Gyan Prakash v. Delhi Transco Ltd.

15. The petitioner further submits that the respondent thereafter imposed the penalty of compulsory retirement on the petitioner vide the impugned order dated 20.4.2005 without a proper speaking order. Inter alia, the petitioner submits that the conclusive part of the Enquiry Officer’s report clearly showed that the respondent acted in a highly MALHOTRA. illegal manner and that the act of the respondent amounted to an arbitrary exercise of powers.

16. The petitioner’s appeal against the said order filed on 17.5.2005 was dismissed on 20.1.2006 which the petitioner submits was dismissed by the same Board which had earlier conducted the inquiry and imposed the penalty of compulsory retirement on the petitioner. The petitioner submits further that the Inquiry Officer in his report had specifically stated that the petitioner had made efforts to replace the existing system during his tenure as Manager (System) but that due to technical limitations no steps were taken to provide the user level passwords at the user level to deter unauthorized officials to tamper the database in a fraudulent manner thereby giving room for manipulations and that the petitioner had also made efforts to replace the system in 1997 which could not be implemented due to Management/Administrative reasons and lack of funds.

17. The petitioner submits that the Enquiry Officer had specifically dealt with this aspect and had stated that the petitioner alone was not responsible for the security lapses and that the Enquiry Officer had further stated that the steps were also taken by the petitioner for revamping the security system. The petitioner further submits that the password and user level is meaningless if the apparatus is used by different persons.

18. Inter alia, the petitioner submits that the mala fides of the respondent against the petitioner are also proved from the fact that the previous service of the petitioner i.e., from 1973 to 1991 has not been counted despite the fact that the process for counting of the past MALHOTRA. service was initiated in 1997 by Pension Cell of DVB and that the same was kept pending indefinitely for the reasons best known to the respondent. The petitioner submits that the respondent has not paid a single penny to the petitioner for the last one year i.e., on the date of the filing of the petition but had deducted a sum of Rs.10,100/- against Income Tax/TDS.

19. Inter alia, the petitioner has submitted to the effect that he was a sincere officer as is evident from the steps taken by him which he submits were to the effect: “i) Immediately after taking over the charge of Manager (System) in January 1997. Studied the system and finding it unsuitable due to old hardware and software submitted a case for replacement of the system in May 1997 (much before reporting the case of fraud). ii) On noticing in-efficiency in bounced cheque systems immediately reported the cases to the senior for the thorough enquiry and moved the case for revamping the bounced cheque system.”

20. Inter alia, the petitioner submits that he has been accused of not providing user level password but in the sanction for prosecution it had been stated that user level passwordwas existing and had not been implemented by the petitioner in May 2001. The petitioner submits that it was a fault on the part of the other higher officials that even when they were aware of the frauds and modus operandi on the basis of investigation report of the petitioner and his repeated requests for providing additional security on these grounds they had already charge sheeted the earlier director and subsequently suspended him from services. The petitioner also submits that even during the course of MALHOTRA. enquiry the petitioner was not supplied with the copy of all the relevant documents.

21. The petitioner submits that the report in the present case is based on Ex.S, a document which was never placed on record which itself revealed that the findings of the enquiry officer were based on extraneous considerations or evidence and that the Enquiry Officer had foreclosed his mind against the petitioner and agitated that the petitioner should be punished and did not take into consideration the evidence of the petitioner in defence nor the points raised by him in the cross-examination of the prosecution witnesses.

22. It is also submitted by the petitioner that the findings of the Enquiry Officer are not in consonance with the documents on the record and that the Enquiry report is itself perverse, biased, arbitrary and without any basis and an order based on such a report is not sustainable.

23. The petitioner has submitted further that the cross-examination of one Mr.J.S. Yadav who had admitted that no major improvements were made in the system for the period from 1989 to 1996, were overlooked by the Enquiry Officer and a report and order based such cryptic evidence cannot be sustained. Inter alia the petitioner submits that the petitioner had not been placed in the system for the period 1996 to January, 1997, and that the Enquiry Officer failed to appreciate that for any lapses for 12 months prior to the petitioner having joined cannot be imputed to him and any enquiry held for such period and an order based on the enquiry report is not sustainable. MALHOTRA.

24. The petitioner further submitted that the Enquiry Officer had failed to appreciate that the statement of witnesses who categorically stated that he was not competent to comment on the security system cannot be relied upon and that the order based on relying on such an enquiry report where evidence itself speaks volumes is not sustainable. It is also stated by the petitioner that the authorities had failed to appreciate that the system which was in operation was old and would not be replaced with the orders of the petitioner and without the consent of the Finance Department and other Higher Officials and that the petitioner has been made a scape goat for the lapses in the system which were very much within the knowledge of the authorities and thus the order of compulsory retirement of the petitioner cannot be sustained.

25. The petitioner has also submitted that the authorities had erred in accepting the report by not appreciating that the staff of the Operations was personally responsible for the fraudulent manipulations as they were competent to nullify the fraudulent manipulations by adhering to the norms laid down for running the system. The petitioner submits that Enquiry Officer had passed the orders also mechanically without following the principles of natural justice as he had failed to appreciate that the petitioner had moved different notes regarding limitations in the system. It is also submitted by the petitioner that the Articles of Enquiry are inter related and two different findings on inter-related Articles makes the Enquiry Report contradictory and an order based on such contradiction is liable to be quashed. MALHOTRA.

26. The petitioner has further submitted that compulsory retirement is not sustainable in view of the verdict in Pritam Singh Vs. Union Of India; JT 2004 (7) SC 576 and State of Gujarat V. Umedbhai M.Patel; JT 2001 (3) SC 223. Inter alia the petitioner submits that the authorities had failed to consider that the previous records of the petitioner were unblemished and that he was an expert in his field of work.

27. The petitioner submits that even the Enquiry Officer had appreciated that the petitioner had made efforts to replace the existing system in 1997 and had observed that the same could not be implemented due to management decisions and thus a report which was in favour of the petitioner could not have been made the basis to pass an order of compulsory retirement.

28. Through the reply to CM No. 5255-56/2009 dated 31.7.2009 of the Deputy Manager (HR)-G of the respondent annexed the Officer Order dated 8.10.2008 of the Deputy Manager (Admin-G) of the respondent indicating that approval was accorded for counting of past services rendered by the petitioner, Employment No. 32780, Ex Manager (IT) with Ministry of Environment & Forest, Government of India for the period w.e.f. 31.8.1973 to 29.9.1991 for the purpose of pensionary benefits only and it was also so averred through the reply affidavit filed by the respondent to the effect that a sum of Rs.12,07,451/- had been paid to the petitioner for his past service which had also since been acknowledged by the petitioner vide a reply dated 9.7.2009. The respondent has further submitted that in view of the imposition of penalty of compulsory retirement as per the records MALHOTRA. the petitioner thus did not qualify for any retiral benefits except for the pensionary benefits as well as the death-cum-retirement gratuity. It was however submitted by the respondent, that as regards the services of the petitioner with the respondent the services rendered by the petitioner did not qualify him for any pensionary benefits. The respondent has further submitted that the criminal proceedings and disciplinary proceedings are two different proceedings though the petitioner was acquitted in the criminal case but his negligence and mala fide intention and departmental misconduct was proved during the departmental proceedings and he was held guilty of the charge. The respondent has further submitted that taking a lenient view of the matter the punishment of compulsory retirement was imposed. The respondent has also submitted that for the payment of an amount of Rs.7,21,765/- lying with the GPF Section, the petitioner had been intimated vide a letter dated 9.3.2006 and 12.4.2006 for release of the same after completion of formalities but it was the petitioner who had not responded.

29. Through the written synopsis it has been submitted by the respondent that the aspect of counting of the past services rendered in the Ministry of Defence, Office of Registrar General Ministry of Home, Foreign Research Institute, Dehradun, Forest Survey of India, Dehradun, has been accounted for in the service and on account of compulsory retirement the petitioner has been paid pensionary benefits by counting that service in the service rendered with DTL and the only issue that remains is qua the aspect of punishment of compulsory retirement imposed on the petitioner. MALHOTRA.

30. Inter alia, the respondent has submitted through the written synopsis that the petitioner had joined the erstwhile DVB in October, 1991 and was posted as Manager (Operation) and worked on that post till 1996. From 1996 till 1998 he worked in the EDP Department of erstwhile DVB and during this period with mala fide intentions and ulterior motives and in grave dereliction of duty, he did not take proper care and did not take effective security measures to limit the access to DATA Base System, with the result the Data fed in the computer came to be manipulated and fake entries came to be posted in the manner that there was no way to identify the guilty officials who manipulated the Data and fed manipulated entries in the computers.

31. The respondent has further submitted that whilst the petitioner was working in the EDP Section he functioned in a highly irresponsible manner and in a manner highly prejudicial to the interest of the DVB whose overall interest he was bound to protect. The respondent has further submitted that the statement of conduct stipulates that vigilance investigation had revealed that in one of the cases, false payment of Rs.1,02,374/- against K. No. CL413-137127- 8/IP/D-014 was posted by the staff of computer department at Shakti Sadan on 17.11.1997 at the time of billing/printing of ledger for the district and in his report the petitioner confirmed that fake payment had indeed been incorporated before printing of the ledger and the bills and the Data base was found tampered in November, 1997 and the modus operandi was also indicated. The respondent has submitted that in addition to the fake payments, fake entries were also found to MALHOTRA. have been entered in other K number files and with a view to delete the arrears for instance against K.No.SN-401-134901 l-S-007 a bill for Rs.9,82,187.99 was corrected and a payment of Rs.2,30,000/- was deposited by the consumer. The respondent has further submitted that a correction of Rs.1,24,563/- was also sent to the computer centre for crediting the account of the consumer and a fake entry to the tune of Rs.2,71,511/- under bill Correction Code 34 was also fed to K number file by the Computer Centre Staff at Shakti Sadan without any reference as a result the billing arrears against the above K number were reduced by Rs.2,71,511/-.

32. The respondent submits that this novel method adopted and various irregularities were recorded in the imputation of misconduct and a detailed enquiry was conducted and the Enquiry Officer submitted his findings on 18.11.2003 and it was held that Article I of the Charge that the charged officer did not take proper and effective security measures to limit to access to the Data base system to the extent that password was not provided at the user level was proved though charge No.II was held to have not been proved. It is stated by the respondent further that the CVC in its report categorically stated that on the proved charge i.e. that the petitioner did not take security measures to limit to access to Data base System to the extent that a password was not provided at the user level is quite serious and therefore advised that a major penalty be imposed and the copy of the enquiry report with CVC report was submitted to the petitioner who submitted his reply and the Disciplinary Authority vide its order dated 20.4.2005 after giving personal hearing to the petitioner, imposed the MALHOTRA. punishment of compulsory retirement and it was noticed that the petitioner had pleaded that there was no need of password at user level and that the existing time to its full capacity it is essential that the official at each level should perform their duties as per the norms of the system. The respondent has thus submitted that the petitioner had tried to shift the blame on to the users of the system instead of accepting that he could not devise measures so as to stop the cases of fraudulent manipulation of the system. Inter alia, the respondent submits that in view of the gravity of the charge and lapses which resulted into huge financial loss to the organization, the punishment of compulsory retirement was imposed.

33. The respondent has further submitted that there is evidence on the record that since the system was not properly protected, the resultant misuse took place and large financial loss was made to the agencies and since this charge was proved the punishment of compulsory retirement was rightly imposed. The respondent has submitted that in view of the factum that the petitioner was given compulsory retirement he has got all his pensionary benefits including other service dues which are admissible to an individual.

34. Inter alia, the respondent has submitted through its written synopsis that during the pendency of the petition, another charge memo was served on the petitioner on 18th February 2005 with respect to his functioning as Manager (EDP) in EDP Centre, Shakti Sadan, New Delhi, during the year 1999-2000, that he with malafide intentions, instructed his subordinates to open a fresh due register for the billing month of May 1999 by copying the relevant control of MALHOTRA. status on the first page from the previous register and for re-processing of the Data of District Civil Lines for the billing cycle 9th May 1999 to cover up the fraud in which bogus Journal Edits (JE) were fed in the accounts of various consumers of District Civil Lines and District Shakti Nagar in the month of May 1999and January 2000; 52 pages of previous register were found torn in the EDP department to remove the manipulation in the Data. The respondent has submitted that the Inquiry Officer submitted his finding not proving the charge even when there was overwhelming evidence against the petitioner and that thus the Disciplinary Authority submitted a disagreement note along with the CVC report and finding of the Inquiry officer to the petitioner, which had recommended- suitable major punishment. Another order of imposing penalty of compulsory retirement was passed on 23rd April 2008. The respondent has submitted that the petitioner had accepted this punishment and has not challenged the same in the Court of Law or by filing a departmental appeal before the Competent Authority.

35. Inter alia, the respondent submits that since the charge of the first inquiry was itself proved, the punishment of compulsory retirement which gives all benefits to the petitioner including pension, gratuity etc. was commensurate with his misconduct.

36. On behalf of the petitioner reliance has been placed on the verdicts of the Hon’ble Supreme Court in Allahabad Bank And Others V. Krishna Narayan Tewari; (2017) 2 SCC 308 and the verdict of this Court in K.L.Berwa V. DPCL and Ors.; in W.P.(C) No. MALHOTRA. 1863/1997 to contend to the effect that the prayers made in the petition be allowed.

37. On a consideration of the entire available record, the Court is of the considered view that taking into account the factum that the petitioner who was posted as the Manager (EDP) whilst working in the EDP department of the Delhi Vidyut Board during the year 1996, in grave dereliction of duty was found to have not taken proper and effective security measures to limit the access to the data base system with the result that the data filled in the computer came to be manipulated and fake entries came to be posted in a manner that there was no way to identify the guilty officials who manipulated the data and fed fake entries in the computer which resulted into financial losses to the Delhi Vidyut Board, coupled with the factum that the petitioner had not refuted that he had not got incorporated a password at the user level, as brought forth through his reply dated 28.4.2004 to the Board of Directors, that there was no need of any password at the user level and that it was for the officials at each level to perform their duties as per the norms of the system, it is apparent that there had been a dereliction in duty on the part of the petitioner and thus the decision of the Board of Directors of the Delhi Transco Limited in imposing the major penalty of compulsory retirement on the petitioner cannot be faulted. The reliance placed by the petitioner on the verdicts thus in the facts and circumstances of the cases relied upon on behalf of the petitioner in Allahabad Bank And Others V. Krishna Narayan Tewari and K.L.Berwa V. DPCL and Ors; is misplaced as the facts thereof are wholly distinguishable from the facts of the instant case. MALHOTRA.

38. As has been submitted by the respondent, that the petitioner has already been paid his pensionary benefits by counting services rendered by him in the Delhi Transco Limited, in view thereof, the prayer made in Clause (d) of the petition already stands disposed of.

39. As regards the prayers made by the petitioner seeking the quashing of the order dated 20.4.2005 of compulsory retirement and seeking back his restoration into service, the said prayers cannot be granted.

40. As regards the prayer made vide clause (c) of the petition, the memo dated 18.02.2005 was challenged by the petitioner and qua the memo dated 18.02.2005 and the order of imposition of penalty of compulsory retirement was passed on 23.4.2008 as submitted by the respondent, which was not challenged by the petitioner neither in the Court of law nor by filing a departmental appeal before the Competent Authority and thus in view of the dismissal of the prayers made in Clause (a) and (b) of the petition herein above, the prayer made vide Clause (c) by the petitioner is also rendered infructuous.

41. The petition is thus declined. ANU MALHOTRA, J. NOVEMBER 11, 2022 MALHOTRA.