Raja Ram Vassudeo Parab vs Secretary General, Family ...
2012 Latest Caselaw 531 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 25th January, 2012
+                          W.P.(C) 4752/1995

%        RAJA RAM VASSUDEO PARAB               ..... Petitioner
                     Through: Mr. K. Venkatarama, Adv. along
                              with petitioner.
                                 Versus

    SECRETARY GENERAL, FAMILY PLANNING
    ASSOCIATION OF INDIA & ORS.              ..... Respondents
                 Through: Mr. Arun Birbal, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                               JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 20th July, 1995 of the

respondent Family Planning Association of India (FPAI) discharging the

petitioner from service as well as the order dated 22nd / 31st August, 1995

of the FPAI dismissing the departmental appeal preferred by the petitioner.

The petition also seeks direction for reinstatement of the petitioner into

service with back wages and promotion.

2. The petition came up first before this Court on 13 th December, 1995

when the counsel for the petitioner was asked to satisfy as to how a writ

petition against FPAI was maintainable. On a subsequent date, upon the

counsel for the petitioner relying on judgment dated 5th August, 1992 in

CWP No. 3007/1989 titled M.P. Singh v. Delhi Administration holding

FPAI to be an authority within the meaning of Article 12 of the

Constitution of India, notice of the petition was issued. Pleadings were

completed. On 29th November, 1996 Rule was issued and the matter

directed to be heard with LPA No.54/1992 and C.W.P. No.4773/1994.

Vide order dated 30th April, 1997 on application of the petitioner,

Government of NCT of Delhi and Union of India were impleaded as

respondents to the petition. On 12 th October, 2009, finding the petitioner to

be appearing in person, the Delhi High Court Legal Services Committee

was directed to provide legal assistance to the petitioner. Legal assistance

of Mr. Venkatarama, Advocate was so provided to the petitioner. LPA

No.54/1992 along with which this writ petition was directed to be heard

was disposed vide judgment dated 18th November, 2005. Similarly W.P.(C)

No. 4773/1994 along with which also this writ petition was directed to be

heard was found to be entailing a different controversy and disposed of

vide judgment dated 5th May, 2011.

3. The case of the petitioner is that FPAI is a Society registered under

the Societies Registration Act, 1860 and is under the administrative and

financial control of the Directorate of Family Welfare, Govt. of NCT of

Delhi and thus a State within the meaning of Article 12 of the Constitution

of India and writ petition is maintainable thereagainst; that he was engaged

as a Laboratory Attendant with the respondent FPAI on 11th February,

1981 and was also made to perform the work of a Laboratory Assistant till

1987 and of a Laboratory Technician from 1988 till 1990; that he was in

the year 1989 offered the post of Laboratory Technician but with the

condition to produce the certificate of having obtained qualification

prescribed therefor; that even though he produced the certificates of

qualification but was demoted as Laboratory Attendant; that even though

in the year 1991 he was eligible for promotion to the post of Laboratory

Technician but again not promoted; that his request for No Objection

Certificate to take up the job of Laboratory Technician in the National

Institute of Health and Family Welfare was not acceded to; that payment of

his salary was abruptly stopped from the month of April, 1994 and not paid

inspite of repeated requests; that he in his capacity as General Secretary of

Bhartiya Pariwar Kalyan Karamchari Sangh gave Press statements to the

said effect; that a memo dated 4 th June, 1994 was served on him charging

him with approaching the Press and which action was in contravention of

service rules; that he submitted a reply thereto justifying his action and also

assuring that he would not do so in future; that he was on 30th March, 1995

placed under suspension and served with another charge sheet dated 22 nd

June, 1995 and thereafter departmental inquiry held against the petitioner,

resulting in the penalty aforesaid of discharge from service.

4. The petitioner impugns the action against himself on the grounds

that the Disciplinary Authority did not consider the evidence adduced

during the inquiry and did not apply its mind before imposing major

penalty of discharge from service on the petitioner; that the Appellate

Authority has also not given any reasons for arriving at the conclusions

reached; that the inquiry was conducted in a haste and the findings of the

Inquiry Officer are not based on any evidence and are perverse; that the

principles of natural justice were not adhered to; that he was supplied with

incomplete and unauthenticated copy of inquiry report and thus deprived of

opportunity to make a proper defence statement; that there was no evidence

whatsoever of the charges held to have been established against him; that

the punishment of discharge from service is disproportionate to the alleged

misconduct.

5. The respondent FPAI in its counter affidavit has controverted the

maintainability of the writ petition against itself and pleaded that it

functions on funds generated from international and domestic donations

including some from the government. Reliance is placed on judgment

dated 18th August, 1993 of the Rajasthan High Court at Jodhpur in S.B.

CWP No.251/1990 and judgment dated 10 th February, 1993 of the

Karnataka High Court in W.P.(C) No. 4471/1992 titled P.M. Adinarayana

v. FPAI holding writ to be not maintainable against FPAI. The respondent

FPAI on merits also has opposed the claim of the petitioner.

6. The petitioner has filed a rejoinder to the counter affidavit of the

respondent FPAI reiterating his claim.

7. The respondent FPAI filed another affidavit dated 18th November,

1996 in compliance of order dated 14th October, 1996 disclosing that of the

total expenditure of respondent FPAI in the budget year 1996 of `20.29

crores, only about `30.5 lac was contributed by the grants from the Central

Government and the major contribution came from International Planned

Parenthood Federation and other foreign agencies. It was thus asserted that

respondent FPAI cannot be said to be "State" on account of funding.

8. The Directorate of Family Welfare of Govt. of NCT of Delhi in its

counter affidavit has pleaded that Family Welfare is a National Programme

and the State and the Union Territories implement the same under the

policy decisions and guidelines issued by the Government of India; that the

Family Welfare Programme in Delhi is implemented though various

government and autonomous and voluntary organizations and of which

respondent FPAI is one; that employees and staff of respondent FPAI do

not become employees/staff of Govt. of NCT of Delhi; though such

organizations recruit their own staff but their qualifications are required to

correspond to those on similar posts under the State Government and the

staff is to get similar status and scales of pay and an observer is appointed

by the Directorate of Family Welfare, Govt. of NCT of Delhi in the

Selection Committee of such voluntary organizations; however the staff

even of Government funded projects of such organizations do not become

the staff of the government and the government has no control over

appointment/retirement or in other matters with respect to the said staff.

Govt. of NCT of Delhi has thus supported the plea of respondent FPAI of

FPAI being not an instrumentality of State.

9. A Coordinate Bench of this Court had in M.P. Singh (supra)

however held FPAI to be a State within the meaning of Article 12 of the

Constitution of India and writ petition to be maintainable thereagainst.

LPA No.54/1992 was preferred against the said judgment but disposed of

vide judgment dated 18th November, 2005 without adverting to the said

controversy.

10. The counsel for the petitioner has also relied on Pradeep Kumar

Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111 in

support of the maintainability of the writ petition.

11. Even though a Division Bench of this Court in J.S. Giri Rao v. Hind

Kusht Nivaran Sangh AIR 1982 Delhi 446 held the said Sangh i.e. the

Indian Leprosy Association, also a voluntary organization, to be not a

State within the meaning of Article 12 and a writ petition to be not

maintainable thereagainst and I have also in judgment dated 20th April,

2011 in W.P.(C) No.105/2010 titled Anand Prakash v. Delhi State

Cooperative Bank Ltd. relying on S.S. Rana v. Registrar, Cooperative

Societies (2006) 11 SCC 634, held the Society in that case to be not a State

and a writ petition to be not maintainable thereagainst but in view of the

judgment of a Coordinate Bench in M.P. Singh and further in view of the

fact that I otherwise do not find any merit in the case of the petitioner, it is

not deemed expedient to delve in detail on the maintainability of the writ

petition or to refer the same to a larger Bench. Though the High Courts of

Rajasthan and Karnataka are stated to have held FPAI to be not a State and

a writ petition to be not maintainable thereagainst but I am unable to find

the matter having gone to the Supreme Court or any other judgment qua

respondent FPAI in this regard. Thus the writ petition is not dismissed on

the ground of maintainability.

12. As far as the case of the petitioner on merits is concerned, six

charges against the petitioner were of:-

(i) having sent his representation with distorted facts to individuals/agencies not connected with the respondent FPAI;

                    (ii)    having indulged in acts of misconduct / misdemeanour
                            of unauthorized communication of information /
                            unauthorized    transmission   of    FPAI    documents,

connection with Press, formation of association etc.;

(iii) having not shown courtesy to women patients/clients of FPAI and on the contrary having misbehaved with them in the filthiest manner as reported from different quarters and women's organizations in confidential letters received by FPAI;

(iv) having never been found at the address given though claimed to be not working anywhere else;

(v) having posed himself as a Doctor and having also prescribed medicines to the ladies visiting various centers of FPAI.

13. The Inquiry Officer found:-

(a) the petitioner having addressed as many as 44 letters to various authorities against FPAI and its affairs and which action was in violation of the FPAI Employees Conduct & Disciplinary Rules 1991;

(b) the petitioner to have passed office documents to outsiders betraying lack of integrity;

(c) the charge of the petitioner misbehaving with the women patients/clients of FPAI to have been not established for the reason of none of the complainants coming forward to depose in support thereof;

(d) it was however observed that the complaints of the petitioner taking advantage of the childless women visiting the various centres of FPAI where he was

employed and forcing them in sexual intercourse and extracting monies from them were of serious nature;

(e) the petitioner having passed documents of FPAI indirectly to unauthorized persons;

(f) the petitioner having posed himself as a Doctor to women patients and of also treating such patients by visiting their houses.

14. Undoubtedly the Disciplinary Authority of respondent FPAI though

issued notice to show cause to the petitioner as to why in view of the report

aforesaid he should not be dismissed from service and the petitioner

represented thereagainst, did not give any detailed order giving reasons for

dismissing the representation of the petitioner but in my view the said

technical lapse on the part of the Disciplinary Authority lost its

significance upon the Appellant Authority clearly stating that the charges

proved/established against the petitioner were grave enough justifying the

penalty of discharge from service. The Supreme Court in Tara Chand

Vyas v. Chairman & Disciplinary Authority (1997) 4 SCC 565 held that

where the Inquiry Officer has elaborately discussed each charge and given

reasons which were considered by the Disciplinary Authority which

reached the conclusion that the charges were proved, non-giving of reasons

by the Disciplinary Authority (which is not to act like a Civil Court) did

not vitiate its action.

15. Interference by this Court in exercise of powers of judicial review in

such matters is not qua the decision but the decision making process.

Except for vague allegations, no irregularity in the decision making process

has been established. The petitioner has not given any reason as to why, if

not in the normal course, he was charge sheeted or targeted. In the absence

of any plea of victimization or of bias, this Court would not disturb the

findings of the Inquiry Officer or the decision of the Disciplinary Authority

and the Appellate Authority.

16. I had at the beginning of the hearing enquired of the age of the

petitioner. It was informed that the petitioner at the time of discharge from

service was 42 years of age and if had continued, would have retired in the

year 2013. It can well be presumed that the petitioner in the last 15 years

has not sat idle and has gained employment elsewhere.

17. Considering the fact that serious challenge has been made to the

very maintainability of the writ remedy and further in view of the serious

nature of complaints against the petitioner even though not established, I

am not inclined to grant any relief to the petitioner. The petitioner has not

given any reason as to why so many women patients signed the complaint

made against him or as to why, if not genuinely aggrieved would they have

a grudge against the petitioner. Details of the said complaints indeed paint

a serious picture. Notice can be taken of the fact that women who have

been so taken advantage of and abused though may make a complaint

without the risk of disclosure thereof to their family members and

acquaintances rarely come forward to depose and which would also

disclose their identity and may interfere with their matrimonial and other

social relations.

18. The counsel for the petitioner has during the hearing also referred to

Padam Chand Gupta v. Presiding Officer, CGIT (2005) 1 LLJ 664 in

support of the contention that the Inquiry Officer is not authorized to

recommend any punishment as has been done in the present case. However

that was just one of the reasons given in that case but there were several

other factors which prevailed with this Court for holding the departmental

inquiry proceedings to be bad in that case. The Supreme Court in

Maharashtra State Seeds Corporation Ltd. v. Haridas Drupadrao Jadhao

(2006) 3 SCC 690 in which case also Inquiry Officer had recommended

punishment held that the said action of the Inquiry Officer was without

jurisdiction but did not vitiate the order of the Disciplinary Authority.

19. No merit is therefore found in the petition; the same is dismissed. I

refrain from imposing any costs on the petitioner.

RAJIV SAHAI ENDLAW, J

JANUARY 25, 2012 pp