Delhi High Court
Rakesh Dhingra vs National Scheduled Castes ... on 19 December, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) No.2177/1996
Reserved on: 7th December, 2016
Pronounced on: 19th December, 2016
RAKESH DHINGRA ..... Petitioner
Through: Petitioner in person.
versus
NATIONAL SCHEDULED CASTES FINANCE & DEVELOPMENT
CORPORATION AND ANR.
..... Respondents
Through: Mr. Jagat Singh, Advocate for R-1.
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 impugns the order of the Disciplinary Authority dated
14.12.1994 imposing the penalty of removal from services. The petitioner
was an employee with the respondent no. 1/National Scheduled Castes
Finance and Development Corporation/employer. Petitioner also impugns
the order dated 24.3.1995 passed by the Appellate Authority dismissing the
appeal of the petitioner against the order of the Disciplinary Authority dated
14.12.1994. Petitioner also seeks quashing of the Enquiry Report dated
W.P. (C) No.2177/1996 Page 1 of 23
26.5.1994 pursuant to which orders were passed by the Disciplinary
Authority and the Appellate Authority. Certain other reliefs are also claimed
in this writ petition, but, the writ petition has been argued only for quashing
the aforesaid decisions of the departmental authorities.
2. The facts of the case are that the petitioner was issued a Charge
Sheet dated 6.9.1993 containing a total of six Articles of Charges. These six
Articles of Charges read as under:-
"STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SHRI
RAKESH DHINGRA, COMPANY SECRETARY.
....
ARTICLE-I
That the said Shri Rakesh Dhingra intentionally withheld a copy of his
graduation (B.Com.) degree at the time of his appointment in NSFDC and
thereby claimed service experience of almost two years for working as an
Accounts Trainee with M/s Aggrawal Bansal & Associates, Jhandewalan
Market, New Delhi during the period 15.7.76 to 25.5.1978, whereas he had
completed his graduation only in the year 1977.
ARTICLE-II
That the said Shri Rakesh Dhingra submitted an experience certificate at the
time of his appointment in NSFDC for having worked as an „Accountant‟ from
29.6.78 to 31.1.80 with a firm M/s Moon Enterprises whereas enquiries reveal
that the said firm was not in existence at the stated time and place.
ARTICLE-III
That the said Shri Rakesh Dhingra defied the lawful and reasonable order of his
superior by not complying with the instructions issued to him vide Order No.
NSFDC/21/89-Pers. Dated 6.8.93 whereby he was placed under suspension
w.e.f. 6.8.93 and advised to hand over all the files/documents key(s) of
almirah(s) etc. under his custody to Shri Devanand, Assistant Manager
(Vigilance) immediately.
ARTICLE-IV
That the said Shri Rakesh Dhingra sent certain information and representations
about restoration of his designation as Company Secretary-cum-Finance
Manager, sanction of dual charge allowance to him; complaint alleging
wrongful appointment of Dr. S.P.Ram in the Corporation; recording of his ACR
as „Outstanding‟ by Ex-GM(Finance); alleged denial of opportunity to him for
appointment to the post of DGM (Finance) and finally, his appeal against the
suspension order, directly to the Board of Directors without any general or
special order of the Competent Authority or routing the same through the
Competent Authority.
ARTICLE -V
That the said Shri Rakesh Dhingra unauhtorisedly enclosed a copy of an agenda
note sent to him for submission before the Board of Directors with his Writ
Petition filed against the Corporation and also quoted verbatim from a strictly
confidential letter from the CMD addressed to the Joint Secretary (SCD),
Ministry of Welfare, Govt. of India in his writ petition.
ARTICLE-VI
That the said Shri Rakesh Dhingra did not disclose at any stage either at the
time of his appointment in the Corporation or even after his induction, the fact
that there was a disciplinary case pending against him in his previous
organization i.e. Pradeshiya Industrial and Investment Corporation of U.P. Ltd.
(PICUP) and the proceedings in the case were yet to be finalized. Shri Rakesh
Dhingra by his above acts, furnished false information/certificate regarding his
previous service, willfully disobeyed a lawful and reasonable order of his
superior, unauthorisedly communicated official documents and information and
suppressed material facts at the time of his appointment in NSFDC, thereby
contravening Rule 5(4), 5(6), 5(20) and 11 of NSFDC Conduct, Discipline and
Appeal Rules, 1990."
3. The aforesaid Articles of Charges were supported by
imputation of facts with respect to the stated misconduct contained in the
Articles of Charges. Enquiry Officer was appointed to enquire into the
charges against the petitioner vide letter of respondent no. 1/employer dated
6.9.1993. The Enquiry Officer held proceedings on various dates as under:-
S. No. INQUIRY DATES REMARKS
1. 29.12.1993 Preliminary hearing was stayed on
account of the objection raised by the
CO on the appointment of IO. Matter
was referred to the Disciplinary
Authority.
2. 11.01.1994 CO attended the proceedings till end
and received the DOS.
3. 09.02.1994 CO attended the proceedings but left
the inquiry without signing the DOS.
4. 18.02.1994 CO not attended the proceedings.
5. 25.02.1994 CO visited office, made entry in the
Visitors‟ Register but not attended the
proceedings.
6. 02.03.1994 CO not attended the proceedings.
7. 04.03.1994 CO came to office but not attended the
proceedings
8. 08.03.1994 CO attended the proceedings but left
the inquiry mid-way.
9. 15.03.1994 CO did not attend the proceedings.
Proceeding was adjourned to enable
CO to appear and submit his defence.
10. 17.03.1994 CO did not attend the proceedings.
11. 21.03.1994 CO did not attend the proceedings.
12. 25.03.1994 CO did not attend the proceedings but
sent Medical Certificate for 2 days
received on 28.3.94 at 4.30 p.m.
13. 29.03.1994 A telegram was received from the CO
informing his inability to attend the
inquiry due to his illness. Hence the
inquiry was suspended on that day.
14. 04.04.1994 CO did not attend the inquiry. Last
opportunity was extended to the CO to
be present on 08.04.1994.
15. 08.04.1994 CO did not attend the proceedings but
sent Medical Certificate after inquiry
time.
16. 21.04.1994 CO not attended the proceedings.
Sent a letter claiming leave of absence
on medical grounds.
17. 06.05.1994 CO did not attend the inquiry nor sent
any communication.
18. 10.05.1994 CO did not attend the inquiry nor sent
any communication.
4. It is seen from the aforesaid dates of proceedings that the
petitioner regularly sought adjournment to delay the proceedings and
ultimately failed to appear, whereby he was proceeded ex-parte. The
department led evidence and proved various documents which were
exhibited as Ex. S-1 to Ex. S-44 totaling to 83 pages.
5. Before I refer to the findings and conclusions of the Enquiry
Officer, it is relevant to state that a Domestic Tribunal is not bound by the
strict rules of the Evidence Act. Also, the Domestic Tribunal decides the
case on the principle of preponderance of probability. Once two views are
possible, and the departmental authority takes one possible and plausible
view, this Court is not entitled to interfere with the findings and conclusions
of the departmental authorities by substituting its view for that of the
departmental authorities. This aspect becomes all the more relevant when
the department leads evidence but the charged officer has failed to lead any
evidence.
6. At the outset, it is relevant to note that during the course of
hearing in this writ petition, repeatedly it was put to the petitioner, that it
would be advisable for the petitioner to agree to have the ex-parte
proceedings set aside and the petitioner to lead evidence before the
departmental authorities in his defence, and with respect to which aspect
counsel for respondent no. 1/employer was inclined to take instructions,
however, the petitioner insisted that the writ petition be decided as it is on
merits on the basis of record. The effect of this is that this Court has to
decide the writ petition on the basis of the record and evidence before the
Enquiry Officer. Once, before the Enquiry Officer petitioner has failed to
lead evidence by remaining ex-parte, this Court cannot allow while hearing
a writ petition challenging the orders of the departmental authorities, the
petitioner to refer to documents and evidence which was not led before the
Enquiry Officer and which evidence is therefore not a part of the
proceedings/file of the Enquiry Officer. It is not permissible for the
petitioner/charged officer to contend and argue that he can remain ex-parte
in the enquiry proceedings yet treat the writ petition as original proceedings
whereby evidence can be led to disprove the charges against the
petitioner/charged officer. Accordingly, I have disallowed the petitioner to
refer to any evidence which is beyond the record of the Enquiry Officer
except on one aspect of inherent lack of jurisdiction as regards the
disciplinary proceedings wherein I have taken the necessary documents filed
by both the parties before this Court so as to determine this issue on merits.
7. This Court would now seek to refer to the tactics and strategy
adopted by the petitioner before the Enquiry Officer to delay the
proceedings and these aspects are noted by the Enquiry Officer in
paragraphs 5.1 to 5.12 of the Enquiry Report dated 26.5.1994 and which
paras read as under:-
"5.1 The CO appeared before the IO on 29.12.1993 for preliminary hearing.
To begin with, he questioned my appointment as the Inquiry Officer and in that
regard submitted letter No.: SP/RD/18/93 dated 27.12.92 (CF : 10). Therefore
no inquiry was conducted on 29.12.93 and the matter was referred to the
Disciplinary Authority for a decision (CF : 112-A). The Disciplinary Authority
vide letter No. " NSFDC/GM(P)/ENq/93/07/U-1419 dated 29.12.1993 (CF :
115) rejected the reason on which the CO objected to the appointment of IO and
advised him to participate in the proceedings. Later he attended the hearing of
inquiry intermittently.
5.2 In the second hearing on 11.1.1994, the CO admitted having received
the Charge Sheet containing 94 pages of 6 charges and denied all the charges,
hence enquired all the charges. The CO submitted during the hearing that he
would submit his defence after appointment of his Defence Assistant. Though
CO was advised to appoint his Defence Assistant vide letter No.:
NSFDC/GM(P)/ENQ/93/07/U-1182 dated 15.12.1993 (CF : 110), he sought
further time during the hearing and the same was extended up to 27.1.1994
(DOS : 11.1.1994; page -2(vii)). The CO was advised to give the list of
additional documents by 18.1.1994 and he agreed for the same and he was also
allowed to inspect the additional documents on or before 28.1.1994 (DOS :
11.1.1994).
5.3 The CO did not provide any list of additional documents nor inspected
the documents as he agreed. On the contrary, with the intention to delay the
proceedings he indulged in lodging false complaints which were dealt in the
hearing on 9.2.1994 (Ref. DOS : 9.2.94). He was further allowed time to
inspect the documents on 15.2.94. The CO was provided with all relevant
documents to prepare his defence. Points raised in his letter No.: CP/RD/22/94
(CF : 25) was replied vide letter No.: NSFDC/GM(P)/ENQ/93/07/U-1816 dated
2.2.1994 (CF : 125). His request for extension of time to appoint DA was not
considered as he took no steps in this regard up till 9.2.1994. Nearing end of
the day‟s proceedings, the CO misbehaved with the PO, shouted at him and left
the inquiry without signing the DOS dated 9.2.94. The DOS was sent by speed
post to CO. The behavior of the CO was brought to the notice of Disciplinary
Authority vide my note dated 9.2.1994 (CF : 127).
5.4 The CO did not attend the next proceedings of the inquiry on 18.2.94
and has not inspected the documents till that date. He neither informed me any
leave of absence for 18.2.94. However, the PO made a submission that there
involves no witness from Disciplinary Authority and all charges are to be
established through documentary evidence only. All the listed documents in
original were submitted by the PO. They were taken by me on record of the
inquiry after marking them from Ex.S-1 to Ex.S-44 containing 83 pages. It was
ensured that all the copies of listed documents were given to the CO to defend
his case and the DOS was sent by speed post to CO (DOS : 18.2.1994)
5.5 The CO visited the office on 25.2.94 at 11.30 am. but did not attend the
proceedings held on that day. He preferred to make a wrong entry in the
visitors‟ register regarding his time of arrival as 10.50 a.m., the details of which
may be seen from page -1, S.No. 5 & 6 of DOS dated 25.2.94. During the next
hearing of the inquiry on 2.3.94, his request through his letter No.:
SP/RD/27/94 dated 15.2.94 (CF : 52) for appointing DA was considered and he
was advised to appoint his DA as noted on page - 2 at S. No.3 of DOS dated
2.3.94. For the subsequent hearing held on 4.3.94, the CO visited office at
11.45 a.m. but neither attended the proceeding nor sought any leave of absence
and also not made any entry in the Visitors‟ Register at the reception this time.
5.6 For the hearing on 8.3.94, scheduled at 11 a.m., the CO came for
inquiry late at 11.40 a.m. along with another person. The CO insisted for the
presence of the other person, who mentioned his name as Mr. Mittal, during the
inquiry proceedings though the CO himself confirmed that he was not CO‟s
DA. The presence of Mr. Mittal during the proceedings was not accepted. The
CO in his letter No.: HD/RD/34/94 dated 8.3.1994 (CF : 72), handed over to me
during the inquiry gave details of Mr. M.Y. Khan, a practicing Advocate to be
nominated as his DA. His request to appoint a practicing advocate as his DA
was declined and he was advised to nominate persons other than practicing
advocate as recorded on page - 2, S.No. 6 & 7 of DOS dated 8.3.94. As the PO
completed his presentation, the CO was asked to state his defence. The CO
neither stated his defence nor sought further time, but abruptly left the
proceedings without permission. The issues raised by CO in his letter No.:
SP/RD/36/94 dated 8.3.1994 (CF : 78) received on 9.3.1994 was replied vide
my letter No.: NSFDC/GM(P)/ENQ/93/U-2193 dated 11.3.1994 (CF : 147).
5.7 The CO was repeatedly extended further opportunity to appear before
the inquiry on 15.3.94, 17.3.94, 21.3.94 and 25.3.94 to defend his case. The
CO did not appear for these four hearings. But for the inquiry held on 25.3.94,
the CO sent a Medical Certificate advising him 2 days rest, which was received
in my office on 28.3.94 at 4.30 p.m. (CF : 90). To the request of CO vide his
letter No.: RG/RD/38/38/94 dated 25.3.1994 (CF : 90) to appoint a practicing
advocate as his DA, a reply was sent vide my letter No.:
NSFDC/GM(P)/ENQ/93/07/U-2270 dated 28.3.1994 conveying no objection to
appoint anyone other than a practicing advocate (CF : 149).
5.8 A telegram was received on 29.3.94, the day of the proceeding stating
that the CO was sick (CF : 91). Hence the inquiry was suspended for the day
and the hearing was scheduled for 4.4.94. The CO again did not attend the
inquiry on 4.4.94 at 11 a.m. but his letter No. : SP/RD/40/94 dated 31.3.94 (CF
: 98) was received in my office on 4.4.94 at 3.20 p.m. enclosing therein a
medical certificate dated 29.3.94 advising medical rest for 7 days i.e. upto
4.4.94. Through DOS dated 4.4.94 the CO was extended a last opportunity to
defend his case on 8.4.94 at 11 a.m.
5.9. For the inquiry scheduled on 8.4.94, the CO sent a letter No.:
FAX/RD/41/94 dated 5.4.94 (CF : 101) received in my office at 3 p.m. on
8.4.94, informing that he was advised rest for further 2 weeks i.e. upto 19.4.94.
He has not sent any medical certificate but a medical prescription was enclosed
from Safdarjung Hospital, New Delhi.
5.10. The hearing was again scheduled on 21.4.94 i.e. after expiry of further
2 weeks. But the CO did not attend the inquiry on 21.4.94 but sent a letter No.:
FX/RD/42/94 dated 19.4.94 (CF : 103) seeking further medical rest for 4 weeks
from 5.4.94 i.e. upto 3.5.94 as he was suffering from Cervical Spondilytis.
Hence the inquiry was suspended till May 3, 1994 and was scheduled again for
6.5.94 and subsequently on 10.5.94. To CO did not attend the proceedings on
these days nor sent any request for his absence.
5.11 As the CO was extending his medical leave, the same was brought to
the notice of the Disciplinary Authority for advice (CF : 152 & 158). The
Disciplinary Authority directed me to expedite the disposal of the case and
submit the Inquiry Report (CF : 173).
5.12 From the above it may be seen that I had extended ample opportunities
and all possible cooperation and consideration to help the CO to putforth his
defence as summarized below:
- When he questioned the authority of appointment of IO. I suspended the
inquiry and referred the matter to the Disciplinary Authority.
- I had left the time limit open for the CO to appoint his DA at any point of time
during the period of inquiry (DOS : 2.3.94, page - 2, S. No. : 3).
- Extended the time limit to inspect the documents up to 15.2.94, though the
inquiry hearing was commenced from 29.12.93.
- Scheduled inquiry hearings for 18 times including the first adjourned hearing
and the last 11 hearings from 8.3.1994 onwards were scheduled mainly to
enable the CO to submit his defence.
The CO has not utilized the ample opportunities extended to him to defend his
case." (underlining added)
8. In my opinion, therefore, the petitioner was rightly proceeded
ex-parte and evidence of the petitioner was closed and the Enquiry Officer
therefore rightly decided the case as per the evidence led on behalf of the
department.
9. This Court, now, therefore has to refer to the relevant portions
of the report of the Enquiry Officer as to whether the findings and
conclusions arrived at are such which can be set aside in these proceedings
under Article 226 of the Constitution of India by invoking extraordinary
jurisdiction of this Court. As already stated above, once the findings and
conclusions are the findings and conclusions which are based upon evidence
and the petitioner/charged officer did not lead evidence, this Court cannot
interfere with the findings and conclusions of the departmental authorities
which takes one possible and plausible view.
10. The first Article of Charge against the petitioner was as regards
the petitioner concealing the factum with respect to completing of
graduation of B.Com degree in the year 1977 and this was done in order to
claim service experience of two years from July, 1976 to May, 1978 and
which the petitioner would not have had if the petitioner‟s service
experience has to be taken after obtaining the B.Com degree in 1977. In this
regard, the Enquiry Officer has held that since petitioner obtained the
B.Com degree in 1977, therefore, petitioner cannot claim service experience
prior to 1977. Accordingly, the Enquiry Officer has, in my opinion, rightly
decided this Article of Charge against the petitioner as under:-
"From the copy of the B.Com certificate produced, I note that the CO passed
his B.Com Degree in 1977. Assuming that he had passed his B.Com exams in
May 1977, his period of experience before graduation may be a period of 10
months and thus his experience would have got reduced by this period from the
2 years he claimed. But the experience he claimed also was that of Accounts
Trainee which was not considered as a recognized experience as was certified
by the Apex Institution in the field of accounts i.e. The Institute of Chartered
Accountants of India (Ex.S-5/1).
If the CO had felt that he had not deliberately suppressed the fact of his having
passed the B. Com Degree in 1977, then when the P & A Deptt. asked him to
submit this B. Com Certificate on 28.12.1990 (Ex.S-3/1), he should have
readily complied with as it is the prime responsibility of any employee to
cleanse himself first and could have claimed innocence on his omission of
furnishing the detail at the time of his seeking employment in the organization.
But the sequence of the events detailed above such as; providing evasive
answer, questioning the G.M. (P&A) for the need for asking this certificate,
stating that he misplaced the certificate, involving in perjury by stating that he
had already submitted the certificate, raising logical question as to how one
could have acquired higher education without this certificate, furnishing not the
original but a photo copy of the certificate, that too after dodging the issue for 3
years, 8 months i.e. upto April 28, 1993 without any valid reason; etc. did not
lead to see even a remote possibility of innocence on the part of the CO on this
issue. Further when the CO‟s action to furnish all his other degree certificates
including his secondary education certificate but not his B.Com certificate
alone strengthen the charge that he intentionally suppressed the fact of having
passed his B. Com in 1977. Therefore the CO deliberately suppressed the fact
that he passed B.Com Degree in 1977 to claim undue experience to his account.
The CO joined NSFDC on deputation basis and later got absorbted in the
services of NSFDC. The CO, not furnishing the details of his B.Com Degree
should have been noticed by the G.M. (P&A) from CO‟s application (Ex.S-2/1)
and should have called for the same at the time of his interview or at the time of
his joining NSFDC or at the time of his absorption in NSFDC or atleast at the
time he applied for the post of DGM(F) in NSFDC. Uptil 11.2.1993 (Ex.S-4/1)
the G.M. (P&A) has not taken any substantial step to get the details of the
B.Com Degree of CO verified. Though the CO had claimed undue experience
by suppressing the fact, the negligence on the part of GM (P&A) with regard to
verification of certificates of an employee at various points of time cannot be
overlooked.
Based on the information available, I conclude that Charge - I as stated above is
sustained."
11. I do not find any illegality or perversity in the aforesaid finding
and conclusion of the Enquiry Officer as regards the first Article of Charge
and therefore it is held that the Enquiry Officer has rightly concluded the
first Article of Charge against the petitioner.
12. The second Article of Charge against the petitioner was that he
submitted an experience certificate of having worked as an Accountant from
29.6.1978 to 31.1.1980 with a firm M/s. Moon Enterprises, whereas on
enquiry it was reported that the firm was not in existence at the stated time
and place. For this purpose, the Enquiry Officer has referred to various
documents and the personal enquiries made by the office of the department
showing that the firm M/s. Moon Enterprises did not exist. Also, the
Enquiry Officer noticed that the workplace of the firm M/s. Moon
Enterprises at Jaipur was separated by 250 kms from Delhi where the
petitioner was attending classes and, therefore, it would not be conceivable
for the petitioner to have got experience from the firm M/s. Moon
Enterprises. To arrive at this conclusion the Enquiry Officer referred to
various documentary evidences, and the same reads as under:-.
"In connection with the above charge, I have verified the documentary evidence
produced before me as detailed in DOS dated February 25, 1994, at page 2,
S.No. 11 and DOS dated March 17, 1994, at page 1, S. No. 6 and at page - 2, S.
No. 8.
- The CO produced experience certificate for having worked in M/s. Moon
Enterprises from 29.6.1978 to 31.1.1980 (Ex.S-7/1). He also produced M.Com
Degree Certificate, which he had passed in 1980 form Delhi University (Ex. S-
8/1).
- Registered letter addressed to both the head office address and branch office
address of M/s. Moon Enterprises were returned with remarks regarding non-
existence of the address (Ex.S-9/1, Ex.S-10/1, Ex.S-10/2, Ex.S-10/3, Ex.S-10/4,
Ex.S-11/1). Enquiries made with regard to existence of M/s Moon Enterprises
by the vigilance officer of NSFDC by site visit, enquiry with the local police
station, local postal office, local residents and Sale Tax Deptt. confirmed the
remarks of the postal authorities.
- CO was advised of the outcome of the above enquiries made and was also
asked to produce evidence of existence of M/s. Moon Enterprises (Ex.S-12/1,
Ex.S-14/1, Ex.S-15/1, Ex.S-17/1, Ex.S-22/1).
- Mr. Atual Mittal, who was identified as the partner of M/s. Moon Enterprises
by CO, could not produce any evidence such as Sales Tax documents,
registration number etc. to establish the existence of the firm except saying that
the CO worked in their erstwhile firm at Jaipur which was liquidated. (Ex.S-
19/1, Ex.S-20/1, Ex.S-21/1-2, Ex.S-25/1).
- The CO avoided the issue with evasive and irrelevant replies. He has not
furnished required details but raised queries such as: whether records of all
other officers are verified and alleged that the motive behind verification of his
documents was vindictive as he pointed out the wrong information furnished by
Dr. S.P. Ram, G.M.(P&A) in his case during his appointment as G.M.(P&A) in
NSFDC. (Ex.S-13/1, Ex.S-16/1, Ex.S-18/1, Ex.S-18/3, Ex.S-23/1-2).
(underlining added)
13. In my opinion, once the second Article of Charge was duly
established in terms of the documentary evidence clearly showing non-
existence of the firm M/s. Moon Enterprises it has to be held that the
findings of the Enquiry Officer are not in any manner illegal or perverse for
interference by this Court under Article 226 of the Constitution of India.
The findings of the Enquiry Officer therefore with respect to the second
Article of Charge are correct and upheld by this Court.
14. The third Article of Charge against the petitioner was that in
spite of the order dated 6.8.1993 placing the petitioner under suspension and
petitioner being advised to hand over all the files, documents, keys of
almirah, etc. to Sh. Devanand, Assistant Manager (Vigilance) immediately,
the same was not done by the petitioner/charged officer and he wrongly
dilly dallied.
15. The fact of the matter is that the petitioner did not dispute that
he did not hand over the charge along with the documents, keys, etc,
because, the petitioner raised the issue that CMD of the respondent no.
1/employer had no powers to suspend him. Enquiry Officer has held that
CMD was the appropriate authority to initiate the disciplinary proceedings
against the petitioner and suspend him and which becomes clear from the
33rd and the 34th Minutes of the meetings of Board of Directors of
respondent no. 1/employer whereby with respect to officers up to the level
of Manager Grade - I with pay scale of Rs.3950-5300 it was the CMD who
was the disciplinary authority. By these Minutes of meetings of the Board
of Directors the relevant earlier portions of the Article of Association were
amended whereby it was the Board of Director who was the appointing and
the disciplinary authority for persons of the level of Manager Grade - I.
Enquiry Officer accordingly with reference to the 33rd Minutes of the
meeting of the Board of Directors has rightly held that CMD was the correct
disciplinary authority to suspend the petitioner and initiate the disciplinary
proceedings against him by issuing of the charge-sheet and by appointing of
the Enquiry Officer and thereafter pass the penalty order by accepting the
report of the Enquiry Officer. This aspect I will deal again later by also
referring to the additional facts when I go to the last argument urged on
behalf of the petitioner with respect to the lack of jurisdiction with respect to
the disciplinary proceedings initiated against him.
16. The fourth Article of Charge was that the petitioner directly
corresponded by sending the note to the Board of Directors for restoring his
designation as Company Secretary-cum-Finance Manager and for
sanctioning of allowance for holding dual charge without going through a
proper channel. Enquiry Officer has, in my opinion, rightly held this charge
against the petitioner by reference to the documents being Ex. S-34 to Ex. S-
37, and which findings read as under:
"CHARGE -IV :The CO sent the following information and note to the Board
of Directors without the approval of Competent Authority or routing the same
through the Competent Authority:-
i) To restore his designation as Company Secretary-cum-Finance
Manager (Ex.S-35/1).
ii) For sanction of allowance for holding dual charge (Ex.S-34/1).
iii) Complaint alleging wrongful appointment of Dr. S.P. Ram,
G.M.(P&A) (Ex.S-35/1, Ex.S-35/2)
iv) Informing Board regarding recording of the CO‟s ACR as outstanding
by Ex-GM (Finance) (Ex.S-35/2).
v) Note on Service matters (Ex.S-36/1 to Ex.S-36/4).
vi) His appeal against the suspension order (Ex.S-37/1).
Verification of the above mentioned documents cited in DOS dated 4.3.1994;
page-1, S.No.: 3A(i), (ii) & (iii) indicates that the CO did not obtain the
approval of the Competent Authority to send his notes to the Board of Directors
or routed the same through the Competent Authority to the Board of Directors."
(underlining added)
17. The fifth Article of Charge against the petitioner is not dealt
with by this Court because the petitioner has been exonerated with respect
to the fifth Article of Charge.
18. The sixth Article of Charge against the petitioner was that
petitioner did not disclose the fact that there was a disciplinary case pending
against the petitioner with his previous organization PICUP and proceedings
of which case were yet to be finalized. The charge against the petitioner by
his previous employer PICUP was that the petitioner was over paid and the
respondent no. 1/NSFDC was therefore requested by PICUP to recover the
excess amount paid to the petitioner from the salary of the petitioner. This
charge has been rightly held against the petitioner by the Enquiry Officer by
observing as under:-
"In connection with this charge, Exhibits cited in DOS dated March 4, 1994 at
Page - 3, S.No.: 3(c) iv was verified.
The CO joined in NSFDC on deputation in April, 1989 and was absorbed in
October, 1989. The CO should have divulged the fact that an enquiry was
pending against him in PICUP on either of the above two occasions or at a later
stage voluntarily. It is also surprising to note that PICUP did not inform
NSFSC about the pending enquiry against the CO until such time NSFDC
verified the antecedent of the CO from PICUP. It is also not known by GM
(P&A) could not detect these facts at the time of appointment or absorption of
the CO in NSFDC and waited up to November, 1991 (Ex.S-42/1). Further it is
also not clear how PICUP relieved its officer (CO) from its service when
enquiry was pending and accounts not settled with them. The CO before joining
NSFDC should have settled these issues with PICUP as it happened to be his
immediate previous employer or should have kept NSFDC informed of the
same. The failure to do so by the CO raise various doubts about the integrity of
the CO. The CO had suppressed the fact that an enquiry was pending against
him in PICUP.
Considering the above available information, I conclude that the Charge - VI
is sustained." (underlining added)
19. In view of the above discussion it is held by the Enquiry
Officer that the department in terms of the evidence led had duly proved the
Articles of Charges I, II, IV and VI against the petitioner by filing various
documents and this Court cannot interfere with such findings which are not
in any manner illegal or perverse, more so because the petitioner/charged
officer did not lead evidence and wrongly remained ex-parte.
20. Before this Court it was argued on behalf of the petitioner that
the entire disciplinary proceedings against the petitioner are liable to fail
because CMD of the respondent no. 1/employer was not the authorized
person to initiate disciplinary proceedings against the petitioner and the
competent authority was the Board of Directors. For this purpose the
petitioner has placed reliance upon para 64 of the Articles of Association of
the respondent no. 1/employer and which reads as under:-
"64. Subject to the applicable provisions of the Act, a Company Secretary
may be appointed by the Board for such time and at such remuneration and
upon such conditions as it may think fit and any secretary so appointed may be
removed by the Board."
21. Petitioner also argued that the Minutes of the 33rd Board of
Directors meeting have been fabricated by the respondent no. 1/employer
inasmuch as it was the petitioner who was the Company Secretary at the
time of holding of the 33rd meeting of the Board of Directors and as per the
Minutes of meeting submitted by him to the Board of Directors for approval
there was no such agenda item no. 11 that CMD is designated as the
competent authority to initiate disciplinary action against the persons such
as the petitioner who was in the level of Manager Grade-I.
22. Learned counsel for the respondent no. 1/employer in response
placed reliance upon the Minutes of 33rd meeting of the Board of Directors
of the respondent no. 1/employer with respect to agenda item no. 11 and as
confirmed by the Board of Directors in its next meeting i.e 34th meeting,
read with consequent circular/office order dated 13.7.1993 issued by the
respondent no. 1/employer whereby the CMD was to be the disciplinary
authority with respect to persons in particular pay-scales as specified in the
office order dated 13.7.1993. For the sake of convenience, the agenda item
no. 11 of the 33rd Minutes of meeting, confirmation thereof in the 34th
meeting of Board of Directors and the circular dated 13.7.1993 are
reproduced as under:-
(i) Agenda Item No. 11 of the 33rd Minutes of Meeting:-
"11. DELEGATION OF DISCIPLINARY POWERS TO CHAIRMAN-
CUM-MANAGING DIRECTOR OF NSFDC.
After discussion, the Board passed the following resolution:-
"RESOLVED that Delegation of Disciplinary Powers to Chairman-cum-
Managing Director, as placed before the Board be and are hereby approved."
(ii) Item No. 1 of the 34th Meeting of the Board of Directors of
respondent no. 1.
ITEM NO. 1 Minutes of the 33rd Board Meeting held on 30/6/93.
After discussions, the Board passed the following resolution:-
"RESOLVED that the minutes of the 33rd Board Meeting, as placed before the
Board, be and are hereby approved."
(iii) Office Order of the respondent dated 13.07.1993
"NATIONAL SCHEDULED CASTES AND SCHEDULED TRIBES
FINANCE AND DEVELOPMENT CORPORATION
Of. No. NSFDC/P&A/CDA/92 July 13, 1993
OFFICE ORDER
In pursuance of the decision taken by the Board in its 33rd Meeting held on
30.6.1993 whereby the Chairman-cum-Managing Director had been delegated
full appointing/disciplinary powers in respect of employees/posts in the pay
scale of Rs.1640-2900 up to Rs.3950-5300, the „SCHEDULE‟ forming a part of
the NSFDC Conduct, Discipline and Appeal Rules, 1990 stands amended and
the revised „SCHEDULE‟ is enclosed herewith for reference and records.
Hindi version will follow.
Sd/-
(DR. S.P.RAM)
GENERAL MANAGER (P&A)
Encl: as above
DISTRIBUTION :
1. General Manager (Projects) : With a request to
2. Deputy General Manager (Fin.) : bring the contents
3. Company Secretary : of this order to
4. Secretary to CMD/Zonal Manager : the notice of all
(Lucknow)/Manager (MPD) employees working
5. Deputy Zonal Manager (Patna/Karnal) : under their admi-
6. Assistant Zonal Manager (Shillong/ : nistrative control.
Bombay/Bangalore)
7. Assistant Manager (Vigilance/OL)
8. Notice Board. Sd/-
(DR. S.P. RAM)
GENERAL MANAGER (P&A)"
23. I cannot agree with the argument urged on behalf of the
petitioner that the CMD of the respondent no. 1/employer is not the
disciplinary authority of the petitioner inasmuch as no doubt originally the
respondent no. 1 company as per para 64 of its Articles of Association
specified that the Board of Directors was the competent authority for
appointing the Company Secretary and also take disciplinary proceedings,
however, in law it is perfectly possible for the Articles of Association of a
company to be amended by the Board of Directors, this the Board of
Directors did when it amended the Articles of Association para 64 in its 33rd
meeting agenda item no. 11 whereby the CMD of the respondent no.
1/employer became the disciplinary authority with respect to post which the
petitioner occupied. It is impermissible for the petitioner to argue that since
the petitioner was the Company Secretary when the 33rd Board meeting of
the Board of Directors was held, it should be held that this agenda item no.
11 of the 33rd meeting of the Board of Directors did not exist, inasmuch as
petitioner has no locus standi to question the minutes of the meeting of the
Board of Directors with respect to the 33rd meeting once the copies of the
agenda item no. 11 of the 33rd meeting has been filed in this court and in
fact which have been also approved in the subsequent meeting i.e 34th
meeting of the Board of Directors of the respondent no. 1/employer. In fact
a necessary and consequent office order pursuant to agenda item no. 11 of
the 33rd meeting was issued by the respondent no. 1/employer on 13.7.1993
and which has been reproduced above showing that it was the CMD who
was designated to be the competent authority to initiate disciplinary
proceedings for the post which the petitioner was appointed and occupying,
and which was in the pay-scale as found in the agenda item no. 11 of the
33rd meeting of the Board of Directors of the respondent no.1/employer and
further details of which are found in the office order dated 13.7.1993 issued
by the respondent no. 1/employer as stated above.
24. Petitioner in support of this proposition that the petitioner could
not have been proceeded against by the CMD because CMD was an
authority below the Board of Directors, has placed reliance upon the
judgments of the Supreme Court in the case of The Management of D.T.U.
vs. Shri B.B.L. Hajelay and Another, (1972) 2 SCC 744 and the later
judgment of the Supreme Court in the case of Municipal Corporation of
Delhi vs. Ram Pratap Singh, (1976) 4 SCC 828 and which follows the
ratios of the judgment in the case of The Management of D.T.U. (supra).
However the judgments relied upon by the petitioner does not support the
case of the petitioner because in the case of The Management of D.T.U.
(supra) and Ram Pratap Singh (supra) the issue was that as to whether a
subordinate legislation being the rules and regulations could violate the
provisions of the principal Act/Statute in that whereas in the main provision
of the Act a particular authority was specified as the authority to take
disciplinary action, but by the rules a lower authority was authorized to take
disciplinary action, and it is in such circumstances that the Supreme Court
held that a lower authority as per the rules cannot be said to be authorized to
take disciplinary action against the employee. In the present case, there is
no question of violation of any provisions of any Act/Statute because the
Articles of Association of a company can always be amended by the Board
of Directors, and once that is done whereby the CMD is designated as the
appropriate authority to take disciplinary against a particular set of
employees such as the petitioner, it cannot be held that the disciplinary
proceedings against the petitioner were without jurisdiction because para 64
of the Articles of Association requiring taking of disciplinary action by the
Board of Directors stood substituted by entitling the CMD of the respondent
no. 1/employer to take disciplinary action against persons in the designation
at which the petitioner was working.
25. In view of the above, I do not find any merit in the present writ
petition and the same is therefore dismissed, leaving the parties to bear their
own costs.
DECEMBER 19, 2016 VALMIKI J. MEHTA, J
AK/godara
