R.K.Bhatia vs Chairman & M.D. Delhi Power ...
2017 Latest Caselaw 2991 Del

                   IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Judgment reserved on: April 18, 2017
                                             Judgment delivered on: July 04, 2017

+       W.P.(C) 3944/2002, CM Nos.6699/2002, 8654/2006 & 3838/2010

        R.K.BHATIA                                                     ..... Petitioner
                                       Through:     Mr. Anil Mittal, Adv. with
                                                    Ms. Komal Aggarwal, Adv.
                          Versus

        CHAIRMAN & M.D. DELHI POWER COMPANY LTD.
        & ANR                                            ..... Respondents
                               Through: Mr. Sandeep Prabhakar, Adv. with
                                        Mr. Vikas Mehta, Adv. for BRPL.

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

V. KAMESWAR RAO, J

1. The present petition has been filed by the petitioner inter alia challenging the

orders dated December 21, 1999, March 10, 2000 and June 8, 2002 whereby the

petitioner has been imposed a penalty of reduction by five stages in his time scale of pay

for a period of five years with further stipulation that he will not earn increments of pay

during the period of reduction and that on expiry of this period, the reduction will have

the effect of postponing his future increments. Vide orders dated March 10, 2000 and

June 8, 2002, the appeal filed by the petitioner against the order dated December 21,

1999 and review thereof were rejected.

2. The facts are that the petitioner was appointed as Meter Reader in the erstwhile

DESU (later known as DVB) on August 19, 1974. On November 11, 1991, a charge-

sheet was issued wherein it was inter alia alleged that the petitioner who was deputed to

record readings of the meters of consumers in Mayur Vihar, Phase - II, he with mala

fide intention did not record the readings properly and did not issue requisite statements

in terms of instructions issued vide letter dated January 29, 1982, in respect of different

connection numbers including connection No. 604/131028. It is stated that on February

25, 1992, the respondents had issued another charge sheet with an allegation that the

petitioner during the year 1991, while working as meter reader in District Mayur Vihar,

with mala fide intention in disregard to office order dated May 29, 1982 did not issue

Statement-III in respect of the defective/ stopped meter No. E-6067551 installed against

connection No. 604/131028. It is suffice to state that the charge sheet dated February

25, 1992, culminated in a report dated July 21, 1997 of the inquiry officer, wherein the

inquiry officer has held the charge framed against the petitioner as 'proved'. Pursuant to

the inquiry officer's report, it was proposed to impose a penalty of reduction by five

stages the time scale of pay for a period of five years with stipulation that he shall not

earn increments of pay during the period of reduction. Against the said show cause

notice, the petitioner initially made a representation dated September 28, 1999, wherein

he sought certain documents so as to enable him to file a suitable reply. The aforesaid

representation was followed by another representation dated October 26, 1999. Suffice

it to state, it is not the case of the petitioner in his aforesaid representations that the

allegation in charge sheet dated February 25, 1992 was the charge in an earlier charge

sheet dated November 11, 1991. After considering the representations made by the

petitioner, the Disciplinary Authority i.e. Additional General Manager (A) vide order

dated December 15, 1999 imposed the penalty of reduction by five stages in time scale

of pay for a period of five years with further stipulation that he will not earn increments

of pay during the period of reduction and that on expiry of this period, the reduction will

have the effect of postponing his future increments. Against this order, the petitioner

filed an appeal before the Appellate Authority. The petitioner has not enclosed

alongwith the writ petition copy of the appeal filed by the petitioner with the Appellate

Authority. In the absence of the same, it is difficult to decipher as to whether the

petitioner has taken a plea that the charge in the charge sheet dated February 25, 1992

was subject matter of charge in the charge sheet dated November 11, 1991. There is no

averment in the writ petition that the petitioner in his appeal dated January 5, 2000 has

taken a plea that the charge in the charge sheet dated February 25, 1992 was a charge in

the charge sheet dated November 11, 1991. The appeal of the petitioner was dismissed

on March 10, 2000. Subsequently, on December 3, 2001, the charge sheet dated

November 11, 1991 happened to be decided by the Additional General Manager (A)

whereby the Disciplinary Authority on consideration of the inquiry report wherein the

charge against the petitioner was held 'not proved', dropped the charge sheet dated

November 11, 1991. This made the petitioner to file a review petition dated December

18, 2001 against the order dated March 10, 2000 passed by the Appellate Authority

dismissing the appeal of the petitioner against the order of the Disciplinary Authority

dated December 21, 1999 in charge sheet dated February 25, 1992. Even though, the

review petition has not been placed on record, I note from the order of the Reviewing

Authority dated June 8, 2002, the charge in the charge sheet dated February 25, 1992

was a charge in the charge sheet dated November 11, 1991. Suffice to state that the

Reviewing Authority dismissed the review petition with a finding that there is no link

between the two cases. It is in the aforesaid background, the present petition has been

filed. A counter affidavit has been filed by the respondents and I intend to deal with the

stand of the respondents while noting the submissions made by the learned counsel for

the respondents.

3. It is the submission of Mr. Anil Mittal, learned counsel for the petitioner that the

issuance of charge sheet dated February 25, 1992 on the same charge which is subject

matter of earlier charge sheet dated November 11, 1991 is without jurisdiction and void

ab initio. He states that it is settled principle of law that no person can be punished

twice for the same charge, more particularly without withdrawing the earlier charge

sheet. It is his submission that in the first charge sheet dated November 11, 1991, the

inquiry officer after conducting a detailed inquiry gave a finding that the department has

failed to produce MSR - 15 Register, which if produced, could have thrown light on the

real position. According to Mr. Mittal, there is also a finding that in view of office order

dated November 6, 1989, there was no need to issue Statement - III as the said office

order has superseded earlier office order dated May 25, 1982 but still the petitioner had

issued Statement by abundant caution. Mr. Mittal would state that the inquiry officer in

the second charge sheet dated February 25, 1992, after holding a sketchy inquiry by

examining two witnesses in which one of the witnesses, namely, Sh. Ram Avtar was

common, without examining the office order dated November 6, 1989 gave a finding of

charge 'proved'. He would rely upon the judgment in the case reported as 2014 (140)

DRJ - 267, B.S. Chowdhary versus Delhi Financial Corp.

4. On the other hand, Mr. Sandeep Prabhakar, learned counsel for the respondents,

Delhi Power Company Limited, which was allowed to be impleaded because of the

unbundling of Delhi Vidyut Board would submit that the only basis for filing the writ

petition is the dropping of charges in charge sheet dated November 11, 1991, vide order

dated December 3, 2001. He states that the writ petition is not based on the ground that

the second charge sheet dated February 25, 1992 was not proper. According to him, as

per settled law, such writ petition challenging the second charge sheet should have to be

filed within three years of the issuance of the charge sheet. The objection regarding

second charge sheet was only made vide review application dated December 18, 2001

after the dropping of charges in the first chargesheet vide order dated December 3,

2001. He also states that even assuming that a right had accrued to the petitioner to

challenge the second charge sheet dated February 25, 1992, no such objection/

challenge was ever taken/ made either before the respondent or before the inquiry

officer or any representation made before any authority or any writ petition filed before

this Court within three years from the issuance of charge sheet dated February 25, 1992.

He would rely upon the judgments of the Supreme Court reported as: (a) AIR 1964 SC

1006, State of Madhya Pradesh & Another versus Bhailal Bhai & Others and (b)

(2011) 3 SCC 436, State of Orissa versus Mamata Mohanty. He seeks the dismissal of

the writ petition.

5. Having heard the learned counsel for the parties and perused the synopsis filed by

them, there is no dispute in so far as the facts are concerned. Concedingly, a charge

sheet was issued on November 11, 1991 which incorporates a charge with regard to

connection No. 604/131028; the second charge sheet dated February 25, 1992 also

incorporates the said charge. It so happened that the second charge sheet wherein the

inquiry officer, proved the charge, was decided earlier to charge sheet dated November

11, 1991. Pursuant to the show-cause notice, the Disciplinary Authority vide order

dated December 21, 1999 imposed a penalty, which order has been confirmed by the

Appellate Authority as well. It was only after the Appellate Authority had rejected the

appeal and the inquiry officer's report against the first charge sheet had a finding that

the charge has not been proved, petitioner woke up to contend for the first time that the

subject matter of the second charge sheet dated February 25, 1992 was a subject matter

of the first charge sheet dated November 11, 1991. Much water has flown, in as much

as, there is a finding against the petitioner that he has committed misconduct. I agree

with the submission of Mr. Sandeep Prabhakar, learned counsel for the respondents that

the petitioner has never challenged the issuance of the second charge sheet either before

the inquiry officer or before the Disciplinary Authority, in fact, the petitioner proceeds

on the premise that the charges in the first charge sheet dated November 11, 1991 and

the second charge sheet dated February 25, 1992 are different. Be that as it may, in the

absence of any challenge to the second charge sheet before the inquiry officer and the

Disciplinary Authority, the inquiry officer rightly proceeded with the charge sheet dated

February 25, 1992 and gave his findings in his report dated July 21, 1997. Subsequent

thereto, if a plea is raised, the same would be unsustainable as in terms of the second

charge sheet a penalty has been imposed vide order dated December 21, 1999. The

effect thereof would be that the first charge sheet November 11, 1991 would cease to

exist. In fact, the Disciplinary Authority should not have gone ahead with that charge

sheet. The given facts would demonstrate that the penalty imposed on December 12,

1999 cannot be held to be bad on the ground now pleaded by Mr. Anil Mittal. The plea

of Mr. Mittal that the second charge sheet dated February 25, 1992 issued to the

petitioner could not have been issued assuming to be correct, but the same was not

challenged by the petitioner till the filing of the review petition on December 19, 2001,

that is, almost nine years after the issuance of charge sheet dated February 25, 1992.

Hence, the challenge to the impugned orders is unsustainable. In so far as the

submission of Mr. Mittal on the merit of the charge is concerned, the inquiry officer has

given the following findings:

"After going through the Listed Documents, Addl Documents, depositions made by the PWs, Written Brief of the PO and the Defence Arguments submitted by the CO, I find that the charge against Sh. Bhatia is that as a meter reader, he with a malafide intention and utter disregard of the office order dated 29.5.82 did not issue Statement - III in respect of defective/ stopped meter No. E- 6067551 installed against K. No. 604-131.28 registered in the made of Shri Ram Saran Dass resident of 108-D, Pocket-C, Mayur Vihar, Phase- II. Shri Bhatia took the reading of the said meter twice i.e. on 7.1.91 and 2.5.91 and on the first occasion the reading show as 2840 and the previous reading was also on 6.9.90 showing the reading as 2840 and a remark given by the previous meter reader as „Direct‟. According to the statement of imputation and the charge, Shri Bhatia was required to issue Statement - III when he made his reading on

7.1.91.

On the second occasion when he went for meter reading on 2.5.91, he saw the premises locked and gave the remarks as „PL‟. This shows that Shri Bhatia did not take appropriate action in issuing the statement - III when he was required to be so under the office under at Ex-D-1. In his pre-recorded statement before the Vigilance, Shri Bhatia has stated that as the remarks given by the previous meter reader in the month of Sept. 90 he did not issue Statement - III when he visited the premises for reading the meter in Jan. 1991. This plea given by Shri Bhatia, CO both in his Defence Statement as well as in his arguments does not hold good. It is the duty of the Meter Reader as point out any deficiency found in the meter reading to the higher officer, MSR in this case so that the action against the direct consumption of the electricity by the consumer could have been stopped and the alleged loss of revenue to the Undertaking could have been averted.

From the statement given by Shri Karan Singh, another CO in this case, it appears that Shri Bhatia did not report about the stopped/ burnt meter or did not issue the Statement-III and as such Shri Karan Singh was not aware that some irregularity was going on at premises no. 108-D, Pocket-C, Mayur Vihar, Phase -II. Attention may also be invited to Ex-S-5 which is an IR given by the Jr. Clerk and duly signed by the Asstt. Engineer on 4.9.91 marked to VO [G] in that exhibit. There is an over writing in the year of the complaint made by the consumer at Sl. No. 270 of the complaint register. It appears that tampering has been done in the year and a separate investigation may be contemplated.

In totality there is an emission and commission on the part of Shri R.K. Bhatia in not reporting relating to the stopped / burnt meter

and also not issuing the Statement - III as he was so required. I, therefore, hold that the charge against Shri R.K. Bhatia has been proved."

6. Even though, Mr. Mittal has tried to draw a comparison in the findings of the

inquiry officer's report dated July 21, 1997 (second charge sheet) and dated nil, Page 83

to 85 of the paper book (first charge sheet), he could not draw my attention to the office

order dated November 6, 1989 to show that the said order had superseded the office

order dated September 25, 1982 and there was no requirement for submitting a

statement in respect of defective / stopped meters. I may note here that the Reviewing

Authority in its order dated June 8, 2002 did comment that there is no link between the

two cases. I may state here that it is not the case of Mr. Prabhakar that the subject matter

of the charge sheet dated February 25, 1992 was not the subject matter of the charge

sheet dated November 11, 1991. Such an observation may not be a correct observation.

Be that as it may, it would be quite late in the day for this Court to remand the matter

back to the Reviewing Authority, more so, as I have already concluded that the

challenge in the writ petition to the aforesaid three orders being December 12, 1999,

March 8, 2000 and June 8, 2002 is unsustainable. In so far as the judgment relied upon

by Mr. Anil Mittal in the case of B.S. Chowdhary (Supra) is concerned, the same is not

applicable in the peculiar facts of this case.

7. The writ petition is dismissed. No orders as to costs.

CM No. 3838/2010 (under Order 1 Rule 10 CPC for impleadment of BSES Rajdhani Power Ltd.)

In view of the order dated July 24, 2002 and March 19, 2010, the application does

not survive for consideration being infructuous. Ordered accordingly.

CM Nos. 6699/2002 (for stay) & 8654/2006 (for release of benefits to the petitioner)

In view of the fact that the writ petition has been dismissed, the applications are

dismissed.

V. KAMESWAR RAO, J JULY 04, 2017/jg