Delhi High Court
D.B. Mathur vs Cement Corporation Of India And Ors. on 2 January, 2006
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
1. The writ petitioner in these proceedings has challenged a charge-sheet dated 14.7.1993 and order dated 5.10.1993, imposing penalty of dismissal from service, issued by the Cement Corporation of India (hereafter referred to as CCI).
2. The petitioner joined the services of CCI in 1979. He was promoted as Manager (Electrical). While holding that position he was transferred to the Corporate Office on 29.8.1988. In DPC proceedings held in 1990-91, he was not promoted and his juniors were promoted to higher positions. The petitioner alleges that this was a consequence of his having earned ire of the second respondent who was at that time the Chairman and Managing Director of the CCI, in connection with the acquisition of certain D.G. Sets. The petitioner alleges that the procedure for acquiring the equipment was manipulated by the second respondent. He alleges having undergone constant harassment and mental torture, which led to his falling ill and consequent treatment in the All India Institute of Medical Sciences (AIIMS). While so, he had sought for extension of the medical leave, previously granted to him. The leave rules of the CCI were amended on 8.6.1993 and a new provision was inserted that where an officer was on medical leave for more than 90 days, he had to be examined by the Medical Board constituted by CCI. The petitioner's leave, up to 5.2.1993 had been regularized. It is alleged that the second respondent constituted a Medical Board of its choice, which visited the petitioner's premises without intimation, when he was not available.
3. On 25.6.1993 when he was in a better condition he reported to the CCI, but was not allowed to join duties. He sought for appropriate action, instead he was issued with a memorandum on 14.7.1993 leveling allegations that the leave beyond 5.2.1993 was unauthorized since it was not sanctioned after his examination by an Medical Board. The memorandum and articles of imputation also contained allegations of un-ruly behavior in refusing to accept a relieving order on 25.6.1993 and not reporting for duties at the Charkhi Dadri Unit where he has been posted, and continuing to be on unauthorized leave.
4. The petitioner alleges that he was under constant medical supervision on account of his ailments and was receiving treatment. He has placed reliance on medical records dated 23.6.1993, 20.6.1993, 23.6.1993, 12.7.1993 and 19.7.1993 for this purpose.
5. An Enquiry Officer was appointed on 2.8.1993; he issued a letter on 3.8.1993 proposing to hold preliminary hearing on 9.8.1993. The petitioner wrote on 7.8.1993 stating that he was sick and was undergoing treatment from AIIMS hospital, which had advised him rest as well as specialized investigations.
6. The Enquiry Officer held proceedings on 9th and 16th August, 1993 and on the latter date decided to hold regular proceedings from 23.8.1993 onwards. It is alleged that the petitioner had sought further time and enclosed his records indicating his poor medical condition; nevertheless the Equiry Officer rejected his request and concluded the proceedings. In the enquiry report the petitioner was held guilty of the charges. The impugned order, imposing penalty of dismissal was passed on 5.10.1993.
7. The issuance of charge-sheet and the conduct of proceedings have been questioned as a result of mala fides on the part of the second respondent. The conduct of proceedings in the enquiry, particularly, its ex parte nature and the refusal of the enquiry officer to grant reasonable time are alleged to be illegal and arbitrary. On the merits, the petitioner has alleged that the turning down of his request for leave for the period between 6.2.1993 to 26.5.1993, is unreasonable since CCI chose to apply an amendment which was brought into force on 8.6.1993, in respect of requests for a previous period.
8. The CCI as well as second respondent have filed counter affidavits. The CCI states that the petitioner's transfer to Charkhi Dadri, was challenged by him in C.W.P. No. 3027/1992. Therefore, the claim that he was unaware of the transfer or was not served the order is false. As far as the allegations, regarding procurement of D.G. Sets is concerned, it is averred that petitioner was not a member of the working group constituted by the Tendering Committee. The CCI disputed that the petitioner was asked to move a note rejecting the case of one of the bidders in the pre-qualification tender. It is also averred that the procurement was monitored by a Five Member Committee of senior officers; eventually the matter was approved by meetings of the Board of Directors. The CCI avers that the petitioner's transfer was effected routinely, on administrative considerations and he could not claim a grievance in this regard.
It is alleged that the petitioner was granted several opportunities to report for duty at the place of transfer but he did not do so. As regards the allegation of grant of medical leave, the CCI has given details of 18 applications received from the petitioner for the period 31.3.1992 to 5.2.1993 and stated that leave was sanctioned for that purpose. The total period of leave was 312 days and petitioner was paid salary. It is claimed that the petitioner remained absent even after expiry of his leave, after 6.2.1993. While the petitioner's further applications were considered, the revised rules came into effect on 8.6.1993. The CCI, therefore, felt that in keeping with the revised policy the claim for medical leave had to be examined by a Medical Board. Accordingly, on 11.6.1993, a three member Medical Board was constituted comprising of two outsiders and one official of the CCI.
9. The CCI has refuted allegations of unfairness in the conduct of enquiry proceedings. It states that reasonable and fair opportunity was granted, to the petitioner. He adopted delaying tactics and intentionally did not present himself in the enquiry; as a result, the CCI could not be blamed nor could the enquiry be rendered defective or held to be unfair. It is claimed that as per the petitioner's own averments, he reported for duties on 25.6.1993 by which time doctors at AIIMS had found him fit to join duties. If these were true, the petitioner cannot make a grievance and ought to have proceeded to report for duties as per the transfer order.
10. Mr. J.P. Sengh, learned counsel submitted that the second respondent was behind all the woes of the petitioner. His animus started against the petitioner on 10.7.1990 when he refused to comply with his illegal orders in regard to the procurement of D.G. Sets. Learned counsel submitted that after that event, the petitioner was targeted and victimized. Firstly, he was overlooked for promotion and thereafter he was transferred. Learned counsel also sought to support the allegations of mala fides by stating that the second respondent himself was under a cloud, on account of his dubious dealings, while in the CCI, and several inquiries had been instituted into his conduct. He relied upon newspaper reports in that regard.
11. Learned counsel submitted that the entire charge-sheet is based on the footing that the petitioner's absence was un-authorised. He submitted that medical leave up to 5.2.1993 had been regularised. Thereafter, the petitioner had sought for further extension and duly supported requests with documentary evidence/certificates. These applications were to be dealt with as per existing norms. However, the norms were changed on 8.6.1993, the respondents unilaterally decided to constitute a Medical Board and subject the petitioner to examination. The petitioner was neither intimated about this procedure nor about the visit of the Medical Board. Therefore, when members of the Board reached his place, he was away for consulting his Doctors at AIIMS; the charge on this aspect was completely baseless.
12. So far as the conduct of the enquiry proceedings are concerned, learned counsel relied upon the letter written by the petitioner on 7.8.1993 requesting for 3/4 weeks time on account of his medical condition. He also relied upon the contemporaneous medical records by way of copies of OPD card of AIIMS and advice of the Doctors dated 20.6.1993, 23.6.1993, 12.7.1993, 19.7.1993, 6.8.1993, 13.8.1993, 16.8.1993 and subsequently on 6.9.1993.He relied upon the certificate of Doctor dated 17.8.1993 to say that in the meanwhile the petitioner had been suffering from viral fever from 13.8.1993. Despite being aware of these, the Enquiry Officer proceeded to hold the regular enquiry after setting the petitioner down ex-parte on 23rd and 24th August, 1993. He concluded the enquiry and held the petitioner guilty of charges. Learned counsel submitted that the nature of the charges and the conduct of proceedings betrayed a pre-deposition to somehow hold the petitioner guilty. Therefore, the denial of opportunity was arbitrary and violative of principles of natural justice.
13. Mr. Raj Birbal, learned senior counsel appearing for the CCI submitted that the petitioner was guilty of wrongful conduct and he made several false statements in the writ petition. Learned counsel submitted that the averment that the petitioner was unaware of his transfer to Charkhi Dadri is misleading and false since that transfer order was the subject matter challenged in C.W.P. No. 3027/1992. He further states that the petitioner over-stayed his leave. The Corporation had sanctioned leave and accommodated the maximum extent possible by granting full pay for a period of 312 days. Thereafter, when further requests were made a bona fide decision was taken that in view of the changed policy, a Medical Board had to be constituted to examine the merits of the request. The petitioner was served with advance notices about the visits of the Medical Board; he chose to be absent. Similarly, when the petitioner reached the offices of CCI on 25.6.1993, he was sought to be relieved from duties and asked to report to his place of posting but he created disturbances and refused to accept the order. Keeping in mind the larger need for discipline, the CCI issued the charge-sheet on 14.7.1993.
14. Learned counsel for the respondent submitted that the record of enquiry proceedings would reveal that the petitioner was aware of each date of hearing such as 9.8.1993. 16.8.1993 and 23/24.8.1993. He never responded to the notices or even gave his statement for defense. From the inception of enquiry, the petitioner had apparently resolved to keep away and complaint of unfairness. With this design, he started asking for unjustified adjournments. The Enquiry Officer did not hold any substantive proceedings till 23.8.1993. Even on that date it was open to the petitioner to join the proceedings. He deliberately stayed away.
15. Learned counsel also submitted that the petitioner made completely unwarranted allegations not only of mala fides but also of physical assaults by unknown persons and made an unreasonable requests for shifting the venue of enquiry which was not acceded to. Mr. Birbal submitted that allegations of mala fides cannot be proved on the basis of newspaper reports, or subsequent events, as alleged. Hence, the petitioner has to blame himself for the enquiry being held and concluded ex-parte. Learned counsel submitted that the enquiry proceedings were conducted objectively and fairly and the penalty order was passed after due consideration of all the findings recorded in the course of enquiry.
16. Two points arise for consideration in these proceedings:
i) Whether the initiation of departmental proceedings culminating in the penalty order was vitiated by mala fides;
ii) Whether the ex-parte enquiry held against the petitioner was opposed to principles of natural justice or was arbitrary.POINT No. 1
17. The substratum of the petitioner's allegation about mala fides is the second respondent's directions to him, to ensure that one of the tenderers, namely, BHEL was not short listed for the procurement of certain D.G. Sets. The pleadings disclose that apparently CCI had advertised for the procurement of the D.G. Sets, and several bidders had approached it; three were short listed at the pre-qualification tender stage. The petitioner alleges that he had opposed a move to drop one bidder, namely, BHEL. On the other hand, CCI had denied this and stated that bid of BHEL was very much on record. The CCI has gone on further to say that the petitioner was not a member of the working group, which comprised of five senior officials. It is also relied upon to resolutions of the Board of Directors.
18. It has been often held that alleging mala fides is easy but proving it is more often than not a difficult task. Mala fides or malice of fact as known in legal parlance denotes the use of power (or its abuse) for ulterior purposes and with an ill motive. By its very nature, mala fides, to be established requires a certain standard of proof. In this case, the main allegation of the petitioner about mala fies by the second respondent is the latter's alleged direction to him in regard to the procurement of D.G. Sets. The second respondent denied the allegations. The CCI in its counter affidavit has relied on two circumstances, namely, absence of the petitioner in any of the working group and two resolutions of the Boards of Directors. I am of the opinion that the pleadings and materials on record are not sufficient to warrant a finding of mala fides in the circumstances of the case.
POINT No. 219. The factual matrix with regard to enquiry proceedings would show that the charge-sheet was issued on 14.7.1993. It inter alia deals with the request for extension of medical leave after 6.2.1993 and up to end of May 1993. The inarticulate premise of the charge with regard to the examination by a Medical Board, is the applicability of the new procedure. The admitted facts of this case would show that the new procedure requiring the person to be medically examined by a Board, was pursuant to a resolution of the Board of Directors dated 8.6.1993. That provision reads as follows:
Leave on medical grounds beyond the period of 90 days will be sanctioned to employees working at units/CO/ZO/RD only on the recommendations of the Medical Board constituted by the Corporation.
20.The memorandum of 14.7.1993, itself records as follows:
The period of his absence from 31.3.1992 to 5.2.1993 has been regularised by grant of leave admissible to him as well as extra-ordinary leave.
Sh. D.B. Mathur submitted applications vide his letters dated 12.2.1993, 11.3.1993, 8.4.1993, 5.5.1993 and 14.5.1993 for grant of leave from 6.2.1993 to 26.5.1993 totaling to 110 days. Since CCI Leave Rules provided that any leave on medical ground beyond the period of 90 days requires recommendations of Medical Board, a Medical Board visited twice on 16.6.1993 and 23.6.1993 for medical examination of Sh. D.B. Mathur....
It is thus apparent the periodic applications were being dealt with on the basis of pre-existing rules, and the CCI had been satisfied about the veracity and genuineness of request of extensions on the medical condition of the petitioner.
In these circumstances, the rationale for subjecting the leave application made between February and May 1993 differently, to a later rule is not only unclear, it appears to be based on a fundamental mis-conception. The amended regulation clearly states that applications for leave beyond 90 days will be examined on the basis of recommendations of a Medical Board. This implies that the amendment was to be prospective. Further, the five applications between 12.2.1993 and 14.5.1993 did not seek 90 days medical leave at a stretch; it is the CCI which treated the request as one beyond 90 days, after 8th June, 1993.
In this circumstance, I am of the opinion that while it was open to the CCI to have adopted the procedure of subjecting requests for medical leave to examination by a duly constituted Board after 8.6.1993, that procedure was not available for periods prior to that date. Hence, the charge-sheet itself was based on a mis-reading of the rules and conditions which by their very nature had to be prospective.
21. The second issue on the point of enquiry proceedings is in regard to its fairness. The Enquiry Officer was appointed on 2.8.1993; he issued a notice indicating preliminary hearing on 9.8.1993. The petitioner appears to have received the notice on 7.8.1993. He made a request for short adjournment stating that he was undergoing medical treatment. The letter was received by the Enquiry Officer on 10.8.1993. Admittedly, there was no enquiry proceedings on 10.8.1993. Nevertheless, he rejected the request and asked the petitioner to be present on 16.8.1993. The petitioner again appears to have reiterated his request for further time by a letter, dated 16.8.1993 which also enclosed a copy of the medical report. He relied upon a certificate dated 17.8.1993 stating that he was suffering from viral fever. On 16.8.1993, the Enquiry Officer decided to proceed with the final hearing on 23.8.1993. The order-sheet of 23.8.1993 records that the previous order sent under registered cover was returned with the remarks refused by the postal authorities. It further states as follows:
In the meantime, a letter dated 16.8.1993 of the CO was received by the undersigned on 19.8.1993 (afternoon). Therein, he discussed irrelevant matters regarding his promotion, court case etc. It was also mentioned that he has been advised rest up to 19.8.1993 by a Doctor. He advised the undersigned against holding the enquiry in all the offices of the CCI on the ground of risk to his personal safety and the influence which the unrully supporters of CMD give used to affect the enquiry.
The Enquiry Officer brushed aside the request for further time, which had been made in the petitioner's letter dated 16.8.1993 which had also referred to his previous requests. He, thus, proceeded with the enquiry.
22. The enquiry took on record 41 documents and the enquiry officer examined 4 management witnesses. The record of proceedings of 23.8.1993 show that further hearing was adjourned to continue on 24.8.1993. A copy of the order, without the documents or without the statements, was sent by registered post A/D to the petitioner. The next day, the enquiry was completed and three further witnesses were examined. The petitioner relies on a further letter written on 23.8.1993 addressed to the Enquiry Officer where he had indicated the schedule of his treatment with the AIIMS between 23rd and 27th August, 1993. This was followed up with another letter dated 26.8.1993 where the petitioner stated that he had been advised rest for one week w.e.f. 26.8.1993 and that he was referred for special advise of Head of Neurology Department for diagnosis and management purposes in view of a serious brain ailment.
23. The Enquiry Officer, while finalzing his report noted receipt of the letter dated 23.8.1993 on 24.8.1993 as well as the letter dated 26.8.1993. He proceeded to record the following comments in his report dated 10.9.1993:
Since the last two letters were received after the enquiry was concluded, no further action was warranted on the last two letters dated 23.8.1993 and 26.8.1993.
24. Every administrative or quasi-judicial action which would visit an individual with evil, or adverse consequences has to be preceded with fair opportunity whereby the concerned person is given sufficient chance to explain his position. Although, principles of natural justice are not a set of immutable or rigid rules, nevertheless every procedure has to be fair and reasonable. An enquiry into charges against a public official is no exception to this rule. The basic elements of natural justice in such proceedings are issuance of notice, adjudication in an objective manner by a person who has no interest in the outcome of the proceedings and adequate opportunity to the person likely to be effected to give his explanation culminating in an order or report that considers all aspects in an even handed and fair manner. A series of decisions have established that mere infraction of a principle or rule by itself would not vitiate an enquiry; the ultimate test to be applied wherever departmental proceedings are complained against on ground of unfairness; is the test of prejudice.
25. The petitioner asked for time from the Enquiry Officer on 7.8.1993. This request was turned down three days later even before the scheduled date of hearing. One cannot understand the haste on the part of the Enquriy Officer to deal with or turn down a request, which was not even before him formally. Admittedly, the preliminary hearing of the enquiry took place on 9.8.1993; on that date the petitioner's letter did not reach the Enquiry Officer. It reached him a day later. Nothing prevented the Enquiry Officer from fairly dealing with on the next date of hearing, namely, 16.8.1993. Indeed, nothing is indicated as to why the petitioner's request for further time on ground of his medical condition, was so un-reasonable or unpalatable as to warrant rejection. The proceedings dated 16.8.1993 do not record any reasons why the petitioner's request for 3-4 weeks on medical grounds so unreasonable as to warrant its rejection. The letter, dated 10.8.1993 baldly states that the request was not acceptable since it was unsupported by any medical documents and that it was for a long period. Having considered the copies of the documents placed on record as also the report of examination which was enclosed along with the petitioner's letter dated 6.8.1993, I am of the opinion that the Enquiry Officer acted in an un-seemly haste. The report of the examination of the petitioner clearly indicates that he had been referred by the AIIMS. His letter also indicates that the treatment was for brain ailment Basal Gaglia Calsification coupled with black outs. There is no discussion about this and why the request for further time was unreasonable. Even in the enquiry report, while discussing the letter dated 23rd and 26th August, 1993, the Enquiry Officer merely expresses that they were received after the conclusion of the enquiry. Had the real intention been to hold a fair and impartial proceeding, the conclusion of enquiry would not have been an impediment, particularly in view of the fact that the cross-examination of the witnesses had not been undertaken. All the witnesses examined by the enquiry officer, were produced by the management itself.
26. I am of the opinion that the rejection of the petitioner's request and the Enquiry Officer's decision to hold ex-parte proceedings leading to the penalty order was neither fair nor reasonable. The penalty order, therefore, has to be set aside.
27. The Constitution Bench judgment of the Supreme Court in Managing Director, ECIL v. B. Karunakaran, laid down that if there is any infirmity in enquiry proceedings the courts have to set it aside and permit the proceedings to commence from the stage the infirmity crept in. In the present case, the setting aside of the enquiry proceedings would imply that a fresh, de-novo proceeding would have to be held. The petitioner had endeavored to submit that having regard to the circumstance that about 12 years have lapsed since the passing of the impugned dismissal order, it would not be appropriate to re-open the proceeding as it would lead to further prejudice. Reliance has been placed upon the judgment reported as Union of India v. J.S. Singh, 1994 (Supp-II) SCC 518 for that purpose. It was submitted that the Court had in that case upheld the setting aside of the enquiry but balanced the equity by restricting the payment of back wages.
28. In the findings recorded in the earlier part of the judgment the merits of the charge-sheet have not been discussed except to the extent of applicability of the new regulations governing leave. Today, by another judgment I have rejected the challenge to the transfer order. In these circumstances, I am of the opinion that it would not be desirable to quash the proceedings in their entirety.
29. Having regard to the peculiar circumstances of the case, therefore, I set aside the impugned order dated 5.10.1993 and also the enquiry report dated 10.9.1993. The petitioner shall not however be entitled to entire arrears of salary. The petitioner shall be entitled to continuity of service so far as the grant of pay revisions and notional pay fixation, grant of increments are concerned. However, he shall be entitled to arrears of full salary only for the period 1.1.2002 till date. The respondents are directed to calculate the amounts and disburse them in the light of the direction vis-a-vis continuity of service and consequential pay revision etc., within a period of eight weeks from today. The respondent is at liberty to hold a fresh enquiry into the charges in the light of the above judgment. In case it choses to do so, such an enquiry shall be completed within a period of six months from today.
30. The writ petition is allowed to the extent indicated above. No costs.