Shri R.K. Sachdeva vs Union Of India & Others
2010 Latest Caselaw 306 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (C.) No.304/2001

%                      Date of Decision: 20.01.2010

Shri R.K. Sachdeva                                           .... Petitioner
                      Through Mr.D.Mathew, Advocate

                                 Versus

Union of India & Others                                  .... Respondents
                     Through Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be                 YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                   NO
3.    Whether the judgment should be reported in               NO
      the Digest?

ANIL KUMAR, J.

*

1. The petitioner, Shri R.K. Sachdeva, has challenged the order

dated 24th October, 2000 passed by the Central Administrative

Tribunal, Principal Bench, New Delhi in OA No.342 of 1999 titled Shri

R.K. Sachdeva v. Union of India and others dismissing his Original

Application filed against the order of the appellate authority and

disciplinary authority in dismissing the petitioner from service.

2. The allegations against the petitioner were that as a Junior

Engineer while officiating as Assistant Engineer (Installation) during the

period 1984-86 in the office of General Manager, he committed gross

misconduct by misappropriating the government money by fabricating

and inflating bills of items purchased locally. The imputation against

the petitioner were also that he did not maintain any record for the

items which were locally purchased and he exceeded his financial

powers for making cash payment to private parties. The charges framed

against the petitioners were communicated to him which were denied

by him, therefore, an inquiry was conducted. The inquiry officer after a

detailed inquiry found the petitioner guilty of charges made against him

and the disciplinary authority imposed the punishment of dismissal.

The appellate authority also upheld the punishment imposed on the

petitioner considering the gravity of charges.

3. While the appeal was pending before the appellate authority, the

petitioner had filed another original application being OA No.2185 of

1991. By order dated 1st April, 1997, the said OA was allowed and the

matter was remitted to the appellate authority to decide the appeal in

accordance with law. However, during the pendency of the OA No.2185

of 1991 the appeal filed by the petitioner against the order of

disciplinary authority passing an order of dismissal was decided by

order dated 12th April, 1993. However, since the Tribunal had directed

the appellate authority to decide the appeal in accordance with law, the

appeal was reconsidered afresh and was decided again and the

punishment of dismissal of the petitioner was upheld again by order

dated 21st December, 1998.

4. Before the Tribunal, the petitioner had contended that he was not

given proper inspection of documents and cross-examination of

witnesses was not allowed and he was deprived of the right to file the

list of defense witnesses and the defense statement was not allowed to

be filed after the evidence of the department was recorded.

5. The Tribunal after perusing the proceedings of the inquiry and

the inquiry report had noticed that the petitioner had not been

responding to the inquiry notices. On account of not responding to the

notices issued by the inquiry officer, inquiry proceedings had been

postponed on many occasions. Regarding the allegations of non-

inspection of the documents, the inquiry proceedings revealed that he

was asked to inspect the documents by letter dated 30th March, 1988

up to 15th April, 1988 and the memo dated 30th March, 1998 was

received by the petitioner on 11th April, 1988, however, the inspection

was not carried out. The petitioner instead of inspecting the

documents, made a representation that it is not possible for him to

inspect the documents as the defense assistant was ill though the

petitioner is a literate person being a junior engineer who had even

officiated for considerable period as Assistant Engineer.

6. The plea of the petitioner that he should have been granted more

time to inspect the documents as the defense assistant was ill was

declined on the ground that nothing was produced by the petitioner to

show that the defense assistant was ill. The petitioner has raised the

similar ground before us, however, learned counsel for the petitioner is

unable to point out as to how the documents could not be inspected by

the petitioner himself who was a Junior Engineer and who was even

officiating as Assistant Engineer. The learned counsel for the petitioner

is also unable to show any document reflecting or proving that the

defense assistant was ill on 11th April, 1988.

7. The learned counsel for the petitioner has also challenged the

inquiry proceedings on the ground that the witnesses who had

appeared in support of pleas and contentions of the department were

not allowed to be cross-examined. Learned counsel is, however, unable

to give any justifiable reason for not cross-examining the witnesses.

The petitioner had been present when the witnesses were examined. No

ground had been made out by the petitioner for adjourning the inquiry

proceedings and in the circumstances the petitioner should have cross-

examined the witnesses and for not cross-examining the witnesses, the

petitioner cannot blame the inquiry officer or can contend that he was

not given adequate opportunity to cross examine the witnesses and the

inquiry proceedings are vitiated. The Tribunal has also noticed that

even the defense assistant was allegedly ill only on 11th April, 1988 and

since nothing was produced about the illness of the defense assistant,

therefore, there was no sufficient reason for the petitioner not to cross-

examine the witnesses. If the defense assistant was sick, the petitioner

would have got another defense assistant appointed, however, the

petitioner did not make any effort to have any other defense assistant

appointed after producing the proof of the illness of earlier defense

assistant. In the circumstances, the inquiry proceeding cannot be

faulted on the ground as raised by the petitioner nor the findings of the

Tribunal can be faulted.

8. Learned counsel for the petitioner challenges the departmental

proceedings on the ground that he was not allowed to file the defense

statement and list of witnesses. Learned counsel for the petitioner is,

however, unable to deny that the petitioner had opportunity to file the

statement of defense and the list of witnesses. Learned counsel is

unable to show any sufficient reason which would have entailed

adjournment of inquiry proceedings. In the circumstances, if the

defense statement and list of witnesses were not filed by the petitioner,

it was at his own peril and the departmental proceedings cannot be

vitiated on that ground. Learned counsel is also unable to point out

infraction of any rule or any such rule which would have entitled the

petitioner for adjournment of departmental proceedings without their

being any sufficient ground for the same. Consequently, even on this

ground the departmental proceedings cannot be vitiated nor the

findings of the Tribunal can be faulted.

9. The next plea raised on behalf of the petitioner is of hostile

discrimination against him. According to the learned counsel for the

petitioner, similar charges were made against another Junior Engineer

Shri B.D. Kaushik, however, after a detailed inquiry he had been let off

with lesser punishment of reduction in pay whereas the petitioner has

been dismissed from service. Discrimination is also alleged on the

ground that the case of the petitioner was also referred to the CVC

whereas the case of another Junior Engineer, B.D. Kaushik, had not

been referred to the CVC. The appellate authority and the Tribunal,

both have considered the plea of the petitioner and have rejected that

hostile discrimination was meted out to the petitioner. The appellate

authority had held that the evidence adduced during the inquiry in two

cases could not be the same. It was held that even if there is a

miscarriage of justice in case of Mr.B.D. Kaushik, the petitioner cannot

propound discrimination so long as the punishment imposed on the

petitioner commensurate with the charges and the evidence against

him.

10. Learned counsel for the petitioner is unable to show us the

evidence against Sh.B.D. Kaushik, another Junior Engineer, who was

awarded lesser punishment. If the evidence in the case of Sh.B.D.

Kaushik was not sufficient for proving the charges conclusively against

him, the petitioner cannot contend that he should also have been

awarded the same punishment despite having more reliable and

conclusive evidence against him. In any case, the learned counsel for

the petitioner is unable to show that the evidence against the petitioner

is not conclusive. The witnesses examined against the petitioner were

not cross-examined and perusal of the testimony of the witnesses who

had appeared and deposed against the petitioner conclusively

established the charges against the petitioner as the testimony of those

witnesses were not impeached in the cross examination.

11. The next point canvassed by the learned counsel for the petitioner

is about the advice taken by the respondent from the Chief Vigilance

Commission. According to him, the extreme punishment of dismissal

has been awarded pursuant to the advice tendered by the CVC. The

Tribunal had noted that the appeal was disposed of by order dated 12th

April, 1993, however, since an original application being OA No.2185 of

1991 was filed which was disposed of by order dated 1st April, 1997

directing the respondents to dispose of the appeal in accordance with

law, therefore, the order dated 12th April, 1993 was not acted upon

rather the appeal was reconsidered and while reconsidering the appeal,

the opinion of CVC was not considered and acted upon. The order

dated 12th April, 1993 which was based on the advice of CVC was not

acted upon nor was impugned by the petitioner and, therefore, this

ground that the advice of the CVC was taken cannot be agitated. In any

case, it has also been noticed by the Tribunal that the irregularity of

obtaining the advise of CVC was wholly inconsequential in the facts

and circumstances.

12. The learned counsel for the petitioner has also relied on JT 2001

(Supp. 1) SC 44, State of U.P. & Others v. Raj Pal Singh; AIR 1991

Supreme Court 1507, Nagraj Shivarao Karjagi v. Syndicate Bank Head

Office, Manipal and another and (1980) 3 Supreme Court Cases 304,

Sunil Kumar Banerjee v. State of West Bengal and others in support of

his pleas and contentions.

13. In Sunil Kumar Banerjee (supra), it was held that the inquiry

proceedings shall not be vitiated on account of non-examination of

delinquent officer unless it is established that the prejudice had been

caused to such an officer. It was further observed that since the

delinquent had eloquently pleaded his case in person before the

Supreme Court also, therefore, it had to be inferred that no prejudice or

bias on the part of the inquiry officer should be inferred. Apparently,

the petitioner cannot take support from the ratio of the said judgment.

Rather it was held in Sunil Kumar Banerjee (supra) that if the

conclusion of the disciplinary authority was based on evidence and not

on the advice rendered by Vigilance Commission and arrived at

independently on the basis of the charges and evidence and relevant

material before the inquiry officer, it could not be held that the decision

of the disciplinary authority shall be a tainted one.

14. In Nagaraj Shivaraon Karjagi (supra), the Supreme Court had

held that the advice tendered by the Central Vigilance Commission is

not binding on the Bank or the punishing authority and it was not

obligatory upon the punishing authority to accept the advice of Central

Vigilance Commission. In the case of the petitioner also though while

disposing of the appeal by order dated 12th April, 1993, the advice

rendered by the Central Vigilance Commissioner was referred to,

however, in view of the order passed by the Tribunal in the earlier

original application dated 1st April, 1997 to decide the appeal in

accordance with law, the order dated 12th April, 1993 by the appellate

authority was not acted upon and thereafter without adverting to the

advice of the Central Vigilance Commissioner, an independent order

was passed by the appellate authority. In the circumstances, the

disciplinary proceedings against the petitioner could not be vitiated on

the ground that the respondent had obtained the advice of Central

Vigilance Commission in the facts and circumstances.

15. The reliance by the petitioner on State of U.P. & Others vs Raj Pal

Singh (supra) is also not of much help as in that case the charges

against the delinquents were same and identical in relation to one and

the same incident and in these circumstances it was held that despite

the High Court coming to the conclusion that the gravity of charges was

the same, it was held that it would not be open for the disciplinary

authority to impose different punishments on different delinquents. In

contradistinction, it has not been established that the charges against

the petitioner and Shri B.D. Kaushik, another delinquent, are the same

arising out of the same incidence of misappropriation and fabrication

and inflated bills of items purchased locally. Even the learned counsel

for the petitioner has not even established that the evidence in both the

cases recorded before the inquiry officer was same. Apparently, it could

not be same as in the case of the petitioner neither the defense

statement was filed nor the list of witnesses was filed nor the witnesses

examined by the petitioner were cross-examined. It is not known

whether in the case of another Junior Engineer, Sh.B.D. Kaushik, also

the witnesses of the respondents were cross-examined or not. If the

witnesses in the case of Sh.B.D. Kaushik were cross-examined and

their testimonies were refuted, apparently the charges against B.D.

Kaushik would not have been established to that extent they have been

established against the petitioner. Consequently, on the basis of the

ratio of the said judgment, petitioner cannot establish that there had

been hostile discrimination against him.

16. The findings of the Tribunal in the facts and circumstances,

therefore, cannot be faulted. No other ground has been raised by the

petitioner impugning the order dated 24th October, 2000. In the

circumstances, there are no grounds to interfere with the said order as

there is no such illegality or irregularity which will entail any

interference by this court. The writ petition is, therefore, dismissed.

Considering the facts and circumstances, the parties are, however, left

to bear their own costs.

ANIL KUMAR, J.

January 20, 2010                              MOOL CHAND GARG, J.
'Dev'