Ram Khilawan vs Delhi Vidyut Board

Najmi Waziri, J.

CM 13664/2013(exemption)

Allowed, subject to all just exceptions.

The application stands disposed off.

LPA 647/2013 & CM 13665/2013 (condonation of delay)

The appellant is aggrieved by an order of the learned Single Judge dated 8th May, 2013 dismissing the writ petition No. 87/1998. The appellant''s grievance started when he was issued with a Memorandum proposing to enquire into his conduct on 8th March, 1997, detailing the articles of charges. The charges pertained to his alleged involvement in acts of instigating the innocent employees to get the House Building Advances from their GPF Accounts on the basis of bogus and fabricated documents and extract some part of the amount so sanctioned. Apparently, during the course of preliminary enquiry into the allegations, statement of various employees was recorded. The enquiry proceedings commenced and before the Inquiry Officer, some statements recorded during the preliminary enquiry were marked in evidence. While many individuals (whose statements were so recorded) did appear before the Inquiry Officer, some of them did not.

On the basis of his understanding and appreciation of the materials on record, the Inquiry Officer concluded that the petitioner was guilty of the misconduct which alleged to have been committed and so recorded it in the report dated 12th April, 1996. The Disciplinary Authority basing itself upon that report issued a show-cause notice on 07.03.1997 to the appellant requiring him to indicate why the penalty of dismissal ought not to be imposed upon him. The appellant responded to this by resisting the proposed action. Finally, on 10th November, 1997, the Disciplinary Authority, agreeing with the findings recorded by the Inquiry Officer, dismissed the appellant/petitioner. The appellant''s appeal to the Chairman of the then Delhi Vidyut Board, the predecessor of the respondent (hereafter referred to as "the BSES") was to no avail. He, therefore, approached this Court under Article 226 of the Constitution.

The learned Single Judge considered the submissions of the appellant who had urged that the pre-recorded statements made during the course of the preliminary enquiry could not have been made the basis of the material to base the findings of the guilt. The appellant further argued that the depositions of such of the witnesses who were examined during the regular enquiry were at variance with the pre-recorded statements and that the same had to be disregarded. The learned Single Judge considered the submissions and also took into consideration the materials on the record such as the pre-recorded statements as well as the deposition recorded by the Inquiry Officer. Thereafter by the impugned judgment, he dismissed the petition.

Mr. Sharma, learned senior counsel argues that the impugned order is in error of law because it has glossed over the most material circumstance that none of the witnesses who deposed during the enquiry had unambiguously or even otherwise implicated the petitioner and that none of the witnesses had stated that he (the petitioner) was responsible for any misconduct. The learned counsel relied upon testimonies of PW-2, PW-3, PW-4 and PW-5 to state that each of the witnesses had clearly stated that the amounts sanctioned pursuant to the applications made by them had in fact been received. Counsel argued that, in such circumstances, the evidence could be characterized as non-existent and, therefore, the order of the disciplinary authority had to be interfered with. In refusing to do so, urged counsel, the learned Single Judge fell into the error, which requires correction at the appellate stage.

This Court has considered the averments as well as the materials on record. An independent analysis of depositions of PW-2, PW-3, PW-4 and PW-5 would reveal that the appellant''s submissions are unfounded. PW-3 in his deposition stated that whereas a sum of Rs. 22,000/- was applied for, Rs. 18,000/- was sanctioned. In the re-examination -after certain attempts made during the cross-examination, this witness clearly stated that Rs. 14,000/- had been deducted. Likewise, PW-4 stated that of the amount applied for, only Rs. 11,000/- was received even though Rs. 18,000/- had been sanctioned. PW-5 likewise stated that he had applied for a loan for Rs. 18,000/- at the same time, omitted to mention what was the amount sanctioned. Yet he admitted that what was given to him was Rs. 14,900/-. Besides this, the Court notices that the deposition of PW-7 has been commented upon by the learned Single Judge. He stated, after analysing the evidence of PW-2 to 5 (and commenting that even if their evidence to be excluded altogether), the deposition of PW-7 was itself damaging and sufficient to record of the appellant''s guilt. This is what the learned Single Judge had to say in this regard:-

So far as the cross-examination of PW-7-Sh. Ram Achal is concerned, it is found that in the cross-examination this witness states that he did not give any amount to the petitioner for getting "payment of the loan advance". I do not find that this admission is in any manner destructive of the statement in examination-in-chief which talks of the petitioner and Sh. Chandan Singh paying a sum of Rs. 15,000/- not only for processing the loan application but also for getting the payment of PF loan. The second part of the statement in examination-in-chief of getting payment from PF loan may get negated by the admitted facts in cross-examination, however, the first part in the examination-in-chief of the processing of loan is not wiped out inasmuch as there is no admission in cross-examination in favour of the petitioner on this aspect.

This Court recollects that in enquiry proceedings, the employer is undoubtedly bound to follow the rules of natural justice and ensure that material evidence is considered. The reasons for an order of finding have to be based on materials which are gleaned or gathered during the course of such domestic proceedings. At the same time, there is no hard and fast rule that the Evidence Act applies to these proceedings. The authorities also suggest that even hearsay evidence can be acted upon. The Court finds as unpersuasive and insubstantial-the appellant''s argument-that there is no material indicative of his culpable conduct. The evidence of PW-2, PW-3, PW-4 and PW-5 which has been discussed previously as well as that of PW-7 is sufficiently damaging. The Inquiry Officer discussed in detail the evidence against each of the charged employees and the role played by the appellant. In these circumstances, the Court finds unconvincing the argument made that the appellant being illiterate could not have been the party to an alleged forgery. The material on record which found favour with the Inquiry Officer in his findings and report were to the effect that the role of the appellant was that of a dominant conspirator or instigator who directed the operations and was at the forefront of the objectionable activities. Having regard to the totality of the circumstances and the limited role of the Court exercising review under Article 226 of the Constitution (which is to intervene in such cases where the findings are not based on any evidence Union of India (UOI) Vs. H.C. Goel, or the procedure adopted by the Inquiry Officer or Disciplinary Authority is patently illegal or irregular or where the action is lacking in bona fide), and there being no such vitiating circumstances apparent to the Court from the material on record, this Court accordingly agrees and affirms the findings of the learned Single Judge.

The appeal is consequently dismissed.