IN THE HIGH COURT OF DELHI AT NEW DELHI
W. P. (C) 1597/1998
Reserved on: July 25, 2011
Decision on: August 04, 2011
BABU RAM JAIN ..... Petitioner
Through: Ms. Maninder Acharya, Advocate.
versus
BSES YAMUNA POWER LTD. ..... Respondent
Through: Mr. B. C. Pandey, Advocate.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in Digest? No
JUDGMENT
04.08.2011
CM Nos. 10450/2007, 16956/2007 & 4115/2008
For the reasons stated therein and in light of the decision of the Supreme Court
in North Delhi Power Ltd. v. GNCTD, the applications are allowed. The BSES
Yamuna Power Ltd. (‘BYPL’) is impleaded as a Respondent in place of the
Delhi Vidyut Board (‘DVB’), the Delhi Power Company Ltd (‘DPCL’) and the
Delhi Vidyut Board Employees Provident Terminal Fund 2002 who were
earlier impleaded are removed from the array of parties.
W. P. (C) 1597/1998
1. The Petitioner, who was employed as a senior lineman with the DVB [which
has since been substituted by BYPL] has filed this writ petition challenging the
W.P. (C) No. 1597/1998 Page 1 of 5
memorandum dated 5th March 1992 issued by the Delhi Electric Supply
Undertaking (‘DESU’) and served upon him the articles of charges on the basis
of which disciplinary proceedings were initiated. The Petitioner also
challenges the enquiry report dated 2nd January 1996 holding the Petitioner
guilty of the charges, the show cause notice dated 5th June 1996 and the
consequential order dated 2nd May 1997 of the Disciplinary Authority (‘DA’)
imposing the penalty of removal from service and the order dated 29th January
1998 passed by the Appellate Authority (‘AA’) dismissing the Petitioner’s
appeal.
2. This Court has heard the submissions of Ms. Maninder Acharya, learned
counsel appearing for the Petitioner and Mr. B.C. Pandey, learned counsel
appearing for the DPCL.
3. The charge against the Petitioner was that during the course of a joint
inspection by the Vigilance Department along with MTD enforcement and
zonal staff on 18th July 1990, one private electricity meter (not belonging to
DESU) was found installed in the premises at 41-A, Shyam Nagar and the
supply in use was found to be for commercial-cum-residential purposes. The
investigations revealed that the said private meter was installed by the
Petitioner on 13th November 1989 in connivance with Mr. Manohar Singh, a
mason. It was further claimed that the above fact was confirmed by one Mr.
Vasudev Walia, a neighbour, who identified the Petitioner as the person who
had installed the said meter. In his written statement of defence, the Petitioner
stated that during his posting at the Geeta Colony zone in October 1990, he
was entrusted with the duty of maintenance of street lighting and his duty
W.P. (C) No. 1597/1998 Page 2 of 5
hours were from 2.00 pm to 10.00 pm and therefore on 13th November 1989,
when he was on duty, the question of installing a private meter at 41-A, Shyam
Nagar did not arise at all. He pointed out in his written statement that on 23rd
July 1990 Mr. Gulshan Kumar (occupant of the premises at 41-A, Shyam
Nagar) stated that one Mr. Aya Singh had told him that Mr. Manohar Lal had
installed the meter after accepting a bribe of Rs. 2,000/-. On the other hand,
Mr. Aya Singh stated that he had never named Mr. Manohar Lal. The other
witnesses, i.e., Mr. Sunder Lal Chawla, Mr. P.K. Mangal and Mr. Raj Kumar
Dua did not name the Petitioner. He also pointed out that Mr. Vasudev Walia,
whose statement was relied on by the IO, was full of contradictions. The meter
inspector also had not named the Petitioner.
4. In the enquiry report, the Inquiry Officer (‘IO’) noted that 11 of the 13
witnesses could not be produced. It was noticed that PW-1 Mr. P.K. Warshney,
Superintendent (T) had deposited that the statements of Mr. Sunder Lal
Chabra, Mr. P.K. Mangal, Mr. Raj Kumar Dua, Mr. Vasudev Walia and Mr.
Gulshan Kumar were recorded in his presence. Consequently, the IO
concluded that it could not be said that the said statements were false. PW-2
Mr. V.K. Mittal, Senior Clerk ACA (CPF) also stated that the statements of the
above private witnesses were recorded in his presence. According to the IO,
even if the makers of the statements could not be produced, reliance could be
placed on the record produced by the vigilance department which contained
‘corroborative’ evidence. It was accordingly held that on preponderance of
probabilities the charge stood proved against the Petitioner.
5. The DA while accepting the report of the IO imposed the penalty of removal
W.P. (C) No. 1597/1998 Page 3 of 5
from service on the Petitioner. The DA does not appear to have given any
reasons for doing so. Likewise, the AA has merely stated that it finds no
infirmity in the order of the DA.
6. Ms. Maninder Acharya, learned counsel appearing for the Petitioner referred
to the statements made by two witnesses during the enquiry and submitted that
without examining Mr. Vasudev Walia, who alone named the Petitioner, the
finding returned by the IO against the Petitioner was based on no evidence.
7. Having examined the impugned order of the IO and the documents placed
on record, this Court finds that the only witness who is supposed to have
named the Petitioner, i.e., Vasudev Walia, was not produced. There was
therefore no other evidence even of a ‘corroborative’ nature which could bring
home the guilt of the Petitioner. The finding that the Petitioner was guilty of
the charge of installing a private meter was, therefore, not based on any
acceptable evidence. The Petitioner could not have been guilty of the charge.
8. Neither the DA nor the AA has appreciated the fact that the report of the IO
is based on no evidence whatsoever.
9. Consequently, the report of the IO dated 2nd January 1996, the order dated
2nd May 1997 of the DA imposing a major penalty on the Petitioner and the
order dated 29th January 1998 of the AA dismissing the Petitioner’s appeal are
hereby set aside.
10. The Petitioner has superannuated during the pendency of the present
W.P. (C) No. 1597/1998 Page 4 of 5
petition and, therefore, the question of his reinstatement does not arise. The
liability for payment of the consequential benefits to the Petitioner is, in terms
of the decision of the Supreme Court in North Delhi Power Limited v. BSES
Rajdhani Power Limited AIR 2010 SC 2302 that of the BYPL.
11. It is accordingly directed that within a period of eight weeks from today,
the Respondent BYPL will pay to the Petitioner all his consequential benefits
by way of arrears of salary and other retiral benefits. It will also pass orders
granting him the notional promotions to which he may be entitled to within the
same period and calculate and pay him the consequential monetary benefits, if
any. In addition BYPL will pay the Petitioner costs of Rs. 5,000/- within the
same period.
12. The petition and the pending applications are disposed of in the above
terms.
S. MURALIDHAR, J.
AUGUST 04, 2011
rk
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