S.K. Taqui vs The Cement Corporation Of India
2013 Latest Caselaw 1585 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    LPA 206/2013
     S.K. TAQUI
                                                                       ..... Appellant
                         Through:     Dr. M.Y. Khan, Adv.

                         versus

      THE CEMENT CORPORATION OF INDIA
                                                                    ..... Respondent
                         Through:     None

    CORAM:
    HON'BLE THE CHIEF JUSTICE
    HON'BLE MR. JUSTICE V.K. JAIN
                       ORDER

% 08.04.2013 CM 5506/2013 & 5508/2013 (exemption) Exemption allowed, subject to all just exceptions. The applications stands disposed of.

LPA 206/2013 & CM 5507/2013 (delay) On 11.2.1986, the appellant, working as Lower Division Clerk with the respondent, applied for grant of House Building Advance, for construction of a house at his native place Jais in U.P. as per Rules of the respondent corporation. A sum of Rs.90,000/- disbursible in three instalments was sanctioned to the appellant. The first instalment of Rs.27,000/- was released to him on 25.2.1996. This was followed by release of second instalment of Rs.36,000/- on 10.7.1986. On 15.2.1990, the appellant was served with a charge-sheet primarily on the allegations that he had not used the Housing Loan taken from the respondent for construction LPA 206/2013 page 1 of 7 of house at his native place and while obtaining second instalment, he had submitted a false declaration, stating that he had spent the amount of the first instalment on construction of the house whereas in fact no construction had been carried out. It was also alleged in the charge-sheet that the appellant had utilized the entire amount of House Building Advance for the purpose other than the purpose for which the said amount were sanctioned to him and had thereby committed act unbecoming of an employee of the Corporation.

2. The Inquiry Officer returned a finding upholding the charge served upon the appellant. Vide order dated 12.6.1998, the appellant was dismissed from service. Claiming unlawful dismissal from service, the appellant raised an industrial dispute which was referred to the Labour Court for adjudication. Vide order dated 7.11.2009, the Labour Court held that it was not proved that the case of the appellant was not covered within the definition of workman as given in Section 2(s) of the Industrial Dispute Act nor had it been proved that he was working in the supervisory capacity. It was further held that the respondent held a fair and proper inquiry against the appellant. Vide subsequent order dated 31.3.2010, the Labour Court held that there was no scope to interfere with the punishment awarded to the appellant. Reference was accordingly answered in favour of the respondent. Being aggrieved from the order of the Labour Court, the appellant filed W.P(C) No.7748/2010, The writ petition having been dismissed, the appellant is before us by way of this appeal.

LPA 206/2013 page 2 of 7

3. With respect to the scope of power of a writ Court in Disciplinary

Matters, this Court in LPA No. 472/2012 titled as Delhi Tourism & Transportation Development Corp. Ltd. versus Azad Singh decided on 26th February, 2013, inter alia, held as under:-

"9. It is by now a settled proposition of law that the Court, while considering challenge to the orders passed in disciplinary proceedings does not act as an Appellate Authority and does not reassess the evidence led in the course of the inquiry nor can it interfere on the ground that another view in the matter is possible on the basis of the material available on record. If the Court finds that the inquiry has been conducted in a fair and proper manner and the findings rendered therein are based on evidence, the adequacy of evidence or the reliability of the evidence are not the grounds on which the Court can interfere with the findings recorded in the departmental inquiries. It is not open to the Court to interfere with the finding of fact recorded in such inquiries unless it is shown that those findings are based on "no evidence" or are clearly perverse. A finding would be considered to be perverse if no reasonable person could have recorded such a finding on the basis of material available before him. Another ground on which the Court can interfere with the findings recorded in a disciplinary proceeding is violation of principles of natural justice or statutory rules or if it is found that the order passed in the inquiry is arbitrary, mala fide or based on extraneous considerations. This proposition of law has been reiterated by Supreme Court in a number of cases including B.C.Chaturvedi v. Union of India: 1995(6) SCC 749, Union of India v. G.Gunayuthan: 1997 (7) SCC 463, Bank of India v. Degala Suryanarayana:

LPA 206/2013 page 3 of 7 1999 (5) SCC 762 and High Court of Judicature at Bombay v. Shahsi Kant S. Patil: 2001 (1) SCC 416".

4. During the course of arguments, the learned counsel for the appellant contended that though it is not in dispute that the appellant had withdrawn the two instalments of House Building Advance and at the time of seeking second instalment, he had also given a declaration that the amount of first instalment had been utilized for construction of the house, there was absolutely no evidence before the Inquiry Officer to say that no construction was actually carried out by the appellant at his native place, therefore, the finding recorded by the Inquiry Officer and upheld by the Labour Court and the learned Single Judge cannot be sustained. However, on a perusal of the order of the Labour Court we found that though the original documents were not produced before the Inquiry Officer, the same having been seized by CBI, the photocopies of those documents were produced. Therefore, it cannot be said that no documentary evidence was produced before the Labour Court to sustain the charge against the appellant. We also find from a perusal of the order of the Labour Court that the officer of the respondent corporation who actually went to the native place of the appellant was examined as a witness and he had deposed that no construction was actually carried out. We may in this regard refer to the following part of the order of the Labour Court:

"The workman has also raised an objection against the enquiry that the original documents which were looked into by the enquiry officer are not placed on the file and only the photocopies of the documents which are the secondary evidence are placed on record by the

LPA 206/2013 page 4 of 7 management which shows that the documents were not considered by the enquiry officer while giving the report and as such the enquiry should be set aside.

xxx It is also an admitted case that he availed of two installments after giving a certificate dated 20.06.1986 of Sh.S.B.Tripathi, Repair Assistant Engineer certifying completion of construction work up to plinth level and incurring the expenditure of Rs.27,250/- by the workman. Before the enquiry officer, Sh. S.K.Chauhan who had visited Jais, U.P. and investigated the matter and found no construction at the spot, has already been examined as the witness, to whom the workman had not cross examined. The workman in the enquiry had not given any defence as to how he utilized these two installments of H.B.A. given to him. He had not produced any evidence from his side to show that he had raised any construction over the plot. I have perused the reply filed by the workman to the memorandums/charge-sheet given to the workman and in both the replies he has not touched the charges leveled against him but continued to raise objection regarding the competence of the disciplinary authority in ordering departmental enquiry and against the appointment of the committee to hold the enquiry against him.

xxxx

Before the enquiry officer, the workman had taken the defence only in his written arguments that he had raised construction on his house for which he had taken H.B.A. not only up to plinth level but up to the roof level but the same was washed away by unprecedented torrential rains and devastating floods in September 1996 eroding a major part of foundation of his house. It is stated by the workman in his affidavit that he informed the

LPA 206/2013 page 5 of 7 management company of these developments in writing. However the originals of those letters are not produced on record by the workman nor the original UPC receipt is filed by the workman to prove that he had in fact sent and informed the management on the alleged dates of 19.09.86 or 15.04.87 about these floods and rains causing destruction of his property. If it was the position, the workman must have taken this defence in reply to the memorandums given to him and in reply to the charge-sheet but no such plea was raised by the workman. Even in the statement of claim filed by the workman in the court, the workman had not taken this defence that he has raised the construction which was demolished by floods and rains. No documents to this effect i.e. any bills, receipts of construction material etc. of raising construction on the plot are filed on record to substantiate this averments by the workman."

5. It is settled preposition of law that strict rules of evidence do not apply to a domestic inquiry and what is required to be adopted by the Inquiry Officer is a fair and transparent procedure in hearing the inquiry. In these circumstances, we cannot accept the contention that the finding recorded against the appellant was based on no evidence at all. Once it is found that some evidence was produced by the Management to prove the charge served upon the workman, the adequacy or otherwise of such evidence cannot be gone into by the writ court. Therefore, there is no scope for interference by us with the finding of the Inquiry Officer which has been accepted by the Labour Court and upheld by the learned Single Judge.

LPA 206/2013 page 6 of 7 Accordingly, we find no merit in this appeal and the same is hereby dismissed. There shall be no orders as to costs.

                                                            CHIEF JUSTICE


                                                                  V.K. JAIN, J
APRIL      08, 2013
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LPA 206/2013                                                page 7 of 7