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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.