ORDER
A.K. Sikri, J.
1. Petitioner was in service of respondent Delhi Vidyut Board (DVB in short) from where he retired with effect from 30.11.93. However, few months before his retirement, Petitioner was issued Charge Sheet dated 26.5.93 which was received by him on 28.6.1993. Although the petitioner retired, enquiry continued. Inquiry Officer submitted his report on 30.4.1997, returning the findings that charges against the petitioner was not proved beyond all doubts. However, Disciplinary Authority did not agree with the findings of the Enquiry Officer and issued show Cause Notice to the Petitioner dated 2.1.1998. His reply was received and considered by the Disciplinary Authority and thereafter on 21.9.98, Petitioner was imposed penalty of 30% cut in pension per month for a period of 3 years. His appeal against the said order having been dismissed by the Appellate Authority, petitioner filed the present Writ Petition.
2. Grave man of the charge, as per the Charge Sheet served upon the petitioner, in the following manner:-
“Shri O.P. Gupta while functioning as AE Zone-1803, during the year 1990 was required to maintain absolute integrity, devotion to duty and to do nothing unbecoming of an employee of this undertaking.
However, it has been observed that a T/W connection bearing No. 312/139252 was installed at Khasra No. 7/26, Village. Devli Khanpur in the year 1982. The consumer Shri Hari Singh reported in July, 1990 that the meter in respect of the said connection had been stolen from his farm and therefore, he requested to the Zonal Authorities for providing a new meter. After completing necessary formalities, Shri O.P. Gupta visited the site along with Inspector Shri R.K. Aggarwal. The new meter was, therefore, required to be installed at the aforesaid site Khasra No. 7/26, Village Devli, Khanpur, but it has been observed that during the joint inspection of site carried out by the Village Deptt. in association with Zonal Staff on 22.11.90 that the meter was found installed at a different site in the Village Abadi of Devli. The site where new meter was installed was obviously meant to be used for the purposes other than agriculture.
In the statement dated 3.1.91 Shri Gupta has stated that he had not visited the site. The meter was replaced on the request of the consumer. His contention has however, not found to be tenable as the Inspector and Lineman Gr. II have stated that Shri Gupta had visited the site. Further in the FIR lodged by the consumer, the address is given as Khasra No. 7/26 Village Devli whereas the meter was found installed at Devli Extn. near Janta flats.
Thus, Shri O.P. Gupta, A.E. who had visited the site along with the Inspector Shri R.K. Aggarwal acted with a mala fide intentions and selected a different site for installation of meter with the intention to give undue favour to the consumer.
The above act of the CO, Shri O.P. Gupta amounts to gross misconduct and violated Rule 3(i) of the CCS (Conduct) Rules, 1964 which for good and sufficient reasons render him a liable for disciplinary action under Reg. 7 of DESU (DMC) Service (C&A) Regulations, 1976 read with Section 95 of the DMC Act, 1957.”
3. In the detailed enquiry report submitted by the Inquiry Officer holding charge not proved beyond all doubts, Enquiry Officer has interalia observed as under:-
“Ex. S-2 is a request of the consumer where there is no endorsement of Shri O.P.Gupta to Shri Aggarwal, Inspector, another CO in this case. CO further states that he never visited the site nor did he ask his subordinate to do anything wrong in the installation of meter when the consumer reported that his earlier meter was stolen. On the contrary, CO got the matter examined and when he came to know about the FIR lodged by the consumer relating to the steeling of his meter, he informed AFO of NHP to ensure that before the installation of the new meter, all dues are cleared by the consumer accordingly. It is also stated by the CO in his Arguments that the consumer got the paper collected from AFO (NHP) and handed over the paper to Inspector direct so that CO Shri O.P. Gupta was not in the picture at that time. If AFO (D) NHP could find that all the formalities have been completed by the consumer in getting a new meter installed in place of his earlier meter being stolen and if the Inspector had got that installation done after finding that all the formalities completed by the consumer and all the dues have been paid by him including the dues relating from 1982 to 1990, the question of mala fide intention for loss of revenue to DESU on the part of the CO whether Shri O.P. Gupta or Shri R.K. Aggarwal, Inspector, another CO, in this case does not arise. Strictly, speaking, if the consumer had paid the pending dues which comes to more than Rs. 5,000/- and the revenue has gone to the credit of DESU, how one can think that these two COs. S/Shri O.P. Gupta and Aggarwal could have any mala fide intention in order to make quick back for themselves.
In this case, the complainant is also nonexistent. The idea of a complaint and then initiating the departmental enquiry becomes legally redundant and absolute. From the statement of the I.O. it is also found that he has not been able to prove beyond doubts that it is the CO, Shri O.P. Gupta in connivance with Shri R.K. Aggarwal and the consumer himself i.e. Shri Hari Singh had got this shifting of the meter from the original place to another place. In this connection, it may further be stated that it is the consumer who admitted in his letter to the President of India that it is he who got the meter shifted and as the party had accepted the blame on him, that it is he who had got the meter shifted, the DESU officials should not and cannot be held responsible for any misdeed or improper action done by the consumer. There is a small discrepancy also which has already been stated that the place where the meter was found installed by the Joint Inspection Team was situated at Janta Flat, in a room which was also locked, whereas the statement of imputation says that the meter was subsequently installed in the Village Abadi of Devli and there is definite distance between the two statement of imputation contradicts the Joint Inspection Report about the site of the Meter.
Taking all these points together that it was the consumer who got the shifting and both the COs S/Shri O.P. Gupta and R.K. Aggarwal had installed the meter where it was originally installed but subsequently got shifted by the consumer himself. In this connection, if may not be out of place to mention that the original installation of the meter in 1982 was for tube-well connection which was subsequently charged by the consumer and for which there is protracted correspondence between the Block Development Officer and the consumer and DESU. The main charge was of shifting the meter from the place which does not confirm to the place which was originally energised. The DESU officials are to install the meter only where the consumer has got the meter fixed by the DESU officials earlier but the same was got stolen in 1990. The DESU officers are supposed to install only where the meter was reported to have been stolen and if subsequently the consumer has shifted from this place to another place, the blame does not lie with the DESU officials but with the consumer himself. The consumer himself has admitted that this shifting of meter has been done by him and admitted this fact when he wrote to the President of India and endorsed a copy to DESU.
Taking all the facts and figures into view, I do not find that the charge against Shri O.P. Gupta has been proved beyond all doubts.”
14. The Disciplinary Authority is the Board itself which considered the enquiry report and in its memo dated 2.1.1998, while differing with the findings of the Enquiry Officer it has mentioned as under:-
“AND WHEREAS the Delhi Vidyut Board as the Disciplinary Authority considered the Inquiry Report and other relevant record. But the Board did not agree with the findings of the Inquiry Officer holding the charge as not proved, in view of the fact that the contents of the Joint Inspection report and statement of Shri ram Dawar, Lineman, Gr.II dt. 24.1.91 were confirmed during oral inquiry. Therefore, the charge of shifting power meter meant for agricultural purpose stands proved.”
4. Accordingly, the Board proposed the imposition of penalty of 30% cut in the pension of the petitioner on permanent basis, in the said Memo dated 2.1.1998 and called upon the petitioner to show cause as to why the penalty be not imposed. Petitioner submitted detailed reply which did not find favour with the Disciplinary Authority and penalty of 30% cut in pension per month for a period of 3 years was imposed upon the petitioner. It may be stated that appeal of the petitioner was also considered by the Board itself, while rejecting the same.
5. In the writ petition filed by the Petitioner, number of grounds are taken on the basis of which impugned orders are challenged. However, at the time of arguments, counsel for the petitioner pressed the following contentions:-
(i) The impugned orders were clearly wrong in as much as the Board acted as Disciplinary Authority as well as Appellate Authority which was against principles of natural justice.
(ii) There was no pecuniary loss caused to the respondents and therefore, punishment under Rule 9 of the Pension Rules could not have been imposed upon the Petitioner.
(iii) The mandatory provisions of Rule 9 of the Pension Rules were not followed inasmuch as neither UPSC was consulted before passing any final order nor the case was forwarded to the President of India and his approval obtained before going ahead with the departmental proceedings in the case.
(iv) The Inquiry Officer had given detailed reasoning on the basis of which he held that the charge was not proved. In this case, the person who made the complaint did not even pursue his complaint or appear before the Inquiry Officer. The reasons given by the Disciplinary Authority differing with the findings of the Inquiry Officer were clearly erroneous and in fact, nonexisting and therefore, findings recorded by the Disciplinary Authority, on the basis of which punishment was imposed, were perverse.
6. The petitioner in support of his submissions relied upon the following judgments:-
(1) ;
(2) .
Countering the aforesaid arguments of the petitioner it was submitted by Mr. N.S. Dalal, learned counsel appearing for DVB that the report submitted by the Inquiry Officer was not binding on the Disciplinary Authority and Disciplinary Authority had right to differ from the said finding recorded by the Inquiry Officer. It was for the Disciplinary Authority to accept these findings or come to its own conclusion on the basis of material on record. Disciplinary Authority has given the reasons because of which it differed from the Inquiry Officer and held that the charge against the petitioner stood proved. It was further submitted that even if the complainant did not came forward and did not appear before the Inquiry Officer, that was not fatal. The disciplinary case was linked with the commission of offence by the petitioner and not with the source of information. The charge that the petitioner failed to keep effective supervision and irregularities took place with his knowledge has been proved on the basis of material on record. It was also contended that there was no violation of Rule 9 of the Pension Rules. Merely because there was no financial loss does not mean that penalty could not be imposed upon the petitioner. It was the irregularity committed by the petitioner because of which he has been punished. Irregularities breed corruption and system is affected. There was no necessity to consult UPSC or forward cases to the President of India as the Pension Rules were applicable motus mutandi and the Board being supreme to act in this case as final authority. The Board rightly rejected the appeal also clearly stating that no new points had been raised and all the points raised earlier had been considered by the Disciplinary Authority and, therefore, no prejudice was caused to the petitioner, if the Board acted as Disciplinary Authority as well as Appellate Authority.
7. Before appreciating rival contentions of the parties it may be appropriate to reproduce relevant portions of Rule 9 of the Pension Rules:-
“9. Right of President to withhold or withdraw Pension:
[(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon reemployment after retirement:
Provided that the Union Public Service Commission shall be consulted before any final orders are passed:
Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventyfive per mensem”.]
There is a reference to President of India who has right to withhold or withdraw pension or part thereof. Proviso to this Rule further states that UPSC shall be consulted before any final order is passed. However, the question is as to whether President of India has to pass the order in the case of an employee of DVB also and UPSC has to be consulted. For this purpose one may peruse provisions of Rule 2 dealing with application of Pension Rules to find that these rules shall apply to Government servant including civilian Government servants in defense services appointed to Civil Services etc. and exclude certain categories of employees. In the case of Government employees who are holders of civil posts, President of India as the executive Head is the final authority. The service conditions of such employees are governed by Articles 309 to 311 of the Constitution of India. It is for this reason that the President of India is the authority who has to pass the final order under Rule 9, as prescribed, in respect of Government employees and holders of civil posts. These Pension Rules are not automatically applicable to employees of DVB and they are adopted mutandi mutants. The President of India is not the employer of the employees of DVB nor these employees are holder of civil posts. They are admittedly not governed by Articles 309 of the Constitution of India. DVB is a body constituted and being an autonomous body it has to act according to its own rules ect. As the Board is the supreme authority, it is the Board which can pass necessary orders under Rule 9 of Pension Rules in the case of employees of DVB. The reference ‘President’ is to be substituted by ‘Board’ and ‘Government’ is to be substituted by DVB to give proper meaning of such rules in so far as they become applicable for DVB employees. For same reason it is not necessary that there has to be any consultation with UPSC before final orders are passed by the Board. Therefore, I find no merit in the contentions of the petitioner that there was violation of Rule 9 in not forwarding the case to President of India or not consulting UPSC.
8. Once the orders are to be passed by the Board under Rule 9 and by no lesser authority, appeal if any, cannot be heard by any inferior authority. Admittedly, there is no superior authority than the Board in DVB. Therefore, if the appeal is heard by the Board as appellate authority, which acted as Disciplinary Authority also, there is nothing wrong. In fact, doctrine of necessity clearly becomes applicable in such a case. Had the order been passed by authority lower than the Board acting as Disciplinary Authority, petitioner would have alleged violation of Rule 9 of the Pension Rules. Thus I do not agree with the counsel for the petitioner that there is violation of principles of natural justice in the Board acting as disciplinary as well as Appellate Authority.
9. Equally, there is no force in the submissions of the petitioner that departmental proceedings under Pension Rules could be initiated and order could be passed under Rule 9 of the Pension Rules only if there was pecuniary loss. Reading of Rule 9 clearly shows to the contrary and order can be passed even when there is no pecuniary loss.
10. Let me now deal with last contention of the petitioner relating to the findings recorded by the Disciplinary Authority. It was contended that a detailed discussion is recorded by the Inquiry Officer in his report while holding that charge against the petitioner is not proved and Disciplinary Authority has no reason to come to the contrary findings. I may state at the outset that report submitted by the Inquiry Officer is not binding on the Disciplinary Authority and Disciplinary Authority can come to its own conclusion/findings on the basis of Inquiry Report as well as other material placed on record. It is for the Disciplinary Authority to accept or not to accept the findings recorded by the Inquiry Officer. Moreover, it is also to be borne in mind that once the findings are recorded by the Disciplinary Authority and the same are based on material on record this Court is not to sit as appellate authority over the said findings and reach to its own conclusion and/or substitute its own finding for that of Inquiry Officer. However, if the findings are perverse or based on “no evidence”, then this court can interfere with such findings. While examining this case, the Court is fully conscious of these limitations.
11. In the instant case, Article of Charge which was levelled against the petitioner reads as under :-
“Shri O.P. Gupta, while functioning as Asstt. Engineer (Zone-1803) during the year 1990 in connivance with Shri R.K. Aggarwal, Inspector with mala fide intentions and with a view to extend undue favour to the consumer got shifted the meter against a T/W connection K.N. 312/139252 Khasra No. 7/26, Village Devli at a site, in the village abadi of Devli which was obviously meant to be used for the purpose other than agriculture.
Thus Shri Gupta contravened the provisions of Rule 3(I) of the CCS (Conduct) Rules, 1964 as applicable to the employee of DESU.”
Statement of imputation of misconduct is already reproduced above. The Article of Charge would show that the main thrust of the charge is that petitioner (i) in connivance with Mr. R.K. Aggarwal and (ii) with malafide intentions (iii) with a view to extend undue favour to the consumer got shifted the meter at a site which was meant to be used for purpose other than agriculture. The ingredients of the charge as per statement of imputation are as under :-
(a) Electricity connection of Shri Hari Singh at his farm house was stolen.
(b) He requested zonal authority to provide new meter.
(c) Petitioner and Shri R.K. Aggarwal after completing formalities had visited the site.
(d) Although the new meter was required to be installed at the site from where it was stolen but joint inspection carried out by the Village Department in association with zonal staff revealed that meter was found installed at different site in the village Abadi of Devli.
Let us presume that Hari Singh had reported the matter regarding stealing of meter, Petitioner and Shri Aggarwal had inspected the site and in a joint inspection later by Village Department in association with zonal staff, meter was found installed at different place. However, it is also necessary to establish that it was done by none else but the petitioner that to in connivance with Shri R.K. Aggarwal with mala fide intention and with a view to extend undue favour to the consumer. On this aspect, in his detailed findings recorded by the Inquiry Officer, Inquiry Officer exonerated the petitioner and the reasons given by the Inquiry Officer may be summarized as under:-
(i) On the request of the consumer for installation of new meter in place of the meter which was stolen there is no endorsement of petitioner to Shri Aggarwal, Inspector.
(ii) On coming to know of the theft of meter, petitioner had himself informed AFO of NHP to ensure that before the installation of new meter, all dues are cleared by the consumer.
(iii) Consumer had, in fact, paid pending dues of more than Rs. 5,000/ which revenue had gone to the credit of DVB and therefore, it cannot be said that there was any mala fide intention of petitioner and Shri R.K. Aggarwal, as these persons did not make any material gain.
(iv) Complainant was also nonexistent.
(v) Investigating Officer had not been able to prove beyond doubt that it is petitioner in connivance with Shri R.K. Aggarwal and the consumer who got this shifting of meter from original place to another. On the other hand consumer had admitted in his letter to President of India that it is he who got the meter shifted and as the parties had accepted the grain on him, DESU officers should not and cannot hold responsible for any misdeed or improper action done by the consumer.
vi) There was small discrepancy also in the joint inspection report namely –
The place where the meter was found installed by the Joint Inspection Team was situated at Janta Flat, in a room which was also locked, whereas the statement of imputation says that the meter was subsequently installed in the Village Abadi of Devli and there is definite distance between the two statement of imputation contradicts the Joint Inspection Report about the site of the Meter.”
From the above factors the Inquiry Officer concluded that although the meter was initially installed at its original place but it is the consumer himself who got the same shifted to another place.
12. The Disciplinary Authority did not agree with the findings of the Inquiry Officer. A perusal of Memo dated 2.1.98 shows that the reason given is that the contents of Joint Inspector Report show that the charge of shifting the power meter meant for agriculture purpose stood proved. Thus the Disciplinary Authority relied upon the Joint Inspection Report and the statement of Shri Ram Dawar, Lineman to hold that the meter had been shift ed. There is no dispute about the fact that meter had been shifted. As mentioned above, the dispute is as to whether the petitioner and/or R.K. Aggarwal were responsible for this more so, when the consumer had himself stated that he had done so and not the petitioner or Shri R.K. Aggarwal, in his letter to the President of India. There is no material on record to hold that petitioner is responsible for his act. Joint Inspection Report or the statement of Shri Ram Dawar, Lineman relied upon by the Board while differing from the findings of the Inquiry Officer only reveals that the meter had been shifted. There has to be material on record to fasten the responsibility of this act on the petitioner. There is none. The Disciplinary Authority has not at all adverted to this aspect. It has not been observed that the findings of the Inquiry Officer to the effect that there was no revenue loss or no mala fide intention of the petitioner and Shri R.K. Aggarwal were wrong. If this part of the findings is accepted, and the allegation of mala fide intention or connivance are not proved, what was the motive in shifting the said meter by the petitioner has not been touched upon by the Disciplinary Authority. Therefore, the findings of the Disciplinary Authority holding the charge as proved against the petitioner or holding that it is the petitioner who was responsible for shifting of the meter are perverse and based on no evidence. It is stated at the cost of repetition that it was not sufficient to prove that the meter had in fact, been shifted. What was necessary to be proved is that petitioner was responsible for the said shifting. On this aspect, Inquiry Officer has based is findings on definite material placed on record to hold that petitioner is not responsible and on the other hand there is no material on record on the basis of which Board could come to the conclusion that petitioner was responsible. In fact, joint inspection report is not relevant at all to establish this aspect of charge. Merely because Joint Inspection Report revealed that mater had been shifted, Board could not jump to the conclusion that it was the act of the petitioner. Unless this link was also established on the basis of some material on record and there being none, the finding is clearly erroneous, being perverse and based on no evidence and therefore, liable to be set aside.
13. In these circumstances this petition succeeds. Rule is made absolute. Impugned order dated 21.9.98 of the Disciplinary Authority as well as dated 6.5.99 of the Appellate Authority are hereby quashed. The petitioner should be restored his pension in full and any deduction made pursuant to the aforesaid penalty be paid to him within a period of two months from today. Petitioner should also start getting his pension for subsequent months in full without any reduction. No order as to costs.