H.R. Choudhury v. Power Grid Corporation of India Ltd.

2012.

9. On 20th February 2012, the Petitioner filed a Review Petition of the order dated 9th January 2012 passed by the Appellate Authority before the Board of Directors. On 20th May 2013, the Petitioner received the letter dated 20th December 2012 of the Chief Vigilance Officer on behalf of the Board of Directors, conveying that the review could not be considered as there is no authority superior to the Board of Director in hierarchy.

10. Thus, aggrieved by the concurrent findings of the Disciplinary Authority as well as the Appellate Authority, the Petitioner has approached this Court by way of the instant writ petition.

11. Mr. Sunil Dalal, learned senior counsel appearing on behalf of the Petitioner has submitted that the inquiry report on which the decision of the Disciplinary Authority and the Appellate Authority is based, is perverse being contrary to the evidence on record. It is further submitted that the Inquiry Authority has erred in law by discarding the documentary evidence and giving preference to the oral evidence.

12. Learned senior counsel further submitted that the inquiry report is based on no evidence on record and is against the settled principles of law. For instance; “(a) the report says that Petitioner collected the quotations at page 14 of the report, (b) the quotation was collected by G.M.Wani at the behest of the Petitioner at page 16 of the report,

(c) the petitioner conducted market survey at page 14 of the report,

(d) four parties were inducted for LTE as per direction of the

Petitioner at page 19 of the report, (e) the incoming material before the award was within the knowledge of the Petitioner and was carried out as per his direction at page 24 of the report, (f) Demanding and accepting illegal gratification in cash and kind etc.”

13. It is further submitted that the Inquiry Authority has placed reliance on the uncorroborated evidence of the Investigating Officer which cannot be sustained in the eyes of law as the testimony of Investigating Officer is required to be proved by Independent witnesses. Further, it is submitted that the Inquiry Authority failed to appreciate that the advice to the Chief Manager to prepare BOQ & estimate for the subject work was given in view of advice of the then Executive Director of the region and because the DSR 2007 was not available hence the estimate was to be prepared after collecting the budgetary offer.

14. Further, it is submitted that as per record the estimate for the work was prepared by Sh. G.K. Sharma, then Sr. Engineer (civil) posted at Wagoora Sub Station and submitted to the Petitioner for approval after due recommendation from the then Chief Manager and hence, the contract was awarded on the merits of the quotations and recommendations of the Tender Committee.

15. It is also submitted that the Disciplinary Authority as well as the Inquiry Authority has failed to appreciate the inconsistency in the chargesheet. At one place charge against the Petitioner is with respect to tendering favour to the contractor in getting the contract and on the other hand on the basis of allegation of the same contractor, the Petitioner has been charged for taking bribe from the contractor.

16. Further, it is contended that the Inquiry Authority failed to appreciate that the Petitioner being the in-charge of the Sub-Station was charged with responsibilities of various execution works, which were going on in remote areas. It was not possible nor is it expected from the Petitioner being the in-charge of the Sub-Station to keep watch on the every incoming and out-going materials and the material stacked inside. For such work expert security staffs (CISF) are there and other competent authorities are there.

17. It is also submitted that the Inquiry Authority failed to appreciate that no document such as written instructions or note was ever placed to substantiate that the cement tiles were allowed by the Petitioner to stack inside the Sub-Station premises prior to issuance of the contract. The Inquiry Authority failed to appreciate that responsibility to check the specifications and the quality of the material was on the then Sr. Engineer (civil), Deputy Manager, and Chief Manager posted at the Sub-Station and not on the Petitioner as per contract and the rules.

18. Learned senior counsel appearing on behalf of the Petitioner also submitted that the Inquiry Authority failed to appreciate that as per the doctrine of distribution of work and responsibilities, Petitioner would mostly rely on the aid, advice and recommendations of subordinate senior officials like Manager, Chief Manager and Finance officials posted there. The Inquiry Authority failed to appreciate that the complaint was made by the contractor as the Petitioner had stopped release of final payment to contractor as he had failed to produce the Manufacturer's Test Certificate, required as per contract.

19. Learned senior counsel appearing on behalf of the Petitioner has made a vehement plea that the Inquiry Authority and the Disciplinary Authority before issuing charge-sheet failed to appreciate that if Petitioner was giving favour to the contractor then why would he not have allowed release of full payment, which was within his competency. It is further submitted that the Inquiry Authority failed to appreciate that DW-1, the Defence Witness, an employee of the Respondent, specifically deposed that the signature on left hand bottom side of quotation is of Shri G.K.Sharma, Sr. Engineer (civil), who collected the quotation. The deposition also reveals that the Petitioner had not accompanied them during collection of quotation.

20. Learned senior counsel appearing on behalf of the Petitioner submitted that the Inquiry Authority failed to appreciate that the note dated 30th August 2007, EX. MD-1, and its enclosed documents clearly shows that the note was duly routed through Deputy Manager and the Chief Manager & they have signed on the note.

21. It is also submitted that the Inquiry Authority failed to appreciate that it is very easy to write anything in the personal diary by a person. Reliance on the unaudited contractor's personal diary to prove the allegation of bribe levelled against the Petitioner by the contractor himself is not as per law. Such an allegation cannot be proved like this without any thing further.

22. Lastly, it is vehemently submitted that the instant writ petition is entitled to be allowed and the order dated 26th April 2011 passed by the Disciplinary Authority as well as the order dated 9th January 2012, passed by the Appellate Authority is liable to be quashed and set aside.

23. Per Contra, learned counsel appearing on behalf of the Respondent Company has vehemently submitted that while functioning as in-charge of 400/220kV Sub-Station at Wagoora sub-station under NRTS-II from 1st April 2007 to 31st July 2009, acted in hand in gloves with the M/s Ghulam Mohd. Wani, and approved the proposal of providing and fixing of 60 mm thick interlocking cement concrete tiles on the basis of the quotation given by them on exorbitant rates.

24. It is further submitted that the Petitioner was acting hand in gloves with M/s Ghulam Mohd is evident from the fact that the gate entry registry, which amply shows that that the said contractor started unloading the raw materials for the construction of footpath on the site much prior to the issuance of Letter of Award.

25. It is pertinent to note that the notice inviting tender dated 3rd September 2007 and subsequent Letter of Award dated 29th September 2007 categorically stipulated that all the materials to be provided/supplied by the contractor shall be inspected and shall be subjected to tests from third party approved laboratory prior to acceptance of material. However, the Petitioner failed to discharge his duties with integrity and conducted himself in a manner prejudicial to the interest of the respondent corporation.

26. Learned counsel appearing on behalf of the Respondent also submitted that the Respondent Company has complied with the principles of natural justice at each and every stage of inquiry as the Petitioner was duly provided with the Articles of Charges and Statements of Imputations of Misconduct in support of the said Article of Charges along with the said Memorandum. Pursuant to this the Petitioner had sent his representation against the memorandum which was considered by the Disciplinary Authority and was not found satisfactory and accordingly, an inquiry was initiated by the Respondent Company wherein after detailed and careful examination of the evidences and materials placed on record, the inquiry officer submitted its report dated 13th July 2010, a copy of which was also supplied to the Petitioner on 20th July 2010. The Petitioner submitted his representation against the Inquiry report which was considered by the Disciplinary Authority but the same was found devoid of merits and without any new facts.

27. It is further submitted that on the basis of inquiry report, the Chairman and Managing Director of the Respondent Company passed an order dated 26th April 2011, which held inter-alia: "whereas taking into consideration the gravity of the proven charges levelled on the Charged Officer, the undersigned as the Disciplinary Authority has decided to impose the major penalty of reduction in rank for a period of three years on Sh. H.R. Choudhary."

28. It is further submitted that against the said order dated 26th April 2011, Petitioner preferred an appeal under Rule 32 of the Power Grid Rules wherein the Appellate Authority of the Respondent Corporation vide order dated 9th January 2012 dismissed the said appeal thereby confirming the order passed by the Disciplinary Authority, by holding inter-alia: "Whereas the Board of Directors (Appellate Authority) after considering the Inquiry Report, connected documents and the appeal submitted by the Appellant is of the view that no new fact has been brought out in his appeal which may warrant reconsideration of the proven charges against Sh. H.R. Choudhary. Accordingly, the Appellate Authority rejected his appeal and reiterated the earlier penalty on him on26.04.2011."

29. Lastly, learned counsel has submitted that both the Authorities below have rightly appreciated the material on record and resultantly, the instant writ petition being devoid of merits is liable to be dismissed.

30. In Rejoinder, learned senior counsel appearing on behalf of the Petitioner submitted that the estimate was prepared by G.K. Sharma and endorsed by Deputy Manager (HR) and Chief Manager Sub Station was forwarded by the Petitioner to the Sr. Account Officer (Finance) for concurrence. Thereafter, the estimate was duly evaluated by a competent Tender Committee comprising of Deputy Manager (HR), Sr. A.O. and Sr. Engr.

(Civil) for determination of the reasonableness of the rates and giving recommendation for award of the work to the technically evaluated lowest bidder (L-1) namely M/s G.M. Wani.

31. Heard learned counsel for the parties and perused the record. I have given my thoughtful consideration to the submissions made by the parties.

32. Petitioner has mainly relied on the ground that all the Authorities below have failed to give weight to the fact that the entire legal process was followed by the Petitioner while finalising the tender, as well as for releasing the part payment. He has vehemently submitted that all the concerned committees were duly taken into consultation before executing the entire process. Relevant portion of the contention of the Petitioner in the writ petition is reproduced below: “7.That after evaluation of the tenders by the Tender Committee comprising of Deputy Manager (CS), Sr. Engineer (Civil) and Sr. Account Officer (Finance) on 29.09.2007, the contract for the work was awarded to Mr. Culam Mohammad Wani on the recommendations of the afore said Tender Committee vides LOA No. N2SR/CS/2K7/LOA721 dated 29.09.2007. The LOA for the said work was issued by Deputy Manager (OS), Wagoora Sub-Station. Pursuant to the LOA, the contract work commenced on 06.10.2007 by Mr. Culam Mohammad Wani at Wagoora Sub-Station.

8. That on the written request dated 17.12.2007 (Exb. MD-

12) of the contractor, part payment was allowed to be released to the contractor on 18.12.2007 after withholding a sum of Rs.50,000/- in view of non-submission of manufacturer test certificate (MTC) within the purview of the contract in view of Id festival, which was a big festival in Kashmir…

9. That as per requirement the Petitioner was to check 10% of the measurements, which the Petitioner had done. The same appeared in the RA bill dated 14.12.2007 (Exb. DD- 2/1, DD-2/2, DD-3/1 to DD-3/10)…”

33. I am of the opinion that the Petitioner‟s submission is sans any force and cannot be accepted at the very threshold. This Court in the exercise of its writ jurisdiction under Article 226 of the Constitution of India cannot sit as an Authority Appellate over the findings which have been duly recorded by the Disciplinary Authority. Moreover, this Court cannot re-appreciate the facts which have stood to reason before the Disciplinary Authority as well as the Appellate Authority in coming to its conclusion. It is only when the Petitioner satisfies that there has been infraction of principles of natural justice or there is any gross illegality in the findings of the Authorities below that this Court can exercise its jurisdiction under Article 226 of the Constitution of India. It is pertinent here to discuss certain authoritative judicial pronouncements of the Hon‟ble Supreme Court in respect of the powers and scope under Article 226 of the Constitution of India to interfere in a disciplinary proceeding.

34. Recently, the Supreme Court in State Bank of India &Anr. v. K.S. Vishwanath, (2022) SCC OnLine SC 667, had an opportunity to reiterate the literature on the subject and it was held as follows:

35. In State of A.P. v. S Sree Rama Rao, AIR 1963 SC 1723, a threejudge bench of the Hon‟ble Supreme Court observed as follows:

36. In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749, again a three-judge bench of the Hon‟ble Supreme Court held as under:

37. In High Court of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416, the Hon‟ble Supreme Court again held that:

38. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584, the Hon‟ble Supreme Court held as under:

39. In Union of India v. P Gunasekaran, (2015) 2 SCC 610, the Hon‟ble Supreme Court delineated the parameters as to when the High Court shall not interfere in the disciplinary proceedings:

40. In the instant case, Articles of Charge was issued to the Petitioner under Rule 25 of Power Grid Rules and an explanation was called from the Petitioner. The Petitioner duly submitted his defence to the Disciplinary Authority and denied all the allegations levelled against him. It is admitted that during the inquiry the Respondent Company filed documents Exhibit MD-1 to MD-13 and supplied them to the Petitioner. The Respondent Company examined total seven witnesses as MW[1] to MW[7] and the Petitioner examined one witness as DW-1.

41. It is not the case of Petitioner that any material was withheld from him or he was denied any opportunity of cross-examination. No such case has been set up by the Petitioner to warrant interference by this Court. The Disciplinary Authority has given due opportunity to the Petitioner to prove his case and it is only after considering the defence of the Petitioner, a major penalty of reduction in rank has been imposed on the Petitioner.

42. Therefore, at the cost of repetition, it is made clear that this Court cannot act as an appellate authority over the findings as recorded by the Disciplinary Authority and as confirmed by the Appellate Authority. This Court cannot re-appreciate the evidence on the basis of which the authorities below have come to a conclusion and interfere in the findings so recorded by the authorities below unless they are perverse or suffers from gross illegality.

43. Another contention which has been taken by the Petitioner is that the Inquiry Authority has not assigned any reason for discarding the evidence on record in favor of the Petitioner. The relevant portion of Petitioner‟s submission in the writ petition is reproduced below: “Because the Inquiring Authority has not evaluated the evidence on the record as per settled principles of law. He has not assigned any reason for discarding the evidence on the record. Because the Inquiry Report is based on no evidence on record…”

44. In the counter affidavit, the Respondent Company has denied the afore-said submission of the Petitioner and has states as follows: “That the Ground under reference is misconceived and devoid of merit hence denied. It is stated that the Inquiry Officer after providing due opportunity to the petitioner and carefully examining the witnesses and documents placed on record has come to the said conclusion. The petitioner failed to prove his case before the Inquiry Officer due to lack of tenable and cogent evidences. That the Ground under reference is misleading and devoid of merit hence denied. The petitioner has been making hapless attempt by picking out certain extracts from the whole report. The answering respondent submits that the entire report when read in entirety and not in piece-meal as done by the petitioner would clearly reveal the discrepancies and irregularities committed by the petitioner in discharge of his duties which is a serious and grave offence.”

45. I find force in the arguments of the Respondent Company, as after perusing the record I am satisfied that the Disciplinary Authority has based its findings on a fair and proper view of the evidence on record and hence, the findings so arrived by cannot be faulted with by this Court.

46. In view of the abovesaid discussion on facts as well as law, I am not inclined to entertain the present writ petition. Accordingly, the instant writ petition being devoid of merits is hereby dismissed.

47. Pending applications, if any, also stand dismissed.

48. The order be uploaded on the website forthwith.

JUDGE OCTOBER 11, 2022 gs/mg