Wing Commander (Dr.) Sushil Kumar vs Union Of India & Ors.
2011 Latest Caselaw 1179 Del

     *        IN THE HIGH COURT OF DELHI AT NEW DELHI
%
                    RA Nos.1/2007 & 41/2007
                                   in
                       W.P.(C) 6391 OF 2003


+                                       Date of Decision: 28th February, 2011

#        WING COMMANDER (Dr.) SUSHIL KUMAR                   .......Petitioner
!                                                                 (In person)

                                    Versus

$      UNION OF INDIA & ORS.                            ...Respondents
                             Through: Mr. Jayant Bhushan, Sr. Advocate
                                       with Mr. Manish & Mr. C.P. Tyagi,
                                       Advocates for R-2(ICHR)
       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN
1.   Whether Reporters of local papers may be allowed to see the
     judgment? (No)
2.   To be referred to the Reporter or not? (No)
3.   Whether the judgment should be reported in the digest? (No)
                             ORDER

P.K.BHASIN, J:

These two review applications have been filed in a disposed of

writ petition. Review Application No. 1/2007 was filed by the

petitioner who had filed the writ petition(hereinafter to be referred to

as „the writ petitioner‟) for quashing the order of his suspension dated

30.05.2003 as well as the charge-sheet dated 28.08.2003 given to

him by the Indian Council of Historical Research(„ICHR‟ in short) where

he was working as a Director. Review Application No.41/2007 was

filed on behalf of ICHR which was arrayed as respondent no.2 in the

writ petition. Both had sought review of the judgment dated 20th

December,2006 whereby the writ petition was allowed and the

impugned suspension order as well as the charge-sheet were quashed

by this Court.

2. The writ petitioner had challenged his suspension as well as

issuance of charge-sheet issued to him for as many as nineteen acts

of misconduct allegedly committed by him primarily on the ground

that it had been done by the then Chairman of ICHR with mala fide

intentions since the writ petitioner had exposed certain financial

irregularities committed by him which had resulted in his indictment

in the statutory audit report of the Comptroller and Auditor General of

India.

3. The writ petition was opposed on behalf of the respondents but,

as noticed already, the writ petition was allowed by this Court and the

suspension order as well as the charge-sheet issued to the writ

petitioner were quashed on the ground that the same were issued

mala fide by the then Chairman of ICHR. However, while allowing the

writ petition this Court had also permitted the ICHR headed by the

new Chairman who had taken over by that time to make a fresh

objective assessment of the allegations against the writ petitioner and

also to issue fresh charge-sheet, if required.

4. After disposal of the writ petition, the writ petitioner filed review

application alleging that even though his petition had been allowed

and it had been held that his suspension and the charge-sheeted

given to him were vitiated since the same had been issued with mala

fide intentions by the part of the then Chairman but towards the end

of the judgment in para No.21 one observation appeared to have

been made inadvertently by the Court which showed that the Court

had also come to the conclusion that the writ petitioner had

committed at least some acts of misconduct out of total 19 charges

included in the charge-sheet. That observation though appeared to

have been made inadvertently and which was apparent on the face of

record but that error required to be corrected since the respondents

were taking undue advantage of those observations and were using

the same against the writ petitioner as if this Court had found him

guilty of some misconduct.

5. Before the review application filed by the writ petitioner could

be disposed of ICHR also came out with a review application claiming

that even though the writ petition was allowed partly and ICHR was

given the liberty to give a fresh charge-sheet to the writ petitioner but

at the same time it had also been observed by this Court that out of

19 charges only a few could be shown to be of any worth and also

that some complaints had become stale. These observations,

according to ICHR, were made inadvertently and that was evident

from the fact that the Court had also observed while quashing the

earlier charge-sheet that the writ petitioner should not be allowed to

go scot-free for certain acts committed by him and that the charge-

sheet was being quashed on the ground of it having been issued

mala fide by the then Chairman and the new Chairman was permitted

to take a fresh look into the matter and, if required, to give a fresh

charge-sheet also to the writ petitioner.

6. During the course of hearing on these review applications the

following observations in para nos. 9, 12, 20 and 21 of the judgment

sought to be reviewed:-

"9. The question here is not whether M.G.S. Narayanan was guilty of any financial irregularity. Nor is it the question as to whether the petitioner and M.G.S.Naryanan were correct in their respective stand over various issues in the ICHE which led to bickering between them. The questions are,(i) whether the order of suspension and memorandum of charges were the result of a mala fide intention.........

12.................... As already mentioned above, for some of the charges there are some strong documentary evidence ........................................ but out of 19 charges only a few could be shown to be of any worth..........................................................................

13 It is to be noted that all these alleged misconducts had been committed in the earlier years, mostly upto 2001...............The alleged misconducts of the petitioner which were being over-looked hithertofore were picked up for serving him with an order of suspension and later with the charge-sheet.

20.................... Some of the complaints may have some substance but the fact remains that those alleged misconduct with some substance had become stale..................Thus, the impugned action of suspension as well as impugned memorandum of charges are vitiated by malafides and cannot be allowed to stand.

21. Nonetheless, it cannot be overlooked that the petitioner did commit certain misconducts which could attract disciplinary action. It would not be proper to let the petitioner go scot free because the action taken has to be quashed for reasons of mala fides as detailed above. The equities can be balanced by providing the respondents No. 1 and 2 one more opportunity to objectively examine the allegations of misconduct of the petitioner and to take appropriate action required, if any, in doing so the respondents No.1 and 2 should also call for the comments of the petitioner and conduct a preliminary fact finding inquiry before embarking upon any full-fledged disciplinary proceeding."

7. The contention of the petitioner, who argued in person, was that

there was an inadvertent error in the judgment rendered by the

learned predecessor Judge and that error was apparent on the face of

the record inasmuch as while in para no.13 of the judgment the

learned Judge had referred to the acts of misconduct attributed to the

writ petitioner in the charge-sheet as „alleged misconducts‟ but at the

end of the judgment in para no.21(the underlined portion) it came to

be observed that the writ petitioner had committed certain

misconducts for which he could not be allowed to go scot free. The

said observation in para no.21 of the judgment, according to the writ

petitioner, appeared to have been made inadvertently and that

inadvertent error was required to be corrected since the respondents

were considering this observation to be the finding of the Court and

was evident from the fact that immediately after the disposal of the

writ petition ICHR had issued an Office Order to the effect that this

Court had held the writ petitioner guilty of certain misconducts.

8. On the other hand, Shri Jayant Bhushan, learned senior counsel

for ICHR had contended that if at all this Court decides to make any

correction/modification or give any clarification in respect of the

observations in para no.21 of the judgment then similar

correction/modification should be made or clarification given in

respect of the observations made in para no. 20(extracted already)

also.

9. After having gone through the writ pleadings, judgment dated

20th December, 2006 and also having given thoughtful consideration

to the submissions made at the bar I am of the view that both these

review applications though shown to have been filed under the

provisions of Section 114 read with Order 47 Rule 1 of the Code of

Civil Procedure, stricto sensu, none of them falls within the ambit of

these provisions relating to review of judgments and orders by Courts.

However, both the parties have also invoked the inherent powers of

the Court under Section 151 of the Code of Civil Procedure and in my

view there are good reasons to exercise that inherent power in this

Court by giving some clarification in respect of the judgment dated

20th December, 2006 rendered by the learned predecessor Judge. It

appears to me and as was clear to ICHR also, as stated by the learned

senior counsel, that this Court never intended to give any final view on

the merits of any of the charges levelled against the writ petitioner

while disposing of his petition. That is evident from the fact that

ICHR‟s new Chairman was given the liberty to have a fresh look into

the charges and to proceed objectively and, if required, he was also

permitted to give a fresh charge-sheet to the writ petitioner. The

observations made by the learned predecessor Judge in paras no.

12,20 and 21, which have been extracted already, however, can be

understood by anyone to be the final findings of the Court. Normally,

whenever any matter is disposed of by the Courts without expressing

final opinion in respect of the points in controversy between the

contesting parties a clarificatory observation in the end is also made

that nothing expressed by the Court would be considered as a final

expression of opinion on the merits of the case. That clarificatory

observation, however, appears to have been not made inadvertently

by the learned predecessor Judge while disposing of the writ petition.

In the facts and circumstances, I am therefore of the view that this is

a case where this Court should use its inherent power to do justice

between the parties by giving the aforesaid clarification now so that

none entertains an impression that this Court had expressed finally in

favour of any of the parties to the writ petition.

10. These applications are accordingly disposed of by clarifying that

none of the observations made in the judgment dated 20th December,

2006 was a final expression of opinion of the Court on the merits of

any of the allegations levelled against the writ petitioner in the

charge-sheet given to him.

P.K. BHASIN, J FEBRUARY 28, 2011 nk