IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) 2564 of 2001
Reserved on: August 17, 2011
Decision on: September 12, 2011
ASHOK SACHDEVA ..... Petitioner
Through: Mr. Sanjiv Kakra with
Mr. Irfan Ahmad, Advocates.
versus
TUBERCULOSIS ASSOCIATION OF INDIA
& ORS .... Respondents
Through: Mr. Ritin Rai with
Mr. Siddhartha Jha and
Mr. S. Mishra, Advocates.
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
12.09.2011
Introduction
1. The Petitioner who was working as Secretary General and Chief Executive
Officer of the Tuberculosis Association of India („TAI‟) filed this petition on 23rd
April 2001, challenging the appointment of the Management Committee („MC‟) by
the Central Committee („CC‟) of TAI at its meeting on 23rd March 1998; the
constitution of the Disciplinary Committee („DC‟) by the CC of TAI at its meeting
on 2nd December 1999; the memorandum and articles of charge dated 16th May 2000
issued by Respondent No. 6, i.e., the Vice Chairman of TAI; quashing of
Memorandum dated 20th March 2001 and two other Memoranda dated 23rd March
2001 issued by Respondent No. 6.
2. While directing notice to issue in the petition on 27th April 2001, this Court had
W.P. (C) No. 2564 of 2001 Page 1 of 11
directed that any order passed by the Respondent would be subject to further orders
of this Court.
3. On 6th September 2001, this Court was informed that TAI had on 29th May 2001
passed an order removing the Petitioner from the service of TAI pursuant to a
resolution passed by the MC and the Executive Committee (`EC‟). The application
filed by the Petitioner to amend the writ petition to challenge the said order of
removal was allowed by the Court on 6th September 2001.
Factual background
4. The Petitioner was appointed as Secretary General of TAI vide letter dated 1st
January 1990. He joined his duties on 12th February 1990. Prior thereto, he was
Director (Finance) in the Air Force Naval Housing Board, New Delhi. The
Petitioner states that during his service he received several citations from State
Tuberculosis Associations. The Petitioner states that in the year 1994, he found that
TAI was endorsing a journal “Experta Medica” published by a pharmaceutical
company “Glaxo”. This according to the Petitioner was contrary to the Regulations
governing TAI which did not permit the endorsement of any products or services of
private bodies. He brought this to the notice of Mr. S. P. Agarwal, Respondent No. 3
herein, who became the Chairman of TAI in 1996. The Petitioner states that since
Respondent No. 3 refused to examine the complaint, the Petitioner referred it to the
Auditors of TAI. The report of the Auditors, however, was not made public.
Subsequently, there was a committee appointed to examine the issue but even its
report was not made public.
5. The Petitioner states that on account of his pointing out several irregularities
being committed by TAI, he was harassed. He had made representations in this
behalf to the President of India in 1999 and 2001. The Petitioner states that in the
meeting of the EC held on 31st January 1996, his promotion to the senior grade was
recommended. However, when Respondent No. 3 took over as Director General of
Health Services he stalled the implementation of this proposal, and the EC which
met thereafter on 26th September 1997 did not take any decision on Petitioner‟s
promotion.
W.P. (C) No. 2564 of 2001 Page 2 of 11
6. At the joint meeting of the Finance and Executive Committees of TAI held on
23rd March 1998, the question of Petitioner‟s promotion, as well as maintenance and
repair of his accommodation, was discussed. Several “acts of commission and
omission” of the Petitioner were discussed and disapproved. At the said meeting, the
EC resolved to constitute an MC with the following persons:
“(i) Shri G.R. Khatri, DDG and Director, National
Tuberculosis Control Programme – Chairman.
(ii) Dr. R.C. Jain, Retired Director, L.R.S. Institute of T.B.
and Allied Diseases, Delhi.
(iii) Dr. D.R. Nagpaul, Retired Director, National T.B.
Institute, Bangalore and Vice Chairman, T.A.I.”
7. The above MC was to report to the Chairman, TAI. The Secretary General was to
submit all proposals and communications to the MC through the Vice Chairman,
TAI. Further, the MC was to “exercise all powers of the Central Committee as have
been authorised to the Executive Committee save and except the powers mentioned
in Rule 8 (e), (f) & (g)” of the Tuberculosis Association of India Rules (`TAI
Rules‟).
8. The Petitioner submits that Mr. S. P. Agarwal, the Chairman of TAI, Respondent
No. 3, was inimical towards him. The constitution of MC was contrary to the TAI
Rules. It was done only to sideline the Petitioner and make him subordinate to the
MC. At the meeting of the CC held, on 2nd December 1999, an unexpected
development took place as recorded in its minutes (annexed as Annexure P-12 to the
petition). The members of the CC objected to the Petitioner sitting with them.
According to the minutes of the meeting, the Petitioner refused to sit at another table
and then suddenly left the room. According to the Petitioner this was at the behest of
Respondent No. 3 and further at his instance other members present at the meeting
also made statements against the Petitioner. The version of the TAI of what
transpired at the meeting of the CC on 2nd December 1999 is different. The minutes
of the meeting records the concerns expressed by the Members about the “arrogant
and irresponsible behavior of the Secretary General”. One of the Members Mr.
R.S.V. Easwaran was asked to request the Petitioner to return to the meeting.
However, the Petitioner declined to do so. Thereafter the conduct of the Petitioner
W.P. (C) No. 2564 of 2001 Page 3 of 11
was discussed where concerns were expressed by Dr. S.B. Trivedi, Dr. R.C. Jain,
Dr. M.S. Agnihotri and Mr. U. N. Vidyarthi, and immediate action was called for
against the Petitioner for his behaviour. Dr. R.N. Patel stated that any delay in taking
action against the Secretary General would encourage indiscipline and would be
detrimental to the interests of TAI. Many other members voiced the same concern
and requested for immediate strict disciplinary action. Dr. D.R. Nagpaul, the then
Vice Chairman, referred to the meeting held on 23rd March, 1998 where also the
Secretary General had walked out of the meeting. Mr. T.N. Chaturvedi stated that
this was a serious matter calling for disciplinary action. The minutes record the
concerns expressed, and the unanimous decision as follows:-
“1. A written warning be issued to the Secretary General for this
misconduct.
2. A disciplinary subcommittee comprising of Mr. T.N. Chaturvedi,
Dr. R.C. Jain, Honorary Legal Advisor, Honorary Treasurer and Vice
Chairman TAI will consider the entire record of the Secretary
General and put up its recommendations to the Chairman, TAI. Mr.
Chaturvedi expressed his inability to join the Committee on account
of his busy schedule and the name of Dr. R.N. Jindal was
unanimously approved in place of Mr. Chaturvedi.”
9. Following the decision taken in the above meeting, a memorandum was issued to
the Petitioner by the Vice Chairman, TAI on 16th May 2000, enclosing nine Articles
of Charge requiring the Petitioner to reply thereto within ten days.
10. On 27th September 2000, the Petitioner raised certain queries but did not reply to
the charge sheet. On 19th October 2000, he was informed that an Inquiring Authority
(„IA‟) had been appointed and that he should cooperate with the inquiry. Enclosed
with this letter was a letter dated 25th September 2000 appointing Shri Lachhman
Singh by the MC of TAI, empanelled by the Central Vigilance Commission, as the
IA to inquire into the charges. By a separate letter of the same date, Mr. R.S.V.
Easwaran, Superintendent, TAI was appointed as the Presenting Officer (`PO‟). The
first sitting of the IA took place on 19th January 2001 when only the PO was present.
The PO informed that the Petitioner had not come on 15th and 16th January 2001 for
inspection of documents as had been decided in the previous sitting of the IA held
on 11th January 2001. Another opportunity was given to the Petitioner to inspect the
W.P. (C) No. 2564 of 2001 Page 4 of 11
documents on 6th and 7th February 2001 from 10 am onwards in the office of the PO.
A schedule was then drawn up for further proceedings in the inquiry. The IA
enclosed the order sheet dated 19th January 2001 and the letter of the same date
addressed to the Petitioner and informed that the next sitting would be on 15th
February 2001 at 2:30 pm.
11. The Petitioner did not attend the hearing on the adjourned date. On the other
hand, he addressed a letter dated 21st February 2001 to the Patron, TAI complaining
of the action by TAI against him. The Petitioner states that in February 2001, he was
deprived of his car without any official order being passed to that effect. A
memorandum dated 23rd March 2001 was issued in which it was noted that the
Petitioner had violated the decision of EC at its meeting on 31st August 1999
prohibiting making of representations regarding the actions of TAI to its Patron, the
Health Minister, the Secretary or any government authority and requiring that all
representations should be made to the Chairman, TAI and representations against the
decision of the Chairman to the EC through the Chairman. The above decision was
endorsed by the CC by its meeting on 2nd December 1999. It was stated in the
memorandum dated 23rd March 2001 that by writing letter dated 21st February 2001
directly to the Patron of TAI, the Petitioner had violated the above decision. A
separate memorandum was issued on 23rd March 2001 regarding a news item dated
19th November 1999 in the Hindustan Times which reported him having made
derogatory references to the High Court and Supreme Court. The Petitioner was also
asked to cooperate in the inquiry. In the memorandum dated 20th March 2001, it was
alleged that the Petitioner “did not care to check the visitors‟ register and whether it
is properly maintained and filled”. The earlier security agency, whose term had
expired on 31st December 2000, had returned the visitors‟ register only a month and
a half later without any entry in the register since 16th February 1999. It was this
memorandum that impelled the Petitioner to file the present petition on 23rd April
2001.
12. The IA submitted its report on 24th April 2001 and a copy thereof was sent by
TAI to the Petitioner on 27th April 2001. The Secretary General made an
endorsement on 1st May 2001 stating that he was on earned leave after 11th May,
W.P. (C) No. 2564 of 2001 Page 5 of 11
2001 and had received the said “back-dated letter of 27th April, 2001” at 4:45 pm on
1st May 2001. He referred to the pendency of the present writ petition and
complained about not receiving the salary. The IA held the charges to be proved.
The report of the IA was accepted by the EC and on 29th May 2001, the Petitioner
was removed from service.
Plea regarding maintainability of the writ petition
13. In the counter affidavit filed on behalf of the TAI, a preliminary objection was
taken to the maintainability of the present writ petition against the TAI. Inter alia, it
was contended that CC of the TAI consists of about fifty-six members and the EC
nineteen. Each of them has four ex officio members who are government officers.
Although the President of India is the Patron of TAI and its members are the State
Tuberculosis Associations, TAI does not receive any grant or financial assistance
either from the Central Government or any State Government. Its main income is
from the interest of its corpus, 5% share in the sale proceeds of Tuberculosis seals
and 2% share in the said sale proceeds for research purpose, donations from public,
income from advertisement from publishing a souvenir and some income from the
journal. It is stated that TAI is neither a part of the central government nor does any
government have control over the management and policies of the TAI, and no
monopoly is created in favour of the TAI. It is stated that it is a private voluntary
organisation and not State within the meaning of Article 12 of the Constitution. It is
further submitted that TAI is not discharging any public function and therefore, no
writ petition under Article 226 of the Constitution is maintainable against it.
14. Mr. Sanjiv Kakra, learned counsel appearing for the Petitioner relied on the
observations of the Supreme Court in Shri Anadi Mukta Sadguru Shree Muktajee
Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust v. VR Rudani AIR 1989
SC 1607 and Zee Tele Films Ltd. v. Union of India AIR 2005 SC 2677 to urge that
the present writ petition against TAI would be maintainable. On the other hand,
relying upon the same judgments, it is contended by Mr. Ritin Rai, learned counsel
appearing for the Respondent TAI that in the absence of the Petitioner being able to
show that the TAI was discharging any public function, no writ petition would be
maintainable against it.
W.P. (C) No. 2564 of 2001 Page 6 of 11
15. This Court is not inclined to dismiss the present petition on a preliminary
objection as to maintainability. The writ petition has been pending in the Court for
more than ten years. It is neither expeditious nor in the interests of justice to dismiss
the petition at this stage after so many years and relegate the Petitioner to an
alternate remedy. The better course would be to leave the question of maintainability
open to be decided in an appropriate case. Consequently, the question whether a writ
petition is maintainable against the TAI is left open for consideration in any other
appropriate case.
Allegations of mala fides against Respondent Nos. 3, 4 and 5
16. Turning to the merits of the writ petition, at the very outset, it may be noted that
the Petitioner has withdrawn the statement made in the writ petition about Mr. S.P.
Agarwal being one of the persons who competed with him for appointment as
Secretary General. It has been clarified in the counter affidavit, and has been
admitted by the Petitioner subsequently, that the person who also applied for the
post of Secretary General way back in 1988 was some other Dr. S.P. Agarwal and
not Respondent No. 3 who subsequently became its Chairman.
17. Mr. Kakra has attacked the findings of the IA on several grounds. The first is
that the inquiry was vitiated due to mala fides. It is submitted that the inquiry
proceedings were initiated against him at the behest of Respondent No. 3 in
collusion with certain officers of TAI including Dr. D.R. Nagpaul and Dr. R.C. Jain,
who were Vice Chairman and member of the CC of TAI, respectively. It is also
alleged that after he took over as Chairman TAI, on 26th November 1996,
Respondent No.3 issued two orders. In the first order, he directed that all
correspondence and files should be referred to him only after scrutiny by Dr.
Nagpaul and the second was that the Petitioner‟s signatures on cheques issued by
TAI would no longer be necessary. It is alleged that Respondent No. 3 deliberately
stalled the promotion of the Petitioner although the EC at its meeting on 31st
September 2006 had recommended it. It is further alleged that the irregularities
pointed out by the Petitioner were not heeded to by Respondent Nos. 3, 4 and 5, thus
compelling him to make representation to the Patron, TAI. It is also alleged that
Respondent No. 3 used influence to get disapproved the representations made by the
W.P. (C) No. 2564 of 2001 Page 7 of 11
Petitioner. It is stated that in view of the embarrassment caused to them by the
Petitioner‟s representations, Respondent Nos. 3, 4 and 5 got disciplinary
proceedings initiated against the Petitioner.
18. Having perused the minutes of the meeting of the CC held on 23rd March 1998
and 2nd December 1999, this Court is unable to come to the conclusion that the
entire proceedings against the Petitioner are vitiated by mala fides on the part of
Respondents Nos. 3, 4 and 5. The behavior of the Petitioner was adversely
commented upon by not just these three but several other members present in the
meeting. Each of them expressed concern and recommended taking action as to the
conduct of the Petitioner. The decision to initiate disciplinary proceedings against
him was a near unanimous one of the members present in the meeting on 2nd
December 1999.
Constitution of the MC and the DC
19. Learned counsel for the Petitioner next questions the validity of the constitution
of the MC by the EC. In this connection, it has been submitted on behalf of the
Respondent TAI that in terms of Rule 23 of the TAI Rules, EC has all the powers of
CC except the powers mentioned in Rule 8 (e), (f) and (g). The EC created MC and
delegated certain powers to the MC. The relevant portion of Rule 23 of the TAI
Rules reads as under:
“At the first meeting after the Annual General Meeting each year, the
Central Committee shall appoint from amongst its members an
Executive Committee for the conduct of the affairs of the Association.
The Executive Committee shall exercise all the powers of the Central
Committee save and except the powers mentioned in Rule 8 (e), (f)
and (g).
The transactions of the Executive Committee shall be duly recorded
by the Secretary-General and laid before the new meeting of the
Central Committee for its information. The Executive Committee may
however refer any specific item of business within its powers for
decision by the Central Committee.”
20. The EC is empowered to initiate any disciplinary action and the reasons in
setting up of the MC have been indicated in the minutes of the meeting of the EC on
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23rd March 1988. This Court is unable to agree with the submissions of learned
counsel for the Petitioner on the legality of setting up of the MC, or for that matter
of the DC.
21. On the constitution of the DC, it is submitted by Mr. Kakra that when Dr.
Nagpaul was no longer the Vice Chairman of TAI, DC was not properly constituted.
The succeeding Vice Chairman of TAI could not have been inducted without there
being a proper resolution in that behalf by the EC. This Court is unable to agree with
this submission either. It appears that Dr. Nagpaul was made a member of the DC
essentially by designation. When he no longer was the Vice Chairman, the DC could
obviously not be left incomplete. The idea was to have the Vice Chairman of TAI as
a member of the DC. Consequently, the successor Vice Chairman had to fill the
vacancy in the DC. The absence of a resolution of the EC to ratify this can at the
highest be considered to be an irregularity. It does not vitiate the enquiry
proceedings.
The articles of charge
22. There were several articles of charge on which the inquiry was held against the
Petitioner. They have been summarized by TAI in its written submissions as under:
“(i) Not cooperating with the Inquiry ordered by the Chairman
to liquidate a pending Parliamentary Assurance regarding
financial irregularities reported in media way back in 1992
resulting in the displeasure of the Minister of State of Health;
(ii) Circulating repeatedly and frequently among members of
the Executive as well as Finance Committees unnecessary and
avoidable notes and documents which include photo copies of the
notings/decisions recorded in office files;
(iii) Putting up long, unnecessary and avoidable notes which
even contain unsubstantiated allegations, derogatory and at times
intimidatory language in respect of the honorary functionaries
appointed with the approval of President of India in his capacity
as Patron of TAI.
(iv) Complaining to the Chairman and other authorities but
refusing to cooperate with the senior officers of Directorate
General of Health services specially deputed by Chairman, TAIW.P. (C) No. 2564 of 2001 Page 9 of 11
for the purpose of looking into various grievances of Secretary
General.
(v) Incurring avoidable expenses of stationery and money on
unnecessary fax messages, phonograms and misuse of other
official facilities of TAI HQs.
(vi) Inability to function and seek cooperation as a responsible
officer vis-à-vis the entire staff of TAI HQs.
(vii) Failure of the Secretary General to improve his day to day
functioning in spite of advice from senior officers and continued
indulgence in unnecessary and unproductive activities which are
detrimental to the reputation and interests of TAI.”
23. In regard to each of the above articles of charge, a detailed enquiry was held by
the IA. Learned counsel for the Petitioner painstakingly took this Court through the
documents on record and sought to demonstrate how the same were not proved in
accordance with law in the inquiry proceedings by the PO of the TAI. The limited
scope of powers of this Court under Article 226 of the Constitution does not permit
it to undertake an elaborate exercise of examining the evidence before the IA. To
recapitulate the law explained by the Supreme Court in para 16 of the decision in RS
Saini v. State of Punjab (1999) 8 SCC 90:
“16. ……we will have to bear in mind the rule that the court while
exercising writ jurisdiction will not reverse a finding of the inquiring
authority on the ground that the evidence adduced before it is
insufficient. If there is some evidence to reasonably support the
conclusion of the enquiring authority, it is not the function of the court
to review the evidence and to arrive at its own independent finding.
The enquiring authority is the sole judge of the fact so long as there is
some legal evidence to substantiate the finding and the adequacy or
reliability of the evidence is not a matter which can be permitted to be
canvassed before the court in writ proceedings.”
24. Of the charges against the Petitioner one related to his son availing HRA from
Sri Ram College of Commerce (SRCC) and the University Grants Commission
(UGC) and yet staying with the Petitioner in the residential accommodation allotted
to the Petitioner by the TAI at C-409, Defence Colony. Learned counsel for the
Petitioner referred to the letters written by the Chairman of the TAI to the UGC and
SRCC urging them to proceed against the Petitioner‟s son and that this demonstrated
the mala fides of the Respondents. While it does appear that it was not proper for the
TAI to have gone after the Petitioner for his son availing HRA from SRCC which
W.P. (C) No. 2564 of 2001 Page 10 of 11
was of no concern to the TAI, the exoneration of the Petitioner on this charge would
by itself not make a significant change since the other charges against the Petitioner
have been held to be proved.
25. This Court is not persuaded to hold that the findings of the IA on the other
charges are perverse or based on no evidence. The report of the IA was accepted by
the EC at the meeting held on 28th and 29th May 2001. Fifteen members of the EC
attended the meeting. Respondent No. 3 did not express any opinion in the matter.
Dr. Bhai Mohan Singh did not participate in the discussion. The other thirteen
members unanimously accepted the report. Eleven of the thirteen members decided
to impose the penalty of removal of the Petitioner from service.
26. The acts of insubordination, bypassing the Chairman and the Vice Chairman by
making representations directly to the Patron are instances which underscore the
mutual lack of trust between the Petitioner and the MC of the TAI. Considering the
position held by the Petitioner the decision of the TAI to impose on the Petitioner
the punishment of removal from service cannot be held to be disproportionate.
27. For the aforementioned reasons, this Court does not find any merit in the writ
petition and it is dismissed as such, with no order as to costs.
S. MURALIDHAR, J.
SEPTEMBER 12, 2011
raj
W.P. (C) No. 2564 of 2001 Page 11 of 11