B.R.L. Saxena vs Municipal Corporation Of Delhi ...
2014 Latest Caselaw 2617 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment reserved on: 24.02.2014
                                       Judgment delivered on: 22.05.2014

+                         WP(C) 3034/1996

       B.R.L. SAXENA                                ......PETITIONER


                                 VS

       MUNICIPAL CORPORATION OF DELHI
       & ANR.                      .....RESPONDENTS

ADVOCATES WHO APPEARED IN THIS CASE:

For the Petitioner: Ms. Ashly Cherian, Advocate For the Respondents: Mr. Sandeep Prabhakar, Mr.Amit Kumar and Mr. Vikas Mehta, Advocates for R-2

CORAM :-

HON'BLE MR JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J

1. By this writ petition, the following broad reliefs are sought : -

i) A writ order or direction to quash the order dated 14.06.1995, passed by the Additional General Manager of the Delhi Electrical Supply Undertaking (as it then was), as also, the decision dated 24.05.1995 passed by the Delhi Electrical Supply Committee (in short DESC). It is the case of the petitioner that decision dated 24.05.1995, which forms the basis of the order dated 14.06.1995, was not communicated to him.

ii). Grant of promotion as Assistant Personnel Officer w.e.f. 04.10.1998, with all consequential benefits in pay and allowances with interest, and upward revision of pension.

iii). Award of suitable compensation for harassment of the petitioner, since the issuance of the first charge sheet, on 10.08.1987.

iv). A refund of pension deducted with interest and a re-calculation of commuted pension based on original pension, without 10% deduction in the pension.

1.1 The reason that I have noted the reliefs prayed for, is that, the counsel for the petitioner, Ms. Cherian, during the course of arguments, has confined her submissions only to the legal tenability of the order dated 14.06.1995 and the decision dated 24.05.1995 and, its effect on the payment of pension to the petitioner.

2. Therefore, with the aforesaid prefatory observations, let me briefly advert to the following broad facts, which are necessary for adjudication of the issue at hand :-

2.1 The petitioner, was appointed as a Junior Cashier, in Delhi State Electricity Board (as it then was), on 20.07.1953. The petitioner, on 24.12.1969, was promoted as UDC and Head Clerk.

2.2 On 01.02.1980, the petitioner was promoted, albeit temporarily, as Superintendent (Clerical). The petitioner, was regularized in the said post on 07.04.1980.

2.3 The petitioner claims that by an office order dated 16.11.1983, twenty one (21) persons holding the post of Superintendents (Clerical), who were junior to the petitioner, were promoted to the Grade of Assistant Personnel officer.

2.4 Evidently, by an office order dated 27.09.1986, the petitioner was confirmed in the post of Head Clerk w.e.f. 31.03.1982.

2.5 It is the case of the petitioner that in October 1988, and then again, in 1989, his juniors were promoted, ignoring the claim of the petitioner. The petitioner claims that between 1989 and 1991, several representations on the issue of denial of promotion to him were made to the concerned authority. Reference in this regard is made to representations dated: 27.11.1989, 06.06.1990, 26.10.1990 and 30.05.1991.

2.6 In the interregnum, on 10.08.1987, a chargesheet, which for the sake of convenience, will be referred to hereon as the first chargesheet, was served on the petitioner with regard to the alleged misconduct committed by the petitioner, in 1981. Three charges were framed against the petitioner under this chargesheet. The charges, briefly, pertained to: petitioner having drawn a LTC claim for the Block Year 1978-1981, in the sum of Rs.2985/-, based on false documents; the petitioner, it was alleged, visited Sri Lanka, while he was on LTC tour without obtaining permission of the competent authority; and lastly, an allegation was made that the petitioner had purchased an electronic item, of a value of Rs.2,000/-, in his wife's name, without due intimation to the competent authority.

2.7 Interestingly, though an Inquiry Officer was appointed and, a report submitted, in February 1992, no action was taken till the time the petitioner superannuated from service. The petitioner reached the age of superannuation, on 31.03.1992.

2.8 On 28.04.1992, the petitioner was, infact, exonerated qua the charges levelled under the first chargesheet.

2.9 Just before the date, the petitioner, reached the age of superannuation, a second chargesheet dated 27.03.1992, was served on the petitioner. This chargesheet for the sake of convenience will be referred to hereon as, the second chargesheet. The second chargesheet, broadly, pertains to violation of office order dated 15.07.1985 which, the petitioner says was, subject matter of an enquiry held in 1989 concerning the petitioner and seven (7) other employees. To be noted, it is the petitioner's case that, in the enquiry set for the said purpose, the petitioner alongwith other employees, stood exonerated. Therefore, one of the grounds of challenge in the petition is that, a fresh enquiry could not have been initiated in respect of the alleged violation of office order dated 05.07.1985. The broad charge made against the petitioner though is that he was instrumental in sanctioning of twenty eight (28) domestic electricity connections to four (4) persons without proper documentation in place.

2.10 In any event, the petitioner filed a reply dated 21.04.1992, to the second chargesheet.

2.11 By an order dated 10.02.1993, an Inquiry Officer was appointed. The Inquiry Officer, submitted his report, which is dated 31.12.1993.

2.12 It is the petitioner's case that the enquiry report dated 31.12.1993 was not supplied to him. It is also the case of the petitioner that the enquiry report was supplied to him only when, a memorandum dated 27.01.1986 (sic 21.07.1995) was issued, calling upon him, to show cause as to: "why the penalty of withdrawal of 10% of the pension admissible to him for a period of two years may not be imposed upon him". Pertinently, in the aforementioned memorandum, there is a reference to a decision of the DESC dated 28.12.1994 whereby,

evidently, the said authority, which is the competent authority, under Regulation 10 of DESU (DMC) Service (Death-cum-Retirement Benefit) Regulation, 1973, had agreed with the findings returned by the Inquiry Officer. The petitioner claims that a copy of this decision was also, not supplied to him.

2.13 The petitioner, evidently, filed a reply dated 20.02.1995 to the aforementioned memorandum / show cause notice.

2.14 On 14.06.1995, the impugned order was passed by the Additional General Manager of respondent no.2.

2.15 Being aggrieved, the petitioner claims that, an appeal, was filed under Regulation 11 of the Delhi Electric Supply Undertaking (DMC) Service (Control and Appeal) Regulations, 1976 (in short 1976 Regulations). The appeal was, however, not disposed of despite, a reminder having been sent, on 04.06.1996.

2.16 The petitioner claims that a review petition dated 27.06.1996 was also preferred with the Chief Secretary, Delhi Administration. The review petition, like the appeal, was not dealt with by the concerned authority.

3. Left with no alternative, the petitioner filed the present writ petition. It appears that the writ petition came up for hearing for the first time on 12.08.1996 when, a single Judge of this Court dismissed the petition. However, on a review petition being filed, the order dated 12.08.1996, was recalled vide order dated 20.02.1997.

3.1 At the stage of review, it was brought to the notice of the court that on very same facts, an earlier enquiry had been held in which the

petitioner had been exonerated. Since documents pertaining to the said enquiry became available only after the dismissal of the writ petition, the consideration of those documents was vital. The review was allowed, largely, on this ground. By an order passed on a separate application, on the same date, liberty was given to the petitioner to amend the writ petition.

3.2 I may also note that despite the fact that the matter has been pending for a very long time, and perhaps for the reason that the erstwhile entity, which was the employer of the petitioner, underwent a change in ownership, somewhere the morphed entity and its Managers forgot to file a return in the matter. Consequently, the averments made in the petition remain untraversed.

4. Based on the present state of the pleadings and, the aforesaid facts and circumstances, arguments on behalf of the petitioner, were advanced by Ms. Cherian, while submissions on behalf of the contesting respondent i.e., respondent no.2, were advanced by Mr. Prabhakar.

5. Ms. Cherian, while confining her challenge to the order dated 14.06.1995, briefly submitted as follows :-

5.1 The petitioner was not the final authority, for sanctioning 28 domestic light connections which were subject matter of enquiry of the second chargesheet. The final authority, in the matter was, the Executive Engineer. For this purpose, reliance was placed by the learned counsel on the office note generated in that behalf, at the relevant time, to demonstrate the movement of the file, and the manner, in which, the decision was taken.

5.2 The learned counsel made it a point to convey that the petitioner in the first instance rejected the application of the concerned consumers for grant of new connections, in view of the fact that, the premises in issue, were mentioned in the list of unauthorized structures, available with respondent no.2. It was contended that since, the applicant-consumers had moved this court by way of three separate writ petitions, and had obtained interim orders dated 21.05.1986, to the effect that, pending disposal of the petitions, electricity connections be granted: "as permissible under rules", that the entire exercise, which ultimately culminated in connections being granted, commenced. It was her contention that the petitioner could not have been held responsible, given the circumstances set out above, especially, when, the petitioner was not the final authority which sanctioned the electricity connections. According to the learned counsel, the Inquiry Officer and / or Disciplinary Authority did not examine the tenability of this submission and the documents pertaining to this crucial aspect of the matter.

5.3 Apart from the above, it was contended by Ms. Cherian that there was a complete breach of principles of natural justice, in as much as, firstly, the petitioner was denied the copy of the enquiry report at the relevant stage; secondly, the refusal to supply a copy of the decision reached by the DESC dated 28.12.2004 prior to issuance of show cause notice dated 27.01.1995; and lastly, the failure to disclose the contents of the final decision of the DESC dated 24.05.1995, which was, the basis of the impugned order dated 14.06.1995, issued by the Additional General Manager of respondent no.2.

5.4 The impugned order was also assailed by Ms. Cherian, on the ground, that it was, a non speaking order which, according to her, did not deal with any of the contentions raised by the petitioner.

5.5 It was also contended that with, both the appeal and the review petition not having been dealt with by the concerned authority of respondent no.2, the petitioner's right to a two tiered remedy was compromised.

6. Mr. Prabhakar, who appeared for the contesting respondent i.e., respondent no.2, relied upon the record to defend the impugned order. He submitted that the disciplinary authority having agreed with the Inquiry Officer was not required to supply any reasons. The reasons for coming to the conclusion that the charge against the petitioner had been proved, according to him, had been founded on the findings reached in the enquiry report. Mr. Prabhakar emphasized that this court could not re-appreciate evidence, and since, full opportunity had been given to the petitioner to defend his case, neither the decision nor the penalty imposed, could be interfered by this court, while exercising jurisdiction under Article 226 of the Constitution. In support of his submissions Mr Prabhakar placed reliance on the judgement of the Supreme Court in the case of K.L. Tripathi vs State Bank of India & Ors. (1984) 1 SCC 43 and the judgement of a Single Judge of this court in the case of O.P. Gupta vs Delhi Vidyut Board and Anr. 85 (2000) DLT 779.

REASONS

7. I have heard the learned counsels for the parties and also perused the record.

8. I must state at the outset that, though on record there is no rebuttal to the averments made in the petition, I intend to ascertain that if, the averments made in the petition are accepted, as correct, whether the petitioner will be entitled to the reliefs, claimed therein. Therefore, it would be necessary to see what the record reveals.

9. What emerges from the record is this: the petitioner during the relevant period i.e., 1986-1987, was holding the post of Commercial Superintendent when, twenty eight (28) domestic light connections were sanctioned, in favour of five (5) persons. In relation to sanction of these electricity connections, the petitioner was issued a chargesheet, on 27.03.1992, under Regulation 7 of the 1976 Regulations.

9.1 The gravamen of the charge against the petitioner was that, he had recommended grant of twenty eight (28) DL connections by mis- representing facts, and without obtaining complete documents in contravention of the instructions contained in office order dated 15.07.1985.

9.2 The aforesaid resulted in an enquiry being conducted. The Inquiry Officer vide his report dated 31.12.1993, came to the conclusion that, the petitioner had forwarded the case of the applicants-consumers for grant of permanent connections, without fulfilling the requisite formalities, despite the fact that, this court's order required electricity connections being given in accordance with, permissible rules.

9.3 Admittedly, the report of the Inquiry Officer was placed before the DESC, which is the Disciplinary Authority. Undisputedly, the Disciplinary Authority vide its decision dated 28.12.1994, proposed

withdrawal of 10% of the pension per month payable to the petitioner, for a period of two years.

9.4 It is only thereafter, that a show cause notice was issued to the petitioner, which is dated, 27.01.1995. The petitioner, did file a reply dated 20.02.1995, to the said show cause notice. The reply of the petitioner was placed before the DESC, on 04.05.1995. The DESC, thereafter, vide its decision dated 24.05.1995, ordered the imposition of the penalty of withdrawal of 10% of the pension per month admissible to the petitioner, for a period of two years. This decision of DESC was communicated to the petitioner vide the impugned order dated 14.06.1995 passed by the Additional General Manager (A).

9.5 The fact that the DESC took a decision to impose the aforementioned penalty on 28.12.1994, as also the fact that the reply of the petitioner to the show cause notice was placed before the DESC, on 04.05.1995, and thereafter, a decision was taken by the DESC, once again, on 24.05.1995, gets revealed only on, perusal of the impugned order dated 14.06.1995. None of the decisions of the DESC, have been placed on record.

9.6 It is also not disputed that even though an appeal and a revision petition had been filed, the same were not dealt with by respondent no.2.

9.7 The aforesaid facts demonstrate that breach of the principles of natural justice took place at several stages in so far as the petitioner is concerned. The first instance of breach of principles of natural justice occurred when, the petitioner was denied a copy of the enquiry report dated 31.12.1993 prior to the issuance of the show cause notice dated 27.01.1995. The facts show that the Inquiry Officer, in this case, was

separate from the disciplinary authority. That being the case, it was incumbent on the Disciplinary Authority to furnish a copy of the enquiry report to the petitioner so that he could place his version of the case, before a decision was taken as regards the guilt of the petitioner qua the charges leveled against him. The Disciplinary Authority, as a matter of fact, without affording an opportunity to the petitioner to file his response to the report of the Inquiry Officer vide decision dated 28.12.1994 proposed a penalty qua the petitioner. The petitioner, was supplied with the enquiry report dated 31.12.1993, for the first time, with the show cause notice dated 27.01.1995. The said show cause notice only called upon the petitioner to respond qua the penalty which was proposed to be imposed on him. The enquiry was admittedly split into two stages. The first stage concerned itself with ascertainment of guilt, if any, of the petitioner. The second stage dealt with the nature of penalty, if any, to be imposed on the petitioner. In the first stage, a delinquent employee attempts to prove his innocence while in the second stage, the endeavour of such an employee, is to put forth circumstances which would reduce the rigour of the punishment contemplated qua him. The requirement to supply the Inquiry report prior to conclusion reached by the Disciplinary Authority on the guilt of a delinquent employee is essential as one of the inputs which is used by the Disciplinary Authority in firming its conclusion is the report of the Inquiry Officer. Thus, a failure to supply report of the Inquiry Officer at the first stage, results in a denial of reasonable opportunity to a delinquent employee to defend his case. The Constitutional Bench of the Supreme Court in the case of Managing Director ECIL Vs. B. Karunakar, (1993) 4 SCC 727 has enunciated this very principle in respect of all such enquiries, whether held by governmental authorities,

public sector or private entities. The relevant observations of the Supreme Court in this behalf are contained in paragraph 25, 26 and 30 of the judgment. Being apposite, the same are extracted hereinbelow :-.

"..... 25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report. the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment.

26. The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity it the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an

opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it..... .....30. .....(i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.

(ii) The relevant portion of Article 311(2) of the Constitution is as follows:

"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges."

Thus the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment.

(iii) Since it is the right of the employee to, have the report to defend himself effectively, and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the, report or not, the report has to be furnished to him.

(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra)

should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.

(emphasis is mine)

9.8 The same view has been reiterated by the Supreme Court with greater emphasis in the following two cases :- Punjab National Bank and Ors. Vs. Kunj Behari Misra, (1998) 7 SCC 84 and Punjab National Bank and Ors. Vs. K.K. Verma, (2010) 13 SCC 494.

9.9 Having said that denial of enquiry report at the first stage would result in denial of reasonable opportunity, one would have to put in a caveat; which is that the denial should be accompanied by demonstrable prejudice (see paragraph 31 of Managing Director ECIL Vs. B. Karunakar). The next point, therefore, to be considered is: was there prejudice caused to the petitioner by the failure of respondent no.2 to supply the enquiry report at relevant stage, that is, before a decision was taken qua the penalty proposed to be imposed on the petitioner. The answer to the question, to my mind, in this case is, in the affirmative.

9.10 The petitioner, relies upon contemporaneous office notes dated 06.06.1986 [extracted in paragraph 2(xxii) of the writ petition] to demonstrate two vital aspects of his defence. First, that he had initially

rejected the application for grant of connection. These connections had to be granted only to comply with the order of this court. Since, a temporary connection. could not have been given as they were given only for a limited period of time (approximately for 10 days), and for a specific cause, discussion on file took place to give permanent connection, pending decision in the writ petition of the applicants- consumers. The advice rendered by the legal advisor was non- commital, to say the least, as he opined in sum that temporary/ permanent connection be given as per rules. Therefore, steps were taken to recommend grant of connection.

9.11 Second, that the petitioner's action was only a step in aid of the final decision, which was taken by the executive engineer.

10. Apart from the above, there is also a defense taken that O.M. dated 15.07.1985, had no application to the facts obtaining in the present case. In this behalf reliance was placed on the results of an earlier enquiry, in which, the petitioner along with others was exonerated.

10.1 The fact that the officer on ground should have reported whether or not the building was sanctioned was also brought to fore.

10.2 These aspects could not be highlighted by the petitioner before the Disciplinary Authority, prior to its decision dated 28.12.1994, whereby it proposed the impugned penalty, causing grave prejudice to the defense of the petitioner, on merits.

11. Coming back to other instances of breach of principles of natural justice. The second instance occurred when, copies of the decision dated 24.05.1995, arrived at by the DESC, was not supplied to the petitioner. The petitioner's ability to assail the order of the Disciplinary

Authority was clearly compromised, in as much as, he had no idea as to whether or not the Disciplinary Authority had examined the material on record, while concurring with the findings returned by the Inquiry Officer.

11.1 It is far too well settled that the Disciplinary Authority can appoint an Inquiry Officer to collate and appraise material which forms, the basis of a charge against a delinquent-employee. The Inquiry Officer, in turn, based on the said material and evidence adduced before him, after giving due opportunity to a delinquent-employee, is required in law to return a finding on all charges framed against such an employee. As a matter of fact, where, the relevant rules permit, the Inquiry Officer can also recommend punishment. This exercise by an Inquiry Officer, who is separate from the Disciplinary Authority, does not absolve the disciplinary authority from its obligations to independently appraise the material and evidence adduced before the Inquiry Officer. The Disciplinary Authority is required to examine and give reasons its own reasons on each and every charge framed against the delinquent employee. This essential function, the disciplinary authority cannot abdicate. (See A.S. Sethi Vs. UOI, AIR 1968 DEL

26).

11.2 In this particular case, the failure to reveal the contents of the decision of the disciplinary authority, which formed the basis of the impugned order has resulted in a breach of principles of natural justice. This action of respondent no.2 has also left scope for the argument that the impugned order dated 14.06.1995 passed by the Additional General Manager (A), is a non-speaking order. As rightly argued by the counsel for the petitioner, the impugned order only communicates the conclusion

of the DESC, which is, the disciplinary authority. An order without reasons is an anti-thesis to the rule of law, and hence, in my opinion, cannot be sustained.

11.3 The judgements cited by Mr Prabhakar are clearly distinguishable on facts. In K.L. Tripathi's case the report pertaining to the investigation carried out qua the delinquent-employee was supplied to him; whereupon a show cause notice was issued, to which a reply was filed. The situation, which arose in the present case, is one where, the inquiry report was not supplied to the petitioner prior to Disciplinary Authority arriving at a decision qua the guilt of the petitioner. Furthermore, as is discernible on a close reading of the judgement in K.L. Tripathi's case, that the court came to the conclusion based on the material placed before the Disciplinary Authority that, there was consideration of every relevant facet of the matter. However, in this case, a fair reading of the impugned order does not lead me to the same conclusion. As is often said, reasons are a link between the material on record and the conclusions reached thereby, upon consideration of the said material by the adjudicating authority. Reasons, therefore, however discernible, are vital to the decision making process.

11.4 The decision in the O.P. Gupta's case was relied to contend that the DESC in this case (which was the Disciplinary Authority) wore the hat of both, the Disciplinary Authority and the Appellate Authority and, therefore, it made no difference that appeal was not considered. While one may have no difficulty in accepting this broad proposition of law, the facts of this case reveal that, upon an appeal being filed, which was followed by a reminder, and a review petition, no communication emanated from respondent no.2, in which this stand was taken. The

petitioner was left, practically, clueless as to why no decision was taken on his appeal. This, to say the least, was not a happy state for the petitioner. In any event, nothing turns on this aspect of the matter in view of my conclusions with regard to other aspects in the foregoing paragraphs.

12. What has compounded the injury for the petitioner, is the fact that neither his appeal nor, his review petition, was dealt with by the concerned authorities constituted under the 1976 Regulations.

13. In these circumstances, the impugned order dated 14.06.1995, cannot be sustained.

14. Under Article 226, the jurisdiction of this court is circumscribed while dealing with matters involving disciplinary proceedings. The court ordinarily interdicts the decision of a Disciplinary Authority if, it is based on no evidence, or is perverse, as in, the conclusions reached, based on the material placed before it, could not have been reached by any reasonable or prudent person, or is in breach of principles of natural justice. Appreciation of evidence or the scope of an office order as in this case is, an aspect which is not within the realm of the jurisdiction of this court. Therefore, however tempting, I would, abjure from entering an arena, which involves appreciation of evidence or discussion on the merits of the case. This, of course, would not help the cause of respondent no.2, in view of my discussion, in the preceding paragraphs.

15. Accordingly, the impugned order dated 14.06.1995 is set aside. Ordinarily, I would have remitted the matter to respondent no.2 to commence the enquiry from the stage at which the enquiry officer had submitted his report. Recourse, is not taken to this route, for the reason

that nearly 28 years have passed since the time the alleged misconduct took place. Relegating the petitioner to a fresh enquiry would result in a situation that he would not see the final result of an anticipated prolonged litigation, possibly, during his life time.

15.1 Furthermore, the penalty imposed is not heavy from the point of view of respondent no.2. Therefore, having regard to the entire gamut of facts and circumstances, of this particular case, not only is the impugned order is set aside but the following consequential direction is also issued. The petitioner, accordingly, would be refunded the amounts deducted towards pension; albeit without interest. Any consequent adjustment to pensionary benefits of the petitioner resulting from this decision, will also be given effect to by respondent no.2.

16. As regards, other reliefs, which relate to promotion and consequential benefits, and even compensation, no arguments were advanced on behalf of the petitioner with regard to the same.

16.1 In any event, I am not inclined to grant any relief in respect of the promotion in view of the fact the cause of action if, at all, qua denial of promotion arose, for the first time, on 18.10.1988, when, according to the petitioner, his juniors were promoted. The petitioner thereafter, only made representations. The petitioner approached this court, for the first time, after nearly eight years, in 1996. It is well settled that representations by themselves do not give rise to a fresh cause of action. [See Union of India and Ors. Vs. M.K. Sarkar (2010) 2 SCC 59]. Delay and latches would, thus, be an impediment in grant of relief to the petitioner. [see Union of India & Ors. vs Tarsem Singh (2008) 8 SCC 648].

16.2 The relief of compensation also, cannot be granted to the petitioner, on account of lack of sufficient evidence. Mere pleadings backed by an affidavit in support of the pleadings, by itself would not suffice, in this particular case.

17. The writ petition is thus, allowed, in the aforementioned terms. Parties are, however, left to bear their own costs.

RAJIV SHAKDHER, J MAY 22, 2014 yg