Mr. Mahmood Kasim Sahib vs Indian Railway Construction Co. ...
2013 Latest Caselaw 5610 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.3436/2000


%                                                    3rd December, 2013

MR. MAHMOOD KASIM SAHIB                                     ..... Petitioner
                Through:                 Mr.Prem Prakash, Advocate with
                                         petitioner in person.

                          Versus

INDIAN RAILWAY CONSTRUCTION
CO. LTD. AND ANR.                                          ...Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Petitioner, who was an employee of the respondent no. 1/Indian

Railway Construction Co. Ltd. (IRCON), by this writ petition, prays for

three reliefs. First is for setting aside of the order of the disciplinary

authority dated 15.5.1995 by which petitioner was imposed the penalty of

reduction of pay by three stages. The second relief which is prayed for

setting aside of the order of the disciplinary authority dated 27.11.1998

imposing the punishment of removal from services upon the petitioner.

The third relief which is claimed is that since petitioner has allegedly

received less pay, the difference being unpaid amount of Iraqi Dinar as

payable from 1984 to 1986, he be paid the said amounts.

2. So far as the first relief of challenge to the order of the disciplinary

authority dated 15.5.1995 is concerned, the writ petition is liable to be

dismissed on the ground of delay and laches inasmuch as the petition has

been filed much later only on 4.7.2000 ie after about five years from

passing of the order dated 15.5.1995 of the disciplinary authority. No

doubt, Limitation Act, 1963 does not apply to a writ petition, however, the

limitation period provided thereunder is a good guide to decide the

applicability of the doctrine of delay and laches. There is no reason given

by the petitioner for not challenging the order of the disciplinary authority

dated 15.5.1995 till filing of this writ petition in July 2000. Since the

ordinary period of limitations is three years, the present writ petition is

filed in July 2000 for challenging the order of the disciplinary authority

dated 15.5.1995 ie after about five years from passing of the order is liable

to be and is accordingly dismissed on the ground of delay and laches.

3. The third relief prayed for is also liable to be rejected on

account of delay and laches because for an amount which is claimed to be

due for the period from 1984 to 1986, even assuming for the sake of

argument that it was payable, the same cannot be claimed by filing of a

writ petition after about 14 years in July 2000. When petitioner was asked

to point the representation filed by him for claiming of this amount, the

first representation which can be pointed out was only of the year 1997.

Even assuming representations were filed earlier, filing of repeated

representations or pendency thereof without an acknowledgement by the

employer of the same being favourably considered, does not entitle the

petitioner to approach the Court with delay much less of 14 years as in the

present case. The third relief for claiming of a particular amount of monies

for alleged difference of pay, is also therefore rejected on the ground of

delay and laches.

4. So far as the second relief prayed being the challenge to the

impugned order dated 27.11.1998 of the disciplinary authority; and as

affirmed in appeal by the appellant authority's order dated 16.2.1999, it

may be noted that the challenge is liable to be dismissed on the ground that

petitioner in spite of three notices failed to appear in the departmental

proceedings and, therefore, the enquiry officer proceeded ex parte against

the petitioner and gave a report holding the petitioner guilty of misconduct

alleged against him in the charge-sheet in view of the evidence led on

behalf of the management; being depositions of witnesses as also

documentary evidence. There was grave charge against the petitioner of

using filthy language in front of lady employees and opening the zip of his

pant in front of the lady employees. Such conduct of an employee is

unpardonable and it may be noted that for an earlier misconduct petitioner

had already been imposed a punishment; by the order of the disciplinary

authority dated 15.5.1995; of reduction in pay scale by three stages.

5. Truth or falsity of the allegations, ie the merits of the matter, have to

be decided by the enquiry officer and not by this Court which is not an

enquiry officer. In order to succeed in a defence, a charged official must

not only cross-examine the witnesses of the management but also lead his

evidence besides stepping into the witness box and standing the test of

cross-examination. The scope of hearing in a petition under Article 226 of

the Constitution of India challenging the departmental proceedings is

limited to there being perversity in the orders of the departmental

authorities or violation of principles of natural justice or violation of rules

of the organizations/law. It is settled law that this Court hearing a petition

under Article 226 of the Constitution of India does not sit as an Appellate

Court to reappraise the findings of facts and conclusions of the

departmental authorities.

6(i) In a case where there is an ex parte report, the scope of

hearing in this Court is extremely limited. There are two aspects which

have to be examined where an ex parte report of the enquiry officer is

challenged like in a case such as the present. First is whether petitioner

was served and/or good reasons for non-appearance in spite of the service

were given. The second aspect is whether the charge-sheet on the face of it

shows that no violations of the rules of the organization or law are made

out.

(ii) So far as the second aspect is concerned, since the charges are

factual of misbehavior of the petitioner, it cannot be said that charges on

the face of it did not require any inquiry. So far as the first aspect of the

petitioner having a reason not to appear in the enquiry proceedings, it may

be noted that petitioner does not dispute before this Court that he had

received the notices of the different dates of hearings, however, what is

argued is that petitioner was prevented from appearing in the departmental

proceedings by the guard of the employer. I have found this reason given

by the petitioner of not appearing in the departmental proceedings clearly

misconceived because if what the petitioner stated was true, then

immediately after each of the three dates of hearings of 3.11.1998,

6.11.1998 and 10.11.1998, petitioner would have written letters of his

being illegally prevented from entering the premises, however, there is no

such ground which is alleged in the writ petition of communications

having been sent at the relevant point of time. A mere self serving

averment contained in Ground T of the petition that the security personnel

did not allow the petitioner to enter into the premises, cannot be accepted

by the Court in view of the blandness of the statements and the same

having not been shown to be correct by necessary documentation. This

argument of the petitioner is also therefore rejected.

7. At this stage, it is relevant to refer to the relevant portion of the

enquiry officer's report showing how the case was proved by the

department, and which relevant portion reads as under:-

"11.0 The Presenting Officer produced documentary evidence and witnesses. The documents produced by the P.O. were taken on record and the evidence of the witnesses was recorded. After completion of the presentation of the witnesses the Presenting Officer argued his case and his argument was recorded. A copy the proceedings of the inquiry held on 10.11.98 is enclosed at Annexure-III. Thereafter the actual inquiry process was closed.

12.0 The charges framed against the Charged Employee are as under:-

"While working the Corporate Office, Shri Mehmood Kasim Sahib, Photographer/Artist, has misbehaved in a disorderly manner against certain staff in the Administration Section (Room No. 504) of the Corporate Office at 5 P.M on 30.6.98. He used highly abusive and offensive language and conducted himself in a manner unbecoming of a public servant, in the presence of lady staff in the section.

The conduct and behaviour of Shri Mehmood Kasim Sahib is found to be unbecoming of IRCON employee and subversive of discipline, calling the action under Rule 4(1) (iii) and Rule 5/(12) (17)(20) of IRCON Conduct Discipline and Appeal Rules."

13.0 The following documents and witnesses were produced by the Presenting Officer

Documents

1. MEX 1 - Complaint of Shri Amar Nath, Messenger

2. MEX 2 - Complaint of Shri Ved Prakash, Sr. Asstt.

      3. MEX 3     -     Complaint of Sh. Ram Naresh, Messenger

      4. MEX       -     Complaint of Smt. Manju Acharya

      Witnesses

      MW-1         Smt. Manju Acharya

      MW-2         Shri Ved Prakash

      MW-3         Shri Ram Naresh

      MW-4         Shri Amar Nath

      14.0        I have carefully analysed the various evidence produced
      before me by the Presenting Officer

Primarily, the Presenting Officer through the documents and witnesses, have been able to establish the indecent behavious of Shri Mehmood Kasim Sahib in the premises of the company and commission of an act subversive of discipline and of good behaviour. The Presenting Officer also established that the behaviour of Shri Mehmood Kasim Sahib is unbecoming of a public servant.

MEX-1 to MEX-4 and the evidence of MW-1 to MW-4 establishes the fact that Shri Mehmood Kasim Sahib entered the Room No. 504 of IRCON's Corporate Office around 5 P.M on 30.06.98 and abusive and vulgar language and behaved indecently by opening his button/zip of his pant when a lady employee was present in that room.

The Charged Official did not produce any defence as he failed to attend the inquiry proceedings held on 10.11.98 inspite of reasonable opportunity has been given to him. The only document in defence of the Charged Official available on record is the defence statement submitted by the Charged Official to the Disciplinary Authority vide his letter dated 24.07.98. The Charged Official only raised certain technical and procedural objections pertaining to the Charge Memo issued by Disciplinary Authority. He stated in the defence statement only general denial of the charges and expressed his desire to be heard in person to defend his case through his Defence Assistant.

15.0 After carefully going through the entire evidences documentary as well as oral, produced before me I have come to the following conclusions:-

I. The charge that the conduct and behaviour of Shri Mehmood Kasim Sahib is found to be unbecoming of IRCON employee under Rule 4(1)(iii) of IRCON CDA Rules 1981 stand proved.

II. The charge that Shri Mehmood Kasim Sahib behaved indecently in the premises of the Company under Rule 5(12) of IRCON CDA Rules 1981 stand proved.

III The charge that Shri Mehmood Kasim Sahib committed an act which amount to a criminal offence involving moral turpitude under Rule 5(17) of IRCON CDA Rule 1981 could not be completely substantiated although Shri Mehmood Kasim Sahib did use abusive and vulgar language and behaved indecently in the presence of a lady employee but it was neither directed towards the lady employee nor were she directly addressed to.

IV The charge of commission of an act subversive of discipline and of good behaviour under Rule 5(20) of IRCON CDA Rule 1981 stand proved.

16.0 All the documents/records mentioned in the report are contained in the file No.IRCON/ENQ./01 which is sent along with this report.

(V.H.RAO)

INQUIRY OFFICER"

8. In view of the above, I do not find that the petitioner has made out

any case for setting aside the orders passed by the departmental authorities,

and therefore, the writ petition is dismissed, leaving the parties to bear their

own costs.

DECEMBER 03, 2013                                VALMIKI J. MEHTA, J
godara