C.S. Nanda vs Dvb & Anr.
2017 Latest Caselaw 6362 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of Decision: November 13, 2017

+                            W.P.(C) 3841/2002
       C.S. NANDA                                         ..... Petitioner
                             Through:     Ms. Rekha Dwivedi, Advocate
                    versus

       DVB & ANR.                                          .....Respondents
                             Through: Mr. Sandeep Prabhakar and Mr.
                             Vikas Mehta, Advocates for respondent-BSES
                             RPL
       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR

                             JUDGMENT

(ORAL)

1. Petitioner, a Meter Reading Inspector, was departmentally tried for not maintaining any seniority and disconnecting large number of electric connections of the defaulters on pick and choose basis and the Inquiry Officer exonerated petitioner of the charges vide order of 26th September, 2000 (Annexure-H). However, the Disciplinary Authority had recorded a „Disagreement Note‟ (Annexure-I) and had proceeded to impose penalty of „reduction by three stages in his present time scale of pay for a period of three years with further stipulation that he will not earn any increment of pay during the period of reduction and on the expiry of this period, the reduction will have the effect of postponing his future increment of pay‟.

2. Petitioner's appeal against the Disciplinary Authority's order of 23rd January, 2001 (Annexure-C) was dismissed by Appellate Authority vide order of 10th September, 2001 (Annexure-B) and the review preferred by petitioner was also dismissed by the Reviewing Authority vide order of 15th February, 2002 (Annexure-A).

3. In this petition, quashing of orders of Disciplinary Authority, Appellate Authority as well as the Reviewing Authority is sought by petitioner's counsel by submitting that the 'Disagreement Note‟ of the Disciplinary Authority is mere reproduction of the charges framed and the evidence led and that there is no application of mind by the Disciplinary Authority and so, order of the Disciplinary Authority, Appellate Authority as well as Reviewing Authority needs to be quashed and the penalty imposed upon petitioner be also set aside. In this regard, attention of this Court is drawn to Inquiry Officer's Report (Annexure-H) to point out that the findings returned by the Inquiry Officer are in conformity with the evidence led and fully supported by the oral as well as documentary evidence.

4. Attention of this Court is also drawn by petitioner's counsel to the findings returned by the Inquiry Officer at pages 62-67 of the paper-book, to submit that there was lack of evidence to prove the charges against petitioner and this aspect has not been considered by the Disciplinary Authority as well as the Appellate Authority. It is pointed out by petitioner's counsel that the major lacuna in the case set up against

petitioner was highlighted in the Reply (Annexure-J) to the „Disagreement Note‟ which has not been considered by the Disciplinary Authority, which renders the order of the Disciplinary Authority illegal. So, it is submitted that the impugned orders of the Disciplinary Authority, Appellate Authority as well as Reviewing Authority suffer from non- application of mind as they do not take into consideration that the genesis of the complaint no longer survives as the complainant had withdrawn his complaint. So, it is submitted that impugned orders deserve to be set aside. To submit that non-application of mind by the Disciplinary Authorities is sufficient to warrant setting aside of penalty, petitioner's counsel relies upon a recent decision of Supreme Court in Allahabad Bank and Others v. Krishna Narayan Tewari, AIR 2017 SC 330.

5. It is also submitted by petitioner's counsel that the Inquiry Officer had rightly found that the allegations levelled against petitioner could not be substantiated and so, it is urged by petitioner's counsel that the findings of the Inquiry Officer ought to be restored and the findings returned by the Disciplinary Authority, Appellate Authority as well as Reviewing Authority ought to be set aside.

6. On the contrary, learned counsel for respondents supports the impugned orders and submits that the parameters governing exercise of power of judicial review are confined to the scrutiny as to whether the disciplinary action violates the principles of natural justice or statutory regulations and whether the order imposing penalty is mala fide, based on

extraneous considerations or capricious. It is pointed out that while exercising the power of judicial review, the Court would not scrutinize as to whether the Disciplinary Authority had discussed the materials in detail and has contested the conclusion of the Inquiry Officer, as appreciation of evidence is within the domain of the Appellate and Revisional Forum, who have found the penalty imposed upon petitioner to be commensurate with the mis-conduct committed. Thus, it is submitted that this petition deserves dismissal.

7. Upon hearing both the sides at length and on perusal of impugned orders, material on record and the decisions cited, I find that the scope of power of judicial review needs to be kept in view before proceeding further. The parameters governing the exercise of power of judicial review, as reiterated by Supreme Court in Royal Medical Trust and Another v. Union of India and Another, 2017 SCC OnLine SC 1076, are as under: -

"Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-

appreciation of the materials brought on record which is the duty of the appellate court is not permissible.

The duty of the Court in exercise of the power of judicial review to zealously guard the human rights, fundamental rights and the citizens‟ right of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds."

8. While applying the aforesaid parameters to the facts of the instant case, I find that the Inquiry Officer in holding that the charges are not proved has taken a very narrow view and has been influenced by the fact the complainant had retracted from the complaint made by him. Whereas the Disciplinary Authority has rightly considered the broad prospectus of the case set up against petitioner to conclude that merely because the complainant had not supported the case set up against the petitioner would not be sufficient to give clean chit to petitioner because there was vigilance investigation and the Disciplinary Authority has given the facts and figures to conclude that the charges framed against petitioner stood proved.

9. No doubt, Supreme Court in Allahabad Bank (supra) has reiterated that non-application of mind would be a ground to set aside the orders of the Disciplinary Authorities, but in the instant case, I do not find any non- application of mind by the Disciplinary Authority, Appellate Authority or the Revisional Authority. In the opinion of this Court, there is proper

application of mind by the Disciplinary Authority, Appellate Authority as well as Revisional Authority. I find that Appellate Authority and the Revisional Authority has rightly upheld the order of the Disciplinary Authority, which is supported with the reasons. The findings of the Inquiry Officer, as highlighted by petitioner's counsel, does not clinch the issue in hand.

10. The „Disagreement Note‟ of 27th November, 2000, when considered in light of petitioner's reply, does not justify a view contrary to that of the Disciplinary Authority. Otherwise also, in view of the dictum of Supreme Court in The High Court of Judicature at Bombay v. Shashikant S. Patil and Another, AIR 2000 SC 22 and G.M.(Operations) S.B.I. & Anr. v. R. Periyasamy, 2014 (13) SCALE 718 and a recent decision of Supreme Court in Royal Medical Trust (supra), it is not within the domain of this Court to examine as to whether the Disciplinary Authority had considered the matter in detail and had contested the conclusion of the Inquiry Officer or not. The yardstick to judge the legality of the orders passed in disciplinary matters is to see as to whether the principles of natural justice or statutory regulations are violated or not. It is also required to be seen whether the orders of the Disciplinary Authority are arbitrary, capricious, mala fide or based on extraneous consideration.

11. On a close scrutiny of the impugned orders, I have no hesitation to conclude that the impugned orders neither violate the principles of natural

justice or statutory regulations nor are arbitrary, capricious or mala fide. It is neither said nor alleged that there were extraneous considerations in passing the impugned orders. Hence, finding no infirmity or illegality in the impugned orders, this petition is dismissed while leaving the parties to bear their own costs.

(SUNIL GAUR) JUDGE NOVEMBER 13, 2017 s