Mahesh Sharma vs Bharat Heavy Electricals Ltd. & ...
2011 Latest Caselaw 3587 Del

          IN THE HIGH COURT OF DELHI AT NEW DELHI


                  W. P. (C) 6623/1998 & CM APPL 12281/1998


                                                  Reserved on: July 15, 2011
                                                  Decision on: July 28, 2011

 MAHESH SHARMA                                       ..... Petitioner
                                Through: Mr. Ashok Bhalla, Advocate.

                  versus


 BHARAT HEAVY ELECTRICALS LTD.
 & ORS                                     ..... Respondents
                    Through: Mr. Raj Birbal, Senior Advocate with
                    Mr. A.K. Roy and Ms. Raavi Birbal, Advocates
                    for R-1 to R-4.
                    Mr. H. Hnunpull, Advocate for UOI.

  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

28.07.2011

1. The Petitioner, who was working with Respondent No. 1 Bharat Heavy Electricals Limited („BHEL‟) as an Assistant Cashier („AC‟), has filed this writ petition for a declaration that the entire enquiry proceedings instituted against him beginning with an order dated 28th July 1993 and concluding with the punishment imposed on the Petitioner of reduction of pay by four stages for a period of four years by the order dated 22nd April 1997 of the Disciplinary Authority („DA‟) are illegal and unconstitutional. The Petitioner prays for a further direction to the Respondents to restore the pay and allowances of the Petitioner with consequential benefits.

2. The Petitioner was working with Respondent BHEL as an AC. A report of internal audit of the BHEL submitted in June 1993 pointed out several irregularities in the reimbursements claimed by one Mr. Deepak Dhawan who was the Private Secretary to the Director (Personnel). The claims were admitted for payment by one Mr. S.S. Sharma, the Accounts Officer („AO‟), directly without routing them through an Accountant as was the usual practice. The payments were then made by the Petitioner as the AC. The report of the internal audit pointed out to the nexus between Mr. Deepak Dhawan, Mr. S.S. Sharma and the Petitioner. According to the Respondents, Mr. S.S. Sharma was called by the Committee conducting the internal audit and confronted with the said vouchers. Mr. Deepak Dhawan was also called and asked to repeat the allegation against Mr. S.S. Sharma. It is stated that when confronted, Mr. S.S. Sharma, admitted the allegations leveled against him. Thereafter, the Petitioner was also called and he too admitted that he had given some cash memos to Mr. Deepak Dhawan and obtained payment against those cash memos.

3. The Committee prepared a report on 17th July 1993 which came to be countersigned by the aforementioned three officers including the Petitioner herein. Further, Mr. S.S. Sharma and the Petitioner submitted two separate notes admitting that they would refund the amount paid to them through the aforesaid modus operandi. Copies of the aforementioned notings and the audit report containing the signatures of the three officers, including the Petitioner, have been placed on record.

4. On 28th July 1993 an order was issued by Respondent No. 1 stating that disciplinary proceedings against the Petitioner were contemplated in accordance with the BHEL Conduct, Discipline and Appeal Rules, 1975 (hereafter „the Rules‟). Consequently, the Petitioner was placed under suspension by the said order. This was followed by a Memorandum dated 8th February 1994 whereby the articles of charge in respect of which the enquiry was proposed to be held were communicated to the Petitioner. The first article of charge was that the Petitioner had, in collusion with Mr. Deepak Dhawan and Mr. S.S. Sharma, made payment of fraudulent claims of expenditure purported to have been incurred for official purposes for monetary gain. The Petitioner facilitated payments of such claims knowing that they were not genuine. The loss to the BHEL on

this score was estimated to be over Rs. 3.14 lakh for the period of August 1991 to July 1993. The second article of charge was that the Petitioner had supplied to Mr. Deepak Dhawan printed cash memos and machine printed receipts to facilitate claiming of such amounts on a fraudulent basis. The third article of charge was that the Petitioner had tampered with a machine printed receipt dated 30th April 1993 by prefixing the figure „5‟ before the total amount of Rs. 89.35. The Petitioner was charged having made a payment of the cash memo knowing fully well that the claim was a false one.

5. In the enquiry which took place seven documents were exhibited by the BHEL and four witnesses examined. On behalf of the Petitioner four documents were exhibited and no witness examined. In the inquiry report dated 8th April 1997, after discussing the evidence, the Inquiry Officer (IO) held that the first article of charge stood proved. The signatures of the three officers on the report of the internal audit as well as the separate statements made by Mr. S.S. Sharma and the Petitioner were exhibited in the enquiry and also proved by the management witness. It was held by the IO that although there was no evidence to show with effect from which period the Petitioner was party to the collusion/understanding and that there was no evidence to show that he had made the entire payment of over Rs. 3.14 lakh, "it was clear that CO2, i.e., Petitioner was a party to the collusion/understanding and pursuant thereto he had given some cash memos to Mr. Deepak Dhawan and obtained payment against them". The other two articles of charge were held to be not proved.

6. The report of the IO was furnished to the Petitioner by the DA by a letter dated 8th April 1997. After considering the Petitioner‟s reply thereto, the DA passed a detailed order dated 22nd April 1997 in which while accepting the findings of the IO the major penalty of reduction of pay was imposed on the Petitioner under Rule 23 (e) of the Rules. It was further directed that the reduction of pay would be for a period of four years and that it would operate to postpone the future increments on restoration of the pay after four years. The Petitioner‟s suspension order would stand revoked on the day he reported for duty, but he would not be entitled to any payment for the period of suspension other than the subsistence allowance already allowed to him. The amount of Rs. 10,000/-, admitted to have been received by him, was asked to be deposited with

the BHEL forthwith, failing which the same was to be recovered from the Petitioner‟s salary.

7. The Petitioner‟s appeal against the aforementioned order of the DA was dismissed by an order dated 24th June 1997 of the Appellate Authority. The Petitioner thereafter submitted a review petition to the Director (Finance), BHEL on 26 th March 1998. Thereafter, the present petition was filed.

8. This writ petition was at one time directed to be listed along with W.P. (C) No. 5721 of 1998. However learned counsel for the Petitioner insisted that the present writ petition may be heard separately.

9. Mr. Ashok Bhalla, learned counsel appearing for the Petitioner submitted that once the second and third articles of charge were held by the IO to be not proved, the logical conclusion was that the first article of charge would also have to be held not proved. According to learned counsel for the Petitioner, the three articles of charge were interlinked and one was integral to the other. It was submitted that the purported confession of the Petitioner was not voluntary and could not be relied upon in the enquiry. According to the Petitioner, the so called confession by the Petitioner was not proved in the enquiry. For this he relied upon the decision in Roop Singh Negi v. Punjab National Bank (2009) 1 SCALE 284. Reliance was placed on the decisions in Union of India v. Gyan Chand Chattar 2009 (8) SCALE 575 and State of Uttranchal v. Kharak Singh (2008) 2 SCC (L&S) 698 to urge that a disciplinary enquiry ought not to be an empty formality and the charges should not be vague. The charges of corruption were serious and were required to be proved beyond preponderance of probabilities. According to Mr. Bhalla, the confession which was not voluntary and one which was not proved, could not have been relied upon to return a finding of guilt on the first article of charge. Reliance was placed on the decision in Moni Shankar v. Union of India 2008 (3) SCALE 455. Reliance is also placed on the decision in Union of India v. K. A. Kittu 2000 (7) SCALE 435 and Canara Bank v. Swapan Kumar Pani (2006) 3 SCC 251. On the scope of judicial review, reliance was placed on the decisions in Union of India v. R. Reddappa (1993) 4 SCC 269 and M.V. Bijlani v.

Union of India (2006) 5 SCC 88.

10. Appearing on behalf of the Respondents, Ms. Raavi Birbal, learned counsel referred to the report of the Inquiry Officer which showed that the confession of the Petitioner was duly proved by the witnesses. She submitted that in the face of the confession nothing more was required to be shown as far as the first article of charge was concerned. She submitted that the Inquiry was a fair one and there was no violation of any procedure in terms of the Rules. That the finding of the IO was a fair one was evident from the fact that the Petitioner had been exonerated in respect of the other two articles of charge. She pointed out that for a charge as serious as the one for which the Petitioner was found guilty, the punishment of stoppage of four increments could hardly be stated to be disproportionate.

11. The scope of interference by the Court in disciplinary proceedings is limited. This Court can certainly examine if there is any procedural irregularity in the conduct of the enquiry itself. Where there is a ground made out of infraction of rules of procedure or violation of principles of natural justice, this Court will interfere to correct the irregularities of procedure. As regards the merits of the case itself, unless there is perversity in the conclusions arrived at by the IO in the sense that such conclusions are not supported by the evidence on record, or are based on no evidence whatsoever, or vitiated by mala fides, the Court cannot interfere. The other area is of disproportionality of the punishment. In M.V. Bijlani v. Union of India the Supreme Court explained the standard of proof in disciplinary proceedings. It was explained in para 25 as under:

"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial, i.e., beyond all reasonable doubt, we cannot be loss sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents, must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations

with which the delinquent officer had not been charged with."

12. In the present case, as far as the first article of charge is concerned, the IO has proceeded on the evidence of Mr. Dhirendera Krishna, General Manager Incharge (Finance), MW-4 as well as Mr. Ashok Kashyap, the hand writing expert, MW-3. MW- 4 confirms that the report which had been countersigned by three officers in his presence was by way of admission of what was stated in the report. Further, the separate notings of Mr. S.S. Sharma and the Petitioner were also marked as documents, ME-6 and ME-7. In ME-7 the Petitioner along with Mr. Deepak Dhawan and Mr. S.S. Sharma had jointly agreed to deposit Rs. 3,20,696.27 by 24th July 1993. In this document, they mentioned that they were extremely sorry for their lapses. The Petitioner had mentioned that he estimated his share to be less than Rs. 15,000/-. In Exhibit ME-6 it was recorded by the Petitioner that „approximately between Rs. 10,000/- to Rs. 12,000/‟ may have been reimbursed to him which he would in turn refund to the company before 24th July 1993. In the cross-examination on behalf of the Petitioner of this witness it transpired that there was no formally appointed investigation committee as such and there were no precise terms of reference. The accused officials were given full opportunity for making corrections in the draft of Exhibit ME-1 (the report of the investigation committee). It also came out in the evidence that there was no coercion or threat to any of the charged officers. It was pointed out by MW-4 that the frequency of the payments should have alerted any prudent official dealing with cash disbursement.

13. The IO noted the submission on behalf of the Petitioner that the above documents were got signed by the management by subjecting him to "great pressure, coercion and threat" that the case will be handed over to the Police or the CBI. Further, the IO noted that there was no evidence of any such coercion, pressure or threat.

14. The IO appears to have correctly analysed the evidence. The approach itself seems to be objective and fair. The Enquiry Officer has been careful to note that there was nothing to show whether the entire amount of over Rs. 3.14 lakh had been paid by the Petitioner against the fraudulent vouchers submitted by Mr. Deepak Dhawan. However,

the confessions of the Petitioner himself showed that there was some collusion/understanding. Although it was urged by learned counsel for the Petitioner that the confessions of the Petitioner ought not to be acted upon, the above evidence of MW-4 makes it abundantly clear that the confession was indeed voluntary. This is not an instance where the conclusions in the enquiry are based on conjectures or surmises. The evidence before the Inquiry Officer did prove the confession. The finding of the enquiry in relation to the first article of charge cannot be said to be perverse or contrary to the records or based on no evidence. Consequently, the decisions in Moni Shankar, K.A. Kittu, M.V. Bijlani, R. Reddappa and State of Uttranchal v. Kharak Singh are distinguishable on facts.

15. The submission that the Petitioner ought to have been exonerated on the first article of charge only because he was exonerated of articles two and three is without merit. A perusal of the three articles of charge shows that they are independent of one another. The confessional statements given in writing by the Petitioner bring out the Petitioner‟s culpability together with that of Mr. S.S. Sharma and Mr. Deepak Dhawan. This by itself was sufficient to prove the first article of charge. Insufficiency of evidence as regards the second and third articles of charge does not make the evidence with regard to the first article of charge either inadmissible or weak. The conclusion of the IO in this regard cannot be said to be improper or improbable.

16. For all the aforementioned reasons, this Court is not inclined to interfere in the matter.

17. The writ petition and the pending application are dismissed, but in the circumstances, with no order as to costs.

S. MURALIDHAR, J JULY 28, 2011 rk