P.N.Parashar vs Delhi Power Supply Co. Ltd.
2013 Latest Caselaw 3994 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI

                 Judgment reserved on:         22.04.2013

%                Judgment delivered on:        09.09.2013

+     W.P.(C) 1884/1999

      P.N.PARASHAR                                           ..... Petitioner
                           Through:     Mr. Nidhesh Gupta, Sr. Advocate
                                        with M/s Tarun Gupta, Daphne
                                        Menezes, M.K.Ghosh, Advocates
                           versus
      DELHI POWER SUPPLY CO. LTD.                            ..... Respondent
                           Through:     Mr. Vikram Nandrajog, Advocate
                                        with M/s Sushil Jaswal and Sheetesh
                                        Khanna, Advocates


      CORAM:
      HON'BLE MR. JUSTICE VIPIN SANGHI

                              JUDGMENT

VIPIN SANGHI, J.

C.M.Appln. Nos. 18451-52/2012 For the reasons stated in the applications, the same are allowed and the writ petition is restored to its original number and status.

WRIT PETITION (C) NO. 1884/1999

1. This petition under Article 226/227 of the Constitution of India has been preferred by the petitioner to assail the award dated 18.04.1998 passed

by Labour Court No.7, Tis Hazari Courts, Delhi, in I.D. No. 52/1997,whereby the Labour Court held the petitioner's dismissal to be legal and justified. The reference made by the Appropriate Government is as follows -

"Whether the dismissal of Shri P.N. Parashar is illegal and /or unjustified and if so, to what relief is he entitled and what directions are necessary in this regard."

2. The background facts - according to the petitioner, are that he was employed as a meter reader with the respondent management since 20.08.1974 with the approval of the General Manager (GM hereinafter) and his services were subsequently made permanent. The petitioner claims that whilst on duty as a Meter Reader in Kishanganj area, Delhi, on 1.07.1984, the petitioner recorded remarks against one Smt. Asha Devi for consuming electricity when the meter had stopped functioning, thereby amounting to theft of electricity.

3. It is the petitioner's case that he was subsequently transferred to another area i.e. Shastri Nagar in July 1984 and Smt. Asha Devi approached him through another colleague Mr. R.L. Saini for erasure of the remarks made by the petitioner, as aforementioned. The petitioner submits that on his refusal to erase the said remarks, Mr. R.L. Saini made a false complaint through Smt. Asha Devi, alleging misbehavior on part of the petitioner on 8.01.1985. The said complaint was filed on 18.02.1985 to the Additional General Manager (hereinafter AGM).

4. The petitioner claims that on 12.03.1985, a show cause notice was issued by the AGM to which the petitioner replied, with the submission that

he stood transferred to Shastri Nagar in July 1984 and that he was not present in the area on 08.01.1985 - being the date of the alleged incident. The petitioner has averred that despite this, a charge sheet dated 25.10.1985 was issued to him, and the AGM vide order dated 28.11.1985 appointed an enquiry officer despite being lower in rank to the petitioner's appointing authority - being the General Manager. The petitioner participated in the enquiry proceeding which, he submits, was conducted in violation of principles of natural justice. The enquiry officer held the petitioner to be guilty, and a show cause notice was issued to the petitioner by AGM on 24.02.1987 proposing the punishment of removal from services.

5. The petitioner claims that he replied to the aforementioned show cause notice stating that the findings of the enquiry officer were perverse. Despite this on 28.04.1987, the AGM passed an order terminating the petitioner's services. The petitioner claims that his appeal dated 25.05.1987 to the GM was also dismissed on 14.07.1987, without a speaking order and, thereafter, an industrial dispute was raised by the petitioner as per terms of reference mentioned hereinabove.

6. The crux of the argument of the petitioner before the Labour Court was that the appointing authority of the petitioner was the GM as per Section 92 of the Delhi Municipal Corporation Act, 1957 (Act hereinafter), whereas, the order of dismissal had been passed by the AGM who was junior in rank to the GM. The petitioner submitted that the order was dismissal was a nullity, since it had been passed by the AGM who was subordinate in rank to the petitioner's appointing authority, namely the GM.

7. The respondent submitted that a complaint dated 18.02.1985 was received from Smt. Asha Devi, stating therein that the petitioner while on duty, entered her room while she was bathing and misbehaved with her at her residence. The complaint also alleged that the petitioner threatened her with dire consequences if she raised a hue and cry. The respondent submitted that the petitioner workman was charge sheeted for misconduct on 25.10.1985 and a domestic enquiry was held, wherein the Enquiry Officer found the petitioner guilty of the charges. The respondent submitted that on the basis of the aforesaid enquiry, a show cause notice was issued to the petitioner and after considering his detailed reply to the same, the disciplinary authority imposed penalty of "removal" on the petitioner vide office order dated 28.04.1987.

8. On the basis of the above averments, the Labour Court framed three issues as follows -

1. As per terms of reference

1-A. - Whether a valid and proper enquiry in accordance with the principles of natural justice was conducted or not?

2. Whether the services of the petitioner were terminated by an authority below the rank of appointing authority. If so its effect?

3. Whether the appellate authority acted mechanically as alleged in para 3(b) of the statement of claim. If so, its effect?

9. Issue nos. 2 and 3 were framed as additional issues on 16.03.1993 subsequent to the petitioner amending his statement of claim before the Labour Court on 18.11.1992, urging that the AGM being lower in rank to the petitioner's appointing authority i.e. GM, the AGM could not pass an

order of dismissal against the petitioner. He further urged that the Appellate Authority had passed a non speaking order, thereby acting mechanically.

10. Issue no. 1-A was treated as a preliminary issue and vide order dated 25.04.1991, the said issue was held against the petitioner workman and in favour of the respondent management. On the aspect of Issue no. 2, the Labour Court observed that the witnesses examined by the petitioner workman on his behalf deposed that the panel of selected employees was approved by the GM, and mere approval would not imply that the GM was the appointing authority. The Labour Court observed that the petitioner workman had withheld his appointment letter, and that he deposed in cross examination that he could not produce any document to support his averment that he was appointed by the GM. The Labour Court further observed that WW4, Mr. B.S. Sharma produced as the petitioner's witness - in fact, supported the respondent's averment that the Personnel Officer had been delegated the GM's power to make appointments for the post of meter reader and that the appointment letter of the petitioner, Exhibit WW4/M1 was issued by the Assistant Personnel Officer. The Labour Court observed that as per office order, M1/1, the appointing authority of the petitioner was the Personnel officer.

11. The Labour Court observed that as per office order dated 20.10.1973, the powers of appointment and disciplinary action were delegated and vested under Sections 59, 491 read with Section 504 of the Act in the personnel officer in respect of employees whose basic pay was upto Rs.185/-. The labour court observed that the AGM was senior in rank to the

petitioner's appointing authority i.e. the Personnel Officer and, therefore, this issue was decided against the petitioner.

12. On the aspect of Issue no. 3, the Labour Court observed that WW3, Shri S.N. Batra, Senior Clerk deposed that the appeal of the petitioner against the order of dismissal was considered by the GM. The Labour Court also observed that it stood proved by evidence that the petitioner was also given a personal hearing by the appellate authority and it emerged from the record that all points raised by the workman were duly considered. Hence, Issue no. 3 was decided against the petitioner.

13. The main challenge to the award is premised on a reading of Section 92 and 95 of the Act and Article 311 of the Constitution of India. Hence, I find it relevant to produce the aforementioned provisions -

"92. Power to make appointments

(1) Subject to the provisions of section 89 the power of appointing municipal officers and other municipal employees, whether temporary or permanent -

(a) to posts carrying a minimum monthly salary (exclusive of allowances) of three hundred and fifty rupees or more shall vest -

( i ) in the Delhi Electric Supply Committee, the Delhi Transport Committee and the Delhi Water Supply and Sewage Disposal Committee respectively in the case of officers and other employees appointed in connection with the affairs of the Delhi Electric Supply Undertaking, the Delhi Transport Undertaking and the Delhi Water Supply and Sewage Disposal Undertaking;

( ii ) in the Corporation in the case of all other municipal officers and employees;

(b) to posts carrying a minimum monthly salary (exclusive of allowances) of less than three hundred and fifty rupees, shall vest in the General Manager (Electricity), the General Manager (Transport), or the Commissioner, as the case may be

Provided that the power of appointing officers and other employees immediately subordinate to the Municipal Secretary or the Municipal Chief Auditor, whose minimum monthly salary (exclusive of allowances) is less than three hundred and fifty rupees, shall vest in the Standing Committee :

Provided further that the Standing Committee may delegate to the Municipal Secretary or the Municipal Chief Auditor the power of appointing officers and other employees immediately subordinate to such Secretary or Auditor, whose minimum monthly salary (exclusive of allowances.) is not more than two hundred and fifty rupees.

(2) The claims of the members of the Scheduled Castes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments of municipal officers and other municipal employees. (emphasis supplied)

95.Punishment for municipal officers and other employees (1) Every municipal officer or other municipal employee shall be liable to have his increments or promotion withheld or to be ensured, reduced in rank, compulsorily retired, removed or dismissed for any breach of any departmental regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be prescribed by regulations :

Provided that no such officer or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed or

dismissed by any authority subordinate to that by which he was appointed Provided further that the Corporation may by regulations provide that municipal employees belonging to such classes or categories as may be specified in the regulations shall be liable also to be fined by such authority as may be specified therein.

(2) No such officer or other employee shall be punished under sub-section (1) unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him :

Provided that this sub-section shall not apply -

(a) where an officer or other employee is removed or dismissed on the ground of conduct which had led to his conviction on a criminal charge; or

(b) where the authority empowered to remove or dismiss such officer or other employee is satisfied that for some reason to be recorded by that authority, it is not reasonably practicable to give that person an opportunity of showing cause.

(3) If any question arises whether it is reasonably practicable to give to any officer or employee an opportunity of showing cause under sub-section (2), the decision thereon of the authority empowered to remove or dismiss such officer or other employee shall be final.

(4) An officer or other employee upon whom a punishment has been inflicted under this section may appeal to such officer or authority as may be prescribed by regulations. (emphasis supplied) Article 311 of the constitution reads as follows:

311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State

(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed (2)No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply

(a)where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b)where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause ( 2 ), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final (emphasis supplied)

14. The first submission of learned senior counsel for petitioner is that the appointing authority of the petitioner was the GM, whereas the statement of allegation and termination order have been issued by the AGM - who is

subordinate in rank to the GM. It is submitted the by virtue of Section 92(1)(b), the GM is vested with the statutory power to make appointments. It is submitted that though the order of appointment of the petitioner dated 12.09.1974 is signed by the Assistant Personnel Officer (APO hereinafter), the same was issued with the approval of the GM as per notice dated 26.07.1974, and has only been communicated by the APO.

15. Learned senior counsel for petitioner argues that, therefore, the termination of the petitioner's services by the AGM is in violation of Section 95 of the Act and Article 311 of the Constitution, which does not allow an authority inferior in rank to an officer's appointing authority to terminate the services of such officer. Learned senior counsel submits that the Labour Court has held the petitioner's termination by AGM as valid, on the wrong premise that the GM's power of appointment stood delegated to the Personnel Officer and, the AGM being senior in rank to the Personnel Officer, is competent to order the petitioner's dismissal.

16. In this regard, it is submitted that there is no office order dated 20.10.1973 on record on the basis of which the Labour Court held that the GM's powers stood delegated to the Personnel Officer. It is further submitted that the office order on record - which appears to be dated 22.11.1973, wherein the powers of the GM have been delegated is, in fact, issued in or after 1976 and is dated 22.11.1978 (which is not visible due to the dim ink). Learned senior counsel for petitioner submits that in the 4 th column of the aforesaid order, there is mention of DESU Regulations of 1976 and, therefore, the said office order could not be of 1973 vintage, and

would have been issued subsequent to the commencement of DESU Regulations in 1976.

17. Learned senior counsel submits that the office order on record dated 24.05.1975, delegates the powers of GM to the Chief Personnel Officer in respect of appointment/disciplinary proceedings qua Class I and II officers. However, the appointment of the petitioner was prior to the aforesaid delegation of powers to the Chief Personnel Officer. It is submitted that subsequent delegation of powers to an authority will not affect the petitioner's case, as on the date on which the petitioner was appointed, the appointing authority was the GM and the delegation of powers did not exist as on the date of the petitioner's appointment. In support of this submission, learned senior counsel for petitioner places reliance on The Management of D.T.U v. Shri B.B.L. Hajelay and Another, 1972 2 SCC744 and Krishna Kumar v. Divisional Assistant Electrical Engineer and Others, 1979 4 SCC

289. In Hajelay (supra), the Supreme Court held as follows -

"11. Mr. Chagla, appearing on behalf of the appellant Undertaking, contended that respondent No. 2 had been actually appointed by the Manager of the Delhi Road Transport Authority constituted under the Delhi Road Transport Authority Act, 1950 and on the repeal of that Act and the take over of the Authority by the Corporation, any officer of the appellant Undertaking, competent to appoint or remove a driver, was entitled to remove him from service. The Assistant General Manager of the Undertaking could not be described as subordinate to the Manager of the Delhi Road Transport Authority because factually he was not. Therefore, he contended, the provision 'that he shall not be removed by the authority subordinate to that by which he was appointed' found in Section 95 of the Corporation Act was inapplicable. In our opinion, the contention is not well founded. The proviso to

Section 95 Sub-section (1) gives protection to every officer and employee of the Undertaking that he may not be removed or dismissed from service by an authority subordinate to that by which he was appointed. It may be that in 1961 the functions of the General Manager (Transport) had been delegated to the Assistant General Manager. The only consequence is that if after 1961 the Assistant General Manager makes the appointment of a driver like respondent No. 2, he would no doubt be entitled to remove him from service. But so far as respondent No. 2 is concerned his individual position will have to be determined with reference to the time when he was absorbed in Corporation Service. That was in January, 1958. Section 516 while repealing the Delhi Road Transport Authority Act, 1950 by Clause (a) of Sub-section (1) protects the appointments made under that Act. Sub-section 2(a) provides "Notwithstanding the provisions of Sub-section (1) of this section... (a) any appointment ... made... and in force immediately before the establishment of the Corporation, shall, in so far as it is not inconsistent with the provisions of this Act, continue in force and be deemed to have been made... under the provisions of this Act, unless and until it is superseded by any appointment made under the said provisions."Since Under Section 92(1)(b) already referred to the power of appointing municipal employees to posts carrying a minimum monthly salary of Rs. 350/- vested in the General Manager (Transport), Respondent No. 2, at the time of his absorption in January, 1958 would be deemed to have been appointed Under Section 92(1)(b) which would mean that he was appointed by the General Manager (Transport). Being so appointed, no subordinate of his including the Assistant General Manager (Transport) would be entitled to remove him from service in view of Section 95(1) proviso."

18. The next submission of learned senior counsel for petitioner is that the appeal as well as review filed by the petitioner against his order of dismissal was dismissed mechanically without any application of mind. Learned counsel submits that the appellate order is without reasons, cryptic, and

founded on the wrong premise. It is submitted that the appellate order states that " However, on consideration of all relevant facts and evidence on record, the G.M. found no new grounds or facts, which would justify his interfering in the orders passed by AGM (A) the Competent Authority in the matter." The petitioner submits that it was imperative for the respondent to consider the grounds taken by the petitioner in his appeal, even if there was an absence of new facts or grounds. In this regard reliance is placed on Roop Singh Negi v. Punjab National Bank & Ors., (2009) 2 SCC 570, B.V. Nagesh and Another v. H.V Sreenivasa Murthy, (2010) 13 SCC 530 and H. Siddiqui (Dead) By Lrs. v. A. Ramalingam, (2011) 4 SCC 240.

19. On the other hand, the submission of learned counsel for the respondent is that there is no evidence on record to suggest that the appointing authority of the petitioner is the General Manager. Learned counsel submits that the notice dated 26.07.1974, displaying the selected list of candidates for appointment to post of meter reader had been issued by the Personnel Officer and the appointment letter of the petitioner has been communicated by the APO and, therefore, the appointing authority of the petitioner is the Personnel Officer.

20. Learned counsel submits that in his reply to the show cause notice dated 24.02.1987, the petitioner has nowhere taken the ground that he was appointed by the GM, and that the AGM was incompetent to initiate disciplinary proceedings. It is further submitted that even after the penalty of dismissal was served upon the petitioner, in his review and appeal, the petitioner nowhere urged the ground that the AGM was incompetent to pass an order of dismissal. Learned counsel for respondent submits that even in

the petitioner's statement of claim before the Labour Court, the petitioner never averred that his dismissal was illegal on the grounds of his appointing authority being the GM, or that the appellate authority passed a non speaking order. Learned counsel submits that the first time that the aforesaid contentions raised by the petitioner, was only after he amended his statement of claim before the Labour Court on 18.11.1992 - much after the issues had been framed initially by the Labour Court in 1990.

21. It is submitted that evidence was led after the petitioner amended his statement of claim, as aforesaid, and the Labour Court has examined the evidence on record and held that the AGM was competent to pass the order of dismissal as the appointing authority of the petitioner was the Personnel Officer. Learned counsel submits that the GM was only the approval/ supervisory authority, and not the appointing authority of the petitioner.

22. Learned counsel for respondent places reliance on the decision in Government of Andhra Pradesh & Anr. v. N. Ramanaiah, 2009 7 SCC 165 in support of his submission that imposition of punishment by an authority higher than the disciplinary authority is valid in the eyes of law. Learned counsel submits that the AGM is superior in rank to the Personnel Officer, which fact was proved by way of evidence before the Labour Court and, therefore, there is no illegality or infirmity in the order of petitioner's dismissal.

23. The next submission of learned counsel for respondent is that merely because the order passed by the appellate authority is not detailed, does not imply that the order is non speaking. In support of this submission, reliance is placed by the learned counsel on State of Bikaner & Jaipur & ors. v.

Prabhu Dayal Grover, 1995 6 SCC 279 and State Bank of India, Bhopal v. S.S. Koshal, 1994 Supp 2 SCC 468. Learned counsel submits that the appellate order records that the petitioner was given a personal hearing and that the relevant record has been examined by the appellate authority and, therefore, it cannot be said that the appellate order is non speaking.

24. In his rejoinder, learned senior counsel for petitioner submits that it was sufficient for the petitioner to urge the grounds on which the dismissal was claimed to be void before the Labour Court. It is also submitted that the decision in Prabhu Dayal Grover (supra) relied upon by learned counsel for respondent has been watered down in the subsequent decision in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney & Ors., 2009 4 SCC 240, wherein the court observed as follows-

"5.In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover's case² has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority."

25. The aforesaid were the only submissions advanced during the course of arguments, and the impugned award has not been challenged in respect of

the findings returned on the preliminary Issue 1-A, which decided the issue of validity of the enquiry in favour of the respondent, and against the petitioner.

26. The charge against the petitioner was that the petitioner forcibly pushed the door of the house no. 151, C. Line, Kishan Ganj, Double Phatak Road, Delhi on 8.01.1985 on the pretext of examining the electric meter. That he entered the room stated to be the bed room the house while the lady of the house was taking bath. That Sh. Parashar misbehaved with Smt. Asha Devi. He caught her hand pulled her down and also compelled her to set with him on the sofa. That he further threatened Smt. Asha Devi with dire consequences if she made any hue and cry. Shri P.N. Parashar is alleged to have continued to threaten including disconnection of supply even after 8.01.1985. The Enquiry Officer in his report has, inter alia, returned the finding, based on evidence that the petitioner "had been trying to pressurize Smt.Asha Devi to submit to his will. It appears that on 8.1.85 Shri P.N. Parasher had gone to the house of Smt. Asha Devi between 11.00 a.m. and 12.00 noon and had acted in the manner stated in the complaint Ex. PW-5/A and corroborated in the statement by Smt. Asha Devi. Since the bill had not been revised and Smt.Asha Devi was not prepared to go to the Police due to social stigma no FIR was lodged. However, Shri Kishan Kumar was approached by the husband of Smt. Asha Devi. I do not disbelieve Smt. Asha Devi as an Indian woman would not like to make public a misbehavior with her by another person unless she is compelled to do so and that is why when Shri P.N. Parasher continued to pester her she had filed the complaint with DESU. After the complaint was filed the bill had been set right as

stated by DW-5 Shri R.S. Kanwar. If the meter reader had detected theft than he should have brought this to the notice of his higher ups immediately and should have seen that proper action was taken." It has also been found by the Enquiry Officer that the petitioner had failed to establish his alibi that he was in the Shastri Nagar area on the fateful day and time. The discussion in the enquiry report in this respect reads as follows:

"It is on record that the charged official was not officially deputed for taking reading on 8.1.85 in the Delhi Cloth Mill area. Shri R.S. Kanwar, MSR DW-5 has not corroborated that the charged official was allotted the Shastri Nagar area for reading on that day as the record was not available at the time of his statement. If the charged official had recorded readings in Shastri Nagar area on 8.1.85 he would have produced the meter book and some witnesses of that area. He has, however, chosen to produce Shri Gian Chand DW-4 who has a flour mill and an ice depot and is from a village near to the village of the charged official. The witness could not say if Shri P.N. Parasher had gone to record readings on that day but has stated that Shri P.N. Parasher was with him from 10.30 a.m. to 1.00 p.m. which covers the period of the incident. In view of the fact that a better official evidence was available I do not believe this witness."

27. The aforesaid findings are based on substantial and cogent evidence led before the Enquiry Officer. It cannot be said that these findings have been arrived at without any evidence, or that the evidence is to the contrary, or that these findings could never have been reasonably returned on the basis of the evidence brought on record. The Enquiry Officer has considered and dealt with the entire evidence including that led by the petitioner and considered his submission in his detailed and considered report. It is not for

this Court, in these proceedings, to re-appreciate the evidence. The findings returned by the Enquiry Officer are, therefore, not shaken by the petitioner.

28. A perusal of the impugned award shows that the Labour Court has examined in sufficient detail, the petitioner's contention regarding his appointing authority being the GM, and negatived the same. The Labour court observed that WW1, Shri Mali Ram, produced by the petitioner could not depose as to who the appointing authority of the petitioner is, but merely stated that the panel of meter readers was approved by the GM; that the workman himself could not produce any document to substantiate his claim that the GM was his appointing authority, that, in fact, the petitioner had knowingly withheld his appointment letter; that WW4, Mr. B.S. Sharma, produced by the petitioner himself supported the version of the management that the Personnel Officer had been duly delegated the power of appointment at the relevant time.

29. Keeping in view the aforesaid depositions, the Labour Court held that merely because the GM approved the panel of meter readers could not lead to an inference that the GM was the appointing authority.

30. I am in agreement with this finding of the Labour Court. There is a presumption of validity attached to official acts. (See: 2002 256 ITR 1). This presumption is further fortified by the fact that no such objection - to the appointment of the Enquiry Officer by the AGM; to the issuance of show cause notice by the AGM, or; to the passing of the dismissal order by the AGM was raised contemporaneously. Moreover, this presumption was never dislodged by the petitioner in the proceedings before the Labour Court by leading any cogent evidence to show that the appointing authority of the

petitioner was the GM and not the Personnel Officer. In fact, the petitioner withheld his appointment order, which was produced as WW-4/M1, the same shows that it was signed by the APO. The official notice dated 26.07.1974 produced by the respondent lists out the panel of selected candidates after interview for the post of meter reader. The aforesaid notice has been issued by the Personnel Officer Shri K.L. Sharma. The appointment letter of the petitioner, which was produced in evidence before the Labour Court had been signed by the APO. The letter states "the undersigned is directed to offer you a temporary appointment..." Juxtaposing this appointment letter dated 12.09.1974 with the official notice issued by the Personnel Officer dated 26.07.1974, makes it clear that the APO, on directions from the Personnel Officer, has communicated the offer of appointment to the petitioner.

31. Merely because the notice dated 26.07.1974 states that the panel has been approved by the GM, does not, ipso facto, lead to the conclusion that the GM is the appointing authority when, in fact, the appointment letter has been issued by the APO. In Ramanand Singh v State of Bihar, 1984 (2) SCC 447, an order dated 21.05.1949 issued in the name of the Commandant- General making appointment of 16 persons including the appellant therein as wholetime company commanders read as - "The following Honorary Company Commanders are appointed company Commanders in the Bihar Home Guards......." The Court observed that the if the appointing authority was someone other than the Commandant-General i.e the provincial government as had been contended by the appellant therein, the order would have read - "The following Honorary Company Commanders who were

appointed by the provincial Government....". The court observed that the order was issued in the name of the Commandant General and, therefore, it could be assumed that the Commandant - General was the appointing authority of the petitioner even though Rule 5 conferred power on the provincial Government to make such appointments. In my view, the facts of the present case are similar. The panel of selected candidates was issued by the Personnel Officer and, therefore, there is no reason to believe that anyone other than the Personnel Officer was the petitioner's appointing authority.

32. Learned senior counsel for petitioner has relied upon an office order dated 24.05.1975 to contend that the delegation of powers to the Personnel Officer was subsequent to the appointment of the petitioner. This office order dated 24.05.1975 has not been shown to be the first such order. There is no basis to assume that before the issuance of this order, there was no other earlier order of delegation in operation. The very fact that the appointment letter of the petitioner, Exhibit WW4/M1, dated 12.09.1974 has been signed by the APO is indicative of the fact that the power of appointment stood delegated to the Personnel Officer at the time of the petitioner's appointment. Therefore, the reliance placed by the petitioner on Hajelay (supra) and Krishna Kumar (supra) is misplaced, as both were cases wherein the delegation itself was subsequent.

33. Furthermore, if no delegation existed on the date of the petitioner's appointment, then his appointment itself was bad as the same had been issued by the Personnel Officer and communicated by the APO. The petitioner accepted the said appointment order and was, therefore, estopped

from questioning the same after so many years. No doubt, the Labour Court has placed reliance on office order dated 20.10.1973 in determining that the powers of the GM stood delegated to the Personnel Officer at the relevant time. As pointed out by learned senior counsel for petitioner, no such document is on record. However, this does not have any bearing on the issue as the delegation stands established by virtue of the petitioner's appointment letter as already discussed hereinabove.

34. In N. Ramanaiah (supra), the Supreme Court observed "One more aspect that may have to be borne in mind that Article 311(1) does not command that the dismissal must be by the very same authority who made the appointment or by its direct superior. The dismissal can be either by the appointing authority or by any other authority to which the appointing authority is subordinate. The dismissal of a civil servant must comply with the procedure laid down in Article 311." Therefore, having established that the appointing authority of the petitioner is the Personnel Officer, the AGM being senior in rank to the Personnel Officer was fully competent in initiating enquiry and ordering the petitioner's dismissal.

35. The failure of the petitioner to urge that the GM was his appointing authority at the stage of departmental enquiry, show cause, appeal and review precluded the respondents from either responding to the said plea effectively, or to take corrective steps - even if it is assumed that there was some merit in the said plea. The view taken by the Labour Court is a plausible view on the basis of the materials produced before it and it cannot be said that the Labour Court has committed a patent error, or has fallen in perversity or that there is non-application of mind on its part. In its exercise

of the jurisdiction of judicial review under Article 226 of the Constitution of India, this Court does not sit as an appellate forum over the award and the scope of interference lies in a limited field. The petitioner has not been able to assail this aspect of the award with any force. Hence, this submission of the petitioner is rejected.

36. As regards the petitioner's contention that the appellate authority acted mechanically, I find no merit the same. A perusal of the appellate order Exhibit P-12 shows that the petitioner workman was given a personal hearing on 08.07.1987 by the GM. The appellate order though not detailed, clearly states that the GM has considered all the relevant grounds while dismissing the appeal. Furthermore, after dismissal of the appeal, the petitioner also filed a review to the Chairman of the respondent which is Exhibit P-12 A. The decisions relied upon by learned counsel for the petitioner are distinguishable on their own facts.

37. In Roop Singh Negi (supra), the Supreme Court observed that the order of the disciplinary authority as also the appellate authority dismissing the appellant therein were not supported by any reasons, even though appropriate reasons should have been assigned keeping in view that the orders had severe civil consequences. However, the aforesaid cited decision had significantly different facts as, in that case, the enquiry officer held the appellant therein guilty of stealing draft books on the basis of a confession made by the appellant to the police authorities. The Supreme Court observed that no consideration had been given to the fact that the appellant was discharged by a criminal court on the basis of the same evidence. The court also observed that the report of the enquiry officer was based on no evidence

at all, and that the tenor of the enquiry officer demonstrated that he had made up his mind to find the appellant guilty. However, the present case cannot be said to be one where no evidence was examined. In fact, on the merits of the enquiry, there is no challenge before this Court. Even otherwise, the enquiry report is founded upon cogent evidence.

38. The decision in B.V. Nagesh (supra) relied upon by the petitioner also does not advance the case of the petitioner. In that case the appellants had challenged the judgment passed by the High Court arising out of regular first appeal on the grounds that the High Court, without adverting to all the factual details and various grounds raised, passed the judgment in a cryptic manner. The Supreme Court observed that the High Court had not even framed issues or considered the facts and the law before passing the impugned judgment, and the court set aside the impugned judgment while observing that being an appellate court, it was the duty of the High Court to deal with all the issues and evidence led by the parties before recording its findings. In the present case, the order being challenged by the petitioner is one of the appellate authority of the respondent. Departmental proceedings, being of a quasi judicial nature, the only relevant aspect for the court to examine is that principles of natural justice are complied with and that the disciplinary proceedings are not an outcome of no evidence, or the findings are not perverse. Therefore, the scope of interference by the appellate authority of the respondent - acting in respect of a quasi judicial departmental disciplinary enquiry cannot be compared with the scope of the appellate jurisdiction exercised by the High Court. The aforesaid decision relied upon by the petitioner did not discuss the scope of appellate

proceedings in departmental proceedings and, therefore, is of no avail to the petitioner.

39. In H. Siddiqui (supra), the Supreme Court observed that the High Court should have decided the appeal in strict accordance with the provisions contained in Order 41 Rule 31 CPC, and that the High Court erred in not examining all the relevant facts being the final court of fact. However, as stated above, the proceedings in a departmental enquiry - being quasi judicial in nature, cannot be strictly equated with the appellate jurisdiction of a court.

40. For all the aforesaid reasons, the impugned award is upheld and the writ petition is dismissed.

(VIPIN SANGHI) JUDGE SEPTEMBER 09, 2013