Delhi High Court

Bses Yamuna Power Ltd vs Torhi Singh on 24 April, 2012

Author: A.K.Sikri

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 24th April, 2012

+                              LPA No.539/2011

      BSES YAMUNA POWER LTD                   ..... Appellant
                  Through: Mr. Nikhil Singla, Adv.

                                 Versus
      TORHI SINGH                                  ..... Respondent

Through: Mr. Apurb Lal & Mr. Daleep Singh, Advs.

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, ACTING CHIEF JUSTICE

1. The respondent workman herein was served with charge-sheet

dated 23.09.1998 at the time when he was serving with erstwhile Delhi

Electric Supply Undertaking (DESU) as an Inspector. In the charge-sheet,

the imputation against him was that he had energized a commercial light

connection sanctioned against K.No.614-121778 in favour of one Sh.

Girbar Singh at premises of one Mr. Rakesh Kumar on the main road of

Babarpur and not at premises No.20-A-3/17, Vishwakarma Road,

Babarpur, Shahdara where it was actually to be energized.

2. To put it otherwise, it is not in dispute that the electricity

connection had been sanctioned by the officials of the Commercial

Department of DESU and the only allegation against the respondent

workman was that he had installed the said connection at the wrong

address at the instance of one Mr. Rakesh Kumar in whose shop

electricity connection was in fact energized and that shop was not at the

address for which the electricity connection was sanctioned.

3. Inquiry was held against the respondent workman. The appellant

DESU examined two officials as well as the landlord of the shop of

Rakesh Kumar where the electricity connection was actually energized.

The respondent workman on the other hand examined one Mr. Jagmal

Singh, father of the Mr. Rakesh Kumar in whose shop the electricity

connection was installed. The respondent workman also examined his

senior official Mr. Tota Ram who had permitted installation of electricity

connection at the shop of Mr. Rakesh Kumar after inspecting the

premises along with the respondent workman. In addition, the respondent

workman also examined one Mr. H.S. Das who was earlier employed

with DESU and Mr. H.S. Das explained the procedure to be followed for

providing new electricity connection.

4. On the basis of evidence on record, the Inquiry Officer gave his

report dated 31.07.1990 holding the respondent workman guilty of the

charge. We may record that there was another charge against the

respondent workman that he had accepted bribe of `10,000/- while

energizing the electricity connection but this charge was not proved in the

inquiry as per the report of the Inquiry Officer.

5. On the charge that the electricity connection was energized at the

wrong address, Disciplinary Authority imposed punishment of removal of

the respondent workman from service.

6. The departmental appeal preferred by the respondent workman

before the Appellate Authority also failed. Challenging the order of the

Disciplinary Authority as well as the Appellate Authority, the respondent

workman approached this Court by means of writ petition filed under

Article 226 of the Constitution of India. The case of the respondent

workman was that there was no evidence on the basis whereof charge

could be held to be proved and it was the case of 'no evidence' and thus

the finding of the Inquiry Officer / Disciplinary Authority as well as the

orders of the Disciplinary Authority and Appellate Authority were

perverse and bad in law. The learned Single Judge has accepted this

contention of the respondent workman and which has resulted in allowing

the writ petition of the respondent workman. Vide impugned order dated

07.03.2011, the order of removal from service of the respondent

workman has been set aside and the respondent workman is held entitled

to all consequential benefits including that of reinstatement in service, if

he has already not crossed the age of retirement. Challenging this order,

the present appeal is preferred by the appellant.

7. It is the contention of the learned counsel for the appellant that the

finding of the learned Single Judge holding that it was a case of no

evidence is erroneous. It is further submitted that there was some

evidence on record which was the basis of findings relied upon by the

Inquiry Officer holding the respondent to be guilty of charge. For this

purpose, the learned counsel has relied upon the testimony of SW-2 Sh.

Lalu Singh and DW-2 Sh. Tota Ram which is to the following effect:

"i) SW-2, Sh. Lalu Singh, the landlord of the shop in his

evidence clearly stated that he was present at the

shop when the connection was being energized and he

had objected to the same.

ii) DW-2, Sh. Tota Ram, Asst. Engineer, working as

Zonal Suptt., in-charge of the area during the time of

incident claimed to visit the premises himself since

there was lot of pressure from the local political

leaders and deposed that there was a name plate at

the given address which bore the name and address of

property where connection had to be energized.

WHEREAS Sh. Torhi Singh in deposition stated that

„in the absence of any municipal house numbers

having been allocated or distinctively

displayed/written/painted on the house in the rural

areas there was no option left for me except to rely on

the version of the person by whom the receipt had

been shown to me‟. He has stated the same thing in

his statement of defence also.

iii) DW-2, stated in his deposition that while locating the

address they made enquiries and sought directions

from the residents of the area, WHEREAS Sh. Torhi

Singh in his statement of defence stated that the

concerned person approached him in his office with

all the requisite documents and after being satisfied

with them he accompanied them along with DW-2 to

the site."

On this basis, it is argued that once there was some evidence which

appeared on record to prove the charge, it was not permissible for the

Court to either go into the sufficiency of the said evidence or sit as an

Appellate Authority and examine as to whether on the basis of aforesaid

evidence charge was proved or not. Learned counsel for the appellant has

also relied upon the judgment dated 09.04.2008 of the learned Single

Judge of this Court in W.P.(C) No.2888/2008 wherein the law is culled

out on the basis of various judgments of the Supreme Court as under:

"8. The objective of judicial review is to ascertain that a person received a fair treatment and objective is not to re-appreciate the entire pleas and evidence and draw inferences again. The Apex Court in (1995) 6 SCC 749 B.C. Chaturvedi Vs Union of India at page 759 in para 12 had held as under:

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives

fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court.

When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as Appellate Authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The

Court/ Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."

8. There is no quarrel about the proposition of law advanced by the

learned counsel for the appellant. The only question is as to whether, it

was a case where there was some evidence on the basis of which it could

be established that the respondent workman was guilty of the imputation

leveled against him or it was a case of no evidence / perverse findings.

We find that even the learned Single Judge was conscious of the fact that

the Court was not to interfere with the decision of the Inquiry Officer /

Disciplinary Authority, once it is held that the concerned employee is

guilty on the basis of some evidence adduced against him and further that

sufficiency or insufficiency of that evidence was not to be examined by

the Court. However, the learned Single Judge noted that mere ipse dixit

of the inquiry cannot be a substitute of evidence as held by the Supreme

Court in Narender Mohan Arya Vs. United Insurance Company Ltd.

(2006) 4 SCC 713. After taking note of the legal position, the learned

Single Judge examined the inquiry record from this angle. The material

on record shows that the electricity connection was sanctioned in the

name of one Mr. Girbar Singh as was evident from the statement of

complainant Mr. Nepal Singh himself who had deposed that he knew Mr.

Girbar Singh very well and when he was shown the documents available

on file, as per which Mr. Girbar Singh had allegedly requested for

electricity connection; he deposed that those documents were not signed

by Mr. Girbar Singh and the signatures did not appear to be genuine. He

also deposed that in reality, one Mr. Rakesh Kumar was the beneficiary in

whose shop the electricity connection had been energized. From this, it is

concluded by the learned Single Judge and rightly so that the electricity

connection had been sanctioned by the official of Commercial

Department of DESU on the basis of some forged documents and it is

possible that the same was done at the instance of Mr. Rakesh Kumar.

9. Admittedly, in so far as sanction of the electricity connection in the

name of Mr. Girbar Singh is concerned, this was an act of the

Commercial Department of DESU in which the respondent workman had

no role to play. We state at the cost of repetition that in so far as

respondent workman is concerned, the only allegation proved against him

is that he energized the electricity connection at the premises of Mr.

Rakesh Kumar, at different address, though the sanction was in the name

of Mr. Girbar Singh.

10. When we examine this allegation, deposition of DW-2 Tota Ram,

who was working as Zonal Superintendant in that area and was senior of

the respondent workman becomes relevant. The appellant himself relies

upon this testimony of Mr. Tota Ram. Mr. Tota Ram in his evidence has

claimed that when he visited the premises where the connection was

energized, he found the name plate showing the name of Mr. Girbar

Singh and address of 20-A-3/17 which is the address at which connection

was to be energized. On that basis Mr. Tota Ram had instructed the

respondent workman to install the connection at that place. From this

testimony, which remained unquestioned and unchallenged, it becomes

clear that in so far as respondent workman is concerned, he had taken due

precaution by not only verifying the name of the person to whom the

connection was sanctioned but the address also from the name plate. The

act of the respondent workman of installation of electricity connection

was at the instance of his senior, Mr. Tota Ram.

11. If at all, the aforesaid facts would also disclose that his senior Mr.

Tota Ram was responsible as well. However, no action was taken against

Mr. Tota Ram. Reliance is also placed on para 20 of the judgment of the

Apex Court in Man Singh Vs. State of Haryana (2008) 12 SCC 331

which is as under:

"20. We may reiterate the settled position of law for the

benefit of the administrative authorities that any act of

the repository of power whether legislative or

administrative or quasi-judicial is open to challenge if

it is so arbitrary or unreasonable that no fair minded

authority could ever have made it. The concept of

equality as enshrined in Article 14 of the Constitution

of India embraces the entire realm of State action. It

would extend to an individual as well not only when he

is discriminated against in the matter of exercise of

right, but also in the matter of imposing liability upon

him. Equals have to be treated equally even in the

matter of executive or administrative action. As a

matter of fact, the doctrine of equality is now turned as

a synonym of fairness in the concept of justice and

stands as the most accepted methodology of a

governmental action. The administrative action is to

be just on the test of 'fair play' and reasonableness."