Delhi High Court

P Sree Krishna vs Airports Authority Of India And ... on 1 August, 2019

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Reserved on:        23.05.2019
                                       Pronounced on:      01.08.2019

+     W.P.(C) 9149/2017 & C.M.APPLN. 3798/2018
      P SREE KRISHNA                                    ..... Petitioner
                    Through            Mr. Raj Singh Phogat, Adv.

                          versus

      AIRPORTS AUTHORITY OF INDIA AND ORS ..... Respondents
                   Through  Mr. K. K. Rai, Sr. Adv. with Mr. Dig
                            Vijay Rai, Ms. Chetna Rai, Mr.
                            Anshul Rai with Mr. Ram Krishana
                            Veerendra, Advs. for AAI

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                             JUDGMENT

1. Vide the present petition, the petitioner seeks direction thereby

quashing the impugned order No. C.14015/08/2012/-Disc/180 dated

10.05.2016 of punishments passed by the respondents by which the

respondents had arbitrarily and illegally rejected the appeal of the petitioner

against the assailed order dated 26-29.05.2015 passed by the Disciplinary

Authority.

2. The petitioner initially joined on 20.02.1991, the erstwhile National

Airport Authority of India as Assistant Executive Engineer (Group A) which

was later on re-designated as Manager Engineering (Civil). Thereafter,

promotion of the petitioner reached at the level of Joint General Manager

Engineering (Civil) on 20.10.2006 due to inter seniority merger between

National Airports Division and International Airports Division which

became single entity as Airports Authority of India/respondent No.1,

notified on dated 01.04.1995 by the Union of India under review DPC

{hereinafter being referred to as JGM Engg (Civil) from the post of DGM

Engg (Civil) in the cadre post, but continued as the Airport Director at

Srinagar Airport in the ex-cadre post till dated 30.03.2007. Thereafter, on

12.04.2007, the petitioner was transferred to the Hyderabad International

Airport in the cadre post as JGM Engg (Civil) and continued at the

Hyderabad International Airport till 07.10.2010. Thereafter, on 27.10.2010,

the petitioner was posted at the Jaipur Airport from the Hyderabad Airport

as JGM Engg (Civil) and continued till 17.07.2013. However, on

29.10.2012, the charge sheet was issued to the petitioner under Regulation

4(1) (a) (b) & (d) and 5 (i) (v) & (ix) of the Airports Authority of India

Employees (Conduct, Discipline & Appeal) Regulations, 2003 for the

misconduct and negligence attributable to other employees in spite of due

prudent action of the petitioner. On 18.07.2013, the petitioner was posted at

Hyderabad Airport and continuously remained posted at the Hyderabad

Airport as JGM Engg (Civil) till dated 20.01.2015.

3. The further case of the petitioner is that after inquiry, the Inquiry

Officer submitted its report dated 26.03.2014. The petitioner submitted

representation to the Disciplinary Authority dated 25.07.2014, 26.08.2014

and 13.03.2015 against proving of the charges by the Inquiry Officer who

without taking cognizance of the evidence on record, documentary exhibits

and statements of witnesses ignored and submitted the arbitrary Inquiry

report. Based on the representation dated 21.01.2015, the Disciplinary

Authority observed that the Inquiry Officer has not correlated his findings

based on statements/documents submitted during the Inquiry proceedings

and hence directed to Inquiry Officer to revisit his findings based on the

evidence on record.

4. On 09.02.2015, the Inquiry Officer refused to revisit the Inquiry

report as he was retired and not under any obligation to do the same and

submitted that Disciplinary Authority is not bound by the findings of the

Inquiry Officer and the said authority can appoint another Inquiry Officer to

conduct fresh inquiry. However, vide order dated 26.05.2015, the

Disciplinary Authority ordered to impose the penalty of "Reduction of pay

by one increment/stage in time scale of pay of the petitioner for a period of

one year with effect from the date of issuance of order". Further, that

petitioner will earn his normal increment of pay during the period of

reduction and that on the expiry of this period; the reduction will not have

effect of postponing the future increment of his pay. Being aggrieved, the

petitioner submitted the appeal to the Appellate Authority on 24.06.2015.

The same was rejected vide its order dated 10.05.2016.

5. Learned counsel appearing on behalf of the petitioner submits that the

terms and conditions of the service of petitioner are protecting the petitioner

and the disciplinary proceedings are governed by the Airports Authority of

India Employees (Conduct, Discipline and Appeal) Regulations, 2003. The

petitioner was issued charge-sheet dated 29.10.2012 under Regulations,

2003 after lapse of more than 5 years of the incident for the misconduct

attributable to the other employees and not to the petitioner. As per Article I,

the petitioner being the Engineer-in-Charge, in connection with the work of

"Mechanized Painting of runway markings at Hyderabad Airport" has been

found to be responsible for violation of the terms and conditions of

agreement executed on 28.02.2008 for the said work to favour the contractor

M/s. Innovative Reflectors. Allegation in Article II is that the petitioner in

connection with the work of "Painting of runway markings at Hyderabad

Airport" has been found to be responsible for manipulation of the records of

the said work at site, resulting the payment was made to the contractor for

over measurement.

6. Learned counsel for the petitioner submitted that the Inquiry Officer

without discussing the evidence on record, statements of witnesses and

correlation of exhibits proved the charges as per the charge-sheet in just one

and half pages in violation of the rules of natural justice. The charge-sheet

contains 10 pages, whereas the Inquiry Officer submitted its final report

containing four pages out of which only one and half page is allotted to the

analysis and co-relating of evidence for proving of the charges. Thus, there

is no application of mind and Inquiry Report is sham and arbitrary without

discussing the pleas and evidence on record.

7. Regarding Article I, the main allegation against the petitioner is that

the agreement should have been executed on or before 17.11.2007, in

accordance with the terms and conditions stipulated in the work order dated

08.11.2007. Meanwhile, RHQ Southern Region issued order dated

29.10.2007 attaching the then Senior Manager (E-C)- Shri Prakash N

Kanchagar to Calicut Airport with immediate effect. Memorandum to this

effect has been issued by the O/o Director Hyderabad Airport dated

14.11.2007, enclosing a copy to DGM (E-C). Accordingly, Shri Prakash

Kanchagar, SM (E-C) got relieved from Hyderabad Airport on 20.11.2007

A/N. Relieving of Shri. Prakash N Kanchagar from Hyderabad Airport by

20.11.2007 was well known to the petitioner. He should have either got the

agreement signed by him or he himself should have signed and executed the

prepared agreement since he was acting as Engineer-in-Charge. However,

the agreement got executed by him only on 28.02.2008.

8. It is submitted that due to the above rejection of the deposition of the

defense witnesses by the IO, the petitioner's natural justice was prejudiced

and could not get the justice because material and relevant witnesses were

not allowed to depose in the Enquiry proceedings and that too without

issuing any order for the rejection of the defence.

9. Further submitted, the Prosecution witness Mr. Prakash Kanchagar,

SM(Engg-Civil) was being investigated by the CBI as well as Vigilance

department for his culpability and complicity in the case and hence as per

the Regulation 29 of the Regulations, 2003, the Inquiry Officer and

Presenting Officer should have been from the CBI or from the Vigilance

department. More so the fact remains that original files of this case were

taken by the CBI as well as Vigilance department for the investigation. So,

the Inquiry Officer proceeded to prove the unsubstantiated charge without

any documents in possession of the department. The Inquiry Officer without

substantiating the charge from the presenting officer directly asked from the

petitioner for their defence. When all the defense documents and witnesses

tendered for admission then he disallowed the defence witnesses without

assigning any reasons thereof. Thereafter, the Disciplinary Authority

directed the Inquiry Officer to revisit the findings of the Inquiry as IO has

not correlated his findings based on statement/documents submitted during

inquiry proceedings by the Charged Officer. The copy of the direction letter

dated 21.01.2015 to the Inquiry Officer for revisiting on the finding is

annexed and marked as Annexure P-12.

10. On the other hand, learned counsel appearing on behalf of the

respondent No.1 submitted that there was a complaint regarding shortage of

820 litre of paint and fake bill of ₹2.96 lakhs paid in the work of "painting

of runway marking at Hyderabad Airport", accordingly, Vigilance

Department of Airports Authority of India investigated the complaint and

based on their investigation, the Disciplinary Authority i.e. Chairman, AAI

decided to initiate major penalty proceedings in accordance with

Regulations, 2003 against the responsible officers i.e. Shri P. Ravisekhar and

the petitioner.

11. The regular inquiry was instituted and the Inquiry Officer concluded

his separate reports, i.e. in respect of the petitioner both the Articles I and II

"Proved" and the sole Article "Proved" in respect of Shri P. Ravisekhar.

The copy of the inquiry report was also provided to the petitioner for his

response before placing the matter before the Disciplinary Authority for

decision. He submitted his response to the inquiry report vide his letter dated

26.08.2014 in which the petitioner submitted that the IO has not analyzed

defence on record and has submitted the findings without application of

mind and without giving any reasons for his findings. The Disciplinary

Authority vide letter dated 21.01.2015 remanded back the report to the IO

for revisiting the findings and submitted his report again. The IO responded

vide his letter dated 09.02.2015 in which he pointed out the following:

i) As Inquiry Officer in the above disciplinary proceedings, I have conducted myself strictly in the manner as specified in the disciplinary manual and as per the prevalent instructions and guidelines on the subject.

ii) The entire course of enquiry proceedings was conducted by me as Inquiry Officer in a free, fair, just right, unbiased and impartial manner.

iii) Ample opportunities and sufficient time as provided in the guidelines were granted to both the Charged Officials for submission of additional documentary evidences, etc, so as to defend their cause effectively wherever permitted within the purview and ambit of the provisions as envisaged in the disciplinary manual and guidelines in vogue.

iv) Findings of the inquiry proceedings were recorded by Inquiry Officer after having thoroughly gone through all the material evidences, brought on record and correlating all the written submissions made by both the Charged Officials and that of the final report of Presenting Officer.

v) In nutshell, the findings of the inquiry proceedings were drawn by Inquiry Officer as per his inner conscience without compromising any of the facts, without any fear or favour and also strictly taking into cognizance all the documentary evidences and the entire arguments made by the charged officials during the course of the inquiry.

12. The Disciplinary Authority after considering all the facts and

circumstances of the case passed a detailed order dated 29.05.2015

imposing the penalty of "Reduction of pay by one increment/ stage in time

scale of pay of the petitioner for a period of one-year w.e.f. the date of

issuance of order". The petitioner preferred an appeal before the Appellate

Authority and rejected the same without modification in the penalty order

29.05.2015 passed by the Disciplinary Authority.

13. In counter affidavit, it is admitted that to the extent of transfer of Shri

Kanchagar from Hyderabad Airport and submitted that it was the

responsibility of the petitioner to ensure that all the obligations in the said

contract are complied with. The petitioner exercised the power of Engineer-

in-Charge in the absence of Shri Kanchagar owing to latter's transfer but

did not fulfil the obligation of signing/executing the agreement before

exercising the powers of Engineer- in- Charge for release of the payment.

14. It is also admitted in the counter affidavit that Shri Kanchagar should

have signed the agreement, but the Petitioner has not come with clean

hands as on the one hand he has made elaborate submissions for justifying

that the agreement should have been signed by Shri Prakash N. Kanchagar,

but how come the Petitioner exercise the power of Engineer-in-Charge in

the absence of Shri Prakash N. Kanchagar without getting the agreement

signed and released the payment to the contractor.

15. Learned counsel appearing on behalf of respondent No.1 submitted

that either the Petitioner should have refrained from exercising the power

of Engineer-in-Charge (EIC) for release of payment in the absence of

agreement duly signed by the then EIC Shri Prakash N. Kanchagar or

should have assumed the responsibility of releasing payment after signing

agreement also. The petitioner cannot take the shelter of the circumstances

that Shri Kanchagar got relieved without signing the agreement and the

agreement remained unsigned and the Petitioner assumed the responsibility

of EIC for release of payment only. The action by the Anti-Corruption

Branch of the CBI has been initiated against Shri Kanchagar in a complaint

and the prosecution sanction has also been issued for formal criminal

proceedings against Shri Kanchagar.

16. It is also submitted that the Petitioner has given elaborate

circumstantial details of releasing the payment to the contractor, but has not

explained any reason that he being the higher officer agreed to and released

the payment to the contractor assuming the responsibility of the EIC but

has been making all justification for not assuming the responsibility of

signing the contract which is the basic document for the execution of the

work and payment thereof. The Petitioner cannot justify only discharging

one responsibility and ignoring other one which is actually the prime. The

Petitioner is a Senior Level Officer of the Engineering Department and,

therefore, his plea of taking shelter of work manual in contradiction to the

terms and conditions of the agreement is not acceptable. The Inquiry

Officer in his analysis has categorically mentioned that the date of

measurement using yellow paint recorded in the measurement book on

25.03.2008 for 459.81 sqm (69.81+390) whereas from the entries made in

the Paint Register a page No. 60, it is established that the yellow paint was

received at site on 02.08.2008, 19.08.2008 and 16.09.2008 (totalling 400

litres). The Petitioner herein has not explained the consumption of paint as

per the measurement book, prior to the supply date. The Inquiry Officer has

established that the record has been manipulated at subsequent date.

17. It is further submitted that during the investigation, the role and

responsibility of Shri Ravisekhar was established as related to manipulation

of record whereas the measurement book was recorded by another officer

Shri Jahangir Alam, an action could not be initiated against Mr Alam as he

resigned from the services of the Airports Authority of India w.e.f.

01.09.2008. The Petitioner has deliberately withheld this fact from this

Court and has wrongly submitted on affidavit that the charge of

measurement book has been dropped against Shri Ravisekhar during the

common proceedings, whereas the fact remains that there was no charge

levied against Shri Ravisekhar in this issue.

18. Learned counsel for the respondent submitted that the petitioner has

not produced the receipt of payment or the challan or other details by the

Company who supplied the paint on the date of delivery. The company

which has supplied the paint is mentioning only number of drums but

description of drums and the quantity therein is not established from the

documents annexed as Annexure P-10 (Colly). The bone of contention

during the proceedings remained that the petitioner is a Senior Level

Officer who has been continuously defending his lapses by way of

manipulations/misrepresentations. The petitioner has referred documents

which were not available on the date of inspection of the work but have

been produced by the Officer during the process of inquiry at a later date.

The petitioner is a senior officer and is well aware of the procedure of

receiving material at site to ascertain quantity, quality and other details of

the product in accordance with the tender documents. The petitioner is

wrong in suggesting that documents/evidence has not been analyzed

properly. The petitioner has at no stage justified the procuring of these

documents at the time of inquiry with the relevant clause of the

agreement/tender documents/awarded letter which is the base documents

for executing the particular work. When the specific clause is available in

the agreement for these documents/details at the time of supply of material,

then what is the relevance of obtaining these documents when the inquiry is

in progress.

19. I have heard learned counsel for the parties at length and perused the

material available on record.

20. It is further submitted that though there was no cross complaint but

during the vigilance investigation, roles and responsibilities of the

petitioner and other officers, were identified and the Regulations applicable

on the petitioner have a provision of common proceedings in a case where

more than two officers are involved. In this case, the officer of the highest

level and his corresponding Disciplinary Authority exercised the power of

Disciplinary Authority in respect of the involved officers. In this case also,

the proceedings took place in respect of two officers but for different roles

and responsibilities with different set of documents and the Inquiry Officer

submitted different reports.

21. On the issue raised by the petitioner that the appellant Authority has

not passed the detailed and reasoned order, counsel appearing on behalf of

respondent No.1 has relied on the full bench Judgment of this Court in case

of Director of Postal Services vs. Daya Nand: (1972) 8 DLT 485 whereby

it is held that the order of the appellate authority in dismissing the appeal

need not contain more reasons than its agreement with the order of the

punishing authority.

22. In case of State Bank of India, Bhopal vs. S.S. Koshal: 1994 Supp

(2) Supreme Court Cases 468 whereby the Supreme Court has held that it

was not obligatory on the part of the appellate authority to say more than

this as the order as it is, shows application of mind. The order cannot be

characterised as a non-speaking order.

23. Similar view was taken in Narinder Mohan Arya vs. United India

Insurance Co. Ltd. and Others: (2006) 4 SCC 713 that an appellate order

if it is in agreement with that of the disciplinary authority may not be a

speaking order but the authority passing the same must show that there had

been proper application of mind on his part.

24. The Inquiry Officer submitted its report dated 26.03.2014,

accordingly, the petitioner submitted representation to the Disciplinary

Authority dated 25.07.2014, 26.08.2014 and 13.03.2015 against proving of

the charges by the Inquiry Officer who without taking cognizance of the

evidence on record, documentary exhibits and statements of witnesses

ignored and submitted the arbitrary Inquiry report. Based on the

representation dated 21.01.2015, the Disciplinary Authority observed that

the Inquiry Officer has not correlated his findings based on

statements/documents submitted during the Inquiry proceedings and hence

directed to Inquiry Officer to revisit his findings based on the evidence on

record.

25. On 09.02.2015, the Inquiry Officer refused to revisit the Inquiry

report as he was retired and not under any obligation to revisit the Inquiry

proceedings and submitted the report that Disciplinary Authority is not

bound by the findings of the Inquiry Officer and the said authority can

appoint another Inquiry Officer to conduct fresh inquiry. However, vide

order dated 26.05.2015, the Disciplinary Authority ordered to impose the

penalty of "Reduction of pay by one increment/stage in time scale of pay of

the petitioner for a period of one year with effect from the date of issuance

of order". It is further held that the petitioner will earn his normal

increment of pay during the period of reduction and that on the expiry of

this period; the reduction will not have effect of postponing the future

increment of his pay. Being aggrieved, the petitioner submitted the appeal

to the Appellate Authority on 24.06.2015 and the same was rejected vide

its order dated 10.05.2016.

26. It is not in dispute that the terms and conditions of the service of

petitioner are protecting the petitioner and the disciplinary proceedings are

governed by the Airports Authority of India Employees (Conduct,

Discipline and Appeal) Regulations, 2003. The petitioner was issued

charge-sheet dated 29.10.2012 under Regulations, 2003 after lapse of more

than 5 years of the incident for the misconduct attributable to the other

employees and not to the petitioner. As per Article I, the petitioner being

the Engineer-in-Charge, in connection with the work of "Mechanized

Painting of runway markings at Hyderabad Airport" has been found to be

responsible for violation of the terms and conditions of agreement executed

on 28.02.2008 for the said work to favour the contractor M/s Innovative

Reflectors. Allegation in Article II is that the petitioner in connection with

the work of "Painting of runway markings at Hyderabad Airport" has been

found to be responsible for manipulation of the records of the said work at

site, resulting the payment was made to the contractor for over

measurement. From the record, it is revealed that the Inquiry Officer

without discussing the evidence on record, statements of witnesses and

correlation of exhibits proved the charges as per the charge-sheet in just

one and half pages in violation of the rules of natural justice. Thus, there is

no application of mind and Inquiry Report is sham and arbitrary without

discussing the pleas and evidence on record.

27. Regarding Article I, the main allegation against the petitioner is that