Full Judgment Text
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CASE NO.:
Appeal (civil) 2367 of 2007
PETITIONER:
Bongaigaon Refinery & P.C.Ltd. & Ors
RESPONDENT:
Girish Chandra Sarmah
DATE OF JUDGMENT: 08/08/2007
BENCH:
A.K.MATHUR & MARKANDEY KATJU
JUDGMENT:
J U D G M E N T
A.K. MATHUR, J.
1. This appeal is directed against the order passed by the
Division Bench of the Guwahati High Court in Writ Appeal No.248 of
2005 whereby the Division Bench has set aside the order of learned
Single Judge dismissing the writ petition and allowed the writ petition
of the respondent and set aside the order of reversion passed against
the respondent reverting him from his grade of Deputy General
Manager to Grade F, Chief Manager in a lower pay scale of
Rs.19000-24570/- for a period of five years or till he is found fit by the
competent authority to restore him in the higher grade and post from
the post of Deputy General Manager (POL- Marketing).
2. Aggrieved against the order of reversion passed in a
disciplinary proceeding on 20.9.2002, the respondent filed a writ
petition in the Guwahati High Court and submitted that the domestic
inquiry which had been conducted against him and which has found
him guilty was perverse and totally illegal.
3. The respondent while working as Deputy General
Manager (POL-Marketing) in Bongaigaon Refinery and
Petrochemicals Limited, Dhaligaon during the year 1998-99 was
alleged to have committed serious misconduct for which he was
charge-sheeted. The following charges were framed against him
which read as under:
\023 Article of Charge No.1:
Sri G.C.Sarma dishonestly selected and
recommended purchase of land at Jorabat on the
ground of ecomonic viability. As a Member in the
price negotiating committee, he failed to assess the
reasonable price of the land inasmuch as he himself
intimated the price of 7 acres of land at Rs.30 lakhs
in his preliminary report.
Article of Charge No.2:
Sri G.C.Sarma appointed the Valuer Sri I.
Sharma for land valuation violating the due process
of tendering and that the fictitious price fixed by the
Valuer at Rs.25/- per sq.ft. was accepted.
Article of Charge No.3:
Sri I.Sharma who floated the firm M/s. ESS
Pvt. Ltd., was engaged without process of tendering
for determination of soil and rock strata as
recommended by Sri G.C.Sarma. The report
submitted by Sri I.Sharma was fictitious and
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misconceived as the land being hilly, rocky and
undeveloped was recommended to be suitable for
the outlet. Sri G.C.Sarma in connivance with Sri
I.Sharma thereby dishonestly recommended the land
as suitable.\024
On the basis of these charges a regular inquiry was initiated against
the respondent and Shri N.C.Barua, retired District & Sessions
Judge, Bongaigaon was appointed as Inquiring Authority. The
Inquiry Officer submitted his report on 6.6.2002 finding all the three
charges to have been proved against the respondent. Thereafter, the
disciplinary authority gave a notice and after hearing the respondent
passed the aforesaid impugned order. Aggrieved against this order
the respondent filed a writ petition before the Guwahati High Court.
Learned Single Judge dismissed the writ petition. Aggrieved against
that order the respondent preferred a writ appeal before the Division
Bench. The Division Bench allowed the writ appeal of the
respondent, set aside the order of learned Single Judge and
quashed the order of the disciplinary authority imposing the aforesaid
punishment. Hence the present appeal.
4. We have heard learned Mr.Amarendra Sharan, learned
Additional Solicitor General for the appellants and Mr.Jaideep Gupta,
learned senior counsel for the respondent and perused the records.
5. Learned Additional Solicitor General, Mr.Sharan
strenuously submitted that the Division Bench sat over the matter as
an appellate authority and reversed the finding of the learned Single
Judge as well as the inquiry officer on re-appreciation of evidence.
The Division Bench cannot sit as a court of appeal in the matter of
domestic enquiries and re-appreciate the evidence. Learned
Additional Solicitor General invited our attention to the following
decisions of this Court.
1. (2006) 6 SCC 794
Union of India & Anr. v. K.G.Soni
2. (1995) 6 SCC 749
B.C.Chaturvedi v. Union of India & Ors.
3. (1997) 3 SCC 72
Indian Oil Corporation Ltd. & Anr. v.
Ashok Kumar Arora
Learned Additional Solicitor General also submitted that the
respondent has already given up the plea of perversity before learned
Single Judge yet the Division Bench considered the same plea.
Learned Additional Solicitor General submitted that once the counsel
has already given up the plea of perversity before learned Single
Judge, he cannot re-agitate later before the Division Bench and in
support of his submission, invited our attention to a decision of this
Court in Common Cause v. Union of India & Ors. [ (2004) 5 SCC
222].
6. As against this, Mr.Jaideep Gupta, learned senior counsel
for the respondent submitted that the charges which have been
framed against the respondent were not sustainable on the basis of
the materials on record and the Division Bench of the High Court has
rightly looked into the matter and found that all the charges have
been wrongly proved by the inquiring authority.
7. We have bestowed our best of consideration to the rival
submissions of learned counsel. The whole issue started on the basis
that Bongaigaon Refinery & Petrochemicals Ltd ( for short, BRPL)
launched a programme for setting up of a Jubilee Outlet for
marketing its finished products. A Tender Committee (Technical) was
constituted to finalise the project. Respondent was one of the
members of the Tender Committee (Technical) along with other four
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members i.e. Shri A.Saran, Shri T.V.John, Shri P.K.Gogoi and Shri
H.R.Chopra. Pursuant to the advertisement for purchase/ lease of
land, certain tenders were received. This Tender Committee met on
16.9.1998 and examined various offers received against the
advertisement inviting tenders for purchase/lease of land for
establishing the Jubilee Retail Outlet. It called for various other
information from all eligible bidders. This Tender Committee
examined the offers received against the notice inviting the bids and
after discussing sixteen eligible offers, four were found to be
technically suitable including Jorbat out of the tenders which had
been received. It was also decided in the Committee\022s meeting held
on 28.10.1998 to submit the same to the competent authority for
consideration and approval for opening the price bid. On the same
day the appellant company by order dated 28.10.1998 asked the
Tender Committee to carry out the detailed techno economic study
and also to ensure reasonable cost of the land through a Government
approved valuer. On 2.11.1998 the Committee opened the price bids
and found that only the Jorbat land was offered on outright basis. The
Committee decided to engage a Government approved valuer for
valuation of Jorbat land. The proposal received from one Shri
I.Sharma was submitted to the competent authority for approval and
the competent authority approved the same. Shri I.Sharma was one
of the listed valuers who had earlier done the work for the appellant
company. Therefore, he was found to be suitable valuer. Thereafter,
the Central Tender Department awarded the work of valuation of land
to Shri I.Sharma on 5.11.1998. On 9.11.1998, Shri I.Sharma,
Government approved valuer submitted a report that the fair market
value of the land was assessed at Rs.25/- per sq.ft and the size of the
land being 2,17,721.07 sq.ft, the total cost was determined at
Rs.54,43,000.00. Thereafter, the Purchase Committee held its
meeting on 14.11.1998 for considering the price bids. Four price
offers were considered and the Committee opined that the Jorbat
offer was economically viable. Accordingly, the Committee
recommended the opening of Model POL, retail outlet at Jorbat. This
was approved by the General Manager (Finance). Thereafter, on
12.12.1998 the Director (Commercial) found Jorbat to be techno-
commercially the best location and after administrative approval a
high level committee was constituted to negotiate with the land
owner. Thereafter the Price Negotiation Committee was constituted
which was headed by Shri S.C.Goswami, General Manager ( R & P)
and the respondent was one of the members. The Prince Negotiation
Committee in its meeting dated 18.12.1998 considered the offer and
assessment of the valuer and decided inter alia that a second
assessment of price through local source would be necessary
because of the high value of the deal and accordingly, deputed the
respondent with Shri P.K.Gogoi, Senior Manager (Project) to get the
details. Respondent and Shri P.K.Gogoi thereafter visited Jorbat
and Nongpuh and collected necessary information regarding the land.
The Deputy Commissioner, Ribhoi District informed that as per the
past sale record, the price of land at Jorbat was Rs.20/- per sq.ft. but
the sale price in registered documents is shown less than the market
value to reduce registration costs. As per the local information it was
found that the price varied from Rs.20/- to Rs.25/- per sq. ft.
depending on topography. Accordingly, a joint note was submitted
by respondent and Shri P.K.Gogoi recording their findings. The
Prince Negotiation Committee negotiated with the land owners on 4th
& 5th January, 1999 wherein Rs.45 lakhs was offered by the
Committee against Rs.61 lakhs demanded by the land owner.
Thereafter, the land owner on 21.1.1999 informed the General
Manager ( R & P) that Rs.45 lakhs as offered was not acceptable
and the minimum price acceptable was Rs.51 lakhs. The Board of
Directors of the appellant company in its 156th meeting held on
23.1.1999 approved the setting up of Jubilee Retail Outlet at Jorbat.
Thereafter, the Director (Commercial) by order dated 27.1.1999
directed the respondent to appoint one surveyor of civil engineering
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firm to conduct soil testing and survey on top priority. Thereafter, the
Deputy Manager (POL- Marketing) by note dated 29.1.1999
intimated the respondent regarding receipt of an offer from Shri
I.Sarma for determining rock strata. The note also stated that as the
value of the work to be done was more than Rs.25,000/- a tender
committee was to be constituted to recommend the said job. The
Tender Committee was also constituted and the tender committee on
2.2.1999 decided that the job was of priority and inviting further
quotations would cause delay and since Shri I.Sarma has surveyed
the land earlier, the work could be done by that person expeditiously.
The Tender Committee recommended the award of work to Shri I.
Sarma\022s firm , M/s. ESS Firm. The same was placed before the
respondent for approval and it was sent to the Vigilance approval.
After receipt of the approval the matter was placed before the
Central Tendering Department which in turn issued the work order on
5.2.1999. The soil exploration report (rock strata) was submitted by
Shri P.K.Gogoi, SM (Project) with his comments and the same was
endorsed by the respondent to the Director (Commercial) that the
land was suitable. The Director (Commercial) gave clearance to the
Price Negotiation Committee to proceed for further negotiation. The
Price Negotiation Committee after series of discussion, finalized the
deal ultimately at Rs.50.01 lakhs for 5 acres of land which was
considered reasonable and recommended the price of the land.
Meanwhile, on 11.1.2000 the Officer-on- Special Duty, Revenue
Department, Meghalaya informed the Executive Director (Vigilance)
of the appellant company that there was no classification of land in
Ribhoi district since no land revenue had been realized. However,
from a land acquisition case in 1993, the land in that area was
termed as wasteland which was assessed at Rs. 10.22 per sq. ft.
Thereafter, one letter was received from the Deputy Commissioner,
Ribhoi District on dated 12.10.2001 that the rate of the land was
valued at Rs.8/- per sq.ft. That letter formed the basis of the regular
departmental enquiry in which the respondent was charge-sheeted,
on the basis of the above charges. The first charge levelled against
the respondent was that the respondent submitted a preliminary
report being the member of the Tender Committee in which after
meeting the land owner he recommended that the land owner was
prepared to sell 7 acres of land at Rs.30 lakhs and that report was
directly submitted to the Director (Commercial). The Director
(Commercial) was also a member. Shri S.C.Goswami, General
Manager (Marketing) as the Chairman of the Price Negotiating
Committee admitted in his statement that he did not dispute the
submission of the report where the price of 7 acres of land was
mentioned as Rs.30 lakhs and he was also a member of the
Committee. That was the tentative price offered by the land owner.
The preliminary report of the respondent was before the Price
Negotiation Committee which did not consider the report as relevant.
But thereafter ultimately the negotiation was done and the same was
effected at Rs.50.01 lakhs. Therefore, it is not a case that the
respondent alone was responsible. He had recommended in the
preliminary report along with Shri P.K.Gogoi, Senior Manager
(Project) which was placed before the Director (Commercial). It was
within the knowledge of the General Manager (Marketing) and he has
admitted that they did not consider bid offers which had been
received. Thus as per the facts mentioned above, it appears that it
was the joint decision which has passed through various levels.
Similarly the respondent alone was not responsible for approval of
the valuer , Shri I.Sharma nor was he responsible for giving the work
to his company, M/s.ESS firm for further development of the area. All
the three Committees i.e. Tender Committee (Technical) along with
the respondent, other four members were there and similarly in
Techno Commercial Committee along with the respondent as
member there were other four members and likewise in the Price
Negotiating Committee Shri S.C.Goswami, General Manager
(Marketing) was Chairman, Shri P.K.Baruah, Deputy General
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Manager (Project/GM) (HRD),Shri D.B.Das, Deputy General
Manager; Shri T.V.John, CM/DGM (Finance) and Shri P.K.Gogoi,
SM/CM (Project-Civil) were the members along with the respondent.
All these three Committees have processed the deal and it is only the
respondent has been made a scapegoat. After going through the
report and the finding recorded by the Division Bench of the High
Court, we are of opinion that in fact the Division Bench correctly
assessed the situation that the respondent alone was made a
scapegoat whereas the decision by all three committees was
unanimous decision by all these members participating in the
negotiations and the price was finalized accordingly. It is not the
respondent alone can be held responsible when the decision was
taken by the committees. If the decision of the Committee stinks, it
cannot be said that the respondent was alone stink, it will be arbitrary.
If all fish stink, pick one and say it stinks only is unfair in the matter of
unanimous decision of the Committee. In all the three charges, the
respondent has been found to be guilty for not assessing the
reasonable price in his report submitted by him where the price
indicated by the owner of the land was Rs.30 lakhs. The appointment
of Shri I.Sharma as a valuer for land valuation was not also the
decision of the respondent alone and the exploration of soil and rock
strata given to the company, M/s.ESS Pvt. Ltd. was also not the
decision of the respondent alone. Therefore, all the three charges
which have been framed against the respondent as if he is alone
responsible for the deal is not the correct approach. It is also not
necessary that the land owner who has given the offer at one point of
time at Rs.30 lakhs to stick to that. Instead she has intimated the
appellant company by her letter quoting the price at Rs.61 lakhs and
that was subsequently negotiated and brought out to Rs.50.01 lakhs.
The preliminary report submitted by the respondent to the Director
(Commercial) was after discussion with the land owner at the cost of
Rs.30 lakhs yet this cannot work as an estoppel against the land
owner. May be the land owner at one point of time might have offered
the land at Rs.30 lakhs but that report cannot operate as estoppel
against the land owner that she cannot jag up the price for the land.
In fact when the Price Negotiating Committee asked for written
proposal from the land owner, she quoted at Rs.61 lakhs and
ultimately the Price Negotiating Committee after taking into
consideration all the factors negotiated at Rs.50.01 lakhs for 5 acres
of land. This was the joint decision of the Price Negotiating
Committee which was headed by Shri S.C.Goswami, General
Manager (Marketing) as the Chairman. Therefore, from the above
discussion, we are of opinion that the view taken in these set of facts
by the Division Bench cannot be said to be wrong.
8. So far as the legal proposition as contended by learned
Additional Solicitor General with regard to appreciation of evidence is
concerned, there is no quarrel that the Courts cannot sit as appellate
authority over the domestic enquiries but in the present case what
appears us is that the respondent has become a scapegoat in order
to make someone responsible for no fault of his. He alone was
targeted for the simple reason that he submitted preliminary report
where the price of the land proposed by the land owner was Rs.30
lakhs. But this was tentative price given by the land owner and the
authorities negotiated with the land owner and she quoted the price at
Rs.61 lakhs and thereafter they again negotiated with her. The
background was fully known to Shri S.C.Goswami, General Manager
(Marketing) who was the Chairman of the Tender Negotiating
Committee and even otherwise also just because that one of the
Officers has submitted a preliminary report intimating the price given
by the landowner as Rs.30 lakhs for 7 acres of land, that does not
bind the land owner to sell the land for similar price, later on if she
wriggles out, for which the officer of the appellant company who had
inquired from the land owner cannot be found guilty. The respondent
cannot be held responsible for the same and more so in the present
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case the price has been negotiated by the Price Negotiating
Committee. Therefore, simply because a preliminary report was
submitted by the respondent and all the three Committees in which
he was a member along with others cannot disown their liability. If the
respondent is targeted then all the members of the Committees are
equally responsible. Therefore, such finding given by the enquiring
authority cannot be countenanced.
Similarly, so far as the appointment of Shri I.Sharma is
concerned, the respondent alone was not responsible.
9. Learned Additional Solicitor General has submitted that
since learned counsel for the respondent-writ petitioner has already
abandoned the plea of perversity i.e. that the finding is perverse, the
same is not open for learned counsel for the respondent- writ
petitioner to press again before the Division Bench of the High Court.
Since the writ appeal is in continuation of the original order passed in
the writ jurisdiction by learned Single Judge, it cannot operate as an
estoppel against learned counsel for the respondent to press the
same. If the finding recorded by the Inquiring Officer is not sound and
it relates to perversity then the appellate court in writ appeal cannot
estop the counsel from raising the same. More so, the Division
Bench after considering the matter has found that the whole
approach was perverse because the respondent alone has been
made a scapegoat. When the decision of all the three committees
was unanimous, then to take one and put the entire blame on him is
definitely perverse approach and the Court cannot stand to the
technicalities so as to defeat the ends of justice. Thus, the
submission of learned Additional Solicitor General has no merit.
10. As a result of our above discussion, we do not find any
merit in the appeal and the same is dismissed with no order as to
costs.