M.C. Aggrawal vs Indian Institute of Technology and Others

Indermeet Kaur, J.—plaintiff M.C. Aggarwal joined as a L.D.C. with the Indian Institute of Technology (Defendant corporation) on 30.12.1960. He was promoted as a U.D.C. on 6.9.1963. He was thereafter promoted as Cashier and confirmed to the said post with effect from 12.10.1977. In August, 1980 two payments of Rs. 3470.90 and Rs. 3935.65 were purported to have been made against two vouchers i.e W.15 & W-25; the said two payment vouchers were found missing; on an anonymous complaint preliminary enquiry was conducted against the plaintiff. He was prima facie found guilty. Charge-sheet was issued to the plaintiff on 25.10.1980 qua the misappropriation of the aforesaid funds. The said funds had purportedly been disbursed for medical claim for purchase of certain medicines from the market although the said medicines were available in the IIT hospital. Enquiry was conducted against the plaintiff; he was held guilty by order dated 12.3.1982. The following penalties were imposed: (i) reduction in rank, (ii) bar to promotion for the next seven years and (iii) recovery of the lost amount was imposed upon the plaintiff. The order of the Disciplinary Authority was reaffirmed in appeal.

plaintiff has filed the present suit seeking a declaration that the order of the Disciplinary Authority dated 12.3.1982 as also of the Appellate body dated 10.11.1982 be declared null and void.

Before the trial judge following four issues were framed on 23.7.1987 which inter alia read as under:

Whether the impugned orders dated 12.3.1982, and 10.11.1982, passed against the plaintiff are erroneous and void abinitio for the reasons mentioned in the plaint? OPP

Whether the plaintiff is entitled to the Declaration prayed for? OPP

Whether the plaintiff is entitled to the consequential relief prayed for? OPP

Relief.

Thereafter an additional issue was framed on 27.3.1990, which read as under:

Whether the jurisdiction of this Court is barred by the principles of resjudicata if so its effect?

On the basis of oral and documentary evidence adduced before the court, suit of the plaintiff was decreed.

The impugned judgment dated 19.5.1993 had reversed the findings of the trial judge; suit of the plaintiff stood dismissed.

This is a second appeal. It was admitted on 17.7.1997. On 09.11.2010, the following substantial question of law has been formulated:

Whether the findings in the impugned dated 19.5.1993 are perverse? If so, its effect ?

It is submitted that the findings of the Enquiry Officer are on facts perverse. Admittedly the complainant was not produced before the Enquiry Officer; the complaint also did not see the light of the day. The order sheet was not maintained by the Enquiry Officer which was a procedural irregularity. For this proposition reliance has been placed upon AIR 1969 Gau 103 Mahadeo Jalan v. Commissioner of Wealth-tax, Assam, Nagaland, Manipur & Tripura. Written submissions furnished by the department had not been given to the delinquent in the absence of which he could not effectively counter the submissions of the department. For this proposition reliance has been placed upon 1967 SLR 759 Tirlok Nath v. Union of India and Ors.; reliance has also been placed upon 1973 (1) SLR 321 Collector of Customs v. Mohd. Habibul (Calcutta). The two vouchers in this case W-15 and W-25 were of an amount exceeding Rs. 2000/-; the Government of India Instructions required that in such cases where the amount is more than Rs. 2000/- a criminal complaint should be lodged which had not been adhered to. The Petitioner had wanted to examine his witnesses but only four were permitted to be examined; these were clear violations of the principles of natural justice. For this submission reliance has been placed upon 1991 (1) SLR 667 N.K. Varadarajan v. Sr. Deputy Director General, AMSE Wing, Geological Survey of India and Anr. which is a judgment of the Bangalore bench of the Central Administrative Tribunal. The evidence led before the Enquiry Officer had established that the voucher W-15 and W-25 related to over time account and were not of the works section; in view thereof the findings in the impugned judgment that these were bogus/forged vouchers is not borne out from the evidence. All these submission cumulatively establish that the findings of the Enquiry Officer are perverse and thus liable to be set aside. It is submitted that both the orders passed by the Disciplinary Authority dated 12.3.1982 and of the Appellate body dated 10.11.1982 were non-speaking orders. The representation of the Appellant dated 31.12.1981 has not in any manner been adverted to. The Appellant had been reduced in rank from the post of Head Cashier to UDC without giving him an opportunity of being heard. He had further been debarred for promotion for the next seven years. The show cause notice dated 26.11.1981 had not proposed the penalty of a bar of promotion for the next seven years. No hearing has been given to the Appellant before imposing such major penalties upon the Appellant which had large civil consequences. This was a violation of Rule 13 of the Indian Institute of Technology Act, 1961 (hereinafter referred to as ''the IIT Act''). These orders are liable to be set aside.

Reliance has been placed upon Roop Singh Negi Vs. Punjab National Bank and Others, . It is submitted that it is the duty of the Disciplinary Authority to give reasons for imposing the punishment and confirming the order of the Enquiry Officer; the report of an enquiry based on a mere ipse dixit as also surmises and conjectures cannot be sustained. Reliance has also been placed upon Director (Marketing) Indian Oil Corpn. Ltd. and Another Vs. Santosh Kumar, to support the same submission. It is submitted that in Writ Petition No. 4711 of 2001 decided on 09.9.2009 a Division Bench of this Court has reiterated this legal position. An order of the Disciplinary Authority although not required to given detailed reasons must given at least brief reasons in the absence of which such an order is liable to be set aside.

Arguments have been countered by the learned Counsel for the Respondent. It is submitted that this Court is sitting in second appeal and its powers of interference in finding of facts are curtailed; only when a substantial question of law arises can this Court interfere and on no other ground. For this proposition reliance has been placed upon a judgment of the Apex Court reported in Govindaraju Vs. Mariamman, .

This Court is the second appellate court. It is only when a substantial question of law arises, is interference called for. The Appellant was charge sheeted before the Enquiry Officer. Allegations were that the payment against two vouchers W-15 and W-25 had been disbursed by the Appellant in his capacity as a Head Cashier. These vouchers were non-existent as the said vouchers pertained to the Engineering Department and had necessarily to be routed through the Engineering Department, then through the Audit Section and lastly through the Cash Branch for payment. The engineering officers had deposed before the Enquiry Officer that the said vouchers had not been prepared by their department; so also was the deposition of the officers who had appeared from the Audit Section; they had deposed that no such vouchers were checked by them and sent to the cash branch for payment. These vouchers related to overtime bills. It was in this background, when the originators of the vouchers had denied the execution of the same, it was held that the charge of misplacement of the vouchers had stood proved. The Enquiry Officer had not gone into the contention as to who was responsible for the forgery of the said vouchers.

Record reveals that a preliminary fact finding enquiry report had been submitted before the enquiry had been initiated against the delinquent. This was on the basis of an anonymous complaint; that being the position and the complainant seeking protection from disclosure of his name; also there being no written complaint; was the reason why the said complaint had not been proved before the Enquiry Officer. The preliminary enquiry categorically records this finding. Preliminary findings were that the work section had certified that no work charge bill for the amount of Rs. 3470.90 and Rs. 3935.65 had been sent by them to the audit/accounts in July 1980; there was no such record with them. It had been established that these two bills had not been prepared by the Work Section nor had they sent them to the Audit Section; the Audit Section had also denied their veracity; in these circumstances, how they were presented for payment in the Cash Section had become unexplainable.

Enquiry officer on the basis of the oral and documentary evidence adduced by the department, and countered by the delinquent (who had produced four witnesses in his defence) had concluded that these two bills/vouchers W-15 and W-25 had originated in the cash section itself. The delinquent was given a fair opportunity to cross-examine all the witnesses of the department. The written submissions given by the department which was after the conclusion of the oral arguments was only to assist the Enquiry Officer; even presuming that a copy of the same had not been handed over to the delinquent he has failed to show what bias he had suffered as it is clear that the oral arguments stood concluded before the Enquiry Officer till that stage. The judgment of Tirlok Nath (supra) is inapplicable as in this case admittedly in spite of requests by the delinquent relevant documents had not been furnished to him. The judgment of Collector of Customs (supra) is also inapplicable as it was a cumulative effect of various factors which had been taken into account to lead the Court to hold that there has been a violation of principles of natural justice. In this case as already aforenoted the written submissions had only clarified the oral submissions which had already stood concluded in the presence of the delinquent. The impugned judgment had appreciated that it was for the Department to exercise its discretion in reporting the matter to the police; had it been reported and an FIR has been registered, the delinquent would most likely have been incarcerated; in those circumstances he could probably have set up a defence that he did not get appropriate assistance but not in the present scenario. There was no record to show that the order sheet was not maintained by the enquiry officer. The delinquent was provided the defence assistance of G.S. Mishra; crossexamination of all the witnesses of the department was duly effected. Delinquent was permitted to inspect the cash books for the last two years; his contention of inspecting the record prior thereto was rejected as a long list of entries had been given by him without names either of the payee or of the department. There is no merit in this argument. The submission of the learned Counsel for the Appellant that the tape recorded conversation, the transcript of which had been proved as Ex. PW-1/1 was also illegally not considered is again an argument without merit. This tape recorded conversation was purportedly a conversation between the delinquent M.C. Aggarwal and a third person which was recorded after the enquiry proceedings had culminated; what was the value of such a piece of evidence which had also not been proved as per the rules of evidence was not answered by the learned Counsel for the Appellant; voice sample of the concerned parties was not taken; the identity of the speaker was not established; even otherwise this conversation having been recorded after the enquiry was over was of no value. Learned Counsel for the Appellant has in fact failed to show that the delinquent has suffered any bias or prejudice before the Enquiry Officer; the so called irregularities pointed out by the learned Counsel for the Appellant do not make out a case of perversity; Court is not inclined to accept this contention that there has been any violation of rules of natural justice.

Penalty No. 3 was in the proposal which had been issued to the delinquent in the show cause notice dated 26.11.1981. The reduction in rank and bar of promotion for the next seven years was admittedly not mentioned in the show cause notice, however, the submission of the Appellant that this has caused a severe prejudice to him does not merit any consideration. The proposed punishment was dismissal from service which would operate as disqualification for future employment in the institute. This proposal was much more severe than the actual punishment which was inflicted upon the delinquent which was reduction in rank from the post of Head Cashier to UDC and a bar for the promotion of the next seven years. This punishment being less severe the question of the sufferance of any bias or prejudice did not arise.

However on the second count the Appellant must succeed. The report of the Enquiry Officer had been confirmed by the Disciplinary Authority who had awarded the punishment to the delinquent. This was vide order dated 12.3.1982. The Appellate Body confirmed this in its order dated 10.11.1982.

The order of the Disciplinary Authority dated 12.3.1982 reads as under:

IITD/Estt-II/82/2086 Dated 12.3.1982

OFFICE ORDER

Ref.IITD/Estt-II/81/9249 dated 26.11.81

On consideration of his representation dated 31.12.81, the Director has ordered that the following penalties be imposed on Shri M.C. Agarwala, Cashier:

He be reduced to the post of UDC (330-560) and his pay be fixed at Rs. 560/- i.e. the maximum of the scale.

He be debarred for promotion for the next seven years.

Recovery of pecuniary loss of Rs. 7406.55 caused to the Institute in equal measures from S/Sh. M.C. Agarwala and V.K. Singhal and recovery of Rs. 93.75 from Shri Agarwala, if not already deposited be effected. The amount of recovery shall be limited to one third of basic pay (i.e. excluding dearness pay or any other allowances) and should not be spread over a period of more than three years.

Pursuant to the above orders, the above penalties are finally posed on Sh. M.C. Agarwala with immediate effect.

(By order and in the name of the Director).

This order is clearly a non speaking order. It has merely imposed punishments upon the delinquent without in any manner having adverted or applied its minds to the findings of the Enquiry Officer. A mere one line mention that the representation of the delinquent dated 31.12.1981 has been considered with nothing more to it clearly establishes that the Disciplinary Authority had not examined the contents or the reasoning of the Enquiry Officer. Even if the Disciplinary Authority was not required to give a detailed reasoning some brief reasoning should have been adverted to.

Thereafter an appeal had been preferred before the Board of Governors who had affirmed the findings of the Disciplinary Authority. The order of the Board of Governors is reproduced herein below ; it is dated 30.11.1982 and is a part of the minutes of the 71th meeting of the Board of Governors of the IIT. The relevant extract reads as follows:

Item No. 13: To consider the appeal of Sh. M.C. Aggarwal, Cashier, against the imposition of the penalty by the Director.

The Board rejected the appeal and confirmed the penalty imposed by the Director on Shri M.C. Aggarwal, Cashier vide officer order No. IITD/E-II/82/2086 dated 12.3.82. RESOLUTION No. BG/81/82:RECOLVED THAT the appeal of Sh. M.C. Aggarwal, Cashier be rejected and that the penalty imposed by the Director on him vide officer Order No. IITD/E-II/82/2086 dated 12.3.82, be confirmed.

This resolution of the Board of Governors that the appeal of M.C. Aggarwal is rejected and the penalty imposed upon him vide the order dated 12.3.1982 had been confirmed is again a mechanical reproduction of a submission of fact without the Board of Governors having gone into correctness or incorrectness of the penalty imposed by the Disciplinary Authority while confirming the order of the Enquiry Officer. The detailed representation of the delinquent dated 31.12.1981 was not considered by either the Disciplinary Authority or by the Appellate Board; even presuming that it was considered it should have been reflected in the said orders; there was a clear non-application of mind by both the authorities. The judgments relied upon by the learned Counsel for the Appellant in this context come to his aid. The ratio of the aforestated judgments clearly casts a responsibility on the Disciplinary Authority to give reasons for its adverse order and secondly also the entitlement of the delinquent official to know the reasons to enable him to effectively challenge the adverse order in appeal, which in turn can apply its mind to the issues focused and brought to the front rather than have to search for them. The recording of reasons is beneficial to both sides. There is no doubt that the reasons need not be elaborate or detailed but they nevertheless must exist in order that it apparent that there has been an application of mind by the concerned authority. Interest of justice and fair play makes a demand for this.

In view of the orders passed by the Disciplinary Authority and thereafter by the Appellate Authority i.e. the Board of Governors there is little option left with this Court but to set aside the said orders in order that the matter may be considered afresh by passing a speaking and reasoned order. Accordingly, the matter is remitted back to the Board of Governors to pass a speaking and reasoned order. Since the case is very old, the department is granted three months time to comply with the aforestated directions. Appeal is allowed and disposed of in the above terms.