Shri Chara Singh Thru Lrs vs Bses Yamuna Power Limited
2011 Latest Caselaw 1462 Del

R-1
*              THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment delivered on : 14.03.2011


                              WP(C) 645/1994


SHRI CHARAN SINGH THRU LRS                           ..... Petitioner


                                         -versus-


BSES YAMUNA POWER LTD.                               ..... Respondents

Advocates who appeared in this case:

For the Petitioner: Mr G D Gupta, Sr Advocate with Mr Piyush Sharma, Adv.

For the Respondents:      Mr Nikhil Singla, Adv. for BSES.


CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
1.   Whether the Reporters of local papers may
     be allowed to see the judgment ?                        No
2.   To be referred to Reporters or not ?                    No
3.   Whether the judgment should be reported
      in the Digest ?                                        Yes

RAJIV SHAKDHER, J (ORAL)

1. A challenge is made in the captioned writ petition to orders dated 05.01.1994 and

22.01.1992 passed by the Appellate Authority and the Disciplinary Authority of

respondent no.1. The effect of the orders is that the erstwhile petitioner i.e., Sh Charan

Singh [who has since passed away and has been substituted on record by his legal

representatives (LRs) i.e., his wife and son] was reduced in rank from a substantive post

of a Meter Reader to that of a Peon; which is decidedly a post lower in rank. I am

informed by Sh G D Gupta, learned senior counsel that the impugned orders have

gravely impacted the pension received by petitioners.

1.1 During the course of my narrative I would be referring to the erstwhile Petitioner

as Charan Singh, while heirs of Charan Singh will be referred to as the Petitioners.

2. The main contention raised in the writ petition is that pursuant to Charan Singh

being charged for having accepted illegal graft in his capacity as the Meter Reader, the

Disciplinary Authority as well as the Appellate Authority did not give reasons in respect

of the findings which they arrived at qua Charan Singh. In addition to this, Mr Gupta

has also raised another point, which is, that there could have been no reduction in rank

as Charan Singh who was initially employed as a Peon had thereafter through open

competition got himself directly recruited as a Meter Reader. In other words, the

contention was that Charan Singh had been appointed to a substantive post of Meter

Reader and hence, could not have been reduced in rank to that of a Peon as was sought

to be directed by the impugned order. However, Mr Gupta fairly conceded that this

issue was for the first time raised before the Appellate Authority.

3. In order to adjudicate upon the writ petition, following facts need to be noticed.

4. Charan Singh on being recruited in the substantive post of a Meter Reader vide

order dated 07.06.1978, was granted the pay-scale of Rs 1200-2190.

4.1 By virtue of memo dated 5/23.03.87, an imputation was made that Charan Singh

had during the period 1982-83 failed to maintain absolute integrity and devotion to duty

and acted in a manner unbecoming of a public servant in as much as he had extracted Rs

1000 each from Sardar Charanjeet Singh and Sardar Natha Singh, husband of Smt

Surender Kaur, Proprietor of M/s Surendra Electric Works for noting down the second

and subsequent meter readings of I.P. connection bearing dummy K.Nos. 231,232, 233

and 234, which he knew, to be illegally installed and that he failed to report these two

cases which were cases of illegal connection, to the concerned higher authority. It was

thus alleged that Charan Singh had committed a gross misconduct, and thereby,

contravened Rule 3(1)(i)(ii) & (iii) of the CCS (Conduct) Rules, 1964 (hereinafter

referred to as the „CCS Rules‟).

4.2 A chargesheet was drawn up in terms of the aforesaid allegation. Alongwith the

chargesheet, a statement of imputation of misconduct or misbehavior in support of

article of charge was also enclosed. List of documents as well as the list of witnesses

who would prove the charge were also enclosed.

4.3. Pursuant to the same on 26.09.89 an Enquiry Officer was appointed, whereupon

an opportunity was given to Charan Singh to file his reply. After observing due process,

the Enquiry Officer vide report dated 30.03.1991 came to a conclusion that the charge

framed against Charan Singh stood proved.

4.4. Consequently, a show cause notice dated 30.10.1991 (in short „SCN‟) was issued

proposing a major penalty against Charan Singh. Charan Singh was called upon to file

his reply in respect of the said show cause notice. A reply dated 16.12.1991 was filed by

Charan Singh. By virtue of the said reply Charan Singh also sought a personal hearing

in the matter.

4.5. The Disciplinary Authority after considering the reply and upon due hearing

came to a conclusion that the findings reached by the Enquiry Officer were fair and

reasonable, and that, Charan Singh was guilty of misconduct, as charged. Thus, the

Disciplinary Authority concluded that the penalty as proposed in the show cause notice

was in order.

4.6. Aggrieved by the order of the Disciplinary Authority, Charan Singh preferred a

writ petition under Article 226 of the Constitution of India. The said writ petition was

numbered as: CWP 780/1992. This Court by an order dated 22.02.1992 dismissed the

writ petition on the ground that an alternative remedy was available to Charan Singh.

4.7. In view of the orders passed in CWP 780/1992, Charan Singh preferred an

appeal with the Appellate Authority. The Appellate Authority by an order dated

21.02.1992, sustained the order of the Disciplinary Authority vide its order dated

05.01.1994.

4.8. Only to be noted that, since there was some delay in the Appellate Authority

passing its order, Charan Singh had filed in the interregnum, one more writ petition

being CWP No. 2680/1993. Notice in that writ petition was issued. It was during the

pendency of that writ petition that the Court was informed on 06.01.1994 that the

Appellate Authority had passed an order on the appeal of Charan Singh on 05.01.1994.

5. The captioned writ petition has been filed, as noticed above, impugning the order

of the Appellate Authority dated 05.01.1994 and that of the Disciplinary Authority dated

22.01.1992. Mr Gupta, the learned senior counsel has assailed both orders, on the

ground that there are no reasons contained in the orders of both the Disciplinary

Authority as well as that of the Appellate Authority. He has, therefore, submitted that

the orders are liable to be set aside on this short ground alone. In support of his

submissions he has relied upon a Division Bench judgment of this Court in the case of R

K Garg vs Union of India & Ors passed in CWP No. 4711/2001, dated 09.09.2009.

6. As against this, Mr Nikhil Singla, learned counsel appearing for the contesting

respondent/BSES which is successor to Delhi Vidyut Board (in short „DVB‟) has

submitted that the Enquiry Officer has dealt with the charge in detail after giving due

opportunity to Charan Singh. The evidence which was placed on record has been

adequately dealt with and, therefore, the Disciplinary Authority as well as the Appellate

Authority were entitled in law to base their decision in turn on the findings recorded by

the Enquiry Officer. Mr Singla in support of his contentions has thus, relied upon

Regulation 7(9) and 7(10) of the Delhi Electric Supply Undertaking (DMC) Service

(Control and Appeal) Regulations, 1976 (hereinafter referred to as the „Regulations‟).

6.1. It is Mr Singla‟s contention that since the disciplinary authority did not

"disagree" with the findings of the Enquiry Officer "detailed" reasons were not required

to be given. Mr Singla also relied upon a judgment of the single Judge of this Court in

the case of Jag Ram vs BSES Yamuna Power Limited passed in CWP 2888/2008 on

09.04.2008.

7. I have heard the learned counsel for the parties and perused the record. The only

contention which was finally pressed before me by Mr Gupta was with regard to the

failure of the authorities below to furnish reasons in coming to the conclusions which

they did in their respective orders. There is no dispute that the Enquiry Officer has dealt

in detail with the contentions raised by Charan Singh; the merits of which are not

assailed before and correctly so, as that cannot be the scope of my jurisdiction under

Article 226 of the Constitution of India. The point at issue is that: on Charan Singh

impugning the enquiry report and the conclusions arrived at by the Enquiry Officer, was

the Disciplinary Authority and the Appellate Authority in turn required to give reasons

against each of their findings. For this purpose, one would have to examine the scope

and the effect of the Regulations which are sought to be relied upon both by the learned

counsel for the petitioner as well as that the respondent. Regulation 7(9) and 7(10) are

therefore for the sake of convenience are extracted hereinbelow:-

"7(9) The Disciplinary Authority, shall if it is not the Inquiring Authority, consider the record of inquiry and record its findings on each charge.

7(10) If the Disciplinary Authority, having regard to its findings on the charge, is of the opinion that any of the penalties specified in regulation 5(b) should be imposed, it shall

(a) furnish to the Officer or other employee a copy of the report of the Inquiring Authority and, where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority; and

(b) give him a notice stating action proposed to be taken in regard to him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed action."

7.1 To deal with Mr Singla‟s submission, let me begin with my construct of

Regulation 7(10). Regulation 7(10) envisages two situations: First, where the

Disciplinary Authority is the enquiring authority. Second, where the Disciplinary

Authority is not the enquiring authority. In the first scenario, based on its findings as the

enquiring authority, if the Disciplinary Authority is of the opinion that a major penalty is

to be imposed on the charged officer, it shall supply a copy of the report to the charged

officer, giving him notice as regards the proposed penalty it seeks to impose. An

opportunity will have to be granted to the charged officer to represent if he so chooses

against the proposed action.

7.2 In the second scenario where the Disciplinary Authority is not the enquiring

authority and it is of the opinion that a major penalty is to be imposed, it is obliged to

furnish a "statement of its findings" to the charged officer giving him notice of the

proposed action, while calling upon him if he so chooses, to represent against the same

within a specified time. In case the findings of the Disciplinary Authority are not in

consonance with those of the Enquiring Authority, the statement of its findings is to be

accompanied with brief reasons setting out the basis of its disagreement with the

findings arrived at by the Enquiring Authority.

7.3 In the instant case there is no dispute that the Disciplinary Authority was not the

Enquiring Authority. It is also not in dispute that the Disciplinary Authority proposed a

major penalty under Regulation 5(b)(iv). It is also not disputed that the Disciplinary

Authority was in agreement with the findings of the Enquiring Authority. Therefore,

could it be said that the expression of "statement of its findings" appearing in sub-

regulation (a) of Regulation 7(10) would mean that the Disciplinary Authority had to

give bare conclusions without backing its findings with reasons. In other words, as

contended by Mr Singla "brief reasons" had to be given only if the Disciplinary

Authority disagreed with the findings of the Enquiring Authority. The answer, in my

view, would lie really in Regulation 7(9) which is a precursor to Regulation 7(10).

Regulation 7(9) obliges the Disciplinary Authority where it is not an enquiring authority

to "consider" the "record of inquiry" and only thereafter "record its findings" on

"each charge". Consideration of record would entail an exercise which would

necessarily involve appreciation of both the material on record and the findings arrived

at by the inquiry officer. It is only after such an exercise is carried out that the

Disciplinary Authority "records its findings" on "each charge". The expression used is

findings as against conclusion. Though findings arrived at by Disciplinary Authority

can be both of fact and law, it necessarily involves a determination of matters based on

findings on record. As against this, while conclusions can also be those of fact and law,

they are really inferences drawn from subordinate or evidentiary facts. (See Black‟s Law

Dictionary, 6th Edition at Page 290). The distinction between two, though fine is quite

prominent to a discerning eye. The way Regulation 7(9) is crafted, makes it quite clear

that where, the Disciplinary Authority is not the Enquiring Authority, not only is it

required to consider the record of inquiry but is also obliged to "record its findings" on

"each charge". The presence of the expression "its findings" leaves no doubt in my

mind that the Disciplinary Authority is required to do a little more than just give its

conclusions based on the inquiry report. The little more that is expected of the

Disciplinary Authority is, to arrive at its own determinations from the evidence on

record and not merely replicate what appears in the report of the inquiry officer.

Whether the disciplinary authority has carried out such a determination can only be

known if some modicum of reasons are furnished by the Disciplinary Authority.

7.4 The Disciplinary Authority by appraising the material on record would arrive at a

particular finding; however the link between the material on record and the finding

would be the reasons. This vital link is decidedly missing in the order of the

Disciplinary Authority. Mr Singla attempted to persuade me to come to a contrary

conclusion by stating that there are brief reasons in the order. I have perused the order.

I find that there are no reasons. The reasons, as understood in law, should demonstrate

application of mind to the material on record which persuades the authority concerned to

come to a given finding. Reasons therefore, in my view, are neither palpable or apparent

on reading of the order. The situation, in my view, did not improve before the Appellate

Authority either. It seemed to have committed a similar error.

7.5 In so far as Jag Ram‟s case is concerned, in my view, the same has no

applicability as it reiterates the principle, that in the case of a domestic enquiry, the

Court is not concerned with the decision, but with the decision making process. The

proposition cannot be quibbled with. The instant case pertains to a different aspect as

etched out above.

8. In these circumstances, I have no hesitation in quashing the orders both of the

Disciplinary Authority dated 22.01.1992 and that of the Appellate Authority dated

05.01.1994. The result of the same would be that the Disciplinary Authority shall once

again based on the material on record consider the report of the enquiry officer

alongwith the reply of Charan Singh which is already on record. Since, Charan Singh

has expired, notice will have to be issued by the Disciplinary Authority to his LRs.

9. In view of the fact that more than seven years have passed, I deem it fit to direct

that the entire exercise be concluded within a period of two months from today, which

would include a decision by the Appellate Authority, in case the petitioners, are faced

with an adverse decision.

10. At this stage, Mr Gupta says that he wishes to confine his ground of challenge

only to the first aspect i.e., the failure of the Disciplinary Authority and the Appellate

Authority to supply reasons in the impugned order. The other ground Mr Gupta says

was admittedly not taken before the Disciplinary Authority therefore the Appellate

Authority would also have had no occasion to deal with it since it had not been

considered by the Disciplinary Authority. Mr Gupta further submits that in order to

expedite the proceedings, respondent no. 1 may treat the writ petition itself as a

representation of the LRs. It is directed accordingly.

11. With the aforesaid directions, the writ petition is disposed of. Parties shall bear

their own costs.

MARCH 14, 2011                                       RAJIV SHAKDHER, J.
mb