S.P. Parasher vs Rehabilitation Council Of India ...
2011 Latest Caselaw 4707 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 23rd September, 2011


+                         WP(C) NO.12272/2009


S.P. PARASHER                                                 ..... Petitioner
                          Through:      Mr. Sanjay Sharawat, Advocate

                                     Versus

REHABILITATION COUNCIL OF INDIA AND ORS ..... Respondents
                Through: None.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may
       be allowed to see the judgment?                     Yes.

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

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


RAJIV SAHAI ENDLAW, J.

1. The writ petition was dismissed in default on 9th September, 2011.

CM.No. 16095/2011 has been filed for restoration. None appears for the

respondents. However, the writ petition before dismissal was at the stage of

notice to show cause only. This Court had on 11th July, 2011 after hearing

the counsels formed a prima facie opinion that the petition was not

maintainable and the counsel for the petitioner had sought time to argue.

Thereafter, as aforesaid, the petition was dismissed for non prosecution. In

the circumstances it is deemed expedient to, without issuing a notice of the

application for restoration, restore the writ petition to its original position

and to hear the counsel for the petitioner. The writ petition is accordingly

restored to its original position and the counsel for the petitioner has been

heard.

2. The petition impugns the Memorandum dated 18 th September, 2009 of

the respondent no.1 Rehabilitation Council of India (RCI) and all

consequential actions sought to be initiated pursuant thereto. The said

Memorandum is as under:

"Rehabilitation Council of India B-22 Qutub Institutional Area New Delhi

No.6-27/98-RCI 18th September, 2009

Memorandum

On having noticed forged entries in the Original Service Book of Sh. S.P. Parashar, PS to chairperson, RCI, a preliminary inquiry was instituted vide office order No.6-27/98-RCI dated 25.04.2007. the preliminary inquiry was conducted by Shri L.K. Ganguly, the then Deputy Director (Admin), RCI.

The preliminary inquiry has revealed that forged entries at page No.6 and 14 of the Original Service Book were made/caused to have been made by Sh. S.P. Parasher, this is an act of gross misconduct which reflects adversely on the integrity of the official. After having gone through the preliminary inquiry report and taking into consideration the gravity of the misconduct, the chairman, RCI, has approved to reopen the matter. This is in super session to RCI office order No. 5-186/2007-RCI dated 03.10.2008.

Sh. S.P. Parasher is, hereby, asked to show cause as to why disciplinary action should not be taken against him. He may submit his reply within -3 days from the date of receipt of this memorandum.

(Dr. J.P. Singh) Member Secretary."

3. The counsel for the petitioner invites attention to an earlier office

order dated 3rd October, 2008 of the respondent no.1 RCI as under:

"REHABILIATION COUNCIL OF INDIA B-22, QUTAB INSTITUTIONAL AREA NEW DELHI

5-186/2007-RCI 03.10.2008

OFFICE ORDER

The preliminary inquiry (fact finding) which was instituted in the matter of so called forge entries in the original service book of Shri S.P. Parasher, PS to Chairperson, RCI then deputed at Krishna Water Disputes Tribunal (KWDT) was conducted by Shri L.K. Ganguli, then Dy. Director

(Admn) as Preliminary Inquiry Officer vide office order No.6- 27/98-RCI dated 25.04.2007.

The undersigned, as Disciplinary Authority after going through the preliminary inquiry report and made its own inquiry of the facts, decided to disagree with the report and hereby orders the closure of the preliminary inquiry instituted with reference to the above office order.

The order is issued with the approval of the Chairperson, RCI.

(Dr. A.K. Sinha) Member Secretary"

4. The argument of the counsel for the petitioner is that the order dated

3rd October, 2008 closing the inquiry against the petitioner could not have

been reviewed vide Memorandum dated 18th September, 2009 impugned in

this petition.

5. Notice of the petition was issued though no interim relief granted.

6. The matter still being at the show cause notice stage only, it was

during the hearing on 11th July, 2011 (supra) inquired from the counsel for

the petitioner as to why the Court should intervene at this stage and as to

why the departmental proceedings against the petitioner ought not to be

allowed to be concluded and the challenge, if any required, be made against

the final order only. Noticee of a show cause notice is not entitled to

impugn the show cause notice itself and can only respond thereto and the

challenge if any, has to be only to the order passed in pursuance to the show

cause notice.

7. The Division Bench of this Court in Hindustan National Glass and

Industries v. UOI 132 (2006) DLT 454 held that statutory proceedings

pending at the stage of show cause notice ought not to be interfered with in

exercise of discretionary jurisdiction under Article 226 of the Constitution

and which proceedings ought not be to permitted to be bypassed by resort to

writ proceedings under Article 226. Another Division Bench in Pepsico

Restaurants International (I) (P) Ltd. v. Municipal Corporation of Delhi

1995(35) DRJ 616 has also reiterated that the High Court should not

entertain a writ petition against a mere show cause notice except in the case

of patent lack of jurisdiction in the authority issuing the notice or violation

of principles of natural justice. It was held that the High Courts should

leave such a hasty petitioner to pursue the remedy of showing cause against

the notice raising all his contentions for the consideration of the statutory

authority and then take appropriate remedy in the event of the result going

against him. The Supreme Court also in Special Director v. Mohd. Ghulam

Ghouse (2004) 3 SCC 440 has deprecated entertaining the petition

challenging the show cause notices.

8. On the same parity of reasoning, the Supreme Court in, D.P.

Maheshwari v. Delhi Administration (1983) 4 SCC 293, The Cooper

Engineering Limited v. Shri P.P. Mundhe MANU/SC/0360/1975,

National Council for Cement & Building Materials v. State of Haryana

(1996) 3 SCC 206 and this Court in Shops and Commercial Workers Union

v Management of Ayurvedic and Unani Tibbia College Board

MANU/DE/0176/1979 have expressed anguish at entertaining challenges on

preliminary issues and which challenges take long to decide and held that in

order to obviate undue delay in the adjudication of the real dispute, the

preliminary issue as well as the main issue on merit should be decided

together so that there are no multiple rounds of litigations. It was further

held that owing to such challenges at the preliminary stage being

entertained, the final adjudication is delayed.

9. The counsel for the petitioner however has contended that in the

present case the challenge would be maintainable at this stage itself

inasmuch as the disciplinary authority of the respondent no.1 could not have

reviewed the earlier order closing the disciplinary proceedings against the

petitioner and thus the Memorandum dated 18th September, 2009 is without

jurisdiction. Reliance in this regard is placed on -

(i) State of Maharashtra v. Bani Singh (1990) Supp SCC 738.

(ii) State of Punjab v. Chaman Lal Goyal (1995) 2 SCC 570;

(iii) P.V. Mahadevan v. MD T.N. Housing Board (2005) 6 SCC 636.

All the three cases however are on the aspect of effect of delay in

initiating disciplinary proceedings and not relevant on the query

which has been raised.

(iv) R.T. Rangachari v. Secretary of State AIR 1937 PC 27 laying

down that once duly competent and duly authorized officers have

honestly arrived at a decision, their successors in office, after the

decision has been acted upon and is in effective operation, cannot

purport to enter upon a reconsideration of the matter and to arrive at

another and totally different decision.

(v) The State v. Mansinghrao AIR 1958 MP 413 laying down that

after a departmental inquiry is closed and a person is punished, then

it is not proper to punish him again.

(vi) Dwarkachand v. State of Rajasthan AIR 1958 Raj 38 (DB) also

laying down that in the absence of a specific provision for review,

an order of exoneration pursuant to a departmental inquiry is not

open to review.

(vii) P. Andrews v. District Educational Officer 1968 Lab.I.C. 756

(Mysore) (DB) laying down that where the first disciplinary

proceeding was discontinued, it is not within the competence of the

disciplinary authority to exhume those charges and to make them

the subject matter of another disciplinary proceedings, unless there

be a defect or other reason for discontinuance of the first

proceeding.

(viii) Union of India v. Kunisetty Satyanarayana (2006) 12 SCC 28

laying down that where a charge has been inquired into by a

competent authority in a regular inquiry and that inquiry culminated

in exoneration, a second inquiry on that very charge is not

maintainable. However, on facts it was held that since the charges

had not been inquired into earlier, the chargesheet could not be

quashed.

(ix) Dr. Smt Kuntesh Gupta v. Management of Hindu Kanya

Mahavidyalaya (1987) 4 SCC 525 laying down that quasi judicial

authority is not competent to review its own order in the absence of

express statutory power to that effect.

10. The respondent no.1 RCI in its counter affidavit has pleaded that the

petitioner while getting appointment in the respondent no.1 concealed that

he was not a regular employee of District Rehabilitation Centre Scheme

(DRSC) despite knowledge that his name had been struck off from the roll

of Indian National Scientific Documentation (INSDOC) in the year 1992

since DRCS was a project/scheme the status whereof was for specific period

only and employees of which could not be considered as permanent. It is

further pleaded that the preliminary inquiry referred to in the Memorandum /

office order aforesaid was a fact finding inquiry to find out who was

responsible for forging the entries in the original service book of the

petitioner and the Deputy Director (Administration) of the respondent no.1

RCI had submitted a report that the forged entries in the petitioner's original

service book had been made either by the petitioner or by any other on his

direct involvement and influence. It is further pleaded that the Member

Secretary of the respondent no.1 RCI was on study leave from 10th October,

2007 and in his absence Dr. A.K. Sinha took over the charge as Member

Secretary on deputation in February, 2008 and prior to his being relieved

from the respondent no.1 RCI on 3rd October, 2008 hurriedly closed the

inquiry without making any direction for further investigation of the wrong

entries in the original service book of the petitioner. Dr. A.K. Sinha is stated

to have been relieved from the respondent no.1 RCI on 8 th October, 2008.

The Member Secretary of the respondent no.1 RCI has further pleaded that

upon joining back he was surprised to know of such hurried closure of

inquiry and thus reopened the same. It is further pleaded that forging of

entries in the service book is a grave misconduct and closure thereof by a

deputationist was ill conceived and predetermined.

11. The respondent no.1 RCI has vide Memorandum impugned in this

petition merely issued notice to show cause to the petitioner as to why the

disciplinary action should not be taken against him. It is open to the

petitioner to respond to the said notice and to take all these pleas as taken in

the present writ petition. The petitioner however by preferring the present

petition has pre-empted the respondent no.1 RCI from deciding on the said

pleas and/or on the aspect as to whether disciplinary action is to be taken

against the petitioner or not. The process of this Court cannot be allowed to

be abused in such manner. The judgments relied upon by the petitioner also

absolute do not lay down any principle. In the present case, if it is to be

found to be true that the earlier office order dated 3 rd October, 2008 is a

collusive order, the same alone would be a reason to disregard the same.

The report of preliminary inquiry admittedly was against the petitioner.

Though the signatory of the order dated 3rd October, 2008 states that he had

made his own inquiry of facts for deciding to disagree with the report of the

preliminary inquiry but does not give any reasons. RCI is a statutory body

and all its actions have to be guided by reasons and logic and cannot be at

ipsi dixit of its officials.

12. I am even otherwise of the opinion that the respondent no.1 RCI

cannot on such technical pleas be compelled to have petitioner on its roll if

had indulged in forgery. The allegation of forgery cannot be permitted to be

scuttled in the manner as has been done. Moreover, it is also evident that the

office order on the basis whereof the challenge is made was not of the

regular Member Secretary of the petitioner but of a deputationist for a short

period. All these aspects will have to be weighed by the respondent no.1 in

taking a decision whether to initiate disciplinary proceedings against the

petitioner or not.

13. The present is not a case of re-adjudication. There has in fact been no

adjudication till now; only a preliminary inquiry was held; ordinarily such

inquiries are only to arrive at a decision whether to initiate disciplinary

proceedings or not; the suspect is not even involved in such preliminary

inquiry, decision pursuant to such preliminary inquiry cannot be said to be a

quasi judicial decision which cannot be reopened. It would be an

administrative decision.

14. The Supreme Court in, Parmanand Das vs. State of Andhra Pradesh

(1978) 4 SCC 32 and State of Bihar vs. P.P. Sharma AIR 1991 SC 1260

held that the order of sanction of prosecution under the Prevention of

Corruption Act is an administrative act and there is no legal bar for

reconsideration or revocation of the order by the sanctioning authority. The

Division Bench of this Court also in Delhi Energy Development Agency vs.

Abha Tyagi 2002 III AD (Del) 641 held that the sanctioning authority can

reconsider its order and even revise it but only when some reasonable

rationale and valid basis exists therefor i.e. when the earlier order is found to

be suffering from some material infirmity, irregularity or perversity or where

fresh investigation material becomes available to the authority to dictate a

reversal of the first order. The Supreme Court recently in State of Punjab

and Anr v. Mohammed Iqbal Bhatti 2009) 17 SCC 92 also held that in the

matter of grant of sanction for prosecution under Section 197 of the Cr.P.C.,

for exercising jurisdiction at a subsequent stage the express power of review

may not be necessary as such a power is administrative in character. I am

therefore of the opinion that the judgments relied upon by the counsel for the

petitioner are not applicable in the facts of the present case.

15. The present case cannot be thus said to be fall in the category of

"without jurisdiction".

16. The counsel for the petitioner has lastly contended that inspite of this

Court having not stayed the proceedings pursuant to the Memorandum

aforesaid, no proceedings have been taken and the petitioner is being kept on

the tenterhook indefinitely. I may record the contention of the counsel for

the respondent no.1 on 11th July, 2011 was that the petitioner had not even

replied to the notice to show cause issued to him.

17. In the circumstances, while dismissing the petition, the petitioner is

granted time till 15th November, 2011 to reply to the show cause notice vide

Memorandum impugned in this petition and the respondent no.1 is directed

to take a decision thereon on or before 31 st January, 2012 and if decide to

initiate disciplinary proceedings against the petitioner, to conclude the same

also as expeditiously as possible.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) September 23, 2011 M

(corrected and released on 14.10.2011)