R.S.TYAGI vs N.T.P.C. LTD.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 05.03.2024
Judgment pronounced on : 12.03.2024

+ W.P. (C) 7666/2007 & CM APPL. 14622/2007
R.S. TYAGI ….. Petitioner
versus

N.T.P.C. LTD ….. Respondent

Advocates who appeared in this case:

For the Petitioner : Mr. Shanker Raju and Mr. Nilansh Gaur, Advocates

For the Respondent : Mr. Puneet Taneja, Mr. Manmohan Singh Narula, Mr. Amit Yadav and Mr. Anil Kumar, Advocates
CORAM:
HON’BLE MR. JUSTICE TUSHAR RAO GEDELA

J U D G M E N T

TUSHAR RAO GEDELA, J.

[ The proceeding has been conducted through Hybrid mode ]
1. The present writ petition under Articles 226 and 227 of the Constitution of India has been filed seeking the following prayers:-
“It is, therefore, respectfully prayed the penalty order dt. 28th Feb. 2005-09th March, 2005 imposing the penalty on the petitioner may be set-aside in the interest of justice.
That compensation of Rs.1 lac may be awarded to the petitioner to compensate him with regard to loss of comfort and mental agony suffered by him on account of the unwanted and baseless chargesheet issued against him.
Cost
That the cost of the litigation may also be awarded to the petitioner in the interest of justice.”

2. By way of an application bearing CM.APPL. 13670/2024, the petitioner sought amendment of the prayer of the writ petition. This Court vide order dated 05.03.2024 allowed the CM.APPL. 13670/2024 seeking amendment. The amended prayer as per the amended writ petition are as follows:-
“(a) the penalty order dt. 28th Feb. 2005-09″ March, 2005 imposing the penalty on the petitioner may be set aside in the interest of justice and also the Appellate order dated 27.04.2006 (Annexure 13) be also set aside with all consequential benefits.
(b) that compensation of Rs.1 lac may be awarded to the petitioner to compensate him with regard to loss of comfort and mental agony suffered by him on account of the unwanted and baseless charge sheet issued against him.
(c) Any order or further relief which this Hon’ble Court deems fit, just and proper in the peculiar circumstance of the case in the interest of justice may also please be awarded.”
(emphasis supplied)

3. The case of the petitioner is that the contract of work for jungle clearance, site leveling and construction of trunk drains (part-A) at RhSTPP was awarded to M/s. P.K. Ramaiah and Company of Hyderabad by the respondent-NTPC on 18.10.1982. The petitioner joined the services of respondent in the year 1984 as an Engineer. Between 27.04.1987 and 05.05.1987, the petitioner was working at the site in regard to intensive examination of the work of Jungle Clearance Site Levelling and construction of Trunk Drains at District Mirzapur in Uttar Pradesh.
4. It is the case of the petitioner that there were disputes which had arisen between M/s. P.K. Ramaiah and Company and the respondent, which was referred to the Arbitrator. By the award dated 19.05.2000, the Arbitrator had passed his award in favour of the Contractor.
5. The case of the respondent is that the Arbitrator had noted some negligence on the part of the officials of respondent in respect of the revetment work which was to be released to the Contractor under Clause 3 (a) read with Clause 3 (b) of the BoQ of the contract. More particularly, the observations of the learned Arbitrator in paras 103 to 108 of the award dated 19.05.2000.
6. The respondent-NTPC, on the basis of the award passed by the Arbitrator in the year 2000 and on the 1st and 2nd Advice of the CVC, initiated the Disciplinary Proceedings against the petitioner and also the Superior Officers who constituted the High Level Committee, which approved the bills of the Contractor M/s. P.K. Ramaiah and Company. It was during the Disciplinary Proceedings that the Inquiry Officer found that the petitioner was negligent in performing his duties. Pursuant to the said advice, the respondent had issued a charge sheet under Rule 27 of the NTPC (CDA) Rules, 1977 for minor penalty disciplinary action against the petitioner on 23.02.2004. The petitioner had given a reply dated 19.04.2004 against the said charge sheet. After considering the reply of the petitioner to the said charge sheet, by the order dated 28.02.2005/09.03.2005, the Disciplinary Authority imposed a minor penalty of “withholding of promotion for one year from the date when due”.
7. The petitioner upon being awarded such penalty had filed a statutory appeal on 26.05.2005. The said appeal was rejected by the Appellate Authority vide detailed order dated 27.04.2006. The review thereof was also sought on 07.10.2006, which was replied to by the respondent vide letters dated 08.12.2006 and 21.12.2006 informing that no review lies under the NTPC (CDA) Rules, 1977.
8. The petitioner had sought certain information from the NTPC, which was responded to by the respondent on 27.02.2007. Subsequent thereto, the present writ petition was filed.
9. Mr. Shanker Raju, learned counsel appearing for the petitioner submits that the petitioner challenges the penalty awarded to the petitioner on substantially two grounds in the writ petition which are as under:-
“1. That there has been violation of the principle of “Equality” which is guaranteed to every citizen under Article 14 of the Constitution Of India. In the case in hand, No. officials from two Departments independently working were involved in the decision-making process and all were let off except five including the petitioner. Against some, no action was taken namely Sh. S.K. Verma, then Bank Manager, Sh. S. Banerjee, Deputy Manager and Shri U.K. Kusari, Engineer, belonging to Civil Construction Department and Sh. Narottam Prashad, Senior Accounts Officer and Sh. S. Malik, Senior Accounts officer from Finance Department. Against one official person namely Sh. Kuldeep Singh, Deputy Manager, senior to the petitioner, and responsible sanctioning the passing of some of the bills, administrative action was taken by issue of Warning after he was chargesheeted for minor penalty action advisory memo were issued to the Accountants concerned in Finance department. The same is discriminatory. Such attitude of the respondent in not taking any action against similarly placed some officials and in taking minor/mild action against few and with no adverse notice in regard to mode of measurement or quality of the work for which supervisor and Engineer were responsible, the harsh action taken against the petitioner and four Supervisors concerned is discriminatory.

2. Delay and laches:- That the work of contract in question commenced on 11.10.1982 even prior to joining of the petitioner in NTPC on 31.01.1984. During the course of execution of the work, the Chief Technical Examiner’s Organisation from Central Vigilance Commission examined the package in the year 1987 thereby alleging excess payments having been made to the concerned Contracting Agency in the matter under consideration and the Charge-Sheet was issued to the petitioner at a very belated stage i.e. on 23.2.2004 almost after a period of about 17 years. This is sufficient ground for this Hon’ble Court to set-aside the punishment imposed upon the petitioner. In the following Judgments, of Hon’ble Supreme Court of India namely:-
State of M.P. V/S Bani Singh and Others AIR 1990-SC 1308.
State of Punjab V/S Chaman Lal IT-1995(1) SC J223,1995(2) SLJ-126(SC)-CAT (Kalkata)
Rajan Suri V/S Union of India and others- Qua 809 of 2000 with 19-A 509 of 2000.
State of Andhra Pradesh V/S N.Radhakrishna J.T.1998(3) SC 123 1998-AIR LJ-I 2002(I) page 32-38 .
the Hon’ble Supreme Court has held that inordinate delay in charge-sheeting the delinquent employee is sufficient ground to quash the charges. There is important and vital question as to why Arbitrators findings have been ignored in which the Ld. Arbitrator has nowhere pointed out any mala-fide Act on the part of the petitioner and others concerned. Once the Arbitrator has held that the act of the officials concerned was not malafide and where large no. of officials at higher as well as junior levels from different departments including the Finance Department working independently were involved in the process and it was uniform decision by all the officials and the fact situation of this it is really not desirable to issue the charge-sheet and to inflict the aforesaid penalty by the disciplinary authority of the respondent on the petitioner and four Supervisors of Civil Construction Department only and that too, at the lower, level.”

10. Mr. Raju, learned counsel for the petitioner submits that it is not disputed that the subject lapse, if any, had actually occurred, even going by the case of NTPC sometime between the year 1985 through till the year 1987. Learned counsel also submits that during the course of execution of the work, the Chief Technical Examiner’s Organisation from Central Vigilance Commission examined the package in the year 1987 thereby alleging excess payments having been made to the concerned Contracting Agency in the matter under consideration and the Charge-Sheet was issued to the petitioner at a very belated stage i.e. on 23.2.2004 almost after a period of about 17 years. Mr. Raju submits that the charge sheet issued to the petitioner in the year 2004 is highly belated and such stale cause of action could not have formed the basis of initiation of Disciplinary Proceedings against the petitioner. He further submits that, apart from that, the petitioner was made a scapegoat inasmuch as the other Senior Officers, who are the persons actually responsible for approving the said bills of the Contractor, namely M/s. P.K. Ramaiah and Company, were not proceeded against or were let off by issuance of warning, etc.
11. Learned counsel submits that the present case is the one where the Court ought to interfere inasmuch the petitioner has been discriminated against as also the cause of action, on the basis of which the disciplinary proceedings have been initiated, pertains to the years 1985 and 1987, which is almost a period of 17 years.
12. Mr. Raju relies upon the judgments of the Supreme Court in State of M.P. vs. Bani Singh and Others reported as 1990 Supp SCC 738, State of Punjab & Ors vs. Chaman Lal Goyal reported as (1995) 2 SCC 570 and State of Andhra Pradesh vs. N. Radhakishan reported as (1998) 4 SCC 154, to submit that in case there is an inordinate delay in charge sheeting the delinquent employee, it would be a sufficient ground to quash the charge sheet.
13. Mr. Raju also draws attention of this Court to the Disciplinary Authority’s order as also the Appellate Authority’s order to submit that this point in respect of the inordinate delay was noted but no findings or justification was mentioned in either of the orders, leading to the awarding of the penalty.
14. Per Contra, Mr. Puneet Taneja, learned counsel for the respondent submits that the petitioner was an important instrument in approving the rates and it was according to the role attributed to him that the punishment was awarded to the petitioner. He submits that submissions made by the petitioner that Senior Officers were let off with a lighter punishment etc is wrong since all of them were charge sheeted and proceeded against in the Disciplinary Proceedings and various punishments were awarded to them too. Thus according to Mr. Taneja, the case of the petitioner that he was being discriminated against is untenable and cannot be considered by this Court, particularly in proceedings under Article 226 of the Constitution of India.
15. So far as the submission of the petitioner of inordinate delay to the extent of 17 years is concerned, Mr. Taneja submits by referring to the Appellate Authority’s order that the same was infact considered by the Appellate Authority by referring to the reason for initiation of the disciplinary proceedings. In that, Mr. Taneja submits that it was only after the award was passed that the CVC had tendered its 1st and 2nd stage advice directing the respondent-NTPC to initiate disciplinary action against the erring officials. It is only thereafter that the respondent had initiated disciplinary proceedings against the petitioner as also other Senior Officers of the Department. He submits that keeping in view the fact that the issue was initiated only after the comments were received from the CVC in December 2002 and the 1st advice had come in the year 2003 and the charge sheet was subsequently issued in the February, 2004.
16. Learned counsel also referred to the Chief Technical Examiner’s Organization from the CVC which had examined this issue in the year 1987 itself and flagged the same irregularities. He submits that thereafter the arbitration proceedings had commenced and the respondent had to await the outcome thereof to commence disciplinary proceedings. Thus, on the basis of the aforesaid factual situation, Mr. Taneja submits that there is no delay at all so far as the initiation of disciplinary proceedings is concerned.
17. Mr. Taneja also submits that the petitioner has only been given a minor penalty which he has already undergone and the petitioner had retired in the year 2012. He submits that in view of catena of judgments of Supreme Court including Union of India & Anr vs. B.C. Chaturvedi, reported as (1995) 6 SCC 749 and Union of India vs. Subhratanath, reported as 2022 SCC OnLine SC 1617, this Court ought not to interfere with the findings of fact and the disciplinary proceedings should not be tinkered with unless it shocks to conscience of this Court or the punishment is disproportionate.
18. It is submitted that for the lapse of the petitioner, it was only a minor penalty which was imposed and such minor penalty has not even otherwise effected the petitioner since subsequent to the completion of the period of penalty, the petitioner was considered for further promotion as and when the same fell due. He submits that the present petition on the aforesaid basis be dismissed.
19. This Court has considered the arguments of Mr. Raju, learned counsel for the petitioner as also Mr. Taneja, learned counsel for the respondent, perused the impugned order as also the Appellate order and the other records.
20. First and the foremost issue which needs to be considered by this Court is as to whether the disciplinary proceedings which have been initiated by the respondent were initiated on a stale cause of action or not. For the said purpose, it would be relevant to consider the reasons given by the respondent on which the said disciplinary proceedings were initiated.
21. According to the respondent, the initiation of the disciplinary proceedings was predicated on the observations made by the Arbitral Tribunal in the award dated 19.05.2000. The award dated 19.05.2000 is placed as Annexure-7(i) at page 186 of the present petition.
22. This Court has perused the relevant portion of the award which is placed on record and finds that in the relevant paragraphs, particularly in relation to the claim based on revetment work, there is no mention of any negligence on the part of the officials of the respondent who have approved the rates of rebate under Clause 3 (b). For the purpose of convenience, the relevant paragraphs are reproduced hereunder:-
“103. The NTPC case is that it was because of wrong interpretation by its officials that extra payments had, been made. A reference to the rates would show that in Clause 3(a) stone was to be supplied by the Contractor. Clause 3(b) allows a rebate on 3(a) for approved stone being provided by N.T.P.C. obtained from excavation.
104. It appears that payment under Clause 3 (b) (i) have been made to the claimant at Rs. 60/- whereas according to NTPC rate of clause 3 (b) (1) being a rebate on 3 (a) by Rs. 60/- payment should have been made at the rate of Rs. 10/-. I find the contention of NTPC to be right. Obviously, when clause 3(b) (i) talks of’ Rs. 60/- as being rebate on 3(a) (i), it would mean a rebate or reduction from the rate mentioned’ at 3(a) (i), which would work out at Rs. 10. It would be illogical to suggest that even if stone is supplied by NTPC, it should pay Rs. 60/- while it would be paying Rs. 70/- when the stone was supplied by Contractor.
105. The contention of the claimant that Rs. 10/- should be deducted on the basis of a royalty for the stone supplied by the NTPC cannot be accepted. It was admitted that the Claimant had done extra work but it is stated that the expert committee had been asked to go into the n matter which had recommended net payment of 15.92/cum for the work done on the revetment work and it further held that 50% of the required quantity of sized stone will arise from the excavated stone of different sides. It is stated that in thus calculating a sum of Rs.8,14,491.05 was to be paid for executing, the work but the claimant had already been paid a sum of Rs.30,43,491.05. It was said to be bonafide mistake and the balance of Rs. 21.98,809.01 was to be recovered from the Claimant, It was stated that NTPC has already adjusted a sum of Rs.6,91,993.96 from the running bill of the Claimant and thus a sum of Rs. 15,06,815.05 has to be recovered from the Claimant.
106. The contractor does not admit the calculations, nor is it possible for me to go into some of the technical assumptions made by the Committee with regard to the quantity and size of stones.
107. I feel that in these circumstances the observations and the recommendations of the High Level Committee are more convincing. The Committee has proceeded on the basis that rates as tendered by the contractor and accepted under 3(b) appear to have been rebated rates rather than the rebate itself, though it feels that rates as tendered by the Contractor and accepted by NTPC were somewhat unbalanced. The Committee had also seen the work on the spot. It had, therefore, on the ground of equity recommended rates not on the basis of 3(b)(i) but at the rates ranging between Rs. 15/- to 20/- per m3 over and above the difference of rates between the rates under 3(a) and 3(b).
It will be seen that difference of rate between Clause (a) and 3(b) would work out to the rate at Rs. 10 per M3 which would be payable to the Claimant under Clause 3 (b). I feel that the Committees recommendation are too liberal, by Working out almost to three times the rate admissible. However, I do feel that as NTPC has continued to pay at the enhanced rate, there arises some equity in favour of the claimant. It is true as Claimant in his letter seems to accept the present stand of NTPC that the rebate in Clause 3 (b) is to be given as being interpreted by, NTPC though maintaining that it was only if stones of different size was made available and not the boulders which required extra labour for cutting to size.
108. Considering all the facts, I would hold that the contractor is entitled to be paid at the rate of Rs. 15 per M3 under Clause 3(b) and not at the rate of Rs.10/- per M3 as sought to be adjusted by NTPC. The counter claim of NTPC therefore, would be adjusted at the rate mentioned by me on the amount being worked out will depend whether any payment is due to the claimant or to what amount is NTPC entitled to adjust if it has made overpayments. I may make it clear that NTPC will have to calculate the amount after taking into account the quantity for which it had held claimant to be entitled to a sum of Rs. 8,44,491.05 as the rate, I am now awarding is more than that at which NTPC gave credit.
109. The counter claim is decided accordingly.”

23. From the above observations of the Arbitrator, it cannot be categorically stated that Arbitrator had mentioned that there is any negligence on the part of the officials of the respondents leading to excess payment being made to the Contractor. This is not say that this Court is approving or disapproving the observations made by the learned Arbitrator. The issue is only being examined so as to determine whether any such observation made by the Tribunal could have led to the initiation of disciplinary proceedings, even at the behest of the CVC.
24. Even learned counsel for the respondent was unable to show any paragraph which could convince this Court that infact there were cogent reasons falling out from the observations of the learned Arbitrator in the said Award that the respondent was under an obligation to initiate the disciplinary proceedings. Infact in para 107 of the Award, learned Arbitrator has observed that, “The Committee has proceeded on the basis that rates as tendered by the contractor and accepted under 3 (b) appear to have been rebated rates rather than the rebate itself, though it feels that rates as tendered by the Contractor and accepted by NTPC were somewhat unbalance”.
25. Apart from the above observation, this Court could not cull out any other observation by the learned Arbitrator which would lead to the conclusion that the Arbitrator also had observed that there has been a deliberate or a willful negligence on the part of the delinquent or a willful collusion of the officials of NTPC with the Contractor namely M/s. P.K. Ramaiah and Company. No such observation could either be discerned by this Court nor has any been pointed out by learned counsel for the respondents.
26. It is undisputed that the bills which were approved between the years 1985 to 1987 were initially approved by the petitioner but the same were sanctioned and finally approved by the Senior Officers who constituted the High Level Committee, after due application of mind.
27. Having regard to the fact that the lapse, if any, occurred between the years 1985 through till 1987 and not steps were taken by the respondent in between till the time the Arbitrator had passed his award on 19.05.2000, there is no explanation as to why no action or any disciplinary action was initiated in the interregnum. Infact it goes without saying that during this interregnum, the company would have got its account audited and the bills which were cleared obviously must have gone through scrutiny of the Auditing Department. Despite which no such action was initiated against either the petitioner or the other officers of the NTPC in regard to the said alleged lapses.
28. That apart, during the course of execution of the work, the Chief Technical Examiner’s Organization from Central Vigilance Commission examined the package in the year 1987 thereby alleging excess payments having been made to the concerned Contracting Agency in the matter under consideration. However, the Charge-Sheet was issued to the petitioner at a very belated stage i.e. on 23.2.2004 almost after a period of about 17 years. This indicates that the lapse, if any, was flagged by the concerned Department (CVC) in the year 1987 itself, however, no action was initiated by the respondent til 2004. Thus to state that action was initiated on the basis of Award dated 19.05.2000 would be factually incorrect. Moreover, such lapses, if any, were flagged by CVC in the year 1987 itself, there was no impediment, legal or otherwise which prevented the respondent from initiating the disciplinary proceedings.
29. So far as the other contention of the petitioner that the petitioner was discriminated against is concerned, this Court is not in agreement with the contentions of Mr. Raju for the reason that the charge sheet was issued not only against the petitioner, as stated even in the counter affidavit and observed in the Appellate Authority’s order, but appropriate administrative action was taken against other Senior Officers, who were meted out various punishments, including some of them who were even exonerated. As such the ground of the petitioner that he alone was targeted and that there were no other officers who were proceeded against in the disciplinary proceedings is untenable and is rejected as such.
30. In view of the aforesaid observations of this Court, it is apparent that the lapses or the cause of action for initiating the disciplinary proceedings against the petitioner is stale and the respondent could not have initiated action against the petitioner much less on the ground that the Arbitrator has observed that there was any deliberate or willful negligence on the part of officials of the respondent including the petitioner. This Court is fortified in its view by the ratio laid down in the judgements of the Supreme Court in Bani Singh (supra) and N. Radhakishan (supra). The relevant portions are extracted hereunder:-
In Bani Singh (supra)
“4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal’s orders and accordingly we dismiss this appeal.”

In Radhakishan (supra)
“19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.”

This view has been reiterated by the learned Division Bench of this Court in Union of India & Anr vs. Rattan Lal, reported as Neutral Citation No.2023:DHC:7908-DB.
31. As a consequence of the aforesaid observations that the lapses, if any, for the cause of action is stale and could not have been proceeded with, the proceedings including the penalty orders dated 28.02.2005/09.03.2005 as also the Appellate Authority’s order dated 27.04.2006 are quashed and set aside.
32. The petition stands disposed of, alongwith pending applications with no order as to cost.

TUSHAR RAO GEDELA, J.
MARCH 12, 2024/Aj

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