Sharad Chandra Sharma vs Delhi Transco Limited & Ors.
2011 Latest Caselaw 3617 Del

          IN THE HIGH COURT OF DELHI AT NEW DELHI


                                 W. P. (C) 2973/1999

                                                   Reserved on: July 19, 2011
                                                   Decision on: July 29, 2011

  SHARAD CHANDRA SHARMA                                 ..... Petitioner
                Through:                Mr. R.K. Saini with
                                        Mr. Sitab Ali Chaudhary, Advocates.

                   versus


  DELHI TRANSCO LIMITED & ORS.              ..... Respondents
                  Through:  Mr. S.K. Dubey with
                            Mr. Nitin Kumar Sharma, 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

29.07.2011

1. The challenge in this writ petition is to an order dated 20th April 1998 suspending the Petitioner from service and the subsequent order dated 24th April 1998 passed by the Delhi Electric Supply Undertaking („DESU‟), which was subsequently reconstituted as the Delhi Vidyut Board („DVB‟), dismissing the Petitioner from service. It may be mentioned that the Respondent has since been substituted by the Delhi Transco Limited („DTL‟) by an order dated 11th November 2008 of this Court.

2. The Petitioner was initially appointed on 7th October 1968 as a Junior Clerk in the DESU. He was subsequently confirmed in the said post by an order dated 21st June 1972. By an order dated 14th May 1985 he was promoted to the post of Senior Clerk and was assigned the job of a Vigilance Inspector on 10th July 1985. The Petitioner worked in the Vigilance Department up to 22nd October 1990. The Petitioner states that his work as Vigilance Inspector was appreciated and he received a cash award of Rs.

500/- by letter dated 26th July 1990 of the Assistant General Manager (A). He was again posted in the Vigilance Department of the DVB by an order dated 10th January 1997 and assigned the job of Sub Inspector in the same scale of Senior Clerk. The Petitioner states that after the Petitioner was assigned the above job a time bound case was sent to him by the Director of Vigilance in February 1997 for fixing the responsibility upon the officers of the DVB for not lodging an FIR for more than four years against M/s. Subh Metal (P) Limited. The Petitioner states that he submitted a final report after investigation wherein a number of officers of the DVB were identified for not lodging the FIR against the said company. Of the 11 officers identified by the Petitioner, one of them was proceeded against and despite the registration of a vigilance case and a major penalty proceedings against him, he continued working as Assistant Engineer in the zone. It is stated by the Petitioner that by way of reprisal the Petitioner was trapped by the anti-corruption branch on 16th April 1998 on false and motivated grounds.

3. On 20th April, 1998 an order was passed placing the Petitioner under suspension under Regulation 4 (2) (A) of the DESU (DMC) Service (Control & Appeal) Regulations, 1976 (`Regulations‟) noting the arrest of the Petitioner on 16th April, 1998 in a trap case and further that an FIR No. 10 had been registered against the Petitioner. This was followed by a second impugned order dated 24 April, 1998 in which the Petitioner was dismissed from service without holding any enquiry under the Regulations. The Additional General Manager who passed the order opined that it would not be reasonably practicable to hold a departmental enquiry following the procedure prescribed under Regulations 7, 8 and 9 of the Regulations.

4. The Petitioner‟s appeal against the said decision was dismissed by the Appellate Authority on 8th January 1999.

5. Mr. R.K. Saini, learned counsel appearing for the Petitioner, submitted that the impugned orders dated 20th April 1998 and 24th April 1998 were passed by the Additional General Manager („AGM‟) who was not the appointing authority of the Petitioner and therefore not competent to pass the said orders. Secondly, the reasons given by the AGM (A) in the impugned order dated 24th April 1998 for not holding any

enquiry were untenable in law. Referring to Regulation 7, Mr. Saini submitted that the dispensing with the enquiry was not a mechanical exercise. There had to be valid reasons explaining why it was not practicable to hold the enquiry. Mr. Saini referred to the decisions in Union of India v. Tulsiram Patel (1985) 3 SCC 398 and Satyavir Singh v Union of India (1985) 4 SCC 252. He also relied upon the decision in S.P. Agarwal v. Lt. Governor of Delhi [decision dated 28th November 2007 in W.P. (Civil) No. 1021 of 1997]. It was pointed out that the Petitioner was ultimately acquitted in the criminal case. The prosecution witness in the criminal trial actually supported the case of the Petitioner. The acquittal was not appealed against and has become final.

6. Appearing on behalf of the Respondents Mr. S.K. Dubey, learned counsel also referred to the decision in Satyavir Singh v. Union of India and submitted that the reasons given in the impugned order by the AGM (A) for dispensing with the enquiry were adequate.

7. The impugned order dated 24th April, 1998 gives the following explanation for dispensing with the enquiry:

"The mere fact that it would be possible to go through the motions of conducting an enquiry appointing an Inquiry Officer and calling the witnesses etc. is not sufficient to be able to say that it is reasonably practicable to hold an enquiry. But it is necessary to consider the actual likelihood of successfully conducting an impartial enquiry keeping in view the prevailing circumstances of the case. So long as an Officer of Vigilance Unit remains an employee; even under suspension he is able to exert influence through his colleagues; benefitting from a misguided loyalty among them and through junior officers who are bound to apprehend that they might be at some time in future have to work at the same place. Further, it is possible that employee may not give evidence in the face of organizational hostility and the consequent threat of discriminatory treatment in future. In these circumstances, Shri S.C. Sharma is in an unusually advantageous position and would, therefore, normally be able to stall and delay the proceedings, influence the enquiry and prevent it being conducted in an effective and impartial manner. Shri S.C. Sharma was occupying an important position in the Vigilance Department meant for checking corruption and maintains highest degree of integrity but the trap was laid by the Anti-Corruption Branch, Government of India when he was enjoying the powers and owing the responsibility while working as an Investigating Officer in Vigilance Department.

The fact and circumstances of the case are such that it would not be reasonably practicable to hold the department of enquiry against Shri S.C. Sharma by following the prescribed procedure under Regulation 7, 8 & 9 of DESU (DMC) Service (C&A) Regulations, 1976."

8. The circumstances in which an enquiry can be dispensed with was first examined in the Union of India v. Tulsiram Patel. It was explained that the reasons to be recorded for not holding an enquiry before dismissing an employee from service had to be both relevant and germane. Further, if at one stage it was not practicable to hold an enquiry the DVB would still have to consider whether it was practicable to hold the enquiry at a subsequent point in time. These reasons were judicially reviewable. The relevant observations in this regard read as under: (SCC, p. 503) "....whether it was practicable to hold the enquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation."

9. Further, the Court held as under: (SCC, p. 505)

"that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional."

10. On the question of judicial review, the Court held as under: (SCC, p. 507)

"138. Where a government servant is dismissed, removed or reduced in rank by applying Clause (b) or an analogous provision of the service rules and the approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether Clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by Clause (3) of Article 311 to the disciplinary authority's decision that it was not

reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by Clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to Clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere." (emphasis supplied)

11. The Supreme Court again examined the issue in Satyavir Singh v. Union of India. It was explained in the said judgment as under: (SCC, p. 261)

"Clause (2) of Article 311 gives a Constitutional mandate to the principles of natural justice and the audi alteram partem rule by providing that a civil servant shall not be dismissed or removed from service or reduced in rank until after an inquiry in which he has been informed of the charge against him and has been given a reasonable opportunity of being heard in respect of those charges."

12. On dispensing with the enquiry, the Court explained as under: (SCC, p. 269)

"There are two conditions precedent which must be satisfied before Clause (b) of the second proviso to Article 311(2) can be applied. These conditions are:

(i) there must exist a situation which makes the holding of an inquiry contemplated by Article 311(2) not reasonably practicable, and

(ii) the disciplinary authority should record in writing its reason for its satisfaction that it is not reasonably practicable to hold such inquiry."

13. The Court further explained as under: (SCC, pp. 270-71)

"(58) The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. The disciplinary authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of the prevailing situation that Clause (3) of Article 311 makes the decision of the disciplinary authority on this question final.

......

(60) The disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the civil servant is weak and must fail. .......

(63) The recording of the reason for dispensing with the inquiry is a condition precedent to the application of Clause (b) of the second proviso. This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. It is, however, not necessary that the reason should find a place in the final order but it would be advisable to record it in the final order in order to avoid an allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated." (emphasis supplied)

14. There can be no manner of doubt that as far as the present case is concerned, the dispensing with of the enquiry was not for good reasons. The reasons given only indicates that the authority was concerned about the possible outcome of the enquiry and not about the impracticality of holding the enquiry. There is nothing indicated to support the conclusion that the Petitioner would be able to exert influence on his colleagues who would display "a misguided loyalty to him" and that they might apprehend that "they might at some time in future have to work at the same place". The other reason is that "the employees may not give evidence in the face of organisational hostility and the consequent threat of discriminatory treatment in future". The above reasons are pure surmises and conjectures. It is inconceivable that one employee in an entire department can somehow influence every other employee into speaking in his favour. The above reasoning also casts a sweeping or blanket suspicion on all employees which does not appear to have a factual basis. It is not as if

the authority has cited previous instances of enquiries not being able to be held against officers of the department because of the other employees, cited as witnesses, turning hostile.

15. The wording of the applicable regulations also does not support the stand of the Respondents. Regulation 10 which has been invoked by the Respondent reads as under:

"10. Notwithstanding anything contained in Regulations 7, 8 and 9.

i) Where an officer or other employee is removed or dismissed on the ground of conduct which has led to his conviction on criminal charge; or

ii) where the authority empowered to remove or dismiss an officer or other employee, is satisfied for reasons to be recorded in writing that it is not reasonably practicable, to follow the procedure prescribed in these regulations, the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit."

16. The present case is not one which justifies the invoking of Section 10 (2) of the Regulations. The factual situation is very different from the situation that prevailed in Satyavir Singh or Tulsiram Patel or even in Sahadeo Singh v. Union of India (2003) 9 SCC 75 and Southern Railway Officers Association v. Union of India 2009 (11) SCALE 263. Apart from mere surmises and conjectures, nothing has been shown by the Respondent to justify not holding an enquiry before dismissing the Petitioner from service.

17. In view of the above conclusion, this Court does not consider it necessary to examine if the order is in any event bad in law because it was passed by an authority who was not the appointing authority of the Petitioner.

18. For the aforementioned reasons the writ petition is allowed and the impugned orders dated 20th April, 1998 and 24th April, 1998 issued by the DVB are set aside. The Petitioner has, during the pendency of this writ petition, attained the age of superannuation. Consequently, there can be no order for his reinstatement. However, the Respondent will, on the basis that the Petitioner was not removed from service

with effect from 24th April 1998, calculate the arrears of salary, wages and other allowances admissible to him, and pay the entire amount within a period of eight weeks from today together with costs of Rs. 10,000/-. If the amount is not paid within the aforementioned period, the Respondents will pay the same together with simple interest @ 6% per annum on the said sum for the period of delay. The Petitioner‟s other consequential reliefs including pension and retiral benefits will also be calculated and whatever is admissible in law will be paid to him within the same period.

19. The writ petition is allowed in the above terms.

S. MURALIDHAR, J.

JULY 29, 2011 rk