Ram Khilawan vs Delhi Vidyut Board
2013 Latest Caselaw 2121 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 87/1998
%                                                              8th May, 2013

RAM KHILAWAN                                                     ......Petitioner
                            Through:     Mr. Rajiv Bakshi and Mr. Shekhar Prasad
                                         Gupta, Advocates.


                            VERSUS

DELHI VIDYUT BOARD                                                   ...... Respondent

                 Through:                    Mr. Nikhil Singla, Advocate.

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 is filed by the petitioner-Sh. Ram Khilawan

challenging the orders passed by the Disciplinary Authority dated 10.11.1997

whereby the petitioner has been inflicted the punishment of dismissal from service.

The employer at the relevant time was DVB and which is now represented by its

successor entity M/s. BSES Rajdhani Power Ltd.

2. The facts of the case are that the four persons were getting house

building loans sanctioned to the employees from their PF accounts by submitting

forged documents. These four persons were Sh. R.C. Sharma Senior Clerk, Sh.

Chandan Singh Peon, Sh. Nathu Ram Cashier and the petitioner. The role which is

attributed to the petitioner is that he was a contact person for the employees of the

DVB for preparing the papers and also coordinating for grant of the loans. Article

of Charges dated 8.3.1990 was served upon the petitioner alongwith statement of

allegations. The statement of allegations reads as under:-

"Shri Ram Khilawan, Jr. Lineman while working as such in Zone No.1001(D) JKP during the year 1986 was required to maintain absolute integrity, devotion to duty and not to commit any such acts which were unbecoming of his as an employee of the Undertaking. However, the investigations made by the Vigilance Deptt. into the complaints regarding drawal of House Building Advances by the various employees of the Undertaking on the basis of forged and fabricated documents, it has been observed that Sh. Ram Khilawan with ulterior motive in connivance with S/Sh.J.C.Sharma, Sr. Clerk & Chandan Singh, Peon instigated the innocent employees to get the House Building Advances from their GPF Accounts on bogus documents. He also managed Sh. Chandan Singh to complete all requisite formalities for getting the loan sanctioned in F/o S/Sh. Ram Pal, Jr. L/Man, Attrey, Sweeper, Gopi Chand-Sr. Fitter, Har Swroop -Sr. L/Man, Kirpal Singh- Jr.L/man, Ghasi Ram-Jr..L/Man and Ram Achal-Jr. L/man and took their share/commission from these for this purpose, co-sharing Sh. Chandan Singh and Sh. J.C.Sharma.

Further the version of the loan beneficiaries have brought out that the documents on the basis of which advances were not sanctioned were managed by Sh. Ram Khilawan through Sh. Chandan Singh, Peon of P.F.Section.

The aforesaid acts of instigating the innocent employees with ulterior motive to raise the loan on bogus/fabricated documents and manage to prepare these documents on the part of Sh. Ram Khilawan amounts to gross misconduct for violating Rule-3(1) of C.C.S.(Conduct) Rule 1964 which for good and sufficient reasons render him liable for disciplinary

action under Regulation 7 of DESU (DMC) Service (Control) & Appeal) Regulations 1976 read with Section 95 of DMC Act, 1957."

3. Enquiry proceedings were conducted in which evidence was led by

both the parties. Enquiry Officer thereafter gave his report dated 12.4.1996 giving

a finding that the petitioner was guilty of the charges made against him. The

Disciplinary Authority issued a show cause notice to the petitioner dated 7.3.1997

and after considering the response of the petitioner passed the impugned order

dated 10.11.1997 whereby the petitioner has been inflicted the penalty of dismissal

from service.

4. Before I turn to the arguments as urged on behalf of the petitioner, it

is necessary to state the scope of hearing in a petition under Article 226 of the

Constitution of India, by which orders of the Departmental Authorities are

challenged. It is settled law that orders of the Disciplinary Authorities can only be

set aside if the same are in violation of law/ rules of the employer-organization or

the findings of the Enquiry Officer are perverse or principles of natural justice have

been violated. This Court exercising jurisdiction under Article 226 of Constitution

does not sit as an Appellate Court over the findings and conclusions of the

Departmental Authorities. This Court does not re-apprise the entire evidence so as

to arrive at its own findings. As already stated above only when the findings and

conclusions are illegal or perverse or in violation of principles of natural justice

can the Court interfere. Keeping in mind these parameters let me turn to the

arguments which have been urged on behalf of the petitioner in the present case.

5. The following arguments have been urged on behalf of the petitioner

for setting aside of the impugned order dated 10.11.1997 of the Disciplinary

Authority:-

(i) Allegations which were made against the petitioner by the Article of

Charges pertain to the year 1986 but enquiry proceedings commenced only in the

year 1990 and therefore this delay is in itself a ground for setting aside of the

report of the Enquiry Officer and the order of the Disciplinary Authority on the

ground of prejudice to the petitioner caused by the delay.

(ii) Enquiry Officer relied upon pre-recorded statements of few of the

witnesses who never came and deposed before the Enquiry Officer and were

therefore not subjected to cross-examination. Thus, statements of such persons

could not have been read in evidence but since that is done there is violation of

principles of natural justice because statements of witnesses who are not cross-

examined cannot be read.

(iii) It is argued that the evidence being the pre-recorded statements of

PW-3 and PW-7 stood demolished by their subsequent retractions and admissions

in favour of the petitioner.

(iv) The Disciplinary Authority which passed the order was not competent

authority to pass the penalty order against the petitioner.

6. So far as the first argument that the enquiry proceeding must fail

because the petitioner has been prejudiced as the allegations pertained to the case

in the year 1986 and the enquiry proceedings commenced in 1990 is concerned, I

put it to counsel for the petitioner that where are the necessary grounds and facts

stated in the writ petition as to how specifically the petitioner is prejudiced because

of the delay from 1986 to 1990. Counsel for the petitioner except pointing out to

general averments of prejudice, could not point out to me any specific fact which

caused prejudice on account of delay from 1986 to 1990. No doubt the counsel for

the petitioner has sought to argue that various witnesses who could have been

available in 1986 were not available by 1990 and had retired in the meanwhile,

however, when told to point out who are those persons and what were their roles

and what was the evidence to be led by them in support of the petitioner which

have been mentioned in the writ petition, no grounds and facts in the writ petition

could be pointed out giving names of those persons and the evidence of those

persons which could have been led in support of the petitioner. Therefore, the

argument with respect to prejudice on account of delay from 1986 to 1990 is only a

generalized vague stand having no substance in the same. This argument is

therefore rejected.

7. So far as the second argument that the pre-recorded statements have

been used for various employees of DVB and therefore such statements cannot be

used against the petitioner because those persons were not cross-examined, it is

necessary firstly to divide the pre-recorded statements under two heads i.e one

head with respect to statements of persons who did not depose and the second head

with respect to persons who after giving their pre-recorded statements deposed in

the departmental proceedings. I may state that the persons who gave pre-recorded

statements and thereafter deposed in the enquiry proceedings were PW-2 to PW-5

& PW-7, namely Sh. Sant Ram, Safaiwala; Sh. Dalip Singh, Junior Lineman; Sh.

Laxmi Narain, Line Mate; Sh. Kanwar Singh, Jr. Mistry; and Sh. Ram Achal,

Junior Mistry. Therefore out of 12 pre-recorded statements, Ex.S13 to Ex.S-24,

five persons appeared for cross-examination and whose pre-recorded statements

are Ex.S20 to S20A (Sant Ram/PW2), S-23 (Dalip Singh/PW3), S-24(Laxmi

Narain/PW4), S-22(Kanwar Singh/PW5) and S-19(Ram Achal/PW7).

8. Though the arguments urged on behalf of the petitioner bordered on

initial acceptance, however, on further examination it is found that the argument is

an argument only of form and not of substance. This is because at no point of time

in the enquiry proceedings petitioner ever objected to the fact that pre-recorded

statements of those persons who have not deposed in enquiry proceedings should

not be considered inasmuch as these persons have to be first called for cross-

examination. Counsel for the petitioner could not dispute that there is no order

sheet of the Enquiry Officer and nor is there any application or any other written

request by the petitioner to the Enquiry Officer for calling of persons whose pre-

recorded statements were used for their examination, and in the absence of which,

the pre-recorded statements should not be used. Therefore, once there was no

objection, I do not find any reason to accept the argument urged on behalf of the

petitioner that there is violation of principles of natural justice. This is all the more

so because departmental proceedings are not strict technical proceedings like in a

civil court or criminal court. Thus there is nothing illegal in considering pre-

recorded statements in the facts of the present case as there was no objection to the

same.

9. In any case, the argument urged on behalf of the petitioner has no

substance because I do not find any exclusive reliance in the Enquiry Report only

on the pre-recorded statements inasmuch as, the case against the petitioner has also

been established by depositions of PWs (PWs 2 to 5 & 7) who appeared in the

enquiry proceedings after giving their pre-recorded statements and were subjected

to cross-examination. Therefore, even if for the sake of arguments we take away

the pre-recorded statements of those witnesses who did not depose in enquiry

proceedings yet, there was sufficient evidence in the form of statements of seven

witnesses (including five who gave pre-recorded statements) whose depositions

have been considered to arrive at the finding of guilt against the petitioner.

10. Learned counsel for the petitioner, then very strongly relied upon the

cross-examination of witnesses PW-2 and 3 namely Sh. Sant Ram, Safaiwala and

Sh. Dalip Singh, Jr. Lineman to argue that these two persons have retracted their

statements and therefore the case against the petitioner must fall. It is also argued

with reference to the cross examination of PW-7-Sh. Ram Achal that in his cross-

examination this witness has totally contradicted himself with respect to his stand

in the examination-in-chief making his deposition unworthy or to be construed in

favour of the petitioner. Let us examine these argument urged on behalf of the

petitioner with respect to the witnesses PW2, PW3 and PW7.

11. It is correct that PW-2-Sh. Sant Ram, Safaiwala, who gave his pre-

recorded statements Ex.S-20 to Ex.S- 20A has in his cross-examination admitted

that the pre-recorded statements were not read over to him by the Vigilance

Inspector who got his signatures on the same, however, I note that the Enquiry

Officer has in his report (internal page 36) has referred to the fact that though Sh.

Sant Ram may have retracted his pre-recorded statement, however, the Vigilence

Inspector as PW-1 has confirmed the pre-recorded statement of Sh. Sant Ram

before him. The Enquiry Officer, therefore, in my opinion, rightly disregarded the

retraction of PW-2-Sh. Sant Ram because departmental proceedings are not

criminal proceedings and on the balance of probabilities, the Enquiry Officer is

surely entitled to believe statement of one witness as against the statement of

another witness.

12. So far as the admission made in the cross-examination of PW-3 -Sh.

Dalip Singh is concerned, it is found that all that is stated in the cross-examination

of PW-3 when conducted on behalf of Sh. J.C.Sharma and Sh. Chandan Singh was

that the witness said that pre-recorded statement Ex.S-23 was not written by the

witness but by the Inspecting Officer. I fail to understand that how this in any

manner would amount to retraction of a pre-recorded statement by PW-3. Also, so

far as the cross-examination on behalf of the petitioner of PW-3 is concerned, it is

found that the witness did admit that he did not pay any money to the petitioner to

get the loan application processed or getting the payment of loan amount from the

Cashier, however, the Enquiry Officer has noted that this PW-3-Sh. Dalip Singh

had however confirmed his pre-recorded statement in his examination-in-chief.

The pre-recorded statement Ex. S-23 of PW-3 ascribed role in the transactions of

taking of loans on fabricated documents and therefore, the Enquiry Officer is

justified in not considering the statement of PW-3 as wholly wiped out. The pre-

recorded statement Ex.S-23 refers to granting of the sanctioned PF loan by both the

petitioner and his co-conspirator Sh. Chandan Singh. Admission in cross-

examination would dilute the effect of the pre-recorded statement as examination

in chief, however, the dilution is only qua the admission made in the cross-

examination and not to all other facts which are stated in the pre-recorded

statement as examination-in-chief.

13. So far as the cross-examination of PW-7-Sh. Ram Achal is concerned,

it is found that in the cross-examination this witness states that he did not give any

amount to the petitioner for getting "payment of the loan advance". I do not find

that this admission is in any manner destructive of the statement in examination-in-

chief which talks of the petitioner and Sh. Chandan Singh paying a sum of Rs.

15,000/- not only for processing the loan application but also for getting the

payment of PF loan. The second part of the statement in examination-in-chief of

getting payment from PF loan may get negated by the admitted facts in cross-

examination, however, the first part in the examination-in-chief of the processing

of loan is not wiped out inasmuch as there is no admission in cross-examination in

favour of the petitioner on this aspect.

14. Once again, the legal position in this regard is required to be reiterated

that unless and until there is a complete perversity in the findings of the Enquiry

Officer, it cannot be said that the enquiry report should be set aside. Once

evidence is led there are bound to be some extant of evidence and admissions in

cross-examination in favour of either of the parties, however, it is on the balance of

probabilities that an Enquiry Officer gives his findings and conclusions and unless

the findings are perverse, this Court cannot interfere with the same. As already

stated above, the Enquiry Office has relied upon various statements of different

witnesses as also various documents for arriving at its findings and conclusions,

and therefore, some admissions in favour of the petitioner in the statements of

some of the witnesses will not mean that the final findings and conclusions of guilt

against the petitioner are perverse for entitling this Court to interfere in exercise of

its jurisdiction under Article 226 of the Constitution of India. I, therefore, hold that

on considering the entire evidence led, the Enquiry Officer was justified in arriving

at the conclusion of guilt of the petitioner, and there is no perversity in the findings

of the Enquiry Officer for this Court to interfere in his findings and conclusions

merely on account of some admissions made in cross-examination by some of the

witnesses, and which cross-examination also shows only limited admissions which

do not destroy the complete examination-in-chief of pre-recorded statements.

15. The final argument urged on behalf of the petitioner is the lack of

authority in the Disciplinary Authority to pass the impugned order dated

10.11.1997. In this regard, counsel for the petitioner has placed reliance upon the

circular of DVB dated 3.3.1997 alongwith the notification of the Govt. of NCT of

Delhi dated 24.2.1997 to argue that in terms of para-2 of the notification dated

24.2.1997 read with para 5 thereof, the Disciplinary Authority which could pass

the order was only the Member (Administration) whereas the impugned order of

the Disciplinary Authority in this case has been passed not by the Member

(Administration) but by the Additional General Manager (Administration) and

hence, the impugned order is liable to be set aside.

16. In order to appreciate the arguments urged on behalf of the petitioner,

let me reproduce the paras 2 to 5 of the notification dated 24.2.1997 and the same

read as under:-

"(2) The posts of General Manager (Electricity) Additional General Manager (Technical-Disbribution), Additional General Manager (Technical-Generation), Additional General Manager (Administration), and Financial Advisor & Chief Accounts Officer of the Corporation shall be re-designated as Chairman, Member

(Technical), Member (Technical), Member (Administration) and Member (Finance) respectively of the Board.

(3) The designations of other employees of the Corporation working under the Undertaking shall remain the same until modified by the Board.

(4) All financial, administrative and disciplinary powers which are being exercised by the Corporation or by the Delhi Electric Supply Committee, shall, subject to and without prejudice to the powers of the Board under the Act, be exercised by the Board. (5) For the time being and subject to any rules which may be framed in this behalf, all financial, administrative and disciplinary powers which were being exercised by the General Manager (Electricity)under the Corporation shall be exercised by the Chairman, and all such powers which were being exercised by the Additional General Managers and the Financial Advisor & Chief Accounts Officer shall be exercised by the corresponding member of the Board."

17. A reference to the aforesaid paras shows that there is only change of

nomenclature of persons. The Additional General Manager(Administration) in

erstwhile DESU became Member (Administration) under DVB. A reference to the

impugned order of the Disciplinary Authority dated 10.11.1997 shows that it has

been passed by Additional General Manager (Administration). Since there is only

a change of nomenclature whereby Additional General Manager (Administration)

has become Member (Administration), I cannot read the impugned order in such a

technical manner that unless and until the expression "Additional General Manager

(Administration)" was written as Member (Administration), the order can be said

to have been passed by a person without authority. Mis-description of

nomenclature cannot mean lack of authority. Since Additional General Manager

(Administration) and Member (Administration) are effectively the same

authorities, I reject the argument that the impugned order has been passed by an

authority which was not entitled to pass the order.

18. In view of the above, there is no merit in the petition, which is

accordingly dismissed, leaving parties to bear their own costs.

MAY 08, 2013                                 VALMIKI J. MEHTA, J.
ib