Delhi High Court
G.S. Gill vs Electronics Corpn. Of India & Ors. on 22 January, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.3061/1995
% January 22, 2013
G.S. GILL ..... Petitioner
Through: Mr. Arun Birbal, Adv.
versus
ELECTRONICS CORPN. OF INDIA & ORS. ..... Respondents
Through: Ms. Shaveta Chaudhary, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition under Article 226 of the Constitution of India
is filed by the petitioner/G.S.Gill seeking quashing of the penalty order dated
10.6.94 and the appellate order dated 30.4.95 dismissing the appeal of the
petitioner. By the penalty order dated 10.6.94, the petitioner was visited
with the penalty of removal from service not amounting to a disqualification
for future employment.
2. The facts of the case are that the petitioner joined the first
respondent corporation-Electronics Corporation of India Limited as a
Tradesman A (class IV employee) with a basic qualification of matriculation
on 1.1.1968. Petitioner was thereafter promoted to UDC on 1.1.72, to Office
Assistant on 1.1.77 and then to Assistant Officer on 1.1.1980. During his
employment with the respondent No.1, the petitioner obtained a qualification
known as Sahitya Sudhakar by the Bombay Hindi Vidyapeeth, Bombay.
This qualification as per the petitioner was equivalent to B.A(Hindi)
inasmuch as the petitioner filed and relied upon before the enquiry officer a
letter dated 5.6.1985 issued by Ministry of Education wherein the Sahitya
Sudhakar examination conducted by the Bombay Hindi Vidyapeeth,
Bombay has been recognized as equivalent to B.A. examination at Hindi
level. Recognition is accordingly granted to the Sahitya Sudhakar courses
with equivalence thereof to B.A. (Hindi). As per the petitioner, the
employer corporation accepted this qualification of the petitioner equal to
graduation by the employer‟s letter dated 20.3.1986. This letter dated
20.3.1986 of the employer congratulates the petitioner for the attaining of
Sahitya Sudhakar qualification equivalent to B.A. in Hindi level. This letter
dated 20.3.1986 concludes by noting that the additional qualification of the
petitioner will be taken on record for the purpose of the petitioner‟s career
growth. It is undisputed before me by the parties that the petitioner was
promoted from Assistant Officer to Liaison Officer on 1.3.1985, and for
which, the respondent-corporation accepted Sahitya Sudhakar qualification
as equivalent to graduation in B.A.(Hindi). This position of promotion of
the petitioner to the post of Liaison Officer is final because admittedly there
till date have not taken place any proceedings to revert the petitioner from a
Liaison Officer to an Assistant Officer. The difficulty started for the
petitioner when the petitioner applied for being promoted to a Senior Liaison
Officer in around the year 1991. A chargesheet was then issued to the
petitioner on 25.2.1992 wherein two charges were leveled against the
petitioner. The first charge was that the petitioner obtained the P. G.
Diploma course from Delhi Institute of Management and Services (in short
„DIMS‟) on the basis of sponsorship for the employer company in July, 1981
but had taken admission to the course by suppressing facts and giving a false
declaration to the DIMS Institute that the petitioner was a graduate. The
second charge against the petitioner was that a letter of DIMS dated
30.5.1991 given by the petitioner to the employer/respondent No.1 was a
false and fabricated document inasmuch as it is stated that the P.G.Diploma
acquired was on the basis of one year duration whereas the course was not of
one year. Since the language of the chargesheet would become material for
the purpose of the present case, I would reproduce the relevant portion of the
chargesheet, and which reads as under:-
"Certain allegations as contained in para-2 have been made
against you and based on the allegations, you are accordingly
charged with misconduct as enumeration in para-3 below:
2. Allegations:-
2.1 It has been reported that you have acquired PG Diploma
in IRPM by taking admission in Delhi Institute of
management & Services on the basis of sponsorship
from the company in the year July 1981 with Roll
No.50706. It has now been found, on verification, from
the above institute that you had indicated in the
application that you were a graduate (B.A.) at the time
of admission into the above course. But, as per the
records available, you are not a full fledged graduate as
the certificate "Sahitya Sudhakar" possessed by you in
Hindi from Bombay Hindi Vidyapith is not treated as
equivalent to the degree and you have not passed any
degree examination from any recognised University.
You have thus obtained the admission in DIMS and
acquired the said PG Diploma suppressing the facts
regarding qualification and also giving a false
declaration to the Institute that you were a graduate.
2.2 It has also been reported that you have produced a letter
issued by Dy.Registrar of DIMS certifying that the said
PG Diploma acquired by you is of one year‟s duration.
But, it has now been found, on verification, that the said
letter purported to have been issued by Dy.Registrar of
DIMs is fabricated and false.
2.3 It is therefore, alleged that you have obtained admission
into the said diploma course by fraudulent means
suppressing the factual information and also produced a
false document with an intention to get promotion to the
next higher grade, through the course is not recognised.
3. You are therefore alleged to have committed the
following misconducts under Rule 5 of Conduct,
Discipline and Appeal Rules of the Company.
Charges
i. Furnishing false information and document.
ii. Commissioner of an act subversive of discipline or of
good behaviour.
xxxxxxxxx"
3. On the basis of the chargesheet, enquiry proceedings were held
on two dates. First date of the enquiry proceedings is 17.12.1992 at
Hyderabad and the second date of the enquiry is 5.7.1993 at Delhi. The
proceedings were shifted to Delhi by the respondent suo moto without any
consent being obtained from the petitioner, though the respondent-employer
claimed that the shifting was done because the petitioner was posted at
Delhi. The petitioner claims violation of principles of natural justice, inter
alia, on the ground that the Defence Assistant engaged by the petitioner was
posted at Hyderabad and the petitioner therefore suffered grave prejudice
because the Defence Assistant could not travel to Delhi.
4. The Enquiry Officer gave his report dated 24.7.93 holding the
petitioner guilty of the charges alleged in the chargesheet. Following are the
findings of the Enquiry Officer:-
"FINDINGS OF THE ENQUIRY OFFICER
Charge No.1 : Furnishing false information and
document.
Charge no.1 stands substantiated with the following
evidences:
i) Obtained admission in PG Diploma of DIMS in the
year 1980 stating that his educational qualification is
B.A. (exhibit no.5). This is further confirmed by
exhibit no.6.
ii) It is very clear from the exhibit no. 5 that the duration
of the Course is six months but the DE has submitted
a false certificate from Dy Registrar, DIMS, New
Delhi (exhibit no.2) to the effect that the course
duration is one year.
iii) Again, this exhibit no.2, signed by Dy Registrar of
DIMS is found false with exhibit no.6 issued by
Director, DIMS who has categorically stated that they
do not have any Dy Registrar to issue such letters on
their behalf.
iv) Submission of Sahitya Sudhakar examination
Certificate in the year 1987 though it was issued on
5.8.1984.
Charge no.2: Commission of an act subversive of
discipline or of good behaviour.
Charge no.2 stands substantiated with the following
evidences:
i) Submission of false information to both Management
as well as to DIMs that he is a Graduate.
ii) Submission of fabricated documents such as exhibit
no.2.
iii) Misleading the Management that Sahitya Sudhakar
examination is equivalent to B.A. in getting
promotion knowing fully well that he is APO, and
going to be considered for the post of PO/Liaison
Officer.
iv) Misleading the educational institution like Indira
Gandhi National Open University and University of
Mysore in seeking admission for higher studies as if
his basic qualification is Graduation.
v) Submission of PG Diploma Certificate stating that it
is one year course.
vi) Submission of a Certificate from a Private Institute
like DIMS which is not affiliated to any University of
recognised by any State Govt. Or Government of
India.
vii) Knowing fully well being in Public Sector
Undertaking recognition of the qualification as laid
down by Ministry of Education, the DE submitted a
false certificate.
Copy of the Proceedings and the relevant exhibits are
enclosed.
(N. K. TULI)
ENQUIRY OFFICER
To: Chairman & Managing Director ECIL."
5. Learned counsel for the petitioner has argued before me the
following points:-
i) The sum and substance of the chargesheet is that the Sahitya Sudhakar
qualification is not equivalent to B.A. examination and secondly of the
documents dated 30.5.1991 issued by DIMS stating that the P.G.
Diploma course passed by the petitioner is wrongly being said as being
equivalent to one year course. It is argued that the case of allegedly
suppressing of the qualification of Sahitya Sudhakar as being equivalent
to graduation has been alleged to form the basis of wrong admission in
the P.G. Diploma course of DIMS, i.e giving a false declaration to the
DIMS Institute by the petitioner as being a graduate is incorrect so far as
the aspect of suppressing of required qualification of the petitioner being
a B.A. graduate for obtaining P.G. Diploma course, because the
respondent No.1/employer never at any point of time sought to deny the
letter of the Ministry of Education dated 5.6.1985 whereby the Sahitya
Sudhakar examination was treated as equivalent to B.A. examination at
Hindi level, and on the basis of which the petitioner was admittedly
promoted by the respondent No.1 itself from Office Assistant to a Liaison
Officer, and admittedly there is no demotion sought to be made of the
petitioner from Liaison Officer to an Assistant Officer and therefore, the
charge of any concealment against the petitioner for furnishing of any
false information is incorrect. So far as the aspect of the document dated
30.5.1991 having not been issued by DIMS is concerned, it is argued on
behalf of the petitioner that there is no reason for the petitioner to forge
the said document which is on the letterhead of DIMS, besides the fact
that no oral evidence was led on behalf of the department in the enquiry
proceedings to show the fabrication of this letter except filing a letter
dated 1.8.1991 from DIMS that the letter dated 30.5.1991 was not issued
by DIMS. It is also argued that the substance qua this allegation in the
chargesheet basically is that the P.G.Diploma course is wrongly said to
be of one year duration, and in the enquiry proceedings it was sought to
be made out by the respondent No.1 that the diploma course was only of
six months duration, but this was a new point not found in the
chargesheet.
ii) There has been gross violation of principles of natural justice in the facts
of the present case because the onus to prove the charges was on the
employer, but the employer led no oral evidence whatsoever of even a
single witness to prove the charges against the petitioner. Violation of
principles of natural justice is also alleged on the ground that after second
and the final hearing was conducted on 5.7.1993, documents being
Ex.Nos. 16 to 19, 21 and 23 were allowed to be filed on behalf of the
respondent No.1 without giving copies of the same to the petitioner or
calling upon the petitioner to meet the same. Violation of principles of
natural justice is also alleged on account of violation of the provision of
Rule 34 of the Rules framed by the respondent No.1 with respect to
conduct of enquiries in that it was mandatory for the department to have
examined witnesses to prove its case, and department is erred in
conducting a summary enquiry without leading evidence to prove its case
or giving any opportunity to the petitioner to lead evidence in support of
his case.
6. On behalf of the respondent No.1, its counsel has supported the
report of the Enquiry Officer by contending that there has been suppression
of facts on behalf of the petitioner that the petitioner actually was not a
graduate in B.A. and, also the letter of DIMS dated 30.5.1991 is a forged and
fabricated document and which becomes clear from the letters dated
1.8.1991 (Ex.4) and 8.10.1991 (Ex.6) of DIMS to the respondent No.1. It is
also argued on behalf of the respondent No.1 that the petitioner got the P.G.
Diploma course by producing of false document so that the petitioner can
get promotion with the respondent No.1/employer to a higher grade.
7. I have already reproduced the relevant portion of the
chargesheet dated 25.2.1992 above. Firstly, in my opinion, chargesheet is
not very happily worded. When we read para 2.1 in substance, what actually
is alleged against the petitioner is that the petitioner obtained admission in
DIMS and acquired the P.G.Diploma course by suppressing facts with
regard to his qualification as he was not a B.A. as stated in the application to
DIMS. There is no other allegation in this para 2.1 of the chargesheet.
Therefore, the issue which arises is whether the petitioner had suppressed
any material fact in obtaining the P.G.Diploma course from DIMS because
he wrongly alleged himself as B.A. whereas he was not.
8. In this regard, I am of the opinion that it cannot be said that the
petitioner was guilty of any alleged suppression of facts inasmuch as the
petitioner had way back in the year 1985 given the letter of the Ministry of
Education dated 5.6.1985 to the respondent No.1 wherein it is said that the
Sahitya Sudhakar examination of Bombay Hindi Vidyapeeth is equivalent to
B.A. examination at Hindi level. The respondent No.1 also accepted this
fact by its letter dated 20.3.1986 and confirmed that this qualification would
be taken note of for the career growth of the petitioner, and the petitioner
was promoted from the post of Asst. Officer to Liaison Officer on 1.3.1985
taking Sathiya Sudhakar as equivalent to graduation course. There will
however remain the issue of the qualification of Hindi Sahitya Sudhakar
being of 1984 but the petitioner in July, 1981 applying for P.G.Diploma
course stating that he is B.A. in his application.
9. The aforesaid facts show that there is with respect to the alleged
suppression by the petitioner an existence of a grossly vexed question of
fact. On the one hand, the petitioner was given the letter by the respondent
No.1 dated 20.3.1986 accepting Hindi Sahitya Sudhakar as equivalent to
B.A. examination for Hindi level and so promoted on that basis, however,
there can be an issue with respect to whether the petitioner was mandatorily
bound to have a B.A. qualification for applying for the P.G.Diploma course
with DIMS and whether he had such qualification in the year 1981. On this
aspect, neither any evidence was led nor any documentary record exists in
the enquiry proceedings as to what is the required qualification for applying
to the P.G.Diploma course of DIMS.
10. So far as the aspect of the letter dated 30.5.1991 being forged is
concerned on the one hand the petitioner seems to have a case that the letter
cannot be a forgery because it is on the letterhead of the DIMS (though it
does not have a reference number) and signed by the Deputy Registrar, but
the said institute being a private institute for some reason is now wanting to
back out of the said letter and which aspect can only be made clear if
opportunity is given to the petitioner to lead evidence to establish the fact
that the letter dated 30.5.1991 of DIMS is not a forged and fabricated
document. Similarly, respondent No.1 in fact besides simply filing letters of
DIMS and which are simply accepted as Ex.4 and Ex.6 have not called any
witness from DIMS to prove these letters and nor has an opportunity been
given to the petitioner to cross-examine such witnesses as also lead his own
evidence to deny the assertions which have been made by the DIMS in its
letters dated 1.8.1991 and 8.10.1991.
11. After having given the respective facts of the present case, and
the respective stands of the parties, it will be necessary at this stage to refer
to Rule 34 of the Rules of the respondent No.1-Corporation with particular
emphasis on sub-Rules 1, 3, 6, 11 and 12 and which read as under:-
"1) No order imposing any of the major penalties specified
in Clauses (v), (vi) and (vii) of Rule-32 shall be made
except after an inquiry held in accordance with this Rule.
.........
3) Whether it is proposed to hold an inquiry, the
Disciplinary Authority shall frame definite charges on the
basis of the allegations against the employee. The
charges, together with a statement of the allegations on
which they are based, a list of documents by which and a
list of witnesses by whom the charges are proposed to be
substantiated shall be communicated in writing to the
employee who shall be required within such time as may
be specified by the Disciplinary Authority not exceeding
15 days), to either specifically admit or deny any or all
charges, through a written statement.
..........
6) The employee against whom misconduct is alleged may
take the assistance of any other employee of public
servant but is not entitled to engage a legal practitioner
for the purpose.
..........
11) On the date fixed for the inquiry, the oral and
documentary evidence by which the articles of charges
are proposed to be proved shall be produced by or on
behalf of the disciplinary authority. The witnesses shall
be examined by or on behalf of the Presenting Officer
and may be cross-examined by or on behalf of the
employee. The Presenting Officer shall be entitled to re-
examine, the witnesses on any points on which they have
been cross-examined, but not on a new matter, except
with the leave of the Inquiring Authority. The Inquiring
Authority may also put such questions to the witnesses as
it thinks fit.
12) Before the close of the prosecution case, the Inquiring
Authority may, in its discretion allow the Presenting
Officer to produce evidence not included in the charge-
sheet, or may itself call for new documentary evidence or
recall or re-examine any witness. In such case the
employee shall be given opportunity to inspect the
documentary evidence before it is taken on record, or to
cross-examine a witness, who has been so summoned."
12. A reference to the aforesaid Rules show that there is an innate
obligation of the Enquiry Office in cases such as the present where vexed
questions of facts exist to allow oral evidence to be led i.e witnesses being
examined, and they being cross-examined and also the fact that if new
documentary evidence after hearing was led by respondent No.1 then further
opportunity is given to the affected party i.e petitioner ought to have been
given to not only explain the documents, but to lead additional evidence in
rebuttal. Admittedly all the aforesaid requirements of Rules have not been
followed by the Enquiry Officer because the entire enquiry is completed in
two hearings, one at Hyderabad and another at Delhi. As already stated
above no oral evidence has been led by the respondent No.1 and no date was
fixed for the petitioner to lead his evidence. Also, various documents being
Exs.16 to 19, 21 and 23 which have been relied upon by the enquiry officer
were never given to the petitioner so that the petitioner can in any manner
explain the same or can lead the evidence to rebut the contents of the same.
13. By the impugned proceedings the petitioner has been removed
from service, and which is a drastic penalty against the petitioner. An order
which is so harsh as the one in question being removal from the service will
have to be decided with respect to charges alleged on detailed evidence
which is led on behalf of both the parties. What emerges from the record of
the Enquiry Officer in the present case is a very cursory and inadequate
endeavour to comply with the requirements of natural justice especially the
compliance qua the specific sub-Rules of Rules 34 of leading of oral
evidence, cross-examination of the witnesses of the other party and allowing
an affected party to lead additional evidence and finally if the department is
allowed to lead documentary evidence at the fag end of the enquiry and that
too without copy of such document being furnished to the affected party
then opportunity for rebuttal evidence had to be given to the petitioner. In
my opinion, therefore it is necessary that in the facts of the present case, that
the penalty order dated 10.6.1994 and the appellate order dated 30.4.1995
are set aside being violative of the principles of natural justice. It will be
open to the respondent No.1 to conduct fresh enquiry proceedings against
the petitioner, and that enquiry proceedings shall follow the applicable Rules
qua the principles of natural justice. I may state that what strongly
persuades me to set aside the impugned orders is basically because the
respondent No.1 has in fact acted upon the Hindi Sahitya Sudhakar
qualification of the petitioner to give him promotion from the post of
Assistant Officer to a Liaison Officer, and which promotion admittedly till
date is not sought to be set aside by the respondent No.1, and which
promotion was given taking the Hindi Sahitya Sudhakar qualification as a
graduation /B.A. I do not express my opinion on merits in one way or the
other because this aspect will be ultimately decided by the Enquiry
Officer/disciplinary authority and the appellant authority after principles of
natural justice are followed both in letter and spirit.
14. At this stage, counsel for the petitioner has drawn my attention
to Rule 29(4) of the Rules with respect to conduct of disciplinary
proceedings and which Rule reads as under:-
"Rule 29(4)
Where a penalty of dismissal or removal from service
imposed upon an employee is set aside or declared or
rendered void in consequence of or by a decision of a
court of law and the disciplinary authority, on
consideration of the circumstances of the case, decides
to hold a further inquiry against him on the allegations
on which the penalty of dismissal or removal was
originally imposed, the employee shall be deemed to
have been placed under suspension by the appointing
authority from the date of the original order of dismissal
or removal and shall continue to remain under
suspension until further orders."
15. Accordingly, by following the Rule 29(4) I order that in case
the respondent No.1 decides to hold further enquiry against the petitioner,
the petitioner will be deemed to be placed under suspension from the date of
the original order of dismissal or removal and shall continue to remain under
suspension until further orders of the appropriate authority. Whatever
monetary benefits which have to flow to the petitioner on compliance of
Order 29(4) of the Rules shall in accordance with law be given to the
petitioner by the respondent No.1.
16. In view of the above, the writ petition is allowed and the
impugned orders dated 10.6.1994 and 30.4.1995 are set aside, giving liberty
to the respondent No.1 if it so thinks fit, to conduct further enquiry against
the petitioner in accordance with law.
17. Parties are left to bear their own costs.
VALMIKI J. MEHTA, J
JANUARY 22, 2013
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