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Kailash Chand Gupta Vs. Chief Commissioner, Delhi Administration - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 590D of 1965
Judge
Reported inILR1970Delhi253
ActsConstitution of India - Articles 226 and 311
AppellantKailash Chand Gupta
RespondentChief Commissioner, Delhi Administration
Advocates: D.S. Golani and; S.S. Chadha, Advs
Cases Referred(Kshirode Behari Chakravarty v. The Union of India.
Excerpt:
.....311 is only regarding the regularity of his enquiry. the sufficiency of evidence on which the enquiry officer took a view unfavorable to the petitioner is not a matter which can he gone into by a court exercising writ jurisdiction on the application of one invoking the protection of article 311 of the constitution.; (ii) constitution of india - article 226--enquiry consistent with prescribed rules--reasons which induce punishing authority--not justiciable nor penalty open to review.; that the reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable, nor is the penalty open to review by the court. - - if the high court is satisfied that if some but not all of the findings of the tribunal were..........b. k. sharma filed on behalf of the delhi administration the letter dated 26-7-1963 appointing shri mehandru as an inquiry officer was not given effect to; shri mehandru functioned only in furtherance of the order dated 18-11-1963 appointing him as the inquiry officer. according to the petitioner, however, the appointment of shri mehandru even as early as 26-7-1963 and much before the charges as they were finaly framed were communicated, was invalid.(4) the petitioner wrote to the director of industries on 20-11-1963 (copy of the said letter is annexure to the petition) that he intended to produce shri mehandru as his principal defense witness since he happened to work under him for about three years and it was in his presence that he proceeded with the purchase of certain articles.....
Judgment:

Rangarajan, J.

(1) The petitioner, who was working as a Junior Clerk in the office of the Director of Industries, Delhi Administration, in the wing of the Community Project Officer, was promoted as a Senior Clerk with effect from the forenoon of 26th July. 1967 on an ad-hoc basis and was posted in the office of the Controller, Weights and Measures, Chandi Chowk by an order dated 28th July, 1962 (copy of which is annexure R-1 to the return filed by the Delhi Admi- nistration). It was specifically stated in that letter that the said appointment as Senior Clerk would not confer on the petitioner any claim to the regular appointment and seniority.

(2) During the period he was working as a Senior Clerk certain charges were leveled against the petitioner by means of a memo, dated 23rd May, 1963 (copy of which is annexure A to the writ petition) by the Director of Industries, Delhi. The petitioner submitted on 31-5-1963 an Explanationn to the memo. After the receipt of the said Explanationn the petitioner was informed by another memo, dated 4-10-1963 (copy of which is annexure C to the petition) that it was proposed to hold an enquiry under Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules 1957; he was also given a statement of the allegations which referred to nine charges against him.

(3) Before proceeding further with this aspect, it is necessary to note that by a letter from the Director of Industries, dated 26-7-1963, Shri H. L. Mehandru, Controller of Weights and Measures, was appointed as Inquiry Officer. Since under a rule 15(2) (a) of the concerned rules, the Inquiry Officer could be appointed at the time of communication of the charges and thereafter (but probably not before) by means of an order dated 18-11-1963 (a copy of which is annexure R. 3 to the return) the Director of Industries again appointed Shri H. L. Mehandru Controller Weights and Measures to enquire into the charges framed against the petitioner. According to the affidavit of Shri B. K. Sharma filed on behalf of the Delhi Administration the letter dated 26-7-1963 appointing Shri Mehandru as an Inquiry Officer was not given effect to; Shri Mehandru functioned only in furtherance of the order dated 18-11-1963 appointing him as the Inquiry Officer. According to the petitioner, however, the appointment of Shri Mehandru even as early as 26-7-1963 and much before the charges as they were finaly framed were communicated, was invalid.

(4) The petitioner wrote to the Director of Industries on 20-11-1963 (copy of the said letter is annexure to the petition) that he intended to produce Shri Mehandru as his principal defense witness since he happened to work under him for about three years and it was in his presence that he proceeded with the purchase of certain articles as ordered by the Office Superintendent and also shifted call bells from Rajpur Road to Old Secretariat, Delhi. In his Explanationn dated 29-10-1963 the petitioner requested that Shri R. L. Khanna a retired Superintendent of the Postal Department, be permitted to assist him in the departmental enquiry. Rule 15 sub-rule 5 enables a Government servant to present his case with the assistance of another Government servant, but this rule does not enable him to have the assistance of retired Government servant. The petitioner has, pointed out in this petition that in the case of a few other employees a retired Government servant was permitted to assist some delinquent officers. The Delhi Administration admitted this fact but pleaded that they were cases of transgression of rule and that the petitioner could not ask for such a transgression (of the rule.) The assistance of Shri Khanna having thus been denied to the petitioner, he defended himself at the enquiry conducted by Shri Mehandru.

(5) Shri Mehandru submitted his report finding that though there was no negligence in the matter of purchasing any article (shown to have been purchased) he had omitted to bring into the stock register the purchase of 50 gunny bags and of certain electrical goods, concerning the charge that the petitioner had not accounted for the disposal of some articles only a halting finding was reached in the following manner:--

'IT is hardly possible to concede that the articles mentioned in annexure 'A' have been fully accounted for. The charge against him, thereforee, stands proved.'

(6) Concerning the charge that the petitioner was guilty of dereliction of duty by not doing the typing work assigned to him (except one or two notes when he was strictly asked by the Community Project Officer to type the same), the Inquiry Officer considered the same to be proved. The Inquiry Officer further found that the defaulter used to be in his scat only for very brief periods each day and that he was not regular and punctual in attendance. There was a specific charge against him that he was found absent from duty without permission on the 7th August, 1963 between 10 A.M. to 11.45 A.M. and again between 2 P.M. to 3.45 P.M. When he was asked to submit his Explanationn by the 8th August, 1963 he did not do so until 3rd September , 1963. There was a still further charge that the petitioner did not attend office on 16th August, 1963 and did not attend the office even on l7th August till 1.15 P.M. when he submitted a leave letter through some one. According to the Inquiry Officer the above alone, but none of the other charges was proved against the petitioner. He also referred to the situation which came to light during the course of enquiry when the Inspector Anti-corruption Branch, Delhi Police was examined as petitioner's defense witness No. 11. The Inspector had admitted that the petitioner had helped him in the enquiry against Shri Sood, who was then the community Project Officer and had even taken some files from the office to the Inspector in order to make him understand the case pertaining to some of the concerned files. The Inquiry Officer was disturbed by this allegation of D.W. 11 and even doubted whether the petitioner had not contravened the Official Secrets Act.

(7) The punishing authority. Shri B. K. Sharma, who had by then become the Director of Industries, Delhi perused the Inquiry Officer's report and found a prima facie case for removal from service against the petitioner, he accordingly served a notice or the petitioner to which the petitioner replied. The petitioner was also given a personal hearing. In his order dated 27th June. 1964 (copy of which is annexure 'H') Shri B. K. Sharma found that there was no entry relating to 50 bags purchased by the petitioner in the course of his duty in the stock register and refused to accept the petitioner's Explanationn that he could not bring it into account owing to rush of work. He agreed with the Inquiry Officer that the petitioner had not been proved to be guilty of preferring any bogus claim cr making any false record of payment to labourers or hiring Rehra (as he was charged but that he was guilty of omission to make entries in the stock register concerning the purchase of 50 gunny bags and some electrical goods, which was explained by the petitioner as omissions to make the entries due to rush of work. He, however, agreed with the Inquiry Officer that the petitioner had been guilty of evading typing work on the false notion that being a U.D.C. it was beneath his dignity to type.

(8) Regarding his late attendance on 7th August. 1963 the Explanationn given by the petitioner was that he was ill and to substantiate the same he produced an outdoor patient ticket from the hospital. Mr. Sharma considered that illness could not be an excuse for late attendance. Concerning his being absent between 1 P.M. to 3.45 P.M., Mr. Sharma did not consider the Explanationn of the petioner that he had gone to the Old Secretariat office to receive his over-time bill as legitimate. In the light of the evidence that he was habitually late Mr. Sharma was inclined to hold the charge against the petitioner proved. Regarding the delay in submission of Explanationn which was required to be furnished by the 8th August but was furnished only on 3rd September. 1963, Mr. Sharma considered it as an act of indiscipline, which merited, in his opinion, as adverse a notice as insubordination; for the petitioner had not even requested for extension of time. Since Mr. B. K. Sharma was also of the opinion that the petitioner had intentionally damaged the typewriter entrusted to his charge and had also sought to do harm to his immediate officer by passing official information to the anticorruption department, the petitioner was not a fit person to be retained in service.

(9) In the appeal, however, the Chief Secretary took into account only the following:-

(1)That the amount of typing work done by the petitioner during the period from May, 1963 to September. 1963 when he was attached to the Community Project Officer, was far below average;

(2)That he remained absent from office on 7th August, 1963 from 10 A.M. to 11.45 A.M. and again from 1 P.M. to 3.45 P.M. for which he did not even submit his Explanationn as required by the Community Project Officer up to 3rd September, 1963 even though he had been directed to submit the same on 7th August, 1963;

(3)That he absented himself on 16th August, 1963 without prior permission; and

(4)That he had been negligent in effecting entries in the stock register of certain articles (as held by Mr. Sharma) soon after their receipt by him.

(10) It may be noticed that the Chief Secretary found that the charge of the petitioner putting the type machine borrowed from the Loan Section, out of order mischievously had not been established conclusively; nor was the charge of his failing to account for the purchase of certain electrical goods.

(11) On the basis of his findings, the Chief Secretary felt that the punishment imposed on the petitioner was excessive and that the ends of justice would be met by reverting him as a Lower Division Clerk, at the stage at which he was working prior to his promotion as U.D.C.

(12) Shri D. S. Golani, the learned counsel for the petitioner referred to the accusations made against the petitioner, in the memorandum of charges dated 23rd May, 1963 (copy of which is annexure 'A') as an attempt on the part of his official-superiors to find something or other wrong with him so that he may be got rid of and that the motive for doing so was the fact of the petitioner having passed on information to the anti-corruption department against his official superiors. These allegations, however, fall into place when it is seen that the final order was passed by the Chief Secretary, the appellate, authority in this case, against whom there has been no allegation whatever attributing any kind of mala fides to him. It is also necessary to bear in mind that on the question of the amount of typing work done by him it was an estimate which was equally found by the Chief Secretary who considered it to be 'farbelow average'. Regarding his absence for a certain period on 7th August, 1963 the petitioner himself admitted the above fact and gave an Explanationn which has not been found sufficient or acceptable. He was also unable to explain why he did not submit his Explanationn for the above absence, as directed, on 8th August, 1963. He had not even made so much as a request for more time, but delayed submitting the same till 3rd September, 1963. He had also admitted that he had been absent on 16th August, 1963 without prior sanction and that he submitted his leave application only later. The petitioner having been exonerated of the suggestion that he had willfully antedated the leave application submitted by him, the mere fact of his having submitted his leave application later would not carry the matter further against the petitioner, but as found by the Chief Secretary, his own admission that he did not make certain entries in the stock register inspire of his having received the articles undoubtedly shows negligence, which alone was inferred by the Chief Secretary in appeal. In view of the above features the petitioner cannot really advance his case by referring to non-supply of any document to him as required by him because even on his own showing none of the documents which he sought for (of which he is stated to have been given inspection) related to any of the matters found by the Chief Secretary in appeal as noticed earlier.

(13) We, are thereforee, left only with the question of legality of the entire procedure adopted in the course of the enquiry against the petitioner. I am unable to see any force in the attack that the Inquiry Officer had been appointed even as early as 26th July. 1963 when it is further seen that there was a further appointment of Shri Mehandru as Inquiry Officer on 18-11-1963 (under original of annexure R. 3). Mr. Mehandru having proceeded hold to an enquiry by virtue of this order I do not see how the enquiry conducted by him is in any way illegal.

(14) I attach still less weight to the argument of bias against Shri Mehandru. The only ground on which the petitioner objected to Mr. Mehandru being appointed as Inquiry Officer was on the ground of his being a principal witness for the petitioner vis-a-vis his being ordered to purchase durries, chicks and curtain-cloth from Central Jail and the shifting call bells from Rajpur Road building to the Old Secretariat, Delhi. None of these charges which have been the subject matter of this type is framed against him, much less is found by the Chief Secretary. In these circumstances the argument that the enquiry was vitiated owing to bias on the part of Shri Mehandru or Shri Mohandru being deprived to him as a defense witness is of no validity whatever.

(15) As laid down in State of Orissa v. Bidyabhushan Mohapatra 1963 S.C.R. Supple 1 the quantum of the punishment imposed by the appointing authority is not justiciable when at least one of those charges is ultimately established and it is by itself sufficient to support the penalty imposed, Shah J. observed as follows :-

'If the order of dismissal was based on the findings on charges 1 (a) and l(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interferred with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquence, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. The constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The reasonable opportunity contemplated has manifestly to be in accordance with the rules framed under Art. 309 of the Constitution. But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules is not justiciable : nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were 'unassailable', the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed was final, and the High Court had no jurisdiction to direct the Governor to review the penalty, for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. thereforee, if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether the ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the Inquiry Officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice.'

(16) A similar view was adopted by the Supreme Court in another recent decision also. Vide : (1969)IILLJ743SC (Railway Board representing the Union of India v. Niranjan Singh) Hegde, J. observed that if the order in an enquiry under Article 311 can be supported on any finding for which the punishment imposed can be lawfully imposed it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question.

(17) The obvious protection which a Government servant has under Article 311 is only regarding the regularity of the enquiry. The sufficiency of evidence on which the Enquiry Officer took a view unfavorable to the petitioner is not a matter which can be gone into by a Court exercising writ jurisdiction on the application of one invoking the protection of Article 311 of the Constitution vide 1970 S.L.R. 321 (Kshirode Behari Chakravarty v. The Union of India.)

(18) Yet another point raised was that when the Lt. Governor dismissed the representation of the petitioner his further representation to the President of India was with held and that this amounted to a denial of opportunity to make a representation to the President. While it is not denied in the return filed by the Delhi Administration that the petitioner had filed a petition to the President it was pointed out that the powers of the President as also the Chief Commissioner were concurrent and, thereforee, in view of the dismissal of the review petition by the Chief Commissioner his second application to the President of India was not competent. Shri D. S. Golani was unable to overcome this contention.

(19) There is no force at all in the contention of the petitioner that the Chief Secretary imposed a fresh penalty, without giving a further opportunity to the petitioner for it was within his competence under Rules 30(2) (c) to impose the same while dealing with the appeal filed by the petitioner, it was only a case of reducing of the punishment already imposed.

(20) It remains for me to notice the contention that the petitioner was not supplied with a copy of the order of the Chief Secretary passed in appeal. When the order of the Chief Secretary dismissing the petitioner's appeal was communicated to the petitioner (vide endorsement dated 1-1-1965, copy of which is annexure 'I' to the petition) he asked for a copy of the detailed order of the Chief Secretary. But the petitioner was told that the said order had already been communicated to him. It is now seen that the order, which was communicated to the petitioner was only that under which the Chief Secretary had directed his being reinstated as an L.D.C. but not the details of the Chief Secretary's speaking order. Shri Chadha during the hearing not only produced the original order of the Chief Secretary in appeal but also supplied a copy of the same which has been directed to be placed Along with the file of this Court. This is not a case where the petitioner could have alleged anything further against the reasons given by the Chief Secretary in support of his finding because these were for all practical purposes based upon petitioner's own admission. Probably if this order had been communicated to the petitioner he may not have filed the writ petition at all. For this reason I do not propose to saddle the petitioner with the costs of this writ petition.

(21) No valid grounds have been shown to set aside the order of punishment passed against the petitioner. The writ petition consequently fails and is dismissed but without costs.


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