M.C. Aggrawal vs Indian Institute Of Technology & ...
2010 Latest Caselaw 5835 Del

R-46A
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 13.12.2010
                  Judgment Delivered on: 22.12.2010


+                        RSA No.119/1993


M.C. AGGRAWAL                                    .....Appellant
                   Through:    Mr.G.D.Gupta, Sr.Advocate with
                               Mr.S.K.Gupta, Advocates.

                   Versus

INDIAN INSTITUTE OF TECHNOLOGY & ORS. ....Respondents
              Through: Mr.Gaurav       Sharma        and
                       Mr.J.P.Karunakaran, Advocates

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?                Yes

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

INDERMEET KAUR, J.

1. Plaintiff M.C.Aggarwal joined as a L.D.C. with the Indian

Institute of Technology (defendant corporation) on 30.12.1960.

He was promoted as a U.D.C. on 6.9.1963. He was thereafter

promoted as Cashier and confirmed to the said post with effect

from 12.10.1977. In August, 1980 two payments of Rs.3470.90

and Rs.3935.65 were purported to have been made against two

vouchers i.e W.15 & W-25; the said two payment vouchers were

found missing; on an anonymous complaint preliminary enquiry

was conducted against the plaintiff. He was prima facie found

guilty. Charge-sheet was issued to the plaintiff on 25.10.1980

qua the misappropriation of the aforesaid funds. The said funds

had purportedly been disbursed for medical claim for purchase

of certain medicines from the market although the said

medicines were available in the IIT hospital. Enquiry was

conducted against the plaintiff; he was held guilty by order

dated 12.3.1982. The following penalties were imposed: (i)

reduction in rank, (ii) bar to promotion for the next seven years

and (iii) recovery of the lost amount was imposed upon the

plaintiff. The order of the Disciplinary Authority was reaffirmed

in appeal.

2. Plaintiff has filed the present suit seeking a declaration

that the order of the Disciplinary Authority dated 12.3.1982 as

also of the Appellate body dated 10.11.1982 be declared null

and void.

3. Before the trial judge following four issues were framed

on 23.7.1987 which inter alia read as under:

1. Whether the impugned orders dated 12.3.1982, and 10.11.1982, passed against the plaintiff are erroneous and void abinitio for the reasons mentioned in the plaint? OPP

2. Whether the plaintiff is entitled to the Declaration prayed for? OPP

3. Whether the plaintiff is entitled to the consequential relief prayed for? OPP

4. Relief.

4. Thereafter an additional issue was framed on 27.3.1990,

which read as under:

"Whether the jurisdiction of this court is barred by the principles of resjudicata if so its effect?"

5. On the basis of oral and documentary evidence adduced

before the court, suit of the plaintiff was decreed.

6. The impugned judgment dated 19.5.1993 had reversed the

findings of the trial judge; suit of the plaintiff stood dismissed.

7. This is a second appeal. It was admitted on 17.7.1997. On

09.11.2010, the following substantial question of law has been

formulated:

"Whether the findings in the impugned dated 19.5.1993 are perverse? If so, its effect ?"

8. It is submitted that the findings of the Enquiry Officer are

on facts perverse. Admittedly the complainant was not

produced before the Enquiry Officer; the complaint also did not

see the light of the day. The order sheet was not maintained by

the Enquiry Officer which was a procedural irregularity. For this

proposition reliance has been placed upon AIR 1969 Assam and

Nagaland 103 Mahadeo Jalan vs. Commissioner of Wealth-tax,

Assam, Nagaland, Manipur & Tripura. Written submissions

furnished by the department had not been given to the

delinquent in the absence of which he could not effectively

counter the submissions of the department. For this proposition

reliance has been placed upon 1967 SLR SC 759 Tirlok Nath Vs.

Union of India & Ors.; reliance has also been placed upon 1973

(1) SLR 321 Collector of Customs vs. Mohd. Habibul (Calcutta).

The two vouchers in this case W-15 and W-25 were of an amount

exceeding Rs.2000/-; the Government of India Instructions

required that in such cases where the amount is more than

Rs.2000/- a criminal complaint should be lodged which had not

been adhered to. The petitioner had wanted to examine his

witnesses but only four were permitted to be examined; these

were clear violations of the principles of natural justice. For this

submission reliance has been placed upon 1991 (1) SLR 667

N.K. Varadarajan vs. Sr.Deputy Director General, AMSE Wing,

Geological Survey of India & Anr. which is a judgment of the

Benglore bench of the Central Administrative Tribunal. The

evidence led before the Enquiry Officer had established that the

voucher W-15 and W-25 related to over time account and were

not of the works section; in view thereof the findings in the

impugned judgment that these were bogus/forged vouchers is

not borne out from the evidence. All these submission

cumulatively establish that the findings of the Enquiry Officer

are perverse and thus liable to be set aside. It is submitted that

both the orders passed by the Disciplinary Authority dated

12.3.1982 and of the Appellate body dated 10.11.1982 were non-

speaking orders. The representation of the appellant dated

31.12.1981 has not in any manner been adverted to. The

appellant had been reduced in rank from the post of Head

Cashier to UDC without giving him an opportunity of being

heard. He had further been debarred for promotion for the next

seven years. The show cause notice dated 26.11.1981 had not

proposed the penalty of a bar of promotion for the next seven

years. No hearing has been given to the appellant before

imposing such major penalties upon the appellant which had

large civil consequences. This was a violation of Rule 13 of the

Indian Institute of Technology Act, 1961 (hereinafter referred to

as „the IIT Act‟). These orders are liable to be set aside.

Reliance has been placed upon 2009 (2) SCC 570 Roop

Singh Negi Vs. Punjab National Bank & Ors. It is submitted that

it is the duty of the Disciplinary Authority to give reasons for

imposing the punishment and confirming the order of the

Enquiry Officer; the report of an enquiry based on a mere ipsi

dixit as also surmises and conjectures cannot be sustained.

Reliance has also been placed upon 2006 11 SCC 147 Director

(Marking), Indian Oil Corporation & Anr. Vs. Santosh Kumar to

support the same submission. It is submitted that in Writ

Petition No.4711 of 2001 decided on 09.9.2009 a Division Bench

of this court has reiterated this legal position. An order of the

Disciplinary Authority although not required to given detailed

reasons must given at least brief reasons in the absence of

which such an order is liable to be set aside.

9. Arguments have been countered by the learned counsel

for the respondent. It is submitted that this Court is sitting in

second appeal and its powers of interference in finding of facts

are curtailed; only when a substantial question of law arises can

this Court interfere and on no other ground. For this

proposition reliance has been placed upon a judgment of the

Apex Court reported in (2005) 2 SCC 500 Govindarju Vs.

Mariamman .

10. This Court is the second appellate court. It is only when a

substantial question of law arises, is interference called for. The

appellant was charge sheeted before the Enquiry Officer.

Allegations were that the payment against two vouchers W-15

and W-25 had been disbursed by the appellant in his capacity as

a Head Cashier. These vouchers were non-existent as the said

vouchers pertained to the Engineering Department and had

necessarily to be routed through the Engineering Department,

then through the Audit Section and lastly through the Cash

Branch for payment. The engineering officers had deposed

before the Enquiry Officer that the said vouchers had not been

prepared by their department; so also was the deposition of the

officers who had appeared from the Audit Section; they had

deposed that no such vouchers were checked by them and sent

to the cash branch for payment. These vouchers related to

overtime bills. It was in this background, when the originators

of the vouchers had denied the execution of the same, it was

held that the charge of misplacement of the vouchers had stood

proved. The Enquiry Officer had not gone into the contention as

to who was responsible for the forgery of the said vouchers.

11. Record reveals that a preliminary fact finding enquiry

report had been submitted before the enquiry had been initiated

against the delinquent. This was on the basis of an anonymous

complaint; that being the position and the complainant seeking

protection from disclosure of his name; also there being no

written complaint; was the reason why the said complaint had

not been proved before the Enquiry Officer. The preliminary

enquiry categorically records this finding. Preliminary findings

were that the work section had certified that no work charge bill

for the amount of Rs.3470.90 and Rs.3935.65 had been sent by

them to the audit/accounts in July 1980; there was no such

record with them. It had been established that these two bills

had not been prepared by the Work Section nor had they sent

them to the Audit Section; the Audit Section had also denied

their veracity; in these circumstances, how they were presented

for payment in the Cash Section had become unexplainable.

12. Enquiry officer on the basis of the oral and documentary

evidence adduced by the department, and countered by the

delinquent (who had produced four witnesses in his defence)

had concluded that these two bills/vouchers W-15 and W-25 had

originated in the cash section itself. The delinquent was given a

fair opportunity to cross-examine all the witnesses of the

department. The written submissions given by the department

which was after the conclusion of the oral arguments was only

to assist the Enquiry Officer; even presuming that a copy of the

same had not been handed over to the delinquent he has failed

to show what bias he had suffered as it is clear that the oral

arguments stood concluded before the Enquiry Officer till that

stage. The judgment of Tirlok Nath (supra) is inapplicable as in

this case admittedly in spite of requests by the delinquent

relevant documents had not been furnished to him. The

judgment of Collector of Customs (supra) is also inapplicable as

it was a cumulative effect of various factors which had been

taken into account to lead the Court to hold that there has been

a violation of principles of natural justice. In this case as

already aforenoted the written submissions had only clarified

the oral submissions which had already stood concluded in the

presence of the delinquent. The impugned judgment had

appreciated that it was for the Department to exercise its

discretion in reporting the matter to the police; had it been

reported and an FIR has been registered, the delinquent would

most likely have been incarcerated; in those circumstances he

could probably have set up a defence that he did not get

appropriate assistance but not in the present scenario. There

was no record to show that the order sheet was not maintained

by the enquiry officer. The delinquent was provided the defence

assistance of G.S. Mishra; cross-examination of all the witnesses

of the department was duly effected. Delinquent was permitted

to inspect the cash books for the last two years; his contention

of inspecting the record prior thereto was rejected as a long list

of entries had been given by him without names either of the

payee or of the department. There is no merit in this argument.

The submission of the learned counsel for the appellant that the

tape recorded conversation, the transcript of which had been

proved as Ex. PW-1/1 was also illegally not considered is again

an argument without merit. This tape recorded conversation

was purportedly a conversation between the delinquent

M.C.Aggarwal and a third person which was recorded after the

enquiry proceedings had culminated; what was the value of such

a piece of evidence which had also not been proved as per the

rules of evidence was not answered by the learned counsel for

the appellant; voice sample of the concerned parties was not

taken; the identity of the speaker was not established; even

otherwise this conversation having been recorded after the

enquiry was over was of no value. Learned counsel for the

appellant has in fact failed to show that the delinquent has

suffered any bias or prejudice before the Enquiry Officer; the so

called irregularities pointed out by the learned counsel for the

appellant do not make out a case of perversity; Court is not

inclined to accept this contention that there has been any

violation of rules of natural justice.

13. Penalty no.3 was in the proposal which had been issued to

the delinquent in the show cause notice dated 26.11.1981. The

reduction in rank and bar of promotion for the next seven years

was admittedly not mentioned in the show cause notice,

however, the submission of the appellant that this has caused a

severe prejudice to him does not merit any consideration. The

proposed punishment was dismissal from service which would

operate as disqualification for future employment in the

institute. This proposal was much more severe than the actual

punishment which was inflicted upon the delinquent which was

reduction in rank from the post of Head Cashier to UDC and a

bar for the promotion of the next seven years. This punishment

being less severe the question of the sufferance of any bias or

prejudice did not arise.

14. However on the second count the Appellant must

succeed. The report of the Enquiry Officer had been confirmed

by the Disciplinary Authority who had awarded the punishment

to the delinquent. This was vide order dated 12.3.1982. The

Appellate Body confirmed this in its order dated 10.11.1982.

15. The order of the Disciplinary Authority dated 12.3.1982

reads as under:

      IITD/Estt-II/82/2086                       Dated 12.3.1982

                             OFFICE ORDER

      Ref.IITD/Estt-II/81/9249 dated 26.11.81

On consideration of his representation dated 31.12.81, the Director has ordered that the following penalties be imposed on Shri M.C.Agarwala, Cashier:-

"1.He be reduced to the post of UDC (330-560) and his pay be fixed at Rs.560/- i.e. the maximum of the scale.

2. He be debarred for promotion for the next seven years.

3. Recovery of pecuniary loss of Rs.7406.55 caused to the Institute in equal measures from S/Sh. M.C.Agarwala and V.K.Singhal and recovery of Rs.93.75 from Shri Agarwala, if not already deposited be effected.

The amount of recovery shall be limited to one third of basic pay (i.e. excluding dearness pay or any other allowances) and should not be spread over a period of more than three years.

Pursuant to the above orders, the above penalties are finally posed on Sh.M.C.Agarwala with immediate effect.

(By order and in the name of the Director)."

This order is clearly a non speaking order. It has merely

imposed punishments upon the delinquent without in any

manner having adverted or applied its minds to the findings of

the Enquiry Officer. A mere one line mention that the

representation of the delinquent dated 31.12.1981 has been

considered with nothing more to it clearly establishes that the

Disciplinary Authority had not examined the contents or the

reasoning of the Enquiry Officer. Even if the Disciplinary

Authority was not required to give a detailed reasoning some

brief reasoning should have been adverted to.

16. Thereafter an appeal had been preferred before the Board

of Governors who had affirmed the findings of the Disciplinary

Authority. The order of the Board of Governors is reproduced

hereinbelow ; it is dated 30.11.1982 and is a part of the minutes

of the 71th meeting of the Board of Governors of the IIT. The

relevant extract reads as follows:

"Item No.13: To consider the appeal of Sh. M.C.Aggarwal, Cashier, against the imposition of the penalty by the Director.

The Board rejected the appeal and confirmed the penalty imposed by the Director on Shri M.C.Aggarwal, Cashier vide officer order No.IITD/E-II/82/2086 dated 12.3.82. RESOLUTION NO.BG/81/82:RECOLVED THAT the

appeal of Sh.M.C.Aggarwal, Cashier be rejected and that the penalty imposed by the Director on him vide officer Order No.IITD/E-II/82/2086 dated 12.3.82, be confirmed."

This resolution of the Board of Governors that the appeal

of M.C.Aggarwal is rejected and the penalty imposed upon him

vide the order dated 12.3.1982 had been confirmed is again a

mechanical reproduction of a submission of fact without the

Board of Governors having gone into correctness or

incorrectness of the penalty imposed by the Disciplinary

Authority while confirming the order of the Enquiry Officer.

The detailed representation of the delinquent dated 31.12.1981

was not considered by either the Disciplinary Authority or by the

Appellate Board; even presuming that it was considered it

should have been reflected in the said orders; there was a clear

non-application of mind by both the authorities. The judgments

relied upon by the learned counsel for the appellant in this

context come to his aid. The ratio of the aforestated judgments

clearly casts a responsibility on the Disciplinary Authority to

give reasons for its adverse order and secondly also the

entitlement of the delinquent official to know the reasons to

enable him to effectively challenge the adverse order in appeal,

which in turn can apply its mind to the issues focused and

brought to the front rather than have to search for them. The

recording of reasons is beneficial to both sides. There is no

doubt that the reasons need not be elaborate or detailed but

they nevertheless must exist in order that it apparent that there

has been an application of mind by the concerned authority.

Interest of justice and fair play makes a demand for this.

17. In view of the orders passed by the Disciplinary Authority

and thereafter by the Appellate Authority i.e. the Board of

Governors there is little option left with this court but to set

aside the said orders in order that the matter may be considered

afresh by passing a speaking and reasoned order. Accordingly,

the matter is remitted back to the Board of Governors to pass a

speaking and reasoned order. Since the case is very old, the

department is granted three months time to comply with the

aforestated directions. Appeal is allowed and disposed of in the

above terms.

INDERMEET KAUR, J.

DECEMBER 22, 2010 rb/nandan