Delhi High Court
Shri Roop Chand Gupta vs Delhi Vidyut Board on 5 March, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.5784/2001
% 5th March, 2015
SHRI ROOP CHAND GUPTA ..... Petitioner
Through: Ms. Jasmeet Chandhoke, Advocate
with Mr. Gourav Chauhan, Advocate.
versus
DELHI VIDYUT BOARD ..... Respondent
Through: Mr. Sheetesh Khanna, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition filed under Article 226 of the Constitution
of India, the petitioner seeks quashing of the orders passed by the
Disciplinary Authority and Appellate Authority; dated 29.12.2000 and
21.3.2001 respectively; by which the petitioner has been imposed penalty of
reduction by four stages in his time scale of pay for a period of four years
with cumulative effect. Petitioner was charged with giving illegal tube well
connections without obtaining technical feasibility report and genuineness of
load report, and which reports were required in terms of the circulars of the
W.P.(C) No.5784 /2001 Page 1 of 16
respondent/employer dated 23.5.1990 and 4.5.1987. These circulars read as
under:-
"CIRCULAR DATED 23.5.1990
"DELHI ELECTRIC SUPPLY UNDERTAKING
(Municipal Corporation Of Delhi)
CIRCULAR
Sub:- Providing non-domestic connections and other categories
of connections.
Certain questions have been raised about the procedure of
providing single phase/three phase electric connections in
approved/regularised unauthorised and regularised unauthorised
areas. The position has been clarified as under:
For providing electric connections, the different type of areas
can be broadly divided into the following categories;
1) Approved areas
2) Regularised unauthorised areas,
3) Unapproved areas.
As per Office Order No. CO.II/Con-26/84-85/29 dt. 8-8-84 the
regularised colonies are treated at part with the approved colonies
in the matter of grant of electric connection.
Thus with the issue of the above Office Order the areas can be
divided into the following two categories:
a) Unapproved areas.
b) Approved colonies/regularised unauthorised
colonies.
The policy for (giving the electric connections in un-approved
colonies/non-conforming areas is clearly given in the Office
W.P.(C) No.5784 /2001 Page 2 of 16
Order No. CCO-22(31)/78-79/dt. 29-8-78. As approved colonies
and other regularised colonies the single phase/three phase
connection are to be given by assessing the genuineness of the
load by sanctioning authority.
The non-domestic connections can be categorised into the
following two categories:
i) Cases covered under requirement of Municipal
Licence under Clause 417 and 421 of Municipal Act, 1957.
ii) The case for which Municipal Licences are not
required under the above said clauses of Municipal Act, 1957.
In the category (i) above on submission of valid
Municipal Licence, NOC is not insisted upon as it to presumed
that while giving the Municipal Licence the land use for the same
has been ascertained or NOC for the said NDL purpose is there.
In the category (ii) above where no Licence is there, there
being no documentation to rely upon the land use, NOC from
MCD/DDA (the concerned agency) in respect of non-conforming
areas is required.
The position as above is re-treated."
CIRCULAR DATED 4.5.1987
"DELHI ELECTRIC SUPPLY UNDERTAKING
(Municipal Corporation Of Delhi)
OFFICE ORDER
Sub:- Installation of energy officient motor pump sets for
providing Tube-well connections.
In compliance to the recommendations for conservation of
energy brought out in the conference of Power Ministers of State
held in Delhi, it is hereby decided that while permitting electric
connection to tube-wells, adherence of agricultural pumping sets
to IS-10304-1986 shall be insisted upon. The installation of
centrefugal pumps with less than 60% efficiency and monoblock
W.P.(C) No.5784 /2001 Page 3 of 16
pumps with less than50% efficiency should be firmly
discouraged. However, in very special cases where the Suptdg.
Engineer (D) of the respective circle considers that the pump set
being installed by the prospective consumer comes up to the
recommended efficiency level, the condition of ISI certification
of the motor pump set may be relaxed.
This is being issued with the approval of Addl. G.N.(T)."
(emphasis added)
2. The Enquiry Officer by his report dated 15.3.2000 exonerated
the petitioner, however, Disciplinary Authority disagreed with the findings
of the Enquiry Officer and therefore issued a show cause notice dated
12.10.2000 to the petitioner attaching therewith the Enquiry Officer's report
as also the reasons why the Disciplinary Authority proposed to disagree with
the findings of the Enquiry Officer. Some of the relevant portions of this
show cause notice by the Disciplinary Authority containing reasons for
disagreeing with the report of the Enquiry Officer read as under:-
"That the Enquiry Officer has conveniently over looked is that the
charged officer being AE (PS) was the authority to sanction the
connections and was therefore cast upon the responsibility to satisfy
himself that the papers/documents put to him by the Counter Clerk
were complete in all respects. PW-1 in his cross-examination has
stated that he did not examine the role of Counter Clerk or the dealing
assistant and that it was he who had been cast upon the responsibility
to scrutinize the documents. But the question that still remains to be
answered is that even the counter clerk does not perform his duty with
devotion and accepts the incomplete documents, is it not for AE (PS)
to return these papers to the counter clerk asking him to get the
commercial formalities completed first? The charged officer failed to
W.P.(C) No.5784 /2001 Page 4 of 16
do so. The most important fact conveniently over looked by the
Enquiry Officer is that the charged officer was required to obtain
technical feasibility report from the zonal staff before sanctioning the
connections which he failed to do.
The other important fact that has conveniently been over looked by
the Enquiry Officer that part of the charges have in fact been admitted
by the charged officer in his statement dated 1.11.91 (Ex.S-I, IA (G)
(RCG). In the said statement the charged officer has stated that as per
practice the Motor Number with make is not necessary and started
accepting the cases without Motor number and make. He has further
stated that TP and genuineness reports were stated but due to criticism
by the farmers and delay in releasing these cases due to obtaining
these reports, the practice of seeking technical feasibility and
genuineness report was stopped. This clearly goes to prove that the
cases were being received without Motor number and make and that
TF and genuineness reports were not being called.
xxxx xxxx xxxx xxxx
Ex.S-33(G) which is office order dated 4.5.87 clearly stipulates
that while permitting electric connections to tube-wells, adherence
of agricultural pumping sets to IS-10804-1986 shall be insisted
upon. The Office Order further stipulates that the installation of
centrefugal pumps with less than 60% efficiency and monoblock
pumps with less than 50% efficiency should be firmly discouraged.
From the K Nos file it is quite evident that the charged officer did not
bother to get the Motor number and make indicated on the test report
while releasing the connections. In other words, as Motor number and
make had not been indicated on the Test report, there has been clear
violation of the office order dated 4.5.87 as in the absence of any
Motor number and makes having been indicated on the Test Report, it
was not possible for the charged officer to ensure whether the
pumping sets adhered to IS-10804-1986.
Similarly, Ex.S-34(G) which is an office order dated 23.5.90 clearly
cast upon the charged officer, the responsibility of assessing the
genuineness of the load before sanctioning single phase/three phase
connections. In other words, the charged was duty bound to have
sought technical feasibility and genuineness reports from the zonal
W.P.(C) No.5784 /2001 Page 5 of 16
staff before sanctioning the connections with a view to ensure that it is
technical feasible to sanction the load applied for. It has clearly been
proved that the charged officer failed to seek the said reports and has
in fact admitted that he did not do so due to criticism by the farmers
and the anticipated delay.
The charged officer in his defence has stated that the primarily the
responsibility of scrutinizing the documents submitted by the
prospective consumers lay with the counter clerk. Quoting the
deposition of PW-1 who was also the investigating officer of the case,
the charged officer has stated in accordance with the guidelines
contained in para 1 & 2 of the office order dtd-6.5.85 exhibited as
Ex.S-3(G) all the documents are required to be scrutinized by the
counter clerk himself and in case some rectifications are to be made
the same are required to be made by the counter clerk otherwise he is
required to return the documents to the consumer with the rejection
slip under the signature of Comml. Supdt. or AE (PS). PW-1 had
been shown the relevant K. No. files viz Ex.S-32(G). S-29(G), S-
13(G) and S-14(G) who admitted that the endorsements by the dealing
assistant recommending sanction of HP load for the agriculture
purpose had indeed been made. PW-1 also admitted that he does not
remember as to how he had skipped to examine the role of the dealing
assistant.
In this connection as already pointed out that there had in fact been
grave dereliction of duty on the part of the dealing assistant who
recommended sanction of the connections of the basis of the
incomplete documents/applications and unfortunately he did not come
to be identified as one of the guilty officials inadvertently as has been
admitted by PW-1 but then the responsibility of the C.O. as
sanctioning authority to ensure that the documents are complete in all
respects still remains and it has clearly been established that he failed
to perform his part of duties and responsibility in a proper manner.
Inadvertent exoneration of the dealing assistant in no way mitigates
the responsibility of the C.O. as ultimately as AE (PS) the ultimate
responsibility for completion of commercial formalities rested with
him.
W.P.(C) No.5784 /2001 Page 6 of 16
In view of the above, the charges against Shri R.C. Gupta, AE are
thus proposed to be held proved in disagreement with the findings of
the Enquiry Officer." (emphasis added)
3. The petitioner responded to the show cause notice through his
reply dated 2.11.2000 and disputed the show cause notice and sought
implementation of the report of the enquiry officer exonerating him. The
Disciplinary Authority disagreed with the reply given by the petitioner and
thereafter passed the following impugned order dated 29.12.2000:-
"DELHI VIDYUT BOARD
VIG. DEPTT., R.PH, NEW DELHI-2.
No.VC-488-494/92-Vig./SR/VO (G)/1085 Dated 29/12/2000
ORDER
WHEREAS the disciplinary proceeding under Regulation 7
of Delhi Electric Supply Undertaking (DMC) Service (C&A)
Regulations, 1976 was initiated against Shri R.C.Gupta, E.No.
4179, AE vide Memo No. VC-488-494/92-Vig./ MKS/292 dated
18.9.1993.
AND WHEREAS on denial of the charges, an oral enquiry
was held. The Enquiry Officer submitted his report dated
15.3.2000 holding the charges against the said Shri R.C.Gupta, AE
as not proved.
AND WHEREAS disagreeing with the finding of the
Enquiry Officer, an enquiry report was sent to the said Shri
R.C.Gupta, AE to make his representation/submission in writing
within 15 days on the disagreement with the finding of the
Enquiry Officer vide Memo No. VC-488-494/92-Vig./SR/AVO-
I/1070 dated 12.10.2000.
AND WHEREAS the said Shri R.C.Gupta, AE has
submitted his representation dated 2.11.2000 to the aforesaid dated
12.10.2000.
AND WHEREAS the undersigned as the Competent
Disciplinary Authority has carefully gone through the reply dated
2.11.2000 submitted by the said Shri R.C.Gupta, AE with
reference to the aforesaid Memo and find no merit in the same. It
is observed that the Charged Officer was required to obtain the
Technical Feasibility & Genuineness Report from the Zonal Staff
before sanctioning the connections as he admittedly failed to do so
although the cases were being received without mentioning the
Motor Number and Make and the Technical Feasibility and
Genuineness Report were being continuously called and there
were no mention of the Motor Number and Make on the Test
Reports and Progress Cards. The office order dated 23.5.90 clearly
casts and responsibility on the Charged Officer for assessing the
genuineness of the load before sanctioning the connections. The
Charged Officer had infact admitted that he did not do so due to
criticism of the farmers with anticipated delays.
NOW, THEREFORE, the undersigned as the Competent
Disciplinary Authority holds the charge as fully proved in
disagreement with the finding of the Enquiry Officer and I confirm
and impose upon the said Shri R.C.Gupta, AE the penalty of
reduction by four stages in his time scale of pay for a period of
four years with cumulative effect.
Sd/-
(Y.P. SINGH)
Shri R.C. Gupta, E.No.4179 MEMBER (T-I)
AE (C&A)(D) RHN THROUGH: XEN (D) RHN"
(emphasis added)
4. The aforesaid order of the disciplinary authority was upheld by
the Appellate Authority vide order dated 21.3.2001.
5. The issue therefore is whether petitioner was guilty of giving
tube well electricity connections without getting technical feasibility report
and without ascertaining the genuineness of the load required.
6. Before I turn to the findings and conclusions of the Disciplinary
Authority, at this stage, it is required to be noted that the scope of enquiry
before a court with respect to challenge to the findings and conclusions of a
departmental authority is very limited. This Court interferes only if there is
violation of the principles of natural justice or there is violation of the
law/rules of the employer-organization or the findings of the disciplinary
authority are perverse or the punishment imposed is disproportionate. The
case before the departmental authorities is proved by preponderance of
probabilities and this Court does not sit as an appellate court to question one
of the two views which is taken by the disciplinary authority as per the
preponderance of probabilities. It is only if the findings and conclusions of
the departmental authorities are perverse that this Court interferes.
7. In the present case, the issues argued before me are of violation
of the principles of natural justice and findings of the Disciplinary Authority
being perverse.
8. In my opinion, the relevant portion of the show cause notice
reproduced above, referring to the office orders dated 23.5.1990 and
4.5.1987 (and which have already been reproduced above), leaves one in no
manner of doubt that for grant of a tube well connection in a rural area in
Delhi at the relevant point of time so as to avoid misuse for non-agricultural
purposes of a tube well electricity connection given only for agricultural
purposes (which had a lower tariff being granted for agricultural purposes) it
was required that before grant of the connection, genuineness of the load had
to be assessed as also the technical feasibility report taken. Genuineness of
the load was required to be obtained because there used to be applications
for tube well electricity connections but which were not for agricultural
purposes but were for unauthorized colonies and built up plots of land in the
rural areas. Also, technical feasibility report was required inasmuch as the
motor which had to be for the tube well agricultural connections should not
result in wastage of electricity and hence specified pumps had only to be
fixed. That the tube well connections were misused becomes clear from the
following portion of the show cause notice given by the Disciplinary
Authority:-
"The contents of all the exhibited documents including those of
Joint Inspection Reports dated 1.10.91, 3.10.91 and 28.10.91
have clearly been confirmed by the Prosecution Witnesses.
Ex.S-7, 7A to 7E thus clearly proves the irregularities found by
the Joint Inspection Team at site some of which are i) Motors
etc had been found to have been removed from 8 number of
tubewell connections; ii) connections against K Nos. 911-11090
and 11092 were found installed without any tubewell bearing ;
iii) 8 number tubewell connections found existing in Kotharis
situated in open fields connection with pucca road; iv) from the
outer look it clearly appeared that land for which tubewell
connections and been sanctioned will be used for purposes other
than agriculture; v) some connections were found being used
other than agriculture purposes and vi) fields were found
divided into sub plots. Similar irregularities were noticed in
subsequent inspection report of which has been exhibited as
EX.S-I, 1A to 1E. These included i) tube well of Shri Hari
Singh was found shifted to some other place illegally; ii) Motor
against K.No. 159716 was found illegally shifted; iii) No boring
existed for tubewell connection against Meter No. 4D-02543, K
Nos 159065 and 159726 were found being used for industrial
prupose." (underlining added)
9. The position which is clear from the record is that no
assessment/genuiness load report or technical feasibility report existed and
the petitioner actually contended that these were not required either because
of pressure of farmers for grant of electricity connections or that such
verification had to be done by officers who were junior to him and not the
petitioner.
10. In my opinion, the arguments urged on behalf of the petitioner,
in this regard, have no merit at all and the same have been rightly rebutted in
the show cause notice issued by the Disciplinary Authority as also the
impugned order dated 29.12.2000 that the final authority for grant of
electricity connections was with the petitioner who was an Assistant
Engineer-AE(PS) and if the documents which were to be before the
petitioner were incomplete on the basis of which electricity connections
could not have been granted, petitioner should have returned the documents
for completion and it was not open to the petitioner to give excuses with
respect to urgency of grant of electricity connections or that actual
verification had to be done by the officers at the spot.
11. In view of the above discussion, there is no ground why the
departmental proceedings should be set aside because there is no perversity
in the findings and conclusions by the departmental authorities.
12. Learned counsel for the petitioner argues that the Enquiry
Officer has rightly exonerated the petitioner and in support of which
argument reliance was placed upon the circular dated 29/30.3.1989 to argue
that in electrified areas, a technical feasibility report was not required and
therefore petitioner should not be found guilty of not taking the technical
feasibility report. This argument urged on behalf of the petitioner is
misconceived for three reasons. Firstly it is not shown to this Court as to
whether this circular was filed and relied upon before the Enquiry Officer.
Be that as it may, the second reason for not giving the petitioner benefit of
this circular is that this circular allows technical feasibility report not to be
taken only for electrified areas. Electrified areas are normal electrified areas
where regular electricity connections are granted and those areas which are
rural/agricultural areas where only the agricultural connections are granted
they are not the usual electrified areas and therefore since in the present case
the electricity connections to be granted were only electricity connections
for tube wells, therefore, such areas are not electrified areas and therefore
consequently the petitioner derives no benefit of this circular dated
29/30.3.1989. Third reason for rejecting the argument based upon this
circular is that even assuming the technical feasibility report was not to be
taken, that did not exempt the petitioner from complying with the second
requirement of taking the genuine requirement/assessment of load report
inasmuch as in addition to the technical feasibility report the genuine
assessment of load was required in terms of the circular of the respondent
dated 23.5.1990 reproduced hereinabove. This argument urged on behalf of
the petitioner is therefore rejected.
13. The next argument urged on behalf of the petitioner was that
the impugned order passed by the Disciplinary Authority is without
jurisdiction because punishment in this case could have been imposed upon
the petitioner who is a group A employee, only by the Delhi Electric Supply
Committee and not the Member (Technical), however, this argument is also
without any basis because the circular which is relied upon by the petitioner
is the circular of the erstwhile Delhi Electric Supply Undertaking and which
has thereafter been replaced by the Delhi Vidyut Board and in the Delhi
Vidyut Board as per the circular dated 25.5.1999 filed by the respondent the
post of Member (Technical) is a competent post for imposing the
punishment in this case which is a punishment urged by the petitioner to be
one of reduction in rank. This circular of the respondent dated 25.5.1999 is
taken on record and copy of which was given to the counsel for the
petitioner on the earlier date. This argument urged by the petitioner is
therefore rejected by additionally noting that this ground of alleged lack of
jurisdiction was at no point of time taken up during the departmental
proceedings by the petitioner.
14. The last argument urged on behalf of the petitioner was that the
impugned order is violative of the principles of natural justice because
petitioner in terms of the Rule 7(2) of the Delhi Electricity Supply
Undertaking (DMC) Service (Control and Appeal) Regulations, 1976
(hereinafter referred to as 'the 1976 Regulations') was required to be given a
personal hearing but since the petitioner in spite of requesting a personal
hearing was not given and thus principles of natural justice are violated.
15. To appreciate the argument urged on behalf of the petitioner,
Regulation 7(2) of the 1976 Regulations is reproduced below:-
"7(2) The disciplinary authority shall frame definite
charges on the basis of the allegation on which the inquiry is
proposed to be held. Such charges, together with a statement
of the allegations on which they are based, shall be
communicated in writing to the Municipal Officer or other
municipal employee, and he shall be required to submit within
such time as may be specified by the Disciplinary Authority a
written statement of his defence and also to state whether he
desires to be heard in person."
16. A reading of the aforesaid regulation shows that hearing in
person which is required is during the enquiry officer's proceedings because
this rule talks of disciplinary authority itself being the enquiry officer i.e the
disciplinary authority who frames the charges and holds the enquiry is
required to hear the charged officer in person. Once the charged
officer/petitioner is heard in person during the departmental proceedings
conducted by the enquiry officer, Regulation 7(2) of the 1976 Regulations
stands complied with and Regulation 7(2) of the 1976 Regulations cannot be
read in the manner as is sought to be urged by the petitioner that the
disciplinary authority when passing the order on the basis of enquiry
officer's report or setting aside the enquiry officer's report, must hear the
charged officer in person. The provision of Regulation 7(2) of the 1976
Regulations is in the context of the other sub-regulations of Regulation 7 of
the 1976 Regulations which pertain to the rules for holding of the enquiry,
either by the disciplinary authority or by the enquiry officer. Therefore,
once petitioner has been heard during the enquiry proceedings before the
Enquiry Officer, the provision of Regulation 7(2) of the 1976 Regulations is
complied with and there is no violation of the principles of natural justice.
17. In view of the above, I do not find any merit in the petition and
the same is therefore dismissed. No costs.
MARCH 05, 2015 VALMIKI J. MEHTA, J
Ne
