Ram Khilawan vs Delhi Vidyut Board
2013 Latest Caselaw 3934 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Decided On : September 4, 2013
+     LPA 647/2013
      RAM KHILAWAN                                  ..... Appellant
                          Through :     Mr. K.K.Sharma, Sr. Adv. with
                                        Mr.Rajiv Bakshi and Mr.
                                        Bhanita Patowary, Advs.
                          versus
      DELHI VIDYUT BOARD                            ..... Respondent

Through : None.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI % MR. JUSTICE NAJMI WAZIRI (OPEN COURT)

CM 13664/2013(exemption)

Allowed, subject to all just exceptions.

The application stands disposed off.

LPA 647/2013 & CM 13665/2013(condonation of delay)

1. The appellant is aggrieved by an order of the learned Single

Judge dated 8th May, 2013 dismissing the writ petition No.87/1998.

2. The appellant's grievance started when he was issued with a

Memorandum proposing to enquire into his conduct on 8th March,

1997, detailing the articles of charges. The charges pertained to his

LPA 647/13 Page 1 alleged involvement in acts of instigating the innocent employees to

get the House Building Advances from their GPF Accounts on the

basis of bogus and fabricated documents and extract some part of the

amount so sanctioned. Apparently, during the course of preliminary

enquiry into the allegations, statement of various employees was

recorded. The enquiry proceedings commenced and before the

Inquiry Officer, some statements recorded during the preliminary

enquiry were marked in evidence. While many individuals (whose

statements were so recorded) did appear before the Inquiry Officer,

some of them did not.

3. On the basis of his understanding and appreciation of the

materials on record, the Inquiry Officer concluded that the petitioner

was guilty of the misconduct which alleged to have been committed

and so recorded it in the report dated 12th April, 1996. The

Disciplinary Authority basing itself upon that report issued a

show-cause notice on 07.03.1997 to the appellant requiring him to

indicate why the penalty of dismissal ought not to be imposed upon

him. The appellant responded to this by resisting the proposed action.

Finally, on 10th November, 1997, the Disciplinary Authority, agreeing

LPA 647/13 Page 2 with the findings recorded by the Inquiry Officer, dismissed the

appellant/petitioner. The appellant's appeal to the Chairman of the

then Delhi Vidyut Board, the predecessor of the respondent (hereafter

referred to as "the BSES") was to no avail. He, therefore, approached

this Court under Article 226 of the Constitution.

4. The learned Single Judge considered the submissions of the

appellant who had urged that the pre-recorded statements made

during the course of the preliminary enquiry could not have been

made the basis of the material to base the findings of the guilt. The

appellant further argued that the depositions of such of the witnesses

who were examined during the regular enquiry were at variance with

the pre-recorded statements and that the same had to be disregarded.

The learned Single Judge considered the submissions and also took

into consideration the materials on the record such as the pre-recorded

statements as well as the deposition recorded by the Inquiry Officer.

Thereafter by the impugned judgment, he dismissed the petition.

5. Mr. Sharma, learned senior counsel argues that the impugned

order is in error of law because it has glossed over the most material

circumstance that none of the witnesses who deposed during the

LPA 647/13 Page 3 enquiry had unambiguously or even otherwise implicated the

petitioner and that none of the witnesses had stated that he (the

petitioner) was responsible for any misconduct. The learned counsel

relied upon testimonies of PW-2, PW-3, PW-4 and PW-5 to state that

each of the witnesses had clearly stated that the amounts sanctioned

pursuant to the applications made by them had in fact been received.

Counsel argued that, in such circumstances, the evidence could be

characterized as non-existent and, therefore, the order of the

disciplinary authority had to be interfered with. In refusing to do so,

urged counsel, the learned Single Judge fell into the error, which

requires correction at the appellate stage.

6. This Court has considered the averments as well as the

materials on record. An independent analysis of depositions of PW-2,

PW-3, PW-4 and PW-5 would reveal that the appellant's submissions

are unfounded. PW-3 in his deposition stated that whereas a sum of

Rs.22,000/- was applied for, Rs.18,000/ was sanctioned. In the re-

examination - after certain attempts made during the cross-

examination, this witness clearly stated that Rs.14,000/- had been

deducted. Likewise, PW-4 stated that of the amount applied for, only

LPA 647/13 Page 4 Rs.11,000/- was received even though Rs.18,000/- had been

sanctioned. PW-5 likewise stated that he had applied for a loan for

Rs.18,000/- - at the same time, omitted to mention what was the

amount sanctioned. Yet he admitted that what was given to him was

Rs.14,900/-. Besides this, the Court notices that the deposition of

PW-7 has been commented upon by the learned Single Judge. He

stated, after analysing the evidence of PW-2 to 5(and commenting that

even if their evidence to be excluded altogether), the deposition of

PW-7 was itself damaging and sufficient to record of the appellant's

guilt. This is what the learned Single Judge had to say in this regard:-

"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-inchief 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

LPA 647/13 Page 5 cross-examination in favour of the petitioner on this aspect."

7. This Court recollects that in enquiry proceedings, the employer

is undoubtedly bound to follow the rules of natural justice and ensure

that material evidence is considered. The reasons for an order of

finding have to be based on materials which are gleaned or gathered

during the course of such domestic proceedings. At the same time,

there is no hard and fast rule that the Evidence Act applies to these

proceedings. The authorities also suggest that even hearsay evidence

can be acted upon. The Court finds as unpersuasive and

insubstantial - the appellant's argument - that there is no material

indicative of his culpable conduct. The evidence of PW-2, PW-3,

PW-4 and PW-5 which has been discussed previously as well as that

of PW-7 is sufficiently damaging. The Inquiry Officer discussed in

detail the evidence against each of the charged employees and the role

played by the appellant. In these circumstances, the Court finds

unconvincing the argument made that the appellant being illiterate

could not have been the party to an alleged forgery. The material on

record which found favour with the Inquiry Officer in his findings and

report were to the effect that the role of the appellant was that of a

LPA 647/13 Page 6 dominant conspirator or instigator who directed the operations and

was at the forefront of the objectionable activities.

8. Having regard to the totality of the circumstances and the

limited role of the Court exercising review under Article 226 of the

Constitution (which is to intervene in such cases where the findings

are not based on any evidence (Union of India versus H.C.Goel,

(1964) 4 SCR 718 or the procedure adopted by the Inquiry Officer or

Disciplinary Authority is patently illegal or irregular or where the

action is lacking in bona fide), and there being no such vitiating

circumstances apparent to the Court from the material on record, this

Court accordingly agrees and affirms the findings of the learned

Single Judge.

The appeal is consequently dismissed.

S. RAVINDRA BHAT, J

(JUDGE)

NAJMI WAZIRI, J

(JUDGE)

SEPTEMBER 4, 2013/'sn'

LPA 647/13 Page 7