Rajesh Dabas vs Union Of India & Ors.
2014 Latest Caselaw 6944 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%              Judgment delivered on: 18th December, 2014

+              W.P. (C) No. 7461/2012

RAJESH DABAS                                         ..... Petitioner
                          Represented by: Mr. Pradeep Kumar Arya
                          and Mr. Narinder Chaudhary, Advocates.

                    Versus


UNION OF INDIA & ORS.                     ......Respondents
                   Represented by: Mr.Rajat Arora, Advocate
                   for Respondent No.2.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J.

1. Vide the present petition, the petitioner has challenged the award

dated 31.07.2012, whereby ld. Industrial Tribunal has dismissed his

claim petition.

2. The facts of the case are that Chairman, K.G. Denim Limited,

Coimbatore came to meet Chairman and Managing Director of Punjab

National Bank/R-2 on 13.11.2007. While going inside the cabin, said

visitor kept his mobile phone outside. When he came out of the cabin,

he found his mobile phone missing from the place where it was kept.

Accordingly, he lodged a report of theft with the Bank Authority.

Consequently, search of the said phone was conducted.

3. The petitioner, who was working as peon in the General Service

Administration Division of the said Bank at Bhikaji Cama Place, New

Delhi was interrogated. He got the mobile phone recovered from the

top of an Almirah kept on 5th floor of the said building during night

hours on 14.11.2007. Accordingly, the petitioner was placed under

suspension on 15.11.2007. The chargesheet was served upon him on

26.11.2007 and a domestic enquiry was conducted. The petitioner

participated in the said enquiry and he was found guilty of the charges

levelled against him. Accordingly, the petitioner was awarded

punishment vide order dated 05.06.2008 of compulsory retirement with

superannuation benefits.

4. Mr. Pradeep Kumar Arya, ld. Counsel appearing on behalf of the

petitioner submits that in the charge sheet there is no allegation that

anyone had seen him while taking the mobile phone from the place

where it was kept by the visitor.

5. As per the report dated 13.11.2007 submitted by the General

Manager (Security), the video recording established that mobile set

was picked up by one Arjun at 13:36:45 seconds and put it in his

pocket at 13:36:50 seconds. During this period no other person was

seen in the area. At about 13:43:22 seconds the said Arjun had moved

towards conference room door and seen for a fraction of seconds with

the petitioner, who was attached to the Conference Mess at 7 th Floor.

Later on both of them were seen near lift at 7 th Floor at 13:44:45 hours,

where the said Sh. Arjun handed over the mobile phone to the

petitioner.

6. After detailed investigation and physical verification of the

persons, it is evident from the video recording that Sh. Arjun only

stolen the mobile phone and handed over the same to someone else

known to him.

7. Despite, ld. Tribunal rejected the claim of the petitioner and

failed to appreciate his reply to the show cause notice that the enquiry

officer ignored that both Sh. Arjun Singh and the petitioner were taken

to police station on 14.11.2007 and were allowed to talk to each other

and thereafter the petitioner came back immediately and informed that

mobile was in Bank's building. Thus, the petitioner had helped the

respondent / Management to get the mobile phone recovered.

Moreover, the CD which was an important and only document was not

provided to the petitioner.

8. Mr. Arya further submitted that the petitioner had served 14

years in service. He was not involved in any of the offence in the past.

Thus, the punishment was disproportionate to the alleged

misdemeanour committed by the petitioner.

9. On the other hand, Mr. Rajat Arora, ld. Counsel appearing on

behalf of the respondent no. 2 submitted that vide the present petition,

petitioner has prayed to set aside the award dated 31.07.2012, however,

has not challenged the order dated 14.07.2011, whereby the ld.

Tribunal held that enquiry was fair and proper, accordingly, decided in

favour of respondent no. 2. Thus, the present petition deserves to be

dismissed on this count alone.

10. Moreover, the petitioner assailed the enquiry proceedings and

report on the following counts as recorded by the ld. Tribunal vide its

order dated 14.07.2011 as under:

" (i) That the Enquiry Officer conducted the enquiry in utter violation of principles of natural justice. No procedure of enquiry was explained to him.

(ii) The Enquiry Officer took his signatures on day to day proceedings but took signatures of the management representative on some proceedings.

(iii) Despite several requests the Enquiry Officer did no direct the management to supply copy of CD, which was the primary evidence in the enquiry.

(iv) His entire version was not recorded by the Enquiry Officer. He was not even afforded opportunity to lead evidence.

(v) In 18.02.2008 proceedings, the Enquiry Officer directed the management representative to supply documents to his representative. However, management neither, supplied the documents nor the Enquiry Officer took any action against the management for not complying with his orders.

(vi) Neither he was provided with a copy of the CD which could be viewed on personal computer nor full day's CD for 13.11.2007 was made available.

(vii) The Enquiry Officer was hand in glove with the Presenting Officer. Most of the time Enquiry Officer favoured the management.

(viii) The report of the Enquiry Officer was perverse.

Enquiry Officer relied upon the deposition of MW2 Ashwani Kumar, who was discharged from the enquiry as irrelevant witness.

(ix) Enquiry Officer relied upon statement of management witnesses who themselves stated that they did not know about contents of documents (MEX-8) shown to them."

11. However, the ld. Tribunal considered the enquiry proceedings

and evidence on record thereafter, recorded in the award that as

deposed by Sh. Ray, MW1, copy of day-to-day proceedings of the

enquiry was supplied to the petitioner. The said MW1 deposed that

signature of the petitioner was obtained on the proceedings dated

31.12.2007, which is Ex.MW1/W1. The petitioner admitted that copy

of day-to-day proceedings were supplied to him.

12. Admittedly, the copy of the CD was not made available to the

petitioner. However, the Enquiry Officer explained that more than 1

hour clippings of CD was shown to the petitioner. The contents of the

CD were viewed on 08.02.2008 and 18.02.2008 on full screen at the

request of representative of the petitioner. This fact has been admitted

by the petitioner. Therefore, Ld. Tribunal recorded that petitioner as

well as his defence representative were given due opportunities to view

the contents of clippings of CD. Moreover, MW1 Sh. Ray deposed

that after viewing the contents of clippings of CD, defence

representative again exercised his right to cross-examine the witness.

13. Mr. Arora further submitted that ld. Tribunal after receiving the

report of the enquiry observed that the service of show-cause notice on

proposed punishment and hearing of the petitioner on it are not

disputed. Thus, the enquiry conducted by the respondent /

Management confirms to all standards of fairness and its tenets of

natural justice.

14. Therefore, the fact remains that the video film was recorded by

the security cameras installed in the respondent Bank. When Sh. Arjun

Singh and petitioner were left alone in the police-station, the petitioner

came out and disclosed that the phone was in bank only.

15. MW2 Ashwani Kumar in his cross-examination specifically

stated that he saw the petitioner kept a chair in front of an Almirah and

stepped on the chair and took out the mobile phone from there.

16. Ld. Counsel further submitted that in the departmental enquiry

preponderance of probability is required. Another Staff member

namely Arjun, who stole the mobile phone was awarded dismissal

from service. However, the petitioner was compulsorily retired with

all benefits of service. Hence, there is no perversity in the award

passed by the ld. Tribunal. Therefore, under Article 226 of the

Constitution, this court is not required to interfere in the award.

17. Upon hearing, ld. Counsel for the parties, it is not in dispute that

the phone was got recovered by the petitioner. His movement was

seen in the cameras installed in the Bank. He was seen moving with

another staff member namely Arjun. When both were taken to the

police station, they were left alone for some time and thereafter the

petitioner disclosed the location of the mobile phone. Thus, the

petitioner cannot say that he was not involved in stealing the mobile

phone in question with another staff member namely Arjun. The

stealing of any item of the establishment where the petitioner was

working is a serious offence, which cannot be assessed with leniency

and sympathy. Since, Sh. Arjun was the main culprit, therefore, he

was removed from the service, whereas the petitioner helped the

above-named Arjun in the alleged theft, therefore, the respondent /

establishment punished him with lesser punishment.

18. Though, in the judicial review this court need not to appreciate

the evidence, however, it is established by the witnesses of the

Management and video cameras installed in the respondent Bank that

the petitioner along with other Arjun Singh was found stealing the

mobile phone which admittedly was got recovered by the petitioner.

Had the petitioner not involved in the theft, this fact would have been

disclosed by Arjun, another staff member. However, it was disclosed

by the petitioner himself. Therefore in any stretch of imagination, it

cannot be said that the petitioner was not involved in the theft.

19. Moreover, the movement of the petitioner with another staff

member has been seen in the cameras installed in the building which

clearly establishes that the said mobile was stolen in collusion with the

petitioner. Accordingly, he was given compulsory retirement with all

service benefits. Moreover, vide order dated 14.07.2011, ld. Tribunal

held that the enquiry conducted by the Respondent / Management was

proper by giving full opportunity to the petitioner. The same has not

been challenged by the petitioner.

20. However, if it is considered that the order dated 14.07.2011 is

merged in the final order, even then, I do not find any discrepancy in

order dated 14.07.2011 and 31.07.2012.

21. Accordingly, present petition is dismissed with no order as to

costs.

SURESH KAIT, J

DECEMBER 18, 2014 jg