Delhi District Court
Gyanender Singh vs Union Of India on 6 December, 2010
IN THE COURT OF SH. DIGVINAY SINGH SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
S-349/07/91
Gyanender Singh
s/o. Sh. K. Singh,
r/o. Village Loharli,
Tehsil Dadri,
District Ghaziabad,
UP .................Plaintiff
Vs.
1. Union of India,
Ministry of Home Affairs,
Govt. of India,
North Block,
Central Secretariat,
New Delhi,
Through its Secretary
2. The Director General,
Central Industrial Security Force,
Block No. XIII,
Central Govt. Offices Complex,
Lodhi Road,
New Delhi
3. Union Public Service Commission,
Dholpur House,
Shahjanan Road,
New Delhi
4. P.K. Senapati,
IPS, Dy. Inspector General,
Training & Sports,
CISF, CGO Complex,
Lodhi Road,
New Delhi, & also
C/o. Director General,
Orissa Police Headquarters,
Orissa Government,
S-349/07/91 Page 1 of page 11
Cuttack ..................Defendants
Date of institution : 05.10.1991
Date of reservation : 06.12.2010
Date of pronouncement : 06.12.2010
JUDGMENT
1. This is a suit for declaration, simplicitor. The plaintiff seeks declaration to the effect that the order of dismissal of plaintiff, dated 23.06.1999, be declared as illegal/improper/malafide/unsustainable/ab-initio invalid, and quash the same.
2. Briefly stated, facts are that the plaintiff joined CISF in the rank of Inspector (Executive) in the year 1973 and subsequently he was promoted to the rank of Assistant Commandant. An enquiry under rule 14 of CCS (CCA) Rules, 1965, was contemplated against the plaintiff and, therefore, vide letter dated 30.09.1986/01.10.1986, he was sent a charge memorandum dated 18.08.1986, alongwith order dated 19.08.1986, appointing enquiry officer as well as presenting officer. Written statement of the plaintiff was sought within ten days of receipt of memorandum. Alongwith memorandum, article of charges, list of documents and list of witnesses were also sent to the plaintiff. The plaintiff did not give any written statement as required, instead, on 14.10.1986, gave a representation in which the plaintiff demanded copies of documents to prepare his defence. He also pointed out, that before receipt of written statement of the plaintiff, enquiry officer/presenting officer could not have been appointed. The defendants replied to the communication of plaintiff, vide memorandum dated 10.02.1987, not agreeing to the objections of the plaintiff. The defendants, however, subsequently, withdrew the order of appointment of enquiry officer and presenting officer, vide their order dated 06.04.1987. Although, the plaintiff claims that he did not receive this order dated 06.04.1987, but the fact is that vide these orders, the appointment of enquiry officer and presenting officer was withdrawn. The plaintiff was again given afresh opportunity to file his written statement. The plaintiff did not give any written statement and instead gave another S-349/07/91 Page 2 of page 11 representation, dated 06.05.1987, wherein the plaintiff again demanded documents. Admittedly, the documents were not supplied to the plaintiff, instead the plaintiff was asked to inspect the records during enquiry, if he may so desire. Subsequently, the Enquiry officer and Presenting Officer were afresh appointed, vide order dated 02.06.1987. The plaintiff was given another memorandum informing that enquiry officer has fixed the dated of 08.09.1987, to proceed with the enquiry, and the plaintiff was asked to attend. The plaintiff, although, appeared before the enquiry officer on 08.09.1987 but refused to give statement and insisted upon supply of documents. He also submitted a representation on that day. The enquiry officer postponed the matter to 08.10.1987. The plaintiff gave another representation, on 17.09.1987, wherein he expressed his inability to participate in the enquiry, owing to sickness, and he also challenged the authenticity and fairness of the enquiry. He again asked for supply of documents. Plaintiff was again requested by the enquiry officer, vide memo dated 26.10.1987, to appear in the departmental enquiry, which was re-fixed for 25.11.1987 and the plaintiff was warned, that in case, he fails to do so, enquiry would be conducted exparte. The plaintiff did not appear on 25.11.1987, and, therefore, enquiry was proceeded exparte. Subsequently, enquiry officer gave his enquiry report dated 30.06.1986 and the disciplinary authority, i.e., the President of India, dismissed the plaintiff vide subsequent order dated 23.06.1989.
3. The plaintiff claims that the fact of sending articles of charge with the appointment of presenting and the enquiry officer simultaneously and without waiting for the written statement of the plaintiff reflected bias and malafide and, therefore, the entire enquiry gets vitiated. It is also submitted that despite various requests of the plaintiff, through various representations sent by him to the defendants, the plaintiff was not supplied with the documents, which has caused material prejudice and it was non-compliance of principles of natural justice and, therefore, entire enquiry is vitiated. The plaintiff also challenges the competence of the enquiry officer and the officer signing dismissal order and other communications. It is claimed that it was only the President of India, who could have conducted the enquiry and dismissed the plaintiff.
4. On all these ground, the enquiry and the consequent dismissal order is challenged and is prayed to be declared as void.
S-349/07/91 Page 3 of page 11
5. On the other hand, the defendants claimed that the plaintiff was entitled to and was asked to inspect the documents during enquiry, and he had no right to ask for copies of documents before filing of written statement and, the plaintiff himself failed to inspect the documents, therefore, enquiry does not get vitiated. It is also claimed that the earlier order of appointment of enquiry officer and inspecting officer simultaneously with the charge memorandum was withdrawn on 06.04.1987, and after giving the plaintiff an opportunity to file written statement afresh, the enquiry officer and presenting officer were appointed afresh, therefore, the earlier order of appointment of enquiry officer and present officer simultaneously with the articles of charge, is inconsequential. And lastly, it is claimed that the enquiry and other proceedings were carried out by the officers, who were competent under the directions of superiors including the President of India and, therefore, enquiry does not get vitiated on any of these grounds.
6. From the pleadings of parties, following issues were framed on 27.11.1992.
1. Whether the present suit is liable to be stayed u/s.10 CPC because of pendency of the suit no.524/88 in this Court? OPD
2. Whether the order of dismissal dated 23.06.1999 is not sustainable or illegal, if so, its effect? OPP
3. Relief.
7. It appears that, inadvertently, the issues were framed afresh on 07.02.1994, and following three issues were also framed.
1. Whether the enquiry conducted by the Enquiry Officer was as per rule and regulations? OPP
2. Whether the suit of the plaintiff is maintainable in the present form? OPD
3. Whether the termination of the plaintiff was as per rules? OPP
8. In support of its case, the plaintiff examined himself as PW1, in which he deposed that he received letter Ex. PW1/2 dated 30.09.1986/01.10.1986, alongwith charge memorandum letter dated 18.08.1986 and appointment of presenting officer and enquiry officer Exs. PW1/3 & PW1/4, simultaneously. He also deposed that he demanded documents vide reply Ex. PW1/5 for submitting his statement of defence, S-349/07/91 Page 4 of page 11 but it was denied by the defendants vide memorandum, dated 10.02.1987 Ex. PW1/6. Plaintiff admits that, subsequently, the appointment of presenting officer and enquiry officer was withdrawn by the defendants vide Exs. PW1/7 & PW1/7A, dated 06.04.1987. He proved his report dated 06.05.1987, Ex. PW1/8, again requesting supply of documents. But instead of supply of documents, defendants quoted instruction no.22 under Rule No 14 of CCS CCA Rules, Ex. PW1/9, claiming that the documents can be inspected, but will not be supplied. He again submitted his reply Ex. PW1/10 and, thereafter, the defendants sent him memorandum dated 20.08.1987, i.e., memorandum of the enquiry officer Mr. P.K. Senapati, the defendant no.4, who informed the plaintiff that he was appointed as an enquiry officer and the enquiry is fixed for 08.09.1987. This document is proved as Ex. PW1/11. In reply to this document, the plaintiff again sent a reply Ex. PW1/12, informing that the enquiry officer was not competent to hold any enquiry. Subsequently, the plaintiff appeared before the enquiry officer on 08.10.1987, and gave his response before the enquiry officer, which is Ex. PW1/13. Thereafter, memorandum dated 09.09.1987 was sent to the plaintiff, informing the next date of enquiry to be 08.10.1987, vide Ex. PW1/14. The plaintiff gave his representation Ex. PW1/15. The defendants again sent a memorandum dated 26.10.1987, Ex. PW1/16, declining the request for supply of documents, to which the plaintiff gave a reply, Ex. PW1/17 and the plaintiff, subsequently, filed an appeal against the appointment of defendant no.4 as an enquiry officer, before the Secretary, Ministry of Home Affairs, Ex. PW1/18. The defendants vide order dated 02.02.1988, Ex. PW1/19, rejected the representation of the plaintiff. Subsequently, the plaintiff gave representation dated 18.02.1988 and ultimately, the defendants proceeded exparte and gave enquiry report Ex. PW1/21, dated 30.06.1988 by the defendant no.4. Ultimately, the plaintiff was dismissed vide letter dated 23.06.1989, which is signed by the Deputy Inspector General. It would be worth mentioning here that the plaintiff has challenged that dismissal order, is not signed by the President of India. In the cross examination, the plaintiff admitted having received documents Exs. PW1/14, PW1/15 & PW1/16. Although, the plaintiff claimed that he did not receive the letter dated 06.04.1987, but the document Ex. PW1/8, i.e., the letter dated 06.05.1987, which is of the plaintiff itself, would show that the plaintiff has S-349/07/91 Page 5 of page 11 referred to this letter dated 06.04.1987 and the plaintiff himself in his examination in chief deposed as to the cancellation of the orders appointing enquiry officer and presenting officer earlier.
9. On the other hand, the defendants examined Mr. Yogesh Mehta as DW1, who, besides the documents proved by the plaintiff, proved orders dated 19.08.1986. The testimony of defendant is in lines to the averments contained in the WS. The plaintiff cross examined DW1. DW1 maintained a stand that the documents were not necessary to be supplied, or that enquiry was vitiated because of non-supply of documents.
10.Issue-wise findings are as follows.
11.Issue no.1 framed on 27.11.1992 was, whether the suit of the plaintiff is liable to be stayed u/s. 10 CPC, because of pendency of another suit no.524/88? That earlier suit no.524/88 was a simplicitor suit for permanent injunction filed by the plaintiff, perhaps before his termination. Ultimately that suit no.524/88 was dismissed on 05.05.1994, on the ground that the present suit was subsequently filed. Since, there is no other suit besides the present one, therefore, this issue is rendered meaningless and, accordingly, this issue is decided against the defendants and in favour of the plaintiff.
12.Issue no.2 framed on 27.11.1992 to the effect, whether order of dismissal dated 23.06.1989 is unsustainable and illegal and as to its effect; issue nos.1 & 3 framed on 07.02.1994, to the effect, whether the enquiry conducted by the inquiry officer was as per rules and regulations, and, whether the termination of plaintiff was as per rules, are one and the same and, therefore, they will be dealt with together. It may be mentioned that those three issues read as follows :
-> Whether the order of dismissal dated 23.06.1999 is not sustainable or illegal, if so, its effect? OPP
-> Whether the enquiry conducted by the Enquiry Officer was as per rule and regulations? OPP
-> Whether the termination of the plaintiff was as per rules? OPP
13.It may be mentioned here that the issue no.1 framed on 07.02.1994 and issue no.3 framed on that very day, the onus was wrongly put on the plaintiff and the language of S-349/07/91 Page 6 of page 11 the issue suggests that the onus should have been on the defendants.
14.Anyhow, as discussed above, it is an admitted position in the present case that despite repeated asking of the plaintiff, the defendants did not supply documents to the plaintiff. Besides non-supply of documents, the plaintiff also claims that appointment of the presenting officer and enquiry officer, without waiting for the written statement of the plaintiff was illegal, rendering the enquiry as void.
15.No doubt, initially the enquiry officer and presenting officer were appointed simultaneously with the memorandum of charge, but, subsequently, the appointment of enquiry officer and presenting officer were withdrawn on 06.04.1987. The plaintiff was given a fresh opportunity to file his written statement, but when no written statement was forthcoming, the enquiry officer and presenting officer were appointed afresh. This fact is proved beyond doubt that enquiry officer and presenting officer were appointed afresh and, therefore, the earlier appointment of enquiry officer and presenting officer has not caused any prejudice whatsoever to the plaintiff. Plaintiff cannot claim the enquiry to be unjust on this ground.
16.The plaintiff next claimed that the appointing authority of the plaintiff is the President of India, who alone could have enquired and dismissed the plaintiff and no one else. This argument is without any force.
17.Hon'ble Supreme Court of India in the case of Union of India Vs. Sripati Ranjan Biswas, AIR 1975 SC 1755, held as follows :
The question relating to the domain of appointment or dismissal of a Government servant falls within the ambit of a purely executive function of the President in the case of the Union Government and of the Governor in the case of a State. In the case of the Central Government servant, such a function being ultimately an executive function of the President, the fact that the final order is preceded or accompanied by a quasi-judicial enquiry held by the Minister does not affect the character of that function by the President. The decision of any Minister under rules of business made under Art. 77 (3) is the decision of the President. Any reference to the President under any rule made under the Constitution must not be to the President as the constitutional head, as envisaged in the Constitution acting with the aid and advice of the Council of Ministers. Where an appeal to the President under Rule 23 (2) (b) of the Central Civil S-349/07/91 Page 7 of page 11 Services (Classification. Control and Appeal) Rules as filed by a Central Government servant against his dismissal was disposed of by a Minister and the President acted on the advice of the Minister in confirming the said order of dismissal, the disposal of the appeal in the aforesaid manner could not be said to be improper or illegal. There was no question of delegation involved in such a matter. The appellate order, in such a case, could not be said to be suffering from any constitutional infirmity.
18.The legal position is brought out very clearly in para. 57 of the report in Shamsher Singh, AIR 1974 SC 2192 = (1974 Lab IC 1380) (supra) in the following extracts :-
in Para. 48 the Court observed-
"The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Articles 77 (3) and 166 (3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor."
19.It would be practically impossible for President of India to conduct enquiry personally and to pass orders personally for those category of employees for whom, the President of India is appointing authority for the whole of India. The sheer number of those employees would be huge in India and in such circumstances, exercise of delegated powers by the officers would be acts of the President of India and accordingly binding. This contention of the plaintiff is liable to be fail on this ground.
20.The third and the foremost contention of the plaintiff was that he was not supplied S-349/07/91 Page 8 of page 11 with the documents, despite repeated requests. From the above facts, it is clear that the documents were indeed not supplied to the plaintiff. The defendants claimed that under instruction no.22 appended under rule 14 CCS (CCA), the plaintiff was not entitled to be supplied with the documents. But, then the instruction no.20 appended to the same rule has not been followed by the defendants.
21.Hon'ble Supreme Court in a catena of decisions, held that supply of documents is a necessity and non-supply of documents is indeed prejudicial to an employee. In this regard, the plaintiff has placed reliance upon the cases of Trilok Nath Vs. Union of India, 1967 SLR 761; Sh. Kashinath Dikshit Vs. Union of India, 1986(2) P-279, All India Services Law Journal, Vol.8; State of Punjab Vs. Bhagat Ram, 1975 Vol.1 SC Cases 155; State of Uttar Pradesh Vs. Mohd. Sharif, 1982(2), All India Services Law Journal, P-259; Order of CAT Cuttack Bench dated 30.03.1987 in TA No. 316/86 and also TA No.370 of 1986. In all these cases, it is observed that supply of documents is must. In some of the cases, it is also observed that directions as to inspect the records would not suffice.
22. Additionally, it may be mentioned here that Hon'ble Supreme Court in AIR 1988, P-117, Chandrama Tiwari Vs. Union of India, held, that copies of relevant and material documents, including the statement of witnesses recorded in the preliminary enquiry, or during investigation, if not supplied to the delinquent official, facing enquiry and if such documents are relied upon by the department, the enquiry would be vitiated for violation of principal of natural justice. It was also held that the statement of witnesses recorded in preliminary enquiry must be supplied, otherwise that would amount to denial of opportunity of effective cross examination. In the present case, instead of supply of copies of documents, relied upon by the department, the delinquent was asked to inspect the copies. In my considered view, and in view of well settled law now, that copies must have been supplied, this fact alone vitiates the enquiry.
23.But the question which still remains is whether the plaintiff is entitled to the decree of declaration. In this regard, it may be mentioned that the issue no.2 framed on 07.02.1994, as to whether the suit of the plaintiff is maintainable in the present form is of vital importance and this question would be considered under the head of that issue.
S-349/07/91 Page 9 of page 11 Suffice it to say that because of non-supply of documents to the plaintiff by the defendants, the issue no.2 framed on 27.11.1992 and issue no.1 and 3 framed on 07.02.1994 goes in favour of the plaintiff and against the defendants.
24.Issue no.2 framed on 07.02.1994, was to the effect whether the suit of the plaintiff is maintainable in the present form ? This issue appears to have been framed, pursuant to section 34 of Specific Relief Act. Section 34 of Specific Relief Act reads as follows:
"Discretion of Court as to declaration of status or rights - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
25. The proviso clause of section 34 of Specific Relief Act specifically mentions that no Court shall make any such declaration, where the plaintiff, being able to seek further relief then a mere declaration of title, omits to do so. It also provides that declaration is a discretionary relief. As mentioned above, the plaintiff has sought a simple decree of declaration that his order of dismissal be declared illegal, improper, malafide, unsustainable, ab-initio invalid, and to quash the same. Consequential reliefs has not been sought in the suit. Plaintiff was able to seek further consequential reliefs of his reinstatement/continuity of service, with complete back wages with interest and with promotional benefits etc. etc. But despite availability of those consequential reliefs, mere declaration is sought.
26.A declaratory decree simplicitor without consequential relief cannot be executed, as it would only declare rights of the decree holder viz a viz the judgment debtor. In absence of any other consequential relief, the decree would not contain any direction to the judgment debtor, to do or to refrain from doing any particular act. Since, there would be no direction issued to the judgment debtor to obey the directions of Court, or to do any particular act, the decree would be simply unexecutable for compliance of that mandate in the decree. Thus, simplicitor decree of declaration cannot be granted to the plaintiff, when plaintiff had consequential relief available, to be sought. This S-349/07/91 Page 10 of page 11 issue must fail against the plaintiff for this reason.
27.Even otherwise, it may also be mentioned here that declaration is a discretionary relief and, the conduct of the plaintiff during enquiry goes against him in exercise of the discretion. The plaintiff was given repeated communication by the department to join enquiry, but he did not do so, instead he kept on alleging various allegations, including biasness, incompetence etc., against the enquiry officer and other authorities. One could have understood that the plaintiff participated in the enquiry and tried to show his innocence before the enquiry officer and then, in case the decision would have been against him, he could have come to the Court pleading non compliance of principles of natural justice. But here, the plaintiff even failed to join the enquiry and as a result of which the enquiry had to be conducted exparte. This conduct of the plaintiff in not even joining the enquiry, and raising every allegation available under the Sun against the superiors, calls for exercise of discretion against him. For these reasons, this issue is decided against the plaintiff and in favour of the defendant.
28.Last issue is Relief. In view of above discussion, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to the Record Room.
Announced in open Court on 06.12.2010 (DIG VINAY SINGH) SCJ/RC(NORTH)/DELHI.
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