S.S. Singh vs National Aviation Company Of ...
2011 Latest Caselaw 4222 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                        W.P. (C) 4251/1999 & CM 8269/1999

                                                       Reserved on: August 4, 2011
                                                       Decision on: August 30, 2011

        S.S. SINGH                                                   ..... Petitioner
                                 Through:      Mr. Vinay Sabharwal, Advocate.

                        versus


        NATIONAL AVIATION COMPANY
        OF INDIA & ORS.                        .... Respondents
                        Through: Ms. Ratna Dhingra with
                                 Ms. Shreya S. Dabas, Advocates.

        CORAM: JUSTICE S. MURALIDHAR

        1. Whether Reporters of local papers may be
            allowed to see the judgment?                            No
        2. To be referred to the Reporter or not?                  Yes
        3. Whether the judgment should be reported in Digest?       Yes

                                 JUDGMENT

30.08.2011

1. The Petitioner challenges an order dated 6th May 1998 issued by the General Manager, Engineering (Maintenance) of Air India Limited („AIL‟), Respondent No.1 herein, awarding the Petitioner punishment of withdrawal of his next two annual increments which would have the effect of postponement of subsequent increments under the provisions of Certified Standing Orders („CSO‟). The Petitioner was also warned that recurrence of any act of misconduct on his part in future would be viewed seriously and stern action would be taken against him.

2. The Petitioner joined AIL on 15th October 1979 as an Aircraft Technician and was confirmed as such on 1st April 1980. He was promoted to the post of a Senior Aircraft Technician on 1st November 1984 and as a Master Technician on 1st November 1989. The Petitioner states that on 1st July 1996, he was due for promotion for the post of Lead Master Technician which was re-designated as Senior Service Engineering-I as per the revised promotion policy announced and declared by the AIL on 12th July

1996. However, the Petitioner was not so promoted as he was, on 6th November 1995, charge sheeted for misuse of the official car.

3. The incident for which the Petitioner was charge sheeted was that on 29th December 1993, he took the official car of AIL with the permission of the Shift Foreman stating that he wanted to go to the ASD Accounts Section and also to the Society Bank at Terminal-I of the International Airport, New Delhi. The vehicle was being driven by Mr. R.C. Tiwari, employed as a driver with AIL. According to the Petitioner, the car broke down near the said Bank due to a sudden brake failure. The Petitioner states that although there was no misconduct on his part, the charge sheet was issued nearly two years after the incident only because of a false complaint made by the Personnel Manager at New Delhi.

4. The Petitioner states that he has been an active trade union worker as well as a Council Member of Air India Employees Union („AIEU‟) and has been taking a lead role in the matter of legitimate trade union activities. It is stated that on an earlier occasion too, a charge sheet was issued to the Petitioner wherein he was exonerated. According to the management, the Petitioner took the car for his personal use and while returning the car broke down and met with an accident near Kirby Place, Delhi Cantonment. However, the Petitioner falsely claimed that the car had met with an accident near the Bank. The investigation carried out by the Security Department revealed that the Petitioner had taken the official car outside the office premises of the IGI Airport. The Petitioner was charge sheeted on 6th November 1995 on two counts; dishonesty in connection with employer‟s business property and for act subversive of discipline.

5. The AIL states that the preliminary investigation into the case was in progress for some time and it took further time to arrive at a decision whether a prima facie case was established or not and therefore, nearly two years passed by the time the charge sheet was issued to the Petitioner. An Enquiry Committee („EC‟) comprising Deputy Manager, Administration and the Assistant General Manager, Administration was constituted on 17th January 1996. The enquiry concluded on 4th February 1997. By its report dated 27th February 1997, the EC concluded that the charges against the Petitioner were established beyond doubt. On 5th May 1997, the Petitioner was sent a

copy of the report of the EC for his response. He replied to the show cause notice on 11th July 1997. By letter dated 6th November 1997, the Disciplinary Authority („DA‟) informed the Petitioner that there was no merit in his statement and asked him to show cause why the proposed punishment of stoppage of the next two annual increments with recurring effect should not be awarded. This was replied to by the Petitioner on 8th December 1997. The Petitioner states that for some time thereafter there was no response from the Management. After reminders from the Petitioner on 9th March 1998 and 16th April 1998, the impugned order dated 6th May 1998 was issued by the DA awarding the Petitioner punishment as indicated hereinbefore.

6. The Petitioner‟s appeal was rejected by an order dated 3rd November 1998 of the Appellate Authority. The Petitioner‟s promotion to the post of Lead Master Technician was withheld on account of pendency of the disciplinary proceedings. By letter dated 18th July 1997 and 15th March 1999, he was informed by the Management of the reasons why he was not promoted. It is stated that during the pendency of the disciplinary proceedings, the AA approved the CSO on 28th November 1997 and this came into effect on 3rd January 1998. The Petitioner was informed by letter dated 18th March 1998 that the further proceedings would be under the CSO. The punishment awarded to the Petitioner was under Clause 20(c) of the CSO. Aggrieved by the failure of the management to promote him, while his juniors were promoted, the Petitioner, on 8th July 1999, filed the present petition. The Petitioner has subsequently been promoted and, therefore, the scope of the present proceedings is confined to the claim of the Petitioner to be promoted retrospectively from 1st July 1986 or in any event from the date when his juniors were promoted, after setting aside the punishment awarded to the Petitioner.

7. Mr. Vinay Sabharwal, learned counsel appearing for the Petitioner made the following submissions:

a) The enquiry proceedings were in violation of principles of natural justice. There was no Presenting Officer (PO) on behalf of the Petitioner management in the enquiry proceedings. Resultantly, the EC itself acted like a prosecutor and therefore its report was vitiated by bias.

b) The findings returned by the EC were perverse. The evidence produced before the EC threw considerable doubt on the veracity of the statements of the driver Mr. R.C. Tiwari. The DD entries referred to by the EC were illegible and the originals were not produced. No one from the side of the police was examined in order to prove the said DD entries. The other evidence on record supported the statement of the Petitioner that the accident, in fact, took place near the Bank.

c) The entire proceedings were mala fide. Since the Petitioner was an active member of the AIEU, a false case was made out against him nearly two years after the accident only with a view to somehow stop his promotion which was due with effect from 7th January 1996. The timing of the action was itself indicative of its vindictive nature.

d) The punishment that was awarded, i.e., stoppage of two increments was not provided for under the CSO which was in force at the time of the disciplinary proceedings. The Sealed Cover Procedure was also not authorized by any policy or CSO. The lawful promotion of the Petitioner could not have been denied after the conclusion of the enquiry proceedings.

e) The promotion policy relied upon by the Respondent was not in existence at the time of the disciplinary proceedings. In any event, it did not prevent the Petitioner from being promoted.

8. Countering the above submissions Ms. Ratna Dhingra submitted that:

a) Mr. R.C. Tiwari had made three different statements before the management to the effect that the vehicle had met with an accident on 29th December 1993 near Kirby Place while returning from the residence of the Petitioner. He further stated that the police reached the spot and asked him to bring the vehicle to Delhi Cantonment. Police Station. The Petitioner pressurized him into writing that the accident took place near the Bank.

b) The DD entry dated 29th December 1993 stated that the accident took place near Kirby Place whereas DD No. 19A indicated that the driver dashed the car on the side rally at Kirby Place red light and was arrested under Section 209 of the Motor Vehicles Act, 1988 for rash driving and subsequently released after the Petitioner furnished Rs. 2,000/- as personal surety.

c) The statement of Mr. Yogendra Singh, Assistant Vigilance Officer proved that the accident took place at Kirby Place. He had visited the Police Station and obtained necessary documents and submitted them to the Vigilance Manager.

d) The non-appointing of a PO for the management in the enquiry proceedings would not vitiate the proceedings. Reliance was placed on the decision in High Range Estate Employees Association v. Industrial Tribunal (2008) III LLJ 43 Ker.

e) Although the Petitioner was due for promotion on account of pendency of the disciplinary proceedings, he was not promoted at that time. The policy document dated 22nd May 1988 of the Air India was placed along with the written submissions.

f) There was no violation of principles of natural justice and the findings of the EC were based on a proper analysis of the evidence. Given the limited scope of interference in disciplinary matters by this Court under Article 226 of the Constitution, the report of the EC did not call for any interference.

g) The Petitioner has not exhausted the alternate efficacious remedy of approaching the Industrial Tribunal. Reliance was placed on the judgments in Transport and Dock Workers Union v. Mumbai Airport Trust (2011) 2 SCC 575 and Hindustan Steel Works Construction Ltd. v. Hindustan Steel Works Construction Ltd. Employees Union (2005) 6 SCC 725.

9. As regards the maintainability of the present petition, it is indeed a matter of discretion whether in a given case this Court will interfere by exercising its powers under Article 226 of the Constitution. In the present case, Rule was issued way back

on 22nd July 1999 and the Petitioner has been waiting in this Court for over twelve years. In these circumstances, this Court does not consider it expedient at this stage to relegate the Petitioner to the civil court or any other forum.

10. The central issue in the present case concerns validity of the enquiry proceedings against the Petitioner. Although the learned counsel for the Respondent may be right in his submissions that mere non-appointment of a PO for the management would not vitiate the entire proceedings, given the nature of evidence led before the enquiry which would be discussed hereafter, it does appear that the non-appointment of the PO by the management has led to the entire role of the PO being performed by the EC itself, particularly the cross-examination of the defence witnesses. It is difficult to accept the submission on the part of the management that this did not influence the conduct of the proceedings by the EC and its conclusions.

11. This Court is also not satisfied with the explanation given for the delay of nearly two years in proceeding against the Petitioner for an accident that occurred on 29th December 1993. The charge sheet was issued to the Petitioner only on 6th November 1995. The explanation that the preliminary investigations and a decision thereon took nearly two years is not convincing particularly considering the fact that details regarding the incident could have easily been collected soon after the accident. There is force in the submission of the learned counsel for the Petitioner that the fact that the Petitioner was an active member of the AIEU led to the management taking a decision to charge sheet the Petitioner around the time he was due for promotion. The timing of the issuance of the charge sheet, i.e. 6th November 1995, to the Petitioner closer to the date when he was due for promotion, lends credence to the submission of the Petitioner that the issuance of the charge sheet for what appears to be a relatively trivial incident was not bona fide.

12. The charge against the Petitioner is that he took the official car outside the premises of the AIL for his personal work. The documents placed on record show that soon after the accident, a report of the accident was given to the AIL in which the place of accident is indicated as "Near I.A. Terminal-I (ACC BANK)". This report was signed by Mr. M.L. Verma, F.M. as well as D.G. Nayar, Maintenance Manager on 4th January 1994. The motor accident claim form submitted to the insurance company

on 21st January 1994 also indicates the place of the accident to be near the IA Terminal-I, ACC bank.

13. The EC itself has noticed that Mr. R.C. Tiwari who was driving the vehicle at the relevant time had made contradictory statements. After initially making a statement that the accident took place near the Bank, Mr. Tiwari appears to have resiled from it by making statements in a letter dated 31st January 1994 addressed to the Regional Maintenance Manger and before the Assistant Vigilance Officer on 28th March 1997 and again before the Vigilance Department on 8th July 1994 that the accident took place near Kirby Place. It appears to this Court that when Mr. Tiwari resiled from his earlier statement he became an untrustworthy witness. His evidence should not have been relied upon by the EC.

14. There was an eyewitness to the accident involving the official car in question. This was Mr. Chandra Prakash, a Technical Assistant. The statement made by Mr. Chandra Prakash read as follows:-

"On 29-12-1993 around 15:15 hrs when I was standing in a group in front of ACE Thrift and Credit Society Office, I suddenly observed that ambassador car No.DDQ-2396 met with an accident by hitting against the wall in front of the Society Office. There was no injury to the occupants of the car. At the time of the accident, Mr. Tiwary was driving the vehicle and Mr. S.S. Singh was sitting in the front seat of the car. As they were known to me, I approached to them and enquired if they need any assistance from me, Mr. S.S. Singh said he would like to call his office to report the said incident. At this stage, I along with Mr. S.S, Singh made a call to his office. After phone call, Mr. Singh left for his office.

Around 7:15 p.m., Mr. Singh came back to the Society Office. At that time I was busy in the society meeting. Mr. Singh told me that he is taking the vehicle to EMF Building along with Mr. M.L. Verma and Mr. Khan. I came down with him to see off. I saw Mr. M.L. Verma, Mr. Khan, and Mr. Tiwari near the accidental car. They towed the accidental car with the help of the Maruty Gypsy.

I have nothing further to state in the matter. "

15. There is no doubt from the above statement that Mr. Chandra Prakash was an eye witness. He was then examined at length by the EC for clarifications as under:

"EC: Can you tell the working time of the bank?

CP: Bank Office timing is from 0930 hrs to 1730 hrs. However, cash transaction goes up to 6:30 p.m. to cater the meets of shift workers.

EC: Can you tell us the appx. distance from the Society Building where the accident to the ambassador car took place?

        CP:     It is appx. 15 to 20 yards.

        EC:     Can you tell us the extent of damage to the vehicle?

        CP:     Front portion of the vehicle was damaged.

        EC:     Can you tell us whether there is any wall in front of Society Building?

        CP:     There is a platform type wall in front of Society Bldg.

EC: Can you tell the appx. time at which Mr. S.S. Singh made telephone call to his office?

CP: Immediately after the incident.

EC: Can you tell appx. at what time the accidental vehicle was taken from the place of accident?

        CP:     Around 7:15 p.m.

        EC:     Can you tell us how the accidental vehicle was taken from the place of
        accident?

        CP:     It was towed back with the help of Maruti Gypsy.

EC: Can you tell us whether any towing equipment was used for towing the vehicle back?

CP: I have not noticed.

EC: Can you tell us what transpired in the telephone call Mr. Singh had with the office?

        CP:     He made a phone call. I do not know the conversation.

        EC:     How do you know that he made a telephone call at all?

        CP:     He made the call in my presence.

EC: Can you tell us whether anything transpired between yourself and Mr. S.S. Singh on that day after the accident took place?

CP: Nothing except what I stated, nothing has transpired between me and Mr. Singh on that day after the accident took place.

At this stage, the examination of Mr. Chandra Prakash concluded and he was allowed to go. "

16. However, the evidence of Mr. Chandra Prakash has been disbelieved by the EC by

stating that he should have been able to disclose what the Petitioner had said over the

phone when he called the office soon after the accident. The other reason was the

discrepancy in his estimating the distance of the Society building from the accident

site. The above reasons were hardly sufficient to disbelieve the evidence of the eye

witness who clearly said that the accident took place near the Bank.

17. There was also the evidence of Mr. Anil Dubey, Master Technician who stated that

he was sitting in the Foreman‟s Office when the Petitioner and Mr. R.C. Tiwari asked

for permission to go to the Bank. He was also present when the Petitioner called to

say that the vehicle had broken down and that he needed assistance to tow it back to

the office. Thereafter, the Petitioner spoke to Mr. M.L. Verma. In the cross-

examination, Mr. Anil Dubey clearly stated: "Mr. S.S. Singh told him that he is calling

from Terminal-I and the vehicle has broken down at Society Building near Bank."

The evidence of Mr. M. L. Verma supported the version of the Petitioner about his

having called him and stating that the accident took place near the Bank. The EC was

not justified in discarding of the above evidence on the basis of minor contradictions.

18. The EC, which seems to have gone entirely by the DD entries provided by the

Police, in its report admits to the DD entries being vague and that no police officer

was called to establish the genuineness of those entries. It notices the precise

submission of the Petitioner on the DD entries as under:

"(vii) The only document produced by the vigilance division before the Enquiry Committee is photocopy of the Entry No.13A and 19A both dated 29.12.1993, which are internal record of the police station. These documents

are unclear, illegible, contents not understandable and does not bear any counter signature on the same. The DD Entry 13A is having overwriting about the time of accident mentioned in the first line. Photocoy of these documents submitted by Vigilance Division nowhere mentions that it is certified copy of original DD Entry. The document (E-13) is also not supported by other relevant documents of the accident car DDQ-2396 near Kirby Place as alleged by Vigilance Division.

(viii) No police official was called from Sadar Bazar Police Station to verify the DD Entry which can establish the genuineness of the above document. As per the Evidence Act, any secondary evidence, i.e., photocopy has to be verified from the original to establish genuineness of the concerned documents, which was not done by the Enquiry Committee and as such the Documents E- 13 cannot be part of Enquiry proceedings and the same should be dropped."

19. The EC however concluded as under:-

"By his own statement, "The certified copy of D.D. Entry No.13A and 19A dated 29.12.1993 provided by SHO., Delhi Cantt. To Air-India Security nowhere confirm my presence at site of the accident as alleged in the chargesheet", which was made by Mr. Singh before the Enquiry Committee on 18.10.1996, he has admitted that the D.D. Entries taken on record are certified copies.

Though the D.D. entries taken on record are faint, the facts relevant to the case such as place of accident, the registration number of vehicle which met with accident, who was driving the vehicle, who had released Mr. Tiwari on furnishing Bond etc. can be clearly read from the D.D. Entries.

Since the Enquiry Committee was satisfied regarding the genuineness of the D.D. Entries taken on record after verification with the certified copies of D.D. Entries produced by Mr. Yogendra Singh before the Enquiry Committee. It was not considered necessary to call any Police official to establish the genuineness of the same. Further, neither Mr. Singh nor his Defence Counsel did cast any doubt regarding the genuineness of the DD Entries during the enquiry proceedings."

20. The above conclusion drawn by the EC on the basis of the DD entries is not supported by law. Although in the disciplinary enquiry rules of evidence do not have to be strictly followed, where the charged official has taken the plea that the DD entries were themselves illegible and vague, and this has also been accepted by the EC, relying on such entries as forming the substantial evidence was an incorrect approach to adopt. The evidence before the EC showed that there was lack of clarity about the place of the accident. The DD entries, which were not proved as the originals were not produced, were contradicted by the version of the eye witness to the

accident, Mr.Chandra Parkash. The driver Mr. Tiwari had given conflicting versions of the accident and it was unsafe to rely on his evidence. In the circumstances, with there being uncertainty as to the precise place where the accident took place, the benefit of doubt had to be given to the Petitioner. A reading of the report of the EC shows that a desperate attempt was made to return the finding of the charges having been "established beyond doubt". The timing of the issuance of the charge sheet, the manner of holding the enquiry and the manner in which the EC has taken upon itself the entire task of cross-examining each of the witnesses on behalf of the Petitioner throws considerable doubt on not only the fairness of the procedure but the reasonableness and the credibility of the proceedings. The findings of the EC are clearly perverse and contrary to the evidence on record, and interference of this Court is therefore called for in the interests of justice.

21. For the aforementioned reasons, this Court rejects the report of the EC as being unsustainable in law. The orders of the DA as well as the AA accepting the findings of the EC are vitiated by non-application of mind to the numerous infirmities in the said report. Accordingly, the impugned order dated 6th May 1998 of the DA awarding the punishment of stoppage of two annual increments with recurring effect on the Petitioner as well as the impugned order dated 3rd November 1998 of the AA confirming the said order are hereby set aside.

22. In view of the above conclusions, the Respondent will now issue necessary orders granting the Petitioner his promotion as Lead Master Technician (re-designated as Senior Service Engineer-I) from the date his juniors were so promoted with all consequential benefits. The Petitioner will not be entitled to any arrears of salary. However, for the purpose of seniority and computation of any future benefits, his date of promotion will be reckoned as the date from which his juniors were promoted.

23. The petition is allowed in the above terms with costs of Rs.5,000/- which will be paid by the Respondent AIL to the Petitioner within a period of four weeks. Application also stands disposed of

S. MURALIDHAR, J AUGUST 30, 2011 -'anb'