India Trade Promotion ... vs P.K.Jindal & Anr.
2011 Latest Caselaw 130 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          WP(C) No.6961/2010

%                      Date of Decision: 11.01.2011

India Trade Promotion Organisation & Anr.                 .... Petitioners

                      Through Mr. Piyush Sharma, Advocate

                                Versus

P.K. Jindal & Anr.                                     .... Respondents

                      Through Mr. S. Janani, Advocate for respondent
                              No. 1
                                Mr. B.V. Niren, CGSC & Mr. Abhishek
                                Goyal, Advocate for respondent No. 2


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 petitioner has challenged the order dated 2nd February, 2010

passed by the Central Administrative Tribunal, Principal Bench in TA

No. 511/2009 titled as P.K. Jindal Vs. Union of India & Ors. quashing

the order dated 8/9th June, 2000 passed by the Disciplinary Authority

imposing penalty of withholding three increments of pay with

cumulative effect and granting opportunity to the petitioner to proceed

against the respondent after allowing him the assistance of a defence

assistant from the stage when he was denied the services of the defence

assistant and directing the petitioner to complete the inquiry within

three months from the date of receipt of certified copy of order dated 2nd

February, 2010 as 15 years had already expired.

2. Brief facts to comprehend the controversies between the parties

are that the respondent was appointed as Assistant Manager (re-

designated as Dy. Manager) with the petitioner. After seven years of

service, he was appointed as Dy. Manager (re-designated as Manager)

and after four years of service as Manager, he was promoted to the post

of Joint Manger (re-designated as Sr. Manager) in Finance and

Accounts Division.

3. The respondent asserted that on 29th December, 1994, the then

Assistant Manager (Finance) Sh. A.K. Sahani had taken earned leave for

16 days, w.e.f. 29th December 1994 to 13th January 1995, which was

sanctioned by the respondent as a Joint Manager (re-designated as Sr.

Manager). He had asked for a substitute during the leave period of Mr.

Sahani, however, no substitute was provided.

4. During the period from 3rd January, 1995 to 13th January, 1995

seven bills amounting to Rs. 1.72 lacs for payment relating to

advertisement were forwarded by Publicity Division to Finance Division

along with Bill Forwarding Proforma, Sanction Order Proforma duly

certified by authorized officer of Publicity Division including the rates of

advertisements which were taken by the Publicity Division and

consequent thereto payment was sanctioned by the respondent.

5. On account of a publicity scam in the organization, petitioner was

issued a memo dated 8th May, 1998 and he was asked to explain the

alleged negligence pointed out in the confidential note, which was

supported by the DGM Sh. K.S. Dabas. A detailed reply was given by

the respondent on 20th May, 1998. The promotion of the respondent

was deferred by the DPC which met on 12th May, 1998 on account of

memo dated 8th May, 1998. According to the respondent, even Sealed

Cover procedure in accordance with ITPO Service Rules and

Government Orders was not followed in his case and he was victimized

though he had not committed any wrong.

6. The respondent had made a representation dated 26th November,

1998, however, the representation was not considered and replied by

the petitioner. Thereafter, the respondent was given a memo dated 4th

June, 1998 incorporating the charge sheet alleging that while working

as Joint Manager (re-designated as Sr. Manager) he had passed adhoc

advertisement bills during the year 1995 to the tune of Rs. 1.72 lacs

without checking the bills which had no approval of ED or CMD and on

30th June, 1998 Sh. S.K. Mukherjee, IAS, retired was appointed as an

Inquiry Officer to inquire into the charges framed against the petitioner.

7. The respondent contended that he gave a detailed reply to the

charge sheet. The presenting officer submitted a written brief to the

Inquiry Officer and respondent also submitted a defence brief to the

Inquiry Officer giving all the details of his defence as well as reply to the

charges leveled against him.

8. According to the respondent, the defence brief was completely

ignored and was not considered. The respondent also produced a copy

of the defence brief dated 6th May, 1999 submitted by him before the

Inquiry Officer. Since the defence brief of the respondent was ignored

the respondent also wrote to the Chairman and Managing Director, by a

letter dated 22nd June, 1999. According to the respondent without

taking his defence brief into consideration, the Inquiry Officer had held

him guilty of gross negligence and carelessness.

9. The respondent further contended that he was given a memo

along with Inquiry Officer's report and the respondent filed a detailed

reply on 20th July, 1999 and also submitted his explanation to the

Disciplinary Authority. However, the Disciplinary Authority on 8/9th

June, 2000 after a gap of around one year passed the penalty order of

withholding three increments of pay with cumulative effect without

passing the speaking order and taking into consideration the pleas and

contentions of the respondent. An appeal dated 10th July, 2000 was

also filed before the Chairman and Managing Director, India Trade

Promotion Organisation, Pragati Maidan, however, the Appellate

Authority also without taking into account the facts and submissions

made by the respondent, dismissed the appeal by order dated 3rd

August, 2000 and a review petition dated 6th November, 2000 was also

rejected and order dated 15th December, 2000 was communicated to the

respondent.

10. The grievance of the respondent was also that the relevant files

containing sanctions of the competent authority were not made

available by the Publicity Division as had been pointed out by the

auditors in their report for which the respondent could not be held

responsible. According to him prior to 1998, no approval of CMD was

required nor was there were any such Rule. The respondent also

contended that a defence assistant was not provided to him on the

ground that he was a retired public servant. By letter dated 4th March,

1999, the respondent pointed out serious discrimination and requested

the petitioner to allow the services of a defence assistant. According to

him, denial of the service of a defence assistant was in contravention to

the provisions contained in ITPO Employees (Conduct, Discipline and

Appeal) Rules under Clause-39. Reliance was placed by the respondent

on CVC Manual, Vol.II, Part I Item 8 (B) contemplating that the

Government servant may take assistance of retired government servant

to present the case on his behalf and consequently, denial of service of

defence assistant to the respondent was in violation of the directives of

CVC read with ITPO Employees (Conduct, Discipline and Appeal) Rules.

According to the respondent, this amounted to a denial of a fair

opportunity and a violation of the principles of natural justice and in

the circumstances, he was greatly prejudiced. It was also contended on

behalf of the respondent that no person in active employment in the

organization was keen to act as a defense assistant fearing retaliatory

action from the management. The respondent also contended that the

punishment imposed upon him is too harsh and it is dis-proportionate

to the allegations and charges made against him.

11. The respondent therefore, challenged his punishment by filing a

writ petition in the High Court of Delhi which was later on transferred

to the Principal Bench, Central Administrative Tribunal. The Tribunal

by order dated 2nd February, 2010, has held that perusal of the inquiry

proceedings revealed serious defects in the procedure adopted by the

petitioner. The Tribunal noted and proceeded on the basis of two

serious defects, i.e., not providing the assistance of the defence

assistant to the respondent despite specific demand by him and non

consideration of his written defence brief. Regarding not allowing the

defence assistant nominated by the respondent i.e., Mr. M. Khandelwal,

retired Assistant Director (P&T), it was observed by the Tribunal that

when his request was denied, the respondent filed an appeal to the

Chairman cum Managing Director, which was not even considered. The

Tribunal also noted that services of the Defence Assistant were denied

to him on the ground that he was a retired public servant. Despite

appeal to CMD by letter dated 4th March, 1999 pointing out some

serious discrimination, the appeal was not considered and any other

defense assistant was not provided though the respondent had also

contended that no person in active employment in the organization was

keen to act as defense assistant fearing retaliatory action from the

management. Regarding the second point, it was also noted that the

respondent had made a written defence brief on 6th May, 1999, a copy

of which was also placed on record as Annexure P-8. However, the

Inquiry Officer had observed that the respondent had not submitted the

written defence brief and did not take into consideration the pleas and

contentions raised by the respondent. As 15 years had elapsed since

the alleged negligence on the part of the respondent was invoked

against him, the Tribunal has set aside the order of punishment dated

8/9th June, 2000 passed by the Disciplinary Authority and order dated

3rd August, 2000 passed by the Appellate Authority and has directed

the petitioner to proceed against the respondent allowing him the

assistance of the defence assistant from the stage when he was denied

the service of defence assistant and consider his defence brief and

complete the inquiry within three months.

12. The learned counsel for the petitioner has vehemently contended

that the ITPO Employees (Conduct, Discipline and Appeal) Rules

contends that the employee can take the assistance of another public

servant to present his case but may not engage a retired public servant

in accordance with relevant rules. The explanation of Rule-27 is as

under:-

"EXPLANATION

It will not be necessary to show the documents listed with the charge sheet or any other documents to the employee at this stage.

(4) On receipt of the written statement of the employee, or if no such statement is received within the time specified, an inquiry may be held by the Disciplinary Authority itself, or by any other public servant appointed as an Inquiring Authority under Sub-clause (2) provided that may not be necessary to hold an inquiry in respect of the charges admitted by the employee in his written statement. The Disciplinary Authority shall, however, record its findings on each such charge.

(5) Where the Disciplinary Authority itself inquires or appoints an inquiry authority for holding an inquiry, it may, by an order, appoint a public servant to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge.

(6) The employee may take the assistance of another public servant to present his case, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority is a legal practitioner or unless the Disciplinary Authority having regard to the circumstances of the case, so permits.

(7) On the date fixed by the Inquiring Authority the employee shall appear before the Inquiring Authority at the time, place and date specified in the notice. The Inquiring Authority shall ask the employee whether he pleads guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the Inquiring Authority shall record the plea, sign the record and obtain the signature of the employee concerned thereon. The Inquiring Authority shall return a finding of guilt in respect of those articles of charge to which the employee concerned pleads guilty.

(8) If the employee does not plead guilty, the Inquiring Authority shall adjourn the case to a later date not exceeding thirty days, after recording an order that the employee may, for the purpose of preparing his defence.

(i) Inspect the documents listed with the Charge Sheet.

ii) Submit a list of additional documents and witnesses that he wants to examine; and

(iii) Be supplied with the copies of Statements of witnesses, if any, listed in the Charge Sheet."

In the circumstances it is contended that the respondent

could not have taken the assistance of a retired public servant to

act as a defense assistant on his behalf.

13. The learned counsel also relied on (1999) 1 SCC 626 Bharat

Petroleum Corporation Limited Vs. Mahanagar General Kamgar Union

and Ors; (2004) 13 SCC 427; Ravi Malik Vs. National Film Development

Corporation Limited and Ors. (2008) 4 SCC 406; DG Railway Protection

Force and Ors. Vs. K. Raghuram Babu to contend that the respondent

was not entitled for a retired public servant as a defense assistant.

14. The Tribunal has noted that the assistance of defense assistant

had also been denied to the respondent on the ground that he was a

retired public servant. There appears to be a typographical error in the

order of the Tribunal as the respondent is not a retired officer and the

defense assistant nominated by him was denied to him on the ground

that the nominated defense assistant was a retired public servant.

Therefore, what is to be considered is whether a retired public servant

could act as a defense assistant or not to the respondent and whether it

could be denied by the petitioner. If the person nominated by the

respondent was a retired public servant and under ITPO Employees

(Conduct, Discipline and Appeal) Rules a retired public servant could

not be appointed as a defence assistant then he should have been

provided another defence assistant especially in view of categorical

assertions by the respondent that no public servant of the Organization

was ready to be a defence assistant because of the apprehension of

retaliatory action by the petitioner against such person. In any case the

representation of the respondent dated 4th March, 1999 regarding

providing him a defense assistant, ought to have been considered and

decided by the petitioner. Denial of defence assistant by the Inquiry

Officer and not adjudicating the representation by the respondent to

CMD vide representation dated 4th March, 1999 is in violation of the

principles of natural justice in the facts and circumstances. In the

circumstances, it could not be held that no prejudice was caused to the

respondent on account of not providing a defence assistant to him.

15. To justify their act of not approving a retired public servant as the

defense assistant which was nominated by the respondent, the learned

counsel for the petitioner has relied on certain precedents. Perusal of

those precedents, however, revealed that they are distinguishable. In

Bharat Petroleum Corporation Limited (supra), the Supreme Court had

held that the draft standing orders permitting the delinquent to be

represented in a domestic inquiry only by a fellow workman of the same

establishment were neither unreasonable nor unfair nor such orders

were inconsonance with model standing orders which permitted

representation of the delinquent by an office bearer of the Union of

which the delinquent was a member. The ratio of the case relied on by

the petitioner is apparently distinguishable as petitioner had nominated

a retired public servant as a defense assistant which was denied on the

ground that the explanations to Clause-27 contemplates public servant

which will not include a retired public servant. There are no specific

rules that a retired public servant could not be appointed as adefense

assistant.

16. Perusal of Clause-6 of Explanation of Rule-27 rather reveals that

public servant has been used in contradistinction to a legal practitioner.

What is contemplated is that a delinquent may not engage a legal

practitioner unless permitted by the Disciplinary Authority. The said

clause-6 does not contemplate that a retired public servant cannot be

taken by the delinquent employee as the assistant. In any case, as has

been noted by the Tribunal his representation to provide defence

assistant to the CMD of the petitioner by representation dated 4th

March, 1999 was not even considered and no cogent reasons had been

given for denying the defense assistant to the respondent.

17. This is not in dispute that the disciplinary authority was

represented by a presenting officer. The rules also contemplates that an

employee may take the assistance of another public servant to present

his case, but may not engage a legal practitioner for the purpose unless

the person nominated by the disciplinary authority is a legal

practitioner or unless the disciplinary authority having regard to the

circumstances of the case, so permits. It is also not the case of the

respondent that he wanted to engage a legal practitioner. The relevant

rule does not specifically contemplate that a retired public servant

cannot be permitted to be a defense assistant as has been stipulated

about a legal practitioner. It is a settled principle of interpretation that

exclusion must either be specifically provided or the language of the

rule should be such that it definitely follows by necessary implication.

The words of the rule, therefore, should be explicit or the intent should

be irresistibly expressed for exclusion. If it was so intended, the framers

of the rule could also simply use the expression like 'public servant in

office'. Absence of such specific language reflects that the authorities

never intended to restrict the scope of 'public servant' to the serving

officers/officials. The principle of necessary implication further requires

that the exclusion should be an irresistible conclusion and should also

be in conformity with the purpose and object of the rule. An exclusion

clause should be reflected in clear, unambiguous, explicit and specific

terms or language, as in the clauses excluding the jurisdiction of the

Court the framers of the law apply a specific language.

18. The Supreme Court in the case of Union of India and ors. Vs Alok

Kumar, (2010) 5 SCC 349 where the question involved was, whether a

retired public servant could be appointed as an enquiry officer had

distinguished its earlier case of Ravi Malik (supra) relied on by the

learned counsel for the petitioner. In case of Ravi Malik the Supreme

Court had interpreted Rule-23(B) of National Film Development

Corporation Limited and in view of the instructions issued by the

Central Vigilance Commission, it was held that the public servant used

in Rule-23 (B) meant that the person appointed as an inquiry officer

must be a servant of the public and not a person, who was a servant of

the public and therefore, a retired officer would not be a public servant

for the purpose of Rule-23(B) to be appointed as Inquiry Officer. If

under Rule-23(B) of National Film Development Corporation Limited, a

retired person cannot be appointed as an Inquiry Officer, it cannot be

held that a retired public servant cannot be appointed as a defence

assistant as the Explanation-6 of Rule-27 of the petitioner makes a

distinction between a public servant and a legal practitioner and

contemplates that a legal practitioner cannot be appointed as a defence

assistant unless the Disciplinary Authority so permits. Rather rules of

the petitioner permits a retired public servant to be an Inquiry Officer

which was not permissible under the rules of National Film

Development Corporation. If a retired public servant can be appointed

in case of petitioner as an Inquiry Officer, then why the expression

public servant for defense assistant would exclude a retired public

servant does not seem to have any rational nor any cogent reason as

has been disclosed by the learned counsel for the petitioner. In Alok

Kumar (supra) the Supreme Court in para 38 of the order had held:

"38...................The rule of contextual interpretation requires that the court should examine every word of statute in its context, while keeping in mind the preamble of the statute, other provisions thereof, pari material statutes, if any, and the mischief intended to be remedied. Context often provides a key to the meaning of the word and the sense it carries. It is also a well established and cardinal principle of construction that when the rules and regulations have been framed dealing with different aspects of the service of the employees, the Courts would attempt to make a harmonious construction and try to save the provision, not strike it down rendering the provision ineffective. The Court would normally adopt an interpretation which is in line with the purpose of such regulations. The......."

19. In DG Railway Protection Force & Ors. (Supra) the Rule of the

Railway Protection Force was held to be constitutionally valid which

contemplates that an employee accused of misconduct has to conduct

his own case. The Supreme Court has not laid down that if a Rule

permits a public servant as a Defense Assistant then, a retired public

servant cannot be a defense assistant and consequently on the basis of

these precedents, the petitioner cannot contend that the respondent

was not entitled for a defense assistant which was nominated by him

who was a retired public servant.

20. The Tribunal has also set aside the order on the ground that the

defense brief of the respondent incorporating his pleas and contentions

had not been considered on the ground that no defense brief was filed

by the respondent which is contrary to the record. The respondent had

filed a defense brief on 6th May, 1999, a copy of which was also placed

on record as Annexure P-8 on page-33 of the paper book, which fact

could not be denied by the petitioner. From the perusal of the record, it

is also apparent that whatsoever notices were given by the petitioner,

were replied by the respondent and the defense brief dated 6th May,

1999 was also filed. In the circumstances, the inquiry officer ought to

have considered the pleas and contentions raised by the respondent

and consideration of the pleas and contentions of the respondent could

not be denied on the ground that no defense brief was filed. In the

circumstances, non consideration of the pleas and contentions of the

respondent will be a violation of the principles of natural justice and the

observation and inferences of the Tribunal cannot be termed to be

illegal or unsustainable.

21. On account of violation of principles of natural justice, if the

Tribunal has directed the petitioners to provide the respondent with a

defense assistant and to proceed from the stage where the defense

assistant had to be provided to the respondent, the order of the

Tribunal cannot be termed to be illegal or perverse or unsustainable or

contrary to record so as to entail any interference by this Court in

exercise of its jurisdiction under Article 226 of the Constitution of India.

22. In the circumstances, this Court finds no merit to interfere with

the order of the Tribunal dated 2nd February, 2010 directing the

petitioners to provide a defense assistant to the respondent and liberty

to proceed from the stage when he was denied the assistance of defense

assistant and conclude the enquiry within three months. Since three

months period from the date of order of the Tribunal has already

expired, therefore, now the petitioners shall be liable to conclude the

inquiry within a period of three months from the date of receipt of this

order and if possible, to carry out the inquiry proceedings on a day to

day basis. With these directions, the writ petition is disposed of.

Considering the facts and circumstances, the petitioner shall also be

liable to pay a cost of Rs. 20,000/- to the respondent.

ANIL KUMAR, J.

January 11 , 2011                               VEENA BIRBAL, J.
'rs'