WP (C) No.13733/2009 Page 1 of 31 .* HIGH COURT OF DELHI : NEW DELHI + WP (C) No.13733/2009 % Judgment decided on : 25.10.2010 Dr. N. Balakrishnan ......Petitioner Through: Ms. Nitya Ramakrishnan, Adv. with Ms. Piya Singh, Adv. Versus Nehru Memorial Museum & Library Society & Ors. ....Respondents Through: Mr. Parag P. Tripathi, ASG with Mr. Kunal Bahri, Mr. Jayant K. Mehta and Mr. S.C. Dhanda, Advs. for R-1 and 2 Mr. Sudhindra Tripathi, proxy counsel for Mr. Peeyoosh Kalra, Adv. for R-3 Coram: HON'BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? MANMOHAN SINGH, J. 1. The present writ petition under Article 226 of Indian constitution challenges the interim suspension order passed against the petitioner dated 30th April 2009 whereby the petitioner has been suspended from his post pending the disciplinary enquiry and consequently the charge sheet was also issued on 22.6.2009 which has also been made a subject of challenge in the writ petition. The brief facts of the case can be enunciated as under: a) The petitioner is stated to be the responsible employee of the respondent society namely “The Nehru Memorial Museum WP (C) No.13733/2009 Page 2 of 31 and Library Society” ( herein after referred as NMML or respondent society). The said society operated under the ministry of culture which has been arrayed through union of India as respondent no. 3. The respondent no. 2 is the chairman of executive counsel of respondent no. 1 society. b) The petitioner claims to be currently holding the post of the deputy director of the respondent society. The petitioner is said to be working with that of the respondent no.1 for the last more than 23 years. The petitioner has averred in the petition to have joined the respondent in 1986 and since then the he has been working with the respondent. c) The grievance of the petitioner emanates from the petitioner‟s unhealthy relations with that of the respondent‟s society which started in the in year 2008 which ultimately has culminated into the interim suspension which is baseless and is backed by malice according to petitioner . The petitioner has stated in the petition as a background of the dispute as to how according to the petitioner, he is not treated properly in the institution. The petitioner has given several instances which happened in the year 2008 and prior to the same including the director‟s decision to delegate the powers of the deputy director. The said decision according to the petitioner is not proper which was also raised before the chairman who is respondent no. 2. Likewise other WP (C) No.13733/2009 Page 3 of 31 instances including the petitioner‟s elevation as deputy director is also stated to be not free from controversy. d) In this backdrop, the petitioner submitted that due to the unhealthy relationship between the petitioner and the director of the respondent, the respondent was searching for one reason or the other which ultimately lead to starting of the false and malafide disciplinary enquiry and also paved the way for the interim suspension which ought to be quashed by this court. e) The petitioner then explained his case which is a subject matter of the disciplinary enquiry. The petitioner firstly explained that in year 2000, a committee report under Mr. A.K. Damodaran, who was the member of the NMML Executive council was asked to suggest amendments to the Recruitment rules. Pursuant to suggestions of Damodaran committee, there was discussion between the ministry of culture and executive council and they have thought it fit to amend the rules which in such a manner that the post of the deputy director was to be filled by departmental promotion. The petitioner explained that this has become one of the accusation in the charge sheet whereby the petitioner is alleged to have influence this process of amendment of the rules so as to become deputy director. It has been explained by the petitioner the said decision was taken at very high WP (C) No.13733/2009 Page 4 of 31 level after much discussion spanning over 5 years. The charge sheet however provides that the petitioner issued an explanatory note to the committee report when no such note exists. This has made of the reason leading to the suspension and initiation of the disciplinary enquiry against the petitioner. f) The petitioner then mounted his case on the facts stating that there was an old complaint regarding the fellowship selections held in 2005 by the respondent no. 1 which has been introduced in the picture in order to sidetrack the petitioner. The petitioner contended that the said complaint has just become one reason to suspend the petitioner unnecessarily as the petitioner was no where involved in the entire process of selection. g) The petitioner describes that the respondent holds the prestigious fellowship project that awards fellowships to senior scholars of repute and junion ones. In the year 2003, the advertisement was issued inviting application for fellowships. In 2004, the joint secretary in the Ministry of Culture was given additional charge as Director of respondent library. It is submitted that although October 20, 2003 was the last date of submission of the application but the respondent is empowered to offer the fellowship even to the non applicant. WP (C) No.13733/2009 Page 5 of 31 h) The petitioner stated that on June 25, 2004, the group of the academics wrote to the ministry seeking postponement of the interviews relating to the section process. Thereafter acting upon the same, the joint secretary, Ministry of culture who was then the director had taken the decision to postpone the same. The petitioner said this is another cause of enquiry and the petitioner is being accused of the postponement of the said interviews despite the fact that he has no role to play and rather the decision was taken at the highest level. i) The petitioner narrated that the new selection committee was formed after change in the executive council. The new selection committee has also considered some applications of the applicants even beyond the date notified. The petitioner also stated that one such application has also been received by the office of the petitioner which has been forwarded for the appropriate action. The petitioner is unnecessarily dragged into the enquiry when the petitioner was also not concerned with the selection process or considering any such belated application is the stand of the petitioner. j) Pursuant to the said selection process, the petitioner has averred that the disappointed candidates have complained to an MP who then referred the matter to the petitions committee. The petition committee reported that the WP (C) No.13733/2009 Page 6 of 31 selection process was distorted. Similarly, the parliamentary standing committee also recommended that the said selection process is not devoid of problems. k) A fact finding committee was appointed after the negative results given by the two reports. The fact finding inquiry headed by Mr, V.P. Dutt had also found the role of the director and deputy director questionable. l) On 30th April 2009, the petitioner was informed that he was being suspended as there was a disciplinary proceedings pending against him. The petitioner thereafter sent the representation to the executive council/ disciplinary authority asking the grounds of his suspension. m) On 18th May 2009, the petitioner herein moved to the appellate authority by filing the appeal against the said suspension order. Thereafter the appeal authority conducted the hearing of the petitioner on 29th June 2009. The said hearing was postponed as the respondent has refused to attend the said hearing. n) On 22nd June 2009, the petitioner was served a copy of the charge-sheet comprising six articles. The suspension order dated 30.04.2009 was further extended on 29th July 2009 extending the same for further period of 180 days. In the meantime, the petitioner‟s appeal was pending. WP (C) No.13733/2009 Page 7 of 31 o) The petitioner had filed a writ petition earlier before this court under article 226 of Indian Constitution praying the revocation of the suspension wherein by way of order dated 20.08.2009 this court directed the appeal authority to expeditiously dispose of the petitioner‟s appeal. p) Thereafter, once the appeal was not timely disposed of , the petitioner filed this fresh writ petitioner challenging the suspension order and charge-sheet. q) The petitioner challenged the said suspension order on the grounds as under: That the order of suspension has been made under malafide consideration as the petitioner had protested against the director of the respondent no. 1 decision to divest the powers of the director The impugned order of suspension suffers from the vice of the arbitrariness in as much as even the fact finding inquiry report was not fully complied with and only the petitioner is singled out. In the present case, there was no circumstances necessitating the suspension as the petitioner is not likely to do anything to the detriment to the respondent organization and the petitioner had done any misconduct earlier also. Thus, the order of suspension is clearly malafides, arbitrary and backed by ulterior motives. The petitioner sought to justify all the six charges by giving the detailed replies which are discussed below. That the charges against the petitioner are vague, baseless and trivial. The petitioner is being singled out and thus made to suffer against the persons who have their direct involvements in the said alleged charges when the said decisions were made. 2. The charges as framed against the petitioner are set out as WP (C) No.13733/2009 Page 8 of 31 under: “Article I That the said Shri N. Balakrishnan while functioning as Head, Research and Publications Division (HRPD) and subsequently as Deputy Director at the NMML during the years 2000 and onwards, committed misconduct in as much as that, vide letter dated 7th July 2004 he unauthorisedly got the interviews of shortlisted candidates for the award of fellowships postponed. This decision to postpone the interviews, which was scheduled for 10th July 2004, was taken without seeking any approval from the Chairman, NMML Executive Council, since only the Executive Council was vested with such authority. This charge is further proved by the fact that the decision to postpone the interviews was not reported to the Executive Council at its meeting held on 2nd August 2004. By this act, he effectively stopped the functioning of the fellowship programme for promoting high quality research through award of fellowship at the level of Senior Fellow, Fellow and Junior Fellow. Thus by doing so, Shri N. Balakrishnan, Deputy Director NMML committed a serious misconduct and thereby contravened Rule 3 (1) (ii) and Rule 3 (1) (iii) of the CCS (Conduct) Rules 1964 as applicable to NMML employees, whereby every Society servant at all times maintain devotion to duty, and do nothing which is unbecoming of a Society servant. Article 2 That, during the aforesaid period and while functioning in the aforesaid office, the said Shri n. Balakrishnan, Deputy Director NMML committed another serious misconduct in as much as when the selections did take place after the formation of new Executive Council, which nominated a new Fellowship Selection Committee for recommending the selection of Fellows, he by a series of acts ensured that the selection of candidates for Fellowships was not conducted in a fair and transparent manner in order to bring undue favour to two candidates namely, Prof. Neerja Gopal jayal and Dr. Dilip Simeon for the posts of Senior Fellow. Thus by misleading the Executive Council in the above manner, Shri N. Balakrishnan, Deputy Director NMML committed serious misconduct and thereby contravened Rule 3 (1) (ii) and Rule 3 (1) (iii) of the CCS (Conduct) Rules 1964 as applicable to NMML employees, whereby every Society servant shall at all times maintain devotion to duty, and do nothing which is unbecoming of a Society servant. Article 3 WP (C) No.13733/2009 Page 9 of 31 That, during the aforesaid period and while functioning in the aforesaid office, the said Shri N. Balakrishnan, Deputy Directgor NMML, committed serious misconduct in as much as that he misled the new Executive Council by not placing full facts before it while getting the Executive Council to appoint a new Fellowship Selection Committee for appointment of Fellows. Thus by deliberately, withholding vital information from the Executive Council with a view to misleading it, Shri Balakrishnan, Deputy Director NMML, committed serious misconduct and thereby contravened Rule 3 (1) (ii) and Rule 3 (1) (iii) of the CCS (Conduct) Rules 1964 as applicable to NMML employees, whereby every Society servant shall at all times maintain devotion to duty, and do nothing which is unbecoming of a Society servant. Article 4 That, during the aforesaid period and while functioning in the aforesaid office, the said Shri N. Balakrishnan, Deputy Director NMML, again committed misconduct in as much as that, he misused his authority and manipulated the records and the selection process for selection of Fellows by unauthorizedly operating uponthe 18-month old list of applicants without going in for re- advertisement and unauthorizedly assumed the role of coordinator without seeking any approval of the Selection Committee which met on 4th March 2005 and brought undue favour to two candidates namely Prof. Neerja Gopal Jayal and Dr. Dilip Simeon by receiving and admitting for consideration their applications for the post of Senior Fellows on 2 May 2005 and 9 May 2005 respectively, nineteen months after the cut off date thereby denying opportunity to suitable candidates who may have come up in the meanwhile to apply for these posts. Both these applicants were selected for the post of Senior Fellow at the NMML. Thus by doing so, Shri N. Balakrishnan, Deputy Director NMML, committed serious misconduct and thereby contravened Rule 3 (1) (ii) and Rule 3 (1) (iii) of the CCS (Conduct) Rules 1964 as made applicable to NMML employees, whereby every Society servant shall at all times maintain devotion to duty, and do nothing which is unbecoming of a Society servant. Article 5 That, during the aforesaid period and while functioning in the aforesaid office, the said Shri N. Balakrishnan, who was at that time holding the post of Head, Research and Publication Division and was the senior most officer of NMML, misused his authority WP (C) No.13733/2009 Page 10 of 31 by misleading the Executive Council in order to favour himself for appointment as Deputy Director in as much as he misinterpreted the recommendations of the Damodaran Committee Report through an Explanatory Note accompanying the proposal for amendment of the Recruitment Rules as well as an earlier proposal by Dr. O.P. Kejriwal, the then Director NMML before the meeting of the Executive Council held on 25th January 2005 and thereby got the Recruitment Rules for the post of Deputy Director, NMML amended on a faulty logic from „Direct Recruitment‟ to “Departmental Promotion, failing which by Direct Recruitment” which was done to tailor make the eligibility criteria to get himself fitted to the requirement for the said post thereby misusing his authority for personal gain. By conducting himself in the above manner, Shri N. Balakrishnan, Deputy Director NMML, committed serious misconduct and thereby contravened Rule 3 (1) (ii) and Rule 3 (1) (iii) of the CCS (Conduct) Rules 1964 as applicable to NMML employees, whereby every Society servant shall at all times show devotion to duty and do nothing which is unbecoming of a Society servant. Article 6 That, during the aforesaid period and while functioning in the aforesaid office, the said Shri N. Balakrishnan, who was at that time holding the post of Deputy Director committed misconduct by willfully disobeying the orders of the Director and was found in unauthorized possession of official files and documents of NMML. This came to light when a committee made an inventory of items found in the office of Shri N. Balakrishnan, Deputy Director subsequent to his suspension by the disciplinary authority. By his above act Shri Balakrishnan, committed a serious misconduct and thereby contravened Rule 3 (1) (ii) and Rule 3 (1) (iii) of the CCS (Conduct) Rules 1964 as applicable to NMML employees.” 3. The petition was listed on 9.12.2009 when this court issued notice in the petition. The Respondent no. 1 and 2 have filed their counter affidavit by justifying the suspension order and charge sheet on the following grounds: a) The respondent contended that the petitioner has not placed the complete facts before the court. It is submitted that the petitioner WP (C) No.13733/2009 Page 11 of 31 suspension is not totally irrational one but rather there is a complete basis for lodging the displinary enquiry against the petitioner which leads to his suspension. It is pointed out that the action of the respondent was in pursuance to the findings and directives of the petitions committee of 14th Lok Sabha contained in its 44th report which was forwarded to respondent for compliance by the Ministry. It is stated that the said committee report examined the irregularities and manipulations on the petition of Some Mr. S.P. Singh in relation to the Fellowship selection which has been conducted from the year 2003 to 2005. The respondents submitted that the report observed the practices adopted by NMML to annul the list of candidates shortlisted by previous committee and also observed the applications of Some Candidates like Mr. Dilip Simeoon and Ms. Nirja Jayal has been entertained beyond time even after 19 months of the expiry of the last date of the receipt of the application. The respondent contended that the petitioner is involved in entertaining the late applications of these two individuals and thus the same is required to be inquired into for which the inquiry has been lodged after suspension as per the due recommendation of the committee and asking of Central vigilance Commission. Likewise the respondent contended that the parliamentary standing committee of Ministry of culture also questioned the selection process of senior fellows on the similar counts and recommended the probe into the selection process. Thus, the respondent contended that the inquiry is not baseless but rather is backed by three source recommendation. b) The respondent further submitted that not merely on the basis of the recommendations of the committees, the respondent have initiated the inquiry against the petitioner. But the respondent no. 2 has again appointed a fact finding inquiry prior to the inquiry against the petitioner in order to ascertain the complete facts. The fact finding inquiry is conducted by Shri V.P. Dutt who is stated to be well known academician and fellow of the respondent institution. The respondent stated that the said fact finding inquiry recorded that there is delayed acceptance of the applications and also named the petitioner in its report for belated acceptance of the applications and also the acceptance of the application without any authority. There is finding in the report that the actions of the WP (C) No.13733/2009 Page 12 of 31 director in charge and deputy director at that time were palpably malafide. Thus there is also the finding that the prima facie case is made out to institute the displinary action against both the director in charge and deputy director. The respondent submitted that in view of all the events including the fact finding inquiry preeceeding the disciplinary inquiry categorically finding the actions of then deputy director as bad, the said initiation of the inquiry and charges cannot be said to be baseless as contended by the petitioner. c) The respondent contended that the charges leveled against the petitioner also disclose cause against the petitioner. The petitioner is stated to have sent the letter dated 7.7.2004 to the shortlisted candidates regarding the postponement of the interviews which was not even informed the executive council of the society. Thus, the charges be it anyone is not without any evidence but are backed by the recommendation, factual analysis and the evidence in support thereof. d) Likewise, the respondent submitted that the fact finding committee recorded that the application of the Ms. Nirja Jayal was received on 2.5.2005 by the petitioner where as the deadline was 20.10.2003. The petitioner was promoted as Deputy Director on 17.3.2005 and after his promotion, the petitioner accepted the application of Ms. Jayal and shortlisted her despite the fact that she has not applied for. The said finding and events also formed another basis of Article 4 of the Charge. e) The respondent submitted that in view of the well reasoned inquiry and charges coupled with imputation backed by the evidence, the interim suspension pending the inquiry and the inquiry itself cannot be faulted with. The respondent contended that judicial review of the cases involving the disciplinary action is extremely limited and the present case does not warrant the court‟s interference. 4. Learned Counsel Ms. Nitya Ramakrishnan appeared on behalf of the petitioner and has made the following submissions: a) Firstly, Learned counsel submitted that the disciplinary inquiry launched by the respondent ought to be quashed by this court as there is no ground made out to launch the said disciplinary inquiry. WP (C) No.13733/2009 Page 13 of 31 b) Learned counsel submitted that the said disciplinary inquiry is backed by the malice as the petitioner has opposed the steps taken by the director of the respondent to divest the petitioners powers as deputy director to someone else. The petitioner contended that malice of the respondent can be highlighted on following counts: a. The petitioner is charged with doing such acts for which he was not vested with power to perform such acts. b. The charges made are trivial or baseless c. The petitioner is being singled out in the enquiry and no other person against whom such enquiry is initiated although the fact finding inquiry report is against some other persons also. 4. Learned counsel for the petitioner has relied upon AIR1976 SC 1766 titled as The Regional Manager and Anr.Vs. Pawan Kumar Dubey to inform the court that the Malice in Law is also the ground for interference and also submitted that the present acts of the respondent by charging the petitioner without the legally tenable ground is malice in law. 5. The reliance was also placed on the matter of T.V. Chaudhary with E.S. Reddi Vs. Chief Secretary Government of AP, (1987) 3 SCC 258 to urge that this court in appropriate case where the differential treatment is accorded like the present one can direct the government to initiate the same inquiry against the other delinquent officers or else quash the suspension order. 6. Likewise the petitioner also put strong reliance on WP (C) No.13733/2009 Page 14 of 31 Bongaigaon Refinery & Petrochemicals ltd & Others v. Girish Chandra Sarma, 2007 7 SCC 206 wherein this apex court set aside the penalty wherein one person is singled out as against the others by upholding the order Division Bench. 7. The learned counsel for the petitioner further argued that the charges that are framed as baseless. The petitioner counsel explained the situation wise as to the reasons as to why the charges against the petitioner cannot be said to be made out. Such situations can be enlisted as under: The first article of charge was sought to be justified by the petitioner that the allegation of the postponing the selection process is completely baseless in as much as the director had the authority to postpone the selection process and not the petitioner. The petitioner also denied that the petitioner was the deputy director at the relevant time when the selection process was carried on. Thus, the petitioner stated that the first charge is complete baseless. Petitioner commented on the second charge of favouring two candidates that the said charge is also baseless. The petitioner had nothing to do with selection process. The executive council appointed selection committee which is involved in selection process, The petitioner also denied the allegation of influencing the decision to accommodate