K.A. Bhardwaj vs Delhi Jal Board

Ajit Prakash Shah, C.J.—Admit.

Learned Counsel appearing for the respondent � Delhi Jal Board waives service. By consent of the parties, the appeals are taken up for hearing.

The appellants � Shri K.A. Bhardwaj and Shri Ramesh Chandra suffered a joint inquiry pursuant to two identically worded charge memos issued to them. The charges against the appellants were to the following effect:

(i) That the appellants failed to issue tender forms to M/s Rural Water Supply Company inspite of the fact that the requisite tender fee was submitted by the applicant.

(ii) That the appellants transgressed their jurisdiction by issuing tender form to Shri Rohtash Kumar Saini directly without the orders of EE(W) Najafgarh Zone.

The inquiry officer examined six witnesses for the department including the Executive Engineer concerned, and the complainant Shri Mahender Jain. The department also produced 14 documents whereas 8 documents were produced on behalf of the appellants. The inquiry officer considered the evidence adduced by the department and came to the conclusion that the complaint made by the contractor was not substantiated and appeared to be lacking in bonafides. The inquiry officer found as regards the first charge that the deposit of money for the issuance of the tender forms was within the knowledge of the Executive Engineer when he signed daily/petty cash book. It was also established that as per practice, the permission could also be obtained later on and that there was no established procedure for obtaining tender documents. As regards the second charge, the inquiry officer found complete absence of any evidence in support of the story of the complainant. It appears that before the inquiry officer it was stated that the appellants did not wait for the vigilance team after office hours even though message was passed on to them. This matter was adverted to by the inquiry officer incidentally while dealing with the first charge. Para 10 of the report reads as follows:

...Therefore after being issued NIT and earnest money deposited within time there is nothing wrong in issuing the tender form to such a firm by officer pending formal Order in view of deposition of SW-4 and SW-6 for a healthy competition as observed in Ex.D-8 by the same E.E. No malafide or ulterior motive has come in evidence during inquiry on the part of COs. However considering the evidence of SW-3 and SW-6 it was not proper on the part of both the COs not to wait for vigilance team and clarifying their position on the date of surprise check even after office hours.

(emphasis supplied)

The inquiry officer on the basis of the evidence adduced by both the parties came to the conclusion that both the charges were not proved. The inquiry officer, on the basis of above observation, concluded as follows:

Findings:

The charge proved partly against the COs to the extent observed in para 10 of this report.

The disciplinary authority furnished a copy of the inquiry report to the appellants and required them to comment about the same. The appellants had pointed out that both the charges have not been proved and it was also pointed out that there was a categorical finding that there was no ulterior motive or malafide in the conduct of the appellants. The appellants also stated that the expression ''partly proved'' used by the inquiry officer in his report appears to be incongruous and perverse.

The disciplinary authority after holding that the charges against the appellants have been proved partly, imposed 50% reduction of pay to one lower stage in the time scale of pay for a period of two years with a further direction that they will not earn increments of pay during the period of such reduction and the reduction will have the effect of postponing the future increments of their pay. Appeals preferred against the order of the disciplinary authority were dismissed by the appellate authority.

The appellants filed writ petitions under Article 226 of the Constitution of India challenging the order of the disciplinary authority as well as the appellate authority. The learned single Judge in the course of hearing of the matters had an occasion to peruse the file notings which showed that the disciplinary authority disagreed with the findings of the inquiry officer. In the light of these notings the learned single Judge held that the disciplinary authority did not communicate to the appellants the note of dissent or the reasons for disagreeing with the findings recorded by the inquiry officer. Thus the mandate of law laid down in the decision reported in Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, . Consequently, the learned single Judge quashed the orders of the disciplinary authority and the appellate authority and directed the disciplinary authority to grant an opportunity to the appellants to submit response to the note of disagreement/reasons for disagreeing with the findings of the inquiry officer and after considering the response of the appellants, to take a fresh decision and communicate the same to the appellants.

Learned Counsel appearing for the appellants strenuously contended that in the instant case the disciplinary authority has communicated an order accepting the finding of the inquiry officer and as such the decision of the Supreme Court in Punjab National Bank and Ors. v. Shri Kunj Bihari Misra (supra) is not applicable. He submitted that file notings of the matter cannot be relied upon. These only reflect the mental process of the authority and cannot be the basis for arriving at a decision by the Court. He drew our attention to the decision of the Supreme Court in Doypack Systems Pvt. Ltd. Vs. Union of India (UOI) and Ors,

Francis Bennion in "Statutory Interpretation" 1984 Edition page 526 para 238 stated that Hansard reports, and other reports of Parliamentary proceedings on the Bill which became the Act in question, are of obvious relevance to its meaning. They are often of doubtful reliability however (emphasis supplied). The documents in question which are sought for do not relate to the enacting history or any past enactment or the present enactment. The notings made in various Departments at various levels by the officers namely, the Under Secretary, Deputy Secretary, Joint Secretary, Secretary etc., whatever their view might be, is not the view of the Cabinet. The ultimate decision is taken by the Cabinet. So the notings cannot and are not guides as to what decision the Cabinet took.

Learned Counsel for the appellant also drew our attention that a similar view has been taken in a slightly different context in Puranjit Singh Vs. Union Territory of Chandigarh and others,

...For this purpose, he is relying upon certain notings either of the Chief Engineer or the Home Secretary of the Chandigarh Administration. Although it is not known how he came in possession of the said notings, it was improper on his part to produce these notings in the Court proceedings, assuming that he had come in possession of them authorisedly. As a responsible officer he ought to know that notings in the departmental files did not create any rights in his favour. It is the orders issued by the competent authorities and received by him which alone can create rights in his favour. This is apart from the fact that even those notings did not spell out any order in his favour. In the circumstances, the authorities on which the learned Counsel for the petitioner relied upon are inapplicable to the facts of the present case.

Learned Counsel for the appellants also drew our attention to the order of the disciplinary authority dated 11th September, 2003 which reads as follows:

Shri Ramesh Chandra s/o Shri Bachi Ram while working as UDC was issued a charge sheet for major penalty vide Memo No. DJB/VIG/DISP/MAJOR/CS-7/01/1072 dated 15.3.2001.

In brief, the charge against Shri Ramesh Chandra is that he transgressed his jurisdiction by issuing tender forms to Shri Rohtash Kumar Saini against NIT No. 12 without approval of the Ex. Engineer (W) Najafgarh. He also failed to give tender forms to the authorized representative of M/s. Rural Water Supply despite the approval on the requisition and thus gave undue favour to one contractor, discriminating the other one with malafide intention.

He submitted his reply in response to the charge sheet.

A regular departmental inquiry was conducted by Shri D.D. Lohani, E.O. (W). The Enquiry Officer submitted his enquiry report and partly proved the charge against Shri Ramesh Chandra.

A copy of the enquiry report was also sent to Shri Ramesh Chandra for comments. He submitted his reply in response to the findings of the enquiry report.

I, S.P. Marwah Member(Admn) being the disciplinary authority, after considering the facts & circumstances of the case in totality feel that the ends of justice would be met if penalty of Reduction of pay to one lower stage in the time scale of his pay for a period of two years with further direction that he will not earn increment of pay during the period of such reduction and the reduction will have the effect of postponing the future increments of his pay is imposed upon Shri Ramesh Chandra, UDC and I order accordingly.

Learned Counsel appearing for the appellants submitted and in our opinion rightly that the decision of the Punjab National Bank and Ors. v. Shri Kunj Bihari Misra (supra) has no application to the instant case. The said judgment would be applicable where the disciplinary authority disagrees with the findings in the inquiry report. In the instant case, the disciplinary authority has agreed with the findings of the inquiry officer which is evident from the fact that the disciplinary authority issued a notice to the appellants to submit representation against the same. It is clearly seen from the order of the disciplinary authority that he has imposed the punishment on the basis of the observations of the inquiry officer that the charge has been partly established. The inquiry officer has exonerated the appellants from both the charges. He has merely observed that the appellants did not wait after the office hours till the vigilance team visited the office. This was not the charge framed against the appellants. The conclusion of the inquiry officer that the charge is partly proved was thus clearly erroneous. Based upon this finding the disciplinary authority has imposed the punishment on the appellants.

It is pertinent to note that the respondent Board in its counter affidavit specifically took a plea that the decision of the disciplinary authority was one based upon careful consideration of the inquiry report and the representation filed against the inquiry officer�s finding. It was categorically stated that the punishment was imposed by the disciplinary authority after considering the reply of the appellants and the facts and circumstances of the case in totality. In these circumstances, in our opinion, learned single Judge was not right in directing a fresh inquiry relying on the decision in Punjab National Bank and Ors. v. Shri Kunj Bihari Misra (supra). In the result, the order of the learned single Judge is set aside insofar as it directs initiation of fresh inquiry. Needless to say that the impugned order of the learned single Judge quashing the order of the disciplinary authority and that of the appellate authority stands confirmed.

In LPA 554/2008 the appellant has prayed for opening of the sealed cover in respect of his promotion as Administrative Officer from the date his juniors were so promoted. The respondent is directed to open the sealed cover and if he is found recommended for promotion, he may be granted promotion from the date his juniors were so promoted. The appellant in LPA 582/2008 has been empanelled for promotion in September, 2001. He may also be considered for promotion from the date his juniors were so promoted, if he is otherwise found fit.

The appeals stand disposed of accordingly.