JUDGMENT
R.S. Sodhi, J,
1. Letters Patent Appeal No. 123 of 1999 has filed by the Delhi
Development Authority (for short ‘DDA’) challenging the judgment and order
dated 27.10.1998 of the learned Single Judge in C.W.P. No. 583 of 1997
whereby the learned Judge has allowed the writ petition quashing the
orders dated 16.4.1991 and 15.9.1991 of the DDA, while directing
reinstatement of the respondent herein in service of the DDA with all
consequential benefits.
2. The facts of the case, as emerged from the documents on records,
are that the respondent herein was appointed in the service of DDA on
27.7.1981 as Junior Engineer. In January, 1983 he was transferred to the
Housing Division No. 4 of the appellant-DDA. In August, 1983, the
respondent was directed to take charge of construction of 237 MIG dwelling
units in Pocket KG-1, Vikaspuri, New Delhi from Mr. A.K. Chopra, the
officer-in-charge of the said construction work. On 29.8.1983 the respondent
took over charge subject to verifications. On 22.12.1983, it was found that
items in the charge of the respondent fell short. On detection of shortfall
during stock verification, the respondent was charged as follows:
“That the said Shri R.C. Jain, Junior Engineer while
functioning as J.E., Housing Division No. IV during
the year 1983 failed to maintain absolute integrity
and devotion to duty inasmuch as
pilferage/misappropriation of brass fitting
comprising of brass valve, brass bib cock, brass
stop cock, face of stop cock etc. (valued at
approximately Rs. 32,000/- stored in two locked
trunks inside a room of a vacant FF Flat No. 146 at
the work site of 237 MIG Houses at Bodella, took
place as a result of gross negligence of Shri Jain.
Shri R.C. Jain by his above said acts of commission
and omission exhibited lack of integrity and devotion
to duty thereby violating Rule 3 of CCS (Conduct)
Rules, 1964 as made applicable to D.D.A.”
3. On the basis of material on record, the Enquiry Officer submitted a report
dated 30.4.1990 holding the respondent guilty of the charge framed. A
show-cause notice dated 27.9.1990 was served on the respondent calling
upon him to show cause why a penalty of compulsory retirement from
service be not imposed. Taking the reply of the respondent into
consideration, the Vice-Chairman of the appellant-DDA imposed penalty
of compulsory retirement. The respondent preferred an appeal before the
Lt. Governor under Regulation 22(1) of DDA (Salary, Allowance and
Conditions of Service) Regulation, 1961.The appeal was rejected vide
order dated 5.9.1991. Being aggrieved thereof, the respondent filed a suit
for declaration that his compulsory retirement is illegal and that he
continues to be in service of the appellant-DDA; as also a declaration that
the order of recovery of Rs. 32,000/- from the terminal benefits is illegal
and void. This suit was filed with an application for condensation of delay.
On 16.10.1992, the respondent moved an application for amendment of
the plaint in order to explain the delay in institution of the suit. It is the
averment of the respondent that the suit was taking a long time and,
therefore, during pendency of the suit he filed a writ petition before the
High Court being Civil Writ Petition No. 583/1997 with an undertaking
to withdraw the suit. It was the case of the respondent before the learned
Single Judge that the Inquiry Officer could not have returned a finding of
guilt as it was a case of no evidence. Consequently, the order imposing
penalty was also bad.
4. The learned Single Judge vide his judgment and order dated
27.10.1998, while re-appraising the evidence on record, has returned a
finding that the handing over/taking over report (Ex.P-4) could not be
admitted into evidence as the original of the same has not been produced
before the Enquiry Officer. The learned Single Judge also returned a
finding that it does not stand to reason that the original of the handing
over/taking over report would be with the respondent herein (petitioner
in the writ petition) as has been deposed by PW-1, Shri A.K. Chopra. The
learned Single Judge further returned a finding that the testimony of Shri
A.K. Chopra, PW-1, and Shri Radhakrishna, PW-3 does not inspire
confidence. On the question of maintainability of writ petition during the
pendency of the suit for the same relief, it was held that in the
circumstances it would not be proper to require the respondent to
continue with the suit and the matter could be disposed of in writ
petition, consequently allowed the writ petition.
5. Being aggrieved of the findings of the learned Single Judge,
the appellant-DDA assails the same in the present appeal on the
grounds, inter alia, that it was not open to the High court in writ
petition to evaluate the evidence to arrive at a different conclusion
when the same had been gone into by two authorities, both
returning a concurrent finding. It is also the grievance of the
appellant that the learned Single Judge ought not to have
entertained the writ petition during the pendency of the suit. It was
contended that law is well settled to the effect that High Court will
not re-evaluate the evidence to substitute its reasoning for that of
the authorities in matters of departmental enquiries. Learned
counsel also contended that it is not a case of ‘no material/no
evidence’.
6. In order to adjudicate the dispute raised before us, it is
necessary to go into the evidence on record; firstly to ascertain
whether this was a case of ‘no evidence’ as has been held by the
learned Single Judge and/or whether the conclusions arrived at by
the Enquiry Officer was arbitrary, casual, irrational and not
supported by any material on record. The respondent has
contended that the handing over/taking over report dated
29.8.1983 Ex.P-4 is not the original but a photo copy which does
not bear his signature on the first page while it does so on the
second page. He also contended that the note at the bottom of the
second page, namely, “most of the material found in packing
position has been counted and which is perishable item, charge is
taken over with further verification” indicates that the charge had
not been fully taken over.
7. It was contended by learned counsel for the appellant that from
the oral evidence of PW-1, Shri A.K. Chopra, which is corroborated in all
material aspects by PW-3, Shri Radhakrishna, it cannot be said that the
charge against the respondent has not been proved. It is further
contended that since the original of Ex.P-4 was handed over to the
respondent, the respondent could very well have disproved the accuracy of
the handing over/taking over report. In other words, it was submitted
that once PW-1 has tendered into evidence Ex.P-4 which document is
supported by PW-3, Shri Radhakrishna, the burden of proof, shifted to
the respondent who has failed to discharge his burden and, therefore,
Ex.P-4 cannot be doubted.
8. We have heard leaned counsel for the parties and have
examined the material on record. PW-1, Shri A.K. Chopra in his
testimony has stated that in 1986 he was posted as Junior Engineer in
Housing Division No. IV on the project related to construction of 237 MIG
dwelling units. In August, 1983 he was transferred from Division No. IV
and had handed over the charge to the respondent-Shri R.C. Jain. The
articles were physically counted and the charge was handed over. The
charge report was prepared at that time and a photo copy of the same
report dated 29.8.1983 is Ex.P-4. This witness has also stated that Shri
R.C. Jain had signed this report and that at the time of handing over, all
the items were physically checked. At that time Shri R.C. Jain had
pointed out that he would check the wash basins to see if there were any
cracks. No further discrepancy was brought to his notice by his
successor at the time of handing over and taking over. In his cross-examination,
this witness has stated that three copies of the report were
prepared. The original copy was retained by Shri R.C. Jain, the second
copy which was the carbon copy, was also signed by Shri R.C. Jain and
was kept by PW-1, Shri A.K. Chopra. Since the third copy was not clear
Shri R.C. Jain had refused to sign it. The Vigilance Department had
asked for the copy of the charge report after the theft was reported.
9. PW-3, Shri Radhakrishna, Assistant Engineer, deposed to the
effect that he was working in the Housing Division No. IV at Subhash
Nagar crossing and was in-charge of Sub-Division No. II and had two
works under his control. The first work was construction of 237 MIG
Housing Units at Bodella Pocket KG-II, the second work was construction
of 120 MIG houses at Hari Nagar in Pocket-FI. There were two Junior
Engineers working in connection with 237 MIG houses, namely, Shri
A.K. Chopra and Shri R.C. Jain. Both were looking after the rectification
work of these houses. Shri A.K. Chopra was transferred from the said
division in August, 1983 and Shri R.C. Jain had taken over the charge
from Shri A.K. Chopra. Shri R.C. Jain started taking over the charge on
25.8.1983. PW-3 has further deposed that he along with Mr. A.K. Chopra
had shown the stores on 25.8.1983 to Shri R.C. Jain. At that time, the
keys, including the duplicate one of both the boxes were handed over to
Shri R.C. Jain in Sub-division office. There was a handing over and
taking over charge from Shri A.K. Chopra. On 29.8.1983, Shri R.C. Jain
completed the taking over charge of the stores from Shri A.K. Chopra.
The witness has further stated that “I have seen the document, Ex.P-4.
It is the photo copy of the charge report prepared at the time which was
signed by both Shri A.K. Chopra and Shri R.C. Jain. According to this
charge report, all the costly items pertaining to this work were handed
over to Shri R.C. Jain. The name of the item and quantity of each item
was specifically mentioned in this charge report. From the tick mark
against the items it is made out that Shri R.C. Jain had counted these
items”. Shri R.C. Jain acknowledged that “most of the material found in
packing position which has been counted and is parishable item charge is
taken over with further verification” at the bottom of the charge report,
Ex.P-4. This witness further states that Shri R.C. Jain did not report to
him during the next three or four months about having physically verified
the condition of these parishable items. He has further deposed that
after Shri R.C. Jain had taken over charge, Shri Jain never asked this
witness to check the stores. He did not inform him about any periodical
check conducted. In this cross-examination, this witness has stated that
“Ex.P-4 is also photo copy. I have relied on it because I had seen its
original copy. The original copy of the document Ex.P-4 was not given to
me but it was shown to me.”
10. From the aforesaid evidence of PW-1 and PW-3 it cannot be said
there there is no evidence on record to substantiate the charge against the
respondent. It also cannot be said that Ex.P-4 is not admissible as the
original was not produced. Strict rules of evidence do not apply to
departmental inquiries and further, as stated by PW-1 that the original was
handed over to the respondent, which fact is not denied by the respondent,
the department has discharged its onus in the enquiry. It is well settled
that the High Court will not dwell into evidence to re-evaluate for itself the
sufficiency thereof nor substitute its opinion on such re-evaluation. That
being the case, it was not proper,with great respect, the learned Single
Judge to have substituted its opinion on re-evaluation of evidence. The
contention of the appellant that a writ petition ought not to have been
entertained during the pendency of the suit, is not without force. Once
recourse had been taken to proceedings by way of civil suit dropping it
midway and moving the High Court by way of writ petition ought not to be
encouraged.
11. Having carefully examined the case, with the aid of learned
counsel, we are of the opinion that the appellant has made out a case which
necessitates the reversal of the judgment under appeal. Consequently, the
judgment and order dated 27.10.1998 of the learned Single Judge in Civil
Writ Petition No. 583 of 1997 is set aside. L.P.A. 123 of 1999 is allowed. No
order as to costs.