H.U.Siddiqui vs Jamia Hamdard (Deemed ...
2013 Latest Caselaw 2226 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 312/1995
%                                          Date of decision : 14th May, 2013

H.U.SIDDIQUI                                                     ......Petitioner
                          Through:       Mr. G.D.Gupta, Sr. Advocate with Mr. Zafar
                                         Sidiqui and Mr. Izhar Ahmad, Advocate.

                          VERSUS

JAMIA HAMDARD (DEEMED UNIVERSITY) & ANR.         ...... Respondents

Through: Mr. Dhruv Mehta, Sr. Adv. with Mr. Saket Sikri, Mr. Sameer Abhyankar and Mr. Sudeep Dey, Advocates.

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. H.U. Siddiqui the erstwhile

employee of the respondent No. 1- Jamia Hamdard University, seeking quashing of

the order of the Disciplinary Authority dated 05.07.1995 imposing penalty of

dismissal from service upon the petitioner.

2. In the present case, chargesheet is dated 25.01.1995 alongwith which

imputation of charges were annexed. There were a total of 5 charges against the

petitioner. The Enquiry Report dated 10.5.1995 exonerated the petitioner with

respect to charges 3 & 5 but held the petitioner guilty so far as charges 1,2 and 4

(partly) are concerned. Disciplinary Authority after giving a copy of the enquiry

report to the petitioner gave him a personal hearing and thereafter passed the

impugned order dated 05.07.1995.

3. Before setting out the arguments which have been urged on behalf of the

petitioner to challenge the report of the Enquiry Officer and order passed by the

Disciplinary Authority, it would be necessary to set out the parameters /scope of a

hearing in a petition under Article 226 of the Constitution whereby challenge is

laid to the orders passed by the Departmental Authorities. It is settled law that the

orders which are passed by the Departmental Authorities can only be successfully

challenged if there is violation of law/rules of the employer-organization or

violation of the principles of natural justice or perversity in the findings of the

Enquiry Officer/Disciplinary Authority. In the present case, arguments have been

urged under all these three heads.

4. Let us at the outset reproduce the relevant imputation of charges so far as

Articles 1,2 and 4 are concerned, inasmuch as a reference to them will show the

factual aspects which have been decided by the Departmental Authority:

ARTICLE OF CHARGE NO.1

In the work of drilling of tube-well, the Asstt. Engineer (Elec.), Mr. H.U.Siddiqui, did not adopt the normal prescribed procedure of calling for quotations from reputed parties by post by issuing Notice Inviting Tenders so as to obtain wide choice and competitive rates.

On the contrary, he contacted and discounted the matter with firms of his choice and collected three quotations personally by hand in October,1994. He prepared the Comparative Statement in his own hand and submitted the file on 30.11.1994 for approval of his proposal of awarding of the work to the so called lowest tenderer M/s Super Drilling Pvt. Ltd., Nehru Place, New Delhi. He even certified that their rates were reasonable. He willfully manipulated the situation to show this firm as the lowest tenderer, even though the so called lowest rates were really excessive.

Two of the tenderers, viz. M/s Super Drilling Works Pvt. Ltd., and Dantal Hydrolice Pvt. Ltd., have the same Telephone Number and Fax No. The quotations of these two firms are only marginally different, and tilted in favour of the first firm. The same typewriter has been used in typing out the quotations and the terms and conditions of the two firms are identical. The two envelope containing the quotations of these parties are also written in the same hand.

Mr. H.U.Siddiqui, Asstt. Engineer (Electrical) being fully aware of the fact that the same party was quoting under two different names is held party to this manipulation. As regard the third firm viz. S.S.Drill Well Probyn Road, Delhi, no Telephone Number has been indicated on their letter. The status and designation of the signatory have also not been mentioned. The third quotation is therefore open to serious doubt. The exaggerated rates of this party show that the same are fake and unrealistic, and obtained by the Asstt. Engineer (Electrical) solely with a view to establishing that the rates of M/s Super Drilling Pvt. Ltd. are the lowest and reasonable.

Earlier in March 1994 a reputed firm, namely Paramount Engineers, Uday Park, New Delhi, had submitted quotations for Drilling work in Talimabad and thoses rates are definitely lower to those from M/s Super Drilling Pvt. Ltd.

Mr. H.U.Siddiqui, Asstt. Engineer (Elect.) deliberately chose not to invite rates from Paramount Engineers.

When Mr. H.U.Siddiqui, some-how became aware that his irregularities had come to adverse notice. Mr. Siddiqui was clever enough to discuss the matter with M/s Super Drilling Pvt. Ltd. and get a reduction of 8% in their rates from the firm in the back date of

2.12.1994 (Letter put up to the University Engineer on 24.12.1994) so as to make their revised offer reasonable. He did this to forestall the disciplinary section then being contemplated against him for putting up the proposal for award of work at excessive rates. The whole procedure and course of section followed by Mr. H.U.Siddiqui, Asstt. Engineer (Electrical) would have caused avoidable financial loss to the University. Luckily, the mis-chief of Mr. H.U.Siddiqui, Asstt. Engineer (Elect.) was detected in time, and his recommendation to award the work to M/s Super Drilling Pvt. Ltd. was not approved. Mr. H.U.Siddiqui, is guilty of gross misconduct in manipulating the quotations with the dishonest motive of defrauding the University for personal monetary gain. In doing so, he has committed gross misconduct amounting to negligence and lack of integrity.

ARTICLE OF CHARGE NO.2.

In January 1994, the Medical Director, Majeedia Hospital proposed that old electric fittings may be replaced by new fittings in order to improve the lighting in the Hospital. For this purpose the Asstt. Engineer (Electrical) Mr. H.U.Siddiqui submitted estimates of expenditure for purchase, supply and fixing of electric decorative fittings and also certain accessories to the tune of Rs.96,625/- of this amount, the expenditure on 114 decorative pieces of electric fittings was put at Rs. 75,700/- the balance of Rs.20,925/- representing the costs of accessories. The Vice Chancellor accorded his approval on 4.1.1994 to the proposed expenditure with the remark that the items be provided on an emergency basis. Therefore, Mr. H.U.Siddiqui, A.E. (Electrical purchased on prepayment the 114 decorative pieces from Mayfair Enterprises, Bhagirath Place, Chandni Chowk, Delhi at a total cost of Rs.72,223/- inclusive of 12% C.S.T. After Vice Chancellor's approval, Mr. H.U.Siddiqui, A.E.(Elect.) was required to follow the prescribed procedure of inviting quotations from reputed parties at short notice, or make purchase through the Purchase Committee, in order to obtain lowest reasonable rates. However, Mr. H.U.Siddiqui, A.E.(Elect.), failed to adopt the normal prescribed procedure and purchased the 114 decorative fittings from Maypair Enterprises certifying the rates as reasonable even though no

comparative rates were available to judge the reasonableness of the rates of Mayfair Enterprises. The price list of Mayfair Enterprises showed the following rates for the two types of fittings:-

     1.        ME-DLF-201                    Rs. 740/- per piece
               for 2X40 watts
      2.       Same for 1X20 watts           Rs.330/- per piece

The total purchase were 114 items, 83 of the 1 st and 31 of the 2nd type. In the bill dt. 14.2.1994, the rates charged were Rs.666/- and Rs. 297/- each for type 1st and 2nd respectively, and C.S.T.012%was added, thereby, the total bill amount came to Rs.72,223.20 which was duly paid to the firm on 14.2.1994 before taking delivery of stores. The action of Mr. H.U.Siddiqui, A.E.(Elect.) in purchasing the 114 decorative fittings from Mayfair Enterprises, without calling for tenders of without associating the Purchase Committee gave rise to suspicion that Mr. H.U.Siddiqui, A.E.(Elect.) had chosen the Mayfair Brand to the exclusion of other Brands which may be equally good and may be cheaper too, with some ulterior motive. Subsequent investigations revealed that Mayfair Enterprises themselves were offering a discount of 25% on the rates shown in their price list and were exempting Universities from C.S.T. on furnishing the requisite certificate. This firm actually supplied the same electric fittings at Rs.555/- and Rs. 247.50 each to Jamia Hamdard in November/December 1994. While seeking approval of the competent authority the A.E. (Electrical) had withheld the aspects of discount and non-application of C.S.T. on furnishing the prescribed certificate with dishonest intentions. In the circumstances it is quite clear that Mr. H.U.Siddiqui, A.E.(Electrical) had paid excessive and exorbitant rates to this firm in making purchases Rs.666/- and Rs.297/- each in February 1994. In the process, the purchase of 114 decorative fittings caused heavy monetary loss of the order of Rs. 18,486/- with corresponding undue gain to the supplier. Mr. H.U.Siddiqui, A.E.(Elect.) had obviously made the purchases in February 1994 from Mayfair Enterprises at excessive cost with ulterior motive for personal gain in the said transaction. Mr. H.U.Siddiqui had thus caused avoidable monetary loss to the University and in the process had played a fraud for personal gain. He thus committed acts of gross negligence and dishonesty."

5. So far as charge/Article 1 is concerned, Enquiry Officer has dealt with the

same from internal pages 4 to 12 of his report and after considering the depositions

of both the sides as also the documents which have been filed in the enquiry

proceedings, has given the following conclusions:

"(vii) To sum up, the C.O. did not follow the prescribed procedure in October 1994 in the matter of inviting quotations for drilling work. The correct procedure was followed in Jan. 1995 for the same work (Exh. D-1). There was no urgency to justify spot collection of quotations by C.O.himself from the 3 parties (P-1 to P-3). Although he collected the quotations on 12th/15th Oct. 1994, he sat over them for 45 days and opened the quotations only on 30.11.94. Such laziness and delay on his part will expose the hollowness of his claim of urgency. Even after issue of N.I.T. in Jan. 1995, the work has still not been awarded. (vide reply of P.W.-1 (M.I.M) to Qn. 13 on page 6 of deposition). He should not have entertained or acted on the quotations of two sister firms of Nehru Place (P-1 and P-2) with the same address, phone/telex/fax numbers, but he recommended the rates in P-1 in a tendentions way. He was aware of the still lower rate of Rs. 1.60.lakhs of Paramount Engineers while his proposal of 30.11.94 (P-5) was being processed, but instead of brining it to the notice of the superior officers, he suppressed it and negotiated with Super Drilling Pvt. Ltd. and obtained 8% reduction in their quotation of 12.10.94 (P-6). Even with the reduction of 8% the quotation of Super Drilling Pvt. Ltd. was higher than the quotation of Paramount Engineers. Ultimately the Vice Chancellor detected the irregularities involved in the C.O.'s proposal (P-5) and it was not accepted on re-examination and further scrutiny. Even though in actual procedure, the University was saved from financial loss by the timely order of the Vice- Chancellor (P-5), the C.O.'s proposal involved the risk of wrongful gain to Super Drilling Pvt. Ltd. with corresponding wrong loss to the University. As the C.O. was handling the job from the start at his own level, he should have acted in a just and reasonable manner, adhering to the normal procedure. He failed to do so, but tried to cover up his failure on flimsy pretexts which cannot succeed. In my view, the first article of a charge should be held as proved against the C.O."

6. On behalf of the petitioner so far as the findings and conclusions of the

Enquiry Officer with respect to Article 1 are concerned, the following contentions

have been raised for quashing of the said findings and conclusions:

(i) Enquiry Officer has arrived at a finding against the petitioner on the charge

that petitioner did not get the quotations by post from contractors who were to do

the drilling work but instead personally went to collect the quotations showing his

personal interest towards the contractors who gave the quotations. However, this

charge against the petitioner is shown to be absolutely baseless in view of the

admissions made by PW-2 Mr. I.H. Khan who admitted that there was urgency for

the drilling work for a Tubewell and the said urgency was expressed by the Herbal

Garden Committee and thus showing that petitioner was entitled to get the spot

quotations personally.

(ii) It is also argued that principles of natural justice have been violated because

the rates with respect to tenders for drilling of tubewell which were received

subsequently in January, 1995 were not given to the petitioner in spite of being

asked for by letter dated 13.3.1995. It is argued that the request has been illegally

rejected by the Enquiry Officer vide his order dated 27.3.1995 allegedly on the

ground of documents being confidential/privileged documents.

7. In my opinion, both the arguments urged on behalf of the petitioner do not

merit acceptance. On the first argument, it may be stated that even though PW-2

admitted that there was urgency for having tube-wells, yet one cannot overlook the

fact that the original urgency was put to naught by as many as 45 days delay taken

by the petitioner to open the quotations. Thus, whatever urgency which originally

existed came to an end. This aspect has been dealt with by the Enquiry Officer in

the following manner:-

"......The C.O.'s argument is that in view of urgency, the normal procedure was not followed and spot quotations were obtained by hand. In this connection he has relied on the replies of P.W- 2(University Engineer) to Qn. No. 4 and Qn. No. 5 under cross- examination.

Even so, the fact remains that the quotations of 3 parties (P-1 to P-3) were collected by the C.O. by hand on 12th Oct. and 15th Oct. 94, but the quotations were opened only on 30.11.94, the comparative statement was prepared on 30.11.94 and the C.O. put up his proposal on 30.11.94, (vide Exh. P-4 and P-5). The C.O. had taken unduly long time of an much as 45 days even to open the quotations and then to put up his proposal, and he has not come forward with any explanation at all for such delay. On the contrary, such delay will surely establish that there was no question of urgency, and the drilling work was handed by the C.O . in a routine and lazy manner by allowing the quotations to remain in closed covers and gather dust thereon. It is indeed ominous to note that while putting up the comparative statement and seeking approval to his proposal on 30.11.94 (Exh. P-5), the C.O. has not at all referred to the drilling work being one of urgency. In the circumstances his plea of urgency factor to justify substitution of the normal usual procedure of N.I.T by spot collection by hand is unconvincing and untenable. ........" (underlining added)

8. I do not find any perversity in the aforesaid findings for interfering

by this Court under Article 226 of the Constitution of India. Clearly, therefore,

whatever urgency which existed at the outset had come to an end because the

period of delay taken for processing the quotations and which was such that surely

open bids could have been invited.

9. Another important aspect is that even if we accept the issue of urgency,

however, the issue is of the fact that the petitioner followed a procedure for

favoring a selected party. The selected party's rates were higher at Rs. 1.89 lacs as

compared to the quotation of another party's/4th party viz Paramount Engineers

who had offered to do the job at Rs. 1.57 lacs. The Enquiry Officer in this regard

has also concluded that by a back dated letter an 8% discount in the quotation of

Rs.1.89 lacs was obtained from the preferred party M/s Super Drilling Pvt. Ltd. to

bring the quotation in line with the fourth quotation. However in spite of that

discount there was still a difference of about Rs. 14,532/-. The Enquiry Officer has

also noted that not only the proposal of M/s Super Drilling Pvt. Ltd. was higher,

even after his discount offer at 8% further, the difference in the proposal of M/s

Super Drilling Pvt. Ltd. and Paramount Engineers was not put to the Vice-

Chancellor at the time of forwarding by the petitioner the proposal dated

30.11.1994. All in all I do not find that the Enquiry Officer in any manner was

unjustified in giving a finding that the petitioner was deliberately preferring one

party i.e M/s Super Drilling Pvt. Ltd, and which offer if gone through, would have

caused loss to the employer, and which was not caused because the Vice-

Chancellor in his order dated 19.12.1994 mentioned glaring irregularities in the

proposal forwarded by the petitioner for approval of the quotation of M/s Super

Drilling Pvt. Ltd.

10. So far as the second Article of Charge is concerned, it is argued that there

was urgency with respect to the purchase of the electrical fittings for installation in

the hospital and therefore, the petitioner was justified in choosing the quotation of

M/s Mayfair Enterprises. It is also argued that petitioner had rightly chosen to go

to M/s Mayfair Enterprises for purchase of the electrical fittings because the

University Engineer himself had asked the petitioner to purchase from M/s Mayfair

Enterprises, inasmuch as, this admission is found in the statement of PW-2-Mr.

I.H.Khan. It is also argued that the charge of excessive rates being paid to M/s

Mayfair Enterprises falls to the ground in view of the letter of the said firm dated

3.12.1994, by which, it was informed that there was difference in rates in the price

list of June 1993 and the price list as existing in December, 1994 in view of the

fact that the import duty on Acrylic was brought down by 20% in the Finance Bill

for the year 1994-1995. It is argued that once the necessary/ sound explanation is

given for the difference of rates quoted by M/s Mayfair Enterprises so far as the

subject purchase is concerned ie for the low rates as found in December, 1994, the

Enquiry Officer's report with respect to Charge No.2 should be quashed.

11. On the aspect of urgency of purchase of electrical fittings which is the

subject matter of Charge no.2, I need not detain myself because it is not disputed

by the respondent that there was urgency for purchase. The issue in the present

case was really as to whether the rates which were quoted by M/s Mayfair

Enterprises were excessive rates. In this regard, The Enquiry Officer after giving

the petitioner benefit of merit as regards his contention of the difference in rates in

the beginning of 1994 and at the end of 1994 has however observed that since as

per the rules involvement of Purchase Committee was required, and since

admittedly, the petitioner did not involve the Purchase Committee, consequently

(and if which Purchase Committee was involved) the better rates from M/s Mayfair

Enterprises could not be negotiated. I do not find that the conclusions of the

Enquiry Officer in this regard are perverse and need to be interfered with.

Following are the relevant observations of the Enquiry Officer in this regard:-

".................If the C.O.had associated the Purchase Committee in Jan./Feb.1994, it is quite likely that a higher discount could have been extracted from the supplier particularly when the quantity purchased was large and amount involved was substantial. There is no explanation why the C.O. did not go through the Purchase Committee for decorative items although admittedly (vide C.O.'s note dt. 24.1.94 on page 3 of Exh. P-12) the C.O. had suggested purchase of accessory items to the tune of Rs. 24402/- through Purchase Section/Committee. In Jan. 1994, the C.O. was very well aware of the procedure of making purchases through Purchase Committee and hence his action in ignoring this Committee only for decorative fittings is open to objection and suspicion.

The C.O.'s plea is that payment of Sales Tax is the concern and respond ability of the Finance Office. If Sales Tax exemption is available to Universities, the Finance Section should have claimed exemption and deducted sales tax from the invoice amount before allowing payment.

In this connection he has relied on the reply of P.W.-2 to Qn. No.11 under cross-examination (on page 12). While this may be so, the fact remain that the Purchase Committee was able to get sales tax exemption straight-away from the firm on 29.11.94/1.12.94 (vide Exhibits P-13/P- 14 and without the help of Finance Office. Accordingly, if only the C.O. had associated the Purchase Committee members in Jan. 1994, it would have been possible to delete the sales tax from the invoice itself, thereby avoiding infructuous expenditure for the University. It may be that the sales tax eventually goes into Govt. coffers and not to the supplier but at the same time it meant avoidable extra cost to the University."

12. I may state that the petitioner is justified in arguing that there is merit in his

contention, however, in my opinion, there is equal weight in the conclusion of the

Enquiry Officer that if the Purchase Committee was involved, it could have

negotiated lower rates with M/s Mayfair Enterprises. Once two views are possible,

I cannot while exercising jurisdiction under Article 226 of the Constitution of India

interfere with a plausible conclusion which has been arrived at by the Enquiry

Officer. The arguments therefore urged on behalf of the petitioner with respect to

quashing of the charges under Article- 2 are also rejected.

13. That takes us to Article/Charge No. 4 and which is in two parts. One is with

respect to petitioner not taking steps for getting the defective meter of the generator

not changed from 1990 till the chargesheet was issued, and because of which, it is

contended that petitioner was able to mask consumption of diesel and therefore,

claimed wrong figures resulting in misappropriation of amounts towards purchase

of diesel. The second aspect/part of the charge is that the register in question

which noted the readings was not got approved from the higher authorities. The

argument urged on behalf of the petitioner is that the allegations are with respect to

generator of 180KV whereas the witness of the respondents itself namely PW-5-

Sh. Azhar Ali admitted in his cross examination on 4.4.1995 that each time meters

were installed for readings in the old generator, the same used to become defective

in a few days, and which, therefore, gave valid reason to the petitioner not to

initiate action for change of the meter.

14. In my opinion, though the argument urged on behalf of the petitioner that no

steps were required to be taken for initiating change of the meter because each time

a new meter was installed, the same would become defective within few days

because the 180 KV generator was very old however, the crux of the issue really is

that there was maintained a register/log book, and though the register/log book had

to be put to the higher authority which was the University Engineer, the same was

not done. It has been held by the Enquiry Officer that because the consumption

figures had gone unchecked, this resulted in excess purchase of diesel, and misuse

thereof. The relevant findings of the enquiry report in this regard read as under:-

"(iv) According to P.W.-6, the rate of consumption of diesel per hour for the generator will depend on the load factor, the very old 180 K.V.generator cannot withstand a load beyond 50%. Any load exceeding this limit will damage the old generator and it will breakdown. After taking over charge of generator, P.W.-6 has instructed the Generator Operator (D.W.-1) to run 50% loan only. In fact D.W.-1 is now running both the generators at only 50% load

thereby show ing a consumption of only 30 litres per hour as against 40 litres per hour in the part. (vide replies of D.W.-1 to Qns. 6 and 7 under cross-examination). According to P.W.-6, the current rate of consumption is 30 litres per hour only.

(v) A perusal of the log book entries for the generators will show that upto end of 1994, D.W.-1 was showing consumption at 40 litres per hour because 75% load was assumed for both the generators 380 K.V. and 180 K.V. In other words, D.W.-1 calculated the consumption figures on a hypothetical presumption basis without reference to the limitation of the load for the old generator, namely 50% beyond which there is risk of damage and breakdown. Consequently, the quantity of litres consumed was inflated by D.W.-1 to justify excessive purchase of diesel and such excess purchase must have been misused of diesel and such excess purchase must have been misused for personal gain at the cost of the University. The C.O. was scrutinising the log book entries periodically and countersigning them. The University Engineer (P.W.-2) has seen the log books only once. D.W.-1 was making the log book entries and being a relative of the C.O.(reply to Qn. No. 4 on page 21) the inflated consumption figures had gone unchecked by the C.O. In the circumstances, it will be quite logical to infer that the C.O.was party to the bogus entries in the log book. In this connection the replies of P.W.-1 to Qns. 18 to 20 under cross-examination (page

7) will go against the C.O. in the same way as P.W.-1s deposition on page 3 (first paragraph. Inspite of the friendly hints given by P.W.-1 to C.O. to check the diesel consumption in view of information received by P.W.-1 as well as by the Vice-Chancellor that there was something suspicious about purchase and consumption of diesel for the generators, the C.O.seems to have turned a deaf ear to the advice of P.W.-1. It is really interesting that P.W.-1s version on page 3 of deposition has not been contradicted by C.O. under cross-examination of P.W.-1, and thereby C.O.has tacitly accepted the version of P.W.-1 as truthful. It may be that University Engineer (P.W.-2) and M.I.M.(P.w.-1) had sanctioned payment of the cost of diesel purchase from time to time but this cannot serve to condone much less cancel the suspicious role of the C.O. in excess purchase of diesel and misuse thereof. To my mind, the allegation of fraud in diesel purchase should be held as proved against the C.O."

15. Once again, I do not find any perversity for this Court to interfere in the writ

proceedings against a finding which cannot be said to be perverse. The Enquiry

Officer has examined the aspect in detail and has found that the wrong

consumption of diesel arose from the load factor and it was necessary that the

figures in the log book too have been checked by the University Engineer and

which was not done. Once again, it is stated that if two views are possible, this

Court is not entitled to interfere with the findings and conclusions arrived at by the

Enquiry Officer, and therefore, I do not find that the findings and conclusions of

the Enquiry Officer so far as the part of the Charge No. 4 is concerned, are in any

manner perverse for being interfered with by this Court under Article 226 of the

Constitution of India.

16. De hors the challenge to the enquiry report, it is urged on behalf of the

petitioner that there is violation of the relevant rules of the University/respondent

inasmuch as the Disciplinary Authority has failed to give any notice of imposing of

penalty upon the petitioner before passing of the impugned order dated 5.7.1995.

The argument can best be understood by reproducing ground ZF of the writ

petition and which is urged in support of this argument. This ground reads as

under:-

"ZF. That the Impugned order of dismissal was passed by the Disciplinary Authority/Executive Council in violation of the Provisions of Rule 9(4) (1) (b) of Jamia Bye-laws in asmuch

as no notice of proposed Penalty of dismissal from services was served on the appellant; Rule 9(4) (1) (b) of Jamia Bye- laws runs as follows:-

"9. Action on the Inquiry report. (4) (i) If the Disciplinary authority having regard to its findings on all or any of the articles of charge is of the Opinion that any of the penalties specified in Clauses (iv) to (vi) of Rule 5 should be imposed on the employee it shall;

(a) .......

(b) Give the employee a notice stating the penalty proposed to be imposed on him/her and calling

(ii) The disciplinary authority shall consider the representations, if any, made by the employee in pursuance of the notice given to him/her under Clause (1) and determine what penalty, if any, should be imposed on him/her and make such order as it may deem fit".

17. On behalf of the respondents, it is argued that this argument is misconceived

and reference has been invited to the following portion of the penalty order:-

"And whereas a copy of the report of inquiry was sent to Mr. H.U.Siddiqui, Assistant Engineer (Elect.) (Under Suspension) vide Memo dated 18.5.1995 and he was given an opportunity of making such submissions on the report of inquiry as he desired. And whereas, as requested by him, Mr. H.U.Siddiqui, Assistant Engineer (Elect.) (Under Suspension) was given a personal hearing by the Vice Chancellor, Jamia Hamdard on 22.6.1995. His submissions on the Report of the inquiry were received vide his letter dated 26.5.1995. The said representation of Mr. H.U.Siddiqui, Assistant Engineer (Elect.) (Under Suspension) and submissions made during personal hearing have been carefully considered by the Executive Council."

18. A reading of the aforesaid paragraph of the order of the Disciplinary

Authority dated 5.7.1995 shows that a copy of the Enquiry Report was given to the

petitioner, petitioner was given personal hearing, and therefore, I hold that both in

form and substance, the provision of Rule 9(4) (i) (b) of the bye-laws of the

respondent/University stands complied with. I do not agree with the argument

urged on behalf of the petitioner that there has to be a specific notice in writing

stating that a particular penalty is proposed to be imposed inasmuch as the

requirement of the relevant rule basically is that before imposing of penalty the

charged official must be put to notice by giving the Enquiry Officer's report and

his stand must be considered and which undoubtedly has been followed in the facts

of the present case. Accordingly, I reject the argument urged on behalf of the

petitioner with respect to violation of the bye-laws of the respondent/University.

19. That takes me to the final argument urged on behalf of the petitioner that

action against the petitioner is mala fide because petitioner was a President of the

Union of the respondent/University and the chargesheet dated 25.1.1995 was

served immediately after the Union through the petitioner had given a call for a

pen down strike on 16.1.1995 and suspension order against the petitioner was

issued on the same day in the evening.

20. In my opinion, once again this argument is without merit because what we

have to see is whether Enquiry Officer has arrived at his findings and conclusions

according to law. Once the Enquiry Officer has taken care to give detailed

findings and conclusions and which findings and conclusions are validly linked to

the evidence which has been led in this case, then, the findings and conclusions of

the Enquiry Officer cannot be set aside on the grounds of alleged mala fides. Even

if, allegedly mala fide exists, once charges are otherwise duly proved in the

enquiry proceedings, then it is not the law that even after charges are proved,

merely because mala fide exists, the valid findings and conclusions of the Enquiry

Officer have to be set aside. This argument urged on behalf of the petitioner is also

accordingly rejected.

21. No other issue is pressed or urged before me.

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

dismissed, leaving the parties to bear their own costs.

MAY 14, 2013                                         VALMIKI J. MEHTA, J.
dkg/ib