H.P.S. Deep & Ors vs Superbazaar And Anr
2011 Latest Caselaw 2126 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 20th April, 2011

+                              W.P.(C) 2503/2011

H.P.S. DEEP & ORS                                    ..... Petitioners
                            Through:      Mr. Mohit Chaudhary with Ms.
                                          Rashi Bansal & Mr. Dheeraj
                                          Gupta, Advocates

                                   Versus

SUPERBAZAAR AND ANR                                     ..... Respondents
                Through:                  Mr. Joydeep Mazumdar with Mr.
                                          Pinaki Addey & Mr. Vinod Kumar,
                                          Advocates for R-1
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                      NO
         be allowed to see the judgment?

2.       To be referred to the reporter or not?                     NO

3.       Whether the judgment should be reported                    NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 22 nd March, 2011 of

suspension and the charge sheet dated 29th March, 2011 served by the

respondent No.1 on the four petitioners.

2. Upon enquiry from the counsel for the petitioners as to how the

writ petition against the order of suspension and charge sheet is

maintainable in as much as the petitioners have the opportunity to

show cause, the counsel for the petitioners has invited attention to

Union of India Vs. Vineet Ohri 2010 I AD (Delhi) 60 and to Govind

Prajapati Vs. Union of India 150 (2008) DLT 435 (DB) with the

preface that though in both the said judgments on facts the writ petition

against the charge sheet was not held to be maintainable but the same

lay down that the same can be maintainable.

3. A perusal of the judgments shows that the Division Benches of

this Court have clearly laid down that it is only in rare cases that the

discretion to entertain a writ petition against charge sheet is to be

exercised or when charge sheet or show cause notice is found to be

wholly without jurisdiction or for some other reason it is wholly illegal

and that ordinarily interference at the said stage is not permissible.

4. On enquiry as to how the present case falls in the said rare

category, the counsel for the petitioner by reference to the Cooperative

Store Ltd., New Delhi Service & Conduct Rules and to the orders

dated 26th February, 2009 of the Apex Court in SLP Nos.8398-8399 &

12415/2005 concerned with the revival of Super Bazar and whereunder

the bids for taking over the management of the Super Bazar were

invited and accepted, has contended that the Disciplinary Authority

which could have issued the charge sheet to the petitioners was the

General Manager. With reference to the charge sheet issued to the

petitioners, it is contended that the same is issued by a person who has

described himself as the Managing Director.

5. It has been enquired from the counsel for the petitioners whether

a person superior in position to the Disciplinary Authority is prohibited

from issuing the charge sheet.

6. The counsel for the petitioners replies that though he is not but

in the present case the person who has issued the charge sheet is

neither the General Manager nor the Managing Director of Super

Bazar. It is contended that the respondent appearing on advance notice

should be asked to show as to how the said person can be said to be the

General Manager or the Managing Director of Super Bazar. It is

contended that the petitioners have stated so on affidavit and it is the

respondent who would be in possession of the documents, if any,

showing the signatory of the charge sheet to have been appointed as

the General Manager or the Managing Director.

7. The writ petition cannot be entertained to commence a roving

enquiry, as appears to be the purport of the petitioners.

8. From the arguments raised, it is clear that the present case does

not fall in the category of "wholly illegal". The illegality alleged is not

apparent / visible on the face and where, to establish illegality evidence

is required, it cannot be said to be a case of charge sheet being wholly

illegal for writ petition to be entertained at the stage of charge sheet. In

the present case, the petitioners are calling upon this Court to conduct

an enquiry on the plea of illegality and which is to be conducted

departmentally. The counsel for the petitioners admits that all the said

pleas have already been raised in reply to the charge sheet. The same

are expected to be considered.

9. Moreover, it has been put to the counsel for the petitioners as to

how the petitioners would suffer; that if at all there is any merit in their

contention, the suspension / charge sheet would be recalled / set aside

and a fresh charge sheet would have to be issued qua the misconduct

even if committed by the petitioners.

10. The counsel for the petitioners replies by stating that the

petitioners will face the stigma of being under suspension.

11. Considering the fact that the Super Bazar has been non

functional for nearly ten years and the petitioners and other employees

having not worked since then, no merit is found in the said contention

also.

12. The petition is therefore dismissed as not maintainable with

liberty to the petitioners to agitate all pleas as raised in this petition in

the disciplinary proceedings and if remain aggrieved therefrom, further

before the fora to which they may be entitled to.

No order as to costs.

CM No.5326/2011 (u/S 151 CPC for exemption) Allowed, subject to just exceptions.

RAJIV SAHAI ENDLAW (JUDGE) APRIL20, 2011 „gsr‟