Pradeep Kumar vs Hindustan Paper Corpn. Ltd. & Anr.
2014 Latest Caselaw 1486 Del

$~R-18
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Judgment delivered on: 20.03.2014

+                          W.P.(C) 1651/1999
PRADEEP KUMAR                                         ..... Petitioner

                           versus

HINDUSTAN PAPER CORPN. LTD. & ANR                     ..... Respondents

Advocates who appeared in this case:

For the Petitioner: Mr Shanker Raju & Mr Nilansh Gaur, Advs. For the Respondents: Mr R.K. Gupta, Mr Mukesh Kr. Singh & Mr B.P. Gupta, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J

1. By this writ petition challenge is laid to the order dated 01.09.1995 and the order passed in review petition which is dated 13.01.1999. The petitioner, not only seeks setting aside of these orders but also seeks consequential orders for reinstatement and all incidental and consequential benefits, including promotion etc.

2. The facts, briefly, obtaining in the present case are as follows: 2.1 The petitioner joined the services of respondent no.1, i.e., Hindustan Paper Corporation Ltd. (HPCL), on 24.11.1975. The petitioner, while in service with respondent no.1, gradually reached the post of Executive (Sales), in 1994.

2.2 While, the petitioner was posted in the regional sales office of

respondent no.1 at Delhi, a chargesheet dated 01.09.1995 was served upon him. The allegation against the petitioner, broadly, was that, he had certified bills of a clearing agent, i.e., M/s Chawla Bros., for amounts which were in excess of the services rendered by the said agent. 2.3 The chargesheet, however, set out three separate charges against the petitioner. Pursuant to the chargesheet, an inquiry officer was appointed, who submitted a report dated 07.02.1997. The inquiry officer vide his report, returned a finding of 'not guilty' qua the petitioner vis-a-vis all three charges.

2.4 The disciplinary authority, however, disagreed with the findings returned by the inquiry officer and, vide a disagreement note dated 26.03.1998, came to a conclusion contrary to the one which the inquiry officer, had reached. I must note, at this stage, that one of the arguments advanced on behalf of the petitioner is that, the conclusion reached in the disagreement note dated 26.03.1998, was not tentative, as it ought to be, but a final conclusion, and, therefore, the entire proceedings which, continued thereafter, were fraught with illegality.

2.5 In view of the said disagreement note, by a letter of even date, i.e., 26.03.1998, a communication was sent to the petitioner by respondent no.1, whereby he was called upon to offer his comments qua the findings returned by the inquiry officer as well as comments of the disciplinary authority. The petitioner, for this purpose, was granted a time frame of seven days. 2.6 I may indicate here that, quite curiously, this event is not mentioned in the list of dates. There is a reference, however, of the fact of disagreement, by the disciplinary authority to the report of the inquiry officer, in paragraph 14 of the petition, though the date of disagreement note or the

communication received thereafter has not been adverted to. It may be also relevant to note that, both documents, i.e., the disagreement note and the communication of 26.03.1998, have not been filed by the petitioner. The learned counsel for the petitioner, however, has brought to court both the disagreement note dated 26.03.1998, and the communication of even date, i.e., 26.03.1998, referred to above, by me.

2.7 Continuing with the narrative, I am told by the learned counsel for the petitioner that the petitioner, apparently, offered his comments to the disagreement note and the findings contained in the inquiry report. To be noted, neither this fact nor is the reply referred to in the writ petition. Once again, learned counsel for the petitioner, has in a compilation handed over to me in court, appended his comments, which were filed by the petitioner with respondent no.1.

2.8 None of the aforementioned documents are, however, disputed by the respondents.

2.9 Also pertinently, the disciplinary authority after considering the relevant material, which included the observations made in the inquiry report; observations contained in the disagreement note; and the representation dated 16.04.1998 preferred by the petitioner, came to the conclusion that, charge no.3 was made out against the petitioner and, since, the said charge was of a serious nature, the retention of the petitioner in service, was undesirable.

3. The disciplinary authority, thus, in exercise of powers under Rule 24 of the HPC, Conduct, Discipline and Appeal Rules (in short the DCA Rules), awarded the penalty of removal from service, without it being a disqualification for future employment, in terms of Rule 23(f) of the

aforementioned rules.

4. The petitioner, being aggrieved, by the decision of the disciplinary authority, preferred an appeal. The appellate authority vide order dated 03.08.1998, dismissed the appeal and, sustained the order of the disciplinary authority.

5. The petitioner did not rest at this. He preferred a review petition, which, unfortunately for him, met the same fate. The review petition was dismissed vide order dated 13-15.01.1999.

6. The petitioner, being dissatisfied, preferred the captioned petition.

7. The arguments on behalf of the petitioner were advanced by Mr Shanker Raju, while on behalf of the respondents submissions were made by Mr R.K. Gupta, assisted by Mr Mukesh Kr. Singh.

8. Mr Raju, learned counsel for the petitioner, briefly, assailed the orders of the disciplinary authority, on the following grounds:

(i) The note of disagreement generated by the disciplinary authority dated 26.03.1998, was flawed in law, in as much as, the conclusions reached therein by the disciplinary authority had a finality attached to it, whereas what was required, was to set out, tentative reasons.

(ii) The orders of the disciplinary authority and the appellate authority, both in appeal and review, were bereft of reasons and, therefore, ought to be set aside.

(iii) The three charges framed against the petitioner were inter-related. In this behalf, he submitted the following. The first charge against the petitioner, which was the gravest charge, pertained to an allegation that the petitioner, acting individually or in conspiracy with others, had caused wrongful gain to the clearing agent and, thus, caused a wilful loss of a huge

amount to respondent no.1. The second charge against the petitioner was that, he had failed to maintain absolute integrity as required under Rule 4(a)(i) of the CDA Rules, and thus, was guilty of misconduct as defined in clause 5(x) and 5(xxxiv) of the CDA Rules. The third charge framed against the petitioner was that, he had failed to maintain devotion to duty as envisaged under Rule 4(a)(ii) of the CDA Rules and, therefore, was guilty of misconduct as defined under clause 5(x) and 5(xxxiv) of the CDA Rules. 8.1 Attempting to put the charges framed in a perspective, Mr Raju contended that a bare perusal of the charges would show that they were inter-related. The disciplinary authority having accepted the finding of the inquiry officer qua charge no. 1 and 2, could not have proceeded to find the petitioner guilty vis-a-vis charge no.3 which, in the normal course should, have failed in view of the acceptance of findings with respect to charge no. 1 and 2.

8.2 It was also contended that the infraction, for which, the petitioner had been served with the chargesheet arose in the background of the fact that the petitioner had been given an additional charge. The task performed by the petitioner in respect of which he was charged, was not the task which he usually performed and, that, the certification of bills was carried out by the petitioner based on the prevalent practice, which was, to check the details, which obtained in the Goods Receipt Register (GRR). It was contended that, the petitioner had in his possession only the GRR and the Clearing Agents bills, and, not, the particulars of the contract, which had been executed between the Clearing Agent and respondent no.1. It was submitted that, since the contract was not available with the petitioner, the petitioner was unaware of the services that the clearing had to render or the movement

of the goods and, therefore, he performed his duties according to what was available to him and, as per the practice, then prevalent. 8.3 In respect of his submissions, learned counsel for the petitioner, relied upon the following judgments: Vijay Singh vs State of Uttar Pradesh & Ors. (2012) 5 SCC 242 and Bishamber Nath vs Unior of India 2012 (131) DRJ 336.

8.4 Reference was made to the judgment of Vijay Singh vs State of Uttar Pradesh & Ors. to buttress the submission that the disciplinary authorities were under a legal obligation to decide the petitioner's appeal and review by dealing with the grounds taken in the appeal and review. Failure to do so, according to Mr Raju, would result in a case of "non-application of mind". 8.5 The second judgment, in the case of Bishamber Nath vs UOI, was cited by Mr Raju to drive home the point that the disciplinary authority, while disagreeing with the view of the inquiry officer, could not record "positive findings", i.e., final conclusions against the delinquent employee.

9. As against this, Mr Gupta, learned counsel for the respondents, submitted that the petitioner was the key person, who had certified the bills of the Clearing Agent and, therefore, was fully responsible for over-payment made to the Clearing Agent. It was contended that, in fact, there were three other employees who were involved in the conspiracy; who were, accordingly, proceeded departmentally by respondent no.1. 9.1 I was informed that in so far as the other three employees were concerned, they were all found guilty and, thus, dealt with, according to the orders passed by the disciplinary authority in their respective cases. I was further informed that out of the three employees, two did not challenge the orders of the disciplinary authority, while the third employee, Mr S.C.

Upadhyay, had preferred a writ petition in this court. The said writ petition, I am informed, was numbered as WP(C) No. 5582/1999, which however was dismissed by the learned single Judge vide judgment dated 28.04.2010. I am further informed by the learned counsel for the respondents that, Mr S.C. Upadhyay had preferred an appeal with the Division Bench, which is, numbered as : LPA No. 493/2010. The said appeal, I am told, was admitted by the Division Bench vide order dated 26.07.2010 and is, consequently, pending adjudication.

9.2 It was the contention of the learned counsel for the respondents that the articles of charges would show that the Clearing Agent, i.e., M/s Chawla Bros., was required to perform the following activities for which financial remuneration was fixed. These activities being: Clearing of the Rail Head Point of receipt of consignments; Loading of goods on their transport; transportation from Railway goods shed to company's godown; and, Unloading, weighing and stacking of goods in the godown. It was thus, the contention of the learned counsel for the respondents that, in the entire process of certification, the petitioner had failed to verify as to whether all activities had been undertaken by the clearing agent. 9.3 Learned counsel for the respondents stated that, in this particular case, the delivery of goods was made by the Clearing Agent directly to the customer from the railway head point. It was thus submitted, that the bills submitted by the Clearing Agent wrongly claimed amounts for services which were not rendered, which, according to the respondents, resulted in over-payment.

9.4 Mr Gupta, learned counsel for the respondents, submitted that despite the inquiry officer recording observation to the effect that the petitioner had

failed to discharge his duties as expected of him, had erroneously gone on conclude that the petitioner was not guilty of any of the charges, levelled against him. In this behalf, learned counsel for the respondents drew my attention to various observations made in the inquiry report which, according to the counsel for the respondents, should have ordinarily led to a contrary conclusion than the one set out in enquiry report. 9.5 Mr Gupta, thus says, that it is because of this precise reason that the disciplinary authority disagreed with the inquiry officer and, accordingly, generated the note of disagreement dated 26.03.1998. 9.6 It was Mr Gupta's contention that the matter had been examined at least four times by the authorities below and, therefore, ought not to be interfered with, by this court. The learned counsel contended that since respondent no.1 had lost confidence in the petitioner, the order of dismissal was the correct order. Retaining the petitioner in service, according to learned counsel would be detrimental to the interest of respondent no.1. In support of this submission, Mr Gupta relied upon the judgment of the Supreme Court in the case of : Divisional Controller, Karnataka State Road Transport Corporation vs M.G. Vittal Rao (2012) 1 SCC 442.

10. I have heard the learned counsel for the parties and perused the record. The facts detailed out above are not in dispute. What has emerged, from record is as follows:

10.1 The petitioner, while working as Executive (Sales) at the regional office of respondent no.1 was served with a chargesheet dated 01.09.1995. 10.2 There were three charges framed against the petitioner. The first charge, as indicated above, related to causing wrongful gain to the Clearing Agent and, therefore, causing wilful loss to respondent no.1 by either acting

individually or, in conspiracy with other officers. The second charge pertained to the fault on the part of the petitioner, to maintain absolute integrity, as envisaged in Rule 4(a)(i) of the CDA Rules. The third charge pertained to failure to maintain devotion to duty as envisaged, once again, with reference to in the relevant CDA Rules.

10.3 Admittedly, the inquiry officer returned a finding of not guilty vis-a- vis all three charges. The disciplinary authority, however, while disagreeing with the enquiry officer vide order dated 14.05.1998, held the petitioner guilty only, qua the third charge. The said charge, therefore, being relevant, is extracted hereinbelow:

"III. By virtue of the aforesaid acts of omission/ commission, Shri Pradeep Kumar failed to maintain devotion to duty as envisaged in Rule 4(a)(ii) of the CDA Rules and thus appears to be guilty of misconduct as defined in Clauses 5(x) and 5(xxxiv) of the HPC CDA Rules."

10.4 In the note of disagreement, the disciplinary authority observed as follows:

"...The charges against the respondent range from theft, fraud or dishonesty in connection with the property or business of the Corporation to those of negligence, maintenance of integrity and devotion to duty. The report of the Enquiry Officer seems to suggest that from the documents produced before the Enquiry Officer there was not enough evidence to come to a conclusion that the charges had been proved.

I have carefully scrutinised the documents and have also considered what the concerned executive had to say in respect of the said documents. It appears that at no place did the concerned executive denied (sic) that he had prepared the Bill Forwarding Notes or that his signatures had been unduly procured. He has merely stated that he was following the

system that was already being followed. He has, however, not been able to explain why he did not call for all the relevant documents before certifying the Bill Forwarding Notes. In this respect, the enquiry officer does not appear to have considered that the certification is a vital link in the bills ultimately being paid for full value to the clearing agent which they were admittedly not entitled to. A large number of bill forwarding memos were placed before the enquiry officer which are all admitted documents and contained the certification of the concerned executive. Such documents by themselves would establish the charges or at least the charge of negligence as mentioned in Charge No.3.

In the circumstances stated above, I am constrained to disagree with the findings of the enquiry officer in respect of the charge no.3. I find and hold that the evidence on record is sufficient to come to my conclusions. I hold that here is sufficient evidence to establish the Charge No.3 against the respondent..." (emphasis is mine)

10.5 It is based on this note that an opportunity was given to the petitioner to file a reply. The order dated 14.05.1998, adverts to the reply filed by the petitioner. A bare perusal of the note of disagreement, in my view, demonstrates that the disciplinary authority, instead of making a tentative observation, has returned findings which have a flavour of finality added on to it. This is evident from the following lines in the note of disagreement: "Such documents by themselves would establish the charges or at least the charge of negligence as mentioned in Charge No.3". The disciplinary authority in fact went further by saying that the evidence on record was sufficient for the conclusion reached in the note and, that, there was sufficient evidence to establish charge no.3 against the petitioner. 10.6 The position of law on this subject is no longer res integra. The Supreme Court in the judgment of Yoginath D. Bagde vs State of

Maharashtra AIR 1999 SC 3734 has deprecated the practice of recording positive findings at the stage of disagreement qua a delinquent employee. This judgment has been referred to in the judgment of the Division Bench of this court in Bishamber Nath vs UOI, which was relied upon by the counsel for the petitioner. Recordal of final conclusion would naturally give an impression to a delinquent employee that the disciplinary authority is pre- disposed to reach a finding against him and, therefore, an opportunity given to file a reply to the disagreement note would turn out to be nothing but a mere formality. Generation of such a note would, undoubtedly, be contrary to the law.

10.7. The other difficulty in the matter qua respondent no.1 is the manner in which the disciplinary authority has passed the order dated 14.05.1998. The appellate authority has done no better, both in the appeal and the review. The orders are completely bereft of reasons. It is well settled that reasons are a link between the material that an authority considers and the conclusion it reaches. Failure to give reasons results in denial of justice [See State of W.B. & Anr. vs Alpana Roy & Ors. (2005) 8 SCC 296 at page 299, paragraph 8]. The petitioner in his appeal and representation, for whatever they were worth, had raised various defences. These defences, broadly, pertained to the fact that: the work of certification was additional work accorded to him and was not the normal work which was assigned to him; that only some of the bills had been processed by him and that too based on the precedents, practice and advice of his seniors; the only base material available to him for certification was the GRR and the bills of the Clearing Agent; the contract, was not available with him; and lastly the bill was approved by his seniors, who were placed at higher levels.

11. As against this the respondents' case was that, while certifying the bills, the petitioner, should have examined the contract and verified as to whether the services referred to in the bills had been undertaken by the Clearing Agent.

11.1 These are aspects that the disciplinary authority ought to have considered, while reaching a conclusion that the petitioner had failed to maintain devotion to his duties as envisaged in Rule 4(a)(ii) of the CDA Rules read with clause 5(x) and 5(xxxiv) of the very same rules. Instead, what the disciplinary authority did, by its order dated 14.05.1998, was to just mouth the provisions of the rules and not discuss its applicability and/or the pros and cons, which were set up in the case. To give a flavour of the same, the relevant portions of the order of the disciplinary authority are extracted hereinbelow:

"..... And whereas the undersigned, after having received and considered the report of the Inquiry Officer, the statements made by witnesses and documents and other evidence produced before the Inquiry Officer together with the representation of Shri Pradeep Kumar alongwith the undersigned's observations disagreeing with the findings of the Inquiry Officer in respect of Charge No.3 (i.e., Shri Kumar failed to maintain devotion to his duty as envisaged in Rule 4(a) (ii) of HPC's CDA Rules and thus is guilty of the charge of "Neglect of work or negligence in the performance of duty including malingering or showing down of work" and "Breach of law and rules of the Corporation or orders/ instructions issued by the Corporation from time to time" as defined in Clause 5(x) and 5(xxxiv) of HPC CDA Rules) holds that there are sufficient evidence on record to establish the aforesaid charge no.3 against Shri Kumar.

And whereas the charge No.3 against Shri Kumar is serious nature rendering Shri Kumar retention in t he services

of the Corporation undesirable.

Now, therefore, in exercise of the power conferred under Rule 24 of the HPC Conduct, Discipline and Appeal Rules, the undersigned in the capacity of the Disciplinary Authority hereby awards Shri Kumar the penalty of removal from service which shall not be a disqualification for future employment as specified in Rule 23(f) of HPC Conduct, Discipline and Appeal Rules...."

11.2 As would be evident, the order has been written in a pedantic manner, without even an iota of discussion on merits.

12. A perusal of the record would show that the appellate authority, in its order, did no better. It simply agreed with the conclusion reached by the disciplinary authority. The same exercise was repeated, while dismissing the review petition filed by the petitioner.

13. In these circumstances, I am of the view that the orders dated 14.05.1998, 03.08.1998 and 13.01.1999, would have to be set aside. It is ordered accordingly.

13.1 However, in view of the fact that the charge against the petitioner is serious and there are observations in the inquiry report which require deliberation and examination, the matter is remitted to the disciplinary authority to enable him to re-visit the issues pertaining to charge no.3. It is ordered accordingly. The disciplinary authority will issue a notice to the petitioner, in writing, for the said purpose and, thereafter, proceed in accordance with the rules, which would be applicable to him. To facilitate issuance of notice by the disciplinary authority, I have asked for the address of the petitioner, who is present in court. The petitioner says that, he is presently residing at, Hindustan Paper Corporation Ltd., 75-C, Park Street, Calcutta - 700016

14. I must also note that during the course of proceedings Mr Raju had informed me, based on the instructions he received from the petitioner, who is present in court, that he had reached the age of superannuation on 28.02.2014. Mr Raju, however, during the period the matter was stood over, has returned with fresh instructions. The learned counsel now states that the age of superannuation has been enhanced to 60 years and, therefore, had the petitioner continued in service, in the normal course, he would retire in February, 2016.

14.1 I must make it clear that there is no material on record as to the age of superannuation. Furthermore, Mr Gupta, learned counsel for the respondents, candidly says that he has no instructions, as to whether the age of retirement has been enhanced and that, the petitioner, in the normal course, would retire in 2016. Therefore, no definitive finding can be given on this aspect.

15. In these circumstances, the respondents shall be free, from hereon, to take appropriate action in the matter, albeit in accordance with law. Needless to say, since the writ petition is of 1999, the disciplinary authority will expedite the proceedings in the matter and conclude the same on or before 31.05.2014.

16. Before I conclude, I must refer to one, other, submission of Mr Gupta. It was Mr Gupta's submission that in view of the loss of confidence, the respondents had the right to dispense with the services of the petitioner. For this purpose he had relied upon the judgment of the Supreme Court in the case of Divisional Controller, Karnataka State Road Transport Corporation vs M.G. Vittal Rao. In my opinion, in view of the discussion above, this judgment will have no application, as that stage has not been

reached, since the orders of the authorities below have been set aside, inter alia, on the ground of lack of reasons. The judgment is distinguishable and thus, accordingly, in my view, this argument is misconceived.

17. The writ petition is disposed of in the aforesaid terms.

RAJIV SHAKDHER, J MARCH 20, 2014 kk