K.L.Berwa vs Dpcl And Ors.
2017 Latest Caselaw 7239 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment reserved on: September 22, 2017
                             Judgment delivered on: December 15, 2017

+     W.P.(C) 1863/1997

K.L.BERWA                                                 ..... Petitioner
                             Through:   Mr. Manish Singh, Adv.

                    versus

DPCL AND ORS.                                             ..... Respondents
                             Through:   Mrs. Avnish Ahlawat, Adv. for R1.
                                        Mr. Sumeet Pushkarna, Standing
                                        Counsel with Mr. Sahil Ghei, Adv. for
                                        R2.
                                        Mr. Gulshan Chawla, Mr. Rishi
                                        Kulshrestha and Mr. Madan Mohan,
                                        Advs. for R3.

CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
                                JUDGMENT

V. KAMESWAR RAO, J

1. The present petition has been filed by the petitioner challenging the order dated May 23, 1996 whereby the petitioner was imposed a penalty of removal from service which shall not be a disqualification for his future employment with the respondent and order dated January 31, 1997 received by the petitioner on February 12, 1997 of the Appellate Authority, whereby it had rejected the Appeal of the petitioner against the order of removal referred above.

2. Some of the relevant facts as pleaded by the petitioner are, petitioner joined the erstwhile DESU which was renamed as DVB on February 14, 1980 as Meter Reader. In March, 1990 as averred by the petitioner he filed an internal report stating electricity theft in Devli extension area. A chargesheet dated August 5, 1994 was served on the petitioner inter alia alleging that while working as Meter Reader during the year 1990-91, he with malafide intention and with a view to extend benefit to the consumer, did not record the reading of meter installed against K. No. 173298 registered in the name of Sh. Balbir Singh at Premises No. A-141, Devli Extension in the month of May, 1990. Further the Connection No. 173298 sanctioned for domestic purposes, was being used for INDL/COMML Purposes and the LV mains were illegally / unauthorizedly extended to other premises. It was also alleged that the petitioner did not issue ST-II and ST-VII to his MSR (D) Reporting that the meter was not read and supply was being misused and extended to other premises in violation of order dated May 29, 1982. The enquiry was conducted by the Enquiry Officer who vide report dated July 6, 1995 has found the charge, as proved against the petitioner. Pursuant thereto, on February 19, 1996, the petitioner was supplied with a copy of the enquiry report. The reply to the enquiry report was given by the petitioner on March 29, 1996. The disciplinary authority agreeing with the findings of the Enquiry officer imposed the penalty of removal from service on the petitioner vide the impugned order dated May 23, 1996. The petitioner submitted an Appeal dated June 17, 1996 which appeal was rejected vide order dated January 31, 1997, which was received by the petitioner on February 12, 1997.

3. It was argued by Mr. Manish Singh, learned counsel for the petitioner

that the order of removal is an unreasoned order inasmuch as none of the grounds taken by the petitioner in his reply to the show-cause notice were considered by the disciplinary authority, who simply agreed with the conclusion of guilt as found by the Enquiry Officer. In this respect, he referred to the judgment of the Supreme Court in the case of S.N. Mukherjee v. Union of India AIR 1990 SC 1984 and also G. Vallikumari v. Andhra Education Society and Ors. JT 2010 (3) SC 75 to contend that there should be application of mind. Similar was the plea of Mr. Singh that grounds raised in the Appeal have not been adverted to by the Appellate Authority. In this regard, he relied upon the judgment of the Supreme Court in the case of Directorate (Marketing) Indian Oil Corporation Lt. and Anr. V. Santosh Kumar JT 2006 Vol. (7) SC 31. He also relied upon the judgment of the Supreme Court in the case of Allahabad Bank and Ors. V. Krishna Narayan Tiwari, Civil Appeal No. 7600/2013 decided on January 2, 2017. That apart it is his case that, obligation of the Appellate Authority to record reasons stems out from Section 17 of the Delhi Electric Undertaking DMC Rules (Control and Appeal) Regulations, 1976. That apart, it was the submission of Mr. Singh that in the present case, the determination of penalty was done even before calling for reply and consideration of the representation made by the petitioner in response to the show cause notice which according to him is clear from the show-cause notice itself. In other words, it was his submission that the order passed by the disciplinary authority was with a pre-determined mind. He relied upon the judgment of the Supreme Court in the case of H.P. State Electricity Board Ltd. v. Mahesh Dahiya reported as 2017 2 SCC 768. He also relied upon the judgment of the Supreme Court in Yoginath D. Bagde v. State of Maharashtra and Anr. reported in JT 1990 Vol. VI SC 62. Even on

the conduct of departmental enquiry, his submission was that the material witness namely Gyan Dev Vats was not produced in the enquiry. According to him, it was the case of the petitioner that no meter-sheet was inserted in the meter-reading book to enable him to record the meter reading of the concerned consumer and in that regard, the respondents had relied upon the statement given by Gyan Dev Vats to the Vigilance Department in the year 1992. According to him, concedingly Gyan Dev Vats was not even made a witness. He stated, the petitioner did object to the non-appearance of the said witness, who was the custodian of all the meter-books, billing ledger, diary register etc. According to him, the findings of the Enquiry Officer are perverse. He relied upon the judgment of the Supreme Court in the case of Hardwari Lal v. State of UP and others reported in AIR 2000 SC 277. That apart it was his submission that the proceedings shall be hit by delay and latches inasmuch as the subject matter of the charge was of the year 1990 whereas the chargesheet was issued in the year 1995, i.e., after expiry of a period of 5 years because of which the petitioner could not remember the sequence of events which transpired at the relevant point of time. In this regard, he would rely upon the judgment of this Court in the case of Union of India v. Hari Singh, W.P.(C) 4245/2013 decided on September 23, 2013. He also pleaded discrimination inasmuch one G.C. Sharma who was also a meter reader and against whom identical charges of non-reporting the use of electricity supply were framed was imposed a penalty of withholding of three annual increments without cumulative effect. He also challenged the Joint Inspection Report to contend that the meter installed at Premises A-141, Village-Devli Extension was not inspected by the authorities at all as the meter number in the inspection report and the meter book is not the same and

further the connection number could not be ascertained by the inspecting authorities. In such circumstances, the very foundation of the charge that the petitioner has not recorded the reading of the meter installed against Connection No. 173298 does not hold ground as it is not proved that the inspecting authorities had really done inspection of the meter installed against Connection No. 173298. He prays for the reliefs as sought in the petition.

4. On the other hand, Mr. Gulshan Chawla, learned counsel appearing for the respondent no.3 BSES would submit that the petitioner who was working in the office of AFO (D) NHP during the year 1991 with malafide intention and with a view to extend undue benefit to the consumer did not record the reading of the meter installed against K.No. 173298 registered in the name of Balbir Singh, Premises No. A-141, Devli Extension on his reading round in the month of May, 1990. He has read the charge as framed against the petitioner. According to him, on a Joint Inspection conducted on February 12, 1992, it was revealed that a large scale theft of electricity was being done in connivance with the local DESU Staff in the unauthorized colonies namely Sangam Vihar and Devli Extension by tapping the cables of the DESU LV mains and extending the same in the whole area with the support of Ballies etc. According to him, the charge against the petitioner is of very serious nature and the charges having been proved by the Enquiry Officer, the disciplinary authority has rightly imposed the penalty of removal from service as it is a case of loss of confidence. So he would justify the appellate order whereby the order of the disciplinary authority was upheld. He has taken me through the enquiry report to contend, there is sufficient evidence on record as noted in the enquiry report to prove the charge. He would justify the reliance

placed by the Enquiry Officer on the representation dated July 29, 1992 of Gyan Dev Vats to prove the charge against the petitioner. That apart it is his submission that the scope of judicial review is very limited and this Court would not like to interfere when there is sufficient evidence on record. Mr. Chawla would rely upon the following judgments in support of his contention:

1. National Housing Bank v. B.C.S Ballga 2006 III AD (Delhi)

2. State of Haryana and Anr. v. Rattan Singh (1977) 2 SSC

3. High Court of Judicate at Bombay v. Udan Singh and Ors. (1977) 5 SSC

4. Apparel Export Promotion Council v. A.K. Chopra AIR 1999 SC

5. Director General R.P.F. and Ors. V. Ch. Sai Babu 2003 (1) SCR

6. Bank of India & Anr. v. Degala Suryanarayana AIR 1999 SC

7. K.V. Kulkarni v. Bank of India and Ors. 2015 LLR 1243

8. B.C. Chaturvedi v. Union of India AIR 1996 SC

5. Mr. Sumeet Pushkarna, learned counsel appearing for respondent no.2, Delhi Vidyut Board Employees Terminal Benefit Fund 2002 stated that DVB Employees Terminal Benefits Fund 2002 is not the employer of the petitioner. He stated, if any amount has to be paid to the petitioner, then it shall be the responsibility of the employer. He would rely upon the judgment of the Supreme Court in the case of NDPL v. GNCTD (K.R. Jain judgment) reported as 2010 (6) SCC 278. In other words, it is his submission that no liability can be transferred on the Pension Trust.

6. Having heard the learned counsel for the parties, before, I deal with the submission of the ld. Counsel for the parties, I may note here that, initially this petition was filed against DVB, the DVB having been disbanded, the new entities DPCL and BSES have been impleaded as respondent nos. 1 and 3. In so far as Respondent No.2 is concerned, the same is DVB Pension Trust. The

memo of parties is at Page 202 of the paper book. I may also state DPCL had filed CM. No. 14870/2007 for its deletion from the array of respondents. The said application was directed to be heard along with the main matter vide order dated January 27, 2009. Further on September 25, 2017, this Court passed the following order in CM. No. 14870/2007.

"The writ petition was reserved for judgment on September 22, 2017. After the writ petition was reserved for judgment, it was noted that an application being CM No.14870/2007 has not been decided. Accordingly, this application was directed to be listed in the category of directions today. The application has been filed by Delhi Power Company Ltd. for deleting its name from the array of parties and instead BSES Rajdhani Power Ltd. be added as party respondent. Vide order dated 30th July, 2007, the BSES Rajdhani Power Ltd. was impleaded as respondent No.3. Amended memo of parties was filed on 18th July, 2008 (at page 202).

Mr. Gulshan Chawla, learned counsel for BSES Rajdhani Power Ltd. has drawn my attention to page 225 which is an order dated 19th July, 2007 passed in W.P. (C) No.983/1997 to contend that on a similar analogy even if no relief has been claimed against Delhi Power Company Ltd., it shall remain a party respondent in the matter. He also states that this is in terms of the judgment of the Supreme Court, liability, if any shall be of the discom formed on the unbundling of the DVB. The statement of Mr. Gulshan Chawla is taken on record. The application is disposed of by retaining DPCL."

Accordingly, it is clear that the contesting party is BSES, represented by Mr. Gulshan Chawla, Adv.

7. The issue which needs to be decided is whether the impugned orders passed by the disciplinary authority and upheld by the Appellate Authority are

justified. The charge against the petitioner as has been reproduced above reveals that the allegation against the petitioner was that petitioner while on duty has not recorded the meter reading with regard to Connection No. 173298, nor issued the ST-II and ST-VII to his MSR (D) Reporting that the meter was not read and supply was being misused and extended to other premises in violation of order dated May 29, 1982 and incurred financial loss to the undertaking.

8. A perusal of the charge reveals it has three broad allegations; (i) the petitioner did not record the reading of the meter installed against Connection NO. 173298; (ii) Connection No. 173298 sanctioned for domestic purposes was being misused for industrial / commercial purposes and the LV mains were illegally / unauthorized extended to other premises and; (iii) petitioner did not issue ST-II and ST-VII to his MSR (D), Reporting that the meter was not read and supply was being used and extended to other premises in violation of order dated May 29, 1982. In support of these charges, the employer had relied upon the following documents:

1. Joint Inspection Report dated 12.02.92 on IR No. 215305, 215306, 215307 and 215308 (Photo copies).

2. Meter Book Sheet in respect of K.No. 173298

3. Office order NO. DFO/2/225 dated 29.05.82

4. Statement of Shri K.L. Berwa, Meter Reader dated 17.09.1992.

The chargesheet was also accompanied by a list of following witnesses:

1. Shri V.K. Sharma, ASI (Int.) DESU Vig.

2. Shri. H.P. Chhikara, Inspector Zone NO. 1803 (D) NHP.

3. Shri. S.G. Bangle, Supdt. (T), Vig. DESU.

4. Shri S.S. Gupta, Inspector, Enf.-II.

5. Shri M.M. Gangaraju, VA (T) DESU, Vig.

6. Shri R.S. Chaudhry, Supdt. (T). MTD.

9. The case of the petitioner as noted from the Enquiry Report was that the Joint Inspection Report of February, 1992 does not refer to position as was prevailing in that area including at the premises A-141, Devli Extension existing in May, 1990. It was his case that the shifting of the mains and service line feeding the said connection was done sometime in 1991 which clearly asserts that there was no misuse of this connection as shifting would not have been allowed by the competent authority, had there been any misuse and illegal use / extension. It was the case of the petitioner that he objected to non-appearance of one officer, who was the custodian of the meter books, billing ledger and diary register of MSR & AFO (D) NHP and reply of the petitioner against EDP Memo dated July 2, 1993. According to the petitioner, the meter sheet was not inserted in the meter book and as such the billing was not done. In other words, had the meter sheet been inserted in the meter book, there would have been billing of at least for minimum consumption. Hence, the charge against the petitioner that with a malafide intention he did not read the meter or did not report about the misuse of the connection cannot be proved against the petitioner as the respondents have not been able to substantiate that the charged official has failed in his duty to record the meter reading or bring it to the notice of the seniors of illegal connections and

misuse of energy for commercial purposes.

10. I note, the respondents had examined the aforesaid witnesses. I would not refer to the statement of these witnesses, as I find the Enquiry Officer has read their statements to come to a finding. The findings of the Enquiry Officer in the Report are as under:

"After going through the Articles of Charges, statement of imputation and allegation, evidence of the P.ws. along with the listed documents for framing the charges, additional documents as required by the defence, alongwith the evidence of one defence witness who is the charged official in this case and also the arguments given by the P.O. and the defence, I recommend the following findings of the case.

Shri K.L. Berwa, C.O. in this case, has been charged that with malafide intention and with a view to extend undue benefit to the consumer did not record the reading of the meter against K.No. 173298 registered in the name of Shri Balbir Singh at Premises No. A-141, Devli Extn. on his reading round in the month of May, 1990. C.O. did not issue Statement II & Statement VII to his MSR (D) NHP reporting that the meter was not read and the supply was being misused and extended to other premises and thus incurring financial loss to DESU. All the five witnesses who have been produced by the Presenting Officer have fully confirmed the observations of the Joint Inspection Report which clearly states that the bill of the

connection installed at premises No. A-141, Devli Extn. was not available at the site, so R/C and K.No. could not be ascertained. Half of the seals of the meter found intact and impression of the monogram was not visible. It was further stated in the joint inspection report that the supply was being misused for commercial purpose. Illegal extension of wires found extended to back side for few residence premises and for construction work. Service lines of 1 of 10 mm2 is coming from pole existing near the DDA flats, which is 150 metre away. The joint inspection report was conducted after the investigation report was received in the Vigilance Section. Both corroborate that the C.O. did not take the reading of the meter nor did he report to M.S.R. regarding the misuse of power for commercial use and extending the wire for consumption of electricity by others which is no less a crime than the theft of electricity. As I find from the evidences both oral and documents that there was a large scale misuse and theft of electricity in the Devli Extn. area and also Sangam Vihar. The prosecution has elaborately proved that there was theft of electricity due to the complicity and in connivance between the consumer and the reading staff of DESU.

I have given adequate opportunity to the charged official to prove his contention that he could not get the meter sheet inserted in the meter reading book. He has submitted two photo copies as Ex. D/2C and D/2D but he fail to authenticate

these two documents by producing the original of them. In this connection, it ma y be stated that in these two documents he has not specifically mentioned about the K.No. of Shri Balbir Singh, on which basis the charge has been framed against him. It could have been his duty to substantiate his argument by producing the conclusive evidences, that he not only found that the meter book was not having the meter sheet but also he should have given a documentary proof that he made a report in writing to MSR and also AFO regarding the misuse of the above said connection for commercial use. On both these issues he could not produce any documentary proof of the bonafide intention on his part that he could detect the misuse of connection by the consumer and he has also made a report thereof to his superior Officer so that the consumer could have been booked to fine and other charges as per rules, so that the loss as incurred by DESU due to this irregularity could have been recovered to certain extent. The charged official has shown me the page No. 32 of Diary Register which is Ex. D.1. The entry 4391 dated 19-03-90 gives the IR No. 76709 which has been scored out and a subsequent IR N. 421257 has been written below it. The writing as well as ink are of difference from the scored one I.R. number. A doubt arises that it is a sub sequent entry and not duly authenticated. This entry does not show any movement though other entries on the same page indicate the movements. C.O. also could not give satisfactory reply when he was giving his deposition as D.W. in the Inquiry.

C.O. claims to have made a reference to AFO in June/July, 1990, citing therein that there are lot of misuse of power by the domestic user for commercial purposes and also there were lots of illegal and unscheduled connections in that area. The concerned register of diary of AFO, Section (D) NHP does not show anywhere that C.O. has made a reference to AFO (D) NHP regarding the misuse of connection for commercial use.

In view of the foregoing, as stated in the earlier paragraphs, I conclude that C.O. has not been able to prove his innocence that he was having no malafide intention in not giving the proper reading of the meter and also not reporting the matter to his senior MSR or AFO as the case may be stating that there is an extensive misuse of power by the residents of that area in Devli Extn. and Sangam Vihar. On the other hand prosecution has been able to substantiate by oral as well as listed documents the C.O. did not read the meter though the meter sheet was inserted in nor did he report the misuse of energy by the consumers in general of that area especially of one Shri Balbir Singh of A-141 Devli Extn. The charge is proved."

11. From the Report it is noted that the Enquiry Officer had relied upon the observation in the Joint Inspection Report that the bill of the Connection installed at premises No.A-141, Devli Extension was not available at the site. So RC and K. No. could not be ascertained. It was stated in the Joint

Inspection Report that the supply was being misused for commercial purpose, illegal extension of wires found extended to back side of few residence premises and for construction work. Service lines of 10 mm Square were coming from pole existing near the DDA Flats which is 150 metre away. The Enquiry Officer also gave a finding that the Joint Inspection Report was conducted after the investigation report was received in the vigilance section. He relied upon the investigation report to hold that the charged official did not take reading of the meter nor did he report to MSR regarding misuse of power for commercial purpose and extending the wire for consumption of electricity by others which is not lesser crime than the theft of electricity. He also found that there was large scale theft in that area. The Enquiry Officer referred to two photocopies produced by the petitioner as Ex.D/2C and Ex.D/2D to hold that the petitioner had not produced the original of these two documents. It appears, the petitioner had relied upon these two documents to prove his contention that he could not get the meter sheet inserted in the meter reading book. It was the case of the petitioner that these two documents did not mention about the K.No. of Balbir Singh, the consumer. The Enquiry Officer had put the onus on the petitioner to prove that meter book was not having the meter sheet. He also observed he should have given the documentary proof that he made a report in writing in MSR and also AFO regarding the misuse of the above said connection for commercial use. It was concluded by the Enquiry Officer that the petitioner did not produce any documentary proof of bona fide intention on his part that he could not detect the misuse of connection by consumer and he has also made a report to his superior officer so that the consumer could be booked. Suffice to state, the case of the petitioner primarily is, as the meter sheet was not inserted in the meter reading

book, there was no occasion for him to go to the premises concerned to record the reading and if the connection was being misused, to make appropriate complaint. The petitioner had relied upon the two documents which were basically emanating from the department. This court is of the view that such an approach of the Enquiry officer to put the onus on the petitioner to prove that meter book was not having the meter sheet, was not correct. The onus was on the respondents to prove the charge against the petitioner. The petitioner in his statement in the Enquiry Report has stated as under:

"DW1 Statement of Shri K.l. Berwa, Meter Reader

I have been working as Meter Reader in Distt. NZD. In the year may, 1990 I was posted at Distt Nehru Place as Meter Reader under the rotation scheme as duly approved by CE(E). In May, 1990, Book No.N-407 was given to me for reading. This meter book pertain to Devli Extension area. As per charge sheet allegation has been framed against me that I have not read the connection installed in premises No. A-141 in Devli Extension. I had not read this connection No. as there was no sheet inserted in the Meter Book against this connection in May, 1990. I have inspected the Meter Book and I find that sheets for the following K. Nos. have been inserted in the Meter Book, the K. Nos. are 173298, 173446, 174466, 174430, 174681 and these sheets have been inserted after joint inspection in February, 1992. In the ledger book, it may also kindly be seen that first billing of these connections have been made in September, 1992. As per procedure if the meter sheets

are inserted in a meter book but the connections are not read then provisional bill for the minimum consumption is sent to the consumer. No billing has been done in the above case before September, 1992. I have submitted a report regarding unauthorised use of connections in this area on 19-03-1990 vide IR No. 421257 and 76709, MSR diary No. 4391 dated 19- 03-1990 the entry of the same is available in the diary register, marked Ex.D.1 at page 32. In reply to the memo Ex. D.2E the reply was submitted to the Director (EDP) vide Ex.d.2, D.2B. The copies of Ex.D.2C and D.2D were also enclosed alongwith the reply. A statement regarding unauthorised use of connections was prepared by me and submitted to AFO in the month of June/July, 1990. The proof of which is available in the diary register of AFO. I have submitted a reply to AGM(A) agianst the present charge sheet, which is Ex.D.3. I have mentioned the connection No. 173298, 173446, 174466, 174430, 174681 whose sheets have been inserted in the Meter book and it is correct that the billing of these connections has been done in Sept. 1992 only. This charge sheet was received by me after five years. It is further submitted that the prosecution has submitted true copies of connection No. as Ex.S.19 & S.19A. Both these sheets are mentioned to be from meter Book No. N-407. The original meter book No. N-407 does not consist these two exhibits which are attested by PW-5, Shri V.K. Sharma. The meter book N-407 is marked Ex.D.4. It is further stated that the ink of the above five connections also

differs from the ink already used against other meter book sheets."

12. In his cross-examination, it was his categorical deposition by referring to Ex.S-18 and S-18A that the meter sheets were not inserted in the concerned meter book in respect of two connections being K. Nos. 173298 and 174005. In view of the stand of the petitioner, it was to be proved by the respondents that the meter sheets were actually inserted before 1990 and the petitioner with malafide intention had not recorded the meter reading. The Enquiry Officer did not conclude anything in that regard as is clear from the findings noted above. The petitioner is right in stating that the conclusion in the Joint Inspection Report would not reveal the position as was existing in March, 1990 as that report is of February, 1992. So the misuse of connection by the consumer could be between the year 1990-1992. The only evidence of any worth placed by the respondents which is on record is a statement of Mr. Gyan Dev Vats dated July 29, 1992, wherein he referred to a fact that proforma for meter installation with respect to the connection in question, i.e., 173298 was received from the Zonal Engineer, Zone No. 1803 dated April 10, 1989. He also stated that sheets of 10 connections mentioned in the said proforma had been added in the concerned meter book and entries in that regard have also been made in the register of the meter book. This document was produced by the respondents through one of the witnesses namely Mr. V.K. Sharma. In other words, Gyan Dev Vats was not produced in the witness box in support of his statement as in Ex.S-18.

13. At this stage, it is important to note the submissions made by the petitioner in his Appeal at pages 86-89, wherein the petitioner refers to the

statement of a clerk (in Ex.S-18) that he on receipt of sheets had added in the concerned book, by stating that it is expected that the clerk had entered the sheets of all the connections on the same day. But according to the petitioner, the sheets of those 10 connections are found at Pages 125-127 in Book No. 116, Pages 277-278 in Book No. 404 and Pages 146, 344 and 376 in Book No.

407. According to the petitioner he had done the reading of Book No. N-407 (the concerned book) and there was only one connection available at page 146 which was the last page of the Book on whose back page, he has written "as last page 146" in one ink pen is appealing. That apart, the plea of the petitioner that had the meter sheet been inserted in the meter book, there would have been billing at least for minimum consumption (which according to the respondent/employer was not done till the date joint inspection in February, 1992) is appealing. It follows, when there was no meter sheet, there was no bill prepared against the connection in question. That apart, the five prosecution witnesses have in their statements confirmed about the position of the meter in February, 1992 only. In other words, the Joint Inspection Report does not confirm the position of May, 1990. Such statements would not prove the happenings in the month of May, 1990.

14. It is not the case of the respondents that the petitioner was deputed to read the meter of Connection No. 173298. It is a conceded case that the petitioner was deputed to read the meters with regard to Meter Book No. 407 which contains various connection nos. A positive statement has been made by the petitioner that the sheet with regard to the premises in question was not in that Meter Book at time, when he took the meter reading. In the absence of relevant sheet in the Meter Book there was no occasion for the petitioner to

take the reading and consequently make any complaint with regard to the misuse by the consumer. The stand of the petitioner in reply to the show cause notice that there were other Meter Readers during the period 1989-92, who, had also failed to record the readings of this connection number as there was no meter sheet, is appealing. It must be held that no evidence has been placed by the respondents to prove the charge. The statement of Gyan Dev Vats that he had inserted the sheets with regard to 10 connections is also highly doubtful in view of my conclusion above or at least cannot be read against the petitioner, as Gyan Dev Vats was not produced in the enquiry to enable the petitioner to cross examine him. This makes the finding of the Enquiry Officer perverse. In the absence of any evidence on record to connect the petitioner to the charge, the enquiry officer's report cannot be sustained. Ordered accordingly. It is noted that the Appellate Authority while deciding the Appeal has not adverted to the grounds so pleaded by the petitioner in his Appeal. The ld. Counsel for the petitioner relied upon the judgment of the Supreme Court in the case of Directorate (Marketing) Indian Oil Corporation Lt. and Anr. (supra) wherein in Para 9, 10 and 11, the Supreme Court has held as under:

9. We have also perused the order passed by the General Manager (Operations) which is available at page 51 and the order passed by the Director (Marketing) who is the appellate authority. A close scrutiny of both the orders would only go to show that the Appellate Authority has simply adopted the language employed by the Disciplinary Authority and inflicted the punishment of dismissal on the respondent herein.

10. For the sake of convenience, we extract both the orders available at page 51-52 of the paper book:

"I have carefully gone through Shri Santosh Kumar, Emp. No. 19957, Ex-AM(Ops) Hissar Depot's appeal dated

25.3.2000 together with all papers relating to the disciplinary case initiated against him vide charge-sheet No. IR/1461/(N-113) dated 24.6.97 in the capacity of the Competent Disciplinary Authority.

I have applied my mind and I find that Shri Santosh Kumar has not brought out any point in his appeal dated 25.3.2000 which may warrant any change in the said final order passed by me as the Competent Disciplinary Authority.

The appeal of Shri Santosh Kumar is hereby forwarded to Director(M)-the Appellate Authority for his kind consideration and orders.

General Manager (Operations) I have carefully gone through Shri Santosh Kumar, Emp. No. 19957, Ex-AM(Ops) Hissar Depot's appeal dated 25.3.2000 together with all papers relating to the disciplinary case initiated against him vide charge-sheet No. IR/1461/(N-113) dated 24.6.97. Shri Santosh Kumar has preferred an appeal against the order of penalty of "Dismissal", inflicted upon him by GM(Ops.) - the Competent Disciplinary Authority vide reference No. IR/1461/(N-113) dated 30.12.1999 as a measure of disciplinary action against Shri Santosh Kumar. I have applied my mind and I find that Shri Santosh Kumar has not brought out any point which may warrant my interference with the said orders passed by the Competent Disciplinary Authority. Accordingly, I hereby reject the appeal of Shri Santosh Kumar. Let Shri Santosh Kumar be advised accordingly.

Director (Marketing)"

11. A perusal of the order passed by the Appellate Authority would only reveal the total non-application of mind by the Appellate Authority. We, therefore, have no other option except to set-aside the order passed by the Disciplinary Authority and the Appellate Authority and remit the matter for fresh disposal to the Disciplinary Authority. The Disciplinary Authority shall consider the detailed representation made by the respondent

and also consider the detailed report of the Enquiry Officer and the records placed before him in its proper perspective and decide the matter afresh on merits. The Disciplinary Authority is directed to consider the entire case only on the basis of records already on record. The respondent is not permitted to place any further material or record before the Disciplinary Authority. The order passed by the High Court is set-aside for the above reason. We also set-aside the direction issued by the High Court ordering re-instatement into service with continuity in service and all consequential benefits. The Disciplinary Authority is also directed to dispose of the matter, within three months from the date of receipt of this order, after affording an opportunity to both the parties. The Civil Appeal is disposed of accordingly. No order as to costs."

15. In so far as the judgments relied upon by Mr. Gulshan Chawla, learned counsel appearing for the respondent no.3 are concerned in National Housing Bank (supra), the Division Bench of this Court has set aside the order of the learned Single Judge. The facts were, the respondent / employee had participated in the inquiry. The evidence of each and every witness was recorded in his presence. He was given the opportunity of cross-examination. The Court also held the findings of the inquiry officer are findings of fact which cannot be interfered with in writ jurisdiction. The Court cannot re- appreciate the evidence nor practically sit as a Court of first appeal. The Court set aside the judgment of the learned Single Judge by holding that the learned Single Judge has totally misdirected himself and acted as a first appellate officer over the findings of the inquiry officer. In view of my above conclusion that the findings of the enquiry officer are perverse, this judgment would not have any applicability to the facts of this case.

16. In so far as the judgment relied upon by Mr. Chawla in the case of State of Haryana and Anr. v. Rattan Singh (supra) is concerned, the said judgment is also distinguishable on facts inasmuch as in the said case, the Supreme Court had allowed the Appeal wherein it was concerned with a case where a bus conductor was terminated for not collecting fares from certain passengers and on his guilt being established, there was simple termination of his services because of his long service and young age. The Supreme Court held, merely because the statement of passengers has not been recorded by the Inspector of the Flying Squad, the order could not be held to be invalid inasmuch as the findings of the Inspector was of some evidence which had relevance to the charge against the bus conductor. Suffice to state in the case in hand, there is no evidence on record to connect the petitioner to the charge. Being a perverse finding, the judgment has no applicability.

17. In so far as the judgment in the case of High Court of Judicature of Bombay (supra) is concerned, the Supreme Court has held that the respondent's guilt of seeking illegal gratification from the litigating party was proved despite some discrepancy in evidence due to time lag between date of complaint and recording of evidence. In the said judgment, the Supreme Court's conclusion is based on the fact that the complainant / litigant had also reported the matter to her Advocate, who ultimately reported the matter coming to the knowledge of the District Judge, which laid credibility to the statement. But in the case in hand, no inference can be drawn that the petitioner has committed the misconduct as alleged against him, in the facts of this case.

18. In so far as the judgment in the case of Apparel Export Promotion Council (supra) is concerned, the Supreme Court was concerned with the case of sexual harassment. The Supreme Court held that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authority. The Supreme Court held, once findings of fact based on appreciation of evidence are recorded, the High Court in Writ Jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. Similar is the case in hand where there is no evidence to connect the petitioner with the charge. Hence it is a case of no evidence. The said judgment is applicable to that extent.

19. In so far as the judgment in the case of Director General, RPF (supra) is concerned, the Supreme Court has set aside the initial order passed by the learned Single Judge modifying the punishment of removal by stoppage of four increments with cumulative effect without recording reasons. The Supreme Court held that the Single Judge has not recorded the reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of the charges held proved against the respondent. The Supreme Court remanded the matter back to the Division Bench to reconsider the case only on quantum of punishment. In view of my aforesaid conclusion, the judgment has no applicability.

20. In so far as the judgment in the case of the Bank of India and Anr. v. Degala Suryanarayana (supra) is concerned, the Supreme Court held the court while exercising jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of malafides or perversity, i.e., where there is no evidence to support findings or where findings are such that no man acting reasonably and with objectivity could have arrived at that findings. The Court cannot embark upon re-appreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In the case in hand, as it is my conclusion that there is no evidence to connect the petitioner with the charge, it is a perverse finding and as such the said judgment has applicability to the facts of this case to that extent.

21. In so far as the judgment in the case of K.V. Kulkarni (supra) is concerned, the Division Bench also on similar lines held that the High Court may not normally interference with factual findings unless the same are based either on no evidence or the same were wholly perverse and are legally untenable. Suffice to state, as I have held that the conclusion of the enquiry officer is perverse, the said judgment would be applicable to that extent.

22. In so far as the judgment in the case of B.C. Chaturvedi (supra) is concerned, the Supreme Court held that the disciplinary authority is the sole judge of facts. Where the appeal is presented, the appellate authority has co- extensive power to re-appreciate the evidence or the nature of punishment. It also held that if the conclusion upon consideration of evidence reached by the disciplinary authority is perverse and suffers from apparent error on the face

of the record or based on no evidence at all, a writ of certiorari could be issued. Hence, in that view of the matter and my conclusion above is that the finding of the enquiry officer is perverse, the judgment to that extent is applicable. Consequently, the orders dated May 23, 1996 and January 31, 1997 are set aside. The petitioner is entitled to reinstatement, if not attained the age of superannuation with 50% back wages with all consequential benefits. If he has attained the age of superannuation, he shall be entitled to 50% back wages till the date of superannuation and thereafter shall be entitled to full pensionary benefits in accordance with Rules. The payment be made within two months, otherwise the petitioner shall be entitled to 9% interest on the amounts. Petition stands disposed of. No costs.

V. KAMESWAR RAO, J DECEMBER 15, 2017/jg