Man Mohan Pandey And Ors. vs Bharat Electronics Limited And ...
2019 Latest Caselaw 3539 Del

$~39
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 31.07.2019

+      W.P.(C) 8188/2019 & CM APPLs. 33934-35/2019
       MAN MOHAN PANDEY AND ORS.            ..... Petitioners
                   Through Mr. Tarkeshwar Nath with
                           Mr.Mahavir Rawat and Mr. Rohit
                           Prasad, Advs.

                           versus

       BHARAT ELECTRONICS LIMITED AND ORS. ..... Respondents
                   Through   Ms. Maninder Acharya, ASG with
                             Mr. Manish Paliwal, Mr. Vikas
                             Kumar, Ms. Kritika Srivastava and
                             Mr. Viplav Acharya, Advs. for
                             R-1&2
                             Mr. Ravinder Agarwal and Mr. Girish
                             Pandey, Axdvs. for R-3
                             Mr. Vijay Joshi, Sr. Panel Counsel for
                             UOI.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                           J U D G M E N T (ORAL)

1. Vide the present petition, the petitioners seek direction thereby

quashing all the three chargesheets-cum-suspension orders dated 17.05.2019

issued against the petitioners. Consequently, revoke the suspension and

reinstate the petitioners with all the due benefits in their respective offices as

they were before the suspension or in alternatively transfer the enquiry to

concerned Ministry or CVC of India or as this Court may deem fit.

2. Brief facts of the case are that the petitioner no.1 joined BEL and

promoted upto the level of General Manager and presently working as

General Manager (Product Support).

3. Petitioner no.2 joined the respondent no.1 as Accounts Officer and at

present, he is the Senior Deputy General Manager.

4. Petitioner no.3 is presently working as Manager with respondent no.2.

5. On 18.07.2018, the petitioner no.l was appointed by respondent no.2,

as investigating authority to conduct a detailed investigation of the case, on

the basis of complaints received at Corporate Vigilance relating to

underground constructions sites. He was given authority to form a core team

at his level as per requirements and also to take the assistance of the

technical committee which was already constituted for this project. He

accordingly formed a team comprising of the petitioner nos.2 and 3

respectively.

6. On 17.09.2018, CVO, BEL himself reviewed along with Manager,

Corporate Vigilance, the progress of the investigation and instructed

Manager to extend all the help for expeditious investigation.

7. On 03.10.2018, the petitioner No. l submitted his Investigation report

to CVO, BEL and petitioner No.2 made representations to CVO, BEL on

15.10.2018 seeking protection against anticipated victimization. On

29.03.2019, CVO, BEL submitted his report to the Management

(Respondent No.l).

8. Immediately after the submission of the report by CVO on

29.03.2019, the first action which was taken against the petitioners is that

the petitioner no 3 was slapped with the transfer order and that too outside

the organisation on the same day.

9. On 02.04.2019, web portal namely 'Firstpost' published a news

article under the heading 'Bharat Electronics in the dock for 'compromising'

confidential IAF project favouring one vendor, BEL's internal inquiry report

reveals.' Petitioners state that the said news article is not based on the report

submitted on 03.10.2018 under the signature of petitioner no 1 which is

clear from the said news article itself, which has not disclosed the source of

the report.

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

mala fide is on the part of the respondent no.l as when the petitioner no 3,

who was transferred outside the organisation vide order dated 29.03.2019,

was released on transfer posting to Ministry of Defence, Sena Bhawan-

Export Promotion Cell DDP, for a period of three years which even

otherwise, is not permissible outside the organisation.

11. Learned counsel further submits that second news article was

published on 09.04.2019 on the same web portal under the heading 'BEL

allegedly violated string of norms to award contracts to German, Finnish

firms: ex-CMD, two retired defense officials under scanner'. Again, it is

submitted that the news article is not based on the report submitted on

03.10.2018 under the signature of petitioner no.1 and the said respondent

constituted a Committee to conduct a fact finding enquiry to enquire into the

publication of the said articles published on the web-portal of 'Firstpost'.

12. It is not in dispute that the chargesheet has been issued. The Inquiry

Officer has been appointed and the petitioner is facing departmental enquiry.

13. The present petition is filed on the ground that the chargesheet-cum-

suspension orders are illegal and unsustainable also for the reason that the

articles of charges, referred documents and list of witnesses on which the

reliance might have been made by the respondent no.1, were not supplied to

the petitioners for their response thereon.

14. It is further submitted on behalf of the petitioners that the malafide

and ulterior motive of the respondent no 1 is writ large from the fact that the

petitioners were given only four days' time to offer their explanation and that

too in absence of the essential requirements of the chargesheet as mentioned

in the above ground.

15. The other ground which is most argued by learned counsel for the

petitioner is that chargehseet is not issued by the competent authority,

however, it has been issued by the functional director whereas CMD is the

competent authority.

16. To strengthen his arguments, learned counsel for the petitioner has

relied upon the case titled as Union of India vs. B.V. Gopinath: (2014)1

SCC 351. On perusal of the aforesaid judgment in para 52 of the same, it is

recorded that "in our opinion, the submission of the learned Additional

Solicitor General is not factually correct. The primary submission of the

respondent was that the charge sheet not having been issued by the

disciplinary authority is without authority of law and, therefore non est in

the eye of the law. This plea of the respondent has been accepted by the CAT

and also by the High Court. The action has been taken against the

respondent in Rule 14(3) of the CCS(CCA) Rules which enjoins the

disciplinary authority to draw up or cause to be drawn up the substance of

imputation of misconduct or misbehaviour into definite and distinct articles

of charges. The term "cause to be drawn up" does not mean that the definite

and distinct articles of charges once drawn up do not have to be approved

by the disciplinary authority. It is further observed that the term "cause to

be drawn up" merely refers to a delegation by the disciplinary authority to a

subordinate authority to perform the task of drawing up substance of

proposed "definite and distinct articles of charge sheet". These proposed

articles of charge would only be finalized upon approval by the disciplinary

authority."

17. In the present case as submitted by learned counsel for the petitioner,

in the office order No.HO/144/22 which deals with sub-delegation of powers

in respondent no.1 BEL, clause 19(a) which is disciplinary action in respect

of executives in accordance with disciplinary procedure laid down in the

conduct, discipline and appeal rules. To this effect, powers are delegated to

FD/GM/AGM/Sr.DGM/DGM/MANAGER/DM.

18. The chargesheet-cum-suspension order is issued by the functional

director since he enjoys the delegated powers of CMD who is the competent

authority.

19. As per Bharat Electronic Limited Conduct, Discipline And Appeal

(CDA) Rules dated 10.04.2001 regarding major punishment, the disciplinary

/punishing authority is the functional director upto level E-VIII. It is not in

dispute the petitioners are above level E-VIII. Thus, the disciplinary

authority under delegated powers is functional director and is rightly issued

by the said authority.

20. Needless to state that if any of the documents are not provided which

is required during the departmental proceedings, the respondents are

directed to provide the same as and when asked by the petitioners.

21. It is made clear that, if all the documents are provided, the

respondents may respond to the communication, if any, received from the

petitioners side.

22. In view of above, since chargesheet has been issued, Inquiry Officer

appointed and the petitioners are participating under the inquiry

proceedings, therefore, I find no ground to interfere with at this stage.

23. The present writ petition is accordingly dismissed.

24. The pending applications also stand disposed of.

(SURESH KUMAR KAIT) JUDGE JULY 31, 2019/ms