Bongaigaon
Refinery & P.C.Ltd. & Ors Vs. Girish Chandra Sarmah [2007] Insc 810 (8 August 2007)
A.K.Mathur
& Markandey Katju 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:
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 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. 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 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 Committees 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 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. Sarmas 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 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 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.
Back
Pages: 1 2
