Delhi High Court

Bses Rajdhani Power Ltd. vs Sh. S.S. Gupta on 9 May, 2011

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 09.5.2011

+                  R.S.A.No. 155/2007


BSES RAJDHANI POWER LTD.                         ...........Appellant

                         Through:    Mr.Nikhil Singla, Advocate.

                   Versus

SH. S.S. GUPTA                                 ..........Respondent
                         Through:    Mr.Prem Chand, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

20.03.2007 which had reversed the finding of the trial judge. The

trial judge vide judgment and decree dated 03.08.2001 had

dismissed the suit filed by the plaintiff Sh. S.S. Gupta which had

sought declaration and mandatory injunction to the effect that the

enquiry report filed against him is illegal and violative of the rules

of natural justice; further the penalty of 10% reduction in his

pension for a period of three years also be declared as illegal and

arbitrary. The impugned judgment had reversed this finding. The

suit of the plaintiff stood decreed.

2. The plaintiff had joined the service of the defendant i.e.

Delhi Vidyut Board as an Inspector in 1962. After 31 years of

service, he retired as an Assistant Engineer (Electrical) on

29.02.1992. His service record was unblemished. Contention is

that 15 days before his retirement, he was charge sheeted on the

allegation that he had sanctioned four electricity connections

without verifying the proof of lawful occupancy as was required

under the provisions of DECO 1959. Two other charges were

framed against him. After the enquiry, the Enquiry Officer

exonerated him from the other charges but held him guilty for

sanctioning of four electricity connections without verifying the

proofs of lawful occupancy. The Disciplinary Authority thereupon

imposed the penalty of 10% cut in the pension of the plaintiff for

five years. In appeal, the period of penalty was reduced from 5

years to three years. The acts of the defendant were

unreasonable; no financial loss had accrued to the defendant;

there was no charge of mala fide; pension rules had also been

violated. Suit was accordingly filed seeking a declaration to this

effect that the enquiry conducted against him was illegal and the

consequential punishment imposed was also illegal.

3. In the written statement, the allegations were denied. It

was stated that the enquiry was not conducted in accordance with

the rules of natural justice; all opportunities to defend were

granted to the plaintiff. It was stated that the plaintiff was

involved in a vigilance case of 1992 where the major penalty had

been imposed upon him on 08.12.1997. The plaintiff was guilty of

the charge for which he had been charge sheeted in the present

case as well; without verification of the lawful occupancy of the

person which was mandatory in terms of the rules of the DECO

1959, the electricity connections had been granted to four

persons. The enquiry report had been confirmed by the

Disciplinary Authority and the Appellate Court had reduced the

penalty imposed upon the delinquent.

4. On the pleading of the parties, the following five issues were

framed:-

"(1) Whether the findings of enquiry conducted by DVB against the plaintiff unfair, improper and illegal and against laws?

(2) Whether the findings of enquiry are not based upon the evidence recorded by the enquiry officer? OPP

(3) Whether the decision of stoppage of pension passed in accordance with the rules of DVB? OPP (4) Whether the plaintiff is entitled to a decree of declaration and mandatory injunction as prayed in the plaint? OPP (5) Relief."

5. Oral and documentary evidence was led. The suit of the

plaintiff was dismissed by the trial judge.

6. In appeal, the impugned judgment had reversed this finding.

Suit of the plaintiff stood decreed. The court was of the

considered view that Rule 9 of CCS (Pension) Rules 1972 have

been violated; the plaintiff had not been held guilty of any corrupt

practice; the term „grave misconduct‟ had been expounded.

7. This is a second appeal. It had been admitted and on

28.05.2007, the following substantial question of law was

formulated:-

"1. Whether the conduct of the respondent does not tantamount to grave misconduct or negligence as envisaged in Rule 9 of CCS (Pension) Rules, 1972?"

8. On behalf of the appellant, it has been urged that the

impugned judgment had wrongly interpreted the provisions of

Rule 9 of the CCS Rules; even presuming that the act of the

appellant was not a gross misconduct, the fact that he had without

verification given four electric connection is clearly a case of

negligence; Rule 9 permits the department in such cases of

negligence to deduct pension which had rightly been done.

Impugned judgment holding otherwise is an illegality.

9. Arguments have been countered. It is pointed out that the

impugned judgment had correctly noted that no pecuniary loss

had been suffered by the department; it cannot be a case of either

grave misconduct or negligence.

10. Rule 9 of the CCS Rules reads as under:

"(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re- employment after retirement :

Provided that the Union Public Service Commission shall be consulted before any final orders are passed :"

11. It is not the case of the appellant that any pecuniary loss has

been caused to the government. It is, however, not in dispute that

the petitioner has been held guilty of sanctioning four electricity

connections without verifying and taking proof of lawful

occupancy. It is also not in dispute that this was a part of his duty

and without verification of the lawful occupancy the electricity

connections could not have been granted.

12. Negligence has been defined in the Oxford English

Dictionary as follows: l

"Lack of attention to what to be done; failure to take proper or necessary care of a thing or person; lack of necessary or reasonable care in doing something; carelessness; disregard of a thing or person; failure to take notice."

13. This definition in the context of the present case clearly pre-

supposes a negligence. The act of the petitioner in granting

electricity connection in favour of four persons without verifying

as to whether they were lawfully living in that premises or not was

more than a mere carelessness; it was a definite shortfall of his

duty; plaintiff was required to verify and check the lawful

occupancy of the occupants before granting electricity

connections to which he had never failed to do. His act in not

doing so was a negligent act. The department had correctly

imposed the penalty of a deduction of 10% from his pension for a

period of three years. The trial judge had correctly endorsed this

finding. Impugned judgment holding otherwise is perverse; it is