Man Mohan Pandey And Ors. vs Bharat Electronics Limited And ...
2019 Latest Caselaw 4783 Del

$~33
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 09.10.2019

+              REVIEW PET. 360/2019 and CM APPL. 39523/2019 (Stay)
                             in W.P.(C) 8188/2019

       MAN MOHAN PANDEY AND ORS.             ..... Petitioners
                   Through: Mr. Tarkeshwar Nath and Mr. B.K.
                            Pandey, Advs.
                   versus

       BHARAT ELECTRONICS LIMITED AND ORS. ..... Respondents
                   Through: Ms. Maninder Acharya, ASG with
                             Mr. Manish Paliwal, Mr. Vikas
                             Kumar, Mr. Viplav Acharya, Advs.
                             and Mr. B.V. Ramaiyya, DGM,
                             Legal, BEL./ R-1
                             Mr. Vijay Joshi, Sr. Panel Counsel for
                             R-2/UOI
                             Mr. Kirtiman Singh, CGSC with
                             Mr. Rohan Anand, Adv. and
                             Mr. Waize Ali Noor, GP

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                              J U D G M E N T (ORAL)

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

recall the order dated 31.07.2019 passed by this Court in WP(C)

No.8188/2019.

2. At the outset, it is pointed out that in Para 19 of order dated

31.07.2019, it is recorded that the petitioners are above level E-VIII;

however, which is factually incorrect.

3. It is clarified that the petitioner No. 1 is the only officer who comes

under the category of level E-VIII whose Disciplinary Authority is CMD.

The other two petitioners are below level E-VIII. The grade of the Petitioner

no 2 is of level E-VI A and Petitioner no 3 falls under the category of level

E-V. Their Disciplinary Authority is the Functional Director.

4. Further clarified that in Para 19 of the order that the Disciplinary

Authority under the delegated powers is the Functional Director also suffers

from error which is clear from the Office Order No.HO/144/22 read with

CDA-Rules dated 10.04.2001.

5. Learned counsel for the petitioner submits that the said office order

which relates to sub-delegation of powers would show that in fact the

powers delegated under CDA-Rules amended from time to time/notification

of sub delegation of power (SDOP) are unchanged and same as on date

contained in CDA-Rules 2001. The said Rules read with office order dated

10.1.2019 is very clear that the Disciplinary/Punishing Authority for an

officer upto Grade E-VII is Functional Director. Chairman and Managing

Director is the Disciplinary/Punishing Authority for an officer of Grade E-

VIII & IX only. CMD has not sub delegated his power for the officers of

Grade E-VIII & IX any further. He has sub delegated his powers of being

Disciplinary/Punishing Authority for officers upto Grade E-VII to the

Functional Director. In other words, the position of CDA Rules 2001 read

with sub delegation of powers dated 10.1.2019 is very clear that CMD is the

Disciplinary/Punishing Authority in case of petitioner no. 1 and that the

Functional Director is the Disciplinary/Punishing Authority in case of

petitioner nos. 2 and 3. The said order 10.01.2019 is very clear that the sub-

delegated powers will be exercised only by the Executives entrusted with the

responsibilities for the concerned work/assignment.

6. Learned counsel for the petitioners further submits that the issuance of

Charge- sheets cum suspension orders by Director (Marketing) in the case of

petitioner no. 1 and by GM in case of petitioner no. 2 and AGM in the case

of the petitioner no 3 is illegal and unsustainable, which is evident from the

table at Page 10 of the Review Petition.

7. On the other hand, learned Additional Solicitor General submits that

the officers competent to award the minor punishments cannot initiate the

proceedings for major penalties. However, it is submitted that the CDA

Rules bearing Office Order No. HO/772/019 dated 10.04.2011 do not

require the Disciplinary authority to issue a charge sheet for Major

Punishment as mentioned in Rule 5(a). The said Rules only provide for the

imposition of punishments and therefore, the same cannot be made

applicable for initiation of the Disciplinary proceedings.

8. Learned Additional Solicitor General further submits that BEL has

defined the Disciplinary Authority based on the punishments. Though the

Disciplinary Authority is referred in the context of the punishment in BEL

CDA Rules, the approval for initiation of the Disciplinary proceedings,

issuance of charge sheet etc. is based on the formal approval by the

Disciplinary Authority as defined in CDA Rules. The punishment will be

later on the basis of misconduct and the punishing authorities have been

mentioned in the CDA Rules. Once the charge sheet is approved by the

Disciplinary Authority, the charge sheet is served by the respective

Department /Division/Unit Head or an officer who is at least one level above

to the charge-sheeted executive. Such an officer just initiates the enquiry and

does not impose the punishment. The imposition of punishment is a separate

issue which is decided later by the competent authority within the

organisation.

9. To strengthen her arguments on the above issued, learned Additional

Solicitor General relied on the decision of the Hon'ble Apex Court in case of

Inspector General of Police vs. Thavasiappa, (1996) 2 SCC 145, whereby it

is held that a charge sheet need not be issued by the appointing authority and

any authority who is the controlling authority can initiate departmental

proceedings by issuing a charge sheet. The Hon'ble Court further observed

that the charge sheet need not to be issued by the authority empowered to

impose the proposed penalty.

10. Learned Additional Solicitor General has further relied on P.V.

Srinivasa Sastry & Ors. vs. Comptroller and Auditor General & Ors.

(1993) 1 SCC 419, whereby in the context of Article 311(1), it was held that

in absence of a rule any superior authority who can be held to be the

controlling authority can initiate a departmental proceeding and that

initiation of a departmental proceeding per se does not hold the officer

concerned with any evil consequences.

11. Learned Additional Solicitor General submits that Bharat Electronics

Limited is a Public Sector Undertaking and it is incorporated under the

Companies Act and therefore, the employees do not enjoy the protections as

available to the government servants.

12. In case of Tekraj Vasandi Alias K. L. Basandhi vs. Union of India &

Ors. (1988) 1 SCC 236, the Hon'ble Supreme Court had held that the only

prohibition, if any, is the inability to pass a final order in the departmental

proceeding. However, the charge sheet can be issued by the officer lower

than the disciplinary authority but higher than the charged officer. The

dismissal or removal of the officer or even the enquiry could be done at his

instance. It was also held that the only right guaranteed to a civil servant

under that provision is that he should not be dismissed or removed by an

authority subordinate to that by which he was appointed. It was further held

by the Supreme Court that it is not necessary that the charges should be

framed by the authority competent to award the proposed penalty or that the

enquiry should be conducted by such authority as there is nothing under the

rules which would induce the Court to read in the rules such a requirement.

It is thus established from the ratio in Transport Commissioner vs. A.

Radha Krishna Moorthy, (1995) 1 SCC 332 of the aforesaid decision that

initiation and conducting an enquiry could be done by an authority other

than the authority competent to impose the penalty. Therefore, unless a

statutory rule specifically requires that such proceeding is to be initiated and

conducted only by a disciplinary authority, the same could be so done even

by a subordinate authority. Thus, learned Additional Solicitor General

argued that there is no merit in the present petition and the same deserves to

be dismissed.

13. On perusal of Charge Sheet-Cum-Suspension order dated 17.05.2019,

it is specifically mentioned that Sri M.M. Pandey, Staff No. 205757, GM

(Product Support/CO) was appointed as Investigation Officer by CVO vide

letter dated 18.07.2018 to conduct a detailed Investigation into the alleged

irregularities reported in the execution of civil construction works in the

IACCS project being executed by NCS SBU of GAD Unit. It is further

stated that he submitted his report dated 03.10.2018 to CVO which was

received in CVO's office on 08.10.2018. Thus, it is established that the

Charge Sheet-Cum-Suspension Order was issued in pursuance to CVO letter

dated 18.07.2018 to conduct a detailed investigation into the alleged

irregularities.

14. Learned counsel for petitioner has relied upon Vigilance Manual and

in Para 7.3.1 regarding framing of Charge Sheet and in Para 7.3.2, it is

specifically mentioned that the charge sheet comprises the memorandum,

informing the concerned employee about initiation of proceedings against

him and giving him an opportunity to admit or deny the charge(s) within a

period not exceeding 15 days. The memorandum is to be signed by the

disciplinary authority himself.

15. As argued by learned counsel for the petitioner that since the

disciplinary proceedings initiated against the petitioners are in pursuance of

letter dated 18.07.2018 issued by the CVO, therefore, Vigilance Manual is

applicable in the case of the petitioner.

16. On the other hand, learned Additional Solicitor General has argued

that in the present case, the departmental proceedings are not initiated

pursuant to vigilance departmental inquiry, therefore, the Vigilance Manual

is not applicable in the present case.

17. It is not in dispute that in case of A. Radha Krishna (Supra), it is held

that unless a specific rule so requires that such proceedings are to be

initiated or conducted only by a disciplinary authority, the same could be

done so even by the subordinate authority.

18. In the present case, the charge sheet is issued without specifically

mentioning therein whether a charge-sheet is issued for major punishment or

the minor punishment. The aforesaid judgment would be applicable only in

case where there is no specific rules or guidelines to this effect. However, in

the present case, as per Para 7.3.2. of Vigilance Manual of BEL, the charge-

sheet comprising the memorandum, informing the concerned employee

about the initiation of proceedings shall be signed by the disciplinary

authority himself.

19. In the present case, admittedly, petitioner No. 1 is E-VIII level

employee and undisputedly, the disciplinary authority for the same is CMD,

whereas the charge-sheet is issued by Functional Director (Marketing), who

is not disciplinary authority.

20. Regarding the charge sheet issued against the other petitioners, the

said charge-sheet was also issued to the petitioner No. 2 by the G.M. Radar,

whereas the disciplinary authority is the Director. To petitioner no. 3, the

charge-sheet has been issued by the AGM, whereas disciplinary authority is

the Functional Director.

21. As per the charge sheet-cum-suspension order, the said order is issued

in pursuance of the letter issued by the CVO as mentioned above. Therefore,

it cannot be said that disciplinary proceedings initiated against petitioners

are not a vigilance case.

22. Be that as it may, as stated by learned Additional Solicitor General

that the Ministry of Defence has seized with the matter and instructed the

respondents not to proceed further. Accordingly, the departmental

proceedings against the petitioners is kept in abeyance till further

instructions from the said Ministry.

23. It is pertinent to mention here that if the charge sheet is accepted and

at the end, the disciplinary authority is of the view that major penalty is to be

issued, in that eventuality, the authority under the statutes is not competent

to issue the major penalty. Thus, while issuing further proceedings against

the petitioners, if any, it shall be specifically mentioned that the charge-sheet

is issued against the petitioners for minor or major penalty.

24. Admittedly, since the suspension order has not been extended further

beyond the statutory period of 90 days, in view of the decision in Ajay

Kumar Choudhary vs. Union of India & Anr., (2015) 7 Supreme Court

Cases 291, suspension is illegal thereafter. In the case in hand, it is not in

dispute that more than 90 days of the suspension have been elapsed.

Accordingly, the respondents are directed to reinstate the petitioners

forthwith. The period of suspension shall be treated as per the rules.

25. In view of above discussion and legal position, since the disciplinary

authority concerned for the petitioners have not initiated departmental

proceedings, therefore in my considered view, the order dated 17.05.2019 is

illegal and accordingly set aside. However, liberty is granted to the

respondents to initiate proceedings as per the statutes and the Vigilance

Manual, if so advised, against the petitioners. Accordingly, the order dated

31.07.2019 passed in W.P.(C) 8188/2019 is hereby recalled.

26. The petition is accordingly allowed. Pending application also stands

disposed of.

(SURESH KUMAR KAIT) JUDGE

OCTOBER 09, 2019 PB