Delhi High Court
Shri Gurdial Singh vs Bses Rajdhani Power Limited on 30 October, 2015
$~80.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 30.10.2015
% RSA 305/2014
SHRI GURDIAL SINGH ..... Appellant
Through: Mr. Vinay Sabharwal & Ms. Neha
Sabharwal, Advocates along with
appellant in person.
versus
BSES RAJDHANI POWER LIMITED ..... Respondent
Through: Mr. Sandeep Prabhakar & Mr. Vikas
Mehta, Advocates
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The present second appeal under Section 100 CPC is directed against
the judgment and decree dated 05.05.2014 passed in RCA No. 10/13
preferred by the plaintiff-appellant to assail the judgment and decree dated
10.07.2013 passed by the learned Civil Judge (Central), Tis Hazari Courts,
Delhi, in a suit filed by the plaintiff-appellant titled, 'Gurdial Singh Vs.
BSES Rajdhani Power Ltd.' being Suit No. 245/13. By the impugned
judgment, the said first appeal has been dismissed by the learned Additional
Senior Civil Judge, South East District, Saket Court Complex, New Delhi,
i.e. the first appellate court. The trial court had similarly dismissed the
appellant-plaintiff's suit by the judgment and decree dated 10.07.2013.
2. The appellant-plaintiff had filed the suit to seek a declaration and
mandatory injunction to assail the penalty of reduction to the minimum of
the scale of the post held by him, for the period of five years, and it was
directed that the appellant shall not earn any increment during the period of
reduction, and further that the reduction will have the effect of postponing
his future increments. The said penalty was imposed vide order dated
12.09.2000. The appellant-plaintiff sought a declaration that the said
penalty order dated 12.09.2000 be declared as perverse, null, void, illegal
and arbitrary. He also sought consequential relief of payment of the illegally
deducted amount along with interest. He also sought a mandatory injunction
to seek a direction to the respondent-defendant to grant him all
consequential benefits of pay and allowances reduced on the basis of the
said penalty order dated 29.08.2000 along with interest.
3. The respondent-defendant upon being summoned contested the suit
by filing a written statement. The trial court framed the following issues on
01.05.2002:
"1. Whether plaintiff is entitled to decree of declaration?
OPP
2. Whether the plaintiff is entitled to decree of permanent
injunction as prayed for? OPP
3. Whether the action of defendant in initiating disciplinary
action against plaintiff is barred? OPP
4. Whether departmental enquiry conducted as per law and
principles of natural justice? OPD
5. Relief."
4. The trial court determined all the issues against the plaintiff and
consequently dismissed the suit. It was, inter alia, held that there was no
breach of principles of natural justice and the inquiry had been conducted in
accordance with the rules.
5. The first appellate court while placing reliance on Union of India Vs.
Ramesh Chand ILR (2011) 1 Delhi 822, held that the jurisdiction of the trial
court was limited. The trial court could not have travelled into the evidence
led before the Enquiry Officer, and was not empowered to determine
whether the evidence was sufficient or not to hold the plaintiff guilty. The
only question that could be considered by the trial court was, whether the
principles of natural justice were followed during the enquiry proceedings
and a speaking order was passed. The jurisdiction of the trial court being
limited, it could not have gone into the question as to whether the evidence
was rightly appreciated; whether all the documents were considered, etc.
6. From the impugned judgment, it appears that the appellant had not
disputed the factum of compliance of principles of natural justice in the
conduct of the enquiry. The stand of the appellant was, that his reply was
not considered and appreciated by the enquiry officer. The first appellate
court held that such an objection could not have been considered by the trial
court, and could not be considered by the appellate court, in view of the
settled legal position that only limited jurisdiction vests in the civil court qua
examination of the departmental enquiry proceedings. The first appellate
court considered all the submissions raised before it, and dismissed the first
appeal.
7. It appears that when the present second appeal was listed before the
court on 11.02.2015 and 28.02.2015, the submission advanced by the
appellant was that the trial court had not granted an opportunity to the
appellant to adduce evidence, although, the onus to prove all the issues was
put on the appellant. After framing the issues, the trial court had observed
that all issues being legal, it does not require the recording of evidence.
From the order-sheet dated 28.04.2015, it appears that on this premise,
notice was issued in the present appeal.
8. At the stage of preliminary hearing of the present appeal, Mr. Vinay
Sabharwal, learned counsel for the appellant, has not sought to press the
aforesaid aspect. The appellant does not dispute the findings returned by
the trial court and first appellate court with regard to the compliance of
principles of natural justice vis-a-vis the enquiry proceedings initiated
against the appellant-plaintiff. The appellant also does not raise any
grievance or issue with regard to his not being permitted to lead evidence
after the framing of issues by the trial court. Mr. Sabharwal has, however,
raised two issues before this Court which, according to him, require
consideration.
9. The first issue is that the courts below were not precluded from
examining whether the enquiry report, on the basis of which the appellant
was penalized, suffered from perversity. He submits that the courts below
have proceeded on the assumption that the civil court did not have the
jurisdiction to examine the said aspect. In this regard, he places reliance on
the decision of the Supreme Court in Kuldeep Singh Vs. Commissioner of
Police and Others (1999) 2 SCC 10. The submission of Mr. Sabharwal is
that there was no evidence to establish the charge leveled against the
appellant-plaintiff. On the contrary, the evidence showed that the appellant
was innocent. The charge against the appellant was;
"That the said Shri Gurdial Singh, MRI during the posting in
Distt. NZD, deliberately allowed accumulation of huge dues
and timely action was not taken for disconnection of the supply
which was later on disconnected from the feeding point (i.e. on
30.3.94) and even efforts were not made for getting the meter
reading recorded against K. No. HZ 016-1772471/NP & K. No.
NNZ-016-1760635/NL, in the name of Shri Ram Lubhaya, Shop
No. 6, Guru Hari Krishan Market, Opposite Eros Cinema,
which further gave ample opportunity to the unscrupulous
consumers to get their meters manipulated/reversed resulting in
financial loss to the undertaking.
Thus Shri Gurdial Singh failed to maintain absolute
integrity and devotion to duty in violation of Rule 3(i) of the
CCS (Conduct) Rules, 1964."
10. Thus, the charge related to the appellant not taking timely action for
disconnection of the meter/connection in question, which led to
accumulation of substantial dues. The disconnection was made only on
30.03.1994. He also did not take steps to get the meter reading recorded,
which enabled the consumers to manipulate the meter, resulting in financial
loss to the department.
11. Mr. Sabharwal submits that the appellant had sent his detailed reply to
the said charge-sheet, wherein it had been pointed out that the area in
question was allotted to the appellant-plaintiff in October, 1993, and the
defaulters list was supplied to him in December, 1993. The address of the
consumer, and the location of the electricity connection/meter in question
mentioned in the defaulters list and the meter reading sheet was wrong, as
there was no school by the name of Jain Higher Secondary School in the
area of Jangpura Extension. The plaintiff had claimed that the actual
address of the place where the meter was installed was searched by
contacting various eminent persons of the vicinity, and it was learnt that the
meter in question was installed at Shop No. 6, Guru Hari Krishan Market,
Jangpura Extension. Several efforts had been made to contact the consumer
but he could not be contacted and, therefore, the supply was disconnected
from the feeding point with the help of local staff on 30.03.1994. The
plaintiff also claimed that he had been made a scapegoat at the hands of self
interested and influential persons of the area. He also sought to place
reliance on the observations made by Shri J.N.Mandal, the then MSR, dated
20.09.1995 wherein the efforts of the appellant were commended and his
integrity and devotion to duty was certified. The said officer had observed
that instead of implicating the appellant-plaintiff, the real culprit should have
been fished out to find as to how the connections were installed on a non-
existent ghost address.
12. Mr. Sabharwal submits that the aforesaid aspects have been
completely ignored by the enquiry officer, disciplinary authority and the
appellate authority while imposing the penalty upon the appellant-plaintiff.
13. The next submission of learned counsel for the appellant is that the
penalty has been imposed upon the appellant by the AGM (A), even though
the competent officer was AGM (F) in terms of the notification dated
25.05.1989.
14. On the other hand, the submission of learned counsel for the
respondent is that no substantial question of law arises for consideration in
the present second appeal. He submits that both the Courts below have
returned concurrent findings of fact on the basis of evidence brought on
record. Learned counsel submits that there was no perversity in the inquiry
proceedings, as there was sufficient material available on record to hold the
appellant/ plaintiff guilty of misconduct of the charge leveled against him.
Learned counsel submits that the respondent has, in fact, been let off rather
lightly even though he was a part of the well-organised racket being run by
the officials of the DVB, in collusion with the local shopkeepers in the area
to draw electricity and not pay for the same.
15. Mr. Prabhakar submits that since the appellant/ plaintiff was serving
as the Meter Reading Inspector (MRI), i.e. he was superior to and above the
Meter Readers, he was responsible for ensuring that consumption of
electricity in the area within his jurisdiction was properly metered, so that
the same could be billed. However, the appellant failed to discharge the said
obligation.
16. Mr. Prabhakar submits that against K. No. HZ 016-1772471/NP & K.
No. NNZ-016-1760635/NL, in the name of Shri Ram Lubhaya, Shop No. 6,
Guru Hari Krishan Market, Opposite Eros Cinema, Jangpura Extension, the
outstanding started accumulating from May 1992. This was even before the
appellant/ plaintiff took charge of the area. However, even after the
appellant was posted in the area and took charge of the same, he allowed the
arrears to accumulate to the tune of Rs.48,586.49 against K. No.NZ 016-
1772471/NP and Rs.4514.53 against K. No.NZ016-1760635/NL before
disconnecting supply on 30.03.1994. He submits that the appellant was
posted as a MRI in April 1993 in place of Mr. P.K. Chakraborty, MRI (D)
NDZ in the area in question. When the appellant took charge, the
outstanding dues in respect of the two connections were Rs.24682.13 and
Rs.2405.51 respectively. The appellant should have disconnected the said
electricity connections immediately in May 1993. Instead of disconnecting
the electricity supply on priority, the appellant allowed further accumulation
of dues for the next ten months before disconnecting the supply on
30.03.1994. In the meter reading sheets since January 1992, the premises
where the meter was installed was shown as 'locked'. However, no efforts
were made for opening of the premises with the assistance of the superior
officers for recording the meter reading.
17. Mr. Prabhakar submits that the inquiry report is extremely detailed
and is premised on the evidence led before the Inquiry Officer. The Inquiry
Officer conducted a joint inquiry against Sh. P.K. Chakraborty and the
appellant, as before the appellant took over charge, Sh.P.K. Chakraborty was
serving as the MRI in the area in question. Mr. Prabhakar has relied upon
the extracts from the inquiry report, wherein the Inquiry Officer recorded his
findings. The Inquiry Officer found that in the premises in question i.e.
Shop No. 6, Guru Hari Krishan Market, opposite Eros Cinema, Jangpura
Extension, the appellant allowed the consumer Shri Ram Lubhaya to
continue with two meters on one wooden board which were being fed
through separate service lines. One of the two meters was found stopped
and its neutral was attached to the other meter. This connection was feeding
supply to various shops in the market. I may, at this stage itself, notice that
it has come on record that 14 shops were being fed electricity through this
meter/connection. The appellant did not try to get dues pending against the
consumer against these two connections recovered which were amounting to
Rs. 24,683.12 and Rs. 2405.51. The enquiry officer also took note of the
defence evidence produced by the appellant, namely, the statement of Mr.
J.M.Mandal, MRI, (D)(NZD) to the effect that the address in relation to the
connection in question was mentioned as Jain Higher Secondary School,
Jangpura, which was a non-existent address, and that the appellant traced out
the said connection.
18. Learned counsel for the respondent submits that the fact that as many,
as, 14 shops in the market area were being fed through one connection
installed in the name of Mr. Ram Lubhaya in Shop No.6, itself demonstrates
the gross misconduct of the appellant, as this means that the said 14 shop
owners had not obtained separate electricity connection in respect of each of
them, and the meter readers were permitting them to draw electricity from
one meter/connection, which was in the name of Ram Lubhaya. Obviously,
the same could not have happened without the active connivance of, inter
alia, the appellant, who was the Meter Reader Inspector serving in the area
since April, 1993. Mr. Prabhakar submits that thus there was sufficient
evidence for the enquiry officer to conclude that the charged officer did not
insist on recovery of the dues, although, the address of the premises was
known to him and was given by the earlier meter reader in the meter reading
sheets. Even when the dues were accumulating, the appellant did not take
steps for disconnection of the electricity connection. Mr. Prabhakar has
also drawn the attention of the court to the following finding returned by the
enquiry officer on the basis of the joint inspection report (Ex.SIA) which
was led in evidence during the course of enquiry;
"(a) Both the signel (sic single) phase meters were found
feeding all 14 Nos. shops of Guru Harkrishan Market.
(b) Service line laid against M. No. 3245757 was having
three numbers of joint in it before metering position.
(c) Half seal M/No. 3244624 found fictitious and seal of M.
No. E-3245677 could not be verified at the time of inspection.
M. No. 3245677 found stopped. Neutral of this meter found
direct outside the meter terminal phase."
19. The averment of the appellant-plaintiff in paras 20 and 21 of the plaint
was to the effect that the final order has been passed by an incompetent
person who was not the appointing authority of the plaintiff and that this led
to violation of Section 95 of the DMC Act. The plaintiff had claimed that
major penalty could only be imposed by the appointing authority and by no
authority subordinate to him. He claimed that his appointing authority was
the General Manager (E), DESU. However, before this Court, the appellant
himself is seeking to rely upon the notification dated 25.05.1999 so as to
claim that impugned action could have been taken against him by AGM (F)
and not by AGM (A).
20. Mr. Prabhakar submits that the plea of the appellant that the AGM (F)
could have imposed punishment in question has no merit, since the appellant
belonged to the non-technical branch, and he did not belong to the Finance
Branch. He submits that it was only in respect of the Finance Branch that
the AGM(F) was competent to pass the punishment order in terms of the
said notification dated 25.05.1999.
21. Mr. Prabhakar lastly submits that since it cannot be said that there was
no evidence against the appellant in the enquiry proceedings, this Court
would not, in any event, go into the issue of adequacy of the material against
the appellant, as it was not a case of "no evidence" against the appellant.
22. Having heard learned counsel for the parties, I am of the view that
there is absolutely no merit in the present appeal and the same does not raise
any substantial question of law for consideration of this Court. The two
courts below have returned concurrent findings with regard to the
satisfaction of the principles of natural justice and the conduct of the enquiry
proceedings. The said aspect has not even been urged by Mr. Sabharwal.
23. As noticed above, his primary submission is that the enquiry report
was perverse and that this aspect could and should have been gone into by
the two courts below. Even if the submission of the appellant were to be
accepted, it is abundantly clear that there is no perversity in the enquiry
report which forms the basis of the punishment inflicted upon the appellant.
The enquiry officer has made a detailed enquiry report on the basis of the
evidence led by the parties. The respondent had produced a host of
document including the joint inspection reports, and had also produced four
witnesses, including the vigilance inspector, as PW1. The other relevant
officers of the department were also produced as witnesses. The said
witnesses led in evidence a host of documents which have been considered
threadbare in the enquiry report. It came out during the enquiry that two
meter connections were obtained in the name of Ram Lubhaya which were
installed in Shop No. 6, Guru Hari Krishan Market, Jangpura, opposite Eros
Cinema. One of the meters was lying dead. The neutral of the said
connection was connected to the meter of the working connection. This
meter was supplying electricity to, as many as, 14 shops in the area. This
itself shows that there was ample evidence of collusion and connivance
between the appellant and the said Shri Ram Lubhaya/other shopkeepers.
There was no other way that the shopkeepers would have drawn electricity
from one meter for years, without obtaining their own electricity
connections. It appears that the arrangement continued with the blessings of
the officials of the respondent over the years, even before the appellant was
posted in the area as MRI. However, even after the appellant was so posted,
he did not act in the matter. Pertinently, by then, substantial dues had
accumulated in respect of the two connections as noticed hereinabove. The
non-action of the appellant led to further inflation of the outstanding dues.
The plea that the appellant was the one who traced the correct address of the
connection, and he deserved commendation for the same and not
punishment, has also been considered in the enquiry report. The enquiry
officer has taken note of the fact that bills were being raised in respect of the
connections with the correct address written in hand. This only means that
the officials of the respondent were aware of the actual location of the
connections even though, on the bill, incorrect address was being printed.
How else would the bill be raised month after month and be paid up till
January, 1992? The appellant allowed the electricity to be drawn from the
meters, both of which were installed on a wooden board and one was not
functioning. He also permitted the electricity to be distributed in 14 shops
through the same connection. He also did not seek to recover the
outstanding dues and permitted the racket to continue for nearly 10 months
after taking over charge. Thus, it could not be said that there is no material
available before the enquiry officer to hold the appellant guilty of the
misconduct of which he was charged.
24. Coming to the second argument of Mr. Sabharwal, the notification
dated 25.05.1999 relied upon by Mr. Sabharwal itself provides that,
"Appointing Authorities Disciplinary Authorities/Appellate Authorities in
the prevalent Regulations have been decentralized and delegated further to
empower appropriate authorities and they shall be as per the schedule
annexed herewith. The stiff major penalties of compulsory retirement,
removal from service and dismissal from service, shall not be imposed by
any authority lower than the Appointing Authority." Thus, the stiff major
penalties of compulsory retirement, removal from service and dismissal
from service could be imposed only by an authority which is not lower than
the appointing authority. All other penalties, including the penalty imposed
upon the appellant, could be imposed by the appropriate authority as
mentioned in the Schedule, forming part of this notification. The appellant
claims that he is covered by Entry at Serial No. 5 of this Schedule, though,
the respondent claims that the appellant is covered by the Entry at Serial
No.6. These two Entries read as follows:
SCHEDULE
Sl. Description of post Appointing Authority Authority Appellate
No. Authority competent to competent Authority
impose minor to impose
penalties major
penalties
5. All posts in the scale of AGM(A) 1.Non- Tech.: AGM(A) AGM
pay of Rs. 6000-10800 CPO (Concerned)
but below Rs. 8000- 2. Tech.:SE CE for minor
13775. (O&MO (Genl.)/ (Concerned) (Concerned) penalties in
Maint. Officer/Sr. Shift 3. Finance: AGM(F) AGM(F) respect of non-
Officer/ACP/ Foreman/ tech. &
Prosecutor/ etc. Finance.
CE
(Concerned)
for minor
penalties in
respect of
Tech.
Member
(Concerned )
for major
penalties for
Tech./Non-
Tech.
6. All posts in the scale of CPO 1. Non-Tech.:ACPO CPO AGM(A)
pay of Rs. 4000-7100 2. Tech. : SE ACE/CE CE/AGM(F)
and above but below Rs. 3. Finance : F.O. Dir. Rev./ AGM(F)/
6000-10800. (Jr. Clerk AGM(F) Member (F)
and above up to the
level of Hd. Clerk and
equivalent)
25. It is informed that the pay of the appellant was in the scale of Rs.
5500-9875. Therefore, the same would evidently be covered by Entry at
Serial No. 6. Assuming that the appellant's case is covered by Entry at
Serial No. 5, he could be punished by AGM(A), in terms of the said
Schedule. The claim made by the appellant that he was in the Finance
Department, has no basis. He has not made any averment to this effect, nor
led any evidence in this respect. There is no reason to doubt the statement
made by the counsel for the respondent, on instructions, during the course of
hearing to the effect that MRI are covered by the non-technical branch.
26. As noticed above, the challenge to the competence of the AGM(A) to
issue the punishment order was premised on the plea that the appointing
authority of the appellant was General Manager, DESU. The plea was not
premised on the claim that the MRI falls in the finance branch, and not the
non-technical branch. The said plea stands negated by para 5 of the said
notification - as extracted herein above, which is relied upon by the
appellant himself. Thus, there is no merit in this submission of the appellant
as well.
27. Consequently, I find no merit in the present appeal and dismiss the
same leaving the parties to bear their respective costs.
VIPIN SANGHI, J
OCTOBER 30, 2015
sl/B.S. Rohella
