Sunil Kumar Saxena vs Export Inspection Council & Ors
2019 Latest Caselaw 2106 Del

$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Reserved on:        21.02.2019
                                       Pronounced on:      22.04.2019

+      W.P.(C) 8335/2017
       SUNIL KUMAR SAXENA                                  ..... Petitioner
                           Through     Mr.Parveen Kumar, Adv.

                           versus

       EXPORT INSPECTION COUNCIL & ORS         ..... Respondents
                    Through  Mr.L.R. Khatana, Adv. for R-1 to 4.
                             Mr.Rakesh Kumar, CGSC for UOI.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                              JUDGMENT

1. Vide the present petition, the petitioner has made following prayers:

(I) Quash the illegal, arbitrary & shockingly prejudice punishment

order dated 02.11.2015 (Annexure P-1) of removal of the petitioner

from the service.

(II) Quash the illegal, arbitrary & shockingly prejudice punishment

order dated 14.02.2017 dismissing the appeal and imposing

punishment of Compulsory Retirement (Annexure P-2).

(III) Issue order for back wages with all consequential benefits

entitled being on regular duty with 12% interest w.e.f. 02.11.2015.

(IV) Declare the malafide suspension w.e.f. 29.10.2012 and

thereafter continuous suspension of the petitioner beyond three

months, illegal and order to make full payment of all consequential

benefits with 12 % interest.

2. The brief facts of the case are that the respondent no.2 appointed the

petitioner on 25.01.1980 for the post of Peon. On 26.02.2012, an incident

happened at the petitioner's office which involved a minor scuffle between

a) Shri Deepak Shekhar and b) Shri Praveen Sakhuja. On 29.10.2012, a

suspension order was received by the petitioner citing the ongoing

disciplinary proceedings and till the punishment order of removal from

service dated 02.01.2015 was received by the petitioner, his suspension was

neither reviewed or revoked. Respondent no.2 had summoned the petitioner

as witness in the inquiry against the attacker Shri Praveen Sakhuja,

dismissing him in September 2012 and in October 2012, the petitioner was

suspended from service for conspiring and connivance with the attacker.

3. Learned counsel appearing on behalf of the petitioner submitted that

Deepak Shekhar (victim) arrived in the office around 7 pm, without the

knowledge of the petitioner. Shri Praveen Sakhuja (attacker; physically

handicapped) confronted and asked him to make an entry in the Visitor's

Register which led to an argument and a scuffle between the two.

4. Respondent no.2 served suspension order dated 29.10.2012 to the

petitioner, citing the disciplinary proceedings against him. On 08.01.2013,

the petitioner was summoned for recording his statement regarding the

incident on 22.02.2012 and the same was recorded which is marked as

Annexure P-17. Manoj Kumar (Assistant Director) summoned for recording

his statement, in which he admitted that he got a call from Deepak Shekhar

that he will visit office, but he did not know the exact timing of coming and

he had not shared the same with anybody in the office.

5. Learned counsel further submitted that respondent no.2 dismissed

Praveen Sakhuja vide punishment order dated 25.09.2013, but there was no

mention about the apparent conspiracy between the petitioner and Praveen

Sakhuja. The said respondent prepared charge sheet dated 30.10.2012

without providing statement of Shri Manoj Kumar Gupta, AD and charged

the petitioner of conspiring a plan against the victim. As corroborative

evidence, mute CCTV footage was cited in which the petitioner keeps

looking as a mute spectator and does not intervene, according to respondent

no.2. The said respondent withheld most of the prosecution documentation

and list of the witnesses and without providing the same to the petitioner, he

was asked to submit his defence within 10 days. After formal

representations, some documents were given but respondent no.2 stated that

the statement of Manoj Kumar Gupta will be made available to the

petitioner only 3 days in advance. The petitioner filed his reply to the

charge sheet on 02.01.2014. Thereafter respondent no.2 appointed Shri

Rajiv Raizada, Additional Director as Inquiry officer and Pramod Siwach as

Presiding Officer. Later on, respondent no.2 replaced Rajiv Raizada on the

ground of his retirement while appointing another retired officer of more

than 70 years of age namely Inder Singh as Inquiry Officer to which the

petitioner continuously protested vide many representations as it flouted

Rule 11(2) of the Rules 1978. On 18.05.2015, regular inquiry commenced

wherein Deepak Shekhar (victim) appeared as prosecution witness SW-1

and confirmed that he entered office without making entry in visitor's

register and admitted that the petitioner never misbehaved with him. Manoj

Kumar Gupta was examined as SW-2 and in his statement, there was no

mention of the involvement of the petitioner.

6. Learned counsel for the petitioner further submits that on 15.06.2015,

the petitioner was examined in person and the IO turned down the

petitioner's request to examine Manoj Kumar Gupta as defence witness

citing that the Charged Officer did not ask for defence documents within

specified time. However, the Presiding Officer submitted his brief dated

22.06.2017 wherein he prescribed that the petitioner actively conspired and

connived with Shri Praveen Sakhuja. The respondent office served the

petitioner letter dated 05.08.2015 along with the inquiry officer's findings

wherein charges were proved against the petitioner. Accordingly, the

petitioner submitted his comments and after considering the same,

punishment of removal was imposed upon the petitioner vide order dated

02.11.2015. He submitted his appeal dated 17.12.2015 and the same was

disposed of on 14.02.2017 by the appellate authority by modifying the

punishment from removal to compulsory retirement.

7. It is argued that respondent no.2 suspended the petitioner without

citing reason, however, citing just the ongoing disciplinary proceedings and

did not review the suspension order till the final termination order dated

02.11.2015. Respondent no.2 neither reviewed nor prescribed the

misconduct of the petitioner within three months, thereby flouting Rule 10

of CCS Rules, 1965.

8. It is further submitted that the CCTV footage on the basis of which

the petitioner was suspended, respondent no.2 cited that the petitioner was

looking at the incident like a mute spectator, cannot be considered as

evidence as the footage was mute and the respondents fraudulently

concocted emotions on basis of which action was taken against the

petitioner, whereas no specific incident/act of planning and conspiracy were

seen on the CCTV video to support the incident. Moreover, the charge-sheet

is not based on legally recognized evidence and unfit for use in subsequent

references. Respondent no.2 placed himself in the Disciplinary Authority to

apply coercion to mould the inquiry in a pre-planned manner and respondent

no.2, on receiving objection from the petitioner regarding illegal

appointment of Inquiry Authority by order dated 05.03.2015, cut the

subsistence allowance of the petitioner by 50%.

9. It is further submitted that the Export Inspection Agency Employee

Rules 1978 prescribed appointment of public servant as Inquiry Authority

whereas Shri Inder Singh, appointed by respondent no.2 is a retired officer

of more than 70 years, resulting in a biased, illegal inquiry. Thus the present

petition deserves to be allowed.

10. On the other hand, learned counsel for the respondents submits that

Shri Praveen Sakhuja (attacker) filed a similar W.P.(C) 1156/2016 on

similar grounds and with a similar prayer, which was dismissed by this

Court on 11.08.2016 and cost of ₹ 7,000/- was imposed upon the petitioner

therein.

11. He further submits that the petitioner has sought to challenge the

authority of the inquiry officer at this belated stage though the said objection

was turned down at the initial stage itself and the petitioner had continued to

participate in the departmental inquiry. The appointment of the Inquiry

Officer was made in accordance with the provisions of law and Shri Praveen

Sakhuja had also in a similar manner challenged the same in another writ

petition being W.P.(C) 6148/2012 but when this court was not inclined to

issue notice in the writ petition, he withdrew the same and disciplinary

proceedings were concluded by the same IO.

12. He further submitted that Shri Deepak Shekhar (victim) was the

former In-charge (Head) of the Export Inspection Agency (EIA) and the

petitioner or Praveen Sakhuja had no authority to question his visit to said

agency, which in fact, was with prior intimation to a senior officer of the

agency, namely; Manoj Kumar Gupta (A.D.).

13. Moreover, the relevant documents were supplied to the petitioner in

accordance with the law by giving proper hearing and the petitioner

participated through the departmental proceedings, therefore, there is no

issue left which can be raised by the petitioner. He submits that a detailed

removal order dated 02.11.2015 has been passed by the disciplinary

authority whereby the petitioner was removed from service. Thereafter in

order dated 14.02.2017 passed by the appellate authority, his removal order

was modified and imposed penalty of compulsory retirement.

14. Learned counsel further submits that when the disciplinary authority

and the appellate authority have considered the case of the petitioner in

length, this Court should not interfere with the orders passed by the

respondents. Thus the present petition deserves to be dismissed.

15. I have heard learned counsel for the parties and perused the material

available on record.

16. Regarding the suspension order dated 29.10.2012 which continued

beyond three months. The petitioner did not challenge the said order before

this court and continued participating in the disciplinary proceedings which

was finally concluded vide punishment order dated 02.11.2015 whereby the

petitioner was removed from service. Challenging the suspension order at

this stage is belated and hit by delay and latches. Moreover, the said order

has been merged in final order dated 02.11.2015.

17. On the issue of appointment of the inquiry officer, who is a retired

officer and is more than 70 years of age. In the rule, it is stated that the

person should not be more than 70 years of age but if the person is in a

sound mind and having good health, there is no embargo that such person

cannot be appointed as inquiry officer. Moreover, on this issue also, the

petitioner did not come before the court at the appropriate stage, therefore,

on this issue also, the petition is hit by delay and latches.

18. In case of Baikuntha Nath Das vs. Chief District Medical Officer:

(1992) 2 SCC 299 whereby the Hon'ble Supreme Court has held that an

order of compulsory retirement is not a punishment. It implies no stigma nor

any suggestion of misbehaviour. The principles of natural justice have no

place in the context of an order of compulsory retirement. This does not

mean that judicial scrutiny is excluded altogether. The Court would not

examine the matter as an appellate court, it may interfere if satisfied that the

order is passed mala fide or that it is based on no evidence or it is arbitrary

in the sense that no reasonable person would form the requisite opinion on

the given material; in short, if it is found to be a perverse order.

19. In case of Sub-Divisional Officer, Konch vs. Maharaj Singh: 2003

(9) SCC 191 whereby the Supreme Court has held that the jurisdiction of the

High Court under Article 226 is a supervisory one and not an appellate one,

and as such the Court would not be justified in reappreciating the evidence

adduced in a disciplinary proceeding to alter the findings of the enquiring

authority.

20. In case of Union of India and Ors. Vs. P. Chandra Mouli and Ors.:

2003 (10) SCC 196 whereby the Hon'ble Supreme Court has held that once

the charge against a delinquent is established, the quantum of punishment is

for the employer to decide and the court ordinarily would not interfere with

the order on the quantum of punishment once the court comes to a

conclusion that there has been no infirmity with the procedure.

21. In case of State of UP vs. Sheo Shanker Lal Srivastava & Ors: 2006

(3) SCC 276 whereby the Hon'ble Supreme Court has held that doctrine of

proportionality can be invoked only under certain situations. The Court shall

be very slow in interfering with the quantum of punishment, unless it is

found to be shocking to one's conscience.

22. In B.C. Chaturvedi vs. Union of India & Ors.: (1995) 6 SCC 749

whereby it is held that a judicial review is not an appeal from a decision but

a review of the manner in which the decision is made. The power of judicial

review is meant to ensure that the individual receives fair treatment and not

to ensure that the conclusion which the authority reaches is necessarily

correct in the eye of the Court. The Court/Tribunal may interfere where the

authority held the proceedings against the delinquent officer in a manner

inconsistent with the rules prescribing the mode of inquiry or where the

conclusion or finding reached by the disciplinary authority is based on no

evidence.

23. During the departmental inquiry, the CCTV footage was shown to the

petitioner whereby it is established that the petitioner was looking at the

incident like a mute spectator. If there was an altercation going on in the

office and that is between the former employee and present employee of the

department, it is atleast the moral duty of the employee present there to

intervene and get them apart from fighting. As per the conclusion of the

inquiry officer, there was no movement of the petitioner and saw the

incident like a mute spectator.

24. Moreover, Shri Praveen Sakhuja (attacker) filed a similar writ petition

vide W.P.(C) No.1156/2016 on similar grounds and with a similar prayer,

which was dismissed by this court on 11.08.2016 with cost of ₹7,000/- upon

the petitioner therein.

25. In addition to above, the appointment of the inquiry officer was

challenged by Shri Praveen Sakhuja in W.P.(C) No. 6168/2012 and when

this court was not inclined to issue notice in the writ petition, he had

withdrawn the same and disciplinary proceedings were concluded by the

same IO.

26. It is not out of place to mention here that Shri Deepak Shekhar

(victim) was the former incharge (head) of the Export Promotion Agency

and the petitioner or Shri Praveen Sakhuja had no authority to question his

visit to said agency which infact, was with prior intimation to a senior

officer of the agency namely Shri Manoj Kumar Gupta, AD.

27. The relevant documents were supplied to the petitioner in accordance

with law by giving proper hearing and the petitioner was participated

through departmental proceedings, therefore, there is no issue left which

requires interference of this court.

28. The detailed removal order dated 02.11.2015 has been passed by the

disciplinary authority whereby the petitioner was removed from service.

Thereafter vide order dated 14.02.2017, the appellate authority modified the

said order and imposed penalty of compulsory retirement which is in any

sense not a punishment to the petitioner.

29. It is pertinent to mention here that on the issues discussed above, the

petitioner filed the present petition of 106 pages with Annexures 33 (Total

394 pages). The grounds made in the present petition are A to JJJJJJ (140

grounds). With lot of difficulty, this court could get the facts and issues

raised in the present petition by going through the whole petition, which is

with repetitious, without sequence and with irrelevant facts, however, have

been ignored by this court while dictating the judgment.

30. Keeping in view the facts and law discussed above, I find no ground

to interfere in the order passed by the authority concerned.

31. Accordingly, the present petition is dismissed with no order as to

costs.

(SURESH KUMAR KAIT) JUDGE APRIL 22, 2019 ab