Delhi High Court
Dharam Pal vs Chairman Cum Managing Director ... on 17 January, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: January 17, 2018
+ W.P.(C) 11793/2016 & CM 46497/2016
DHARAM PAL ..... Petitioner
Through: Ms. Kiran Singh, Advocate
versus
CHAIRMAN CUM MANAGING DIRECTOR AIR INDIA AND
ANR ..... Respondents
Through: Ms. Suruchi Suri, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned order of 10th November, 2016 (Annexure P-1 colly.)
directs holding of de novo inquiry against petitioner, who is Assistant
Manager-Commercial with respondent-Air India while invoking
Regulation 106 of Air India Employees' Service Regulations.
Consequential order of 7th December, 2016 directing initiation of de novo
inquiry is also under challenge.
2. The charge against petitioner was of reissuing a ticket on SIN-
DEL-SIN Sector by misusing the sign-in code of Ms. Tarminder Kaur.
On the said charge, petitioner was departmentally tried and was
exonerated by Disciplinary Authority. Again on the same very charge, de
novo inquiry has been ordered by Reviewing Authority while noting that
the Investigating Officer from the vigilance department, material witness-
Ms.Tarwinder Kaur, log book entries showing petitioner using sign-in
code of Ms.Tarwinder Kaur were not placed before Inquiry Officer and
that witnesses i.e. MW-1, MW-2 & MW-3 had deposed during inquiry
that their sign-in code was used by petitioner.
3. While entertaining this petition, vide order of 16th December, 2016,
impugned order was stayed as it was hit by the doctrine of double
jeopardy.
4. At the hearing, learned counsel for petitioner places reliance upon
Supreme Court's decisions in Union of India v. K.D. Pandey and Another
(2002) 10 SCC 471 and Union of India and Anr. v. Purushottam,
rendered on 5th January, 2015 to submit that no one can be punished twice
for the same misconduct and a departmental inquiry cannot be allowed to
be initiated afresh as it would amount to abuse of the process of law.
5. Learned counsel for respondents supports impugned order and
submits that on a vigilance report, de novo inquiry has been ordered and
there are good reasons for doing so. It is submitted by learned counsel for
respondents that petitioner's exoneration was never conveyed to
petitioner and so, it would amount to continuation of the same inquiry
and thus, impugned order would not be hit by principles of double
jeopardy and the decisions cited by petitioner's counsel do not apply to
the facts of instant case.
6. Upon hearing and on perusal of impugned order, material on record
and the decisions cited, I find that the charge against petitioner was of re-
issuing of ticket entailing some monetary loss and the witness whose
sign-in code was allegedly misused by petitioner has not been produced
in evidence. No reason for not producing the said material witness is
forthcoming. It is not the case of respondents that the said witness is now
available. There is no explanation as to why Investigating Officer from
vigilance department was not produced. Even the log book entries were
not produced before the Inquiry Officer.
7. As regards the remaining witnesses i.e. MW-1, MW-2 and MW-3,
I find that they have merely deposed that their sign-in code was used by
petitioner either on the ground of guiding them or for issuance of an
EMD for change of date. Even now respondents do not have clinching
evidence to justify initiation of de novo inquiry, which is otherwise not
permissible by recourse to Regulation 106 of Air India Employees'
Service Regulations, which is reproduced hereunder for ready reference:-
"An authority higher than the Appellate Authority
notified under Regulation 102 may review a case at any stage
either on his own motion or on the application of the
employee concerned on grounds of material irregularity and
vary the punishment awarded in any manner within his
competence. The Reviewing authority may also exercise his
power to review a case upon production of new facts either
by the Competent Authority or by the employee, provided
these facts were not within the knowledge of the Competent
Authority or the employee (as the case may be) during the
enquiry proceedings). When the Reviewing Authority
proposes to enhance the punishment, a show cause notice
shall be issued asking the employee to show cause as to why
the punishment should not be enhanced in the manner
proposed. The employee shall be allowed a reasonable
period within which his explanation should reach the
Reviewing Authority. The explanation, if received within the
specified period, shall be taken into consideration before
final orders are passed by the Reviewing Authority."
8. A bare reading of aforesaid Regulation reveals that by recourse to
said Regulation, de novo inquiry cannot be ordered. Simply because the
fact of petitioner's exoneration in the Inquiry earlier held was not
conveyed to petitioner, would not mean that the same Inquiry is
continuing. It would be perverse to opine so. Even otherwise, by no
stretch of imagination, de novo inquiry can be justified by labeling it to be
a further inquiry.
9. In the considered opinion of this Court, impugned de novo inquiry
is hit by principles of double jeopardy. As a result thereof, impugned
order cannot be sustained and it is accordingly set aside.
10. This petition and the application are accordingly disposed of.
(SUNIL GAUR)
JUDGE
JANUARY 17, 2018
s
