S.P. Mangla vs Export Inspection Council Of ...
2009 Latest Caselaw 3996 Del

*                  HIGH COURT OF DELHI : NEW DELHI

              Judgment reserved on : September 22, 2009
               Judgment delivered on : October 06, 2009

+                       W.P. (C) No.2296/1991

%      S.P. Mangla                              ...  Petitioner
                 Through:      Mr. G.D. Gupta, Senior Advocate with
                               Mr. Vikram Saini, Advocate

                                 versus

       Export Inspection Council of India & Ors.... Respondents
                  Through: Mr. L.R. Khatana, 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. In September, 1984, Petitioner was Deputy Director in Export

Inspection Agency - Delhi and vide Office Memorandum (Annexure

P-27), his explanation was sought regarding circumstances for the

delay in communication of the rejection of the consignment of M/s.

Jeevan Engineering Works, Delhi. A consignment of 100 ceiling fans

of M/s. Jeevan Engineering Works was inspected by Shri S.K. Caroli,

Assistant Director of Export Inspection Agency and it was declared

export worthy on 4th July, 1983. On the very next day, Petitioner

rejected the said consignment declaring that it did not meet the W.P. (C) No.2296/1991 Page 1 requirement of I.S. 374-1979 in respect of Power Input and Air

Delivery. The rejection letter of 5th July, 1983 issued by the Petitioner

to above said firm, was received by them on 24th July, 1983. This was

in contravention of Office Circular of 21st October, 1982 (Annexure P-

20), which required that the certificate of inspection/rejection letter in

respect of the consignments which are subjected to check should be

kept ready within 48 hours after completion of Inspection and the

same be handed over to the Exporter‟s representative or be

dispatched as may be intimated by the Exporters. The Certificate of

Inspection was required to be dispatched by the Agency under

certificate of posting and dispatch should take place immediately

expiry of 48 hours of Inspection.

2. Petitioner vide Reply (Annexure P-28) informed that the

rejection letter was issued on the same day and was sent to the

delivery counter for collection by the manufacturer and it was not

dispatched by post because the manufacturer was a local party.

3. Not satisfied with the Reply of the Petitioner, three articles of

charges were framed against him. The first charge pertained to

rejection of consignment of M/s. Jeevan Engineering Works in

contravention of Instructions/Circular of 5th October, 1977, which

provided for acceptance of lower service value of fans prescribed by

the firm-buyer; the second charge related to delay in communicating

the rejection of the consignment of the above said Firm to them; and

the third charge was based upon the complaint of Executive W.P. (C) No.2296/1991 Page 2 Secretary of All India Small Scale Cable and Conductors

Manufacturers Association alleging that the rejection of the

consignment of M/s. Jeevan Engineering Works was because money

was not paid to the Inspector and the Petitioner.

4. Statement of Defence (Annexure P-30) was furnished by the

Petitioner to the Statement of Imputation of Charges. The Inquiry

Officer, after recording the evidence vide his Inquiry Report

(Annexure P-37) concluded that all the above said three charges

stood proved against the Petitioner. Director of Export Inspection

Council of India accepted the Inquiry Report (Annexure P-37) and

had imposed the penalty of removal from service upon the Petitioner,

which was challenged by way of Appeal (Annexure P-38) and appeal

of the Petitioner stood rejected qua the first two charges and was

accepted against the finding on the third charge, vide Order

(Annexure P-39). However, Appellate Authority while affirming the

findings of the Inquiry Officer on the first two charges maintained the

penalty of removal of the Petitioner from service. Petitioner had

sought Review of the Order (Annexure P-39) of the Appellate

Authority and the Reviewing Authority, vide Order (Annexure P-32)

dismissed the review petition.

5. Petitioner had challenged the penalty of Removal from Service

by invoking the writ jurisdiction and vide Order (Annexure P-43) the

Order passed in the review petition was set aside, being not by

Competent Authority and the matter was remitted back to the Export

W.P. (C) No.2296/1991 Page 3 Inspection Council to consider and dispose of the Review petition.

Accordingly, vide impugned Order (Annexure P-45), Export

Inspection Council of India rejected Petitioner‟s review petition.

6. In this petition, the stand of the Petitioner is that M/s. Jeevan

Engineering Works had not given any specification as required by the

Council‟s Circular of 1977, therefore, Mr. Caroli, had advised the

aforesaid firm to amend column No.6 relating to "Technical

Requirement" to mention „IS 274-1979‟ and Mr. Caroli had inspected

the consignment in question and had discussed about it with the

Petitioner on 5th July, 1983 and the Petitioner found that the

consignment was failing in „minimum Air Delivery‟ and „high input

wattage‟ and hence the consignment was rejected and Mr. Caroli was

instructed by the Petitioner to inform the manufacturer about the

rejection of the consignment. According to the Petitioner, Mr. Caroli

had confirmed that he had informed about the rejection of the

consignment to M/s. Jeevan Engineering Works. It is the case of the

Petitioner that letter of rejection of consignment in question was sent

to the counter of the Export Inspection Agency on 5th July, 1983 for

collection by the manufacturer as the mode of dispatch was not

indicated by the manufacturer. Petitioner claims that he was called by

Shri S.C. Arora, Joint Director, Incharge of the Agency on 8th July,

1983, as he had received phonogram on 6th July, 1983 and had

discussed this matter with the Petitioner and Mr. S.C. Arora had

called Shri K.N. Bhaduri, Assistant Director, Administration and had

instructed him to send the rejection letter in question for dispatch by W.P. (C) No.2296/1991 Page 4 post. Petitioner contends that if the decision of the Petitioner was

wrong, then his senior officer Mr. S.C. Arora, Joint Director, could

have passed the consignment in question. Petitioner further claims

that Mr. Naresh Gupta, Electrical Engineer of M/s. Jeevan

Engineering Works had met him on 14th July, 1983 and he went back

satisfied. Petitioner further contends that it is wrong to say that M/s.

Jeevan Engineering Works was not aware of the rejection of the

consignment before 24th July, 1983, when the rejection letter had

reached them by post. Petitioner points out that Mr. Naresh Jain,

Proprietor of M/s. Jeevan Engineering Works had stated in the Inquiry

proceedings that the letter could have been received earlier.

7. It is the case of the Petitioner that Mr. R.C. Palhan, Assistant

Director of the Export Inspection Agency, Delhi, who had sought

explanation regarding the delay in conveying the rejection, was

satisfied with the explanation of the Petitioner and had put up a note

sheet to Sh. D.C. Majumdar, Director of the Agency proposing

closure of the case and during the Inquiry, one of the documents

sought by the Petitioner was the copy of the said note sheet, but it

was not supplied to him. According to the Petitioner, Sh. D.C.

Majumdar, Director of the Export Inspection Agency was biased

against the Petitioner and addition of two charges, in the Charge

Sheet was malafide. In this regard, the averments made by the

Petitioner in the writ petition deserve attention and they read as

under:-

W.P. (C) No.2296/1991 Page 5 "That the Petitioner has reason to believe that the Article "A Callous Council" was engineered by Shri D.C.

Majumdar, Respondent No. 5, as a clever move to get rid of the various officers who were not to his liking. With the same motive, he prevailed upon Mr.Soumitra Bose to swear the affidavit (Annexure P-4). All the persons named in the said affidavit with the exception of Mr. B. Bhattacharya, and Shri Shyamal Banerji are no longer in service. They have either been removed, compulsorily retired or forced to resign. The affidavit was totally false."

8. Petitioner asserts that since Sh. D.C. Majumdar, Director of the

Export Inspection Council was having a strong bias against him,

therefore, Petitioner was not supplied copy of the Inquiry Report

thereby denying opportunity to the Petitioner to represent on the

quantum of punishment. Petitioner further asserts that the finding of

the Inquiry Officer/Disciplinary Authority is wholly perverse and

untenable and the present case is of no evidence. It is further

asserted that the rejection of the consignment of M/s. Jeevan

Engineering Works by the Petitioner does not amount to any

misconduct and the same could have been challenged in appeal, but

it was not done and for the delay in communication of the rejection

letter, Petitioner cannot be held responsible as on the same day it

was sent to the counter of the Agency for being collected by the

manufacturer or its representative. Quashing of the impugned order

of the Disciplinary Authority as well as of the Appellate Authority and

of the Reviewing Authority has been sought with consequential relief.

W.P. (C) No.2296/1991 Page 6

9. In the counter affidavit filed by the Respondents, it is stated that

before initiating departmental action against the Petitioner, advice of

Central Vigilance Commission was taken and thereafter Charges

were framed against the Petitioner and the Central Vigilance

Commission had nominated the Commissioner for Departmental

Inquiry as the Inquiring Authority in this case and an impartial Inquiry

was held. Petitioner was given full opportunity to defend himself and

on the basis of the report of the Inquiry Officer, penalty of Removal

from Service was rightly imposed upon the Petitioner as well as upon

Shri S.K. Caroli and Mr. Bhaduri was reverted to lower rank for a

period of two years. The allegations of Bias and Mala fide have been

refuted and it is stated that an unqualified apology was tendered by

the persons who were responsible for publication of special report „A

Callous Council‟ in Surya magazine.

10. On merits, it was stated that there were indications that IS-374

was interpolated in the Notice of Intimation subsequently to support

the rejection and therefore the rejection of the consignment was not

bona fide. Regarding M/s. Jeevan Engineering Works preferring an

appeal against rejection of the consignment by the Petitioner, the

specific stand taken in the counter affidavit by the Respondents is as

under:-

" The question of appeal etc. by the firm would otherwise sound logical and reasonable, had the decision been made known to the firm by the Petitioner in time and if the consignment was in their own custody; moreover the L/C W.P. (C) No.2296/1991 Page 7 had already expired and the firm was never guided properly by the Petitioner about the available remedies and proper procedure thereof."

11. According to the Respondent, the plea of bias taken by the

Petitioner is an afterthought and the same was not put forth by the

Petitioner in his Statement of Defence at the first available

opportunity. Imposition of penalty of Removal from Service upon the

Petitioner is said to be justified in the facts of this case.

12. Counsels for the parties have been heard at length and the

record of this case has been perused with their able assistance and

the decisions cited have been taken note of.

13. In the first instance, I would like to deal with the plea of Sh. D.C.

Majumdar, Director of the Export Inspection Council being biased

against the Petitioner. Although it has been stated in the writ petition

that the Petitioner had fielded a candidate for the post of Resident

Secretary in the Council Elections and one of the candidates fielded

for this post was to the liking of Sh. D.C. Majumdar, Director of the

Export Inspection Council and Petitioner‟s candidate had won,

whereas Sh. D.C. Majumdar‟s candidate lost in the said Election and

therefore Sh. D.C. Majumdar was completely prejudiced against the

Petitioner and was looking for an opportunity to harm the Petitioner.

In the counter affidavit filed, there is a denial. There is no affirmation

of the aforesaid averments by way of rejoinder nor is anything there

on record to substantiate the aforesaid bald plea of the Petitioner.

W.P. (C) No.2296/1991 Page 8

14. It is true that Report (Annexure P-2) titled „A Callous Council‟

was published regarding functioning of the Export Inspection Council

and of rampant corruption being there in its functioning. Regarding

Sh. D.C. Majumdar, Director of the Export Inspection Council, mainly

what was said in this Report (Annexure P-2) was as under:-

"EIC Director Majumdar desperate effort in clinging to his

chair adopting all methods."

15. The inputs of this Report (Annexure P-2) are said to have been

given by the employees of this Council whose names were disclosed

by the Reporter in his affidavit (Annexure P-4) in a case of

defamation. Though Petitioner‟s name does not find mention in it, but

Petitioner claims in the writ petition that his name was there in the

affidavit (Annexure P-4) and therefore, Sh. D.C. Majumdar, Director

of the Export Inspection Council was biased against him.

16. There must be a „real likelihood‟ of bias and that means there

must be a substantial possibility of bias. The Court will have to judge

the matter as a reasonable man would judge any matter in the

conduct of his own business. The test of likelihood of bias is based on

the „reasonable apprehension‟ of a reasonable man fully cognizant of

the facts. A real likelihood of bias has to be made to appear not only

from the material in fact ascertained by the party complaining, but

from such further facts as he might readily have ascertained and

easily verified in the course of his inquiries. There must exist

W.P. (C) No.2296/1991 Page 9 circumstances from which reasonable men would think it probable or

likely that the Inquiring Officer will be prejudiced against the

delinquent. The Court will not inquire whether he was really

prejudiced. If a reasonable man would think on the basis of the

existing circumstances that he is likely to be prejudiced, that is

sufficient to quash the decision. For the aforesaid premise, decision

in "S. Parthasarathi vs. State of A.P.", (1974) 3 SCC 459 can be

referred to, with advantage.

17. In the instant case, Petitioner wants this Court to believe that

the defamatory article „A Callous Council‟ was engineered by Sh.

D.C. Majumdar - Respondent No. 5 as a clever move to get rid of

various officers of the Council who were not of his likings. To say the

least, this plea appears to be far-fetched as no prudent person would

stake his honour to defame his rivals. Furthermore, it is not the case

of the Petitioner that Sh. D.C. Majumdar, Respondent No. 5 had

prejudiced the Inquiry Officer against the Petitioner. In any case, it is

a matter of record that the Inquiry Officer was not nominated by Sh.

D.C. Majumdar - Respondent No. 5 but was nominated by an

independent body, i.e., Central Vigilance Commission. In this

background, it cannot be said that the Inquiry proceedings stood

vitiated due to the bias or prejudice nursed by Sh. D.C. Majumdar

against the Petitioner. Reliance placed upon decision reported in AIR

1993 SC 2155, by the Petitioner is of no assistance as in the above

cited case, one member of the Inquiry Committee had appeared as a

W.P. (C) No.2296/1991 Page 10 witness against the delinquent to prove the several charges and so it

was said that his bias percolates throughout the Inquiry proceedings.

18. It is not the case of the Petitioner that because Sh. D.C.

Majumdar was biased against the Petitioner therefore, before

imposing the penalty of Removal from Service upon the Petitioner,

copy of the Inquiry Report was not supplied to him to enable the

Petitioner to make submission on the quantum of punishment. In any

case, it is not a case of bias in action. Non supply of copy of Inquiry

Report to the Petitioner does not cause any prejudice to the Petitioner

as it is not shown as to what difference it would have made, if a copy

of the Inquiry Report was supplied to him before imposing the penalty

of Removal from Service upon him. The inquiry proceedings do not

stand vitiated on account of non supply of Inquiry Report to the

Petitioner as it has been made crystal clear by the Apex Court in

"Commandant, Central Industrial Security Force and Others vs.

Bhopal Singh" (1993) 4 SCC 785, that the law laid down in Mohd.

Ramzan Khan case in November 1990, would operate prospectively

and the ratio of Mohd. Ramzan Khan‟s case is inapplicable to the

cases where penalty has been imposed prior to the year 1990. In the

instant case, the penalty has been imposed upon the Petitioner in the

year 1986. Thus, technically also, inquiry proceedings do not stand

vitiated on this account.

19. Since there is no whisper in the writ petition that Inquiry Officer,

Appellate Authority or the Reviewing Authority had exhibited any bias W.P. (C) No.2296/1991 Page 11 against the Petitioner, or that Sh. D.C. Majumdar, Respondent No. 5,

had prejudiced the Inquiry Officer against the Petitioner, therefore,

the plea of „bias‟ fails.

20. On the question of non supply of additional documents, the

Order (Annexure P-33) of Inquiry Officer needs to be adverted to. It

reads as under:-

"Please refer to the list of Shri S.P. Mangla, Charged Officer for additional documents. The documents mentioned at Sl.Nos. 1, 2, 6, 7 and 10 have been found relevant. They may be collected and inspection be given to the Charged Officer as per order sheet dated 30.01.86."

21. During the course of the arguments, it has not been pointed out

by the Petitioner‟s counsel if any grievance of non supply of the

additional documents was made in the Appeal (Annexure P-38) or in

the Review Petition (Annexure P-44). It is not even shown before this

Court as to what prejudice the Petitioner has suffered on account of

non supply of some of the additional documents sought. Though the

Petitioner placed reliance upon decision reported in 1967 SLR (SC)

759 but the same is to no avail as the Petitioner fails to show as to

what prejudice he has suffered on account of non supply of some of

additional documents. Moreover, on this aspect, Apex Court in its

recent decision in "Pandit D. Aher vs. State of Maharashtra", (2007) 1

SCC 445, has gone to the extent of declaring as under:-

W.P. (C) No.2296/1991 Page 12 "A copy of the document which has not been relied upon, is not required to be supplied to delinquent officer. The documents which are required to be supplied are only those whereupon reliance has been placed by the department."

22. In the present case, Petitioner fails to show that as to how he is

prejudiced and by non supply of which documents. It is not the case

of the Petitioner that relied upon documents were not supplied to him.

Therefore Departmental proceedings do not stand vitiated on this

account.

23. The next aspect, which pertains to the merits of this case, is the

alleged act of the Petitioner is not a „misconduct‟ and that the present

case is of no evidence, which vitiates the findings of the Inquiry

Officer. Before dwelling on this aspect, it has to be kept in mind that

the power of judicial review is meant to ensure that the delinquent

receives a fair treatment and not to ensure that the conclusion which

the Authority reaches is necessarily correct in the eye of the Court.

What is required to be seen is as to whether the Inquiry has been

conducted by the Competent Authority and as to whether the Rules of

Natural Justice have been complied with or not. Adequacy of

evidence or reliability of evidence is not required to be gone into. In

the relied upon decisions reported in "J. Ahmed vs. Union of India",

AIR 1979 SC 1022 and "Inspector Prem Chand vs. Govt. of NCT of

Delhi and Others", (2007) 4 SCC 566, it has been said that lack of

efficiency or failure to attain highest standards of administrative

W.P. (C) No.2296/1991 Page 13 abilities do not constitute misconduct and error of judgment or

negligence simpliciter is not a misconduct. There is no dispute about

it.

24. In the case of Inspector Prem Chand (supra), merely because

he had not seized the tainted money, it was said that it would not

amount to a misconduct, especially when the criminal proceedings

had ended in acquittal and there were no adverse remarks by the

Court concerned regarding the aforesaid lapse. Similarly, in the case

of Union of India vs. J. Ahmad (supra), the nature of the charge was

quite generalized and it arose out of the delinquent handling the large

scale disturbances in the State and in the Inquiry, he was not found fit

to hold responsible post and he was retired from service.

25. Reliance placed upon the aforesaid decisions is of no avail as

in the instant case, the nature of imputation of Article-I and Article-II

of the charges framed against the Petitioner, speaks volumes and

they read as under:-

"Article-I

Shri S.P. Mangla, while functioning as Deputy Director, Export Inspection Agency - Delhi during the period June

- July, 1983 decided to reject the consignment of 100 Nos. 56" Asha brand Electric Ceiling Fans offered for inspection by M/s. Jeevan Engineering Works, Shahdara vide their intimation dated 1.7.1983, while the same was declared as export worthy by Shri S.K. Caroli, Assistant Director, Export Inspection Agency-Delhi after conducting

W.P. (C) No.2296/1991 Page 14 inspection on 2.7.1983 and 4.7.1983. While rejecting the said consignment, Shri Mangla totally ignored the instructions issued by Export Inspection Council, Calcutta to all Export Inspection Agencies vide Circular No.CLN/EF/77 dated 5.10.1977 which provides acceptance of lower service value of the fans prescribed by the foreign buyer.

Shri Mangla by his above act has failed to maintain devotion to his duty thereby violated Rule 3(1)(ii) of the Central Civil Services (Conduct) Rules, 1964 as applicable to the employees of the Export Inspection Agencies."

Article-II

Shri S.P. Mangla while functioning as Deputy Director in Export Inspection Agency - Delhi during the period June- July, 1983 delayed to communicate in writing his decision to reject a consignment of 100 nos. 56" Asha brand electric fans to M/s. Jeevan Engineering Works, Shahdara, in as such as he did not observed the time limit and procedure prescribed for the purpose vide Export Inspection Council, Delhi letter No. EIF/D(QC)/T-32/82 dated 21.10.82 and specially when Shri S.K. Caroli, Assistant Director, Export Inspection Agency- Delhi had informed M/s. Jeevan Engineering Works on 4.7.1983 after inspection of the said consignment that the said consignment was export worthy.

Shri Mangla by his above act has failed to maintain devotion to his duty and acted in a manner unbecoming of an Agency employee thereby violated Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules,

W.P. (C) No.2296/1991 Page 15 1964, as applicable to the employees of Export Inspection Agencies."

26. A bare reading of the aforesaid two Article of Charges per se

shows that first the consignment was cleared by co-delinquent and

then it was rejected on the next day and the rejection was not

conveyed by the Petitioner within the stipulated time of 48 hours, so

that the remedy of appeal could not be resorted to by the complainant

firm - M/s. Jeevan Engineering Works. By any standard, it cannot be

said that the aforesaid imputation of Charges would not constitute

„misconduct‟ on the face of it.

27. Now, in the face of the evidence of Naresh Kumar Jain,

Proprietor of M/s. Jeevan Engineering Works, it cannot be said that

the present case is of no evidence. What is required to be seen is

that there should be „some evidence‟ and this Court cannot re-

appreciate the evidence and to substitute its own view. It has been so

said by the Apex Court in the case of "State of Rajasthan and

Another vs. Mohd. Ayub Naz", (2006) 1 SCC 589. The present case

is not of error of judgment as it is not Petitioner‟s case that he was not

aware of Instructions/Department Circular of 1977.

28. In the case of "Kuldeep Singh vs. Commissioner of Police &

Ors." (1999) 2 SCC 10, the scope of Judicial Review was noticed as

under:-

"It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the W.P. (C) No.2296/1991 Page 16 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."

29. However, in the aforesaid decision, it was found that the

witness examined had not supported the case and material witnesses

were not examined and in that context, it was said that it was a case

of no evidence. It is not so in the instant case as there is deposition of

not only Mr. Naresh Kumar Jain, proprietor of M/s. Jeevan

Engineering Works but also of Dr. Y.R. Singh, Secretary General of

the Complainant - Association. Therefore, it cannot be said that there

is no evidence to support the Charges against the Petitioner, nor it

can be said that the findings of the Inquiry Officer affirmed by the

Appellate Authority and the Reviewing Authority on the twin charges

is perverse. The major thrust of the stand of the Petitioner centers

around the merits of this case, requiring re-appreciation of evidence,

which is beyond the scope of Judicial Review. Even on the

reconsideration of the review petition, the Reviewing Authority had

W.P. (C) No.2296/1991 Page 17 found that charge no.1 and 2 were serious enough in the context of

National Export Effort to warrant removal of the Petitioner from

service. Impugned order (Annexure P-45) discloses a conscious

application of mind and does not suffer from any infirmity warranting

any interference by this Court in the writ jurisdiction.

30. In the light of the aforesaid, this petition deserves dismissal and

is accordingly dismissed. Parties are left to bear their own costs.

Sunil Gaur, J.

October 06, 2009
pkb




W.P. (C) No.2296/1991                                                 Page 18