Shri S. R. Aggarwal vs National Textile Coporation And ...
2013 Latest Caselaw 5067 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.2216/1999

%                                                    6th November, 2013

SHRI S. R. AGGARWAL                           ..... Petitioner
                   Through:              Mr. Anil Mittal, Advocate.

                          Versus

NATIONAL TEXTILE COPORATION AND ANR.         ...Respondents

Through: Mr. Sanjoy Ghose, Advocate for respondent No.1.

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 impugns the orders passed by the

departmental authorities; of the disciplinary authority dated 25.6.1998 and

the appellate authority dated 30.9.1998; inflicting the penalty of dismissal

from services upon the petitioner. Charge against the petitioner is misuse of

LTC rules and also availing LTC amounts without utilizing the amounts for

the requisite travel.

2. The scope of hearing of a petition under Article 226 of the

Constitution of India against the orders of the departmental authorities is

now well settled. This Court can only interfere if the findings are perverse

or violate the principles of natural justice or violate the rules of the

organization or are against the doctrine of proportionality.

3. In the present case, it may be noted that enquiry proceedings

were conducted against the petitioner exparte as the petitioner did not appear

in spite of notice. The aspects of non-appearance of the petitioner and

notices being issued to him are inter-alia stated in paras 2 to 6 of the enquiry

officer's report and the same read as under:-

"2. By a letter of even date by the disciplinary authority C.O. was asked to show cause and submit his written statement in respect of proposed inquiry. But neither any reply to show cause nor written statement was filed even though charge sheet was served personally on 24.1.98. Vide separate order No.NTC/DPR/2051/97-Vig. Dated 26.2.98 issued by the C.M.D. of the Corporation, Shri B.B. Jaitly, Joint Manager (Vigilance), NTC (DP&R) Ltd. was appointed as presenting officer.

3. On 5.3.98, I fixed 16.3.98 as the date for preliminary hearing and affording opportunity to inspect documents of the Management and submission of list of defence documents in the meanwhile. This order was forwarded to the charged officer by registered A/d and under Certificate of posting both at his Delhi and Amritsar address. On 16.3.98 C.O. did not appear inspite of service of notice and also by the order sheet of 30.3.98, the preliminary hearing was adjourned to 17.4.98 and the said order was notified to CO by speed post and registered post at his Delhi address and by way of abundant caution, published the notice in the Indian Express daily of 9.4.98 in their Chandigarh edition, which has wide publication in Amritsar. On 17.4.98, CO again did not appear in the Inquiry.

4. The inquiry was being delayed due to the absence of Shri Agarwal.

As Shri Agarwal was under impression the inquiry needed early conclusion. Since the CO was not appearing in Inquiry, it became apparent that CO does not admit his guilt and the matter needed a full fledged regular inquiry. On 17.4.98, a schedule was laid down for inspection of listed documents in the charge-sheet latest by 30.4.98 and submission of list of defence documents and defence witnesses latest by 8.5.98. The date of hearing was adjourned to 25.5.98. A copy of this charge-sheet dated 17.4.98 was sent to Shri Agarwal, C.O. at his both Delhi and Amritsar address under Regd. A/d, Speed Post and UPC. One copy was also sent to the General Manager, Dayalbagh Spinning & Weaving Mills, Amritsar, for arranging inspection of the documents as per the schedule laid down. Publication of the order was also made in the newspaper in Indian Express, Chandigarh edition on 26.4.98 and Delhi edition on 25.4.98. However, Shri S.R. Agarwal did not make inspection of the documents and submit the list of defence witnesses and the defence documents as per the schedule or at all. No intimation was received from Shri Agarwal in this regard. A Publication was also made in the newspaper "Indian Express on 4.5.98 to this effect and for day-to-day hearing from 25.5.98.

5. On 25.5.98, a telegram was received that C.O. is unable to attend the inquiry because he is sick and medical certificate therefore follows. At about 13.00 hrs. a photocopy of medical certificate issued by a private doctor was received which indicated that C.O. is suffering from anxiety neureris tension and headache and needs two days rest. The Inquiry was accordingly adjourned for two days fixing 27.5.98, as next date of hearing. The postponement was notified to C.O. by speed post on 25.5.98 itself and published in Punjab Kesari "Newspaper on 26.5.98" indicating the adjourned date of hearing. It was made very clear that the matter will proceed on day-to-day basis.

6. On 27.5.98, when the hearing was started, Sh. Agarwal was again absent and no communication was received from Shri Agarwal. When Shri Agarwal failed to turn up even after waiting for two hours, there was no reason for further adjournment of inquiry. Accordingly, the proceedings started exparte. The examination of witnesses who were present and waiting since 25.5.98 were started. In the first instance the original documents, as were listed with the charge-sheet,

were taken on records and were marked as exhibits S-1 to S-24. Thereafter, the evidence of following five management witnesses were completed on 27.5.98 and they were marked as PW-1 to PW-5:- (1) Sh. D.K. Verma, Joint Manager (F&A), PW-1, (2) Sh. L.L. Katyal, Asstt. Manager (F&A), D.O., Delhi, PW-2, (3) Sh. Ajay Kaul, Asstt. Manager (Pers.), NTC (DP&R) Ltd., New Delhi-PW-3, (4) Sh. Ram Prakash Singh, Cashier, DESWM, Amritsar, PW-4 and (5) Sh. R.K. Bhandari, Dy. Manager (F&A), DBSWM, Amritsar PW-5. After recording the evidence of these five management witnesses, the inquiry proceeded to next date i.e. 28.5.98. On 28.5.98 also, Shri Agarwal was again absent inspite of clear cut notice. Further, no communication was received from Shri Agarwal. After waiting for one hour and thirty minutes, the evidence of the remaining three listed witnesses were started:-

i) Sh. J.P. Sharma, PW-6, GM, DBSWM, Amritsar

ii) Sh. R.K. Sharma, PW-7, GM, ATM, Delhi

iii) Sh. Ravi Kant, PW-5, Asstt. Manager (Vigilance) N.T.C. (DP& R) Ltd., N. Delhi." (underlining added)

4. After the petitioner was proceeded exparte evidence of the

witnesses of the management was recorded and enquiry officer has

thereafter given his report holding the petitioner of wrongly obtaining LTC

amounts. Petitioner not only wrongly obtained LTC for a year for which he

had already obtained LTC amounts, and when on his request to consider the

same for a subsequent year was accepted, the petitioner however utilized the

LTC amount without actually travelling to his home town. Petitioner

cancelled the tickets and utilized the moneys of LTC benefit without actually

travelling. The aspects against the petitioner are stated in the charge-sheet as

under:-

"Shri R.S. Agarwal while functioning as Assistant Manager (Finance & Accounts) in Ajudhia Textile Mills, Delhi claimed and received Leave Travel Concession facility for himself and his family members for the block year 1993-96 during the period from 28.12.95 to 04.01.96. Subsequently Leave Travel Concession facility for the block year 1993-96 was extended upto 31.12.97 for those employees who could not avail Leave Travel Concession. However, Shri Agarwal again submitted an application for an advance for availing Leave Travel Concession for the block year 1993-96 and also drew an advance of Rs.14,000/-. Subsequently, Shri Agarwal submitted Leave Travel Concession Bill for Rs.22,866/- for himself and his family members giving out the ticket nos. on the basis of which journey is said to have undertaken to Pune. Shri S.R. Agarwal also furnished photocopies of the railway tickets in support of his having undertaken the journey. While processing his Leave Travel Concession Bill, it was noticed that he had already availed Leave Travel Concession for the block year 1993-96 during the period from 28.12.95 to 04.01.96. When this fact was pointed out to him, Shri Agarwal requested that his Leave Travel Concession Bill may be treated as Leave Travel Concession for Home Town for the block year 1997-98. This request of Shri Agarwal was accepted and his Leave Travel Concession bill was passed and balance amount of Rs.8,666/- after adjustment of the advance of Rs.14,000/- was paid and received by Shri Agarwal, on his signing all acquittance therefor.

Later on it transpired though vigilance investigation that Shri Agarwal had got cancelled the said Railway tickets on 05.06.97 which were booked by him for journey(s) from Hazrat Nizamuddin to Pune and back from Pune to New Delhi in respect of himself and his family members as per details given below:-

Ticket No. PNR Nos. i) 210-7692036 From Hazarat Nizamuddin 59593282

ii) 220-7692107 to Pune 59593283 PNR Nos.: iii) 610007 From Pune to New Delhi 59621364

iv) 610014 59621365 The aforesaid fact is borne out by the letter dated 30.12.97 (Ex.S-14 and S-15) of Northern Railway (L.T.C. Verification), New Delhi as well as letter dated 12.01.98 (Ex.S-16) of the Chief Commercial Manager, Computer Centre, Central Railways, Bombay V.T."

5. The disciplinary authority after issuing appropriate notices to

the petitioner to question the enquiry officer's report has given the following

findings:-

"9. I find that Shri S.R. Agarwal has not participated in the inquiry. The Inquiry Officer in his Inquiry Report has given detailed reasons for proceeding ex-parte against Shri S.R. Agarwal. I have carefully considered the reasons give by the Inquiry Officer in the Inquiry Report. The Inquiry Officer has fully established that inspite of several notices issued to Shri S.R. Agarwal and the publications thereof made in the Newspapers on various dates notifying Shri S.R. Agarwal to participate in the inquiry but, Shri S.R. Agarwal never attended the inquiry. It has been established that Shri Agarwal was deliberately avoiding the inquiry inspite of knowledge. Even the publication of the date of inquiry was made by the Management in the Newspapers namely; Times of India dated 17.05.98 and Indian Express dated 18.05.98 informing Shri S.R. Aggarwal to participate in the inquiry test it is contended by Shri S.R. Agarwal that he had no knowledge of the enquiry. On 25.05.98, Shri S.R. Agarwal filed Medical Certificate for 2 days postponement which was granted but even thereafter, Shri S.R. Agarwal did not appear in the inquiry. Thus, the Inquiry Officer has given fair and reasonable opportunity to Shri Agarwal to participate in the inquiry which Shri S.R. Agarwal has failed to avail for obvious reason viz a clear case of dishonesty on the basis of Shri Agarwal's own documents furnished to the Management withdrawing Leave Travel Concession coupled with Railways intimation of cancellation of the tickets. The charge against Shri S.R. Agarwal has been duly proved as held by the Inquiry Officer on the basis of documents adduced by way of evidence during the inquiry as indicated earlier and the deposition made by various witnesses. It has been duly proved in the inquiry that tickets on the basis of which Shri S.R. Agarwal claimed to have undertaken the journey alongwith his family members were void and in fact, cancelled by him and refund thereof was obtained by him from the Railway Authorities but still Shri S.R. Agarwal claimed final Leave Travel Concession Bill on the basis of those cancelled tickets by dishonestly representing to the management that he and his family

members undertook the journey on those void tickets and on such misrepresentation payments were obtained from the Corporation.

10. It may be stated here that on 25.05.98 when the inquiry was finally fixed for hearing after several adjournments by the Inquiry Officer, Shri Agarwal addressed a letter dated 21.5.98 to the Chairman-cum- Managing Director that Inquiry Officer is biased against him, since he works under the Chairman-cum-Managing Director i.e undersigned. As noticed earlier, Shri Agarwal has never appeared before Inquiry Officer, to arrive at a conclusion that Inquiry Officer is biased. Shri Aggarwal seems to think every employee of the management who works under the Chairman-cum-Managing Director, is biased against him without specific instances of biasness. The request for change of Inquiry Officer being groundless was rejected." (underlining added)

6. Petitioner was accordingly imposed with the penalty of

dismissal from services. The aforesaid facts show that petitioner was

rightly proceeded exparte in the proceedings before the enquiry officer as the

petitioner did not appear in spite of notices. In fact, there were newspaper

insertions and still the petitioner did not respond.

7. The contention on behalf of the petitioner that he was only

issued notice for 25.5.1998 and next date was 27.5.1998 and therefore

principles of natural justice are violated is an argument without merit in

view of the detailed paras of the enquiry officer's report which have been

given above taken with the malafides of the petitioner of deliberately not

participating in the enquiry and not appearing on any date after 25.5.1998

and when the petitioner could have appeared. In my opinion, once the

petitioner did not file any written statement in enquiry proceedings, did not

appear and lead evidence, did not have the courage to stand the test of cross-

examination by appearing as his own witness and the aspect with respect to

wrongly obtaining LTC and its being taken for the next year being admitted,

the fact of cancellation of tickets having been proved by the management

and the petitioner not receiving the LTC amounts although he did not travel

justify the actions which have been taken by the departmental authorities.

8. It is settled law that this Court does not sit as an Appellate

Court and substitute its views for the departmental authorities, more so

where the proceedings are exparte and the charged officer does not appear.

The contention of the petitioner that he did not receive legible copies is an

argument of desperation because if the petitioner was serious in his defence,

he ought to have appeared in the enquiry proceedings and contested the case

which he did not. These sort of technical defences do not deserve

acceptance in the facts such as the present.

9. In view of the above, there is no merit in the petition, and the

same is therefore dismissed, leaving the parties to bear their own costs.

NOVEMBER 06, 2013                              VALMIKI J. MEHTA, J.
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