Delhi High Court
Delhi Development Authority vs Ramesh Chand Jain on 13 November, 2002
Equivalent citations: 2003(66)DRJ204, [2003(96)FLR957], 2003(1)SLJ80(DELHI)
Author: R.S. Sodhi
Bench: R.S. Sodhi
JUDGMENT
R.S. Sodhi, J,
1. Letters Patent Appeal No. 123 of 1999 has filed by the Delhi Development Authority (for short 'DDA') challenging the judgment and order dated 27.10.1998 of the learned Single Judge in C.W.P. No. 583 of 1997 whereby the learned Judge has allowed the writ petition quashing the orders dated 16.4.1991 and 15.9.1991 of the DDA, while directing reinstatement of the respondent herein in service of the DDA with all consequential benefits.
2. The facts of the case, as emerged from the documents on records, are that the respondent herein was appointed in the service of DDA on 27.7.1981 as Junior Engineer. In January, 1983 he was transferred to the Housing Division No. 4 of the appellant-DDA. In August, 1983, the respondent was directed to take charge of construction of 237 MIG dwelling units in Pocket KG-1, Vikaspuri, New Delhi from Mr. A.K. Chopra, the officer-in-charge of the said construction work. On 29.8.1983 the respondent took over charge subject to verifications. On 22.12.1983, it was found that items in the charge of the respondent fell short. On detection of shortfall during stock verification, the respondent was charged as follows:
"That the said Shri R.C. Jain, Junior Engineer while functioning as J.E., Housing Division No. IV during the year 1983 failed to maintain absolute integrity and devotion to duty inasmuch as pilferage/misappropriation of brass fitting comprising of brass valve, brass bib cock, brass stop cock, face of stop cock etc. (valued at approximately Rs. 32,000/- stored in two locked trunks inside a room of a vacant FF Flat No. 146 at the work site of 237 MIG Houses at Bodella, took place as a result of gross negligence of Shri Jain.
Shri R.C. Jain by his above said acts of commission and omission exhibited lack of integrity and devotion to duty thereby violating Rule 3 of CCS (Conduct) Rules, 1964 as made applicable to D.D.A."
3. On the basis of material on record, the Enquiry Officer submitted a report dated 30.4.1990 holding the respondent guilty of the charge framed. A show-cause notice dated 27.9.1990 was served on the respondent calling upon him to show cause why a penalty of compulsory retirement from service be not imposed. Taking the reply of the respondent into consideration, the Vice-Chairman of the appellant-DDA imposed penalty of compulsory retirement. The respondent preferred an appeal before the Lt. Governor under Regulation 22(1) of DDA (Salary, Allowance and Conditions of Service) Regulation, 1961.The appeal was rejected vide order dated 5.9.1991. Being aggrieved thereof, the respondent filed a suit for declaration that his compulsory retirement is illegal and that he continues to be in service of the appellant-DDA; as also a declaration that the order of recovery of Rs. 32,000/- from the terminal benefits is illegal and void. This suit was filed with an application for condensation of delay. On 16.10.1992, the respondent moved an application for amendment of the plaint in order to explain the delay in institution of the suit. It is the averment of the respondent that the suit was taking a long time and, therefore, during pendency of the suit he filed a writ petition before the High Court being Civil Writ Petition No. 583/1997 with an undertaking to withdraw the suit. It was the case of the respondent before the learned Single Judge that the Inquiry Officer could not have returned a finding of guilt as it was a case of no evidence. Consequently, the order imposing penalty was also bad.
4. The learned Single Judge vide his judgment and order dated 27.10.1998, while re-appraising the evidence on record, has returned a finding that the handing over/taking over report (Ex.P-4) could not be admitted into evidence as the original of the same has not been produced before the Enquiry Officer. The learned Single Judge also returned a finding that it does not stand to reason that the original of the handing over/taking over report would be with the respondent herein (petitioner in the writ petition) as has been deposed by PW-1, Shri A.K. Chopra. The learned Single Judge further returned a finding that the testimony of Shri A.K. Chopra, PW-1, and Shri Radhakrishna, PW-3 does not inspire confidence. On the question of maintainability of writ petition during the pendency of the suit for the same relief, it was held that in the circumstances it would not be proper to require the respondent to continue with the suit and the matter could be disposed of in writ petition, consequently allowed the writ petition.
5. Being aggrieved of the findings of the learned Single Judge, the appellant-DDA assails the same in the present appeal on the grounds, inter alia, that it was not open to the High court in writ petition to evaluate the evidence to arrive at a different conclusion when the same had been gone into by two authorities, both returning a concurrent finding. It is also the grievance of the appellant that the learned Single Judge ought not to have entertained the writ petition during the pendency of the suit. It was contended that law is well settled to the effect that High Court will not re-evaluate the evidence to substitute its reasoning for that of the authorities in matters of departmental enquiries. Learned counsel also contended that it is not a case of 'no material/no evidence'.
6. In order to adjudicate the dispute raised before us, it is necessary to go into the evidence on record; firstly to ascertain whether this was a case of 'no evidence' as has been held by the learned Single Judge and/or whether the conclusions arrived at by the Enquiry Officer was arbitrary, casual, irrational and not supported by any material on record. The respondent has contended that the handing over/taking over report dated 29.8.1983 Ex.P-4 is not the original but a photo copy which does not bear his signature on the first page while it does so on the second page. He also contended that the note at the bottom of the second page, namely, "most of the material found in packing position has been counted and which is perishable item, charge is taken over with further verification" indicates that the charge had not been fully taken over.
7. It was contended by learned counsel for the appellant that from the oral evidence of PW-1, Shri A.K. Chopra, which is corroborated in all material aspects by PW-3, Shri Radhakrishna, it cannot be said that the charge against the respondent has not been proved. It is further contended that since the original of Ex.P-4 was handed over to the respondent, the respondent could very well have disproved the accuracy of the handing over/taking over report. In other words, it was submitted that once PW-1 has tendered into evidence Ex.P-4 which document is supported by PW-3, Shri Radhakrishna, the burden of proof, shifted to the respondent who has failed to discharge his burden and, therefore, Ex.P-4 cannot be doubted.
8. We have heard leaned counsel for the parties and have examined the material on record. PW-1, Shri A.K. Chopra in his testimony has stated that in 1986 he was posted as Junior Engineer in Housing Division No. IV on the project related to construction of 237 MIG dwelling units. In August, 1983 he was transferred from Division No. IV and had handed over the charge to the respondent-Shri R.C. Jain. The articles were physically counted and the charge was handed over. The charge report was prepared at that time and a photo copy of the same report dated 29.8.1983 is Ex.P-4. This witness has also stated that Shri R.C. Jain had signed this report and that at the time of handing over, all the items were physically checked. At that time Shri R.C. Jain had pointed out that he would check the wash basins to see if there were any cracks. No further discrepancy was brought to his notice by his successor at the time of handing over and taking over. In his cross-examination, this witness has stated that three copies of the report were prepared. The original copy was retained by Shri R.C. Jain, the second copy which was the carbon copy, was also signed by Shri R.C. Jain and was kept by PW-1, Shri A.K. Chopra. Since the third copy was not clear Shri R.C. Jain had refused to sign it. The Vigilance Department had asked for the copy of the charge report after the theft was reported.
9. PW-3, Shri Radhakrishna, Assistant Engineer, deposed to the effect that he was working in the Housing Division No. IV at Subhash Nagar crossing and was in-charge of Sub-Division No. II and had two works under his control. The first work was construction of 237 MIG Housing Units at Bodella Pocket KG-II, the second work was construction of 120 MIG houses at Hari Nagar in Pocket-FI. There were two Junior Engineers working in connection with 237 MIG houses, namely, Shri A.K. Chopra and Shri R.C. Jain. Both were looking after the rectification work of these houses. Shri A.K. Chopra was transferred from the said division in August, 1983 and Shri R.C. Jain had taken over the charge from Shri A.K. Chopra. Shri R.C. Jain started taking over the charge on 25.8.1983. PW-3 has further deposed that he along with Mr. A.K. Chopra had shown the stores on 25.8.1983 to Shri R.C. Jain. At that time, the keys, including the duplicate one of both the boxes were handed over to Shri R.C. Jain in Sub-division office. There was a handing over and taking over charge from Shri A.K. Chopra. On 29.8.1983, Shri R.C. Jain completed the taking over charge of the stores from Shri A.K. Chopra. The witness has further stated that "I have seen the document, Ex.P-4. It is the photo copy of the charge report prepared at the time which was signed by both Shri A.K. Chopra and Shri R.C. Jain. According to this charge report, all the costly items pertaining to this work were handed over to Shri R.C. Jain. The name of the item and quantity of each item was specifically mentioned in this charge report. From the tick mark against the items it is made out that Shri R.C. Jain had counted these items". Shri R.C. Jain acknowledged that "most of the material found in packing position which has been counted and is parishable item charge is taken over with further verification" at the bottom of the charge report, Ex.P-4. This witness further states that Shri R.C. Jain did not report to him during the next three or four months about having physically verified the condition of these parishable items. He has further deposed that after Shri R.C. Jain had taken over charge, Shri Jain never asked this witness to check the stores. He did not inform him about any periodical check conducted. In this cross-examination, this witness has stated that "Ex.P-4 is also photo copy. I have relied on it because I had seen its original copy. The original copy of the document Ex.P-4 was not given to me but it was shown to me."
10. From the aforesaid evidence of PW-1 and PW-3 it cannot be said there there is no evidence on record to substantiate the charge against the respondent. It also cannot be said that Ex.P-4 is not admissible as the original was not produced. Strict rules of evidence do not apply to departmental inquiries and further, as stated by PW-1 that the original was handed over to the respondent, which fact is not denied by the respondent, the department has discharged its onus in the enquiry. It is well settled that the High Court will not dwell into evidence to re-evaluate for itself the sufficiency thereof nor substitute its opinion on such re-evaluation. That being the case, it was not proper,with great respect, the learned Single Judge to have substituted its opinion on re-evaluation of evidence. The contention of the appellant that a writ petition ought not to have been entertained during the pendency of the suit, is not without force. Once recourse had been taken to proceedings by way of civil suit dropping it midway and moving the High Court by way of writ petition ought not to be encouraged.
11. Having carefully examined the case, with the aid of learned counsel, we are of the opinion that the appellant has made out a case which necessitates the reversal of the judgment under appeal. Consequently, the judgment and order dated 27.10.1998 of the learned Single Judge in Civil Writ Petition No. 583 of 1997 is set aside. L.P.A. 123 of 1999 is allowed. No order as to costs.