Sushil Kumar & Yash Pal vs Union Of India & Others
2009 Latest Caselaw 3848 Del

*            HIGH COURT OF DELHI: NEW DELHI
        Judgment reserved on: September 10, 2009
     Judgment pronounced on: September 18, 2009
+                   W.P. (C) No. 7527 of 2009

      Sushil Kumar & Yash Pal           ...  Petitioners
                Through: Mr. M.N. Krishnamani, Senior
                         Advocate, with Mr. H.U. Chaudhary
                         & Mr. Vinay Kumar Tripathi,
                         Advocates.
                           versus

      Union of India & Others            ...  Respondents
                 Through: Mr. J.P. Sharma and Mr. G. Joshi,
                          Advocates.

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. Petitioners- Sushil Kumar and Yash Pal are Deputy

Manager (Marketing) and Supervisor (Marketing)

respectively with respondent- National Fertilizers Ltd.

(hereinafter referred to as the 'respondent-Company') and in

this petition, they are challenging Memorandums of 1st April,

2008 (Annexures- P-2 & P-3), vide which they have been

called upon to submit written statement of their defence

W.P. (C) No. 7527 of 2009 Page 1 regarding the irregularities committed by them during the

years 2002-2003 to 2005-2006, while they were working as

Incharge and Supervisor respectively in the Area Office, at

Moradabad, Uttar Pradesh. Memorandum of 28th August,

2008, (Annexure P-25) vide which Enquiry Officer was

appointed and Memorandum of 24th October, 2008

(Annexure P-26), vide which there was a change of Enquiry

Officer are also under challenge in this petition. There is a

challenge to Order Sheet of 27th February, 2009, (Annexure

P-29) of the Enquiry Officer whereby both the petitioners

have been given last and final opportunity to appear before

the Enquiry Officer on 20th March, 2009.

2. The challenge to the initiation of the departmental

proceedings against the petitioners is on the ground that the

Articles of Charges on which petitioners have been called

upon to face the departmental proceedings are vague and

indefinite, which is in violation of Rule 32 of the National

Fertilizers Limited Employees' (Conduct, Discipline and

Appeal) Rules, which mandates that the Enquiry has to

proceed on definite charges and relied upon documents are

to be supplied to the delinquent officials. The grievance of

the petitioners is that the action of the respondents in not

W.P. (C) No. 7527 of 2009 Page 2 supplying valid documents is intentional and deliberate. It is

also the case of the petitioners that the departmental

enquiry is being proceeded with, without supplying of valid

documents, despite several reminders, which renders these

proceedings to be null and void.

3. The grievance of the petitioners is that persons actually

responsible, who were looking after the operation at the

Area Office at Moradabad, have been left out and

disciplinary proceedings have been initiated against the

petitioners at the instance of Sh. K.B. Verma, Chief General

Manager (HR) of the respondent- Company. It is also the

case of petitioner No. 1 that respondent-Company fails to

establish his presence at Moradabad in June, 2005.

According to the petitioners, initiation of the departmental

proceedings against them smacks of arbitrariness and lacks

bona fide and deserves to be quashed.

4. Contesting respondent Nos. 2 to 5 in the counter-

affidavit have denied the case of the petitioners and have

stated that this writ petition is premature. It has been also

denied that the petitioners have been proceeded ex parte. In

the rejoinder filed, the stand taken by the petitioners in the

writ petition has been reiterated.

W.P. (C) No. 7527 of 2009 Page 3

5. Counsel for the parties have been heard and material

on record has been perused.

6. Though allegations of mala fide have been leveled

against Sh. K.B. Verma, Chief General Manager (HR) of the

respondent-Company, but it has not been spelt out as to how

and why Sh. K.B. Verma is ill-disposed towards the

petitioners. Furthermore, Sh. K.B. Verma, has not been made

a party in this petition. Thus, indeed it would be premature

to entertain the plea of mala fide to scuttle the disciplinary

proceedings against the petitioners, which is at its threshold.

7. It has been urged on behalf of the petitioners that basis

of the imputation of charges is of the year 2003, whereas the

enquiry proceeding has been initiated against the petitioners

in the year 2008 and is thus highly belated. The question of

delay in initiation of departmental proceedings has been

considered by the Apex Court in the case of 'Secretary to

Government, Prohibition & Excise Department vs. L.

Srinivasan' (1996) 3 SCC 157 and the pertinent

observations made are as under:-

"It is not necessary to go into the merits and record any finding on the charge leveled against the charged officer since any finding recorded by this Court would

W.P. (C) No. 7527 of 2009 Page 4 gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum de hors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across frequently such orders putting heavy pressure on this Court to examine each case in detail. It is high time remedied."

8. Tendency to scuttle the departmental proceedings at

the threshold has been deprecated by the Apex Court in the

above referred case of L. Srinivasan (Supra). Which of the

relied upon documents have not been supplied, has not been

spelt out. The defence of the delinquent officials is not

required to be prejudged before the departmental

proceedings actually begin. In any case, complaints

regarding the petitioners were received in the year 2006 and

after preliminary enquiry only, disciplinary proceedings have

W.P. (C) No. 7527 of 2009 Page 5 been initiated against the petitioners. Nothing more is

required to be said at this stage.

9. So far as the vagueness of the 'Article of Charges' is

concerned, the imputation of 'Article of Charges' ( Annexure

-1) needs to be referred to and it reads as under:-

"Article-I

Shri Sushil Kumar, Dy. Manager (Marketing), E.NO. 6225, while working as Incharge, Area Office, Moradabad, in connivance with Shri Yash Pal, Supervisor (Marketing) SG-II, E.NO.8353 has committed the following irregularities:

a) Short supply of 130 MT of Urea to M/s Om Prakash Vishnu Kumar, issued vide D.O. No. 16906 dated 5.6.05.

b) Short supply of 141.90 MT of Urea to M/s Radhesh Kumar and Bros. out of the Urea issued to the party during the year 2002-03 to 2005-06 which came to the notice of the party only in May, 2006.

c) The Urea was directly sold from Moradabad rake point on behalf of M/s Harmohan Singh Enterprise, Bilaspur to M/s Varshey Trading Company at Moradabad and the false claims for H&T charges towards handling/ transportation of the said Urea from Moradabad to Bilaspur were allowed. In addition, false CSS claims for the said Urea shown in the CSS godown of M/s Harmohan Singh, were also allowed.

W.P. (C) No. 7527 of 2009                                      Page 6
        d)          Short supply of 32.5 MT of Urea to M/s Goyal Cement

Agency out of 160 MT of urea issued from SWC, Moradabad vide D.O. Nos. 15593 dt. 13.8.03 for 60 MT, 16329 dt. 30.09.03 for 50 MT and 16392 dt. 23.12.03 for 50 MT.

e) Shri Sushil Kumar, thus committed the irregularities by deviating from the laid down procedure with regard to:

- Issuing instructions through letters instead of D.Os to the Manager, UP SWC, Bilaspur to issue of Urea to various parties.

- Failed to ensure the preparation of Rake disposal statements in accordance with the actual dispatches/ supplies.

- Non-issuance of Dos to the concerned parties in time.

- Selling of Urea on the account of one dealer to another dealer without knowledge of former and deposit of payment on their behalf.

f) Accounts of M/s Om Prakash Vishnu Kumar, Agarwal Trading Co., R.A. Trading Co., Raj Trading Co., Radhesh Kumar & Bros, M/s Goyal Cement Agency, S.L. Kohli & Co. and M/s Harmohan Singh could not be reconciled and settled for the years 2002-03 to 2005-06 because of the reason that Delivery Orders and statement of accounts were not given in time to the parties.

Article-II

The Urea which was short supplied to M/S Om Prakash Vishnu Kumar and M/s Radhesh Kumar & Bros. was kept in Lalpur godown at Moradabad, owned by M/s Vishal Hind Transport

W.P. (C) No. 7527 of 2009 Page 7 Co. illegally/ unauthorizedly because the said godown was already de hired by NFL on 30.11.2002. The said godwon was used for manipulating the dispatches of Urea to various retailers directly.

Article-III

Shri Sushil Kumar has indulged himself into financial transactions with a party, namely M/s Varshney Trading Company with whom he was having official dealings, by getting favour from them as the party has incurred an expenditure of Rs.19,950/- on the birthday celebration of his son on 15.6.2000 and also took an amount of Rs.50,000/- in cash.

Article-IV

Shri Sushil Kumar, being Incharge of Area Office, Moradabad was responsible for wrongly depositing the cheque No.3984542 dated 13.5.03 for Rs.3.9 lacs from M/s Raj Trading Co., into the account of M/s R.A. Trading Co. vide CRV No. 19079 through his subordinate, Mrs. Kavita Kapai, even though there was a clear stamp (seal) of M/s Raj Trading Co. on the cheque.

Article-V

Shri Sushil Kumar has committed following irregularities:

a) An amount of Rs.6.92 lacs as on 31.3.06 was outstanding against M/s R.A. Trading Co. and after adjusting CSS security of Rs.1.5 lacs, the outstanding works out to Rs.5.42 lacs. The amount of Rs.3.0 lacs of M/s Raj Trding Co. which was wrongly deposited in their account, which was subsequently credited to M/s Raj Trading Co. Thus

W.P. (C) No. 7527 of 2009 Page 8 the total outstanding worksout to approximately Rs. 8.72 lacs approx., after adjustment of security deposit of Rs.1.5 lac.

b) M/s Agarwal Trading Co. have been issued Urea worth Rs.5.75 lacs on 30.09.06 while the credit limit of the party was Rs.2.50 lacs and party had only deposited Rs.15,000/- on 13.11.06. As such an amount of Rs.3.12 lacs is outstanding against the party.

Thus, Shri Sushil Kumar, the then Incharge, Area Office, Moradabad by his above acts, failed to maintain absolute integrity, devotion to duty, confirm to and abide by the Rules of the Company, comply with & obey all lawful orders and directions from seniors under whose jurisdiction, superintendence or control he was, in the course of his official duties. He has also failed in his supervisory role to take all possible steps to ensure the integrity and devotion to duty of employees under his control. Shri Sushil Kumar acted dishonestly in a manner unbecoming of a public servant, abused his official position to give undue favour in financial form to dealers, acted in a manner prejudicial to the interest of the Company and attempted to abet an act which amounts to misconduct, thereby violated following Clauses/ Rules of NFL Employees' (CDA) Rules. Rule 5(i) (a), 5(i)(b), 5(i)(c), 5(i)(d), 5(ii),5(A)(ii) and 5(A)(v) Rule 6(1),(2),(5),(6) & (21)"

W.P. (C) No. 7527 of 2009 Page 9

10. To say the least, the aforesaid 'Article of Charges' do

not appear to be vague or indefinite. The challenge to the

contents to the Articles - IV and V of Annexure-1 relate to the

merits of the case, which are not required to be gone into at

this stage and to do so, would be premature.

11. In view of the aforesaid, this petition is clearly

premature and is hereby dismissed.

12. This petition is disposed of with the observation that

anything stated herein shall not be construed as an opinion

on merits in the disciplinary enquiry proceedings.

13. No costs.

SUNIL GAUR, J.

September 18, 2009
rs




W.P. (C) No. 7527 of 2009                                Page 10