Delhi Transco Ltd and ors Vs. Sharad Chandra Sharma - Court Judgment

Excerpt:
* in the high court of delhi at new delhi + lpa 753/2011 delhi transco ltd & ors ..... appellants through: mr vibhav misra and ms latika chaudhary, advs. versus sharad chandra sharma ..... respondents through: ms jyoti singh, sr. adv with mr amandeep joshi with ms deepali and ms sahila, advs. coram: hon'ble the chief justice hon'ble mr. justice v.k. jain order % 05.03.2013 the respondent before us was working as a junior clerk with delhi electricity supply undertaking (desu), which later came to be reconstituted as delhi vidyut board (dvb). the respondent was arrested in a case registered under the provisions of prevention of corruption act, 1988 and an fir in this regard was registered against him on 16.04.1998. vide order dated 24.04.1998, additional general manager (a) of dvt passed an order inter alia stating as under:the more fact that it would be possible to go through the motions of conducting an enquiry, appointing an inquiry officer and calling the witnesses etc is not sufficient to be able to say that it is reasonably practicable to hold an enquiry. but it is necessary to consider the actual likelihood of successfully conducting an impartial enquiry keeping in view the prevailing circumstances of the case. so long as an officer of vigilance unit remains an employee, even under suspension he is able to exert influence through his colleagues, benefiting from a misguided loyalty among them and through junior officers who are bound to apprehend that they might be at some time in future have to work at the same place. further, it is possible that employee may not give evidence in the face of organizational hostility and the consequent threat of discriminatory treatment in future. in these circumstances, shri s c sharma is in an unusually advantageous position and would, therefore, normally be able to stall and delay the proceedings, influence the enquiry and prevent it being conducted in an effective and impartial manner. shri s c sharma was occupying an important position in the vigilance department meant for checking corruption and maintaining highest degree of integrity but the trap was laid by the anti corruption branch, govt. of delhi when he was enjoying the powers and owing the responsibility while working as an investigating officer in vigilance department. the fact and circumstances of the case are such that it would not be reasonably practicable to hold the department of enquiry against shri s c sharma by following the prescribed procedure under regulation 7,8 & 9 of desu(dmc) services (c&a) regulations, 1976.2. accordingly, dispensing with the inquiry envisaged in desu (dmc) services (c&a) regulations, 1976, he passed an order, dismissing the respondent from service which was to be a disqualification for future employment. the appeal filed by the respondent having been dismissed by the appellate authority dated 08.01.1999, he filed a writ petition challenging the order, dismissing him from service. the aforesaid order was challenged primarily on two grounds. the first ground taken by the respondent was that the additional general manager (a), who passed the order under challenge, was not competent to do so since under regulation 10 of the aforesaid regulations, he could be removed or dismissed from service only by the appointing authority and the officer who passed the said order was not his appointing authority. the writ petition having been allowed, the appellant is before us by way of this appeal.3. regulation 10 of the aforesaid regulations, to the extent it is relevant reads as under:10. notwithstanding regulations 7,8 and 9. anything contained in i) where an officer or other employee is removed or dismissed on the ground of conduct which has led to his conviction on criminal charge; or ii) where the authority empowered to remove or dismiss an officer or other employee, is satisfied for reasons to be recorded in writing that it is not reasonably practicable, to follow the procedure prescribed in these regulations, the disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit.4. the provisions contained in regulation 10 of desu (dmc) services (c&a) regulations, 1976 are identical to rule 19(ii) of ccs/cca rules which contains an identical provision. government of india vide dopt om no. 11012/11/85-estt. (a) dated 11.11.1985 and 04.04.1986 issued decisions/instructions under the aforesaid rule and to the extent it is relevant the said decision reads as under:6. there are two conditions precedent which must be satisfied before action under clause (b) of second proviso is taken against a government servant. these conditions are (i) there must exist a situation which makes the holding of an inquiry contemplated by art. 311(2) not reasonably practicable. what is required is that, holding of inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. it is not possible to enumerate all the cases in which it would not be reasonably practicable to hold the inquiry. illustrative cases would be (a) where a civil servant, through or together with his associates, terrorizes, threatens or intimidates witnesses who are likely to give evidence against him with fear or reprisal in order to prevent them from doing so; or (b) where the civil servant by himself or with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that the officer is afraid to hold the inquiry or direct it to be held; or (c) where an atmosphere of violence or of general indiscipline and insubordination prevails at the time the attempt to hold the inquiry is made. the disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the departments case against the civil servant is weak and is, therefore, bound to fail. it is important to note that the circumstances of the nature given in the illustrative cases, or other circumstances which make the disciplinary authority conclude that it is not reasonably practicable to hold the inquiry, should actually subsist at the time when the conclusion is arrived at. the threat, intimidation or the atmosphere of violence or of a general indiscipline and insubordination, for example, referred to in the illustrative cases, should be subsisting at the time when the disciplinary authority arrives at his conclusion. it will not be correct on the part of the disciplinary authority to anticipate such circumstances as those are likely to arise, possibly later in time, as grounds for holding that it is not reasonably practicable to hold the inquiry and, on that basis, dispense with serving a charge-sheet on the government servant.5. this is not the case of the appellant that the respondent or his associates had actually terrorized, threatened or intimidated any person who was likely to give evidence against him. this is also not the case of the appellant that the respondent himself or through others had threatened, intimidate or terrorized the disciplinary authority or the members of his family. there is no averment in the order in question that an atmosphere of violence or of general indiscipline and insubordination prevailed at the time the inquiry could have been made. unless there is actual threat, intimidation etc. or atmosphere of violence or of general indiscipline and insubordination is actually created at the relevant time, there would be no justification for dispensing with the inquiry, relying upon the aforesaid decision of the govt.6. in union of india vs. tulsiram patel [(1985) 3 scc 398], the supreme court, examining the power conferred by article 311(2) of the constitution of india to dismiss, remove or reduce in rank a civil servant from a civil service of the union or an all india services or a civil service of a state or holding a civil post under the union or a state, without holding an inquiry, inter alia, held as under: the finality given by clause (3) of article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. the court will also examine the charge of mala fides, if any, made in the writ petition. in examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. if the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. in considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. in order to decide whether the reasons are germane to clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. the matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court room, removed in time from the situation in question. where two views are possible, the court will decline to interfere.7. there is nothing on record to indicate that the authority which passed the order dismissing the respondent from service, had, available to it, any such material which could persuade him to hold that so long as the respondent was an officer of vigilance unit, despite being under suspension, he would be able to exert influence through his colleagues, benefitting from a misguided loyalty amongst them and through junior officers who would apprehend that they might, sometime in future, have to work at the same place. there was no basis for the concerned officer to conclude that the employees might not give evidence against the respondent on account of threat of discriminatory treatment in future. the view taken by the officer who passed the said order, therefore, was not on the basis of any material available to him and was only a product of his assumptions, which otherwise had no basis. admittedly, at the relevant time, the respondent was under suspension. it is difficult for anyone to accept that an employee who is under suspension would be able to influence the witnesses against him merely because of some possibility of his continuing in the vigilance department on conclusion of the inquiry against him. we are in agreement with the learned single judge that the reasoning in the aforesaid order casts a sweeping suspicion on all employees who could have been a witness in the inquiry against the respondent. in our view, mere possibility of the witnesses not supporting the department in the inquiry and not giving evidence against the delinquent employee, in the absence of any material justifying such an assumption cannot be a valid ground for dispensing with the inquiry. in the absence of any material justifying the conclusion that it was not practicable to hold an inquiry against the respondent, the order dismissing him from service cannot be sustained and has rightly been quashed by the learned single judge. the appeal is devoid of any merit and is hereby dismissed. there shall be no order as to cost. chief justice v.k. jain, j march 05 2013 bg/rd

Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 753/2011 DELHI TRANSCO LTD & ORS ..... Appellants Through: Mr Vibhav Misra and Ms Latika Chaudhary, Advs. versus SHARAD CHANDRA SHARMA ..... Respondents Through: Ms Jyoti Singh, Sr. Adv with Mr Amandeep Joshi with Ms Deepali and Ms Sahila, Advs. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE V.K. JAIN ORDER % 05.03.2013 The respondent before us was working as a Junior Clerk with Delhi Electricity Supply Undertaking (DESU), which later came to be reconstituted as Delhi Vidyut Board (DVB). The respondent was arrested in a case registered under the provisions of Prevention of Corruption Act, 1988 and an FIR in this regard was registered against him on 16.04.1998. Vide order dated 24.04.1998, Additional General Manager (A) of DVT passed an order inter alia stating as under:The more fact that it would be possible to go through the motions of conducting an enquiry, appointing an Inquiry Officer and calling the witnesses etc is not sufficient to be able to say that it is reasonably practicable to hold an enquiry. But it is necessary to consider the actual likelihood of successfully conducting an impartial enquiry keeping in view the prevailing circumstances of the case. So long as an officer of Vigilance Unit remains an employee, even under suspension he is able to exert influence through his colleagues, benefiting from a misguided loyalty among them and through junior officers who are bound to apprehend that they might be at some time in future have to work at the same place. Further, it is possible that employee may not give evidence in the face of organizational hostility and the consequent threat of discriminatory treatment in future. In these circumstances, Shri S C Sharma is in an unusually advantageous position and would, therefore, normally be able to stall and delay the proceedings, influence the enquiry and prevent it being conducted in an effective and impartial manner. Shri S C Sharma was occupying an important position in the Vigilance Department meant for checking corruption and maintaining highest degree of integrity but the trap was laid by the Anti Corruption Branch, Govt. of Delhi when he was enjoying the powers and owing the responsibility while working as an Investigating Officer in Vigilance Department. The fact and circumstances of the case are such that it would not be reasonably practicable to hold the department of enquiry against Shri S C Sharma by following the prescribed procedure under Regulation 7,8 & 9 of DESU(DMC) Services (C&A) Regulations, 1976.

2. Accordingly, dispensing with the inquiry envisaged in DESU (DMC) Services (C&A) Regulations, 1976, he passed an order, dismissing the respondent from service which was to be a disqualification for future employment. The appeal filed by the respondent having been dismissed by the Appellate Authority dated 08.01.1999, he filed a writ petition challenging the order, dismissing him from service. The aforesaid order was challenged primarily on two grounds. The first ground taken by the respondent was that the Additional General Manager (A), who passed the order under challenge, was not competent to do so since under Regulation 10 of the aforesaid Regulations, he could be removed or dismissed from service only by the Appointing Authority and the officer who passed the said order was not his Appointing Authority. The writ petition having been allowed, the appellant is before us by way of this appeal.

3. Regulation 10 of the aforesaid Regulations, to the extent it is relevant reads as under:

10. Notwithstanding Regulations 7,8 and 9. anything contained in i) Where an officer or other employee is removed or dismissed on the ground of conduct which has led to his conviction on criminal charge; or ii) where the authority empowered to remove or dismiss an officer or other employee, is satisfied for reasons to be recorded in writing that it is not reasonably practicable, to follow the procedure prescribed in these regulations, the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit.

4. The provisions contained in Regulation 10 of DESU (DMC) Services (C&A) Regulations, 1976 are identical to Rule 19(ii) of CCS/CCA Rules which contains an identical provision. Government of India vide DoPT OM No. 11012/11/85-Estt. (A) dated 11.11.1985 and 04.04.1986 issued decisions/instructions under the aforesaid Rule and to the extent it is relevant the said decision reads as under:6. There are two conditions precedent which must be satisfied before action under Clause (b) of second proviso is taken against a Government servant. These conditions are (i) There must exist a situation which makes the holding of an inquiry contemplated by Art. 311(2) not reasonably practicable. What is required is that, holding of inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate all the cases in which it would not be reasonably practicable to hold the inquiry. Illustrative cases would be (a) Where a civil servant, through or together with his associates, terrorizes, threatens or intimidates witnesses who are likely to give evidence against him with fear or reprisal in order to prevent them from doing so; or (b) Where the civil servant by himself or with or through others threatens, intimidates and terrorizes the officer who is the Disciplinary Authority or members of his family so that the officer is afraid to hold the inquiry or direct it to be held; or (c) Where an atmosphere of violence or of general indiscipline and insubordination prevails at the time the attempt to hold the inquiry is made. The Disciplinary Authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Departments case against the civil servant is weak and is, therefore, bound to fail. It is important to note that the circumstances of the nature given in the illustrative cases, or other circumstances which make the Disciplinary Authority conclude that it is not reasonably practicable to hold the inquiry, should actually subsist at the time when the conclusion is arrived at. The threat, intimidation or the atmosphere of violence or of a general indiscipline and insubordination, for example, referred to in the illustrative cases, should be subsisting at the time when the Disciplinary Authority arrives at his conclusion. It will not be correct on the part of the Disciplinary Authority to anticipate such circumstances as those are likely to arise, possibly later in time, as grounds for holding that it is not reasonably practicable to hold the inquiry and, on that basis, dispense with serving a charge-sheet on the Government servant.

5. This is not the case of the appellant that the respondent or his associates had actually terrorized, threatened or intimidated any person who was likely to give evidence against him. This is also not the case of the appellant that the respondent himself or through others had threatened, intimidate or terrorized the Disciplinary Authority or the members of his family. There is no averment in the order in question that an atmosphere of violence or of general indiscipline and insubordination prevailed at the time the inquiry could have been made. Unless there is actual threat, intimidation etc. or atmosphere of violence or of general indiscipline and insubordination is actually created at the relevant time, there would be no justification for dispensing with the inquiry, relying upon the aforesaid decision of the Govt.

6. In Union of India Vs. Tulsiram Patel [(1985) 3 SCC 398], the Supreme Court, examining the power conferred by Article 311(2) of the Constitution of India to dismiss, remove or reduce in rank a civil servant from a civil service of the Union or an All India Services or a Civil Service of a State or holding a civil post under the Union or a State, without holding an inquiry, inter alia, held as under: The finality given by Clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by Clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to Clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere.

7. There is nothing on record to indicate that the authority which passed the order dismissing the respondent from service, had, available to it, any such material which could persuade him to hold that so long as the respondent was an officer of Vigilance Unit, despite being under suspension, he would be able to exert influence through his colleagues, benefitting from a misguided loyalty amongst them and through junior officers who would apprehend that they might, sometime in future, have to work at the same place. There was no basis for the concerned officer to conclude that the employees might not give evidence against the respondent on account of threat of discriminatory treatment in future. The view taken by the officer who passed the said order, therefore, was not on the basis of any material available to him and was only a product of his assumptions, which otherwise had no basis. Admittedly, at the relevant time, the respondent was under suspension. It is difficult for anyone to accept that an employee who is under suspension would be able to influence the witnesses against him merely because of some possibility of his continuing in the Vigilance Department on conclusion of the inquiry against him. We are in agreement with the learned Single Judge that the reasoning in the aforesaid order casts a sweeping suspicion on all employees who could have been a witness in the inquiry against the respondent. In our view, mere possibility of the witnesses not supporting the Department in the inquiry and not giving evidence against the delinquent employee, in the absence of any material justifying such an assumption cannot be a valid ground for dispensing with the inquiry. In the absence of any material justifying the conclusion that it was not practicable to hold an inquiry against the respondent, the order dismissing him from service cannot be sustained and has rightly been quashed by the learned Single Judge. The appeal is devoid of any merit and is hereby dismissed. There shall be no order as to cost. CHIEF JUSTICE V.K. JAIN, J MARCH 05 2013 BG/rd