Delhi District Court
Sh. Kk Chabbra vs The General Manager on 1 July, 2023
IN THE COURT OF SH. PRITU RAJ : CIVIL JUDGE :
NORTH DISTRICT, ROHINI COURTS : DELHI
Suit No.: 34987/16
CNR No. DLNT03-000083-2011
In reference:
Sh. KK Chabbra
s/o Sh. JD Chabbra
r/o C-15-A, Shivaji College,
Slum Wing, DDA flats,
Shivaji Enclave, Raja Garden,
Delhi-27. ............Plaintiff
Vs.
1. The General Manager,
Haryana Roadways
GTB Nagar, Delhi-9.
2. Haryana State
Through its Secretary Transport
Govt. of Haryana, Chandigarh
3. The General Manager,
Haryana Roadways
Faridabad, Haryana.
4. The General Manager,
Sh. SN Dhingra,
Haryana Roadways,
Sonepat, Haryana. .........Defendants
Date of Institution : 25.02.2011
Date of reservation of Judgment : 08.06.2023
Date of Judgment : 01.07.2023
Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 1 of 50
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendants seeking the relief of declaration and mandatory injunction.
PLAINT:
2. The facts necessary for the determination of the present case are that the Plaintiff was employed as a building clerk in Haryana Roadways, having been appointed in the year 1982, and was subsequently transferred to Delhi in the year 1985. The Plaintiff claims that he was falsely accused of embezzlement and was suspended vide order dated 15.11.1988 with a chargesheet being served upon him on 12.06.1989 under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 [hereinafter referred to as 'The Rules']. Displinary proceedings were initiated which culminated, vide order dated 22.03.1994, whereby three increments of the Plaintiff was stopped and the subsistence allowance paid to him was restricted and the Plaintiff was reinstated w.e.f. 03.08.1994. The Plaintiff claims that the order of reinstatement was never served upon him properly as a result of which, he could not join his duty which led to his suspension again vide order dated 07.12.1995 and a second chargesheet u/R 7 of The Rules was served upon the Plaintiff. Vide order dated 15.01.2008, a penalty of dismissal of the Plaintiff from service was imposed and the same was subsequently confirmed vide order dated 30.10.2009. It is case of the Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 2 of 50 plaintiff that both the departmental proceedings suffer from material irregularities. While during the first disciplinary proceedings, the Plaintiff has alleged that he was not supplied copy of the chargesheet, statement of witnesses and the documents annexed with the chargesheet along with his request for the assistance of an advocate was also denied, during the second disciplinary proceedings, the Plaintiff claims that since the order of reinstatement was never served upon him in the proper manner, he could not join his duty and hence, claims that the second disciplinary proceedings were instituted in a foul manner with the intention of getting the Plaintiff expelled from the services. The Plaintiff has also averred in his pleadings that the charges of embezzlement against him were false and concocted and he has also averred that his appeal against order dated 15.01.2008 was erroneously decided by the financial commissioner. Accordingly, the present suit has been filed seeking the relief of declaration and permanent injunction to the extent contained in the prayer clause.
RELIEF:
3. Following reliefs have been sought on behalf of the plaintiff in the plaint:
(i) To pass a decree of declaration in favour of the plaintiff and against the defendants declaring thereby that the disciplinary enquiry is malafide and no opportunity has been given. Also, no document has been given. The punishment awarded to the Plaintiff. The order issued vide I) Orders no. 192 Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 3 of 50 292EAIV E1 dated 15.01.2008, II) 2/12/2001 2T(1) dated 30.10.2009 and endorsement dated 12.11.2009 for stopping of three increment vide PC order no. 3117/EA VI/E1 dated 22.03.1994, III) Order no. 1896/EA VI/E1 dated 08.08.1989, IV) Order no. 3117/EAVI/E1 dated 22.03.1994 and an order issued from enquiry till date may be declared as null and void and be cancelled with consequential relief thereof. The Plaintiff may also be granted interest @ 18% p.a. on the payment for the intervening period which is deducted and not restored till date.
(ii) Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendants thereby restraining the Defendants from enforcing the said order no. End.No.2/12/20082TT(1) dated 12.11.2009 and order no. End.No.691417/EA4/EI dated 28.06.2006.
(iii) Costs of the suit be also awarded in favour of the Plaintiff and against the Defendants.
(iv) Any other relief.
DEFENCE:
4. The Defendants entered appearance on 06.06.2011. Vide order dated 16.12.2011, the amended plaint of the Plaintiff was taken on record and the amended WS of the Defendants was filed on 18.02.2012. In the said WS, they stated that the plaintiff has not come to the court with clean hands and claimed that the Plaintiff has suppressed material facts, as elabourated by the Defendants in para 2 of their preliminary submissions of the WS. Apart from the same, the Defendants raised the objection that the Plaint is devoid of any cause of action, has not been properly Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 4 of 50 valued and is barred by limitation. An objection as to the subject matter jurisdiction was also raised in para 7 of the preliminary submissions / objections.
5. Vide order dated 09.04.2012, the following issues were framed: (I) Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP (II) Whether the Plaintiff is entitled for the decree of mandatory injunction as prayed for? OPP (III) Whether the plaintiff has suppressed the true and material facts from this court? OPD (IV) whether this court has any territorial jurisdiction to try this case? OPP (V) Relief.
6. To substantiate his case, the plaintiff has examined six witnesses. PW Rakesh Kumar was examined as PW1, PW KK Chabra was examined as PW2, PW Raj Kumar was examined as PW3, PW Naresh Kumar was examined as PW4, PW Jatinder Sharma was examined as PW5, PW Devi Ram was examined as PW6 and PE was closed vide order dated 13.01.2016.
DEFENDANTS' EVIDENCE:
7. The defendant examined three witnesses as defence witnesses. DW Rajbir Singh s/o Sh. Mahalla Ram was examined as DW1, DW Jitender Sharma was examined Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 5 of 50 as DW2 and DW Pawan Kumar was examined as DW3 and DE was closed on 06.07.2022.
FINDINGS OF THE COURT:
8. Before embarking to decide the present case, it would be appropriate to reiterate the burden of proof required to be discharged in civil proceedings. As laid down in Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330, the burden which ought to be discharged in civil proceedings in not as strict as in criminal cases and in order for any party to succeed, he/it is required to prove his/its case on the preponderance of probabilities. The relevant portion of the aforesaid pronouncement is hereby produced here for the sake of brevity:
"It has been held that there is a marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt."
9. Further, Section 101 of the Evidence Act, 1872 defines "burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 6 of 50 court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
10.Having determined the burden of proof required to be discharged in civil cases, this court will now proceed to give its issue wise findings as per the issues framed on 09.04.2012, are as follows: Issue No. (IV) (IV) whether this court has any territorial jurisdiction to try this case? (OPP)
11.The burden of proving this issue was upon the plaintiff. In order to discharge the said burden, the plaintiff has averred in para 21 of his plaint that since he had been working at the Kingsway Camp Office of Haryana Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 7 of 50 Roadways, Delhi and that he was chargesheeted by the General Manager at Delhi, this court has the jurisdiction to try the present suit. Per contra, the joint written statement of defendant no. 1 to 4 denies the contents of para 21. However, the denial in para 21 of the reply on merits in joint WS is a general denial. Be that as it may, this court will now proceed to determine whether the plaintiff has discharge the burden placed upon him qua the territorial jurisdiction of this court. The provisions as regards the place of suing, is contained from Section 15 to Section 20, Code of Civil Procedure, 1908 [hereinafter called CPC]. The provision relevant for the present suit is Section 20 which states, among other scenarios laid down therein, that a suit can be instituted where the cause of action arises, wholly or in part. As regards the term 'cause of action', it would be prudent to reiterate the meaning of same. Cause of action, as defined by Hon'ble Apex Court in ABC Laminart Pvt. Ltd. Vs. AP Agencies, Salem (1989) 2 SCC 163 means a bundle of facts which has to be proved by the Plaintiff in order to succeed. It basically means the existence of a right in favour of the Plaintiff and denial of the same by the Defendant. The meaning of the term was further substantiated in the decision of Hon'ble Apex Court, Rajasthan High Court Advocates' Assn Vs. Union of India (2001) 2 SCC 294 where it was held as follows :
Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 8 of 50 "The expression "cause of action" has acquired a judicially-settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.
Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action". It has to be left to be determined in each individual case as to where the cause of action arises."
12.The proposition of law which arises upon a perusal of the aforesaid pronouncements is that even though each and every fact does not constitute a part of the cause of action, every fact which the Plaintiff has to prove in order to succeed in the suit, would constitute a part of the cause of action and a suit can be instituted anywhere where the cause of action arises, either wholly or in part. Applying the aforesaid ratio to the facts of the present case, a perusal of the plaint of the plaintiff shows that the plaintiff has claimed that he was chargesheeted for the first time on 12.06.1989 while he was posted at the Kingsway Camp office of Haryana Roadways wherein the alleged act of embezzlement by the Plaintiff had been committed and the said fact has been admitted by the defendants in their joint written statement. The defendants have also admitted that the plaintiff was chargesheeted by the General Manager Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 9 of 50 of Delhi Office of the defendants which consequently led to the initiation of disciplinary proceedings and the resultant termination of the plaintiff from services of the defendants. The upshot of the aforesaid discussion is that the cause of action in the present suit had arisen, at least in part, within the territorial jurisdiction of this court since the factum of suspension and subsequent chargesheet is necessary to be proved for the suit of the Plaintiff to succeed and the said facts accordingly form a part of the cause of action. Hence by virtue of Section 20 CPC, this court has the jurisdiction to try the present suit. The contentions / objections of the defendants and the nature of defence set up by them has no relation with the cause of action alleged by the plaintiff since the same is dependent and has to be determined entirely from the grounds set forth in the plaint. The reliance in this regard is placed on Chand Kour Vs. Partab Singh (IA PP.15758) wherein it was held as follows:
(IA pp. 157-58) "The cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.
13. This issue is accordingly decided in favour of the plaintiff and against the defendants.
Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 10 of 50 (Issue no. III) Whether the plaintiff has suppressed the true and material facts from this court? (OPD)
14. The burden of proving this issue lay upon the defendants.
However, no evidence whatsoever was adduced by the defendants to discharge the said burden. This issue is accordingly decided in favour of the plaintiff and against the defendants.
(Issue no. I & II) Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP and Whether the Plaintiff is entitled for the decree of mandatory injunction as prayed for? OPP
15.Both these issues are being taken up jointly for the purpose of adjudication as their determination would involve the appreciation of common facts and law. The burden of proving of these issues lay upon the plaintiff.
16. Before proceeding any further, it would be appropriate to discuss the extent of a Civil Court's jurisdiction to deal/interfere with a departmental enquiry. The law in this regard is no longer res integra and has been crystalized by various pronouncements of the Hon'ble Apex Court and Delhi High Court.
Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 11 of 50
17.In State of Karnataka versus Umesh (2022) 6 SCC 563, while dealing with the issue at hand, it was observed as follows:
"17 In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of misconduct is based on some evidence; (iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and (iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct.
18.Similarly, in Delhi Transport Corporation vs Shri Ram Phal, RSA No.95/1988, DOD 01.04.2011, it was held as follows:
"14 The impugned judgment had rightly noted that the respondent is a statutory body and is governed by the statutory rules and regulations. Even if the dispute raised is an industrial dispute arising out of a right under general common law, the civil court would have the jurisdiction to entertain such a suit. In AIR 1987 SC 2043 Ram Kumar Vs. State of Haryana where a bus conductor had filed a suit challenging the legality of his order of termination issued by the Haryana State Transport Corporation; contention of the plaintiff being that his termination is violative of natural justice, it was held that the civil court had the jurisdiction to entertain such a suit.
15 The finding in the impugned judgment qua this issue was returned as follows:-
Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 12 of 50 "Coming to the facts of the present case, DTC is a statutory body and if the statutory body acts in the branch of any of its regulations, the effected party has a right to come to the civil court. The Hon‟ble Supreme Court in AIR 1970 1244 held that when a statutory statute is given to any employee then there has been any violation while determining the service of such employee, such employee is to get relief of declaration that order is null and void and that he continues to be in service. The remedy under the termination of service lies under the industrial Dispute Act but remedy for declaration is in contravention of certain statutory rules is within the jurisdiction of the Civil Court. Thus the labour court and civil courts have concurrent jurisdiction in the matter and as the case of the plaintiff falls under second category as laid down by the Hon‟ble Supreme Court in AIR 1975 Supreme Court 2037. In AIR 1987 S.C. 2043 the Hon‟ble Supreme Court while dismissing the suit on merits did not up set findings of the ld. ADC that the civil court had jurisdiction to try the suit in which termination of a conductor of Haryana Roadways was challenged. I, therefore, hold that the civil courts have jurisdiction to try the suit. The ld. Trial court rightly decided issue no. 1 in favour of the plaintiff and against the defendant and the present suit is not marred as alleged by the defendant."
16. There is no perversity in this finding. A civil suit was maintainable; jurisdiction of the civil court was not ousted. Substantial question of law No. 1 is answered in favour of the respondent."
19.Similarly, in Chairman-cum-Managing Director, Coal India Ltd. and Anr. v Mukul Kumar Choudhuri and Ors, AIR 2010 SC 75, it was held as follows:
"In the case of State of Andhra Pradesh and others v. Chitra Venkata Rao AIR 1975 SC 2151, Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 13 of 50 this Court considered the scope of judicial review in dealing with departmental Civil enquiries and held :
21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao (AIR 1963 SC 1723). First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a Court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 14 of 50 arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
22........
23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate Court. The findings of fact reached by an inferior Court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings.
An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to Civil Suit No.183/10 sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan (AIR 1964 SC 477).
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 15 of 50 finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence.
That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."
20.In Narinder Mohan Arya v United India Insurance Co.
Ltd. and Ors., AIR 2006 SC 1748, it was held as follows:
"In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam and Anr. v. Mahendra Kumar Das and Ors.[ (1970) 1 SCC 709 : AIR 1970 SC 1255] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand v. Union of India and Ors., AIR 1958 SC 300 and State of Uttar Pradesh v. Om Prakash Gupta, (1969) 3 SCC 775]. (3) Exercise of discretionary power involve two elements - (i) Objective and (ii) subjective Civil Suit Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 16 of 50 No.183/10 and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi v. State of Bank of India and Ors. [ (1984) 1 SCC 43 : AIR 1984 SC 273]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh v. State of Rajasthan [ AIR 1986 SC 995] (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal. [See Director (Inspection and Quality Control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Ors. [1987 (2) CLJ 344]. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India Ltd. v. Prakash Chand Jain, AIR 1969 SC 983, Kuldeep Singh v. Commissioner of Police and others, (1999) 2 SCC 10]."
21.The ratio of the aforesaid pronouncements is that while a Civil Court cannot sit in Appeal over a departmental enquiry or the Orders passed by the disciplinary authority, in exceptional circumstances, as reiterated in the aforesaid judgments, the jurisdiction of a Civil Court to interfere with a departmental enquiry or the Orders passed by the disciplinary authority remains intact to the extent stated above. Having regard to the aforesaid settled position of law, this court will now proceed to examine, one by one, the challenges / objections of the Plaintiff to the procedure Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 17 of 50 adopted during the disciplinary inquiry and the consequent order of termination.
22.The first challenge raised by the plaintiff to the departmental proceedings is that he had been suspended by the GM, Haryana Roadways, Kingsway Camp Delhi, who had no authority to suspend him. A perusal of Rule 4A of The Rules enumerates the authority/s as well as the circumstances under which an employee can be placed under suspension. The same is being reproduced below for the sake of brevity:
"4A. Suspension (1) The appointing authority or any other authority to which it is subordinate or the punishing authority or any other authority empowered in that behalf by the Governor by general or special order, may place a Government employee under suspension
(a) Where a disciplinary proceedings against him is contemplated or is pending, or
(b) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial;
Provided that where the order of suspension is made by an authority lower than the appointing authority such authority shall forthwith report to the appointing authority the circumstances in which the order was made. "
23.A careful reading of the aforesaid rule shows that the authority to suspend a Govt. employee lies not only with the appointing authority of such employee but also with the punishing authority, who has been conferred the power of suspension subject to the fulfillment of the prerequisites laid down in the aforesaid rule. While the term, punishing Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 18 of 50 authority has not been defined in the rules, the same must be given its logical meaning i.e. it would denote an authority who would be having the power to impose penalties upon the employees for transgressions committed by them. In the present case, as per the whole version of the plaintiff, while he was working at the Kingsway Camp office, the entire authority qua the said office vested in the GM of the said Depot/office and the GM Delhi was infact appointed as the first inquiry officer in the departmental proceedings to decide the penalty to be imposed upon the Plaintiff. Hence, the said GM would fall within the definition of the term 'punishing authority'. Hence, the contention of the plaintiff that his suspension was illegal is devoid of any merit. While the plaintiff has also sought to rely upon memo bearing no. 10291304/AE3/EII dt. 14.12.1982 which specifically barred General Managers from suspending any employee without the prior approval of the State Transport Commissioner (STC), the said memo was not adduced as documentary evidence on behalf of the plaintiff and owing to the failure of the plaintiff to adduce the same, no reliance can be placed upon the oral averments of the plaintiff qua the said memo. Accordingly, in the light of the aforesaid observations, the first objection as regards illegality of plaintiffs suspension, raised by the plaintiff, is hereby rejected.
24.The second objection raised by the plaintiff is that he had not been supplied the chargesheets and the statement of Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 19 of 50 witnesses recorded during the first departmental inquiry. In the present suit, the plaintiff had been chargesheeted twicefirstly, on 12.06.1989 and secondly, on 07.12.1995. The plaintiff has claimed that neither of the chargesheets or the statements of witnesses was supplied to him. The objections of the plaintiff qua both the chargesheets, to the extent mentioned above, will be taken up for determination one by one.
25.As regards the first chargesheet dated 12.06.1989, a perusal of the departmental enquiry shows that the statement of the witnesses were recorded during the course of conducting the departmental enquiry and hence no question arises of providing the statements of such witnesses to the plaintiff beforehand on account of simple reason that no such statement was either recorded or relied upon by the witnesses during the course of conduct of departmental enquiry. No reference in this regard, ie., statements of witnesses being recorded earlier, has been made in the enquiry report. Further, as regards the contention of the plaintiff that the chargesheet dt. 12.06.1989 were not provided to him also deserves to be rejected since, a perusal of said chargesheet shows that a copy of the same was duly sent to the plaintiff, as corroborated by the name and designation of the plaintiff which was duly mentioned in the chargesheet. It would also be appropriate to state here that despite the plaintiff raising the objection that the copy of statement of the Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 20 of 50 witnesses of the department was not supplied to him, apart from the fact that the statement of the witnesses were recorded during the course of conducting the departmental enquiry and in front of the plaintiff, the fact that the witnesses were crossexamined at length by the plaintiff, also negates his argument as to violation of the Principles of natural justice. Hence, objections of the plaintiff as regards the first chargesheet dt. 12.06.1989 qua the non supplying of the chargesheet and statement of witnesses ought to be rejected.
26. Now coming to the objections raised by the plaintiff qua the second chargesheet, it is the version of the plaintiff that after the conclusion of departmental proceedings arising out of the first chargesheet, even though he had been reinstated vide order no. 1073436/EA6/E1 dt. 28.09.1994 w.e.f. 03.08.1994, the said order of reinstatement was neither served nor communicated to him and hence the resultant suspension and chargesheet for nonjoining of duties after the reinstatement ought to be declared null & void on account of it being violating the principles of natural justice. The plaintiff has claimed that the aforesaid order of reinstatement was not sent at his actual address of C15A, Shivaji college, Raja Garden, Delhi but the same was sent at address bearing no. E15A, Shivaji college, Raja Garden, Delhi and that the said miscommunication was intentional on behalf of the defendants and owing to the noncommunication of the Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 21 of 50 order of reinstatement, the resultant departmental proceedings have no sanctity in the eyes of law since the Plaintiff had no knowledge about his reinstatement as a result of which, he could not join his duties. The same has been vehemently disputed and denied by the defendants.
27.Upon perusal of the material on record, it becomes apparently clear that the address of the plaintiff, which was duly known to the defendants, is C15A, Shivaji college, Raja Garden, Delhi. The said fact is corroborated by various documents issued by the Defendants and relied and adduced by the plaintiff on his behalf, which are enumerated as follows:
(i) Ex. PW2/1 which is the communication issued by the GM, Haryana Roadways, Faridabad upon the plaintiff for recovery of dues, was addressed at the C15A, Shivaji college, Raja Garden, Delhi address of the plaintiff.
(ii) Ex. PW2/5, which contained the objections and submissions of the plaintiff to the report of the enquiry officer dt. 22.03.1994, also mentions the address of the plaintiff as C15A, Shivaji college, Raja Garden, Delhi.
(iii) Ex. PW2/21 which is the final termination letter bearing no. 2/12/20082T (I) dt. 30.10.2009 was also addressed and sent by the defendants upon the plaintiff's address bearing no. C15A, Shivaji college, Raja Garden, Delhi.
Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 22 of 50
(iv) Ex. PW2/24 which was the notice u/sec. 80 CPC issued by the plaintiff upon the defendants, and duly replied by the defendants, also reflects the plaintiff's address as C15A, Shivaji college, Raja Garden, Delhi.
(v) Ex. PW2/7 which is the order bearing no. 3610 14/EA5/E1 dt. 18.05.1990 vide which the Head Quarters of the plaintiff was fixed at Sonepat, also reflects the plaintiff's address as C15A, Shivaji college, Raja Garden, Delhi.
28.A cumulative reading of the aforesaid documents, each of which was issued by the defendants, shows that the address of plaintiff was C15A, Shivaji college, Raja Garden, Delhi and the said fact was well within the knowledge of the defendants. However, for reasons best known to them the order of reinstatement was not served upon the aforesaid address, rather it was sent to E15A, Slum Wing, behind Shivaji college, Raja Garden, Delhi. It is tried law that communication of the decision of an authority has to be done mandatorily upon the person effected by it in order to bind the said person by the order. Reliance in this regard is placed on decision of Hon'ble Apex Court in State of Punjab Vs. Amar Kumar Harika AIR 1966 SC 1313 wherein it was held that:
It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal but Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 23 of 50 does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may feel that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned.
29.Similarly, in Dulu Devi Vs. State of Assam (2016) 1 SCC 622, the Hon'ble Apex Court held as follows:
"16. The Constitution Bench Judgment of this Court in the case of State of Punjab vs. Amar Singh Harika, AIR 1966 SC page 1313, considered this aspect of the matter. Writing the judgment, His Lordship (Gajendragadkar, C.J.) held that mere passing of an order of dismissal or termination would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passes an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case on a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. The order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that mere passing of order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise.
17. Similar view has been taken by this Court in the case of Union of India vs. Dinanath Shantaram Karekar, (1998) 7 SCC 569, where this Court observed:
"9. Where the services are terminated, the status of the delinquent as a government servant comes to an end and nothing further remains to be done in the matter.
Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 24 of 50 But if the order is passed and merely kept in the file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated."
30.What arises from the aforementioned authoritative pronouncements is that unless the order of a Government Agency / Authority is communicated to the employee / person, to whom it pertains, the said person / employee cannot be said to have knowledge of the said order and such person cannot be said to have violated any such order in the absence of the same being communicated to him. Resultantly, any departmental inquiry initiated against any such person owing to his failure to comply with the order in question is violative of the principles of natural justice. In the present case since the order of reinstatement of the plaintiff was not communicated to him at his actual address, which was well within the knowledge of the defendants, the subsequent suspension and consequent charge sheet cannot be allowed to be sustained on account of it being violative of the principles of natural justice. As a corollary, it would be prudent to state here that since the order of reinstatement of the Plaintiff had not been communicated to him, no question arises of supply of the second chargesheet to him. In fact, a perusal of the documents relied upon by the Defendants shows that the same is entirely silent as to the factum of service of those documents upon the correct address of the Plaintiff, i.e., C 15A, Shivaji College, Raja Garden, Delhi.
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31.The third objection which has been raised by the plaintiff is that since the enquiry officer has acted as the prosecutor in departmental proceedings arising out of the first charge sheet and the same is in contravention of rules of enquiry and violative of the principles of natural justice. A perusal of the material available on record shows that vide order dated 08.08.1989, the General Manager, Haryana Roadways, Delhi, was appointed as an Enquiry Officer with the Legal Superintendent of the concerned depot being appointed as the Government Advocate and Presenting Officer, respectively. The role of an Enquiry Officer and Presenting Officer are not the same and it is a settled position of law that an Enquiry Officer, being a Quasi-Judicial Authority, has to act as an independent adjudicator and not as a representative of the disciplinary authority / Government. Reliance in this regard is placed on decision of Hon'ble Apex Court in State of Uttar Pradesh & Ors. Vs. Saroj Kumar Sinha (2010) 2 SCC 772, the Hon'ble Apex Court held as follows:
"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 26 of 50 taken into consideration to conclude that the charges have been proved against the respondents.
30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."
32.Now the question which arises is as to the effect of situations wherein the Enquiry Officer has acted as a prosecutor on behalf of the Department / Government and the consequent effect of the same upon the proceedings. The law in this regard is fairly well settled and in Union of India & Anr. Vs. Ram Lakhan Sharma, Civil Appeal No. 6745/2013, wherein relying on a decision of Hon'ble M.P. High Court in Union of India & Ors. Vs. Mohd. Naseem Siddiqui, ILR (2004) M.P. 821, the Hon'ble Apex Court cited with approval the observations of Hon'ble M.P. High Court, which is being reproduced as follows:
30. A Division Bench of the Madhya Pradesh High Court speaking through Justice R.V. Raveendran, CJ (as he then was) had occasion to consider the question of vitiation of the inquiry when the Inquiry Officer starts himself acting as prosecutor in Union of India and ors. vs. Mohd. Naseem Siddiqui, ILR (2004) MP
821. In the above case the Court considered Rule 9(9)
(c) of the Railway Servants (Discipline & Appeal) Rules, 1968. The Division Bench while elaborating fundamental principles of natural justice enumerated Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 27 of 50 the seven well recognised facets in paragraph 7 of the judgment which is to the following effect:
"7. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well recognised facets:
(i) The adjudicator shall be impartial and free from bias, (ii) The adjudicator shall not be the prosecutor,
(iii) The complainant shall not be an adjudicator,
(iv) A witness cannot be the Adjudicator,
(v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges, (vi) The Adjudicator shall not decide on the dictates of his Superiors or others, (vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations. If any one of these fundamental rules is breached, the inquiry will be vitiated."
31. The Division Bench further held that where the Inquiry Officer acts as Presenting Officer, bias can be presumed. In paragraph 9 is as follows:
"9. A domestic inquiry must be held by an unbiased person who is unconnected with the incident so that he can be impartial and objective in deciding the subject matters of inquiry. He should have an open mind till the inquiry is completed and should neither act with bias nor give an impression of bias. Where the Inquiry Officer acts as the Presenting Officer, bias can be presumed. At all events, it clearly gives an impression of bias. An Inquiry Officer is in position of a Judge or Adjudicator. The Presenting Officer is in the position of a Prosecutor. If the Inquiry Officer acts as a Presenting Officer, then it would amount to Judge acting as the prosecutor. When the Inquiry Officer conducts the examination-in- chief of the prosecution witnesses and leads them through the facts so as to present the case of the disciplinary authority against the employee or cross- examines the delinquent employee or his witnesses to establish the case of the employer/disciplinary authority evidently, the Inquiry Officer cannot be said to have an open mind. The very Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 28 of 50 fact that he presents the case of the employer and supports the case of the employer is sufficient to hold that the Inquiry Officer does not have an open mind."
32. The Division Bench after elaborately considering the issue summarised the principles in paragraph 16 which is to the following effect:
"16. We may summarise the principles thus:
(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor.
(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry.
Non- appointment of a Presenting Officer, by itself will not vitiate the inquiry.
(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications.
(iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.
(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry.
Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 29 of 50 being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may."
33.The upshot of the above discussion is that in cases where the Enquiry Officer has acted as a prosecutor on behalf of the government / department, bias can be presumed since it would amount to the judge acting as a prosecutor and the very fact of him i.e. Enquiry Officer, presenting the case of the employer would be sufficient to hold that he did not have an open mind. Even though merely because a Presenting Officer has not been appointed would not by itself vitiates the entire departmental proceedings conducting the examination of witnesses or cross examination of defence witness by the Enquiry Officer would certainly vitiate the enquiry.
34.Applying the aforesaid ratio to the facts of the present case, as already noted above, the Department had already appointed a Presenting Officer as well as a Government Advocate, vide order dated 08.08.1989 for the purpose of disciplinary enquiry against the plaintiff, which was subsequently modified by order dated 27.11.1989 whereby the General Manager, Haryana Roadways, Sonepat, was appointed as the Enquiry Officer with the Law Officer Haryana Roadways being appointed as Presenting Officer. These facts are admitted facts and not disputed between the parties. Despite such appointment by the department, a perusal of the record of enquiry / disciplinary proceedings shows that the entirety of the proceedings was conducted Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 30 of 50 by the Enquiry Officer, and not by the Presenting Officer, who not only examined the witnesses on behalf of the department but also crossexamined at length Mr. Daya Kishan, who was a witness on behalf of the employee. The entire record of enquiry / disciplinary proceedings is utterly silent as to the role of the Presenting Officer in the proceedings against the plaintiff and it is apparently clear that the Enquiry Officer had acted on behalf of the Government / Department during the course of the enquiry / disciplinary proceedings. As already discussed above, and at the cost of repetition in cases where the Enquiry Officer examines the witnesses of the prosecution or cross examines the defence witnesses, the entire enquiry stands vitiated.
35.Another objection raised by the plaintiff is that he had been transferred during the course of enquiry / disciplinary proceedings from Delhi to Sonepat Vide letter dated 18.05.1990. The plaintiff has to agitate this ground by alleging that his transfer during the course of the suspension is void and violative of settled principles of law. However, the contention of the plaintiff deserves to be rejected at the outset in light of the pronouncement of Hon'ble Gujrat High Court in J.S. Solanki Vs. Principal Chief Conservator of Forests (1986), 1 GLR 41 wherein it was held as follows:
The effect of passing an order of suspension is to keep such officer away from his office for the time Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 31 of 50 being and is intended to deprive him of the powers of the office temporarily. Its objective is to remove him from his sphere of influence during the investigation into and trial of the charges against him and this may be necessary to avoid embarrassment to the officer as well as his subordinates and associates in office. It may be that some or many of the records which are in his custody may have to be looked into. His colleague or subordinates or sometimes even his superiors in office may have to be questioned. To keep the officer in his office when there is necessity to find out facts from people working under him or with him and to examine papers in his office would be causing considerable embarrassment if not annoyance, to him as well as to others. There may be cases where such suspension may be justified also to avoid misuse of the authority of his office, misuse which may result in obstruction to the proper trial of the charges against him. The situation could be met by the officer being kept under suspension or in some cases merely by transferring the officer away from the scene, the choice nceessarily depending upon the exigencies of the situation. (emphasis supplied).
22. Referring to the decision of the Supreme Court in Tarak Nath 's case, the learned Judge emphasised the observation that such situation can be avoided either by transfering the officer to some other place or by temporarily putting him out of action by making an order of suspension. The learned Judge, after setting out the circumstances in which an order of suspension would be justified, proceeded to analyse the facts of the case and concluded that the order of suspension passed by the Government did not call for interference, but at the same time, desired that the Government reconsider the question of suspension in the light of the observations made in the judgment.
36.Another objection raised by the plaintiff as regards enquiry / disciplinary proceedings is that he was not allowed to Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 32 of 50 avail the services of an advocate during the proceedings and the Ld. Counsel for the plaintiff has vehemently argued that such denial is against the principles of Natural Justice and accordingly, the findings / order / procedure of the enquiry / disciplinary proceedings stands vitiated. Rule 7 (5) of The Rules deals with the scenario of a delinquent employee obtaining the assistance of a Government Employee or Advocate in his defence. The relevant portion is being reproduced below for the sake of brevity:
"7. Inquiry before imposition of certain penalties ...
The person against whom a charge is being enquired into, shall be allowed to obtain the assistance of a Government employee or a retired Government employee if he so desires, in order to produce his defence before the Enquiry Officer. If the charge or charges are likely to result in the dismissal of the person from the service of Government, such person may, with the sanction of the Enquiry Officer, be represented by counsel:
Provided that if in any enquiry, the counsel is engaged or behalf of the any department of Government, the person against whom the charge or charges are being enquired into, shall also be entitled to engaged counsel:
Provided further that the assistance of a particular Government employee will be allowed only if the Enquiry Officer is satisfied that he is of such rank as the appropriate in the circumstances of the case and that he can be spared by the department concerned for that purpose.
37.A reading of the aforesaid rule makes it clear that a delinquent employee can obtain the assistance of a Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 33 of 50 counsel, with the sanction of the Enquiry Officer, if the charge/s are likely to result in the dismissal of a person from service. However, the delinquent employee has a right to engage the services of a counsel if any counsel has been engaged on behalf of the department / government in enquiry proceedings. In the present case, the defendants had appointed a Presenting Officer as well as a Government Advocate, vide order dated 08.08.1989 for the purpose of disciplinary enquiry against the plaintiff, which was subsequently modified by order dated 27.11.1989 whereby the General Manager, Haryana Roadways, Sonepat, was appointed as the Enquiry Officer with the Law Officer Haryana Roadways being appointed as Presenting Officer. Hence, it becomes apparently clear that even though a Government Advocate had been appointed by the department, by a subsequent order, only a presenting officer was representing the defendants / department. Therefore, the delinquent employee / plaintiff could have availed the services of a counsel only with the sanction of the enquiry officer and the burden of proving the fact that he had applied to the enquiry officer for the services of a counsel, which was denied by the said officer, lay upon the plaintiff. No evidence in this regard, whatsoever, has been adduced by the plaintiff to discharge the said burden of proving this fact. Even otherwise, it is settled law that a delinquent employee does not have an indefeasible right to be represented by a counsel in disciplinary proceedings. Reliance in this regard is placed Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 34 of 50 on N. Kalindi v. Tata Locomotive & Engg. Co. Ltd, (1960) 3 SCR 407 "Ordinarily in inquiries before domestic tribunals the person accused of any misconduct conducts his own case and therefore, it is not possible to accept the argument that natural justice ex-facie demands that in the case the enquiries into a chargesheet of misconduct against a workman he should be represented by a member of his Union; though of-course an employer in his discretion can and may allow his employee to avail himself of such assistance.
38.Similarly, in Dunlop Rubber Co. (India) Ltd v. Workmen, (1965) 2 SCR 139, it was held as follows:
"There is no per se right to representation in the departmental proceedings through a representative through own union unless the company by its Standing Order recognized such a right. Refusal to allow representation by any Union unless the Standing Orders confer that right does not vitiate the proceedings. Further, in holding domestic enquiries, reasonable opportunity should be given to the delinquent employees to meet the charge framed against them and it is desirable that at such an enquiry the employee should be given liberty to represent their case by persons of their choice, if there is no standing order against such a course being adopted and if there is nothing otherwise objectionable in the said request. Denial of such an opportunity cannot be said to be in violation of principles of natural justice."
39.The same has been reiterated by Hon'ble Apex Court in Crescent Dyes and Chemicals Ltd v Ram NareshTripathi, (1993) 2 SCC 115, wherein it was held as follows:
"In the departmental proceedings right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 35 of 50 specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquent's right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent."
40.Similarly, in Bharat Petroleum Corporation Ltd. v.
Maharashtra Genl. Kamgar Union, (1999) 1 SCC 626, it was held as follows:
"A delinquent employee has no right to be represented by an advocate in the departmental proceedings and that if a right to be represented by a co-workman is given to him, the departmental proceedings would not be bad only for the reason that the assistance of an advocate was not provided to him...."
41.Hence, in the light of the aforesaid observations, the objection of the plaintiff a regards him not being allowed to avail the services of a counsel is hereby rejected.
42.Another objection raised on behalf of the plaintiff is that there is an inordinate delay in issuance of the charge sheet against him. The plaintiff has claimed that even though he was suspended on 15.11.1988, the charge sheet was issued only on 12.06.1989 and based on this, the plaintiff has vehemently argued that the delay in issuance of the charge sheet by itself warrants the revocation of the suspension order. In support of his contentions, the plaintiff has sought to rely on decision of the Hon'ble Apex Court on Ajay Kumar Chaudhary Vs. Union of India (Civil Appeal No. 1912/2015) DOD 16.02.2015. The law as regards whether disciplinary proceedings should be set aside merely on the Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 36 of 50 ground of delay in issuing the charge sheet is well settled. One may only refer to the decision of the Hon'ble High Court of Delhi in S.D. Gupta Vs. Punjab National Bank & Ors. (2004) 75 DRJ 757, wherein it was held as follows:
46. Law on the subject as to when a Court should interdict disciplinary proceedings on the grounds of delay in issuing the charge-sheet may be noted.
47. In the decision reported as AIR 1990 SC 1308, State of M.P. v. Bani Singh, where there was a delay of 12 years in initiating departmental proceedings and no satisfactory explanation for the inordinate delay forthcoming on record, it was held that it would be unfit to permit the department to proceed at such a belated stage, charge-sheet was quashed. In the decision reported as 1994 (2) SCC 746, Registrar of Co-operative Societies, Madras v. F.X. Fernando, charge-sheet was served after a delay of about 5 years.
Repelling the challenge to the charge-sheet on ground of delay being fatal, Supreme Court noted that Vigilance and Anti-Corruption Department took time to investigate and, therefore, it could not be said that the disciplinary authority slept over the matter. In the decision reported as 1995 (2) SCC 570, State of Punjab v. Chaman Lal Goyal, considering the issue as to what was the effect of delay vis-a-vis disciplinary proceedings, Supreme Court held:--
"Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and thus not also in the interest of administration of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, male Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 37 of 50 fidesand misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weight the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing."
Thereafter, in paragraph 12 of the judgment, it was concluded that:--
"Applying the balancing process, we are of the opinion that the quashing of charges and of the order appointing enquiry officer was not warranted in the facts and circumstances of the case. It is more appropriate and in the interest of justice as well as in the interest of administration that the enquiry ordered be allowed to be completed."
48. In the decision reported (1995) 3 SCC 134 Deputy Registrar, Co-operative Societies, Faizabad v. Sachindra Nath Pandey & Ors., the Hon'ble Supreme Court held:--
"On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commen-. cement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay."
49. In the decision reported as (1995) Suppl. (1) SCC 180 Union of India v. Ashok Kacker, while reversing the order of the Central Administrative Tribunal quashing the inquiry proceedings, the Hon'ble Supreme Court observed that since the delinquent had not submitted his reply to the charge-sheet, it was not the stage at which the Tribunal ought to have entertained the petition for quashing the charge-sheet. The appropriate course for the delinquent to adopt was to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon.
Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 38 of 50
50. In the decision reported as (1995) 6 SCC 749, B.C. Chaturvedi v. UOI and Others, in Para 11, the Hon'ble Supreme Court held as under:--
"The next question is whether the delay in initiating disciplinary proceeding is an unfair procedure depriving the livelihood of a-public servant offending Article 14 of 21 of the Constitution. Each case depends upon its own facts. In a case of the type on hand, it is difficult to have evidence of disproportionate pecuniary resources or assets or property. The public servant, during his tenure, may not be known to be in possession of disproportionate assets or pecuniary resource. He may hold either himself or through somebody on his behalf, property or pecuniary resources. To connect the officer with the resources or assets is a tardy journey, as the government has to do a lot to collect necessary material in this regard. In normal circumstances, an investigation would be undertaken by the police under the Code of Criminal Procedure, 1973 to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources. Snap of any link may prove fatal to the whole exercise. Care and dexterity are necessary. Delay thereby necessarily entails. Therefore, delay by itself is not fatal in these type of cases. It is seen that the CBI had investigated and recommended that the evidence was not strong enough for successful prosecution of the appellant under Section 5(1)(e) of the Act. It had, however, recommended to take disciplinary action. No doubt, much time elapsed in taking necessary decision at different levels. So, the delay by itself cannot be regarded to have violated Article 14 or 21 of the Constitution."
51. In (1996) 3 SCC 157, Secretary To Government Prohibition & Excise Department v. L. Srinivasan, it was held:
"In the nature of the charge, it would take a long time to detect embezzlement and fabrication of false record which should be done in secrecy. In quashing the suspension and the charges on the ground of delay in initiation of the disciplinary proceedings, the Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 39 of 50 Administrative Tribunal has committed grossest error in its exercise of the judicial review."
I may note that the charge related to offence of embezzlement and fabrication of false records. As noted in the judgment, this is done in secrecy and by its very nature, takes time to be detected. It was a case where detection took time. It was not a case of delay post detection.
52. In the judgment reported as (1996) 3 SCC 364, State Bank of Patiala v. S.K. Sharma, the Hon'ble Supreme Court held:--
"Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice."
53. In the decision reported as (1997) 4 SCC 255 Secretary to Government v, K. Munniappan, dealing with a case where as a result of concerted and confabulated action on the part of the employees, an em bezzlement of funds of the Government, to the tune of Rs. 7.82 crores took place and the delinquent at the relevant time was functioning as the Divisional Accountant, the Hon'ble Supreme Court observed:--
"It is true that there is a time gap, but in a case involving embezzlement of public funds by several persons in a concerted way, a thread bare investigation is required to be undertaken by the investigating officer and, therefore, in the nature of the situation, it would be difficult to find fault with the authorities for not completing investigation expeditiously."
54. In (1998) 4 SCC 154 State of Andhra Pradesh v. N. Radhakishan in Para 19, the Hon'ble Supreme Court held as under:--
"It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be determined each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 40 of 50 interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the fact of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from his path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."
55. A division bench of this court, considered the judgments on the issue. In its judgment delivered on 29th October, 2003 in LPA No. 39/1999, Delhi Development Authority v. D.P. Bambah & Anr., it was held:--
"In our opinion the legal position, when an action is brought seeking quashing of a charge-sheet on grounds of issuance of the charge-* sheet or grounds of inordinate delay in completion of the disciplinary inquiry may be crystalised as under:--
(i) Unless the statutory rules prescribe a period of limitation for initiating disciplinary proceedings, there is not period of limitation for initiating the disciplinary proceedings;
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(ii) Since delay in initiating disciplinary proceedings or concluding the same are likely to cause prejudice to the charged employee, courts would be entitled to intervene and grant appropriate relief where an action is brought;
(iii) If bona fideand reasonable explanation for delay is brought on record by the disciplinary authority, in the absence of any special equity, the court would not intervene in the matter; (iv) While considering these factors the court has to consider that speedy trial is a part of the facet of a fair procedure to which every delinquent is entitled to vis-a-vis the handicaps which the department may be suffering in the initiation of the proceedings. Balancing all the factors, it has to be considered whether prejudice to the defence on account of delay is made out and the delay is fatal, in the sense, that the delinquent is unable to effectively defend himself on account of delay.
(v) In considering the factual matrix, the court would ordinarily lean against preventing trial of the delinquent who is facing grave charges on the mere ground of delay. Quashing would not be ordered solely because of lapse of time between the date of commission of the offence and the date of service of the charge-sheet unless, of course, the right of defence is found to be denied as a consequences of delay.
(vi) It is for the delinquent officer to show the prejudice caused or deprivation of fair trial because of the delay.
(vii) The sword of damocles cannot be allowed to be kept hanging over the head of an employee and every employee is entitled to claim that the disciplinary inquiry should be completed against him within a reasonable time. Speedy trial is undoubtedly a part of reasonableness in every disciplinary inquiry.
In determination of this, the first question which would have to be answered is whether on facts, is there a delay? If yes, how long? Was the delay inevitable having regards to the nature of the charge? Was the delay beyond the control of the employer? Whether the employee willfully contributed to the delay or was responsible for the delay? Has prejudice caused to the defence?
Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 42 of 50 All questions would have to be answered. In a nutshell, the court would have to weigh all the factors, both for and against the employee and come to the conclusion whether in the facts and circumstances prejudice has been shown as having been occasioned to the employee, justifying quashing of the charge-sheet either on account of delay in issuance of the charge- sheet or on account of delay in completion of the disciplinary proceedings."
56. In the light of the legal position noted above, I do not find any delay whatsoever pertaining to charge- sheet dated 19.7.1995 which pertained to the events of the years 1991-92. The enquiry report would reveal that the misconduct surfaces when accounts become sticky. I accordingly repel the challenge to the charge- sheet dated 19.7.1995 on the grounds of delay.
43.The legal position which has been crystallized by the aforesaid legal pronouncement is that delay in issuing the charge sheet, by itself, is no ground to set aside the disciplinary proceedings on the ground that there has been a prejudice caused to the defence. There is no straight jacket formula in such cases and the courts have to be mindful and consider the facts that any delay in issuing the charge sheet must have caused prejudice to the defence. Moreover, in cases where a bonafide and reasonable explanation appears to be forthcoming from the facts of the case, delay in issuing the charge sheet would not be allowed to vitiate the proceedings. While determining the same, the facts of the case have also to be kept in mind. In the present case, seven months have elapsed between the suspension order the charge sheet being issued. However, considering the factual matrix whereby the plaintiff had been charged with serious offenses like embezzlement of Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 43 of 50 government funds, the delay of around seven months in issuance of the charge sheet cannot be said to have prejudice the defence of the plaintiff in the disciplinary proceedings, especially in light of the fact that the plaintiff has failed to aver anything as regards the nature of prejudice caused to him in his defence by the delay of issuance of charge sheet. The reliance placed by the plaintiff on the decision in Ajay Kumar Chaudhary (Supra) is misplaced since a perusal of the said pronouncement shows that the Hon'ble Apex Court had directed that while determining whether the right to speedy trial had been vitiated in any case, the 'balancing test' i.e. the relevant facts of each case, have to be taken into account. In the present case, as discussed above, since the charges in question pertained to serious allegations of embezzlement and coupled with the fact that the Plaintiff has failed to show the exact nature of prejudice caused to him in his defence in the inquiry proceedings, this Court is of the considered opinion that the delay in serving of the chargesheet upon the Plaintiff would not, in itself, vitiate the entire earlier enquiry proceedings. Moreover, the factual matrix of Ajay Kumar Chaudhary (Supra) is also different from the present case since there was a delay of almost three years in the issuance of the charge sheet in that case whereas the delay in the present case is around seven months. Accordingly, the contention of the plaintiff Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 44 of 50 for setting the disciplinary proceedings on the ground of delay in issuance of charge sheet is hereby rejected.
44.The last contention of the plaintiff that there has been an inordinate delay of six to seven years between the intervening dates of conclusion of second enquiry report and the final show cause notice and consequent termination. The plaintiff has argued that the such delay vitiates the disciplinary proceedings and accordingly, the same ought to be declared null and void. However, the said contention of the plaintiff ought to be rejected as it is settled law that the mere delay in conducting the domestic enquiry proceedings is not fatal and it depends on the facts and circumstances of each case. If the delay has been explained satisfactorily, the proceedings could be vitiated. Reliance in this regard is placed on Anant R. Kulkarni Vs. Y.P. Education Society (AIR 2013 SC 2098), Secretary, Forest Department Vs. Abdur Rasul Chowdhary, AIR 2009 SC 2925, U.P. State Sugar Corporation Ltd. Vs. Kamal Swaroop Tondon, AIR 2008 SC 1235. In the present case, while the plaintiff has baldly averred that the delay in conclusion of the disciplinary proceedings is fatal for the same without specifically mentioning the particulars, the defendants have sought to explain the delay by averring and adducing documents vide which the plaintiff was sought to be contacted by them to furnish his reply to the report of the second disciplinary enquiry. In the considered opinion of this Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 45 of 50 court, the defendants have been able to furnish a satisfactorily explanation as regards the delay in conducting disciplinary enquiry. Accordingly, the same is held to be non fatal for the case of defendants.
45.As regards the objections of the plaintiff that the Enquiry Officer did not properly appreciate the material on record brought before him and hence, disciplinary proceedings ought to be set aside, in light of the limited and restricted jurisdiction of the courts for the purpose of examining the report / order of the enquiry officer and the consequent / result in proceedings, as enunciated above, and also in light of the decision of Hon'ble Apex Court in Muzaffar Husain Vs. State of Uttar Pradesh (Civil Appeal No. 3613 / 2022, DOD 06.05.2022), wherein it was held that, "It is trite to say that the power of judicial review conferred on the constitutional Court is not that of an appellate authority but is confined only to the decision- making process. Interference with the decision of departmental authorities is permissible only if the proceedings were conducted in violation of the principles of natural justice or in contravention of statutory regulations regulating such proceedings or if the decision on the face of it is found to be arbitrary or capricious. The Courts would and should not act as an appellate Court and reassess the evidence led in the domestic enquiry, nor should interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly conducted, and the findings are based on Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 46 of 50 evidence, the adequacy of the evidence or reliability of evidence would not be a ground to interfere with the findings recorded in the departmental enquiries.", the contention of the plaintiff is rejected as being devoid of merits.
46.Thus, as a net result of the aforesaid discussion, I find that the departmental inquiry conducted against the plaintiff suffers from procedural infirmities which violated the principles of natural justice on account of the fact that the Enquiry Officer in the first departmental proceedings acted as a prosecutor on behalf of the Defendants since the entire examination of the Department's witnesses and cross examination of the Plaintiffs witness was done by him and further also, due to the Plaintiff not being served with a copy of the order of reinstatement and the subsequent copy of the chargesheet along with relevant annexures, leading to the second department inquiry and his consequent termination. Hence, by the doctrine of merger, as enunciated in M/S Gojer brothers Pvt. Ltd. Vs. Sh. Ratan Lal AIR 1974 SC 1380 and reiterated in Kunhayammed and Ors. Vs. State of Kerala and Anr. (2000) 6 SCC 359, the departmental inquiry, orders of disciplinary and revisional authorities merged into one proceedings. Accordingly, in light of the aforesaid discussion, orders dated 15.01.2008, 30.10.2009 along with endorsement dated 12.11.2009, order dated 08.08.1989 and 22.03.1994 are hereby declared to be null and void and the Defendants are restrained from enforcing Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 47 of 50 the same. As regards the prayer made qua order dated 28.06.2006, the entire plaint is silent as regards the said order and its ramifications and moreover, the Ld. Counsel for the plaintiff had fairly conceded, during the course of final arguments, that they do not wish to press their claim qua the aforesaid order. Even otherwise, it is a settled principle of law that relief sought sans pleadings cannot be granted. Accordingly, the relief of the Plaintiff qua order dated 28.06.2006 is hereby declined.
47.Now, the only issue which requires adjudication is the procedure to be followed if a penalty imposed upon an employee in disciplinary proceedings is set aside for violation of principles of natural justice. Do the Courts have the power to direct reinstatement of such employee or whether the correct procedure would be to remit the case to the disciplinary authority for conducting the enquiry from the point it stood vitiated? The law in this regard has been crystallized by the recent Judgment of Hon'ble Apex Court in The Inspector of Panchayats and District Collector, Salem v. S. Arichandran & Ors. 2022 SCC Online SC 1282 wherein it was held as follows:
"15. At this stage, a recent decision of this Court in the case of Rajit Singh (2022 SCC Online SC 341), in which this Court had considered its earlier decision in the case of A. Masilamani ((2013) 6 SCC 530) is required to be referred to. In paragraph 15, it is observed and held as under:-
"15. It appears from the order passed by the Tribunal that the Tribunal also observed that the enquiry Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 48 of 50 proceedings were against the principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the delinquent officer. As per the settled proposition of law, in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge sheet, which are alleged to have not been given to the delinquent officer in the instant case. In the case of Chairman, Life Insurance Corporation of India v. A. Masilamani, (2013) 6 SCC 530, which was also pressed into service on behalf of the appellants before the High Court, it is observed in paragraph 16 as under:--
"16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727], Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293], U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30])."
16. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as the order of dismissal has been set aside on the ground that the same was in breach of principles of Natural Justice, the High Court ought to have remitted the case concerned to the Disciplinary Authority to conduct the inquiry from the point that it stood vitiated and to conclude the same after furnishing a copy of the Inquiry Report to the delinquent and to give opportunity to the delinquent to submit his comments on the Inquiry Officer's Report."
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48.Applying the ratio of the aforesaid Judgment, the Defendants cannot be directed to reinstate the Plaintiff. However, the present matter is hereby remitted to the disciplinary authority to conduct the inquiry from the point it stood vitiated and to conclude the same after taking steps to ensure that the Enquiry Officer does not act as an agent or prosecutor on behalf of the Department and supply the Plaintiff with the copy of the second chargesheet along with relevant annexures and the documents. The suit is accordingly decreed to the aforesaid extent only.
49.Given the factual matrix of the case, no order as to costs.
Decree Sheet be prepared accordingly.
50. All pending applications (if any) are hereby disposed off as not pressed.
51.File be consigned to the record room after necessary compliance.
Announced in the open Court on 01st July 2023 (PRITU RAJ) CIVIL JUDGE (NORTH) ROHINI/DELHI/01.07.2023 Suit No. 34987/16 K.K. Chabbra Vs. The General Manager, Haryana Roadways & Ors. Page No. 50 of 50