I.P.Grover & Ors vs Union Of India & Ors.
2015 Latest Caselaw 7567 Del

$~R-1
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of Decision: October 05, 2015

+                             W.P.(C) 3314/1989
        I.P. GROVER & ORS.                                ..... Petitioners
                       Through:          Mr. G.D. Gupta and Mr. Piyush
                                         Sharma, Advocates
                     versus

        UNION OF INDIA & ORS.                               .....Respondents
                      Through:           Mr. U.N. Singh, Advocate for
                                         Official Liquidator/respondents
                                         No.2 to 4
        CORAM:
        HON'BLE MR. JUSTICE SUNIL GAUR

                           JUDGMENT

% (ORAL)

This writ petition was initially filed by four petitioners. During the pendency of this petition, two petitioners i.e. petitioner No.1-I.P. Grover and petitioner No.3-Devi Dayal Deora have died. The legal heirs of petitioners No.1 and 3 have been brought on record as per the amended memo of parties. Petitioner No.2 is said to have attained the age of superannuation by now whereas fourth petitioner is said to be aged about 53 years.

Impugned order of 18th/20th January, 1988 (Annexure P-2 colly.) rejects petitioner's appeal by a cryptic order. Disciplinary Authority vide order of 1st June, 1987 (Annexure P-1 colly.) inflicts the punishment of removal from service upon petitioners. The order of 1st June, 1987 is

based upon Inquiry Report of 10th March, 1987 (Annexure P-1 colly.). Petitioners were given a Memorandum of 20th August, 1985 (Annexure P-

28) followed by a charge-sheet of 25th April, 1985 (Annexure P-26). Statement of imputation of misconduct (Annexure-II) appended to the Memorandum (Annexure P-28) reveals that there were allegations of petitioners forcibly entering into the room of the Chairman-cum- Managing Director on 23rd April, 1985 at about 11.45 a.m. and of using unparliamentary language. As per the charge-sheet, when the police came on that day at about 12.30 noon, the gherao of the office of the Chairman- cum-Managing was lifted. Taking into consideration the serious misconduct of petitioners, they were put under suspension.

It is pertinent to note that Mr. R. Thanjan was the Chairman-cum- Managing Director (hereinafter referred to as the then CMD) in whose room there was purported forcible entry and unparliamentary language is said to have been used by petitioners. Not only the charge-sheet (Annexure P-26), even the Memorandum (Annexure P-28) has been issued by Mr. R.Thanjan, the then CMD. The Memorandum (Annexure P-28), which is accompanied by Statement of Imputation (Annexure-II) reveals that Mr. R.Thanjan, the then CMD was infact the complainant and aggrieved party.

During the course of hearing, it was brought to the notice of this Court that it was Mr. R.Thanjan, the then CMD, who had appointed the Inquiry Officer Mr.C.L. Kumar, the Desk Officer, Department of Industrial Development, Government of India in the Ministry of Industries. Attention of this Court was drawn to the order of 25th September, 1985 (Annexure P-36), which disclosed that this order

appointing Mr. C.L. Kumar as an Inquiry Officer has been passed by none other than Mr. R.Thanjan, the then CMD.

It is matter of record that respondent-Management went into the liquidation and an Official Liquidator has been appointed by the High Court of Allahabad. Mr. U. N. Singh, Advocate, appears on behalf of the Official Liquidator and submits that a report was filed on 15 th April, 2014 to the effect that the liquidation proceedings have been wound up and all the dues have been paid and thereafter, balance amount of `13 lacs odd has been sent to Registrar of Companies at Kanpur as unclaimed dividends.

At the hearing, learned senior counsel for petitioners has drawn the attention of this Court to Communication of 17 th October, 1986 (Annexure P-53) to point out that petitioners had complained of vindictiveness against Mr. R.Thanjan, the then CMD and had even alleged bias against the Inquiry Officer of which reference is there in the Inquiry Proceedings of 1st October, 1986 (Annexure P-51). It is pointed out that while taking into consideration the allegations levelled by petitioners against the Inquiry Officer, he had chosen to remit back the Inquiry Proceedings to the Disciplinary Authority for entrusting it to another Inquiry Officer.

It was further pointed out that it is evident from the Inquiry proceedings of 3rd October, 1986 (Annexure P-52) that the Inquiry Officer had discussed the matter of his recusal with the Disciplinary Authority i.e. Mr. R.Thanjan, the then CMD in question over phone but the Disciplinary Authority had called upon the Inquiry Officer to resume the proceedings. It was vehemently contended by learned senior counsel for

petitioners that the vindictiveness of Mr. R.Thanjan, the then CMD as well as the Inquiry Officer Mr. C.L. Kumar, is evident from the Inquiry Report wherein it has been concluded that the allegations against petitioners stand proved. Thus, it is urged that apparent bias is clearly visible on the face of record.

Reliance is placed upon Apex Court's decision in Rattan Lal Sharma v. Managing Committee (1993) 4 SCC 10 to submit that duty to act fairly is inbuilt in departmental proceedings and the principles of natural justice are fragrantly violated as the complainant himself had turned into an Investigator and there remains no manner of doubt that the result of the Inquiry is vitiated.

To refute the afore-noted stand taken on behalf of petitioners, learned counsel for respondents No.2 to 4 submits that the findings returned by the Inquiry Officer do not indicate that there was any bias against petitioners and the findings returned against petitioners are borne out from the evidence on record and thus, the impugned order deserves to be sustained.

Apex Court in Rattan Lal (supra) has reiterated that the test is not whether infact the bias has affected the judgment and the test is always whether the litigant could have reasonably apprehend that bias attributable might have operated against him in the final decision of the authorities. It needs no reiteration that the justice must not only be done but must also appear to be done.

After having heard learned senior counsel for petitioners as well as learned counsel for respondents No.2 to 4 at length and upon perusal of the impugned order, the material on record and the decision cited, this

Court finds that the allegations of bias are duly substantiated and thus, vitiate the entire proceedings.

Such a view is taken as it is quite apparent from the record that Mr. R.Thanjan, the then CMD was infact the complainant and it was he, who had initiated the Inquiry proceedings by serving the Memorandum, followed by a charge-sheet and the Statement of Imputation of Misconduct, which forms that part of the Memorandum, was also issued by him. Not only this, the Inquiry Officer was also appointed by him and when the Inquiry Officer had chosen to recuse himself, then he was called upon by Mr. R. Thanjan, the then CMD to continue with the Inquiry proceedings.

In the considered opinion of this Court, this is a glaring case of bias. The inquiry proceedings are vitiated by bias. Hence, the penalty of removal from service deserves to be set aside and is accordingly, set aside. Since the respondent-Management is under liquidation, therefore, there is no question of reinstatement of petitioner No.4-V.K. Vohra.

Now, it is to be seen as to what compensation deserves to be awarded to petitioners in this case. On this aspect, Apex Court in Raj Kumar Dixit v. M/s. Vijay Kumar Gauri Shanker 2015 SCC OnLine SC 473 while relying upon three-Judge Bench decision in Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, has reiterated as under: -

"..............The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may

mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."

In the facts and circumstances of this case, it is deemed appropriate to quantify the amount of compensation equivalent to 50% of the back wages to which petitioners would have been entitled till respondent- Management went into liquidation. It is ordered accordingly.

With aforesaid directions, this petition is disposed of while leaving the parties to bear their own costs.

(SUNIL GAUR) JUDGE OCTOBER 05, 2015 s