Tejinder Singh Dagar vs Union Of India And Ors
2012 Latest Caselaw 6820 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision: November 29, 2012

+                        W.P.(C) 6302/2012


      TEJINDER SINGH DAGAR                                ..... Petitioner
                    Represented by: Ms.Jyoti Singh, Sr. Advocate
                    instructed by Mr.Sanjeev Chaswal, Mr.Amandeep
                    Joshi, Mr.Tinu Bajwa and Mr.Dinesh Yadav,
                    Advocates.
                        versus

      UNION OF INDIA AND ORS                            ..... Respondents
                    Represented by:     Mr.Rajan Sabharwal, Advocate.
[     CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (ORAL)

CM No.18750/2012

1. Hearing of the application is preponed. The date February 08, 2013 is cancelled.

2. The application is formal. The original writ petition challenged the order levying penalty and the prayer made is to permit the petitioner to challenge the appellate order dated November 17, 2011 and the revisional order dated February 29, 2012, both of which uphold the penalty levied.

3. We find that the two orders have been annexed with the writ petition as Annexure-P5 (collectively) but without a formal prayer to be quashed.

4. The application is allowed and the amended writ petition is taken on record.

W.P.(C) 6302/2012

1. Record of Inquiry and the Disciplinary Proceedings against the petitioner has been produced and perused.

2. Heard learned counsel for the parties.

3. As per Charge Memorandum dated April 13, 2010, the two charges against the petitioner were (i) of preparing para-wise comments to RP No.410/2008 in CWP No.4476/2007 without any orders from the Competent Authority which draft reply was completely against the interests of the administration; and (ii) of using unparliamentary language on March 16, 2010 while speaking over the telephone to Ms.Chanderkala OS/Security.

4. Undisputed facts are that against a transfer order transferring 14 Inspectors from other zones to North zone, a writ petition filed by B.L.Bishnoi & Ors. (aggrieved persons) was allowed by this court on October 22, 2008, since it was made good that notwithstanding appointments made to the post of Sub-Inspectors in the Railway Protection Force on All-India basis, the Sub-Inspectors are assigned to different zones where separate seniority lists were maintained zone-wise and promotions made to Inspectors upon available vacancies in a zone, as a result depending upon vacancies in different zones some people earned accelerated promotions and thus by transferring Inspectors to the Northern zone who had earned promotions to said posts due to the fortuitous circumstance of accelerated promotions in their zones; which was alleged to be incorrect. The respondent Inspectors i.e. who were the beneficiaries of the transfer order had filed a Review Petition in which a reply was filed; not under the signatures of the petitioner but by a

superior officer.

5. The Record of Inquiry would reveal that the writ petitioner had in his own handwriting drafted a reply to the Review Application which was thereafter vetted by superior officers and passed through four channels i.e. the Dealing Supervisor/COS, Staff Officer/COS, ASC/HQ and Senior DSC. Further, neither of the six witnesses examined during inquiry could bring out in what manner the affidavit filed in reply was detrimental to the interests of the organization.

6. The report of the Inquiry Officer has noted as aforesaid and has additionally found that the reply affidavit filed was much different from the draft prepared by the writ petitioner and has exonerated him of said charge. The Inquiry Officer has especially found that nobody could explain as to who finalized the draft of the reply which was ultimately filed.

7. As regards the second charge, the Inquiry Officer discussed the entire evidence of all the witnesses and in particular Smt.Chanderkala; he found that none of them deposed creditworthy, inasmuch as nobody deposed that Chanderkala made any contemporaneous complaint to them pertaining to the unparliamentary words used and even she vacillated in her deposition and could not give the name of the officers to whom she made a report; maintaining a stand that she had made a report to the senior officers. The Inquiry Officer highlighted that Chanderkala had never made a written complaint.

8. In a nut-shell, the Inquiry Officer exonerated the petitioner.

9. The Competent Authority penned a Note of Disagreement which reads as under:-

"I have gone through the enquiry report and evidence on record carefully and do not agree with the findings submitted by Shri O.P.Rawat IPF/ROK on the following

grounds:-

Charge No.1 Charge No.1 against the delinquent is that when he was working in the Railway Board in March 2009, he came to Hd.Qrs. office and prepared comments in RP No.410/08 in CWP No.4476/2007 in his own handwriting without any orders from competent authority, which were totally against the interest of administration and transfer policy and in favour of the petitioners in CWP N.4476/2007. The facts that he was working in Railway Board, came to HD.Qrs. Office and prepared comments in his own handwriting in CWP No.4476/2007 and without orders from competent authority are not disputed.

Also there is sufficient evidence on record that the comments prepared were against the interest of the administration. In reply to question no.1 asked by the enquiry officer, Shri R.K.Mudgil COS/Court/NDBH has clearly replied that reply filed in the Hon'ble Court by the Nodal Officer on the basis of comments prepared by the delinquent was withdrawn and new reply was filed. All this goes to prove that reply prepared by the delinquent was against the administrative interest, against transfer policy and in favour of the petitioners in CWP N.4476/2007.

Charge No.2. Charge No.2 is that on 16.3.2010 Shri T.S.Dagar SI/RPF misbehaved with Shrimati Chanderkala OS/Security/NDBH on Railway Telephone 23248. In her statement during DAR enquiry on 10.8.2010, Smt.Chanderkala has affirmed that the delinquent misbehaved her on Rly. Tele.No.23248 16.3.2010 at 12.30 hrs and threatened to drag her in the court and she informed her colleagues in this respect. Shri R.K.Mudgil COS/Court Cell/NDBH in reply to Q.No.3 asked by enquiry officer has stated during DAR enquiry on 25.2.2011 that when he came in office on a day Smt.Chanderkala was sitting putting her both hands on her head and when asked for she replied that Mr.T.S.Dagar has threatened her on phone for dire consequences. The delinquent was placed under suspension in the instant episode on 13.3.2010 and he threatened Smt.Chanderkala

on 16.6.2010 on Railway phone leads to believe the veracity of the incident. The delinquent has also failed to prove his conduct above board regarding this charge in DAR enquiry.

As discussed above both the charges leveled against the delinquent have been proved. The charged official be supplied copy of this note along with copy of DAR enquiry report."

And suffice would it be to state that the Disciplinary Authority had already formed an opinion that he would not be agreeing with the report of the Inquiry Officer.

10. As held by the Supreme Court in the decision reported as AIR 1999 SC 3734 Yoginath D.Bagde Vs. State of Maharashtra, such kind of Note of Disagreement which concludes the issue by recording positive findings and thereafter complete, by way of lip service, the requirement of natural justice i.e. putting the delinquent to notice of the disagreement would require the ultimate decision to be quashed.

11. That apart, we find that there are factual inaccuracies in the Note of Disagreement pertaining to Charge No.1, in that, it is recorded that the reply filed on the basis of comments prepared by the petitioner to the Review Application was withdrawn and a new reply was filed. This is incorrect. Learned counsel for the respondents so concedes.

12. Now, on an incorrect fact recorded, the Disciplinary Authority has opined that since a new reply was filed the same itself proves that the petitioner prepared a reply which was against the interests of the administration.

13. There is a further problem. The decision of the Supreme Court reported as (2006) 4 SCC 153 Ranjit Singh Vs. UOI highlights the requirement of the Disciplinary Authority to deal with the submission of

a Charged Officer with respect to the report of the Inquiry Officer. This principle of law would apply more rigorously where the Inquiry Officer, giving good reasons, exonerates the Charged Officer and the Disciplinary Authority pens a Note of Disagreement. In the reply filed by the petitioner he highlighted said fact and regretfully, the order dated November 17, 2001 imposing penalty of withholding three increments of pay with cumulative effect, does not even deal with the reply filed. In other words, with respect to Charge No.1, the Note of Disagreement proceeds on an erroneous fact recorded and when this was brought to the notice of the Disciplinary Authority, he has chosen to turn a blind eye thereto.

14. We have already highlighted hereinabove the good reasons given by the Inquiry Officer to hold that Charge No.1 was not proved. We have highlighted hereinabove that the Disciplinary Authority penned the Note of Disagreement on a factually wrong premise and has refused to deal with the petitioner's response on the subject, compelling us to conclude that as regards Charge No.1 the Disciplinary Authority has revealed an attitude of : Come what may, I shall hang you'. We highlight once again that evidence establishes that the petitioner had prepared a draft reply to the Review Application and there were four authorities above who vetted the same and the final reply filed is much different than the comments prepared by the petitioner. We would be failing to highlight that even otherwise the reply filed to the Review Petition, which was filed by the private respondents since WP(C)No.4476/2007 had been allowed, was not capable of damaging the interests of the organization inasmuch as the Division Bench of this Court had relied upon known principles of law i.e. when recruitments are effected on an All-India basis but allocation is made on regional basis and seniority lists are maintained region-wise,

post promotions where the fortuitous circumstance of availability of a vacancy accords accelerated benefits of promotion to a few, transfer to different zones unless permitted by the Rules cannot be effected.

15. We have a hunch that since the mala fide transfers effected were quashed by this Court and the private respondents failed in their endeavour to have the decision recalled they contrived to find a scapegoat and the victim was the petitioner.

16. As regards the Note of Disagreement pertaining to Charge No.2, except for Chanderkala maintaining her stand, of unparliamentary language being used, we find good reasons given by the Inquiry Officer to disbelieve her and the response of the petitioner to the Note of Disagreement has not been dealt with.

17. It is unfortunate that the Appellate and the Reviewing Authority have not even bothered to advert as above.

18. The writ petition is accordingly allowed. Impugned orders dated August 16, 2011, November 17, 2011 and February 29, 2012 are quashed.

19. The respondents are directed to re-fix the pay of the petitioner and pay the arrears within twelve weeks from today. Costs assessed in sum of `11,000/- in favour of the petitioner and against the respondents.

                                        (PRADEEP NANDRAJOG)
                                              JUDGE


                                        (MANMOHAN SINGH)
NOVEMBER 29, 2012                            JUDGE
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