W.P.(C) No.519/2010 Page 1 of 16 $~8 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: September 22, 2010 Judgment Delivered On: October 06, 2010 + W.P.(C) 519/2010 K.D.RAM ..... Petitioner Through: Mr.N.Safaya, Advocate versus INDIAN TOURISM DEVELOPMENT CORPORATION & ORS. ..... Respondents Through: Mr.Amit Seth, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. Vide order dated 25.8.1983, in view of the fact that the inquiry report held the petitioner guilty of 7 out of 14 indictments of which he was charged, the Disciplinary Authority imposed the penalty of reducing the petitioner from the rank of Accounts Officer to the lower post of Senior Accountant. The Appellate Authority rejected the Appeal vide order dated 7.10.1983 which Appellate order was quashed on account of being a non-reasoned order and at the remanded stage the Appellate Authority passed the order dated 12.11.1997 maintaining the penalty. Petitioner challenged the same by filing a writ petition in this Court which was transferred to the Tribunal where it was registered as TA No.104/2009. Same has been dismissed vide impugned order dated 29.10.2009. 2. Notwithstanding various grounds urged in the writ W.P.(C) No.519/2010 Page 2 of 16 petition, learned counsel for the petitioner urged that in view of the observations made by the Tribunal in para 8 of the impugned decision; keeping in view the allegations in the charge-sheet issued and the ones proved and the ones disproved, it was apparent that it is a case of witch hunting or conducting a roving and a fishing inquiry and not proceeding against a delinquent officer on definite information. Thus, counsel urged that no penalty could be levied. Alternatively, counsel urged that the penalty imposed is disproportionate. 3. We note that in para 8 of the impugned decision the Tribunal has recorded a finding as under:- “8. On a careful running through the record, we do not find the applicant’s contention regarding victimization of an honest whistle blower as borne out by facts. The complaint by the applicant against the Manager, the charge memo, the defence version in the written statement as also the inquiry report clearly bring out a running battle between the two i.e. the Applicant as Accounts Officer, the Manager Shri V.K.Suri, on small and big issues, in fact practically every issue.” 4. Vide charge-memo dated 3.9.1980, charge-sheet alleging 14 Articles of Charge was served upon the petitioner. The 14 Articles of Charge read as under:- “ ARTICLE-I Shri K.D.Ram, while functioning as Accounts Officer in Khajuraho Hotel during the period from 1.1.1979 to 30.4.1979 demanded money from washer-man, for showing consideration to the order submitted by him to the Hotel, demanded concessional supplies of fruit for his requirements, from Mohammad Rahim a fruit supplies supplier to the Hotel and demanded concessional services from a tailor in Khajuraho, and thus committed grave misconduct as defined in Rule 4.1. (iv) (v) and (xxii) of ITDC Conduct, Discipline Appeal Rule, 1978. ARTICLE-II Shri K.D.Ram while functioning as Accounts Officer, in Khajuraho Hotel during the period from 1.1.79 to 30.6.79 acted in a manner prejudicial to good behaviour, decorum, image and interest of the Corporation. He had indulged in loose talk with one Shri LPR Mohani, Senior Conservation Assistant, Archaeological Survey of India, Khajuraho and told him that even the Chairman of the W.P.(C) No.519/2010 Page 3 of 16 corporation could not do anything against him. HE boasted that he had stopped the salary of the officers in the Hotel and nothing could be done to him. He had claimed that he put the officers all in trouble till they came to him and begged for money Shri Mohnani has written a letter pointing out how Shri Ram had behaved in a manner prejudicial to the reputation of the Corporation. Shri Ram has thus committed misconduct as defined in Rule 4.1 (xxxvii) of the ITDC conduct, Discipline and Appeal Rules, 1978. ARTICLE-III Shri K.D.Ram, while functioning as Accounts Officer in Khajuraho Hotel during the period 1.1.79 to 31.12.79 engaged a waterman on daily wages against the post of Jr. Accountant without any approval from the competent authority. When his work was in arrears he should have got a person selected from the local employment Exchange with the approval of the Manager for being appointed against the post of Jr. Accountant. Instead he had without proper authority appointed a waterman against that post. ARTICLE-IV Shri K.D.Ram while functioning as Accounts Officer, Khajuraho Hotel, Khajuraho from 1.1.79 to 31.12.79 committed grave misconduct in not paying the wages of casual labourers employed in Khajuraho Hotel with the approval of the Manager against the sanctioned posts. No objection for payment to the same casual labourers was raised by the Accounts Officer in the previous months. He disobeyed the orders of the Manager and did not pay the casual labourers in time. He has thus committed misconduct as defined in Rule 4.1 (1) of ITDC Conduct Discipline & Appeal, Rules, 1978. ARTICLE-V Shri K.D.Ram, while functioning as Accounts Officer in Khajuraho Hotel for the period from 1.1.79 to 31.12.1979 did not pay in time the bill for `850/- of M/s. Gupta Sweets, Khajuraho for sweets ordered by the staff Welfare Committee and supplied by the firm. ARTICLE-VI Shri K.D.Ram while functioning as Accounts Officer Khajuraho Hotel for the period from 1.1.79 to 31.12.79 did not release the payments to the suppliers who had supplied material to the Khajuraho Hotel during July, 1979 till as late as September, 1979. Shri Ram has thus committed misconduct as defined in Rule 4.1 (x) of ITDC Conduct Discipline & Appeal Rules, 1978. W.P.(C) No.519/2010 Page 4 of 16 ARTICLE-VII Shri K.D.Ram while functioning as Accounts Officer Khajuraho Hotel for the period from 1.1.79 to 31.12.1979 misbehaved with Shri Ravi Kaushik, Electrician, Khajuraho Hotel without appreciating the difficulties of the latter in repairing Shri Ram’s fan. He behaved in a manner unbecoming of an officer of India Tourism Development Corporation. ARTICLE-VIII Shri K.D.Ram, while functioning as Accounts Officers, from 1.1.79 to 31.12.1979 deducted salaries of the hotel officers for a few days from the salary payable to them and delayed payment for the days in question in spite of written instructions given to him to make the payment. He has thus disobeyed instructions given to him by superior officers and committed misconduct as defined in Rule 4.1 (f) of ITDC, conduct Discipline and Appeal Rules, 1978. ARTICLE-IX Shri K.D.Ram, while functioning as Accounts Officer in Khajuraho Hotel adopted dilatory tactics and did not pay the bill of M/s. Vijay Kumar against the supply of Bricks and Sand made by him to the hotel. He had also not made payment to M/s. Bundelkhand Electric Dealers and Repairers in time. He is thus guilty of misconduct as defined in Rule 4(1) (iii) of ITDC Conduct, Discipline & Appeal Rules, 1978. ARTICEL-X Shri K.D.Ram delayed payment of a bill of TA/DA submitted to him in December, 1978 till the end of March, 1979 and is thus guilty of misconduct as defined in Rule 4.1.(iii) of ITDC Conduct, Discipline & Appeal Rules, 1978. ARTICLE-XI Shri K.D.Ram did not deposit a sum of `480/- in Government Treasury representing the insurance fee of electric substation despite his attention being drawn to the need for making prompt payment of the fee. A complaint was received from the Assistant Engineer (E) that the payment had not been made on 1.5.79. ARTILCE-XII Shri K.D.Ram did not pay the stitching charges to the tailor in regard to the upholstery charges for repairing the sofa etc. ARTICLE-XIII W.P.(C) No.519/2010 Page 5 of 16 Shri K.D.Ram while functioning as Accounts Officer in Khajuraho Hotel for the period from 1.1.79 to 3.4.79 committed grave misconduct as defined in Rule 4.1 of the ITDC Conduct Discipline & Appeal Rules, 1978 in that he disobeyed orders issued to him by the Manager, Khajuraho on a number of occasions and exhibited gross insubordination unbecoming of an officer of the Corporation. ARTICLE-XIV Shri K.D.Ram while functioning as Accounts Officer during the period from 1.1.79 to 30.4.79 misused the funds of the Corporation in sending telegrams at the expense of the Corporation in regard to settlement of his personal affairs like grant of Leave Payment of LTC etc. for which he had applied to the Headquarters earlier. He disobeyed instructions issued to him to remit to the Corporation the cost of telegrams in question. He has not so far deposited the amount. He is thus guilty of misconduct as defined in Rule 4.1 (iv) & (x) of the ITDC Conduct Discipline & Appeal Rules, 1978.” 5. A bare reading of the Articles show that all of them pertain to alleged acts of Omission and Commission attributed to the petitioner for the year 1979 save and except Article No.X which pertains to the year 1978 and 1979. As would be evident from the facts noted herein under the evidence in support of Article I related to the year 1976 as well. 6. The report of the Inquiry Officer has omitted to render any finding pertaining to Article XIV of the Charge. The Inquiry Officer has indicted the petitioner pertaining to Article II, III, IV, V, VII, VIII, IX and XIII. 7. To deal with the submissions urged that evidence, establishes that a roving and a fishing inquiry was conducted, we would have to note the evidence sought to be brought on record pertaining to Article I, VI and X to XII of the Articles of Charge, but before that we deal with the evidence pertaining to Article II, III, IV, V, VII, VIII, IX and XIII which have been held to be proved and are the cause of the penalty imposed upon the petitioner. W.P.(C) No.519/2010 Page 6 of 16 8. Article II alleges that the petitioner indulged in loose talk with one Sh.L.P.R.Mohani, Senior Conservative Assistant, Archaeological Survey of India, Khajuraho. The petitioner had denied the charge. He stated that he did not know Sh.L.P.R.Mohani and thus where was the occasion for him to do loose talk with Sh.L.P.R.Mohani. Surprisingly inspite of Sh.L.P.R.Mohani not appearing as as a witness and hence not proving any conversation between him and the petitioner which was reflected in a letter purportedly sent by Sh.L.P.R.Mohani to the Chairman-cum-Managing Director of ITDC. The Inquiry Officer has held Article II of the charge proved for the reason the petitioner had told the Inquiry Officer that Sh.L.P.R.Mohani was himself facing a departmental inquiry and would not appear as a witness against him. In view of the fact that the petitioner had taken a stand that since he did not know Sh.L.P.R.Mohani, where was the occasion for him to do any loose talk with Sh.L.P.R.Mohani, the Inquiry Officer has held that the fact that the petitioner knew that Sh.L.P.R.Mohani was facing an inquiry established the close proximity between the two and there from has concluded that the petitioner must have done loose talk with L.P.R.Mohani. We may reproduce the finding returned by the Inquiry Officer. The same is as under:- “The Charged Officer has admitted in his statement that a person like Shri Mohnani would have refrained from making such a statement in the light of his responsibility and position in the Govt. level. It means that the charged officer feels that Shri Mohnani cannot make an irresponsible statement. Secondly, the charged officer also exhibits knowledge of the departmental proceedings against Shri Mohnani which are normally confidential and would only be known to persons who are in close contact with and talk to each other. So I am not prepared to accept the statement of the charged officer that he had no acquaintance with Shri Mohnani and he did not talk to him. Moreover, a senior Govt. Officer would not commit on paper facts on hearsay basis and that too to a senior authority in ITDC like Chairman & Managing Director.” W.P.(C) No.519/2010 Page 7 of 16 9. To say the least, the reasoning of the Inquiry Officer is perverse to the extreme and the perversity is so apparent that it needs hardly any comment being made by us. We may only note that Khajuraho is a very small mufassil town and people in small towns do know about the personal happiness and unhappiness of the residents of the town. Merely because petitioner knew that Sh.L.P.R.Mohani was facing a departmental inquiry would be no proof of the two being intimate. That apart, nobody proved the letter purportedly written by L.P.R.Mohani as being in the hand of L.P.R.Mohani. L.P.R.Mohani never appeared as a witness. Thus, Article II of the Charge must be held to be not proved. 10. Pertaining to Article III of the Charge, learned counsel for the petitioner did not dispute that there was evidence to establish that the petitioner had obtained the sanction to appoint Sh.Deen Dayal as a waterman on daily wage basis. Counsel conceded that the petitioner appointed Deen Dayal as a waterman on daily wage of `5 per day from 27.4.1979 to 30.6.1979. 11. The finding returned by the Inquiry Officer shows that the Manager Sh.V.K.Suri had shifted the Accounts Office to the garage of the ITDC Hotel at Khajuraho where Sh.V.K.Suri worked as the Manager and the petitioner as the Accounts Officer. By April 1979 it was Summer and the defence of the petitioner was that it was too hot to work from the garage and he appointed a daily wage waterman to whom `5 per day was paid to fill water in the air-cooler installed in the window of the garage. Of course, the petitioner could not prove that he obtained the oral consent of the Manager. Now, even if Sh.V.K.Suri had given an oral consent, he being the Chief Architect of the charge-sheet against the petitioner, would not have said so. Technically, the charge has been established. But we would only highlight the fact that Sh.V.K.Suri was making the petitioner work in sub- W.P.(C) No.519/2010 Page 8 of 16 human conditions and the petitioner was justified in requiring a waterman to be appointed on daily wage to fill the water tank of the air-cooler installed in the window of the garage. He may have acted technically wrong in not obtaining written permission from Sh.V.K.Suri, but it cannot be lost sight of that Sh.V.K.Suri had contributed to the problem by creating an adverse environment against the petitioner. We have highlighted this aspect keeping in view that we have to deal with the larger argument advanced that Sh.V.K.Suri managed a roving and a fishing inquiry without any definite basis. 12. Article IV of the Charge was sought to be defended by the petitioner on the plea that he was justified in not paying daily wage to one Sh.Sarju and one Sh.Bala Prasad appointed on daily wage by the Manager on the ground that as per the procedure prescribed, sanction had to be accorded by the Competent Authority at the head office. The defence fell in view of the fact that the Management successfully proved that vide headquarter Memo No.P/KHJ/CORS/ESTT dated 24.5.1975 the Manager was authorized to appoint on seasonal basis two daily wagers. Thus, it has to be accepted by us that Article IV of the Charge stood proved. However, we may note that there are traces of what actually happened and we are noting the same keeping in view the main question to be addressed, whether there is evidence to establish that Sh.V.K.Suri indulged in witch hunting. With respect to Article III of the Charge it has been noted that Sh.V.K.Suri had made the petitioner work from the garage and in the hot Summer months had not sanctioned a daily wage waterman to fill water in the tank of the air-cooler installed in the window of the garage and the petitioner of his own, without any sanction, appointed on daily wage a waterman to fill water in the tank of the air-cooler. Since Sh.V.K.Suri did not permit the petitioner to pay wages to the daily wage waterman, it is apparent that the petitioner retaliated, being the W.P.(C) No.519/2010 Page 9 of 16 Accounts Officer and in charge of the finances, by denying wages to the two daily wagers appointed by Sh.V.K.Suri. 13. Article V of the Charge pertained to not paying in time a bill in sum of `850 raised by M/s.Gupta Sweets Khajuraho. As is to be noted from the charge the sweets were ordered by the staff welfare committee. The inquiry officer has held the charge to be proved. 14. At the outset it may be noted that the staff welfare committee is a private affair of the staff of the hotel at Khajuraho and has no concern with the affairs of the hotel at Khajuraho. Thus, Article V of the Charge could not be misdemeanour pertaining to the official working of the petitioner. 15. The Inquiry Officer has discussed the evidence by noting that sweets were ordered by Sh.Deepak Seth, the Chairman of the Staff Welfare Committee and in respect thereof a bill was raised on 19.10.1979 which was not clear till 26.10.1979 and when Sh.Deepak Seth complained to the Manager, the petitioner released the payment on 30.10.1979. As per the petitioner he had to release the payment upon proof that the sweets were delivered and that proof thereof was furnished on 23.10.1979. He claims to have made payment within a week. 16. The Inquiry Officer has not discussed the effect of proof of sweets being delivered being furnished only on 23.10.1979 and the requirement of the bill to be paid within a week thereafter. That apart, assuming the bill had to be cleared by 26.10.1979 and was cleared 4 days later on 30.10.1979. It is too insignificant a delay to even initiate an inquiry. Thus, it can safely be said that the indictment pertaining to Article V of the Charge suffers from the jurisdictional error of being premised on the personal affairs of the staff and having nothing to do with the affairs of the hotel. Secondly, the Inquiry Officer has ignored W.P.(C) No.519/2010 Page 10 of 16 the defence statement requiring bill to be cleared within a week of proof of goods being delivered and lastly the delay being most insignificant. 17. Article VII of the Charge pertains to misbehaving with Ravi Kaushik, Electrician, Khajuraho Hotel. Evidence was led that Sh.Ravi Kaushik had lodged a complaint of misbehaviour at the hands of the petitioner. The Inquiry Officer has noted that evidence established that Sh.Ravi Kaushik went to repair a ceiling fan fixed in the residential quarter of the petitioner and that the evidence of Ravi Kaushik proved that the petitioner misbehaved with him. The evidence establishes that Sh.Ravi Kaushik had removed the fan on 3.5.1979 and had not re-fixed the same after repairing it till the evening of 6.5.1979. The petitioner was not in his house on 3.5.1979 and his wife had called the electrician. The petitioner returned to his house from Jabalpur in the evening of 6.5.1979 and had a spat with Sh.Ravi Kaushik in respect whereof Sh.Ravi Kaushik had complained to the Manager on 7.5.1979. 18. Surprisingly, the inquiry officer has failed to note that the month of May 1979 is extremely hot in North India. The electrician Sh.Ravi Kaushik failed to render any explanation as to why he did not repair and re-fix the fan which he had removed on 3.5.1979 till late evening of 6.5.1979. As per the petitioner Ravi Kaushik told him that he had detained the fan under instructions from the Manager. Now, Ravi Kaushik had no business to not repair the fan and re-fix the same even after four days. It being peak heat, obviously the petitioner would be agitated. That the two had a spat can reasonably be inferred. But the blame has to be on the shoulders of Ravi Kaushik and not the petitioner. It is too trivial an issue to charge-sheet an employee. 19. Article VIII of the charge is a cumulative charge having three components, and relates to part deduction of W.P.(C) No.519/2010 Page 11 of 16 salaries of the hotel officers on the pretext of their availing compensatory leave during April 1979, which were sanctioned by the manager, further deduction of ` 16 from the salary of one Sh. Deepak Seth, Asst Manager (F&B) was made on account that the bill did not bear his signatures. The charge also included withholding of salary of the housekeeper and the manager. 20. The Charge relating to deduction of salaries was sought to be defended by the petitioner on the plea that he was justified in deducting the salary pertaining to the compensatory leave claimed by the officers since sanction had not been accorded by the Competent Authority at the head office. The component of the charge pertaining to withholding salary payable to the Manager was defended on the plea that the Manager failed to submit the required attendance certificate and continued to draw advance against the salary. As regards the withholding of the salary of the housekeeper the defence was that this was pursuant to an order dated 03.04.1979 issued by the Headquarters. No specific defence was taken as to why ` 16/- was deducted from the salary of Deepak Seth. 21. It may be noted that regarding late payment of salary to the housekeeper the enquiry officer has exonerated the petitioner holding that in view of the office order dated 03.04.1979 the petitioner was justified in withholding the salary till the same was released by the competent authority on 14.06.1979. Qua the defence of deducting salaries of the hotel staff who had availed compensatory leave, the enquiry officer has held that letter dated 15.06.1979 issued by the Headquarters has authorized the Manager of the hotel to sanction the compensatory leave and thus held the said part of the charge to be proved. There being evidence that the Manager was the Drawing and Disbursing Authority and no separate attendance was required, it was held that the charge pertaining to withholding the salary of the Manager was W.P.(C) No.519/2010 Page 12 of 16 established. 22. From the nature of the evidence it is apparent that the petitioner was having a running feud with the Manager Shri V.K.Suri evidenced by the fact that the acts authorized to be performed by Shri V.K.Suri were not being accepted by the enquiry officer. The fact that he did not release the salary of Shri V.K.Suri who was the self Drawing and Disbursing officer on the plea of attendance sheet not being submitted highlights the spat between the two. 23. Article IX of the charge pertained to non-payment under the Bills submitted by M/S Vijay Kumar who had supplied blocks and sands as also for non-payment of the bills submitted by M/S Bundelkhand Electric Dealers and Repairers. The defence taken was that the bills submitted by M/S Bundelkhand Electric Dealers & Repairers pertained to a period when the petitioner had no role to play qua the payments to be made under the bills, a defence which succeeded. Qua the charge of non-payment of bills submitted by M/S Vijay Kumar, the defence taken was that the supplier had not submitted any quotations and had managed to obtain the contract from the Assistant Engineer concerned and thus as the Accounts Officer the petitioner was fully justified in not releasing the payment. The enquiry officer has indicted the petitioner noting that the Manager had directed payments to be released clearly recording that the supplier had submitted proper quote. 24. Suffice would it be to state that Article IX of the charge brings out that half limb thereof pertaining to non- release of payment to M/S Bundelkhand Electric dealer shows a complete non-application of mind by the authority issuing the charge which forgot that the alleged misdemeanor pertained to a bill dated 19.09.1977, a period when the