Balvinder Singh Nigah vs General Manager (Operations) ...
2009 Latest Caselaw 4252 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI



                                  LPA 479/2009


       BALVINDER SINGH NIGAH                       ..... Appellant
                    Through: Mr. P.P. Khurana, Senior Advocate with
                    Ms. Tamali Wad, Mrs. Seema Pandey and
                    Mr. Birander Singh, Advocates


                     versus


       GENERAL MANAGER (OPERATIONS)
       HOTEL CORPORATION OF INDIA LTD             ..... Respondent
                   Through: Ms. Padma Priya with Ms. Meenakshi
                   Sood, Advocates.

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE DR. JUSTICE S. MURALIDHAR

               1.Whether reporters of the local news papers
               be allowed to see the order?                     No
               2.To be referred to the Reporter or not ?        Yes
               3. Whether the order should be reported in the   Yes
               Digest ?


                              ORDER

22.10.2009

1. This appeal is directed against the impugned judgment dated 27th July

2009 passed by the learned Single Judge dismissing the Appellant‟s Writ

Petition (C) No. 6641 of 2002.

2. The background to the filing of present appeal is that the Appellant

Balvinder Singh Nigah was working as Assistant Manager (Catering) with

the Hotel Corporation of India, Ltd. („HCIL‟) Delhi which was a wholly

owned company of Air India. On 1st December 1991 at around 7 am one

Bhupinder Singh, Senior Security Assistant at the Indira Gandhi

International Airport in Delhi had gone to relieve the night staff of Flight

No.AI-111 which had arrived from Madras. At around 7.50 am while the

passengers were boarding the aircraft, Anil Bhise, the Aircraft Engineer

called Bhupinder Singh and told him that some suspicious object was

detected in the first class galley of the aircraft. Bhupinder Singh saw a

polythene bag and near the bag one torch having a palliate attached with a

battery wrapped in a sutali was found lying. The bag was opened and one

bottle containing some liquid was found. Suspecting that this could be a

bomb, Bhupinder Singh immediately asked the employees and the

passengers to vacate the aircraft. At this time apart from Bhupinder Singh,

one S.D. Thakur, Aircraft Technician and the Appellant who was the Duty

Officer (HCIL) were present in the aircraft in the first class gallery.

3. FIR No. 548 of 1991 was registered on the suspicion that a bomb had

been planted in the aircraft with intention of blowing it up. The FIR was

registered on the statement of Bhupinder Singh. A bomb disposal squad was

called to the spot. The said squad allegedly dismantled and defused the

bomb and gave a detailed report of the components. The components of the

explosive device as well as the polythene bag were seized.

4. The Appellant was arrested and remained in custody till 25 th January 1997

when he was granted bail. He was charged under Sections 4 and 5 of the

Explosive Substances Act as well as Sections 3(i), 4 and 5 of the Terrorist

And Disruptive Activities (Prevention) Act, 1987 "for possessing the

explosive substances and for planting the IED in the aircraft AI-111."

5. In the trial that ensued Bhupinder Singh was examined as PW-1, N.K.

Yadav as PW-2, Balraj Kumar as PW-3, A.K.Minocha as PW-4, Anil Bhise

as PW-5, L.M.Suman as PW-6, A.K. Chauhan as PW-7 and Mr. Z.A.Khan

as PW-8. There were 13 other prosecution witnesses including the police

witnesses.

6. The criminal case against the Appellant was based on circumstantial

evidence. The trial court by the judgment dated 4th February 2002 came to

the following conclusions:

"1. The accused was on the aircraft with other catering employees when bomb like object was discovered.

2. He had informed his colleagues about his intention to go to aircraft before hand.

3. He made no attempt to run away or conceal himself.

4. P.W. 4, who was first to prepare the report of all the articles found in air draft and had diffused the IED, did not mention in his report that No. 054 was there on polythene bag.

5. No public witness has supported the theory that when polythene bag containing IED was seen, it was having No. 054.

6. The recoveries from the house of accused are normal things like pliers, tester, solder, iron, factory made fire crackers etc.

7. As per P.W. 4 of the bomb was yet to be planted. No bomb or any other article was recovered from accused when he was in the air craft. No bomb was recovered from air craft or surroundings.

8. The IED recovered in itself could not have ignited. It needed an external agent.

9. It could not have been exploded by remote control as there was no transmitter. No transmitter or any such other object was recovered from accused."(emphasis supplied)

Ultimately the trial court held as follows:

"(1) That the accused duty was over between 7-7.30 am. He was found in the aircraft No. A1-III around 7.45 am along with other staff, at the time when this bomb like object was recovered. The circumstance of polythene bearing No. 054 in which IED was found has not been proved.

(2) The evidence of PW-4 shows that this number was not there on the polythene when he made report. The recoveries made from the home of the accused were of

fire- crackers and normal home appliance."

7. In the judgment dated 4th February 2002 the trial court concluded that the

prosecution had not proved beyond reasonable doubt that it was the

Appellant who had prepared the IED, smuggled it into the aircraft taking

benefit of his being a Duty Officer. The Appellant was acquitted of the

offences under TADA. Since the recovery was only of factory made

fireworks, which were easily available in the market, it was held that the

Appellant could not be convicted under the provisions of the Explosive

Substances Act either.

8. It is not in dispute that no appeal has been filed against the

aforementioned judgment dated 4th February 2002 of the trial court

acquitting the Appellant. The said judgment has therefore attained finality.

However as far as the HCIL is concerned, they were not prepared to accept

the logical conclusion of the Appellant‟s acquittal. It must be mentioned

that soon after the Appellant‟s arrest he was placed under suspension. Soon

after the judgment, the Appellant submitted a certified copy of the judgment

of the trial court and asked the suspension order to be revoked. However on

9th May 2002 he was issued the following notice by the HCIL:

"It is alleged against you as under:-

That on 01.12.1991 you reported for duty as scheduled. Though you were not allocated the Flight No. AI-111, you attended Flight No. AI-111 which had arrived from

Madras. Mr. Anil Bhise, Aircraft Engineer called you inside the Aircraft and shows you a suspicious object detected in the first class galley, which turned out to be a explosive device i.e. a Bomb. Which was planted to blow the Aircraft. Thereafter on the basis of your statement, an FIR was registered and investigation was taken up by S.I. Jallaluddin of PS IGI Airport immediately. The bomb squad was called for and the same was defused, who then gave a detailed report. On further investigation, you were interrogated by Inspector M.C. Katoch and was charged under Section 4 and 5 of Explosive Substance Act, with Sec.5 of TADA Act, and under Sec. 3(1) & 4 of TADA P Act. For possessing explosive substance and for planting that ED in the Aircraft AI-111.

The aforesaid act on your part amounts to misconduct under Hotel Corporation of India Employees‟ Service Regulations and the following charges are leveled against you.

1. You are acting in a manner prejudicial to the interest of the Corporation-Clause 60(5).

2. You have committed an act subversive of discipline or of good behaviour on an employee clause 60(20).

3. You have committed breach of law, rules, regulations and orders applicable to the Establishment-Clause 60(25).

You are hereby called upon to show cause within 7 days and to give your written explanation as to why domestic enquiry should not be initiated against you, failing which enquiry committee would be constituted to hold an

enquiry against you in the light of aforesaid charges."

9. On 14th May 2002 the Appellant, in reply to the aforementioned notice

stating that in view of his acquittal in the criminal case, the show cause

notice was liable to be discharged. However by an office order dated 28th

May 2002 the Appellant was informed that his reply was not found

satisfactory. A Single Member Enquiry Committee was appointed to enquire

into the charges levelled against the Appellant by charge sheet dated 9th

May, 2002 (which is in fact the aforementioned notice dated 9th May 2002).

In response to the aforementioned office order, the Appellant reiterated that

the judgment of the trial court would have a binding effect on any

departmental enquiry and therefore the enquiry initiated was without any

basis. He further pointed out that the witnesses named in the disciplinary

enquiry were all examined in the criminal trial as well.

10. The Enquiry Officer gave a report on 29th August 2002 holding that the

Appellant "has acted in a manner prejudicial to the interest of the

Corporation, committed an act subversive of discipline or of good behaviour

on an employee and committed breach of law, rules, regulations and orders

applicable to the Establishment. Therefore, he is guilty under Staff

Regulation No. 60(5), 60(20) and 60(25) of the Hotel Corporation of India

Limited Employees‟ Service Regulations."

11. A copy of the enquiry report was furnished to the Appellant by the letter

dated 17th September 2002. A detailed reply was given thereto by the

Appellant on 16th and 21st October 2002.

12. The Appellant filed Writ Petition (C) No. 6641 of 2002 in this Court on

10th October 2002 challenging inter alia the show cause notice/charge sheet

dated 9th May 2002 and all proceedings consequent thereto. By an order

dated 11th October 2002 while directing notice to issue in the writ petition it

was directed that the departmental proceedings may continue but any order

adverse to the Petitioner would not be implemented. On 2nd September 2005

the disciplinary authority passed the following order:

"I, being the Disciplinary Authority in the present case, have gone through the records of the inquiry and other related documents and have come to the conclusion that the findings of the Single Member Inquiry Committee are acceptable for the reasons recorded in the Inquiry Report. The charges leveled against Shri Balvinder Singh Nigah are fully proved. Considering the gravity of the charges proved against the charge sheeted officer, I hold that ends of justice would be met if the penalty of dismissal from service is imposed on him with immediate effect under Regulation No. 78(g) of HCI LTD Employees‟ Service Regulations under the powers vested in my under Regulation No. 79 of the above said Regulations."

13. The Appellant was furnished with a copy of the aforementioned order on

6th October 2008 and further informed that in view of the stay order passed

by the High Court the order was not being implemented. On 8 th November

2008 the Appellant submitted an appeal under Regulation 87 of the HCIL

Employees Service Regulations against the said order dated 2 nd September

2005 passed by the disciplinary authority.

14. By the impugned judgment dated 27th July 2009, the learned Single

Judge has while dismissing the writ petition held that the charge sheet was

not vague and was not hit by Regulation 80 which required the Respondent

to frame a definite charge against the employee. It was directed that the

disciplinary authority should expeditiously pass an appropriate order on the

enquiry report dated 29th August 2002 and thereafter in terms of Regulation

87, the Appellant would have the remedy by way of an appeal against the

said order of the disciplinary authority.

15. We have heard the submissions of Mr. P.P. Khurana, learned Senior

counsel appearing for the Appellant and Ms. Padma Priya, learned counsel

appearing for the Respondent HCIL.

16. It was first submitted on behalf of the Appellant that the charge sheet

served upon the Appellant was vague and no definite charges have in fact

been framed against the Appellant. It is pointed out that apart from stating

that the Appellant had acted in a manner prejudicial to the interest of the

Corporation in terms of Clause 60(5) of the Regulation and that he had

committed an act subversive of discipline or good behaviour in terms of

Clause 60(20) and that he had committed breach of law, rules, regulations

and orders applicable to the establishment in terms of Clause 60(25), no

specific acts answering the above acts of misconduct were pointed out in the

notice. Learned counsel for the Respondent, on the other hand, contended

that the specific charge against the Appellant was that he had been found

present in aircraft beyond duty hours and that too when he was instructed to

remain in the aircraft.

17. The above submission of the learned Senior counsel for the Appellant

merits acceptance. In the first place it requires to be noticed that the

communication dated 9th May 2002, which has been extracted hereinbefore,

is in fact only a show cause notice and not in itself a charge sheet. However

from the office memorandum dated 25th May 2002 it appears that the

Respondent termed the above show cause notice itself as the charge sheet.

Even if it is presumed to be a charge sheet, then in terms of Regulations 80,

it was required to specify the precise acts of the Appellant which attracted

the types of misconduct specified in Clauses 60(5), 60(20) and 60(25) of the

service Regulations. However a perusal of the aforementioned charge sheet

shows that it refers to "the aforesaid act" which is about the Appellant

having been called by Anil Bhise inside the aircraft and being shown a

suspicious bag which turned out to be "explosive device i.e. a bomb" which

was planted to blow the aircraft. It further goes on to state that "based on

your statement an FIR was registered and investigation taken up..." It

further states that the Appellant was interrogated and charged under the

Explosive Substances Act and TADA for possessing the explosive

substance. What the charge sheet does not refer to is the fact that, based on

those very allegations, the FIR registered led to a full-fledged trial in which

the Appellant stood acquitted by the judgment dated 4th February 2002 of the

trial court. If, in fact, after a full-fledged trial the Appellant was acquitted of

criminal charges on the basis of the aforementioned allegations, then it was

necessary for the Respondent HCIL to indicate in the charge sheet whether

there was any other act for which the Appellant had to be proceeded against

disciplinarily. The charge sheet is indeed vague and does not satisfy the

mandatory requirement of Regulation 80 of the service Regulations.

18. It is not possible to accept the contention of the learned counsel for the

Respondent that the alleged misconduct against the Appellant was that he

was found in the aircraft beyond duty hours and remained there even when

asked not to. There is no such allegation made in the charge sheet. No such

charge was framed against the Appellant.

19. The aforementioned show cause notice/charge sheet dated 9th May 2002

also contains erroneous statements as is apparent from the report dated 29th

August 2002 of the Enquiry Officer. The Enquiry Officer noticed that "Mr.

Anil Bhise has called Mr. Bhupinder Singh, the then Senior Security

Assistant inside the aircraft and told him that some suspicious object had

been detected in the first class galley and not the chargesheeted officer as

has been alleged/mentioned in the charge sheet No.CFCD/PER/ST-

81054/0500 dated 9th May 2002 as the chargesheeted officer was already

inside the aircraft."(emphasis supplied) The Enquiry Officer further noted

that "on the basis of statement of Mr. Bhupinder Singh, Senior Security

Assistant, Air India (not on the basis of Chargesheeted Officer as has been

alleged/mentioned in the letter of Chargesheet No.CFCD/PER/ST-

81054/0500 dated 9th May 2002.) an FIR No. 548 of 1991 (D.Ex.-3) was

registered in the Police Station IGI Airport, New Delhi." It is plain therefore

that the statements in the show cause notice/charge sheet are itself

erroneous. Further the show cause notice/charge sheet states that the

suspicious object detected in the first class galley was a bomb which was

planted to blow the aircraft. This is contrary to the specific findings of the

trial court that "as per PW-4 the bomb was yet to be planted. No bomb or

any other article was recovered from accused when he was in the aircraft.

No bomb was recovered from aircraft or surroundings." The trial court

further observed that: the report of PW-4, the head of the Bomb Disposal

Squad, showed that "the device found in Air India flight AI-111 (was a)

sophisticated improvised explosive device (IED) which could have caused

serious fire hazards. It appears that (the) peretrator had not done the final

operation of this placement of bomb...The bomber had designed the device

with multiple initiating mechanism to ensure the activation of IED."

Therefore the statements in the show cause notice/charge sheet were

incorrect and contrary to the record.

20. It was submitted by learned counsel for the Respondent that a perusal of

the Enquiry Officer‟s report would indicate the precise type of misconduct

for which the Appellant was proceeded against disciplinarily. It was

submitted that the punishment of dismissal awarded to the Appellant was

consistent with the said findings.

21.The above submission appears to be entirely without merit. A perusal of

the report dated 29th August 2002 of the Enquiry Officer shows that the

witnesses examined during the enquiry did not in fact support the case of the

Respondent HCIL at all. The Enquiry Officer noticed that MW-6 Mr.Z.A.

Khan confirmed the statements given by him to the police. He confirmed

that "there was shortage of presetting staff in the night shift of 30th

November 1991." Although there was no circular from the unit head

imposing restrictions for not detaining the presetting staff for three

consequent shifts, in an emergency the Duty Officer had to manage the shift

with the available manpower of presetters. MW-6 agreed that "on the night

shift of 30th November 1991 there was heaviest flight schedule of the week."

MW-5, Mr. Naresh Kumar Yadav confirmed that he had been allocated the

night shift of 30th November 1991 by the Appellant, one of the Duty

Officers. Beside him Mr. Ashok Kumar Chauhan, MW-4 was also allocated

that flight. He confirmed that the arrival of the flight AI-111 was behind

schedule by 10 minutes and that on 1st December 1991 he along with Mr.

Chauhan went to the parking area and saw the Appellant already sitting in

the Matador Van and when asked he stated that since there was sufficient

time available, he (the Appellant) would also accompany Mr. Yadav to the

flight AI-111 "as it will be easier to handover the meals on AI-111." Mr.

Yadav admitted that "the Duty Officer may visit the daily flight on ground

subject to necessity." He admitted that the orders were issued from the Unit

Head to this effect from time to time. Likewise, Mr. A.K.Chauhan MW-4

also stood by his earlier statement given to the police.

22. These three witnesses i.e. MW-4 Mr. A.K.Chauhan, MW-5 Mr. Anil

Bhise and MW-6 Z.A. Khan were also prosecution witnesses at the criminal

trial. During the trial Mr. N.K. Yadav stated that "the accused Balvinder

was not having anything nor even the papers were with him when they went

to the aircraft." These witnesses told the criminal court that the Appellant,

Mr. A.K.Chauhan and the witnesses Mr. N.K.Yadav "all were authorised to

go to aircraft and inside it because they have been issued tarmac passes

which were issued to the catering staff." These witnesses further stated that

"ordinarily one officer and one supervisor goes inside the aircraft for

supervising the work of distribution of food carts but on that day due to

shortage of staff and delay of flight and because of arrival of a VVIP aircraft

accused Balvinder Singh who was a duty officer, also had to go into the

aircraft." (emphasis supplied)

23. In the trial PW-7 Shri A.K. Chauhan "denied that he had stated in his

statement to the police that it was very unusual for an officer of the tank of

accused, who had independent allocated flight, to accompany him to attend

the same." He also denied that "he had told that this flight was not allocated

to the accused and he could not have accompanied them to the flight." PW-

8 was Z.A.Khan. The trial court recorded that this witness stated that he did

not remember if the accused had told him that he was going to flight No. AI-

111 or that he told the accused that he was not required to go to that flight as

it had already been allocated to junior catering staff. He also stated that he

did not remember if he had told in his statement to the police that the

accused was working as IInd officer in the night shift and told him that he

was going to flight AI-111 or that he told police that accused was not

required to go there since he was already allocated duties.

24. What is plain from the reading of the above evidence in the trial court of

the same three witnesses who also appeared in the domestic enquiry is that

they did not support the theory that the Appellant was found in the aircraft

on the given day without any authorisation. Each of these witnesses on the

contrary said that there was nothing unusual about the Appellant being found

in the aircraft as on that particular day there was shortage of staff. It is

surprising that the Enquiry Officer has not adverted to the judgment of the

trial court which discusses the evidence of these very witnesses who also

appeared in the domestic enquiry. What is even more surprising is that in

the domestic enquiry each of these witnesses adverted to the statements

made by them to the police and to the fact of having appeared as prosecution

witnesses in the criminal trial. Therefore it was incumbent on the Enquiry

Officer to assess the evidence of these witnesses with reference to their

depositions in the criminal court with regard to same matter which was

being enquired into disciplinarily.

25. A perusal of the enquiry report dated 29th August 2002 shows that the

enquiry officer merely refers to the trial court having given a judgment of

acquittal and does not at all discuss the various findings arrived at by the

trial court after a detailed discussion and analysis of the evidence. This is a

fatal flaw in the enquiry report. In the considered view of this Court the

following findings of the enquiry officer are totally without evidence:

"Since, the Chargesheeted Officer Mr. Balvinder Singh Nigah looked after the complete presetting and checking of meals carts personally and also went to the Aircraft AI-111 to handover the meals despite of the fact that he was advised by the Senior Duty Officer Mr. Z.A. Khan (MW-6) that he is not required to go on this flight, where he was arrested by the Police in connection with the recovery of a suspicious object (ED) in the First Class Galley, he is guilty of not handling the Flight properly. On account of the arrest of the Chargesheeted Officer Mr. Balvinder Singh Nigah by the Police on 1/12/1991 in connection with the recovery of the suspicious object and his remaining continuously under detention in the custody under TADA Act till January, 1997, he had involved himself in a crime though he was later acquitted."

26. A reading of the above paragraph would appear that in the view of the

enquiry officer the Appellant had gone to the aircraft although he was

advised by Z.A.Khan (MW-6) that he was not required to do so. As already

seen hereinbefore Z.A. Khan has denied in the trial court of having made

such a statement to the Appellant. This finding is therefore clearly perverse.

Further it would appear that by being tortured by the police, or being

arrested, the Appellant "involved himself in a criminal case" and therefore

was guilty of misconduct although he was later acquitted. This conclusion is

perhaps most perverse considering the fact that for no fault of his the

Appellant had to undergo the ordeal of a criminal trial for 11 years and had

to suffer a wholly unjustified incarceration for about 6 years. It is indeed

unfortunate that the Respondent had chosen to persecute the Appellant

despite his clean acquittal by the trial court.

27. It was submitted by learned Senior counsel for the Appellant that the

impugned show cause notice/charge sheet was hit by laches and delay and

therefore the proceedings consequent thereto were unsustainable in law.

Reliance was placed on the judgment of the Supreme Court in P.V.

Mahadevan v. MD. T.N. Housing Board (2005) 6 SCC 636 which decision

in turn refers to an earlier decision State of A.P. v. N. Radhakishan (1998) 4

SCC 154. We find considerable merit in the submission. In the instant case.

after waiting for 11 years disciplinary action was initiated against the

Appellant for being present in aircraft beyond his duty hours. There is

absolutely no explanation why the Respondent had to wait for 11 years to do

this. In any event as has been noticed here earlier, this was not even the

specific charge for which the Appellant was sought to be proceeded against

disciplinarily.

28. For all of the aforementioned reasons we find that the impugned show

cause notice/charge sheet dated 9th May 2002 and all proceedings

consequent thereto including the order dated 2nd September 2005 of the

disciplinary authority are wholly unsustainable in law. They are accordingly

quashed. In the circumstances, the impugned judgment of the learned Single

Judge is hereby set aside. Since on account of the stay order of the High

Court the order dated 2nd September 2005 of the disciplinary authority was

not given effect to, and it has been set aside by this judgment, the Appellant

will be treated as having continued in service throughout with all

consequential benefits. The arrears of wages, after accounting for the

suspension allowance already paid to the Appellant, and other consequential

dues will be paid to the Appellant by the HCIL within a period of four weeks

from today. In addition, the Respondent HCIL will also pay to the Appellant

costs of Rs.30,000/- within four weeks.

29. The appeal is allowed with the above directions.

CHIEF JUSTICE

S. MURALIDHAR, J OCTOBER 22, 2009 dn