Nathimal Gupta vs Indraprastha Power Generation ...
2013 Latest Caselaw 5510 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 6699/2002

%                                                       28th November, 2013
NATHIMAL GUPTA                                                 ..... Petitioner
                          Through :      Mr. S.Janani, Adv.

                          versus

INDRAPRASTHA POWER GENERATION COMPANY LTD.
                                             ..... Respondent

Through : Mr. Rajmangal Kumar, proxy counsel.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, the petitioner who was an employee of erstwhile

Delhi Vidyut Board and thereafter of the present respondent-Indraprastha

Power Generation Company Limited (IPGCL), impugns the orders passed

by the departmental authorities; of the disciplinary authority dated

24.8.2001 and the appellate authority dated 10.9.2002; imposing upon the

petitioner the punishment of removal from services. Petitioner, an Inspector

with the Delhi Vidyut Board, was found guilty of stealing an electricity

meter which was installed at one connection in one premises and thereafter

he had illegally installed the same at another premises after receiving a bribe

of Rs.10,000/-.

2. The facts of the case are that a raid of the enforcement officials of

Delhi Vidyut Board was conducted on 10.6.1999 at the premises

B-271, Yojana Vihar, Delhi. The raid comprised of many officers of Delhi

Vidyut Board, who also had prepared the inspection report of the said date.

In the inspection, it was found that at the premises B-271, Yojana Vihar,

Delhi, the stolen meter bearing No. E-9705279 was installed, and which

meter actually was installed and thus ought to have been found at the

premises No.75A, Pocket-F, GTB Enclave, Dilshad Garden, Delhi.

Inspection of the records maintained by the DVB with respect to the

electricity connection, and records particularly of the Meter Testing

Department (MTD), showed that actually the meter number legally installed

at the premises at Dilshad Garden was installed and illegally put at the

premises at Yojna Vihar, Delhi. FIR No.157/99 was lodged on 22.3.2009

with respect to the theft of the meter. Statements were recorded of the

persons of the Dilshad Garden premises namely Shri Ashok Kumar Anand

and of Shri Suchit Kumar Jain of the Yojana Vihar premises where the

stolen meter was found to be installed. At the premises where the stolen

meter was installed, an amount of Rs.1,42,720/- was found to be due on

account of electricity consumption as per a bill which was not paid.

Accordingly, a charge-sheet dated 26.7.1999 was issued against the

petitioner. Inquiry Officer was thereafter appointed. Evidence was led by

both the parties in the inquiry proceedings. The department led evidence of

as many as six witnesses including the persons who conducted the raid on

the premises at Yojana Vihar and found the stolen meter. Department also

filed and proved various documents including the report of the inspecting

team, meter issuing docket for installation at the first premises at Dilshad

Garden, of provisional installation of the stolen meter at Dilshad Garden, the

electricity bill of Rs.1,42,720/- showing unpaid amount for consumption of

electricity at the new premises at Yojana Vihar, FIR No.157/1999 dated

22.3.1999 with respect to the theft of the stolen meter etc. Petitioner, herein,

only led the evidence of one witness, namely, Shri Kamal Rameshwar as

DW-1. It may be noted that the petitioner did not step into the witness box

and depose in his own favour in the inquiry proceedings. The Inquiry

Officer, on the conclusion of the departmental proceedings, submitted his

report dated 19.7.2000 holding the petitioner guilty of the charges. As

already stated above, this inquiry report has been accepted by the

departmental authorities imposing the punishment of removal from services

upon the petitioner. I may note that the Enquiry Officer‟s report is a detailed

report of 30 pages wherein all proved documents have been referred to, the

depositions of the witnesses, their cross-examination and their re-

examination have been reproduced and thereafter conclusions have been

given. It has been held by the Enquiry Officer by reference to the

documents and depositions of the witnesses that the meter number which

was found at the premises of Yojana Vihar was in fact originally installed at

Dilshad Garden and the same was found illegally installed at the Yojana

Vihar premises. It was found that the meter number in question was E-

9705279. The confusion was as to whether the last digit „9‟ was there or

not in the meter which was found at the premises at the Yojana Vihar, was

got confirmed from the records of the department and thereafter comparing

the same with the number of meter embossed on the dial of the meter.

Electricity meter in question was thereafter handed over to the Police as the

criminal case with respect to the same was going on as per FIR number

157/1999 dated 22.3.1999. The Inquiry Officer has accordingly given the

following conclusion:-

"From the listed documents, deposition made by PWs and facts corroborated during the inquiry proceedings it is established that meter No.E- 9705279 installed against K.No.614-1295770 at the premises of Sh. Kasturi Lal, 75-A, Pocket F, GTB Enclave, Dilshad Garden, Delhi by the then Inspector, Sh. Sanjiv Gupta, VI (T), was stolen by

Shri N.M.Gupta, CO and he installed the same in fraudulent manner at the premises of Shri S.P.Jain, B-271, Yojna Vihar, Delhi in consideration for illegal gratification of Rs.10,000/- from Shri S.P.Jain which was (meter No.E-9705279) later removed by the Joint Inspection Team on 10.6.99. The said meter subsequently was handed over to Police Station Dilshad Garden by A.E.Zone 2201 (under whose custody the said meter was) against the FIR No.157/99 dated 22.3.99, which was lodged for stolen of the said meter (E-9705279) from premises of Sh. Kasturi Lal, 75-A, Pocket-F, GTB Enclave, Delhi. Since an FIR was lodged in the police Dilshad Garden, as regard to the stolen meter No.E-9705279 on 22.3.99 and it was recovered from the premises of Sh. S.P.Jain B-271, Yojna Gihar on the day of Joint Inspection dt. 10.6.99 and Sh. S.P.Jain has given a statement that the said meter was not installed by the CO in consideration of Rs.10,000/- illegally the charges against the CO are established beyond doubt. He stole and installed the said meter in the said premises. These actions on the part of CO, Sh. N.M.Gupta, not only caused a huge financial lose to Delhi Vidyut Board but also brought a bad name to D.V.B. and tarnished it fair reputation.

The documents placed on record (listed as Ex.S-1 to S-6 and additional documents as Ex.D-1 to D-6N go to support the charges mentioned in Article I to III against the CO. Whatever missing links were there in these documents have been elaborately clarified by the 6 PWs, particularly by Investigating Officer. Taken together, along with prosecution brief and its enclosures, the charges in Article I to III against the CO are established. Charges of Article IV and V are natural off-shoot of the first three and accordingly they also stand proved."

3. Before I turn to the arguments urged on behalf of the petitioner, it is

necessary at this stage to set out what is the scope of a hearing before a

Court hearing a petition under Article 226 of the Constitution of India by

which orders passed by the departmental authorities are challenged. It is

settled law that this Court does not sit as an Appellate Court while hearing a

petition under Article 226 of the Constitution of India and this Court does

not re-apprise findings of facts and conclusions arrived at by the

departmental authority. This Court can only interfere if the findings and

conclusions are perverse or against the principles of natural justice or the

findings and conclusions are against the rules of the employer organization/

law.

4. Further, it is equally a settled law that in the departmental

proceedings, burden of proof is discharged on preponderance of probability

like in a civil case, and it is not as if a department has to prove its case

beyond all reasonable doubt like in a criminal case.

5. Before me on behalf of the petitioner, the following arguments are

urged:-

(i) The FIR No.157/1999 which was registered with respect to any theft

of the meter was registered after a delay of about 100 days and whereby its

credibility comes in question. It is also argued that the FIR wrongly

mentions the meter number because the last digit number „9‟ is not found in

the FIR. It is also argued that the FIR which is relied upon by the

departmental authorities is without basis because the said FIR is a general

FIR without containing the name of the petitioner.

(ii) The Enquiry Officer and the departmental authorities have committed

a gross illegality in relying upon the statement of Shri Suchit Jain of the

Yojna Vihar address where the stolen meter was found to be installed,

without actually summoning the said person and the petitioner being allowed

to cross-examine him.

(iii) The orders passed by the departmental authorities are bound to be set

aside because the complainant of the stolen meter, i.e. Shri Ashok Kumar

Anand of the Dilshad Garden premises, was not examined and who ought to

have been examined, because without his deposition, it cannot be said that

the meter was stolen.

6. So far as the first argument which is urged on behalf of the petitioner

is concerned, I may state that the issue in the departmental proceedings is of

the factum of stealing of the meter from the Dilshad Garden address and its

installation at the Yojana Vihar address. This aspect has been more than

amply proved by the document Ex.S-1 being the meter issuing docket when

the stolen meter was firstly and legally installed on 4.7.1997 at the Dilshad

Garden address and which is taken with the report of the raiding team who

conducted the raid on 10.6.1999 showing that it was that meter number E-

9705279 which was found at Yojana Vihar address. The minor doubt with

respect to the meter number of the last digit number „9‟ existing or not was

clarified by reference to the MTD Department report showing the meter

number which was installed originally and thereafter re-confirming the

meter number on the dial of the meter which was found at the Yojana Vihar

address. As many as six witnesses have deposed with respect to the case of

the department and has proved the case of the department. Therefore,

merely because there is delay in lodging of the FIR cannot take away the

findings and conclusions of the Enquiry Officer with respect to a wrongful

theft of the meter which was actually ought to have been found at Dilshad

Garden address instead of the Yojana Vihar address where it was found

installed. Merely because, the FIR does not contain the name of the

petitioner would not be material because at the stage of FIR, the person who

lodged the FIR, namely, Shri Ashok Kumar Anand could not have been

definitely known who had stolen the meter installed at Dilshad Garden

address, and this aspect therefore does not take the case of the petitioner any

further with respect to the aspect of challenging the valid findings and

conclusions of the departmental authorities with respect to the theft of the

meter. The first argument, therefore, urged on behalf of the petitioner is

rejected more so because this Court is not sitting as an Appellate Court to re-

appraise the findings of facts and conclusions of the departmental authorities

and the arguments raised before this Court are arguments not of perversity,

but of alleged incorrectness (and which incorrectness also is not there) and

the petitioner has failed to establish that the findings and conclusions of the

departmental authorities can in any manner be said to be illegal or faulty and

definitely not perverse.

7. So far as the second argument is concerned, of the department not

having examined Shri Suchit Jain of the premises where the stolen meter

was found and installed at the Yojana Vihar, although his statement is relied

upon, I may state that really the statement of Shri Suchit Jain which is relied

upon by the department is not in the nature of deposition on oath for which

there has to be cross-examination, but the statement relied upon is similar to

a letter or a document containing a fact and its statement to the electricity

department. Such a document can always be relied upon in a civil

proceeding and all that is required is that contents of the same are otherwise

legally proved. The contents of the statement of Shri Suchit Jain have been

proved in the departmental proceedings because it has been established that

the meter number in question actually was installed at the Dilshad Garden

address, and therefore, it could have been found installed at Yojana Vihar

address only if it was wrongly been installed at Yojna Vihar address ie on

being stolen from the Dilshad Garden address. The facts of stealing have

already been established and have been discussed while rejecting the first

argument which is urged on behalf of the petitioner. Therefore, in my

opinion, there is no illegality in the departmental proceedings simply

because Mr. Suchit Jain has not been called.

8. I may at this stage state that it is important to note that the petitioner

did not have the courage or the conviction to step into the witness box and

depose in his own favour in the inquiry proceedings. Departmental

proceeding, as stated above, are like a civil case and not a criminal case,

and the petitioner therefore if he had belief in this case ought to have at least

deposed in his favour. The very fact that the petitioner had no courage to

depose in his favour and thus not stand the test of cross-examination, the

same is sufficient to otherwise accept the findings and conclusions of the

departmental authorities on the basis of documentary evidence and the oral

evidence given by the witnesses of the department. Therefore, for this

additional reason, there is no illegality in the findings and conclusions of the

department for holding the petitioner guilty of the theft of meter, and which

conclusion cannot be set aside merely because Shri Suchit Jain was not

called on behalf of the department. I may also note that the Inquiry Officer

in this regard has also rightly noted that if the petitioner was so sure of his

case then there was no difficulty for the petitioner himself to summon Suchit

Jain, and which course of action the petitioner did not adopt. Therefore, the

second argument urged on behalf of the petitioner is also rejected.

9. The third argument with respect to Mr. Ashok Anand, owner of

Dilshad Garden premises, having not been examined is once again an

argument which is without merit and in substance it has already been

considered by me while considering the first argument because the issue is

not whether or not the complainant of the stolen meter has to be examined,

but because the process of theft that in fact took place viz of illegally

removing and stealing of the meter from the Dilshad Garden premises and

its installation thereafter at Yojana Vihar premises has otherwise been

proved by the department and has been dealt with in detail while considering

and rejecting the first argument.

10. The present is a classic case as regards that prevalent time when

distribution of electricity was not privatized, and therefore a consumer used

to face a lot of difficulty for getting an electricity connection and meter from

the departments such as Delhi Vidyut Board. Persons like the petitioner thus

resorted to do illegal actions by illegally giving meters at a premises by

stealing the same from other premises. Even the money receipt which is

filed by the petitioner with respect to the connection installed at Yojana

Vihar was found to be bogus on its comparison with the original receipt of

the installation of meter at Dilshad Garden. It is therefore clear that the

petitioner was guilty of grossly abusing his position and which was in a

sense a position of trust of being guardian of the property and finances of his

employer-the erstwhile Delhi Vidyut Board.

11. But for the fact that petitioner is an aged person, I would have

imposed exemplary costs while dismissing the petition, but only out of

sympathy I am not imposing costs. In view of the above, writ petition is,

therefore, dismissed. Parties are left to bear their own costs.

NOVEMBER 28, 2013                                   VALMIKI J. MEHTA, J
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