TMI Blog2007 (8) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ₹ 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 misconcei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ₹ 20/- to ₹ 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 ₹ 45 lakhs was offered by the Committee against ₹ 61 lakhs demanded by the land owner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne letter was received from the Deputy Commissioner, Ribhoi District on dated 12.10.2001 that the rate of the land was valued at ₹ 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 ₹ 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 ₹ 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 nego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 30 lakhs to stick to that. Instead she has intimated the appellant company by her letter quoting the price at ₹ 61 lakhs and that was subsequently negotiated and brought out to ₹ 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 ₹ 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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