* THE HIGH COURT OF DELHI AT NEW DELHI
+ W. P. (C) 3850 of 1991
Reserved on: 3.10.2011
Pronounced on : 25.11.2011
Shri Azad Singh ... Petitioner
Through: Mr. Anuj Aggarwal, Advocate.
Versus
Delhi Tourism and Transportation Development Corporation
Limited through its Chairman
...... Respondent
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
M.L. MEHTA, J.
1. This writ petition under Article 226 of the Constitution of India
has been filed by the petitioner against the order dated 12th January,
1990 of the respondent herein, whereby the appeal of the petitioner
against the Order of Removal from service dated 26.6.1990 was
rejected.
2. The petitioner has been in the employment of the respondent
since 03rd March, 1982 as a Driver. After completion of probationary
W.P.(C) 3850/1991 Page 1 of 7
period satisfactorily, he was employed in permanent capacity of the
respondent. On 11th December, 1987, he was charged for misconduct.
The statement of Articles of Charge in brief is as under:
(a) That on 27th November, 1987, the petitioner along with an
outsider entered in the ‘N’ Block office of the respondent with a bottle
of whisky and he started drinking there and misbehaved with the staff
posted at the ‘N’ Block office and thus, the petitioner indulged into an
act unbecoming of a Government servant.
(b) At the aforesaid time and place, the outsider asked one of the
persons on cash duty to fetch a glass of water. On refusing to do so,
both the petitioner and his outsider friend used unparliamentary
language. They also asked one Mahesh Kumar Arora, Casher to bring
the glass of water for them and on his refusing, insulted him.
3. The petitioner submitted his reply dated 24 th December, 1987 to
the aforesaid charges whereby he categorically denied the allegations
and alleged to have been falsely implicated because of his trade union
activities. It is alleged that the petitioner requested for being allowed
to be assisted by an Advocate during the enquiry proceedings and also
to supply the copies of the documents demanded by him. However, his
request was declined by the respondent. On 26th June, 1989, he
received the order from the department whereby he was removed from
the services with immediate effect. He preferred an appeal against the
said order to the Chairman of the respondent and since he did not
receive any reply, he made representation dated 17th September, 1991
to the respondent requesting his reinstatement and full back wages and
continuance of service and that too also remained unresponded.
W.P.(C) 3850/1991 Page 2 of 7
4. The impugned order is alleged to be illegal, arbitrary,
discriminatory and violative of principle of natural justice. The main
grounds which have been taken in assailing the orders are (1) that he
was not permitted to be represented by an Advocate; (2) that the
Presenting Officer as well as the Enquiry Officer cross examined the
witnesses in a manner in order to prove the case against the petitioner;
(3) he was not permitted to cross examine them nor he was allowed to
adduce any evidence in support of his case; (4) the enquiry was bad
inasmuch as the Enquiry Officer did not subject the petitioner to liquor
test nor the petitioner could be said to be the under influence of liquor
on the relevant day and; (5) the extreme punishment of removal from
his service was harsh and disproportionate to the gravity of the
misconduct and it amounts to victimization.
5. The learned counsel appearing for the petitioner centered his
arguments on the point that there was no cogent and elaborate evidence
against the petitioner to conclusively hold him guilty of misconduct in
as much as out of the four witnesses examined by the respondent
department, three had not supported the version in support of the
charges and the fourth namely Chander Prakash has falsely implicated
the petitioner on account of personal enmity. Learned counsel has
submitted that the petitioner was not afforded sufficient opportunity to
cross examine those witnesses and was not allowed to be assisted by
the Advocate. He took me through the testimony of the four star
witnesses examined by the department in support of the charge sheet.
Though in the present proceedings, that was not required to be seen,
but keeping in view the fact that the enquiry has also been assailed on
the ground of violation of principle of natural justice, I have gone
W.P.(C) 3850/1991 Page 3 of 7
through the statements of those witnesses. From the testimony of those
witnesses as adduced by the department before the Enquiry Officer, it
is seen that three of those witnesses including Mahesh Kumar Arora
are very shaky and have given changing versions. With regard to the
testimony of Chander Prakash, it is noticed that he stated that the
petitioner along with an outsider came to the office and asked for water
from him and Mahesh Arora, who was also there. In his cross
examination conducted by the Presenting Officer, he stated that he was
busy in work and was not aware as to who had taken out the bottle.
Then in contradiction to his previous stand, he has stated that the friend
of the petitioner asked him to bring water. It was noted that he was
also shaky in evidence because at one place, he stated that he was busy
in cash work and did not give any attention nor had he seen them and
so cannot say as to whether they came together. In short cross
examination which was conducted on behalf of the petitioner, he stated
that everything had happened with the friend of the petitioner.
6. Admittedly, the petitioner was not assisted by any lawyer and
the type of cross examination as was conducted by the representative
of the petitioner as noted above would clearly demonstrate that it was
illusory and he was not properly represented by a duly competent and
qualified person.
7. In fact, as per the allegations, it was Mahesh Arora who was
present there and was asked to bring water. The cross examination of
this witness would demonstrate that he did not see any bottle of liquor
in the hands of the petitioner and his friend nor did he see them
drinking liquor in the office. He also stated that the petitioner did not
abuse anyone in his presence and he also did not know when the
W.P.(C) 3850/1991 Page 4 of 7
petitioner entered the office. In fact the testimony of the other
witnesses examined by the department was equally shaky and
unreliable and no credence could be placed upon their version.
8. From the enquiry proceedings, it is clearly demonstrated that no
effective opportunity of hearing was given to the petitioner and in fact,
the cross examination which was allowed, was conducted only in an
illusory and ineffective manner meaning thereby that the petitioner
remained unrepresented in the enquiry proceedings. In view of this, it
can be seen that there was no positive and reliable evidence supporting
the charge leveled against the petitioner satisfactorily.
9. Since nothing could be seen from the record if any opportunity
to lead evidence was afforded to the petitioner by the Enquiry Officer,
it was pointed to the learned counsel for the respondent in the court
proceedings on 06th December, 2006. To this, he submitted that the
petitioner did not ask for any opportunity to lead evidence and
therefore, he could not get any chance to produce his evidence. With
this kind of state of affairs and the submissions coming from the
respondent, there remains no doubt to conclude that no effective
opportunity of hearing in the proceedings to lead defence evidence was
afforded by the Enquiry Officer to the petitioner. The plea of the
respondent that no request was made by the petitioner for leading any
evidence in defence was not only untenable but also contrary to the
principles of natural justice. In the case titled State of Bombay Vs.
Gajanan Mahadev Badley, AIR 1954 Bom 351, similar question
arose wherein it was held that if the court believes that reasonable
opportunity was not given to the official in the enquiry, the impugned
order must be set aside. In that case, an attempt was made to argue that
W.P.(C) 3850/1991 Page 5 of 7
it is necessary for the servant to make a grievance that he has been
deprived of a certain opportunity and it is only if he makes such a
grievance and that grievance has not been removed, it would be open
to him to complain in court that reasonable opportunity was not given
to him. The court rightly repelled that argument and I am in entire
agreement with that. If a government servant comes to the court and
complains that his dismissal was wrongful and that reasonable
opportunity was not given to him as required by the statute, it is for the
department to satisfy the court that in fact, reasonable opportunity was
given to him. The providing of reasonable opportunity to the servant
does not depend upon the servant asking for it. It was a statutory and
recognized protection which was to be afforded to the petitioner by the
Enquiry Officer in discharge of his obligation despite the fact whether
the protection is claimed or not claimed by the servant.
10. In view of my above finding that there was no cogent and
sufficient evidence against the petitioner and that in any case, he was
neither afforded effective opportunity of cross examination nor any
opportunity of leading his evidence, the petitioner could be said to
have been prejudiced on account of violation of principle of natural
justice. Consequently, the impugned order dated 26th June, 1990 is
liable to be quashed and it is ordered accordingly.
11. The question for consideration would be as to what could be the
relief that can be given to the petitioner in view of the fact that he has
already attained the age of superannuation. The petitioner was in the
employment of the respondent for about seven years and in the given
facts and circumstances, no order of reinstatement can be passed on
account of his having already attained the age of superannuation.
W.P.(C) 3850/1991 Page 6 of 7
However, he would be entitled to back wages from the date of removal
from service i.e. 26th June, 1990 till the age of superannuation and
thereafter, all the consequential relief of pension etc. The respondent is
directed to give effect to this order within eight weeks.
12. The petition stands disposed of.
M.L. MEHTA, J.
NOVEMBER 25, 2011
akb
W.P.(C) 3850/1991 Page 7 of 7
