Delhi High Court High Court

Babu Ram Jain vs Bses Yamuna Power Ltd. on 4 August, 2011

Delhi High Court
Babu Ram Jain vs Bses Yamuna Power Ltd. on 4 August, 2011
Author: S. Muralidhar
        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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