI, J.
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