High Court
Legal Reasoning
wp-2607-2018.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.2607 OF 2018Nandkishor Pannalal Agrawal,Age: 68 yrs Occu.Ex-Superintending Engineer, CIDCO [NT], Aurangabad & R/o. Plot No. 15, Dwarkapuri, Behind Patwardhan Hospital, Aurangabad-431005..PetitionerVERSUS1.The Managing Director,City and Industrial Development Corporation of Maharashtra Ltd. Nirmal Building, 2nd Floor, Niriman Point, Mumbai-400021.2.The Chief Accounts Officer,CIDCO, Bhawan, 5th Floor CBD, Belapur, New Mumbai -4006143.Manager [Personnel] CIDCO, Bhawan,3rd Floor CBD, Belapur, New Mumbai -400614..Respondents...Advocate for the Petitioner : Mr. Irale Patil D.R.Advocate for Respondent Nos.1 to 3 : Mr. Ajay S. Deshpande... CORAM : S.G. MEHARE AND SHAILESH P. BRAHME, JJ. RESERVED ON : MARCH 12, 2025 PRONOUNCED ON : MARCH 19, 2025JUDGMENT :- (PER S.G. MEHARE, J.)1.Rule. Rule made returnable forthwith. Heard finallywith the consent of the parties. wp-2607-2018.odt(2)2.The petitioner has impugned the order of dismissal dated03.11.2003 issued under the signature of Chief Engineer and GeneralManager (Tech) and order passed in appeal dated 09.01.2006 passedby the Managing Director, CIDCO of Maharashtra Limited. 3.Brief facts of the case were that the petitioner was theSuperintendent Engineer (NT), CIDCO Aurangabad. On thecomplaint of the contractor, the petitioner was trapped in anti-corruption case. A charge sheet was filed against him and he wasarraigned as an accused. In the interregnum, departmental inquirywas initiated against him. A charge sheet was served upon himcalling upon him to explain the charges of demand of bribe andacceptance while discharging official duty which is fraud anddishonesty with the corporation that amounts to misconduct undersub-rule 31 and 34 of the Regulation 25 of Chapter IV of The City andIndustrial Development Corporation of Maharashtra Limited ServiceRegulations, 1972 (‘Service Regulations’ for short). The petitionerfaced the inquiry and held guilty. The requisite procedure wasfollowed and by order dated 03.11.2003, he has been dismissed fromservices with immediate effect. He has preferred the appeal againstthe dismissal order on 10.11.2003. The appeal was dismissed on09.01.2006. Against that order after twelve years, he has preferredthis writ petition praying to quash and set aside both impugnedorders. He was acquitted of the charges of corruption by the Special wp-2607-2018.odt(3)Court. His acquittal is challenged by the respondents and the appealis still pending. 4.The petitioner has impugned the orders under challengemainly on three grounds that the complainant who alleged thecharges of corruption was not examined, the charge sheet was notserved by the competent authority and the order dated 03.11.2003dismissing him is not passed by the competent authority as definedunder The Service Regulations.5.Learned counsel for the petitioner has vehemently arguedthat unless the complainant is examined, it could not be said that thecharges of corruption have been established. His examination wasessential for granting opportunity to the petitioner to rebut theallegations. However, instead of examining the complainant, DeputySuperintendent of Police from Anti-Corruption, who did theinvestigation of the crime has been examined. He has beenincorrectly relied upon. He was not the aggrieved person against thepetitioner. He is merely an investigation officer. The charges ofdemand and accepting the bribe could be established only by thecomplainant. The Superintendent of Police, Anti-Corruption Branchexamined by the corporation/respondent did not know the reason. Itis a matter of intention that could be established only by examiningthe complainant. He would also argue that the charge sheet couldhave been served upon him by the competent authority. However, the
Legal Reasoning
wp-2607-2018.odt(4)Manager (Personnel) has served upon him the charge sheet. TheManager (Personnel) was not the person competent and authorized toserve the charge sheet upon him. 6.The next limb of his arguments were that in view of thedefinition of the term ‘Competent Authority’, the competent authorityis either the Managing Director or the Officer declared by him ascompetent authority. The Chief Engineer and General Managerpassing the order of punishment was not the competent authority.This is an apparent illegality. To bolster his arguments, he relied onthe case of Bharat Petroleum Corporation Limited and Others Vs. AnilPadegaonkar, (2020) 5 SCC 474, Tejpal Singh (Dead) through LegalRepresentatives Vs. Union of India, (2018) 14 SCC 343 and State ofU.P. and Ors Vs. Ram Naresh lal, AIR 1970 SC 1263. 7.He would also submit that since the charges were notestablished properly, the authorities serving the charge sheet uponhim as well as passing the order of imposing the penalty were notcompetent authorities, the entire inquiry is vitiated. The petitionerhas already attained the age of superannuation. Therefore, all theservice benefits be granted to him deeming him to be reinstated. 8.Learned counsel for the petitioner also vehementlyargued that there shall be no delegation of power by the delegate.Therefore also, passing the dismissal order is illegal. He prayed toallow the writ petition. wp-2607-2018.odt(5)9.Learned counsel Mr. Deshpande for the contestingrespondents opposed the contention of the petitioner. He wouldsubmit that the authorities, who have served upon the charge sheetand the order of dismissal were competent and authorized. Thepetitioner did not prefer the appeal in time. There is delay and latcheson the part of the petitioner in not approaching the Courtimmediately. He waited till the Special Court concluded the trial ofcorruption against him. On this sole ground, the petition is liable tobe dismissed. He would submit that the observations in para 10 ofthe case of Bharat Petroleum (supra) relied upon by the petitionersupports the case of the respondents. He countered the arguments ofthe learned counsel for the petitioner contending that both authoritiesissuing charge sheet as well as passing the dismissal order wereappointed by the Managing Director. He would submit that the orderdismissing the petitioner dated 03.11.2003 is the communication bythe Chief Engineer and General Manager. It was in fact an order ofthe Joint Managing Director of CIDCO Ltd. Clause 5 sub-clause (b) ofthe Service Regulations has been incorrectly considered while passingthe orders. He supports both impugned judgments and orders andprayed to dismiss the petition.10.To answer the question, whether authorities issuing thecharge sheet or passing the order of termination were competentauthorities, Clause No.5(b) of Service Regulations is to be considered. wp-2607-2018.odt(6)Clause 5(b) defines the term ‘Competent Authority’ means the officerdeclared as such by Managing Director by a general or special order.The Managing Director may declare different officers as competentauthorities for different purposes under these Service Regulations.Learned counsel for the petitioner is right that the competentauthority is either the Managing Director or an officer declaredappointed by a general or special order. The Managing Director candeclare different officers as competent authorities for differentpurposes. For the purpose of inquiry and passing the appropriateorder after inquiry, the Managing Director had declared thecompetent authority. As far as the service of the charge sheet isconcerned, it appears that it was served upon the petitioner byManager (Personnel). The initiation of the inquiry is the process to bedone by the official concerned. The said officer should be officiallyconcern only to serve the copy of charge sheet. In view of thedefinition of the competent authority, we are not agreeable withlearned counsel Mr. Irale that the person who served him a copy ofcharge sheet should be a ‘Competent Authority’ as defined underClause 5(b) mentioned above. The record reveal that after the chargesheet was served, the Chief Administrator (NT) was appointed as aninquiring officer. The petitioner has faced the inquiry before him.After complying with the requisite formalities, he placed his report tothe Chief Administrator (NT) for appropriate orders. So, it could be wp-2607-2018.odt(7)said that the inquiry was conducted by the person declared ascompetent authority. However, the order dismissing the petitionerreveals that the Managing Director of CIDCO has appointed the JointManaging Director of CIDCO as competent authority under sub-clause(b) of Clause 5 of the Service Regulations. The order of terminationdoes not bear his signature. The signatory of the order of thedismissal observed was that the Managing Director of CIDCO hasappointed the Joint Managing Director of CIDCO Ltd as competentauthority as provided under Clause 5 sub-clause (b) of the CIDCOService Regulations Act delegating the Chief Engineer and GeneralManager (Tech) of CIDCO as competent authority in this matter. Thecontents of the order of dismissal itself shows that the ManagingDirector did not appoint Chief Engineer and General Manager as thecompetent authority under Clause 5 sub-clause (b) of the ServiceRegulations. Reading the definition of competent authority, one couldunderstand, unless the Managing Director declares a person for aspecific purpose as competent authority, no one other than suchperson declared is a competent authority. Reading the contents of theorder, delegating the powers to the Chief Engineer and GeneralMananger (Tech) by Joint Managing Director, it is delegation of thepower by delegate. The principle that a delegate cannot delegatepower is called “delegatus non potest delegare”. This Latin maximsmeans that delegate cannot further delegate. However, there are wp-2607-2018.odt(8)some cases where sub-delegation is allowed. For example, statutewas granted him to allow it or it may be implied or permitted inexigency or necessity. In some cases, delegate has authority to subdelegate all the powers to another person or agency. This is based onthe principle that the delegate should have the flexibility to distributethe workload. In other words, it could be said that the powers canonly be delegated to another authority if the statute expressly orclearly permits him. Legislative powers cannot be sub delegated.11.Reading the impugned order, the Joint Managing Directorof CIDCO was appointed as competent authority for passing anappropriate order after submitting the inquiry report by the inquiringofficer. The Service Regulations are silent about delegation of thepower by the delegate. Nor the learned counsel for the CIDCOpointed out that the service regulations provide for sub delegation.Therefore, we are satisfied that the order dismissing the petitionerunder the signatures of Chief Engineer and General Manager (Tech) isillegal and on that count, the said order deserves to be vitiated.12.So far as the ground of non-examination of thecomplainant is concerned, it is a matter of examination of the record.The petitioner has raised these grounds in the appeal. There were twofact findings. Considering the scope of Article 226 of the Constitutionof India, this Court cannot re-appreciate the evidence. In view of theabove observations, the effect of non-examination of the complainant wp-2607-2018.odt(9)is consequential. Hence, we express the opinion that it is immaterialto comment on that ground at this juncture. 13.The next question that arises for consideration is, couldthis petition be entertained for the above defects after such a longperiod of twelve years.14.In the case of Bharat Petroleum (supra), the Hon’bleSupreme Court relying on the definition of competent authority underRule 3(h) of 1976 Rules applicable to the parties to the proceedingheld that DGM was competent to issue charge sheet. Besides,employee neither in his reply to charges nor in departmental appealraised any issue pertaining to competency of DGM to issue chargesheet but raised it for first time in writ petition. Para 11 of the saidcase has been relied upon by the learned counsel for contestingrespondents and contended that since the petitioner has beendismissed on the ground of delay and latches, the said issue cannot bedealt with and on this sole ground, the petition deserves to bedismissed. However, in the last two lines of the said paragraph, theHon’ble Supreme Court observed that nonetheless, since afundamental issue of jurisdiction has been raised, we shall proceed toexamine the issue. The expressions were clear that the issue ofjurisdiction of the competent authority was the issue of jurisdictionthat should be examined though the petition has been filed belatedly. wp-2607-2018.odt(10)We do not find substance in the argument of the learned counsel forthe contesting respondents. 15.In Tejpal Singh (supra), on the basis of the facts of thecase and considering the relevant rules, it was held that the order ofremoval was passed by the officer who was lower in rank than theGeneral Manager is not permissible. Since the appellant was passedaway, the Hon’ble Supreme Court observed not to remit the matterback. 16.Delay and latches is one of the ground to refuse the relief.To examine the diligence of the petitioner, some facts needs to beexamined. The petitioner was suspended on 24.04.2001. The inquirywas completed and report was submitted to the authority on15.04.2002. The dismissal order was dated 03.11.2003. The appealwas preferred on 10.11.2003 and concluded on 09.01.2006.Thereafter, since 2006 to 2018, the petitioner did not impugned theorder of Appellate Authority. After the judgment of Special Judge(P.C. Act) dated 27.01.2016, the petitioner approached this Court in2018. It seems that the petitioner was waiting for the judgment ofthe Sessions Court. After the said judgment, the petitioner waited forabout two years. The conduct of the petitioner reveals that he wasnot diligent. The arguments of the learned counsel for the petitionerreveal that the petitioner was expecting to take the benefit of thejudgment of acquittal. The law is very clear on the point of the effect wp-2607-2018.odt(11)of judgment of the Criminal Court acquitting the accused. Otherwisealso, he was charged with serious offence of demanding andaccepting bribe. The overall conduct of the petitioner was notsatisfactory and he was not seen diligent. We uphold the argumentsof the learned counsel for the contesting respondents that the petitiondeserves to be dismissed on delay and latches. Hence, we proceed topass the following order :ORDER(i)Writ Petition stands dismissed.(ii)No order as to costs.(iii)Rule stands discharged. (SHAILESH P. BRAHME, J.) (S.G. MEHARE, J.)Mujaheed//