Uoi & Anr. vs Sh.M.S.Saini
2011 Latest Caselaw 1130 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P(C) No.7867/2010
%                        Date of Decision: 24.02.2011
UOI & Anr.                                               ...... Petitioners
                     Through     Mr.M.K.Bhardwaj, Advocate

                                   Versus

Sh.M.S.Saini                                             ...... Respondent
                     Through     Mr.S.K.Das, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

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 petitioners, Union of India and ors have challenged the order

dated 26th May, 2009 passed by the Central Administrative Tribunal,

Principal Bench in O.A No.1737/2007 titled as „M.S.Saini v. UOI & Ors‟

allowing the original application of the respondent and setting aside the

order passed by the disciplinary authority dated 8th July, 2005

imposing a penalty of reduction by one stage for a period of two years,

without cumulative effect and the order of the appellate authority

modifying the penalty to that of a censure.

2. Relevant facts to comprehend the controversies are that the

respondent was posted as Assistant Engineer (Elect.) at Almora, as in

charge of Almora Electrical Sub Division under the Central Electrical

Division, Bareilly when he was transferred to Delhi circle by office order

dated 23rd December, 1997. Subsequently by office order dated 7th

January, 1998, the Executive Engineer (Elect.) Central Electrical

Division, Bareilly had directed Mr.Ram Khilawan, A.E (Elect.) who was

posted in Electrical Sub Division-II to take over the charge from the

respondent of Almora Sub Division in addition to his existing charge.

3. According to the respondent the order of transfer dated 23rd

December, 1997 was never served upon him either officially or

otherwise and he was ignorant of such a transfer order. Consequently

when Mr.Ram Khilawan reached the Almora Sub Division office on 9th

January, 1998 to take over the charge from the respondent, he was not

aware of it. Mr. Ram Khilawan, however, went back to Bareilly, even

though the respondent had yet to complete the formalities for handing

over the charge. Despite the request of the respondent to allow him to

complete the process of handing over the charge which according to him

would have taken at least 5 days as he was in charge of the three offices

that is AE (E), JE (E) and SDC of the Sub Division, Mr. Khilawan did

not take the complete charge from him.

4. According to the respondent Mr.Ram Khilawan distorted the facts

and reported to the Executive Engineer of Central Electrical Division,

Bareilly giving an impression that the respondent had refused to hand

over the charge. The respondent, however, was agreeable to hand over

the charge of his office, but for the reasons known to the officials, the

sub divisional office and the stores were locked and sealed and by office

order dated 21st January, 1998 and the respondent was relieved and

even the outstanding salary and TTA were not paid to the respondent

despite request by him for time to complete the formalities of handing

over the charge in the proper and prescribed manner. The respondent

also clarified by his letter dated 21st January, 1998 that he had never

refused to hand over the charge of Almora Sub Division Office and that

he only wanted to complete the process as per the prescribed procedure

as the interest amount lying in his custody was to be settled along with

materials lying in the stores which required the counter signatures of

the reliever, Mr.Ram Khilawan. The respondent joined the posting at

Delhi Central Electrical Circle-V, CPWD, New Delhi and the Executive

Engineer (Elect.) Bareilly division by his order dated 24th January, 1998

constituted a board of two officers for opening the seal of the office and

stores to hand over the things to Mr.Ram Khilawan without any

intimation to the respondent.

5. Later on the respondent was asked to hand over the log books,

history books, registration, batteries, keys of the doors and the ignition

of the office jeep, though the possession had already been forcibly taken

over and handed to Mr.Ram Khilawan, Assistant Engineer (Elect.).

6. The respondent submitted a detailed reply dated 15th March,

1998 denying that he had the custody of the articles which were

demanded from him as according to him the same were lying in the

office which was forcibly taken over and locked without allowing the

respondent to hand over the same to the reliever. Thereafter by order

dated 5th June, 1998 the respondent was asked to submit his reply to

the show cause notice for departmental action on the allegation that he

had refused to hand over the charge to which reply dated 23rd June,

1998 was filed on behalf of respondent denying the allegation.

7. By another office order dated 29th July, 1998 Executive Engineer,

Bareilly directed the respondent to reach Almora to hand over the rest

of the charge to Mr.Ram Khilawan. The respondent submitted his

application dated 30th July, 1998 seeking sanction for his official tour to

Almora and release of TA advance. However, by office memo dated 30th

March, 2000 the petitioners decided to hold an enquiry against the

respondent for his alleged lapses/imputations and served a

memorandum stipulating the article of charges. The allegations imputed

against the respondent were that he did not hand over the charge upto

21st January, 1998 and did not take timely action to take two

consignments cleared from the Railway Out Agency, Almora resulting in

the payment of demurrage and he submitted a fake voucher dated 2nd

July, 1997 for Rs.1500/- towards cartage of 108 wooden boxes

containing ceiling fans from Almora Railway Out Agency to SSB

Campus, Almora. The respondent gave a detailed reply dated 8th April,

2000 and also requested for appointment of an enquiry officer through

CVC as he was not expecting justice because of influence of the

Executive Engineer, Bareilly division. The disciplinary authority

however, conducted the regular enquiry despite the concerns and

clarifications given by the respondent. The respondent participated in

the enquiry and moved applications before the Inquiry Officer

demanding additional documents for the purpose of his defence and he

also lodged a written complaint dated 12th March, 2001 with the

Secretary, Central Vigilance Commission against the misdeeds of the

Executive Engineer, Bareilly Division, and two other officials of the

petitioner‟s department requesting a detailed enquiry against them.

8. The enquiry officer submitted his report dated 1st December, 2004

finding the petitioner guilty of only one charge out of three articles of

charges. A copy of the enquiry report was also given to the respondent.

9. The respondent requested the disciplinary authority for a copy of

the CVC advice, which was supplied to him on 24th February, 2004 and

also submitted a detailed representation against the findings of the

Inquiry Officer. The disciplinary authority, however, by order dated 8th

July, 2005 imposed a penalty of reduction of pay by one stage from

Rs.10,100/- to Rs.9,900/- in the time scale of pay of Rs.6500-200-

10500/- for a period of two years. Aggrieved by the order of

punishment, the respondent submitted an appeal under Rule 25 of CCS

(CCA) Rules. Since the appeal of the respondent was not taken up

expeditiously, the respondent filed an original application being O.A

No.508/2006 for expeditious disposal of his appeal. The original

application being O.A No.508/2006 was disposed of by order dated 1st

March, 2006 directing the appellate authority to decide the appeal

within a period of three months.

10. The petitioners did not dispose of the appeal within the time

granted by the Tribunal and sought further time to dispose of the

appeal, which was allowed by order dated 6th July, 2006. The appeal of

the respondent was disposed of by order dated 24th August, 2006

modifying the punishment of reduction of pay by one stage to that of

censure relying on the advice of UPSC.

11. The respondent challenged the order of the disciplinary authority

and the appellate authority by filing an original application being O.A

No.1737/2007 contending inter-alia that the disciplinary authority has

not considered the facts and circumstances independently and has

reached its decision solely influenced by the advice of the UPSC.

According to the respondent there was no evidence that the log books

and other materials were maintained by him and were in his possession

which was requested to be delivered to the reliever. He contended that

the transfer order dated 23rd December, 1997 was not communicated

and intimated to him in any manner. Even when Mr.Ram Khilawan, the

reliever reached on 9th January, 1998 to take over the charge, he never

declined to hand over the charge, but instead he had opined knowing

the extent of the work which was required for handing over the charge

that it would take at least 5 days to hand over the charge as per the

proper procedure. Mr.Ram Khilawan, however, instead of taking over

the charge, left the place on his own and later the office and the stores

were sealed. In the circumstances, it was contended that the findings of

the enquiry officer and the disciplinary authority were perverse as there

is no material to show that log books were maintained by him and that

the materials as demanded by the petitioners were in his possession as

the office and the stores had already been sealed and he had refused to

hand over the charge and that it was ever intimated or communicated

to him about the transfer by order dated 23rd December, 1997..

According to the respondent the entire disciplinary action against him

was on account of ill will and ill motive of the Executive Engineer

(Elect.) Bareilly division which is also apparent from the material on

record which categorically reflects that he was not allowed to hand over

the complete charge of the Almora Sub Division by a pre meditated and

pre planned action as on 21st January, 1998 his office and stores were

sealed without any justifiable reason. The respondent also contended

that he was virtually handicapped in handing over the charge officially

to the reliever because of the non-payment of TA which is a condition

precedent for transfer of the official according to rules, which fact has

not been denied. Relying on the report of the forensic expert, the

respondent contended that the office order dated 21st January, 1998

was typed from the typewriter lying in the Bareilly Sub Division Office

and in the circumstances it was apparent that the relieving order and

locking order were both prepared by the Executive Engineer (Elect.),

Bareilly in a pre planned manner. The respondent‟s assertion is that by

not allowing the time requested by the respondent to complete the

formalities, and instead forcibly taking over the charge in his absence

by locking the stores and his office, is reflective of the malafides on the

part of the concerned officials and in the circumstances it could not be

inferred that the materials as demanded by the petitioners were in his

possession and were not handed over by the respondent.

12. The pleas and contentions of the respondent were contested by

the petitioners by filing a counter reply dated 28th January, 2008

contending inter-alia that no cause of action had accrued to the

respondent to file the original application against the punishment of

censure granted by the appellate authority. The respondent also

reiterated that the order No.246/1997 dated 23rd December, 1997 had

been sent to the respondent. It was contended that the

respondent/charged official did not sign the list of the charge he was to

hand over on 9th January, 1998 which consequently led to sealing of

the office and the store on 21st January, 1998. Though a detailed

petition was filed by the respondent, however, in the counter affidavit

on behalf of the petitioners the allegations have been simply denied. No

particulars were given as to how the transfer order was intimated or

communicated to the respondent nor anything was disclosed from

which it could be inferred that the log books and other material was in

possession of the respondent and were personally maintained by him.

13. The Tribunal by order dated 26th May, 2009 noted the

observations made by the Union Public Service Commission on the

appeal which was filed by the respondent before the appellate authority.

The Tribunal also held that in a judicial review of the disciplinary

proceedings the evidence is not to be re-appreciated nor the view of the

Tribunal is to be substituted with the view of the disciplinary authority,

however, if there is no evidence in support of the charge against the

delinquent official, the findings based on no evidence shall be perverse

and the Tribunal shall be entitled to interfere with the findings and the

punishment imposed. The Tribunal further held that if a trivial

misconduct or a technical misconduct is made out that will not be

sufficient to hold a person guilty in the disciplinary proceedings.

14. From the advice of Union Public Service Commission it was also

noticed that from the record, the disciplinary authority has not been

able to establish by producing any document that the log books were

maintained by the respondent and not handed over by the respondent

deliberately. This was also not disputed that the respondent had

handed over a part of the charge and had promised to hand over the

rest of the charge later which had not been disputed by the disciplinary

authority. The observations and findings of the Tribunal are as under:-

"8. We have carefully considered the rival contentions of the parties and perused the material on record. It is trite law that in judicial review of disciplinary proceedings we cannot re-appraise the evidence and substitute our own view. The doctrine of proportionality has applicability, yet the Apex Court has laid down the methodology. However, the scope to interfere in disciplinary proceeding is when there is no misconduct against an employee and or a case of „no evidence‟ with a pervert finding. Applying the test of a common reasonable prudent man if no evidence has come- forth to establish the misconduct, mere trivial misconduct or technical misconduct cannot be sufficient to hold a person guilty in a disciplinary proceeding. A judgment of error or error by an authority is not misconduct, as ruled by the Apex Court in Reference under Article 317 of the Constitution of India, 209 (1) SCC 337. In a disciplinary proceeding EO has to discharge quasi-judicial functions, as ruled by the Apex Court in Roop Singh Negi v. Union of India, 2009 (1) SCC (L&S) 298. Reasoned orders are

expected in law to be passed both by the DA as well as the appellate authority.

9. In the above backdrop though against the applicant only charge-I is proved, i.e., non handing over the charge, including logbooks, it has been established that the logbooks was never in his possession. As regards other charges, we do not find any finding recorded by the EO as to what are those articles and parts of the charge, having not handed over, yet a clue has been taken from the imputation, which includes according to the respondents, the history book, registration, battery, keys and ignition etc. in this regard a specific plea taken by the applicant that these items were not in his custody and were lying in the office, which were forcibly taken from him and was locked, has not been rebutted by the respondents and is deemed to have been admitted. As such the part of the charge that applicant has not handed over parts of the charge other than logbook is not made out against him, yet he has been punished on the charge.

10. From the advice of Union Public Service Commission taken in appeal, it is clearly observed from the record that the DA has not produced any document to prove that logbook was handed over to the appellant. However, it is acknowledged that the appellant handed over part of the charge to his successor stating that he would hand over rest of the charge later for which no comments have been offered by the DA. Accordingly, what has been left out to be handed over are the items which were not in possession of the applicant, which is not refuted by the respondents. As such, the only article of charge of logbook, having not found in his possession, could not be handed over, yet the appellate authority instead of quashing the punishment, mechanically accepted, without recording reasons, the advice of the UPSC and on proportionality reduced the punishments. It is trite that the DA has to pass a speaking order, being a quasi-judicial authority, as ruled by the Apex Court in Roop Singh Negi (Supra). The order passed by the DA also does not deal with these contentions."

15. We have heard the learned counsel for the parties in detail. The

contentions raised on behalf of the petitioners before the Tribunal has

been agitated again by the learned counsel for the petitioners. We asked

the learned counsel for the petitioner to show any evidence which will

establish that the order dated 23rd December, 1997 transferring the

petitioner was intimated or communicated or served upon him. From

the record no such evidence has been shown which will establish that

the order of transfer dated 23rd December, 1997 was served upon the

respondent. Also on 9th January, 1998 when the reliever Mr.Ram

Khilawan had to come to Almora to take over the charge, there is no

evidence to show that the respondent refused to hand over the charge.

Rather part of the charge was handed over and what was demanded by

the respondent was also to pay him the TA which appears to be a

requirement in accordance with the rules for handing over the charge.

This has not been established by the petitioners that log books, history

books and some other articles remained in his possession despite the

office and the store being locked and sealed by the petitioners. This is

not disputed that the part of the charge had been handed over by the

respondent. This is also not disputed that the respondent was holding

the charge of three offices. This has not been denied specifically that the

handing over the charge would have taken considerable period, as

suggested by the respondent that it would have taken at least five days.

In the circumstances why the reliever returned back on the same day

has not been explained nor there is any evidence that the respondent

refused to hand over the charge. If the intention of the respondent had

been not to hand over the charge, even part of the charge would not

have been handed over by him. If it has not been established that the

log books were maintained by the respondent and were in his

possession and were not locked and sealed, no action could be taken

against the respondent for not handing over the log books and some

other material. This is also established that the presence of the

respondent was not sought when the seals of the office were opened and

the office record and the material were taken over later on. If that be so

the appellate authority was not justified in imposing any punishment

on the respondent and consequently the observations and the

inferences of the Tribunal cannot be held to be illegal or unsustainable

or suffering from any such perversity which shall entail any interference

by this Court while exercising its writ jurisdiction.

16. This has also been established that the respondent handed over a

part of the charge to his successor stating that he would hand over the

rest of the charge. This has also not been disputed that the entire

charge could not be handed over in a single day. If that be so, there is

no justification especially for locking and sealing the office and the store

and then imputing charges of not handing over the stores and material

to the petitioners. The Tribunal has also noted that the disciplinary

authority has not dealt with some of the relevant pleas raised on behalf

of the respondent. The learned counsel for the petitioners is also unable

to show as to how the pleas and contentions specifically raised have

been dealt with by the disciplinary authority. Non consideration of the

material pleas which were raised and in respect of which there had

been evidence before the disciplinary authority will also make his order

unsustainable. In the circumstances, the undeniable inference is that

the order of the Tribunal setting aside the decision of the disciplinary

authority as well as the appellate authority, cannot be termed to be

illegal or perverse so as to entail any interference by this Court.

17. In the totality of the facts and circumstances we do not find any

ground to interfere with the order of the Tribunal dated 26th May, 2009

setting aside the order of the disciplinary authority dated 8th July, 2005

and of appellate authority and the order dated 10th December, 2009

passed by the Tribunal in review application of the petitioner being R.A

No.222/2009 dismissing the same. Resultantly the writ petition is

dismissed. However, considering the facts and circumstances the

parties are left to bear their own cost.

ANIL KUMAR, J.

February 24, 2011. VEENA BIRBAL, J.

„k‟