DORI LAL Vs. INTERNATIONAL AIRPORTS AUTHORITY OF INDIA

JUDGEMENT

(1.) Heard. The petitioner by the present petition challenges the order of his removal from the services along with an inquiry which proceeded the impugned order of removal.

(2.) THE petitioner joined the services of the respondents in the year 1977 as a Junior Engineer (Civil) and then was promoted to the rank of Assistant Engineer (Civil) in the year 1982. He was further promoted to the post of Executive Engineer (Civil) in the year 1988 and was on probation on the said promoted post for a period of 12 months. On promotion, he was working as an Executive Engineer (Civil), Bombay Project, Division IV, Mumbai Airport at Mumbai. A notice came to be published in various newspapers on 27 -12 -1988 inviting tenders for the work of expansion of the cargo complex at the Mumbai Airport, Sahar, Phase -I. In response to the said notice, about 30 applications were received from different contractors for issuance of the blank tender documents. For the purpose of eligibility for issuance of the blank tender documents, the applicants/contractors were required to produce certain documents like enlistment (registration with C.P.W.D., M.E.S., State P.W.D. and Railways of approved class), certificate of past experience of the contractor, income -tax clearance certificate of the contractors, etc. A register for the said purpose was opened at the office of the petitioner by the petitioner and one Shri Dinesh Kumar, Assistant Engineer (Civil). On 13 -1 -1989 application dated 11 -1 -1989 was received from one contractor M/s. Karris Construction India Pvt. Ltd. Since the application and the annexures thereto did not contain the certificate regarding completion of work over two crores in the preceding three years as was required for obtaining the blank tender form, time was granted to the said contractor to submit such certificate and since on that day no such documents were submitted, no blank tender form was issued on the said date to the said contractor. On 16 -1 -1989 the Managing Director of the said contractor produced a document stating to be the certificate issued by the Municipal Corporation of Ludhiana in relation to such work having been carried out by the said contractor within the specified period of the value of Rs.2.89 crores. On receipt of the said certificate, blank tender documents were issued to the said contractor. After scrutiny of the papers of all the applicants, 15 applicants were found eligible for issuance of the tender papers including the contractor by name M/s. Karris and were issued the necessary forms and out of the 15 applicants, 14 applicants submitted their tender forms duly filled with the necessary annexures thereto. After the said forms were processed in the office of the respondents, the Work Advisory Board decided to award the work of the project in question to M/s. Karris for the negotiated tender amount of Rs.3,28,73,839.23 ps. On 28 -3 - 989 the Chief Engineer (C.W.), New Delhi forwarded a letter to the Chief Engineer (Bombay Project) conveying their decision that the offer of M/s. Karris Constructions has been accepted by the competent authority and the decision has been taken to award the contract to the said contractor and agreement be entered into with the said contractor in accordance with the provisions of said law. Pursuant thereto, the petitioner entered into an agreement with the said contractor M/s. Karris on 31 -3 -1989. On 10 -4 -1989 a phonogram was sent by the petitioner to M/s. Karris calling upon them to attend the office immediately since the work was to commence from the issuance of the award letter i.e. from 10 -4 -1989. In spite of signing of the agreement dated 31 -3 -1989, on 12 -4 -1989 a letter from M/s. Karris was received informing the petitioner that they will attend the office on 15 -4 -1989 and also requested that they may be informed the date by which the complete site with the drawing would be handed over to them. In fact on 3 -4 -1989 itself, a portion of the site, as per the contract conditions was delivered and further certain drawings were also handed over to the representative of M/s. Karris on 10 -5 -1989. Meanwhile on 26 -4 -1989 M/s. Karris had submitted bank guarantee from M/s. Vijaya Bank of Chandigarh for Rs.16, 50,000/ -, an amount equivalent to mobilisat on advance. Since the payment of mobilisation advance to the contractor on finishing the bank guarantee of equal amount was in addition of the contract, the petitioner issued a voucher for payment of the mobilisation advance on 27 -4 -1989 after receipt of instructions for the same from the Chief Engineer, Bombay Project. By letter dated 27 -4 - 1989 the petitioner informed the Chief Engineer (C.W.), Headquarters that the conditions at serial Nos.2 and 3 of the letter of acceptance dated 28 -3 -1989 from the of Headquarters had been clarified to M/s. Karris at the time of entering into the agreement on 31 -3 -1989 and even a letter to that effect was obtained from M/s. Karris. On 9 -5 -1989 the petitioner was transferred to the Airport Maintenance Department. On 2 -6 -1989 the petitioner was relieved from the Project Office. On 26 -9 -1990 the order of suspension came to be issued to the petitioner and also a memorandum was issued to the petitioner levelling certain charges of misconduct in the matter of issuance of blank tender form to M/s. Karris. Same was followed by an inquiry and ultimately order came to be passed on 9 -8 -1991 removing the petitioner from the services on the ground of misconduct. The petitioner preferred appeal against the said order, however, the same was not disposed of within 90 days and therefore the petitioner preferred Writ Petition No.1172 of 1992 which was disposed of by this Court on 3 -8 -1992 with the direction to dispose of the appeal within four weeks. The appeal was accordingly disposed of by the appellate authority by order dated 7th and 15th September, 1992. Hence, the present petition.

(3.) SHRI S.K. Talsania, learned Senior Counsel appearing for the respondents, has fairly admitted the fact that the disciplinary authority did not afford any hearing to the petitioner before arriving at the finding contrary to the finding arrived at by the inquiry officer and without furnishing the copy of the finding by the inquiry officer to the petitioner as also the fact that the appeal was disposed of without affording opportunity of being heard to the petitioner. This factual position being not in dispute, as rightly submitted by the learned Advocate for the petitioner, the law on the point being well -settled by the decision of the Apex Court in the matter of Punjab National Bank & Others v. Kunj Behari Misra & Anr., reported in 1998 II L.L.J. 809, the disciplinary authority could not have proceeded to arrive at the conclusion contrary to the findings by the inquiry officer exonerating the petitioner from certain charges which were levelled against him without affording opportunity of being heard to the petitioner and without making available to the petitioner copy of the findings arrived at by the inquiry officer. The Apex Court in Kunj Behari Misra 's case (supra) has clearly ruled that when the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted to the delinquent and that it will be most unfair and iniquitous that where the charged officer succeeds before the inquiry officer he is deprived of representing to the disciplinary authority before that authority differs with the inquiry officer 's report and, while recording a finding of guilt, impose punishment on the officer. Undisputedly, the conclusion arrived at contrary to the finding of the inquiry officer has resulted in imposition of punishment of removal from service upon the petitioner. Being so, considering the law laid down by the Apex Court in Kunj Behari Misra 's case and bearing in mind the facts of the case in hand, we are of the considered opinion that the order passed by the disciplinary authority removing the petitioner from service cannot be sustained.