Delhi High Court
S.K. Gupta vs Uoi & Ors. on 29 January, 2020
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 22nd January, 2020
Decided on: 29th January, 2020
+ W.P(C) 8097/2002 & CM Appl.No. 7642/2018
S. K. GUPTA ......Petitioner
Through Mr.R.S.Raju, Ms. Suman Kukrety,
Ms. Megha, Advocates.
versus
UNION OF INDIA & ORS. .....Respondents
Through Mr. Vivek Goyal, CGSC for
Respondent No.1/UOI
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE TALWANT SINGH
JUDGMENT
Dr. S. Muralidhar, J.:
1. This petition is directed against an order dated 29th November, 2001
passed by the Central Administrative Tribunal, Principal Bench, New Delhi
(CAT) dismissing the Petitioner‟s OA No. 630/2001 thereby negating his
challenge to a charge sheet dated 9th November, 1994 and the consequent
penalty order dated 14th March, 2000 passed by the Secretary, Ministry of
Non Conventional Energy Sources (MNES) compulsorily retiring him from
service.
Background facts
2. The Petitioner is a qualified Engineer who has done his Bachelor‟s degree
in Mechanical Engineering from the Delhi College of Engineering, M. Tech
from the Indian Institute of Technology, Delhi and a Post-Graduate Diploma
in Business Management. In 1979, the Petitioner joined the National
Physical Laboratory as Scientist „B‟. In 1982 he came on deputation to
Commission for Additional Source of Energy (CASE) entrusted with the
duty to establish the Solar Energy Centre (SEC), Government of India as
Senior Engineer.
3. The SEC was set up as a scheme of the Department of Non-Conventional
Sources (DNES), later to become the Ministry for Non-Conventional Energy
Sources (MNES). Through a process of direct recruitment, the Petitioner
was appointed as Principal Scientific Officer (PSO) in the SEC in 1986. He
held this post till the date of his compulsory retirement. In 1988 the SEC
was granted the status of a division of a DNES.
4. According to the Petitioner, although he was assessed for the post of
Director by All India Departmental Promotion Committee (DPCs) from
1992 till 1998, those proceedings were kept in a sealed cover when in fact
no disciplinary proceedings were pending against him. He further states that
although he was due for promotion as Advisor in 1998, he was not called for
interview. The Petitioner has annexed as Annexure P-3 to the writ petition
his year-wise achievements in the matter of Research and Development
(R&D) in the field of solar energy which according to him placed the SEC
and the MNES in the place of pride in national and international fora.
5. The Petitioner has sought to explain the background of the setting up of
the SEC. It is stated that the Government of India set up the DNES in the
Ministry of Energy in 1982 with, inter-alia certain primary objectives of:
"i) formulating policies and programmes for development of new
and renewable sources of energy;
ii) co-ordinating and intensifying research and development
activities new and renewable of source of energy;
iii) ensuring implementation of GOI policies in regard to all
matters concerning new and renewal source of energy."
6. Extracts of the Annual Reports of the SEC for the years 1985-86 to 1991-
92 have been enclosed with the petition to highlight the fact that the SEC
was involved in setting up Research & Development and test facilities for
new materials and components with several objectives including the
following:
"ii) to serve as a link between R&D institutions and
manufacturing units so as to reduce the time lag between basic
know-how/ bench scale development/prototype development,
pilot plant and commercial manufacture;
iii) to create facilities for installation of solar demonstration units
for new and improved technologies in order to generate field
performance results for new equipments/systems and to create
public awareness and interest both among users and
manufacturers;
iv) to create facilities wherever possible for package technology
transfer service to industry with a view to promote new and
improved devices in the filed of solar energy;
v) pilot plant investigation, field demonstration, data collection,
monitoring, evaluation etc."
7. It is stated that to begin with, the Government of India created a Single
Window System (SWS) to facilitate import of equipment/materials for
promotion and growth of non-conventional energy used in the country. For
this purpose, it gave an incentive by granting Custom Duty Exemption
Certificate (CDEC) to importers, manufacturers and users of materials and
components. One of the conditions for issuance of such CDEC was that the
materials imported were not manufactured in India. For this they were
required to have an indigenous angle clearance from the office of the
Directorate General of Technical Development (DGTD) in the form of Not
Manufactured in India Certificate (NMIC). The Petitioner clarifies that
merely because a unit or manufacturer had an NMIC did not entitle it
automatically to the grant of CDEC. The indigenous angle was to be verified
from the DGTD. The procedure therefore provided for applications to be
made by private parties importing equipment for use of the Non-
Conventional Energy Sources which were to be processed by the DGTD.
8. It is stated that Mr. Maheshwar Dayal was appointed as Secretary, DNES
in 1984 which was the same year in which Dr. G. D. Sootha took over as an
Advisor (MNES) and in that capacity headed the SEC. The Petitioner states
that in 1984-85, with a view to accelerating the R&D, demonstration, testing
and standardisation in the country in the Non-Conventional Energy area, the
DNES headed by Mr. Dayal formulated a new policy known as SWS-2. In
terms of the said policy applications received by the Ministry of Industry for
grant of NMIC would be referred to the SEC which would in turn examine
whether the material imported would be useful for R & D, testing,
demonstration and standardisation. The DGTD however was not bound by
the opinion of the SEC which at best had a recommendatory role. In other
words, the ultimate decision for granting NMIC and CDEC continued to
vest with the DGTD and the MNES respectively. In the event of the
Ministry granting the CDEC to private parties the policy made it clear that
the goods were to be imported through SEC.
9. The Petitioner referred to a letter dated 17th September, 1985 from Mr.
Dayal, the then Secretary, DNES to the Secretary Development in the
Ministry of Industry which brings out the said policy decision. Inter-alia the
letter stated as under:
"Since these equipment are being purchased or being procured
for R & D and demonstration applications in the country, it is
advisable that no duty be charged on the case. These equipment
are being procured through Solar Energy Centre (SEC) which
has been set up to test and standardise such equipment and also
develop new technologies for new and renewable sources of
energy.
2. In the past we have procured a few gasifires under this
programme from France and solar photovoltaic pumps from
Denmark. Although the certificates were issued by your
Organisation indicating that no custom duty be charged on
these items since these are not being manufactured in the
country, we have to pay lot or demurrage charges since the
same could not be obtained in time. In order to avoid payment
of huge amounts of demurrage charges, I am suggesting that
you may please direct your officers to issue such certificates in
the shortest possible time so that SEC collect the equipment in
time without paying the demurrage charges. We would be
grateful for your help by giving the necessary directions to your
officers in this regard."
10. The Petitioner states that the new policy envisaged NMIC being
procured in the name of SEC and for the SEC was to carry out the R & D,
demonstration, testing and standardisation in respect of the material
imported. A distinction is being made between importing „through SEC‟ and
importing „for SEC‟. The purpose of importing through SEC was to
accelerate the pace of technology development, absorption, field trial and
adoption with the industry participation. Relevant pages along with notings
of the policy file No. SEC/Store/SJD/TG/87 have been enclosed with the
petition as Annexure P-7 respectively.
11. One of the major points of contention raised by the Petitioner is that
despite his best efforts to obtain the said policy file No.1/33/Misc./85, which
was permitted by the Inquiry Officer (IO), it was not made available to the
Petitioner during the disciplinary proceedings.
12. The Petitioner reiterates that the officers working in the SEC themselves
had no role to play in the grant of CDEC. In particular he states that his role
was confined to dealing with applications referred by the MNES and he
himself was neither the authority competent to grant the NMIC nor to issue
letters to importers/applicants for CDEC. According to the Petitioner, an
Internal Committee of the DGTD has to clear the application even if it is
forwarded through the SEC for an NMIC to be issued.
13. The working of the DGTD in this regard was explained by two Section
Officers of the DGTD before the IO during the course of the enquiry.
According to the Petitioner there were many cases where applications
forwarded by the SEC to the DGTD for issuance of NMIC were rejected by
the DGTD.
14. The case of the Respondents is that during the period from 1985-1990
three officials of the SEC were involved in irregularities in six cases
concerning private firms. One of these three officials was the Petitioner and
the other was his immediate superior Dr. Sootha. Specific to the Petitioner,
the case of the Respondents is that he obtained NMIC from the DGTD by
giving false information that the import of materials components and
equipments for which NMIC was being sought were being imported for the
SEC‟s R & D activities when in fact they were meant for use of the private
companies engaged in commercial activities. It is stated that these
companies imported items in order to supply them to M.P. Urja Vikas
Nigam and other agencies. According to the Respondents the actions of the
three officials including Dr. Sootha (since retired) resulted in a loss of
Rs.1.44 crores to the Government. According to the Respondents the actions
of the Petitioner and Dr. Sootha had no approval of the Secretary or any
other competent authority. The case against the Petitioner is that he
connived with Dr. Sootha in giving undue benefits to private firms.
15. The case was referred to the Central Vigilance Commission (CVC) for
its advice in October, 1990. In turn the CVC referred the matter to the
Central Bureau of Investigation (CBI) in November, 1990. The CBI
registered six cases and conducted a detailed investigation at the end of
which it submitted a report in January, 1994.
16. According to the CBI there had been an arbitrary use of power in all six
cases in the issuance of NMIC. The CBI accordingly recommended major
penalty proceedings against the officials including placing them under
suspension.
17. The report of the CBI was examined in the Ministry and again referred
to the CVC in March, 1994 for its advice. As far as the Petitioner was
concerned, the CVC tendered its advice in May, 1994 recommending major
penalty proceedings. Accepting this recommendation, proceedings
commenced against the Petitioner under Rule 14 of the Central Civil
Services (Classification, Control and Appeal) [„CCS (CCA) Rules‟].
18. Invoking Rule 10 of the CCS (CCA) Rules, the Petitioner was on 19th
August, 1994 placed under suspension. The Disciplinary Authority (DA)
revoked the suspension on 15th November, 1996 after review. It must be
mentioned that during this entire period the inquiry did not commence.
The charges
19. On 9th November, 1994 a memorandum was issued to the Petitioner by
the MNES. Enclosed with the said memorandum is Annexure-1 containing
the Articles of Charge. It was basically one Articles of Charge sub-divided
into further six Articles. The theme of all the six Sub-Articles was the same
namely that in connivance with Dr. Sootha the Petitioner misused his
official position as PSO (SEC) and issued letters for customs duty
exemption to various authorities and obtained NMIC from the office of the
DGTD by falsification mentioning that the consignment which was being
imported for private parties for their own commercial activities, was being
imported by SEC for its research work. The six Sub-Articles referred to the
six cases of such import where the beneficiaries of the undue favours were
as follows:
i) M/s. Solaren Technology Private Limited concerning import of 1040
Solar Absorber Sheets imported by it through M/s Western India
Industries Private Limited from Japan.
ii) M/s. Solechrome System India Private Limited (SSIPL) and M/s
Universal Manufacturing Company (UMC) in respect of 1911 sq. mts.
of Solechrome Sheets imported from Canada by SSIPL for further
sale to UMC.
iii) M/s Surya Jyoti Devices India Private Limited (SJD) concerning
import of 3500 Solar Collectors which were being imported by it for
its commercial activities.
iv) SJD for import of 3000 float glass sheets for its commercial activities.
v) M/s Solar Energy Devices Company Private Limited (SEDC) of a
duty free import of Tedlar Polymer film from USA for its commercial
activities.
vi) SJD for duty free import of photovoltaic books from USA for its own
commercial activities.
The inquiry proceedings
20. The Presenting Officer (PO) representing the MNES before the IO
submitted 82 documents. The statements of 20 witnesses were recorded. The
proceedings of the enquiry dated 23rd May, 1997 show that the 20th witness
for the prosecution (SW-20) Mr. B. Jana who was required to attend the
hearing did not turn up. It was noted that Dr. Sootha had made a request
that the hearing may not be adjourned as he was retiring on 31 st August,
1997. The IO acceded to that request and proceeded with the hearing.
21. The proceedings also reflect that the Petitioner had through his Defence
Assistant (DA) handed over a letter dated 22nd May, 1997 to the IO with the
copy to the PO regarding 10 pending defence documents sought by him. The
IO was informed by the PO that the said balance 10 documents asked for by
the Petitioner were not available either with the DNES or CBI. Both the
Charged Officers (COs) i.e. Dr. Sootha and the Petitioner examined K.
Ramaswamy Achary, a Senior Scientific Officer in the MNES as DW-1. The
IO directed that both the POs and COs will submit their respective written
briefs.
The Petitioner's case before the IO
22. The PO then submitted a written brief on 6th June, 1997. The Petitioner
submitted his written brief on 16th June, 1997. Inter alia he pointed out that
the CBI which had recommended disciplinary proceedings decided not to
proceed with registering a criminal complaint or filing a charge sheet. It is
pointed out that the CBI decided to close the case under Section 173 Cr.PC.
The Deputy Superintendent of Police (DSP) of CBI Mr. R.S. Jaggi who was
cited as a witness for the prosecution in the departmental inquiry (i.e. an
SW) was in fact not examined as an SW. It is pointed out that Mr. Jaggi had
attended all the hearings upto 21st May, 1997. However, when his turn to be
examined as a last witness came up on 23rd May 1997, he did not turn up.
The Petitioner pointed out how sub-charges (iii) and (vi) did not concern the
Petitioner and yet the charge sheet wrongly mentioned that the applications
in those instances had been forwarded by him. As regards sub-charge (i), he
states that there was no signed NMIC application. According to the
Petitioner, therefore, sub-charges (i) (iii) & (vi) had to fail.
23. In his written brief submitted to the IO, the Petitioner pointed out:
"certain crucial and vital documents in which policy decisions
were taken with for solar energy equipments SEC would send
NMICs to DGTD and also issue CDECs to the importers has
been kept back by the Department and not produced despite
repeated efforts by CO-II and even sincere advice given by Shri
P.C. Sharma, DSP to the department. These have been solely
kept back for the reason that their mere production would
clearly establish that whatever CO-II did in the matter of
applying for NMICs was not only in accordance with but in
compliance with the policy decisions taken at the level of the
Secretary."
24. It was further pointed out:
"a large number of CBI listed witnesses (SWs) were not
produced by CBI, inspite of seeking the adjournment on
25.4.1997, including Shri R.S. Jaggi, DSP, CBI, ACB New
Delhi who was the Investigating Officer. In fact Shri Jana and
Jaggi did not turn up even upto the conclusion of proceedings
i.e. upto 7 PM on 23.5.1997."
25. It was also stated:
"Enclosed at Annexure „I‟ is a chronology of the continuous
and consistent efforts made by the CO-II and CBI to persuade
the Department to produce the relevant defence documents and
orders to the same effect made by the I.O. All these efforts
yielded no results as the department found that production of
these documents would lead not only to exoneration of the COs
but even the passing of strictures against the CBI/Department
IO. By way of illustrative examples, CO-II is enclosing
herewith at Annexure 'J' and 'K' copies of letters dated
22.10.1996 and 22.5.1997 from his DA to the I.O."
26. Importantly it was pointed out that the Petitioner himself had not issued
any NMIC and he had only sent applications for NMIC to the DGTD who
were at liberty to grant or reject the application.
Report of the IO
27. The IO submitted a report on 25th July, 1997 holding Articles 1(i) & (iii)
not proved, 1(ii) (iv) & (v) proved and 1 (vi) partially proved. In discussing
the evidence concerning Charge 1 (ii) it was noted by the IO that the Delhi
Energy Development Agency (Delhi Administration) (DEDA) had sent a
letter dated 10th May, 1985 to Dr. Sootha for exemption from payment of
import duty in connection with the installation of Solar Water Heating
System at the Holy Family Hospital by UMC. The letter for NMIC was
issued on 24th May, 1985 under the signature of the Petitioner. According to
the IO, this letter stated that the NMIC will be issued entirely for R & D
projects. The consignment already arrived at Bombay Port. The proforma
was signed by the Petitioner and the NMIC was obtained on the same date
i.e. 24th May, 1985.
28. The IO noted that Dr. Sootha had issued the CDEC on the same day
mentioning that the material was essential for research and will be used for
such purpose only. He had stated that before making a request for NMIC to
the DGTD approval of the Secretary, DNES was required. However, in the
case there was no documentary proof to show that the approval has obtained
from the Secretary. The file did not contain even a single note sheet. The IO
then straightaway concluded as under:
"From the above discussion, it is evident that the CO had falsely
certified that the imported material was required for R & D work
whereas the same was used for commercial purposes by the private
firm in the Holy Family Hospital, New Delhi without payment of any
custom duty. As such, on the basis of sufficient documentary
evidence, Article 1(ii) of the Charge is held as „proved‟.
29. Turning now to the other charge i.e. Charge 1 (iv) this was concerning
total of 4000 Float Glass Sheets imported by SJD, the discussion in the
inquiry report is essentially about the note prepared by Dr. Sootha that the
matter had been discussed with the Secretary and they should help private
industries to procure solar glass without paying customs duty. In forwarding
a letter of SJD dated 10th March, 1987 praying for permission to freely
import glass sheets and making application for NMIC on 14th December,
1988 to the DGTD, the Petitioner had in the forwarding letter of the same
date stated that the imported material was meant for R & D and SEC, the
CDEC was issued by Dr. Sootha on 24th March, 1989.
30. Reference was made by the IO to the deposition of Mr. S. S. Ahluwalia,
SW-11 who was the MD of SJD that the Float Glass was imported "by our
firm through SEC". The said witness referred to a Memorandum of
Understanding (MoU) between his firm and the Director SEC i.e. Dr.
Sootha. It was concluded by the IO that the above evidence made it clear
that the Petitioner had "facilitated the import of the 3000 glass sheets by
obtaining NMIC from DGTD in the name of the SEC by falsification
mentioning that the said material was imported for research work".
31. Charge 1 (v) pertained to import of Tedlar Polymer films by SEDC for
its commercial activities without payment of customs duty. According to
the IO, the Petitioner and Dr. Sootha had in their respective explanations
dated 23rd May, 1997 admitted to having issued the CDEC and obtaining the
NMIC from the office of the DGTD respectively. Here again the application
of NMIC was signed by the Petitioner on 20th May, 1987 and it was
concluded that the Petitioner had "obtained NMIC in the name of the centre
by falsely declaring that the said material which had actually been imported
by the private firms for its commercial activities was being imported for
research work of SEC."
32. Charge 1 (vi) concerned the import of Photovoltaic Goods from USA by
SJD. Again, the deposition of its M.D (SW-11) was referred to. As far as
the documents were concerned, they involved notings by Dr. Sootha. The
application for NMIC for three items was signed by one Mr. T. P.
Chatterjee, Stores Officer. An application for NMIC in respect of the
remaining two was signed by the Petitioner on 22nd July, 1988. The CDECs
of these items were given by Dr. Sootha. It was accordingly held that this
charge was "partially" proved.
Before the DA
33. A copy of the IO‟s report was furnished to the Petitioner for his
comments by a memorandum dated 16th October, 1997. On 17th November,
1997 the Petitioner submitted a detailed representation pointing out why the
report should be rejected. In the covering letter it was pointed out by the
Petitioner that he had been seriously prejudiced:
"due to Shri B Jana, now Joint Director absenting wilfully from
the inquiry on 23.5.97 when his cross-examination was midway
on the evening of 21.5.97. I submit that this does not behove a
senior officer of the rank of Joint Director in DOPT."
(ii) That:
"the Investigating Officer, Shri R.S. Jaggi, DSP, CBI, was
helping the Presenting Officer (PO), throughout the hearing on
all the days, all the time. However, when his turn came on
23.5.97, he conveniently absented himself and never turned
uptill 7.00 PM."
(iii) That:
"certain crucial & vital documents, in which policy decisions
were Taken with for solar energy equipment, SEC would sent
NMICs' to DGTD, have not been made available, inspite of
best efforts by myself, CBI & I.O."
34. He also pointed out that after completion of enquiry on 23 rd May, 1997
Dr. Sootha had retired more than 3 months thereafter on 31st August, 1997
and no action had been taken against him. He pointed out that:
"sheer injustice if a senior officer who got all the actions done
by us, a copy of his orders, on the foot of the letter, dated
18.9.85 for obtaining the NMIC from DGTD is placed at
Annexure-A, albeit correctly, is left unscathed and only I am
punished."
35. The Petitioner also pointed out that Mr. K. R. Achary, the then Purchase
Officer of the SEC (DW-1) "did exactly the same and yet on the same facts,
CBI has exonerated him."
36. In his detailed comments on each of the sub-articles of the charge the
Petitioner pointed out inter alia that NMICs were never issued by him and
they were all issued by DGTD. He had only given indigenous angle
clearance and it did not have financial bearings. None of the CDECs were
issued by the Petitioner. Each of them was issued by Dr. Sootha. He pointed
out that the NMICs were all issued by the DGTD on the basis of merits
following the procedure of the DGTD. He pointed out that:
"If there was anything wrong with the NMICs, Custom officials
who were trained specifically for this purpose should have not
accepted. Therefore, there was nothing wrong as far as filing of
NMIC applications with the DGTD is concerned."
37. A second stage consultation took place with the UPSC (Respondent
No.2 herein) and by a letter dated 17th June, 1999 the UPSC gave the
opinion that the charge against the Petitioner mentioned in sub-articles
1(ii)(iv)(v) stand fully proved and 1(vi) stands partially proved. The UPSC
advised that the ends of justice would be met if the penalty of compulsory
retirement from service was imposed on the Petitioner. Interestingly, the
UPSC explained that it had not recommended dismissal or removal from
service "since it could not be proved from the papers available that he
personally gained from the transactions nor the loss, if any, to the
Government could be quantified."
38. Thereafter, the DA passed an order dated 14th March, 2000 accepting the
second stage advice of the UPSC and imposed upon the Petitioner the
penalty of compulsory retirement from service vide order dated 14 th March,
2000. Inter alia it was observed:
"It is found from the case records that Shri Gupta did in fact
falsify Govt. records and there is no basis for blaming other
officers or Departments for this. Shri Gupta as a responsible
officer, should have satisfied himself by taking due care and
diligence while processing such applications as he was bound
by the provisions of the CCS (Conduct) Rules. It is found that
action was initiated against Shri Sootha and common
proceedings were held. Major penalty is being imposed against
Shri Sootha as well."
39. The Petitioner filed a Review Petition before the President of India as
DA but no order was passed thereon.
40. The Court is informed that as far as Dr. Sootha is concerned since he had
already retired by that date so a relatively mild punishment of stoppage of
few increments affecting his pensionary benefits was imposed on him.
41. Aggrieved by the above order the Petitioner filed OA No. 630/2001 in
the CAT challenging the memo of charges dated 9th November, 1994 as well
as the order dated 14th March, 2000 by which he was compulsory retired.
Impugned order of the CAT
42. The CAT while dismissing the Petitioner‟s OA by the impugned
judgment dated 29th November, 2001 came to the following conclusions:
(i) "there is evidence on record showing that certain
applications for obtaining NMIC were made by the applicant
and even the record shows that sometimes the applications were
made in such a hurried manner as if immediate action was
required to obtain the NMIC to clear the goods."
(ii) "Though for completion of certain projects some research
might have been required at the SEC Office but still the CAG
report also shows that the projects have been installed for
private purposes even the Holy Family Hospital is a private
institution and the installation of Solar Water Heater was to be
installed by M/s Universal Manufacturing Company Ltd. after
obtaining duty free 1911 Sq. Mts. of Solechrome sheets for
which the NMIC was felicitated by the applicant itself. Thus,
we find that there is evidence on record which has led to the
Inquiry Officer to hold the applicant guilty on some of the
charges."
43. The CAT then went to the question of scope of the judicial review in the
disciplinary proceedings and concluded as under:
"but we are unable to hold that the evidence available on record
show that the findings arrived at by the Inquiry Officer are in
any way perverse or based on evidence at all."
44. The CAT referred to the decisions in Union of India v. Upendra Singh
(1994) 27 ATC 200, Kuldeep Singh v. Commissioner of Police (1999) 2
SCC 10 to hold that the CAT cannot be sitting in appeal over the decision
arrived at by the Respondents and that the scope of the judicial review is
limited to reviewing the decision-making process.
45. As regards the Petitioner‟s submission regarding the prejudice caused to
him on account of non-supply of material documents, it was observed by the
CAT that the non-availability of documents, not within the power and
possession of the Respondents, could not vitiate the enquiry. A specific
contention was raised by the Petitioner that the charge was about the
Petitioner having issued NMIC, whereas it was in fact issued by the DGTD
and that there was a serious non-application of mind in issuing the charge-
sheet. This was negatived by the CAT by observing that the charges
distinctly said that the Petitioner "had obtained an NMIC from the office of
the DGTD, by falsely mentioning that the consignments were actually
obtained for private purposes, but was indicated the same was imported by
SEC for its research and development"
46. The present petition has been pending in this Court for over 18 years,
during which time, the Petitioner has gone well past his age of
superannuation. The counter affidavits, rejoinder affidavits and even reply to
the rejoinder has been filed.
47. This Court has heard the submissions of Mr R.S Raju, learned counsel
appearing for the Petitioner and Mr Vivek Goyal, learned CGSC appearing
for the Respondents. The settled position in law, as explained in Union of
India v. Upendra Singh and Kuldeep Singh v. Commissioner of Police
(supra) is that the scope of judicial review is essentially to examine the
validity of the decision-making process and not so much the decision itself.
Bearing this in mind, the Court first examines the validity of the procedure
adopted by the IO during the enquiry.
Non-furnishing of material documents
48. As already noticed, one of the grounds of challenge by the Petitioner to
the validity of the enquiry proceedings is the denial of at least ten important
documents including the file containing the policy decisions of the DNES/
MNES. The correspondence on record placed by the Petitioner shows that
he kept requesting for documents, which were crucial to his defence, and
yet, these were not provided to him.
49. Further, the daily order-sheets of the IO are replete with these requests, a
sampling of which reads as under:
"23.4. 1997: Despite 1O's order dated 7.11.1996 and repeated requests
made by S.K. Gupta, the defence documents have not been made
available even up to today.
21.5.1 997: Regarding the defence documents, the PO stated that he
will file a reply on 23.5.1997 with reference to the order sheet dated
25.4.1997. He further submitted that he could not comply with the
same as on date as he was busy with the other important work in his
own department.
23.5.1997: PO made an application on the last day of regular hearing
saying that balance 10 documents asked for by S.K. Gupta are not
available with the department/CBI."
50. The Petitioner also mentioned how he was permitted inspection of the
guard files of the DNES/MNES of the SEC for the years 1984-85 to 1989-
90, but those files were in fact not made available to him for inspection. By
a letter dated 10th October, 1996, the NMIC informed the CBI of the non-
availability of the guard files. At least ten vital documents having a bearing
on the case could not be produced and this did prejudice the defence of the
Petitioner.
51. This crucial aspect has been overlooked by the IO, and unfortunately by
the CAT as well. If these were in the custody of the Respondents, and they
could not be produced, it certainly prejudiced the case of the Petitioner. The
prejudice is further to be understood in the context of the averments in the
petition, where it has been explained by the Petitioner that the DNES was set
up for the first time and in its infancy stage i.e. in the years 1985-86 to 1988-
89, a concrete policy had yet to emerge. It is explained as to how pending
crystallization of such policy, there had been thinking and re-thinking in the
MNES itself about allowing and not allowing private parties to import
"through SEC" material into India for R&D, demonstration, testing and
standardization. It was only later in September, 1989, that the Secretary,
DNES noted that there should be no more such reports made, until and
unless a general policy is worked out, in agreement with IFT and
Department of Revenue. He also refers to the specific reply given by the
DGTD by his letter dated 17th January, 1992 to the CBI, wherein it stated
that in the five cases where the NMIC had been issued, it was in compliance
with the procedure.
52. That the denial of material documents to a charged officer is prejudicial
to his defence is well-settled. In Trilok Nath v. Union of India 1967 SLR
(SC) 759, in the context of denial of relevant documents to a charged officer
facing disciplinary proceedings, the Supreme Court held as under:
"Had he decided to do so, the document would have been
useful to the appellant for cross- examining the witnesses who
deposed against him. Again, had the copies of the documents
been furnished to the appellant he might, after perusing them,
have exercised his right under the rule and asked for an oral
inquiry to be held. Therefore, in our view the failure of the
Inquiry Officer to furnish the appellant with copies of the
documents such as the FIR and the statements recorded at
Shidipura house and during the investigation must be held to
have caused prejudice to the appellant in making his defence
at the inquiry."
53. The Court, therefore, concludes that the non-production of the relevant
files, did severely prejudice the Petitioner‟s defence. This has vitiated the
findings on each of the sub Articles of Charge.
Scope of judicial review
54. At this stage it would be useful to recall the scope of interference by this
Court in matters of the present nature. In State of Haryana v. Rattan Singh
(1977) 2 SCC 491, the Supreme Court explained the scope of interference
by the High Court with a domestic enquiry as under:
"4. .... in a domestic enquiry the strict and sophisticated rules
of evidence under the Indian Evidence Act may not apply. All
materials which are logically probative for a prudent mind are
permissible. There is no allergy to hearsay evidence provided
it has reasonable nexus and credibility. It is true that
departmental authorities and Administrative Tribunals must be
careful in evaluating such material and should not glibly
swallow what is strictly speaking not relevant under the Indian
Evidence Act. For this proposition it is not necessary to cite
decisions nor text books, although we have been taken through
case-law and other authorities by counsel on both sides. The
essence of a judicial approach is objectivity, exclusion of
extraneous materials or considerations and observance of rules
of natural justice. Of course, fair play is the basis and if
perversity or arbitrariness, bias or surrender of independence
of judgment vitiate the conclusions reached, such finding,
even though of a domestic tribunal, cannot be held good. ..."
55. In Union of India v. P. Gunasekaran AIR 2015 SC 545, the law in
relation to the scope of judicial review of the High Court under Article 226
of the Constitution in the context of departmental enquiries was summarized
by the Supreme Court thus:
"In disciplinary proceedings, the High Court is not and cannot
act as a second court of first appeal. The High Court, in
exercise of its powers under Article 226/227 of the
Constitution of India, shall not venture into re- appreciation of
the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in
that behalf;
c. there is violation of the principles of natural justice in
conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair
conclusion by some considerations extraneous to the evidence
and merits of the case;
e. the authorities have allowed themselves to be influenced by
irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary
and capricious that no reasonable person could ever have
arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the
admissible and material evidence;
h. the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court
shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the
same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings
can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks
its conscience."
56. This Court has in the present case already concluded that there was
serious infraction of procedural due process in denying to the Petitioner the
material documents which has resulted in prejudice being caused to him in
the disciplinary proceedings. The Court now proceeds to examine if as
contended by the Petitioner this was a case where the DA overlooked
material evidence and reached a conclusion that no reasonable person could
have reached or whether this was a case of no evidence.
Substratum of the charges
57. The substratum of the charges against the Petitioner is that:
(i) The Petitioner issued letters for custom duty exemption to various
authorities;
(ii) Obtained NMIC from the office of the DGTD; and
(iii) Falsely mentioning that the consignments, which were actually being
imported by private parties for their own commercial activities were
being imported by SEC for its research work. The sixth sub Article of
the main charge related to a particular transaction or occasions where
NMICs have been obtained in respect specific articles of import.
58. The Court would focus essentially on those sub Articles of the Charge,
which have been held to be proved, viz., 1(ii), 1(iv) and 1(v), as well as the
partly proved charge, viz., 1 (vi).
Analysis and reasons
59. The substance of sub Charge 1(ii) concerns the NMICs issued by the
DGTD for import of 1911 square meters of Solechrome sheets. These were
being imported from SCSPL, Canada. They were being sold to UMC. The
Court has perused the letter dated 10th May, 1985, written by the DEDA to
Dr. Sootha. It states that the work of installation of the solar water heating
system of the capacity of 24,600 litres per day at the Holy Family Hospital,
New Delhi was awarded to UMC. It states that UMC had agreed to supply
collectors made of selectively coated copper sheets manufactured in Canada.
The letter states that UMC informed DEDA that such solar collectors are not
being manufactured in India and their material is being imported first time
from Canada for the purpose. It is added that the said system of solar water
heating "is installed for demonstration purpose" and the material is used to
record the efficiency of the imported material, which is expected to be more
efficient than the Indian material. The letter ends by stating that UMC had
approached DEDA for exemption of custom duty on the imported material.
The request was that this should be considered on a priority basis. There are
two signatures on this letter, one saying "discussed with Secretary DNES",
which is by Dr. Sootha. The other has signatures of a Senior Scientific
Officer. Neither is, therefore, by the Petitioner.
60. The letter 24th May, 1985 written by the Petitioner to the DGTD reads as
under:
"Sir,
Enclosed kindly find herewith one set of application for Not
Manufactured in India Certificate for the above-mentioned
materials which will be issued entirely for R&D projects.
As the consignment has already arrived at Bombay Port, the
undersigned will appreciate an immediate action from your end
to issue the NMIC.
Sh. T. P. Chatterjee. Stores Officer of this department has been
authorised to receive the NMIC from your concerned section by
hand. To avoid any confusion at Bombay Customs Department,
the NMIC has been asked as per specification given in bil1 of
lading."
61. What the above letter in fact states is that the material will be "issued
entirely for R&D projects". It does not make any statement about whether
the import is by any private party. It is in this context that one needs to
understand the background. It is plain from reading the annual report of the
SEC for the years 1988-89 to 1991-92 that it is engaged for the development
of various materials and components, which are equivalent of importing
components. In its annual report of 1986-87 it has included a photograph of
the "solar water heating system at Holy Family Hospital, New Delhi". In the
annual report of 1988-89, in para 4, it talks of "field demonstration". The
said para reads as under:
"Field Demonstration
4. The Centre has executed various demonstration programmes
of the Department. A number of solar water nesting systems
were designed and installed at various places. Constant
monitoring and evaluation of these systems have helped in
improving the quality of water heating systems by identifying
limitations in design engineering, materials quality etc."
62. It must be recalled that this was the nascent stage of development of
solar energy in the country, as a non-conventional alternate energy source.
The effort was to have a research and development („R&D‟) carried out not
just in one place but at different sites. Enclosed with the petition is a copy of
the „Advance Information‟ placed before the Public Accounts Committee
(„PAC‟) for examination of paragraph 10.1 of the Report of C&AG of India
for the year ended 31st March 1997 (No.5 of 1998). This is basically about
the SEC. It inter alia states that the system designing of large number of
Solar Water Heaters for institutions such as Holy Family Hospital was
carried out by SEC. Further, at page 19 it mentions about 'jobs involving
developments of technology for manufacturing of solar flat plate collector
absorber utilizing imported selective coated absorber sheet'. This includes
the articles that were imported as mentioned under sub charge 1 (ii). The
MNES has in its Annual Report 1988-89 mentioned as an achievement that
Soar Water Heating Systems designed and installed by SEC through
constant monitoring and evaluation helped in improving the quality by
identifying limitations in design engineering, material quality etc.
63. These facts, which are already averred in detail in the present writ
petition, have not been denied by the Respondents. It is in this context that
the distinction between a R&D project being carried out by the SEC itself,
for which an import is made by the SEC itself and an import made „through
SEC‟ for the similar R&D, being carried out through the industry requires to
be understood.
64. When one peruses the CDEC issued by Dr. Sootha on 24th May, 1985, it
becomes plain that no information was in fact withheld. It may be recalled
that the involvement of the Petitioner was only to request the DGTD to issue
an NMIC and nothing more. The Petitioner in his letter did not give any
misleading information that the imported material would be used by the SEC
itself. He had stated that it would be used "entirely for R&D project" and
there was nothing untruthful about that statement. The water heating system
in the Holy Family Hospital was part of that R&D exercise, and not different
from it. In the CDEC in column (iv) it stated "source of finance". The
information is "Government of India". In the description of the project in
para 3, it was stated as under:
"Durability and reliability testing of Solechrome coating, with a
view to develop the product indigenously."
65. If the central charge was about the Petitioner having falsely stated that
the import was for an R&D project of the SEC, then the charge was clearly
incorrect, in view of the above factual background. There is merit in the
contention that the charge that the Petitioner had himself obtained the
NMIC, is incorrect. He had merely written to the DGTD, requesting for
issue of NMIC. The NMIC was issued by the DGTD.
66. There is also merit in the contention of the Petitioner that the witnesses
who spoke before the IO admitted that it was not automatic for an NMIC to
be issued, if there is a request made by the SEC. There have been instances
where such an NMIC has not been issued despite the request. For the
success of the solar energy development experiments, it was necessary that
for demonstration purposes, these projects are located in different places,
and Holy Family Hospital, was one such location.
67. Even in respect of charge 1 (v), the department had taken pride in its
Annual Report for 1988-89, that the SEC under its research under R&D
programme had developed low cost low weight high efficiency „flat rate
collective technology‟. This technology was in fact developed and the
knowhow was released, utilizing the imported material. As pointed out by
the Petitioner in the petition, which has not been denied by the Respondents:
"Further, the Department has taken the pride in its Annual
Reports for the years 1988-89, 1989-90, 1990-91 and 1991-92
that SEC is engaged in the development of various materials and
components for generating electric power through thermal route,
efforts are being made to develop equivalent of the imported
components of 50 KW Solar Thermal Power Plant, so as to
make the plant solely indigenous and to reduce the costs, the
development of all glass and plastic parabolic trough collectors
has also been taken up and development in indigenization efforts
specially in the area of electronic components and the receiver
tube are bearing results respectively. This effort surprisingly has
been made as sub-charge (iv) against the petitioner forms the
articles imported under sub charge I (iv)."
68. Unfortunately, the IO‟s report itself is not a detailed one, analysing the
testimonies of the witnesses, 20 in number, who deposed before the IO. The
testimony of the sole defence witness, who explained how the process of
issuance of a number of NMICs worked, material evidence in the form of
the policy documents and what is borne out in the Annual Reports and
correspondence referred to hereinbefore have been overlooked by the IO.
The conclusion reached is therefore that which no reasonable person would
arrive at in the circumstances.
69. In the considered view of the Court, the conclusions drawn by the IO, in
relation to the overwhelming evidence before him, which he plainly
overlooked can only be said to be perverse. The question required to be
answered was whether the Petitioner had made any false and misleading
statement that would have enabled the issuance of the NMIC. The evidence
on record in fact indicates to the contrary.
70. The IO appears to have conflated the roles of Dr. Sootha and the
Petitioner. A carefully reading of the entire report of the IO, would reveal
that in each of the sub Articles of Charge, while there is clear evidence as
regards Dr. Sootha, there is virtually no evidence as regards the Petitioner,
either about his „connivance‟ with Dr. Sootha, or about his making any false
statement, regarding the purpose of the import. What, however, clearly
emerges is that the Petitioner himself did not issue any NMIC, and certainly
was not involved at the stage of the issuance of the CDEC. The DGTD
appears to have been given full information about who was importing and
for what purpose. Given the fact that issuance of neither the NMIC nor the
CDEC was automatic, and further given the admitted position that the actual
quantum of loss, if any, was unable to be quantified, till the end, none of the
charges against the Petitioner, could be said to be proved.
Conclusions
71. For all of the aforementioned reasons, the Court finds that the
memorandum of charges and the enquiry report is required to be quashed
and are hereby quashed. The impugned order of the CAT is hereby set aside.
72. The pensionary benefits of the Petitioner would now be worked out on
the basis of his reinstatement in service on the date of the impugned order,
by which he was compulsorily retired. While the Petitioner would not be
entitled to arrears of pay, the pensionary benefits shall be worked out from
the date of the Petitioner‟s superannuation in the normal course, accounting
for all the increments that he would have earned upon reinstatement. All
other retiral benefits should also be computed accordingly.
73. The consequential orders be issued and the payments be made not later
than 12 weeks from today, failing which the Respondent would be liable to
pay the Petitioner simple interest @ 6% per annum on the said sum for the
period of delay.
74. The petition is allowed in the above terms with costs of Rs.20,000 which
will be paid by the Respondents to the Petitioner within eight weeks. The
pending applications are disposed of.
S. MURALIDHAR, J.
TALWANT SINGH, J.
JANUARY 29, 2020
mw/rd
