Delhi Tourism & Transportation ... vs Azad Singh
2013 Latest Caselaw 943 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on: 21.02.2013
                                 Judgment pronounced on : 26.02.2013

+      LPA No. 472/2012

       DELHI TOURISM & TRANSPORTATION DEVELOPMENT
       CORP. LTD.                      ..... Appellant
                            Through:   Mr S.B. Upadhya, Sr. Adv with Mr
                                       P.C. Sen and Ms Sara Sundaram,
                                       Adv.
                   versus

       AZAD SINGH                                        .... Respondent
                            Through:   Mr. Anuj Aggarwal, Adv.
       CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. The respondent before this Court was working as a driver with the

appellant. On 11.12.1987, a chargesheet was issued to him on the

allegations that on 27.12.1987, he along with an outsider, entered the

office of the appellant in N-Block of Connaught Place, started consuming

liquor in the said office and misbehaved with the staff posted there,

thereby indulging into acts unbecoming of a Government servant. The

said chargesheet was followed by an inquiry in which the charges against

the respondent were held to be proved. The Disciplinary Authority, vide

order dated 26.06.1989 imposed penalty of removal of service upon the

respondent. The appeal filed by the respondent was dismissed by the

Appellate Authority on 04.10.1989. The orders passed by the

Disciplinary Authority and the Appellate Authority were challenged by

the respondent way of WP(C) No. 3850/1991. The learned Single Judge

vide impugned order dated 25.11.2011, allowed the writ petition by

holding that the respondent would be entitled to back wages from the date

of removal from service till the date of his superannuation along with all

consequential reliefs of pension, etc. The appellant filed a Review

Petition in respect of the aforesaid order dated 25.11.2011 which was

dismissed vide order dated 18.05.2012. Being aggrieved, the appellant is

before us by way of this appeal.

2. A perusal of the order passed by the learned Single Judge on

25.11.2011 would show that the said order was predicated on the premise

that the respondent/writ petitioner was not assisted by any lawyer and the

cross-examination of witnesses by his representative was illusory, he not

being represented by a competent and qualified person. The learned

Single Judge found that no opportunity was afforded by the Inquiry

Officer to the writ petitioner to lead defence evidence. He also held that

there was no cogent and sufficient evidence against the writ petitioner.

3. When the appellant, by way of Review Petition, drew the attention

of the learned Single Judge to Rule 14(8)(a) of CCS/CCA Rules which

gives an option to the Charged Officer to either plead his case himself or

to take the assistance of any other Government servant posted in any

office at his Headquarters or at the place where the inquiry is held, but,

does not entitle him to be represented by a legal practitioner as a matter of

right unless the Department is represented by a legal practitioner, the

learned Single Judge took the view that the observations made in his

order dated 25.11.2011 as regards absence of assistance from a lawyer to

the writ petitioner was meant to demonstrate that despite the fact that the

respondent was not represented by a lawyer, the testimony of the

witnesses was neither cogent nor sufficient and dismissed the Review

Petition.

4. As per the procedure prescribed in sub-Rule (16) and (17) of Rule

14 of CCS/CCA Rules, for imposing major penalties, when the case for

the Disciplinary Authority is closed, the Government servant shall be

required to state his defence, orally or in writing, as he may prefer and the

evidence on behalf of Government servant shall then be produced. The

Government servant may examine himself in his own behalf, if he so

prefers. The witnesses produced by the Government servant shall then be

examined. Sub-Rule (18) of the aforesaid Rules provides that Inquiry

Officer may, after the Government servant closes his case and shall, if the

Government servant has not examined himself, generally question him on

the circumstances appearing against him in the evidence, for the purpose

of enabling the Government servant to explain any evidence appearing

against him. The record of inquiry produced before us does not indicate

that after recording of evidence on behalf of the Disciplinary Authority,

the Inquiry Officer required the respondent to state his defence or

produce his evidence. The learned counsel for the appellant submits that

the respondent is deemed to have waived his right to produce evidence by

not making a request to the Inquiry Officer in this regard, whereas the

learned counsel for the respondent submits that the Inquiry Officer never

called upon the respondent to lead his evidence and being ignorant of

statutory rules and not being represented by an advocate or even a

Defence Assistant on the relevant date, the respondent was not aware of

his legal right to produce in his defence and consequently could not make

such a request.

5. The scheme of Rule 14 mandates the Inquiry Officer to give

opportunity to the Charged Officer to produce his evidence. The record

does not indicate that any such opportunity was given by the Inquiry

Officer to the respondent. Even if no request to lead defence evidence

was made by the respondent, the Inquiry Officer was duty bound to ask

him as to whether he wanted to produce evidence in his defence or not.

That having not been done, there is no escape from the conclusion that no

opportunity to lead defence evidence was accorded by the Inquiry Officer

to the respondent. Thus, there was no contravention of sub-Rule (17) of

Rule 14 of CCS/CCA Rules which resulted in violation of principles of

natural justice by not affording opportunity to lead defence to the

respondent.

6. Admittedly, the respondent did not examine himself as a witness.

In view of the provisions contained in sub-Rule (18) of Rule 14, it was

obligatory for the Inquiry Officer to question him generally on the

circumstances appearing against him in evidence, so as to afford an

opportunity to him to explain such circumstances. The Rule requiring

questioning of the Charged Officer in respect of the circumstances

appearing against him in evidence is not a formality, but is a vital right

granted to him since it gives an opportunity to him to explain the

evidence which has been given against him during the course of inquiry.

The punishment imposed on the basis of an inquiry held in violation of

the aforesaid statutory provision would not be sustainable in law.

7. We are, therefore, of the view that the penalty imposed upon the

respondent is liable to be quashed on account of the respondent not being

given an opportunity to produce his witnesses and not being questioned

by the Inquiry Officer in respect of the circumstances appearing in

evidence against him.

8. The next question which comes up for our consideration is as to

whether, while maintaining the order quashing the penalty, we should

remit the matter back for resuming the inquiry from the stage it became

defective or not. During the course of arguments, the learned counsel for

the respondent submitted that since no evidence on behalf of the

Disciplinary Authority was led against the respondent, there would be no

justification to remit the matter back to the Inquiry Officer. There can be

no dispute with the proposition that if no evidence on the basis of which

charge against the employee can be sustained has been produced during

the course of inquiry, no useful purpose would be served from remitting

the matter back to the Inquiry Officer for resuming the inquiry from the

stage at which defect occurred in the inquiry proceedings.

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: 1999 (5) SCC 762

and High Court of Judicature at Bombay v. Shahsi Kant S. Patil: 2001

(1) SCC 416.

10. On a perusal of the evidence produced on behalf of the

Disciplinary Authority, it cannot be said there was absolutely no evidence

produced against the respondent. We find that Chander Prakash (Bill

Clerk) in his deposition before the Inquiry Officer stated that on

27.11.1987, the respondent Azad Singh along with his friend had come to

M-Block and after sitting on Sofa both of them had consumed alcohol.

He further stated that the companion of the respondent asked him to bring

water and when he declined "they" started abusing him. He maintained in

his cross-examination that the appellant and his companion had brought

the bottle of alcohol with them and "they" had kept on abusing for about

15-20 minutes. Thus, it cannot be said that there was absolutely no

evidence against the respondent. Since we propose to remit the matter

back to the Inquiry Officer for resuming the inquiry from the stage at

which inquiry proceeded in violation of the Statutory Rules and the

principles of natural justice, it would not be appropriate for us to analyze

the evidence in detail and take a view either way, since the view, if any,

taken by us on merits, may tend to prejudice the Inquiry Officer and/or

the Disciplinary Authority. For our purpose, it would be sufficient to say

that this was not a case where no evidence was produced against the

Charged Officer, during the course of inquiry.

11. It was then contended by the learned counsel for the respondent

that since the incident took place about more than 25 years ago, it would

not be appropriate to remit the matter back to the Inquiry Officer and the

order passed by the learned Single Judge quashing the penalty inflicted

upon the respondent and granting back wages, etc. needs to be

maintained. We, however, cannot agree. Ordinarily, when the Court

finds that the inquiry proceedings got tainted on account of some

irregularity in the inquiry, the appropriate order would normally be to

remit the matter back to the Disciplinary Authority, with liberty to direct

resumption of the inquiry from the stage at which the inquiry became

defective on account of such contravention. It is only in a case where the

employee is able to establish a prejudice being caused to him on account

of resumption of the inquiry, that the Court will be justified in not

remitting the matter back to the Disciplinary Authority/Inquiring

Authority, as the case may be. Considering the serious nature of the

allegations against the respondent, who is alleged to have entered the

office along with an outsider and consumed liquor right there sitting in

the office, followed by abusing the other members of the staff, we see no

justification for not allowing inquiry proceedings to be taken to their

logical conclusion, particularly when no prejudice, to the respondent has

been demonstrated.

12. In State of Punjab Vs. Harbhajan Singh Greasy [1996 SCC (L&S) 1248, the report of the inquiry officer leading to removal of the respondent from service was passed on an admission alleged to have been made by him. The High Court set aside the order of dismissal on the ground that the alleged admission was not supported by any written statement of the respondent. The High Court while setting aside the order directed reinstatement of the respondent in service. Setting aside the order of the High Court, Supreme Court, inter alia, held as under:-

"Under those circumstances, High Court may be justified in setting aside the order of dismissal. It is now well settled law that when the enquiry was found to be faulty, it could not be proper to direct reinstatement with consequential benefits. Matter requires to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. Pending enquiry the delinquent must be deemed to be under suspension. The consequential benefits would depend upon the result of the enquiry and order passed thereon. The High Court had committed illegality in omitting to give the said direction."

In Union of India Vs. Y.S. Sadhu-Ex. Inspector 2009(1) SCC (L&S) 126, the departmental inquiry against the respondent was found to be defective inasmuch as the witnesses who had been examined earlier were not produced for cross-examination. Based upon the findings returned in the inquiry, the respondent was dismissed from service. The order of dismissal of the respondent from service was set aside by the High Court which also directed his reinstatement without back wages. The Supreme Court, however, held that the proper course which the High Court should have adopted was to allow the proceedings to continue from the stage where it stood before the alleged vulnerability surfaced.

13. The learned counsel for the respondent has referred to the decision

of Supreme Court in Munna Lal v. Union of India and Ors. (2010) I LLJ

11 SC. In the aforesaid case, the charge against the appellant was that he

was found on duty in a drunken condition. The submission of the

appellant before Supreme Court was that there was no medical evidence

to prove that he was drunk on that day and was an alcoholic. However, in

the case before us, there is positive evidence of a witness, who has clearly

stated that the respondent had entered the office of the appellant company

along with an outsider, and they had brought a bottle of liquor which they

consumed right in the office of the appellant in the presence of the

witness. Therefore, the facts of this case are altogether different, this not

being a case of an employee being found in a drunken condition, but

being a case where he consumed alcohol right in the office in the

presence of the witnesses.

The learned counsel for the respondent has also relied upon State

of Bombay vs. Gajanan Mahadev Badley AIR 1954 Bom 351, Devender

Kumar vs. Union of India and Ors. W.P.(C) 1532/1999, decided on

14.05.2012 and Union of India & Anr. vs. D.S. Manchanda W.P.(C) No.

215/2009 decided on 10.03.2011. However, none of these judgments

contains any such legal proposition which would dissuade us from

remitting the matter back to the Inquiry Officer. The learned counsel for

the respondent has also relied upon the decision of Andhra Pradesh High

Court in B.F. Pushpaleela Devi vs. State of A.P. AIR 2002 A.P.320,

where the Court held that an appeal under clause 15 of Letters Patent

filed against an order of the learned Single Judge in a Review Petition,

declining to review the order is not maintainable. However, in the case

before us, the appellant is challenging not only the order passed in the

Review Petition, but also, the initial order passed in the writ petition and,

therefore, this judgment does not apply to the case before us.

14. It was submitted by the learned counsel for the respondent that the

appeal against the order dated 25.11.2011 alone would be barred by

limitation. We, however, find that no objection with respect to the

maintainability of the appeal on account of its being barred by limitation

was taken by the learned counsel for the respondent when this appeal

came up for hearing on 28.08.2012 or on any other subsequent date.

There was no objection from the Registry that the appeal is barred by

limitation. Had there been an objection either from the Registry or from

the respondent, the appellant could have made attempt to explain the

delay and sought condonation of delay in filing the appeal. In any case,

we take note that the Review Petition came to be dismissed only on

18.5.2012 and the appeal was filed soon thereafter. Therefore, we are not

inclined to allow this plea to be raised at this stage.

15. For the reasons stated hereinabove, while maintaining the quashing

of the penalty awarded to the respondent, we remit the matter back to the

Disciplinary Authority, which shall be competent to direct resumption of

the inquiry from the stage envisaged in sub-Rule (16) of Rule 14 of

CCS/CCA Rule. Considering the delay, which has already taken place in

conclusion of the inquiry, we direct the inquiry, if resumed by the

Disciplinary Authority, to be concluded within three months of a copy of

this order being made available to the appellant. The decision on the

report of the Inquiry Officer shall be taken by the Disciplinary Authority,

within one month of the receipt of the Inquiry Report.

The appeal stands disposed of in terms of these directions. There

shall be no order as to costs.

V.K.JAIN, J

CHIEF JUSTICE

FEBRUARY 26, 2013 bg