Delhi District Court
Dharamjit Khera vs Uoi on 30 September, 2024
IN THE COURT OF SH. HARJEET SINGH JASPAL, LD.
SCJ-CUM-RC CENTRAL DISTRICT, TIS HAZARI COURTS,
DELHI
CS SCJ No.: 595565/2016
CNR: DLCT03-000053-1996
Dharamjit Khera
S/o Late Sh. K. C. Khera
R/o B-18, Soami Nagar,
New Delhi-110017.
....Plaintiff
Versus
Union of India through
1. The Secretary (Steel)
Government of India
Ministry of Steel & Mines
Udyog Bhawan
New Delhi.
2. The Chairman
Steel Authority of India
Ispat Bhawan
Lodhi Complex
New Delhi.
3. The Director (Commercial)
Disciplinary Authority (Steel Authority of India Ltd.)
Commercial Directorate
H. T. House
Kasturba Gandhi Marg
New Delhi-01.
4. Sh. Gautam Patnaik
Addl. Chief & EO (Enquiry Officer)
Commercial Directorate
Steel Authority of India
13th Floor, H. T. House
K. G. Marg
New Delhi-01. ....... Defendants
CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 1 of 50
HARJEET Digitally
by HARJEET
signed
SINGH SINGH JASPAL
Date: 2024.10.04
JASPAL 17:24:02 +0530
DATE OF INSTITUTION : 26.02.1996
DATE OF RESERVING THE JUDGMENT : 03.08.2024
DATE OF DECISION : 30.09.2024
SUIT FOR DECLARATION AND PERMANENT
INJUNCTION AND MANDATORY INJUNCTION
JUDGMENT
1. The matter at hand is 28 years old. This is a suit filed by the plaintiff Sh. Dharamjit Khera (hereinafter as the plaintiff) seeking a decree of declaration as well as permanent and mandatory injunction against his employer i.e. Union of India, the Chairman of Steel Authority of India Ltd. i.e. the PSU (SAIL i.e. Steel Authority of India Ltd.) where the plaintiff works, its directors etc.
2. In a nutshell, the case of the plaintiff is that he has been wrongly terminated from the employee organization i.e. SAIL on account of ulterior motives which the defendant No.3 and 4 had against the plaintiff. The plaintiff has prayed that the enquiry report dated 18.12.1995 alongwith the consequential order dated 10.05.1996 and 10.04.1996 be declared null and void and all the dues, including the salary benefit, etc. be paid to the plaintiff from the date of his wrongful termination.
3. The brief facts of the suit of the plaintiff as per his plaint are as follows:-
i) The plaintiff who was working as Deputy Chief (M) EDP (Northern Region) with Steel Authority of India Ltd.CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 2 of 50
HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:24:10 +0530 (SAIL) applied for earned leave in order to go abroad in connection with his son's education as well as to pursue an advance course in Computer Application at Fortitude Valley, Brisbane, Australia. The said earned leave was sanctioned to the plaintiff and an earned leave for a period of 51 days with permission to go abroad to Newzeland/Australia was granted w.e.f. 28.10.1993 till 31.12.1993.
ii) During the sanctioned leave period, the plaintiff fell ill in Newzealand and could not pursue the course in advance computer application and accordingly applied for an extension of leave by sending an application alongwith medical certificate to his Department. However, the said application for extension of leave was rejected by the Department without any justification and valid reason and without considering another medical certificate dated 12.05.1993 issued from Welington Hospital, Welington, Newzeland and sent by the plaintiff to the Department.
iii) An illegal Memorandum dated 07.09.1994 with the allegation that the plaintiff has remained absent unauthorizedly from his duties was issued by the defendant no.2 and on the basis of the said illegal Memorandum, the defendant no.4 was appointed as an Enquiry Officer.
iv) The defendant no.4/Enquiry Officer appointed on the basis of the illegal memorandum dated 07.09.1994 did not issue any notice to the plaintiff for filing his defence as the notices issued by the Enquiry Officer were sent at the Delhi CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 3 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:25:48 +0530 Address of the plaintiff where the same were received by the wife of the plaintiff though the Enquiry Officer was fully aware that the plaintiff was out of India and the said fact was also intimated to the Enquiry Officer by the wife of the plaintiff vide her letter dated 12.01.1995 whereby she had communicated the New Zealand address of the plaintiff and had also further requested the defendant no.4 to send the notices to the plaintiff at his New Zealand address.
v) The wife of the plaintiff again received a notice dated 17.01.1995 from the Enquiry Officer wherein he had fixed the date of enquiry as 31.01.1995. However, the plaintiff had no knowledge of the said date of enquiry fixed by the defendant no.4 for 31.01.1995.
vi) However, since the plaintiff had received a copy of earlier notice dated 02.01.1995 sent by the defendant no.4 at his Delhi address which was received by his wife and thereafter sent to the plaintiff at New Zealand address, the plaintiff informed his Advocate by means of telegram as well as writing and thereafter through his counsel issued a notice dated 21.01.1995 to the Department giving all the details of the case as well as challenging the memorandum dated 07.09.1994. However, despite the service of the said notice, the same was not replied by the Department.
vii) The Enquiry Officer continued his illegal act under the pressure of the defendant no.3 who was already biased towards the plaintiff and again fixed the date of enquiry on CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 4 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:25:55 +0530 20.02.1995. The said notice dated 01.02.1995 regarding the enquiry was also again deliberately issued to the plaintiff at his Delhi address though the wife of the plaintiff had already requested the Enquiry Officer to sent all the notices to the plaintiff at his New Zealand address. Even the Memorandum dated 07.09.1994 was also conveyed to the plaintiff by his wife and not by the Department. Further, the wife of the plaintiff also got issued one notice dated 18.02.1995 through an advocate to the Department stating therein that the notice issued by the Enquiry Officer are of no avail and are liable to be cancelled and that fresh notice be issued to the plaintiff as his current address of New Zealand.
viii) The Department harassed the wife of the plaintiff by stopping the salary of the plaintiff to his bank account as well as by stopping the payment of house rent and reimbursement of the medical expenses of his family. The Department further refused to allot 200 shares due to the plaintiff inspite of the fact that the relevant cheques and forms were duly sent to the department by the family of the plaintiff.
ix) The Enquiry Officer ultimately gave up his final report of his enquiry dated 18.12.1995. The copy of the said report alongwith the covering letter dated 07.02.1996 was addressed to the plaintiff which was received by the wife of the plaintiff at his Delhi address. The Enquiry Officer had based his final report on false and incorrect facts without giving the plaintiff an opportunity of being heard. The Enquiry Officer had also not taken into consideration which were issued to the CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 5 of 50 Digitally signed HARJEET by HARJEET SINGH JASPAL SINGH Date:
JASPAL 2024.10.04 17:26:01 +0530 Department as well as the Enquiry Officer and had passed an illegal and arbitrary report under the influence of defendant no.3 and the same is liable to be set aside.
x) That acting on the illegal and arbitrary report of the Enquiry Officer, the defendants removed the plaintiff from his services by passing a termination order dated 10.05.1996 in utter violation of principal of natural justice.
xi) The Memorandum dated 07.09.1994 as well as the enquiry report dated 18.12.1995 and termination order dated 10.05.1996 are liable to be set aside as the same are illegal and against the principle of natural justice and Conduct and Disciplinary & Appeal Rules, 1977.
4. Pursuant to the receipts of the summons of the suit, the defendants no.2 to 4 also filed their WS in the Court. The defendant no.1 is Union of India i.e. a proforma party. In their WS, opposing the suit of the plaintiff the following averments were made by the defendants no.2 to 4:-
i) The suit of the plaintiff is infructuous as he has already been removed from the service by the order of the defendant no.3 dated 10.05.1996 and already duly communicated to the plaintiff.
ii) The plaint has not been properly verified as per the provision of Order 6 Rule 15 and the suit has also not been properly valued.CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 6 of 50
HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:26:08 +0530
iii) The plaintiff applied for sanction of earned leave on 18.06.1993 to visit Australia which was sanctioned but the plaintiff did not avail the said leave. Later on, the plaintiff again applied for earned leave on 13.10.1993 for a period of 51 days w.e.f. 28.10.1993 to 31.12.1993 for visiting Australia which was again sanctioned. However, it is denied that the leave was granted for visiting New Zealand or that the plaintiff intended to go abroad in connection with his son's education and to pursue any course in advance computer application.
iv) The plaintiff applied for study leave on 27.10.1993 for a period of two years and left of Australia on 28.10.1993 i.e. the very next day of making the said application. However, the application of the plaintiff was rejected by the competent authority primarily on the ground that the plaintiff was facing several criminal cases filed by CBI and pending before the Special Court, Ranchi in relation to various offences committed by the plaintiff in the course of his official activities in the company and warrants of arrest was also issued by the Special Court, Ranchi for his appearance in connection of a case registered u/s 120-B, 420, 468 and 417 of IPC.
v) Though the plaintiff was well aware of his admission in the said institution namely Fortitude Valley, Brisbane, Australia in the month of June, 1993 itself, however, the plaintiff never disclosed the said information to the company to consider his request for grant of study leave.
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JASPAL 2024.10.04 17:26:15 +0530
vi) The plaintiff was duly informed about the non-
sanction of his study leave vide registered letter no.NR/PERS/6- 1/93 dated 09.11.1994 mailed to both his addresses i.e. Delhi as well as Australia provided by the plaintiff. The defendant no.2 further vide letters dated 07.01.1994, 03.03.1994 and 07.05.1994 duly asked the plaintiff to report for duty immediately. However, despite the receipt of the said letters, the plaintiff failed to report for his duties and remained absent unauthorizedly.
vii) The plaintiff's letter dated 10.03.1994 for extension of leave on medical ground was received much after the expiry of sanctioned leave and vide letter dated 07.05.1994 the plaintiff was duly intimated by the defendant no.2 that despite repeated letter he has failed to report for duties and if he still fails to report for his duties, further appropriate action as per rules shall be initiated against him.
viii) The plaintiff has not disclosed in his plaint whether he actually took admission in Australia as per his leave application and how did he reach New Zealand and submit a medical report from the New Zealand doctor.
ix) It is denied that the application of the plaintiff for extension of leave on medical ground was rejected without justified and valid reason or the same was not communicated to the plaintiff as vide letter dated 09.11.1993, 07.01.1994, 03.03.1994 and 07.05.1994, he was duly informed that his leave application has been rejected and no further extension can be granted. Further, the plaintiff was also advised to report back for CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 8 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:26:20 +0530 his duties immediately failing which suitable disciplinary action shall be taken as per rules.
x) It is denied that Memorandum dated 07.09.1994 is illegal, arbitrary, discriminatory and in violation of Discipline and Appeal Rule 1978 as well as COR and Company Leave Rules.
xi) It is denied that the appointment of defendant no.4 as enquiry officer was illegal or that no notice was issued by the enquiry officer to the plaintiff for filing his defence. It is stated that the defendant no.4 was appointed as enquiry officer as per the rules of the company applicable to the plaintiff who issued notice of enquiry on 02.01.1995 by registered post with AD to the plaintiff at the address himself supplied by the plaintiff informing that the first sitting of the enquiry would be held on 16.01.1993 at 2:00 PM at Hindustan Times House, 13 th Floor, KG Marg, New Delhi and the plaintiff was asked to attend the said enquiry. It is further stated that it was intimated in the said notice that in case the plaintiff fails to attend the said enquiry, the enquiry would be proceeded ex-parte against him. However, the plaintiff failed to attend the enquiry scheduled on the said date despite the knowledge of the said sitting of the enquiry.
xii) The Enquiry Officer issued fresh notice dated 17.01.1995 to the plaintiff at the address supplied by the plaintiff's wife informing him that the sitting of the enquiry would be again held on 31.01.1995 at 2:00 PM at HI House at the same place, but the plaintiff again failed to attend the said CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 9 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:26:27 +0530 sitting of the enquiry.
xiii) In respect of the notice dated 21.01.1995 issued by the plaintiff through his counsel, it is submitted that the notice of the plaintiff's counsel was not in accordance with law and the same had no legal sanctity. It is further submitted that the charge- sheet having been received by the plaintiff, it was incumbent upon him to reply the same.
xiv) It is also averred that the Enquiry Authority gave one further opportunity to the plaintiff to attend the sitting of enquiry fixed for 20.02.1995 and accordingly the notice of the enquiry was sent to the plaintiff at all the addresses supplied by the plaintiff and his wife, however, the plaintiff again failed to avail the said opportunity.
xv) It is denied that the Enquiry Officer acted under the pressure of defendant no.3. It is further averred that only on account of the plaintiff's persistent failure to attend the enquiry, the Enquiry Authority proceeded with the enquiry against the plaintiff ex-parte on 20.02.1995 and conducted the enquiry proceedings. It is further stated that the notice dated 18.02.1995 issued by the plaintiff's wife through her counsel was also not in accordance with law as the charge-sheet was already received by the plaintiff in New Zealand.
xvi) With respect to the averment of the plaintiff regarding the stopping of his salary, house rent, medical reimbursement and non-allotment of shares, it is stated that the CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 10 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:26:34 +0530 plaintiff did not earn any salary because of his continued unauthorized absence w.e.f. 01.01.1994. However, the house rent was paid to the plaintiff till June, 1994 and since the plaintiff was not entitled for any salary w.e.f. 01.01.1994, the house rent for the subsequent month could not be paid since the deduction of the 10 % of the salary as per requirement of the rules relating to house rent could not be made from the plaintiff's salary. As far as the reimbursement of medical claim is concerned, it is stated that there was no specific claim for reimbursement pending with the company. Similarly, regarding the non-allotment of share, it is stated that the plaintiff was allotted shares in special category and due to the plaintiff's failure to make application specifically under the said category, the plaintiff was not entitled for allotment of any share.
xvii) It is further averred that a copy of the enquiry report was also sent to the plaintiff and his local address as well as at the New Zealand and Australia addresses vide registered letter dated 07.02.1996. However, the enquiry report sent to the plaintiff at his New Zealand and Australia addresses was returned by the concerned postal authorities with the endorsement unclaimed/'left address'. Further, though the enquiry report was duly received at the plaintiff's New Delhi address but not representation was made by the plaintiff against the said report.
xviii) It is denied that the Enquiry Officer had based his final report on false and incorrect facts without giving the plaintiff any opportunity of being heard. It is also denied that the CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 11 of 50 Digitally signed HARJEET by HARJEET SINGH JASPAL SINGH Date:
JASPAL 2024.10.04 17:26:40 +0530 Enquiry Officer had also not taken into consideration the letter and notices which were issued to the Department and Enquiry Officer. It is further denied that the enquiry report was made under the influence of defendant no.3.
xix) It is also denied that the Memorandum dated 07.09.1994, Enquiry Report dated 18.12.1995 as well as order dated 10.04.1996 and 10.05.1996 whereby the plaintiff was removed from his services are illegal, arbitrary and violative of principle of natural justice.
5. A replication was also filed on behalf of the plaintiff to the WS of the defendants no.2 to 4 wherein the averments of the defendants in their WS were refuted and claim of the plaintiff was again reiterated.
6. On completion of pleadings of both the parties and admission & denial of documents, the following issues were settled between the parties in the suit;-
i) Whether the suit of the plaintiff is maintainable? OPP
ii) Whether the enquiry report dated 18.12.1995 and order of dismissal dated 10.05.1996 are illegal and void? If so, its effect? OPP
iii) Whether the plaintiff is entitled to the relief of declaration and permanent and mandatory injunction as prayed for ?OPP
iv) Relief.
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7. Thereafter, the parties were called to lead their evidence.
8. During plaintiff evidence, the plaintiff has examined total four witnesses. PW-1 is the plaintiff himself who tendered his evidence by way of affidavit Ex.P1. He has also relied upon the following documents:-
i) Ex.PW-1/1 is the original leave book of the plaintiff.
ii) Ex.PW-1/2, Ex.PW1/3 and Ex.PW1/4 are the letters dated 09.06.1993 and 16.07.1993 alongwith covering letter whereby the plaintiff was granted admission for advance course in computer application at Fortitude Valley, Brisbane, Australia.
iv) Ex.PW1/5 is the application dated 20.10.1993 whereby the plaintiff applied for the leave to pursue the abovesaid computer course.
v) Mark A is the copy of memorandum dated 07.09.1994.
vi) Ex.PW1/6 is the copy of the doctor certificate dated 12.05.1994 issued from Welington Hospital, Welington, New Zealand.
vii) Ex.PW1/7 is the copy of letter dated 12.01.1995 issued by the plaintiff side to the enquiry officer requesting him to send the notices to the plaintiff at his New Zealand addresses.
viii) Ex.PW1/8 is the copy of notice dated CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 13 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:26:53 +0530 21.01.1995 issued by the Advocate of the plaintiff to the Department giving all the details of the case and challenging the Memorandum dated 07.09.1994 and Ex.PW1/9 is its original post receipt
ix) Ex.PW1/10 is the copy of the letter dated 18.02.1995 issued by the wife of the plaintiff to the Enquiry Officer in response to notice dated 01.02.1995 issued by the Enquiry Officer fixing the date of the enquiry for 20.02.1995 submitting that the notice issued by the Enquiry Officer are of no avail and liable to be cancelled with further request to issue fresh notice to the plaintiff at his current address and Ex.PW1/11 is its original post receipt.
x) Ex.PW1/12 to Ex.PW1/14 are the letters dated 10.06.1994, 11.07.1994 and 16.09.1994 respectively addressed by the plaintiff's wife to his department in respect of stopping of the salary of the plaintiff, payment of house rent, reimbursement of medical expenses and refusal to allot 200 shares due to the plaintiff.
9. PW-2 is Sh. S.K. Ahluwalia, Former Director, Commercial, who deposed that during the period 1983 to 1990 he was holding the post of Director, SAIL. He deposed further that whenever the General Manager was the Disciplinary Authority, he, as Director (Commercial), was the Appellate Authority. As per him, CBI cases are pending against Mr. Khera i.e. the plaintiff herein, however, he could not recall any appeal being addressed to him. He deposed that the note sheet dated CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 14 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:26:59 +0530 19.02.1988, Mark A, is not signed by him.
PW-2 further deposed that document Ex.PW2/1 has been authored by him, he identified his signatures at point A and at point B.
10. PW-3 is Sh. Ahok Kumar, who tendered his evidence by way of affidavit Ex.PW3/A. He deposed that he alongwith the plaintiff were Members of Officer's Association of SAIL. As per him, since a CBI case was initiated against Sh. S.K. Daspathnaik, upon information collected by the SAIL Officer's Association, of which the plaintiff was a part, he had vindictive attitude towards the plaintiff.
11. PW-4 is Sh. Sunil Manchanda, Mauza Clerk, CMM, Tis Hazari Court who produced the summoned record i.e. the certified copy of the charge-sheet pertaining to case bearing RC No.2(A)/96/CBI/ACU-X/ND Goswara No.183 titled as CBI Vs. Sushil Kumar Das Nair (PW1/4).
12. During DE, the defendants examined total three witnesses.
13. DW-1 is Sh. Sushovan Sengupta, Assistant General Manager, Steel Authority of India Ltd., Central Marketing Organization, Northern Region, SCOPE Minar (17th floor), North Tower, Laxmi Nagar, District Centre, Delhi, who tendered his evidence by way of affidavit Ex.DW1/A. He relied upon the following documents:-
i) Ex.DW1/1 is the application of the plaintiff CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 15 of 50 Digitally signed HARJEET by HARJEET SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:27:05 +0530 dated 18.06.1993 whereby he applied for earned leave to visit Australia which was sanctioned but not availed by the plaintiff.
ii) Ex.DW1/2 is the letter dated 03.07.1993 sent to the plaintiff by the defendants no.2 and 3 intimating him the sanctioning of his application dated 18.06.1993 for grant of earned leave to visit Australia.
iii) Ex.DW1/3 is the copy of the application of the plaintiff dated 13.10.1993 to 31.12.1993 seeking grant of earned leave for a period of 51 days w.e.f. 18.10.1993 to 31.12.1993 for visiting Australia.
iv) Ex.DW1/4 is the copy of the leave book of the plaintiff.
v) Ex.DW1/5 is the note dated 01.11.1993 of the defendant no.2 and 3 company prepared with respect to the application of the plaintiff for study leave dated 27.10.1993.
vi) Ex.DW1/6 is the letter dated 09.11.1993 whereby the plaintiff was duly informed about the non- sanction of his study leave by registered AD.
vii) Ex.DW1/7 is the original letter dated 10.03.1994 whereby the plaintiff acknowledged the receipt of letter dated 09.11.1993.
viii) Ex.DW1/8, Ex.DW1/9 and Ex.DW1/10 are the letters dated 07.01.1994, 03.03.1994 & 07.05.1994 whereby the defendants no.2 and 3 asked the plaintiff to immediately report for his duties.
ix) Ex.DW1/11 is the letter dated 23.05.1994 sent by the plaintiff to the defendants no.2 and 3 admitting CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 16 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:27:12 +0530 the receipt of letter dated 07.05.1994.
x) Ex.DW1/12 is the certified copy of clause 5.1 of SAIL Leave Rules.
xi) Ex.DW1/13 is the certified copy of Rule 5.7 of the Conduct, Discipline Appeal Rules, 1977.
xii) Ex.DW1/14 is the original letter dated 07.02.1996 whereby the enquiry reprot dated 18.12.1995 was conveyed to the plaintiff vide registered letter and Ex.DW1/15 and Ex.DW1/16 are its returned envelopes.
xiii) Ex.DW1/17 is reply dated 06.03.1995 sent by the defendant no.3 to the Advocate of the plaintiff in response to his legal notice dated 21.01.1995.
xv) Ex.DW1/18 and Ex.DW1/19 are copies of approval of termination dated 10.04.1996 and termination order dated 10.05.1996 respectively. xvi). Mark A is copy of warrant issued by Special Court, Ranchi against the plaintiff. xvii). Mark B is photocopy of judgment dated 21.01.2011 passed by Addl. District & Sessions Judge, CBI, Dhanbad.
14. DW-2 is Sh. K.K. Jain, G.M. (MRD), Bokaro Steel Plant, SAIL, Bokaro Steel City, Distt. Bokaro, Jharkhand, who tendered his evidence by way of affidavit Ex.DW2/A. He placed reliance upon the following documents:-
i) Ex.DW2/1 is the letter dated 13.11.1979 whereby Central Vigilance Commission of the CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 17 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:27:21 +0530 defendant company recommended initiation of major penalty proceedings against the plaintiff and nominated Sh. N.N. Mukherjee, Commissioner of department enquiry as Enquiry Officer.
ii) Ex.DW2/2 is charge memo dated 15.01.1980 served upon the plaintiff by Sh. Subir Sen, the then General Manager (Home Sales) Central Marketing Organization and Disciplinary Authority allowing him an opportunity to file written statement of his defence.
iii) Ex.DW2/3 is copy of order dated 25.04.1980 whereby Sh. N.N. Mukherjee was appointed as an Enquiry Officer.
iv) Ex.DW2/4 is letter dated 31.03.1981 addressed by Central Vigilance Commission to Chief Vigilance Officer, SAIL forwarding the enquiry report and advising non-acceptance of report of Enquiry Officer and further advising imposition of major penalties on the plaintiff.
v) Ex.DW2/5 is order dated 25.11.1982 whereby the appeal of the plaintiff against the order of Disciplinary Authority dated 03.10.1981 was dismissed by the Appellate Authority.
vi) Ex.DW2/6 is the letter dated 28.04.1982 whereby CVC after examining the case advised initiation of major penalty proceedings against the plaintiff and nominated Smt. Jyotsna Diesh as Enquiry Officer and further advised for forwarding copy of the investigation report to the CBI since some private parties were involved in irregular allotment which CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 18 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:27:28 +0530 appears to be a racket in the allotment of scarce items of steel in connivance with the officials of SAIL.
vii) Ex.DW2/7 is charge memorandum dated 04.02.1983 served upon the plaintiff.
viii) Ex.DW2/8 is Enquiry Report dated 02.11.1983 submitted by Enquiry Officer Smt. Jyotsna Diesh to CVC concluding that article of charge framed against the plaintiff had been proved during the enquiry.
ix) Ex.DW2/9 is the letter dated 06.12.1983 addressed by CVC to Chief Vigilance Officer of defendant no.2 and 3 while forwarding the enquiry report advising acceptance of enquiry officer's report and imposition of major penalties on the plaintiff.
x) Ex.DW2/10 is order dated 03.01.1984 issued by the then General Manager, CMO and Disciplinary Authority to the plaintiff imposing major penalties of reduction in his grade by two stages with immediate effect.
xi) Ex.DW2/11 is letter dated 21.12.1984 whereby the intimation regarding the dismissal of the appeal of the plaintiff against the order of Disciplinary Authority made vide letter dated 01.03.1983, was duly communicated to him.
xii) Ex.DW2/12 is letter dated 16.06.1984 with a copy of police report no.6/84 dated 30.04.1984 whereby the sanction for prosecution of the plaintiff sought by CBI was granted by the General Manager, CMO SAIL being the competent authority.
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xiii) Ex.DW2/13 is the SP's report 06/82 dated 30.04.1982 submitted by the CBI seeking sanction for prosecution of plaintiff in another case bearing RC No. 4/79 (Ranchi) relating to criminal conspiracy with private parties by the plaintiff who was working as the then Branch Manager, Bokaro, for fraudulently allotting 265 mt. tonnes of steel on the basis of fictitious essentiality certificate and the same was granted by the then General Manager, CMO, SAIL being the competent authority.
xiv) Ex.DW2/14 is letter dated 08.09.1981 whereby the plaintiff was informed that there is no merit in his appeal dated 11.06.1981 challenging his suspension.
xv) Ex.DW2/15 is the letter dated 19.03.1982 whereby CVC advised initiation of major penalty proceedings against the plaintiff and nominated Sh. AR Banerjee, Commissioner of Department Enquiry to conduct the enquiry.
15. DW-3 is Sh. Gautam Patnaik, who tendered his evidence by way of affidavit Ex.DW3/A. He placed reliance upon the following documents:-
i) DW3/1 is the copy of order dated 29.11.1994 whereby DW-3 was appointed as Enquiry Officer to enquire into the charges framed against the plaintiff vide memorandum dated 07.09.1994.
ii) Ex.DW3/2 is notice of enquiry dated 02.01.1995 issued to the plaintiff through registered CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 20 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:27:42 +0530 AD at his New Zealand, Australia and New Delhi addresses asking him to attend the enquiry on
16.01.1995.
iii) Ex.DW3/3 is the notice of enquiry dated 17.01.1995 sent to the plaintiff through registered AD at his New Zealand, Australia and New Delhi addresses asking him to attend the enquiry on 31.01.1995 and Ex.DW3/4 are the return envelopes.
iv) Ex.DW3/5 is the notice of enquiry dated 01.02.1995 sent to the plaintiff through registered AD at his New Zealand, Australia and New Delhi addresses asking him to attend the enquiry on 20.02.1995 alongwith its postal receipt and Ex.DW3/6 are the return envelopes.
v) Ex.DW3/7 is the enquiry report dated 18.12.1995.
16. It is pertinent to mention here that after DE the plaintiff also led rebuttal evidence and filed his additional affidavit Ex.PW1/X and was further partly cross-examined. However, later on the plaintiff withdrew his rebuttal evidence.
17. Ample opportunity was given to both the parties for arguments. Written submissions have been filed on both the sides and the same have been duly considered. Final arguments were heard in continuity for many dates.
18. It was argued on the side of the plaintiff that by way of oral and documentary evidence, the plaintiff has successfully CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 21 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:27:51 +0530 proved his case on the scales of preponderance of probabilities. It was argued that since the departmental enquiry was conducted in arbitrary and vindictive manner, the entire proceedings are bad in law and thus, the suit ought to be decreed in favour of the plaintiff. The plaintiff has prayed for all service and post retirement benefits, since he has already crossed the age of retirement.
19. On the other hand, Ld. Counsel for the defendants No.2, 3 and 4 has argued that the suit has become infructuous as the plaintiff filed the present suit seeking the relief of reinstatement on his job, however, the same is now out of question as the plaintiff has already crossed the retirement age. It was argued that the relief originally claimed was that the defendants be restrained from taking any action against the plaintiff, however,the same has now become infructuous. As per the Ld. Counsel for the defendants, the plaintiff never amended his suit and, therefore, the suit is bad in law in its present form. Furthermore, it was argued that the entire departmental proceedings were conducted in most fair and transparent in manner and thus, there is no question of reinstatement etc.
20. It was further argued by the Ld. Counsel for the defendants that the present suit is barred by the provisions of the Administrative Tribunal Act, 1985 (hereafter as the AT Act), since the plaintiff is an employee of Steel Authority of India Limited (SAIL), which, being a company under Ministry of Steel, is covered in the list of Corporation/Societies/other authorities and is within the purview of Central Administrative CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 22 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:27:59 +0530 Tribunal under Section 14(2) of the AT Act. It was argued that the plaintiff has failed to prove his case on the scales of preponderance of probabilities and thus, the suit be dismissed with costs.
21. Having heard the submissions and having perused the record (including the written submissions and case laws filed on both the sides), I shall now proceed to decide the present matter on its merits.
22. My issue-wise finding is as under:-
i) Whether the suit of the plaintiff is maintainable? OPP
23. To begin with, the provisions of the AT Act need to be visited.
24. The AT Act was enacted by the Parliament to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation or society owned or controlled by the Government in pursuance of article 323A of the Constitution and for matters connected therewith or incidental thereto.
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25. Section 3 (q) defines service matters as under:-
"service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation 5[or society] owned or controlled by the Government, as respects--
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;
26. Section 14 of the AT Act provides for the jurisdiction, powers and authority of the Central Administrative Tribunal. The legislative mandate contained therein is being reproduced hereunder:-
--(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court 2***)in relation to--
(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 24 of 50
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(b) all service matters concerning--
(i) a member of any All-India Service; or
(ii) a person [not being a member of an All-India Service or a person referred to in clause
(c)]appointed to any civil service of the Union or any civil postunder the Union; or
(iii) a civilian [not being a member of an All-India Service or a person referred to in clause
(c)]appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation 3[or society] owned or controlled by the Government;
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation 3[or society] or other body, at the disposal of the Central Government for such appointment.
4[Explanation.--For the removal of doubts, it is hereby declared that references to "Union"in this sub-section shall be construed as including references also to a Union territory.] (2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 25 of 50 Digitally signed HARJEET by HARJEET SINGH JASPAL SINGH Date:
JASPAL 2024.10.04
17:28:22 +0530
India or under the control of the Government of India and to corporations 3[or societies] owned or controlled by Government, not being a local or other authority or corporation 3[or society] controlled or owned by a State Government:
27. Section 28 of the AT Act provides for exclusion of jurisdiction of the Courts. The same is being reproduced hereunder:-
"On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, 3[no court except--
(a) the Supreme Court; or
(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have],or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.
28. The Steel Authority of India Limited is covered under Entry No.201 of Appendix-VI (Rule 154-B), list D i.e. LIST OF CORPORATIONS/SOCIETIES/OTHER AUTHORITIES WITHIN THE PURVIEW OF CAT UNDER SECTION 14(2) OF THE AT ACT, 1985. Entry number No.201 is being reproduced hereunder:-
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JASPAL 2024.10.04 17:28:29 +0530 "Steel Authority of India (SAIL), Company registered under Companies Act, 1956 under the Ministry of Steel".
29. The aforesaid provision of the AT Act i.e. Section 28, specifically bars the jurisdiction the Civil Courts qua service matters concerning Members of any service or persons appointed to any service or posts, which is covered under the AT Act. The definition of service matters, provided by Section 3(q) is wide enough to cover a range of matters including any matter pertaining to leave of any kind, disciplinary matters etc. The definition under Section 3(q) (v) provides that any other matter whatsoever which is not covered in the first four sub-clauses is also a service matter.
30. It goes without saying that the legislative intention qua Section 3(q) of the AT Act is to bring maximum matters concerning affairs of Union/State/Local/other Authorities and Corporations and Societies, within the definition of service matters, by giving a large ambit to the said definition and by not restricting it to a narrow definition.
31. Reading all the aforesaid provisions together, the legal position which emerges is that any matter relating to conditions of service of any local or other authority or any cooperation, owned and controlled by the Government, as provided in the Act/the Schedule attached therewith, as respects leave of any kind or disciplinary matters will be dealt by Administrative Tribunals and not by the Civil Court.
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32. Coming to the matter at hand, it is admitted case of both the sides that the plaintiff was the employee of SAIL and the dispute at hand has been occasioned by the termination of the plaintiff by the Steel Authority of India Ltd. i.e. defendant No.2, represented by its Chairman, as a consequence of the findings given by the Departmental Enquiry wherein the plaintiff was found guilty of misconduct by overstaying the sanctioned leave and insubordination.
33. The conclusion of the final report of the Enquiry, dated 18.12.1995 is being reproduced hereunder for quick reference:-
"As Inquiring Authority, I am fully conscious of the fact that any respondent should be given all possible opportunity to be heard before finding its recorded. This enquiry is not a Court of law and Inquiring Authority cannot delay any proceedings for an inordinately long time which is in the nature of an internal enquiry.
This Inquiring Authority has afforded the respondent Shri D.J. Khera sufficient time to be present and answer the charges made against him. His actions show that he is not interested in making a personal appearance before me or to file a written statement of defence. As a result I had no other alternative but to proceed this enquiry ex-parte.
On analysis of the evidence adduced during CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 28 of 50 Digitally signed by HARJEET HARJEET SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:28:48 +0530 the enquiry, it is established that Shri DJ Khera has remained absent from duty unauthorizedly inspite of repeated written instructions to him to rejoin duty which he has flouted. Hence the charges of unauthorized absence from duty, insubordination and misconduct have been proved.
The Disciplinary Authority may kindly decide the penalty to be imposed on Shri DJ Khera".
34. The reading of the bare provisions of the AT Act in the light of the facts of the case, would reveal that the matter at hand squarely falls in the definition of service matter as defined under Section 3(q) of the AT Act, the jurisdiction of which lies with the Tribunal and the jurisdiction of this Court is excluded by virtue of Section 28 of the AT Act.
35. In light of the aforesaid discussion, it can, thus, be said that the suit of the plaintiff is not maintainable before this Court. Issue No.1 is, thus, decided in favour of the defendants and against the plaintiff.
Issue No.2 and 3ii) Whether the enquiry report dated 18.12.1995 and order of dismissal dated 10.05.1996 are illegal and void? If so, its effect? OPP
iii) Whether the plaintiff is entitled to the relief of declaration and permanent and mandatory injunction as prayed for ?OPP CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 29 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:28:54 +0530
36. Since the two issues involve an overlapping adjudicatory discussion, they are being taken together.
37. To begin with, it is necessary to understand that it is settled law that the Courts or Tribunals cannot assume the role of the appellate authority and try to re-assess the recommendation of the Administrative Authorities/Disciplinary Authorities. Reliance is placed on the judgment in Dr. V.P. Bansal VS. Union of India & Ors., 2002 (63) DRJ 88, by Hon'ble Justice Sanjay Kishan Kaul.
38. The Court or the Tribunal is not functioning as Appellate Authority over Administrative Authority, but it is to take into consideration the decision of the Administrative Authority to find out whether the same is vitiated by malafide or is so arbitrary, or capricious as could not have been said to be arrived at by any reasonable authority. It is not for the Court or the Tribunal to substitute its own opinion with that of an administrative authority in respect of the subject matter which falls within the ambit of the jurisdiction and discretion of that authority. Reference is made to the case titled as Ms. Anil Katiar VS. Union of India & Ors., AIR (1997) SC 2656.
39. Coming to the matter at hand, it is the case of the plaintiff that he has been terminated from his service at SAIL due to partial, biased and vengeful departmental enquiry, which was guided by Sh. S.K.D. Patnaik (defendant No.3), against whom the plaintiff gave an information to CBI, leading to the CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 30 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:29:09 +0530 prosecution of the said Mr. Patnaik. It is averred further by the plaintiff that defendant No.4 i.e. the Inquiry Officer Mr. G. Patnaik was under the influence of defendant No.3 and, therefore, he never got a fair opportunity and the entire proceedings are bad in law, being violative of Principle of Natural Justice.
40. In the light of the observations made by the Hon'ble Supreme Court in Dr. V.P. Bansal (Supra) and Anil Katiar (supra), this Court has endeavoured to take into consideration the decision of the Administrative Authority of defendant No.2, to find out whether the same is vitiated by malafide or is so arbitrary, or capricious as could not have been said to be arrived at by any reasonable authority. It is not for this Court to substitute its own opinion with that of an administrative authority in respect of the subject matter which falls within the ambit of the jurisdiction and discretion of that authority. Having heard the submissions and having perused the record in its entirety including the testimonies of the witnesses, the report of the Departmental Enquiry and the documents annexed alongwith the record, this Court is of the considered opinion that there are no merits in the claims made by the plaintiff.
41. For the sake of convenience, the list of documents relied upon by the two parties is being reproduced hereunder:-
Sl. Description of the documents Nomenclature No.
1. Original leave book of the plaintiff PW-1/1
2. Letters dated 09.06.1993 and 16.07.1993 Ex.PW1/2, Ex.PW1/3 CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 31 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:29:15 +0530 alongwith covering letter, whereby the and Ex.PW1/4 plaintiff was granted admission for advance course in computer application at Fortitude Valley, Brisbane, Australia
3. Application dated 20.10.199, whereby the Ex.PW1/5 plaintiff applied for leave to pursue the abovesaid computer course
4. Copy of memorandum dated 07.09.1994 Mark A
5. Copy of doctor certificate dated Ex.PW1/6 12.05.1994 issued from Welington Hospital, Welington, New Zealand
6. Copy of letter dated 12.01.1995 issued by Ex.PW1/7 the plaintiff side to the Enquiry officer requesting him to send the notices to the plaintiff at his New Zealand addresses.
7. Copy of notice dated 21.01.1995 issued Ex.PW1/8 and by the Advocate of the plaintiff to the Ex.PW1/9 Department giving all the details of the case and challenging the memorandum dated 07.09.1994 and its original postal receipt
8. Copy of letter dated 18.02.1995 issued by Ex.PW1/10 and the wife of the plaintiff to the Enquiry Ex.PW1/11 Officer in response to notice dated 01.02.1995 issued by the Enquiry Officer fixing the date of the enquiry for 20.02.1995 submitting that the notice issued by the Enquiry Officer are of no avail and liable to be cancelled with further request to issue fresh notice to the plaintiff at his current address
9. Letters dated 10.06.1994, 11.07.1994 and Ex.PW1/12 to 16.09.1994 respectively addressed by the Ex.PW1/14.
plaintiff's wife to his department in respect of stopping of the salary of the plaintiff, payment of house rent, reimbursement of medical expense and refusal to allot 200 shares due to the plaintiff
10. Letter dated 27.10.1993 written by the Ex.PW1/D1 plaintiff
11. Letter dated 12.01.1995 written by the Ex.PW1/D2 wife of the plaintiff
12. Letter dated 10.03.1994 written by the Ex.PW1/D3 plaintiff to the defendant No.2/SAIL Memorandum (charge-sheet) dated Ex.PW1/D4 CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 32 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:29:22 +0530 07.09.1994
13. Application of the plaintiff dated Ex.DW1/1 18.06.1993 whereby he applied for earned leave to visit Australia which was sanctioned but not availed by the plaintiff
14. Letter dated 03.07.1993 sent by the Ex.DW1/2 plaintiff by the defendant No.2 and 3 intimating him the sanctioning of his application dated 18.06.1993 for grant of earned leave to visit Australia
15. Copy of the application of the plaintiff Ex.DW1/3 dated 13.10.1993 to 31.12.1993 seeking grant of earned leave for a period of 51 days w.e.f. 18.10.1993 to 31.12.1993 for visiting Australia
16. Copy of the leave book of the plaintiff Ex.DW1/4.
17. Copy of warrant issued by Special Court, Mark A Ranchi against the plaintiff
18. Note dated 01.11.1993 of the defendant Ex.DW1/5 NO.2 and 3 company prepared with respect to the application of the plaintiff for study leave dated 27.101.1993
19. Letter dated 09.11.1993, whereby the Ex.DW1/6 plaintiff was duly informed about the non-sanction of his study leave by registered AD
20. Original letter dated 10.03.1994 whereby Ex.DW1/7 the plaintiff acknowledged the receipt of letter dated 09.11.1993
21. Letters dated 07.01.1994, 03.03.1994 and Ex.DW1/8, Ex.DW1/9 07.05.1994 whereby the defendants No.2 and Ex.DW1/10 and 3 asked the plaintiff to immediately report for his duties.
22. Letter dated 23.05.1994 sent by the Ex.DW1/11 plaintiff to the defendants No.2 and 3 admitting the receipt of letter dated 07.05.1994
23. Certified copy of the Clause 5.1 of SAIL Ex.DW1/12 Leave Rules
24. Certified copy of the Rule 5.7 of the Ex.DW1/13 Conduct, Discipline Appeal Rules, 1977
25. Original letter dated 07.02.1996 whereby Ex.DW1/14, the enquiry report dated 18.12.1995 was Ex.DW1/15 and conveyed to the plaintiff vide registered Ex.DW1/16 CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 33 of 50 Digitally signed HARJEET by HARJEET SINGH JASPAL SINGH Date:
JASPAL 2024.10.04 17:29:29 +0530 letter and its returned envelopes
26. Reply dated 06.03.1995 sent by the Ex.DW1/17 defendant No.3 to the Advocate of the plaintiff in response to his legal notice dated 21.01.1995
27. Copies of approval of termination dated Ex.DW1/18 and 10.04.1996 and termination order dated Ex.DW1/19 10.05.1996
28. Photocopy of judgment dated 21.01.11 Mark B passed by Addl. District & Sessions Judge, CBI, Dhanbad
29. Authority to depose on behalf of the Ex.PX (OSR) company
30. Sail Departmental letter dated 11.11.1992 Ex.DW1/P1
31. Sail Departmental letter dated 24.12.1992 Ex.DW1/P2
32. Original passport No.K995302, appearing Ex.DW1/P3 to be issued in favour of the plaintiff alongwith Visa
33. Photocopy of the manual of delegation of Ex.DW1/P-22 power (colly. 49 leaves) (OSR) as applicable with the defendant
34. Copy of revision of delegation of powers Ex.DW1/P-23 as issued on 17.01.1996 (colly. 28 leaves).
35. Letter dated 13.11.1979, whereby Central Ex.DW2/1 Vigilance Commission of the defendant company recommended initiation of the major penalty proceedings against the plaintiff and nominated Sh. N.N. Mukherjee, Commissioner of departmental enquiry as Enquiry Officer
36. Charge memo dated 15.01.1980 served Ex.DW2/2 upon the plaintiff by Sh. Subir Sen, the then General Manager (Home Sales) Central Marketing Organization and Disciplinary Authority allowing him an opportunity to file written statement of his defence CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 34 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:29:36 +0530
37. Copy of order dated 25.04.1980 whereby Ex.DW2/3 Sh. N.N. Mukherjee was appointed as an Enquiry Officer
38. Letter dated 31.03.1981 addressed by Ex. DW2/4 Central Vigilance Commission to Chief Vigilance Officer, SAIL forwarding the enquiry report of Enquiry Officer and further advising imposition of major penalties on the plaintiff
39. Order dated 25.11.1982 whereby the Ex.DW2/5 appeal of the plaintiff against the order of Disciplinary Authority dated 03.10.1981 was dismissed by the Appellate Authority
40. Letter dated 28.04.1982 whereby CVC Ex.DW2/6 after examining the case advised initiation of major penalty proceedings against the plaintiff and nominated Smt. Jyotsna Diesh as Enquiry Officer and further advised for forwarding copy of the investigation report to the CBI since some private parties were involved in irregular allotment which appears to be a racket in the allotment of scarce items of steel in connivance with the officials of SAIL
41. Charge memorandum dated 04.02.1983 Ex.DW2/7 served upon the plaintiff
42. Enquiry report dated 02.11.1983 Ex.DW2/8 submitted by the Enquiry Officer Smt. Jyotsna Diesh to CVC concluding that article of charge framed against the plaintiff had been proved during the enquiry
43. Letter dated 06.12.1983 addressed to the Ex.DW2/9 CVC to Chief Vigilance Officer of defendant NO.2 and 3 while forwarding the enquiry report advising the acceptance of enquiry officer's report and imposition of major penalties on the plaintiff
44. Order dated 03.01.1984 issued by the Ex.DW2/10 then General Manager, CMO and Disciplinary Authority to the plaintiff imposing major penalties of reduction in his grade by two stages by immediate effect
45. Letter dated 21.12.1984 whereby the Ex.DW2/11 CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 35 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:29:45 +0530 intimation regarding the dismissal of the appeal of the plaintiff against the order of Disciplinary Authority made vide letter dated 01.03.1983, was duly communicated to him
46. Letter dated 16.06.1984 with a copy of Ex.DW2/12 police report No.6/84 dated 30.04.1984 whereby the sanction for prosecution of the plaintiff sought by CBI was granted by the General Manager, CMO SAIL being the competent authority
47. The SP's report 06/82 dated 30.04.1982 Ex.DW2/13 submitted by the CBI seeking sanction for prosecution of plaintiff in another case bearing RC No.4/79 (Ranchi) relating to criminal conspiracy with private parties by the plaintiff who was working as the then Branch Manager, Bokaro, for fradulently allotting 265 mt. Tonnes of steel on the basis of fictitious essentiality certificate and the same was granted by then General Manager, CMO, SAIL being the competent authority
48. Letter dated 08.09.1981 whereby the Ex.DW2/14 plaintiff was informed that there is no merit in his appeal dated 11.06.1981 challenging his suspension
49. Letter dated 19.03.1982 whereby CVC Ex.DW2/15 advised initiation of major penalty proceedings against the plaintiff and nominated Sh. AR Banerjee, Commissioner of Department Enquiry to conduct the enquiry
50. Copy of the order dated 17.12.1984 of Sh. Ex.DW2/X-1 (OSR) S.K. Ahluwalia who has confirmed the order of the Disciplinary Authority and rejected the appeal and the confirmation of the order of the Disciplinary Authority amount to rejection of appeal
51. Copy of order dated 29.11.1994 whereby Ex.DW3/1 DW-3 was appointed as Enquiry Officer to enquire into the charges framed against the plaintiff vide memorandum dated 07.09.1994
52. Notice of enquiry dated 02.01.1995 Ex.DW3/2 issued to the plaintiff through registered CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 36 of 50 Digitally signed HARJEET by HARJEET SINGH JASPAL SINGH Date:
JASPAL 2024.10.04 17:29:51 +0530 AD at his New Zealand, Australia and New Delhi addresses asking him to attend the enquiry on 16.01.1995
53. Notice of enquiry dated 17.01.1995 sent Ex.DW3/3 and to the plaintiff through registerd AD at Ex.DW3/4 his New Zealand, Australia and New Delhi addresses asking him to attend the enquiry on 31.01.1995 and its return envelopes
54. Notice of enquiry dated 01.02.1995 sent Ex.DW3/5 and to the plaintiff through registered AD at Ex.DW3/6 his New Zealand, Australia and New Delhi addresses asking him to attend the enquiry on 20.02.1995 and its return envelopes
55. Enquiry report dated 18.12.1995 Ex.DW3/7
56. Notice dated 18.02.1995 sent to Mr. G. Ex.DW3/P1.
Patnaik, Addl. Chief Enquiry Officer (Commercial) Directorate, SAIL
57. Notice Mark XP.
42. The record reveals that the plaintiff took permission from his employer i.e. the defendant No.2 to pursue a computer course at Australia, however, he never went there and instead went to New Zealand, for which he had no permission, nor had he ever given an intimation to that effect. Record further reveals that before initiation of the Departmental Enquiry, due opportunity was given to the plaintiff, however, despite grant of time and opportunity, the plaintiff never presented himself for the enquiry. The plaintiff has categorically admitted that notices of enquiry were received by his wife at the Delhi residence of the plaintiff. Mere bald averments by the plaintiff that the authorities above him, are biased against him, are by no means sufficient for CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 37 of 50 Digitally signed HARJEET by HARJEET SINGH JASPAL SINGH Date:
JASPAL 2024.10.04 17:29:57 +0530 the Court to disbelieve and discredit the findings of the Departmental Enquiry. For averred 'bias' to be a ground for disbelieving the departmental enquiry, the bias has to be apparent from the record, it must also be apparent from the record that there is a clear disregard to Principles of Natural Justice, however, in the matter at hand, in the considered opinion of this Court, it is not the case.
43. On the very face of it, the plaintiff's version does not appear to be worthy of belief. If the plaintiff's version is to be believed, despite his unauthorized absence of 2 years, no one should have taken any action as the plaintiff was a whistle blower in the past against his superior and any action by them in future will only be biased and prejudiced. It goes without saying that the same cannot be accepted.
44. In the plaint, the plaintiff has averred that he applied for a course in advance computer application and for that purpose, the earned leave was sanctioned from 28.10.1993 to 31.12.1993 i.e. for a period of 51 days with permission to go abroad. In the plaint, the plaintiff has written that the permission was granted for New Zealand/Australia, however, the perusal of the record, in particular document Ex.PW1/1 i.e. the leave book of the plaintiff himself, shows that 51 days EL was granted for visit to Australia and not to New Zealand.
45. The plaintiff has not placed on record any document to show that he had permission to go to New Zealand on 28.10.1993.
CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 38 of 50HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:30:05 +0530
46. Every Government Servant is bound by certain rules of conduct and there is a clear and rather a strict protocol on how a Government Servant is supposed to conduct himself. Leaves, permissions and previous sanctions are necessary part of an everyday life of a Government Servant. The rules require that a Government servant, before travelling out of India must obtain permission in writing. Permissions are granted with specification of not only the period, but also the location.
47. In the matter at hand, it is admitted case on both the sides that the permission was granted to the plaintiff for a period of 51 days, in the form of Earned Leave, however, this permission was granted for Australia and not for New-Zealand. The plaintiff cannot flout the rules and go to a different country after having obtained permission to go to all together different country. Clearly, the plaintiff has himself not come to the Court with clean hands.
48. The plaintiff has taken a defence that previously too he was granted an earned leave of 45 days to visit the Australia, however, he could not avail the leave. It has also been averred that previously the plaintiff applied for a Visa for New-Zealand and as per the Immigration Services of the New-Zealand, the requirement of the personnel department of SAIL issued letter dated 11.11.1992 which was confirmed by the department to the Visa Officer, New Zealand Immigration Services, New Zealand high commission, New Delhi vide letter dated 24.12.1992. This was the no objection letter which the New Zealand visa CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 39 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:30:11 +0530 Department wanted to issue a visa to the plaintiff. The plaintiff has placed reliance upon the Sail department letter dated 11.11.1992 Ex.DW1/P1 and Sail department letter dated 24.12.1992 Ex.DW1/P2.
49. The aforesaid averments, in preceding paragraph, cannot be called meritorious.
50. Documents Ex.DW1/P1 and Ex.DW1/P2 are perused.
51. Document Ex.DW1/P1 is a certificate on the letterhead of SAIL which certifies that the plaintiff is a permanent employee of the company and further certifies his date of birth. The contents are being reproduced hereunder for easy reference:-
"To whomsoever it may concern This is to certify that Sh. Dharamjit Khera S/o- Late Sh. K C Khera r/o- B-18, Soami Nagar, New Delhi is a permanent employee of the abovementioned company effective 08.01.1973.
As per the company's record his date of birth is 24.12.1947 and he has passed B.Sc. (Engg.), M.B.A. and L.L.B. He has worked in different capacities from time to time and currently is working as Deputy Chief (Marketing) and is incharge of the Zonal Computerization activities".
52. Similarly, document Ex.DW1/P2 is merely a CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 40 of 50 Digitally signed HARJEET by HARJEET SINGH JASPAL SINGH Date:
JASPAL 2024.10.04 17:30:25 +0530 covering letter to a Visa Officer, reconfirming that the plaintiff is an employee of the SAIL.
53. By no stretch of imagination, the aforesaid two documents Ex.DW1/P1 and Ex.DW1/P2 can be called a permission for the plaintiff to go to New Zealand as averred.
54. The plaintiff did have permission to go to Australia, but he did not go there. He did not have any permission to go to New Zealand and he did go there, on the imaginary prospect of having obtained permission by documents Ex.DW1/P1 and Ex.DW1/P2. Such conduct on the part of the plaintiff clearly shows his intentions, scant regard for rules and procedures and also shows that he has not approached the Court with clean hands. The plaintiff had NOC dated 11.11.1992 to go to New Zealand, he actually went on 30.10.1993, after having obtained permission to go to Australia i.e. after almost one year of NOC.
55. Having obtained permission to go to Australia, even the defendants could not have assumed that the plaintiff would go to New Zealand by claiming an year old NOC as a basis. Clearly, the conduct of the plaintiff does not seem clean.
56. Further, the plaintiff has averred that after having reached New Zealand, he fell ill and that is why he could not travel back to India upon the expiry of 51 days leave. As discussed hereinabove, the plaintiff, on the first place, never had the permission to go to New-Zealand. His very presence in the said country can be called unauthorized as per the applicable CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 41 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:30:30 +0530 service rules and conduct rules. With that in background, there is no question of extension of leave, on the basis of a medical certificate issued by Doctors of New-Zealand.
57. In order to show bias, the plaintiff has averred that he was not given notice of the department enquiry, upon the New-Zealand address of the plaintiff.
58. The record shows that the notice was duly sent upon the Delhi address and upon the Brisbane, Australia address of the plaintiff. The plaintiff has categorically admitted that notices of enquiry were received by his wife at the Delhi residence of the plaintiff. It is worth mentioning here that before leaving from India, it is this Brisbane address which the plaintiff placed on record of the company, SAIL. As discussed above, the plaintiff neither had the permission nor gave any intimation, before leaving, qua New-Zealand. With that in background, the expectation of the plaintiff that before initiation of the Departmental Enquiry on the grounds of unauthorized absence, he should have been communicated upon at the New-Zealand address is uncalled for and cannot be validated in law by any amount of generosity. The fact that notice of enquiry was duly communicated to the wife of the plaintiff, in the considered opinion of the Court, amounts to 'due notice'.
59. The plaintiff has further averred that his application for study leave was tampered by the department/SAIL as the date of issue of 20.10.1993 was tampered and was changed to 27.10.1993. The plaintiff has relied upon the documents CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 42 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:30:38 +0530 Ex.DW1/1 to Ex.DW1/3 and Ex.DW1/P3.
60. In the considered opinion of the Court, the aforesaid submissions would have had value, if the question would have been whether or not the plaintiff gave application seeking permission to go to Australia in time, however, this is not the issue before the Court. The plaintiff has not shown on record that he had a valid study leave on the day he left for New Zealand. There is a sea of difference in applying for leave and getting permission thereof. The defendants' stand is that no study leave was ever granted to the plaintiff. The plaintiff's averment that merely applying for study leave automatically amounts to its approval cannot be called meritorious. The two sides have admitted that the plaintiff did have the permission to go to Australia and even 51 days earned leave is not disputed by either side, however, he never availed the said permission and never went to Australia.
61. Next, the plaintiff has argued that on reaching New Zealand, he could not adjust to the severe cold and fell ill. The plaintiff has submitted that medical certificates dated 23.12.1993 and 12.05.1994, were sent to the defendant No.2/SAIL and since the said two certificates clearly conveyed the plaintiff's medical condition, the defendant No.2 was duty bound to extend the leave, on account of physical inability of the plaintiff to travel.
62. The court finds no merits in the said submission in the preceding paragraph.
CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 43 of 50HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:30:45 +0530
63. One who seeks equity must do equity. As discussed above, the plaintiff neither had the permission nor gave any intimation, before leaving for New-Zealand. With that in background, the plaintiff's claim for mandatory extension of leave by the defendant No.2 on medical grounds cannot be called meritorious. Since the defendant No.2 never allowed the plaintiff to visit New Zealand, it could not be expected that the said defendant validates the stay at New Zealand by allowing an extension, even on the medical grounds. The plaintiff has failed to show to the Court any document/rule/by-law, which requires a mandatory extension of leave on medical ground.
64. Next, the plaintiff has averred that the Memorandum (charge-sheet) dated 07.09.1994 (document Ex.PW1/D4), issued by the defendant No.3, which is the basis of the enquiry report is null and void as defendant No.3 was neither the designated nor the competent authority to issue the charge-sheet/Memorandum to the plaintiff.
65. Whether or not the defendant NO.3 had the power to issue the aforesaid memorandum EX.PW1/D4 is of vital importance, the same is necessary to determine if the enquiry was biased and/or if the enquiry has been initiated without legal basis.
66. The Conduct, Discipline and Appeal Rules, 1977 (hereinafter as the CDA Rules) have been placed before this Court. Rule 1.0 i.e. Short Title and Commencement provides that these rules may be called Steel Authority of India Limited CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 44 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:31:01 +0530 Conduct, Discipline and Appeal Rules, 1977 and they shall came into force w.e.f. 01.06.1977.
67. Rule 2 of the CDA Rules provides that these Rules shall apply to all employees of SAIL.
68. Rule 5 (7) of the CDA Rules defines misconduct as "Absence without leave or over-staying the sanctioned leave for more than four consecutive days without sufficient grounds or proper or satisfactory explanation".
69. As discussed hereinabove, regard being had to the observations of the Hon'ble Supreme Court in Dr. V.P. Bansal (Supra) and Anil Katiar (supra), it is not for this Court to substitute its own opinion with that of an administrative authority in respect of the subject matter which falls within the ambit of the jurisdiction and discretion of that authority. As per Rule 5(7) of CDA Rules, unauthorized absence is misconduct. Whether or not, the plaintiff had sufficient grounds for the said unauthorized action is for the disciplinary authority to see. This Court shall not substitute its own opinion with that of an administrative authority/disciplinary authority. In the matter at hand, the disciplinary authority has held that the plaintiff's overstay at New Zealand is 'misconduct' as the reasons for the said over- stay were not proper and satisfactory.
70. Further what needs to be seen is whether defendant No.3 had the power and authority qua Ex.PW1/D4 i.e. Memorandum dated 07.09.1994.
CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 45 of 50 Digitally signedHARJEET by HARJEET SINGH JASPAL SINGH Date:
JASPAL 2024.10.04 17:31:09 +0530
71. As per Rule 24 of CDA Rules, the Board or the disciplinary authority, as specified in the Schedule, may impose any of the penalties specified in Rule 23 on any employee. As per Rule 23, dismissal from the service is a major penalty.
72. The Schedule is perused. As per the Schedule for major penalty, the Chairman has full powers in respect of all employees except for those appointed by President of India and the Vice-Chairman has full powers in respect of all employees under their charge, in the Grade of 2550-3250 or equivalent and below. As per note (d) of the Schedule, the DisciplinaryAuthority shall also be the Competent Authority for the purpose of Rules 3 to 19 of Conduct Rules. Chairman shall be competent authority for VC/Functional Directors/MDs & CEs. In view of the note (d), it is clear that Disciplinary Authority is competent authority for the purpose of Rule 5 i.e. misconduct and as per the Rule 23 read with Rule 24, the same can impose penalties.
73. In the matter at hand, the plaintiff in para 12 of the plaint has admitted that Disciplinary Authority is defendant No.3 i.e. the Director (Commercial), SAIL. It is defendant No.3 who appointed Enquiry Officer vide order dated 29.11.1994 i.e. defendant No.4. It has not been shown by the plaintiff that the disciplinary authority could not have delegated the powers. The plaintiff has not made any averment in his pleadings as well to suggest that there could not have been any delegation.
CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 46 of 50 Digitally signed HARJEET by HARJEET SINGH JASPAL SINGH Date: JASPAL 2024.10.04 17:31:16 +0530
74. Further, the plaintiff has argued that the defendant No.3 i.e. Director (Commercial) was biased and so was defendant No.4. As discussed hereinabove, the averred bias must be apparent from the record, however, in the matter at hand that does not seem to be the case. The plaintiff was duty bound to show that the enquiry was not conducted in a free and fair manner and was conducted without following the due procedure, however, that does not seem to be the case in the matter at hand.
75. The witnesses of the defendant have clearly shown that due notice of enquiry was served on the defendant at his local address of Delhi and also at the address available on record i.e. address of Brisbane, Australia and as discussed hereinbove, it cannot be said that the defendants had obligation to send notices to New Zealand. The plaintiff has categorically admitted that notices of enquiry were received by his wife at the Delhi residence of the plaintiff. The plaintiff never had study leave on the first place, he never had permission to go to New Zealand and thus, there is no cause of action to press for extension of leave, on any ground whatsoever. It is admitted case of the plaintiff himself that he never joined the enquiry and came back to India only after the expiry of 2 years. The plaintiff never pursued any administrative appeal or review against the order of the disciplinary authority despite a clear provision to that effect in the CDA Rules.
76. The plaintiff has argued that criminal cases in the past, though not pending on the day of enquiry at hand, were made basis of his termination, however, in the considered CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 47 of 50 HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:31:22 +0530 opinion of this Court that does not appear to be the case. The reason of termination is misconduct in terms of Rule 5 (7) of CDA Rules. The plaintiff has further argued that Mr. Roongta who rejected the study leave never had the authority to do so. Even if that is assumed to be correct, the plaintiff should have challenged the same before his employer/higher-ups as per the CDA Rules, he should have given a representation to that effect, however, the plaintiff simply choose to leave for New-Zealand, quixotically assuming himself to be entitled, even without an approval. What appears to be the case is that the plaintiff just wanted to leave for New-Zealand and did not care for any permission etc.
77. The plaintiff has repeatedly harped upon him being a whistle blower against defendant No.3 as the reason of bias against him, however, in the considered opinion of the Court, the fact that the defendants have shown that the eqnuiry was duly conducted and that it has not been challenged in appeal nor has the plaintiff ever sought any relief, shows adherence to procedure by the defendants and this rules out averred 'bias'. If the plaintiff's version is to be believed, despite his unauthorized absence of 2 years, no one should have taken any action as the plaintiff was a whistle blower in the past against his superior and any action by them in future will only be biased and prejudiced. It goes without saying that the same cannot be called meritorious in law and logic.
78. Lastly, the plaintiff has claimed that he did not know the procedure as per CDA rule and, therefore, he could not CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 48 of 50 Digitally signed HARJEET by HARJEET SINGH JASPAL SINGH Date:
JASPAL 2024.10.04 17:31:28 +0530 pursue the appropriate remedies. This has no merit in law as ignorance of law is no excuse.
79. The plaintiff has sought the relief of injunction from the Court. The relief of injunction is an equitable remedy and necessarily requires that a person coming to the Court to seek the said remedy must come to the Court with clean hands. The grant of injunction is discretionary remedy, discretion is to be exercised on settled principle of law. It can be refused as per provisions of Section 41 of the Specific Relief Act.
80. Section 41(h) of the Specific Relief Act provides that when an equally efficacious remedy is available, injunction order can be refused and as per Section 41(i), it can be refused when the conduct of the plaintiff has been such so as to disentitle him from assistance of the Court.
81. In the matter at hand too, the plaintiff has equally efficacious remedy under the provisions of AT Act, as discussed hereinabove, and furthermore the conduct of the plaintiff, as discussed hereinabove, in the considered opinion of the Court, disentitles him from the assistance of the Court.
82. Ergo, keeping in mind the totality of facts and circumstances, the issues at hand are decided in favour of the defendants and against the plaintiff.
CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 49 of 50HARJEET Digitally by HARJEET signed SINGH SINGH JASPAL Date: 2024.10.04 JASPAL 17:31:34 +0530 Issue No.4 Relief:
83. In view of the abovesaid discussion, the suit of the plaintiff is disposed off as dismissed, he is not found entitled to any relief.
84. Parties to bear their own cost.
85. Decree sheet be prepared accordingly.
86. File be consigned to Record Room as per rules.
87. Copy of this judgment be given dasti to both the parties.
Digitally signedHARJEET by HARJEET SINGH JASPAL SINGH Date:
JASPAL 2024.10.04 17:31:51 +0530 Announced in the open Court (Harjeet Singh Jaspal) on this 30th day of September, 2024 SCJ-cum-RC (Central) Tis Hazari Courts, Delhi CS SCJ No.595565/2016 Dharamjit Khera Vs. UOI & Ors. Page 50 of 50