Ranvir Singh vs Union Of India & Ors.
2009 Latest Caselaw 3586 Del

             HIGH COURT OF DELHI: NEW DELHI

+     Writ Petition (Civil) No. 7875/2003

                    Judgment reserved on: 21st August, 2009
%                   Judgment delivered on: 7th September, 2009

      RANVIR SINGH                             ..... Petitioner
                         Through: Petitioner in person.
                    Versus

      UNION OF INDIA & ORS.            ..... Respondents
                   Through: Mr. A.K. Bhardwaj with Ms.
                            Jagrati Singh, Advocates.

      Coram:
      HON'BLE MR. JUSTICE MADAN B. LOKUR
      HON'BLE MR. JUSTICE A.K. PATHAK

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

      2. To be referred to Reporter or not?              Yes

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


A.K. PATHAK, J.

1. Petitioner has filed this writ petition under Article 226

of the Constitution of India, for quashing of the order dated

30th September, 2003, passed by the Central Administrative

Tribunal, Principal Bench, New Delhi (hereinafter referred to

as "Tribunal"), in O.A. No. 2003/2002. It has been further

prayed that the order dated 26th June, 2001 as well as

charge memo dated 10th November, 1999 be quashed and

Respondent be directed to pay all consequential benefits as

well as the cost of litigation to the Petitioner.

2. Briefly stated, facts of the case are that the Petitioner

was working as General Manager, Baroda Telecom District,

at the relevant time. Subsequently he was promoted to the

post of Chief General Manager, Telecom, Northern Telecom

Projects Circle, New Delhi and retired on 31st January,

2002.

3. A departmental proceeding for major penalty was

initiated against the Petitioner, while he was in service, on

the following charges:-

"That the said Shri Ranvir Singh, while functioning as General Manager, Baroda Telecom District, during the period from 15.6.1989 to 21.7.1993 deliberately and with malafide intention, and in connivance with his subordinates, accepted the irregular recommendation of the Stores Purchase Committee which met on 26.2.1992, for purchase of GI pipes of 1.5 inches diameter Class "A" (light weight) on quotation basis, ignoring the tenders already received in response to Notice Inviting Tenders issued on 6.1.1992 and the valid DGS&D Rate Contract, and ordered the local purchase of 2700 metres of such pipes worth Rs. 1,83,240/-

from M/s Ambica Pipe Syndicate,

Ahmedabad: and, further, ordered the local purchase of such pipes on three more occasions, on quotation basis from the same firm i.e. 2700 metres worth Rs. 1,83,240/- on 7.5.1992, 2404 metres worth Rs. 1,86,830/- on 9.10.1992, and 5460 metres worth Rs. 4,15,024/- on 8.1.1993, bypassing the tender procedure, overruling the advice of his Internal Financial Adviser, in excess of his delegated financial powers, and at rates far higher than the rates as per DGS&D Rate Contract, in gross violation inter-alia of Rule 2 in Appendix-8 (Part-I) to Rule 102(1) and Annexure to Chapter-8 of General Financial Rules, 1963. Rule 429 of P&T Manual Vol.II, and Rule 60 of P&T Financial Hand Book Vol. I. thereby causing a heavy loss of Rs.1,84,139/- to the Department and corresponding undue pecuniary advantage to the supplier.

Thus, by his above acts, the said Shri Ranvir Singh committed grave misconduct, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government Servant, thereby contravening Rule 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964."

4. After the retirement of Petitioner these proceedings

continued under Rule 9 of the CCS (Pension) Rules, 1972.

Petitioner participated in the enquiry. Enquiry Officer, after

concluding the enquiry, submitted his report dated 26th

June, 2001 wherein he held that charges were partly proved.

It was proved that the Petitioner had accepted the irregular

recommendations of the Stores Purchase Committee dated

26th February, 1992 for purchase of G.I. pipes on quotation

basis, ignoring the tenders already received and without

taking into consideration the available DGS&D rates; it was

further proved that the Petitioner made purchases on three

more occasions, by bypassing the tender procedure and

over-ruling the advice of the Internal Financial Adviser, in

excess of his delegated financial powers, at a rate far higher

than fixed by the DGS&D, causing loss of Rs.1,84,139/- to

the exchequer and corresponding undue pecuniary

advantage to the supplier. Enquiry Officer observed that the

connivance of Petitioner with his subordinates was not

proved.

5. Petitioner made a representation dated 22, October,

2001. Thereafter, President, in consultation with the Union

Public Service Commission (for short referred to as UPSC),

imposed penalty of 5% cut in the pension of Petitioner for a

period of five years vide order dated 28th June, 2002.

6. Petitioner challenged the order dated 28th June, 2002

before the Tribunal by filing O.A. No. 2003/2002.

Contentions raised by the Petitioner before the Tribunal are

as under :-

"(a) Respondents wilfully destroyed the evidence which would have conclusively gone against the evidence adduced on behalf of the prosecution.

(b) Documents which had not been supplied to applicant were taken into consideration to establish the article of charge against him in clear violation of the principles of natural justice.

(c) Copy of the preliminary enquiry report was neither supplied nor allowed to be inspected.

(d) While the charge memo was issued on 10.11.1999 the enquiry officer had already been appointed on 24.12.1998.

(e) Respondent No. 2 i.e. Secretary, Ministry of Communications, refused to give personal hearing to applicant at the time of submission of written statement in response to memorandum of charge. It is in violation of statutory rule.

(f) Applicant has been discriminated against in the matter of punishment inasmuch as in the disciplinary proceedings instituted against Shri D.C. Gupta, the then Deputy General Manager and V.K. Sainani, the then Divisional Engineer milder punishments were imposed on them and the proceedings against Smt. Sujata Ray, the then Internal Financial Adviser were dropped."

7. Respondent refuted aforesaid contentions of the

Petitioner. As per them no document was tampered with,

nor any evidence was destroyed by the Respondent wilfully.

It was further stated that full opportunity was afforded to

the Petitioner to inspect the documents before submitting

his reply to the memorandum of charge. It was not

obligatory on the part of Respondent to afford personal

hearing to the Petitioner before submitting his explanation

to the memo of charge. All the documents relied by the

Respondent were duly supplied to the Petitioner. Inspection

of documents was also permitted. No such document which

was not supplied to the Petitioner was taken into

consideration. Mr. D.C. Gupta, Mr. V.K. Sajnani, Smt.

Sujata Ray were not proceeded against along with the

Petitioner in the same disciplinary proceedings. Separate

evidence was led in their cases. The said officers were

punished on merits of their respective cases, therefore,

Petitioner was not discriminated against viz-a-viz said

officers. Principles of natural justice were duly followed

during the enquiry proceedings. Adequate evidence was led

by the Respondent against the Petitioner to establish the

charges against him. It was further contended by the

Respondent that the scope of judicial review was limited and

Tribunal had no power to reappraise the evidence and take a

different view.

8. Tribunal considered the rival contentions of the parties

and vide impugned order dismissed the O.A.

9. Before us, Petitioner has reiterated most of the

contentions raised by him before the Tribunal. Learned

counsel for the Respondent has supported the findings of

Tribunal for the reasons stated therein. We have also gone

through the material placed on record.

10. As regards contention (a), Tribunal held that no cogent

proof was furnished regarding the so called destruction or

tampering of documents/correspondence. Plea set up by

the Petitioner regarding destruction of document and/or

tampering with the correspondence in the official file, was

also not convincing. Tribunal held that no adverse inference

could be drawn against the Respondent in these

circumstances. As regard contention (b), Tribunal held that

the documents, on which reliance was placed by the

Respondent, were duly supplied to the Petitioner. Plea of

the Petitioner that DGS&D rate contract dated 14 th June,

1991 was not supplied thereby causing prejudice to the

Petitioner in setting up his defence, was not tenable as the

letter dated 27th August, 1992 from DGS&D whereby the

rate contract dated 14th June, 1991 awarded to M/s Tisco

Limited was amended, was produced during the enquiry as

Exhibit S4. After the rate contract was amended, the earlier

DGS&D rate contract dated 14th June, 1991 had lost its

relevance and its non production did not prejudice the case

of Petitioner in any manner whatsoever. Tribunal returned a

categorical finding that the remaining documents, relied

upon by the department during the enquiry proceeding, were

duly supplied to the Petitioner and he was, thus, not

prejudiced in any manner.

11. We do not find any reason to take a different view than

what the Tribunal has taken. Documents on which reliance

was placed by the Respondent were duly supplied to the

Petitioner. Non availability of DGS&D rate contract dated

14th June, 1991 would not be fatal in any manner

whatsoever in the facts of this case. This rate contract was

duly amended vide letter dated 27th August, 1992 from

DGS&D and same was available on record as Exhibit S4.

Copy of this document was supplied to the Petitioner. All

other documents on which reliance was placed by the

Respondent were also supplied. Thus, Tribunal was right in

holding that non supply of rate contract dated 14th June,

1991 did not prejudice the defence of the Petitioner in any

manner whatsoever. So far as the contention of the

Petitioner, that the documents were tampered with as the

file containing certain letters, which would have been helpful

to the Petitioner in setting up his defence, had gone missing,

in our view, has no force. Petitioner has failed to point out

any document on record which appears to have been

tampered with by the Respondent. No interpolation can be

pointed out in any of the documents. Petitioner had failed to

demonstrate before the Tribunal, so also before us, that the

Respondent had wilfully misplaced the files containing

certain documents, which allegedly would have been useful

for setting up the defence by the Petitioner. Relevant files

were available at the time when Petitioner was allowed

inspection of the record. All the documents were seen by the

Petitioner before submitting his written reply to the memo of

charge. All the documents on which reliance was placed by

the Respondent in support of the Memorandum of charge

had been supplied to the Petitioner. Simply because some of

the documents, as demanded by the Petitioner, subsequent

to inspection were found missing, by itself would not be

sufficient to draw an adverse inference against the

Respondent. We are of the view that Tribunal was right in

holding that the Petitioner‟s contention, regarding tampering

of the correspondence and other material in the official file

was not convincing. Tribunal was also right in concluding

that no document, which was not supplied to the Petitioner,

was taken into consideration to establish the charges.

12. As regards contention (c), Tribunal held that the

preliminary investigation report was not made use of in the

enquiry by the Respondent, therefore, its non supply did not

adversely affect the outcome of the disciplinary proceeding.

As per the Tribunal no prejudice was caused to the

Petitioner on account of non supply of preliminary enquiry

report. Petitioner has contended that the preliminary

enquiry report was basis of charges framed against him,

thus, its non supply had caused serious prejudice to him.

Preliminary enquiry report was made the foundation of

charges framed against the Petitioner. Accordingly, it was

required to be supplied to the Petitioner. Non supply of

preliminary enquiry report vitiates the whole departmental

proceeding. Reliance has been placed on Pepsu Road

Transport Corporation vs. Shavinder Singh reported in

2000(2) SLR 729, R. Sambamurthy vs. Chief General

Manager (A.P.), reported in 2001 (1) SLR 257 and State of

Utter Pradesh vs. Mohd. Sharif reported in (1982) 2 SCC

376. As against this learned counsel for the Respondent

has contended that the preliminary enquiry report was

neither relied upon by the department during the enquiry

proceeding nor at the time of awarding the punishment.

Thus, no prejudice was caused to the Petitioner, on account

of non supply of preliminary enquiry report. Respondent

was required to supply preliminary enquiry report only if

they had placed reliance thereon. Mere non supply of

preliminary enquiry report would not vitiate the disciplinary

proceeding more so, when Petitioner had failed to disclose as

to in what manner he was prejudiced on account of non

supply of this report. In nutshell, case of the Respondent is

that since no reliance was placed on this report same was

not required to be supplied. Reliance has been placed on

Krishna Chandra Tandon vs. Union of India reported in

1974(2) SLR 178, Haryana Financial Corporation &

Anr. Vs. Kailash Chandra Ahuja reported in 2009(1) All

India Services Law Journal 37 and State of U.P. vs.

Harindra Arora & Anr., reported in JT 2001 (Suppl. 1)

SC 70.

13. We have considered the rival contentions of both the

parties on this point and do not find any force in the

contention of the Petitioner. Preliminary enquiry report was

not a relied upon document. If that is so then its non

supply would not violate the principles of natural justice.

There is no such rule that said report had to be supplied to

the delinquent even when no reliance was placed on the

same by the department. In Krishna Chand case (supra)

Supreme Court has held that inter communication between

the officers preliminary to the holding of enquiry, to find

prima facie grounds for holding disciplinary enquiry, need

not be supplied to the delinquent officer if not relied upon by

the Enquiry Officer. In Kailash Chandra Ahuja‟s case

(supra), Supreme Court has held that non supply of report

of the Enquiry Officer to the delinquent would not ipso facto

result in proceedings being declared null and void and order

of punishment non est and ineffective. Delinquent has to

plead and prove that non supply of such a report had

caused prejudice and resulted in miscarriage of justice. In

this case Petitioner has failed to make out a case in his

favour that he was prejudiced on account of non supply of

preliminary enquiry report or that it has resulted in

miscarriage of justice. We are of the view that Tribunal

rightly held that Respondent had not committed any

illegality or irregularity in not supplying the report of the

preliminary enquiry to the Petitioner.

14. Contention (d) has not been pressed by the Petitioner

before us during the course of argument.

15. As regards contention (e), Tribunal held that personal

hearing at the stage of submission of written reply was not

provided for in the statutory rules. The rules provide for oral

enquiry which in the case of Petitioner was conducted by the

Enquiry Officer wherein opportunity was given to the

Petitioner to defend himself. It was not mandatory for the

Secretary, Ministry of Communications, to give personal

hearing to the Petitioner after he submitted his

representation against the charge memo. Before us,

Petitioner has failed to point out any rule mandating

personal hearing to a delinquent at the time of submission

of written representation in response to charge memo and

before a decision is taken by the Disciplinary Authority to

the effect as to whether enquiry is required to be conducted

or not.

16. Petitioner has next contended that in the charge memo

dated 10th November, 1999 it was specifically mentioned

that Petitioner may submit within 10 days, on receipt of

memo, a written statement of his defence and also to state

whether he desires to be heard in person. Petitioner

submitted his written representation and also demanded

personal hearing, thus it was incumbent upon the Secretary,

Ministry of Communication to have afforded personal

hearing to him. As per the Petitioner, Secretary also did not

take into account the written representation of the Petitioner

before taking a decision that an oral enquiry is to be

proceeded with. Petitioner has then contended that no

reasonable opportunity was afforded to him to explain that

on his submitting a detailed written representation to the

charge memo, no further departmental proceedings were

needed to be proceeded with, and the same ought to have

been dropped. Reliance has been placed on Martin Burn

Ltd. vs. The Corporation of Calcutta, reported in AIR

1966 SC 529. In our view, this judgement is in different

context and is not applicable to the facts of the present case.

In the instant case Petitioner had failed to point out any

statutory rule mandating a personal hearing at the

preliminary stage of the department taking a decision as to

whether oral enquiry is to be proceeded with pursuant to

issuance of charge memo. We are of the view that Tribunal

has taken a right view by saying that personal hearing, at

the stage of submission of written reply to the charge memo,

was not necessary as it was not provided under any

statutory rule.

17. As regard contention (f), Tribunal held that separate

departmental proceedings were initiated against the

Petitioner, Mr. D.C. Gupta, Mr. V.K. Sajnani and Smt.

Sujata Ray. Each case was dealt with according to its own

merits. Decision was taken to drop the proceedings against

Smt. Sujata Ray while giving warning to remain careful in

future. So far as Mr. D.C. Gupta and Mr. V.K. Sajnani are

concerned, suitable punishment was awarded to them

depending upon the outcome of their respective proceedings.

Petitioner cannot claim discrimination in the matter of

punishment. Petitioner contended that Mr.D.C. Gupta, Mr.

V.K. Sajnani and Smt. Sujata Ray were members of the

„Purchase Committee‟. They had made recommendations

with regard to purchase of GI pipes. Petitioner being G.M.

had accepted said recommendations. Misconduct of the

Petitioner was not graver than said officers. In spite of this

they were awarded lesser punishment than the Petitioner.

Mr. D.C. Gupta and Mr. V.K. Sajnani were given

punishment of stoppage of two increments; whereas Smt.

Sujata Ray was let off only with a warning. As against this,

Petitioner was awarded severe punishment of 5% cut in his

pension for a period of five years. Thus, Petitioner was

discriminated vis-a-vis other officers, who were similarly

situated. The action of the Respondent was thus, violative of

Articles 14 and 16 of the Constitution. Reliance has been

placed on Sengara Singh vs. State of Punjab reported in

1983 (3) SLR (SC) 685 and State of U.P. & Ors. vs. Raj

Pal Singh reported in 2001(4) SLR (SC) 637. As against

this, learned counsel for the Respondent has contended that

in the disciplinary proceedings concept of co-accused does

not exist. Merely because some of the delinquents are let off

with lesser punishment would not mean that other

delinquent cannot be awarded grave punishment. In the

disciplinary proceedings imposition of major penalty to one

of the delinquents even when some of the delinquents, are

let off with minor penalty, would not constitute

discrimination. It has been further contended that

misconduct of the Petitioner is graver than other officers.

Purchase Committee was constituted by the Petitioner

himself. He was G.M. It was his duty to satisfy himself

before accepting the recommendation of the Purchase

Committee, that such a recommendation was in consonance

with rules applicable regarding purchase of a particular

item. In nutshell, it has been contended that merely

because Mr. D.C. Gupta, Mr. V.K. Sajnani and Smt. Sujata

Ray were awarded lesser punishment than the Petitioner by

itself would not amount to discrimination. Reliance has

been placed on Balbir Chand vs. The Food Corporation of

India Ltd. & Ors. reported in 1997(1) All India Services

Law Journal III page 156 and Om Kumar & Others vs.

Union of India reported in 2001 (1) S.C. Services Law

Judgments 125.

18. We have considered the rival contentions of both

parties and we do not find any force in the contentions of the

Petitioner. Separate departmental proceedings were

initiated against all the above referred officers and

punishment was awarded depending upon the material

available on record in their respective proceedings.

Petitioner cannot claim that he should also be awarded the

same punishment which was awarded to some members of

the Purchase Committee. The cases on which reliance has

been placed by the Petitioner are in different facts and are

distinguishable. In Sengara Singh‟s case (supra) 1100

members of the police force were dismissed from the service

and criminal prosecution was launched against them for

participating in an agitation. Later on criminal cases were

withdrawn against 1000 policemen and they were also

reinstated. About 100 policemen were left out. In these

facts, Supreme Court held that there was nothing to show

that the left out 100 policemen were guilty of more serious

misconduct compared to those who were reinstated.

Similarly, in Raj Pal‟s case (supra), delinquent employee

along with his four other colleagues had given beatings to

one of their colleague. In these facts, it was held that all of

them were guilty of the same offending act and should have

been given same punishment. However, in the instant case

Petitioner being head of department was accountable for

making purchases dehors the rules. Purchase Committee

was for his assistance. It was open for him to reject or

accept the recommendation. We are also of the view that

Petitioner cannot claim parity on the point of punishment.

Accordingly, we reject this contention of the Petitioner.

19. Petitioner has lastly contended that he was not given

fair opportunity to defend himself as also before awarding

punishment. He was not given proper opportunity to explain

his conduct before imposing the penalty. Reliance has been

placed on State of Punjab vs. Iqbal Singh reported in AIR

1976 SC 667 and State of Punjab vs. K.R. Erry reported

in AIR 1973 SC 834. We do not find any force in this

contention of the Petitioner either. We are satisfied that full

opportunity was given to the Petitioner to defend himself.

He was given opportunity to submit his written

representation. During enquiry, the Enquiry Officer afforded

full opportunity to the Petitioner to defend his case. After

evidence was closed, Enquiry Officer also recorded

statement of the Petitioner wherein incriminating material

against him was put to him and his answers were solicited.

At every stage proper opportunity was given to the Petitioner

to defend himself and no grievance can be made by the

Petitioner at this stage in this regard.

20. In the light of the above discussion, we do not find any

merit in this writ petition and same is dismissed.

                                             A.K. PATHAK, J




                                             MADAN B. LOKUR, J

SEPTEMBER          07, 2009
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