Central Administrative Tribunal - Delhi
Udai Pratap Singh vs East Delhi Municipal Corporation ... on 3 August, 2023
1
OA No.2396/2015
Item 32
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2396/2015
Reserved on :25.07.2023
Pronounced on :
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Udai Pratap Singh JE (MCD)
Age-27
27 years
S/o Sh. Balister Singh
R/o Flat no.414
Ananddham Apartments
Main Wazirabad Road,
Sahibabad, Ghaziabad, U.P.
...Applicant.
(By Advocate: Shri.Vinod Pandey)
Versus
East Delhi Municipal Corporation
Though its Commissioner
419, Udyog Sadan, industrial area,
Patparganj, Delhi
Delhi-110092. ...Respondent
(By Advocate: Shri Kumar Rajesh Singh with
Ms. Poonam Singh)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
This OA has been filed challenging the final order dated 21.05.2015 passed by the competent authority dismissing the statutorily appeal preferred against the orders dated 29.05.2014 & 14.10.2014 passed by the respondents, vide 2 OA No.2396/2015 which a penalty of reduction in the time scale of pay by one stage for a period of four years without cumulative effect was imposed on the applicant and it was also ordered that he will earn increment of pay during the period. Aggrieved by the aforesaid orders, the applicant approached this Tribunal seeking the following relief:
"(a) Quash/set aside the final order dated 21.05.2015 & consequently preceding orders dated 29.05.14 & 14.10.14 passed by the Respondent; and
(b) Pass such other and further order which this Hon'ble Tribunal may deem fit and proper."
2. The brief facts of the case are that on 14.05.2009, the applicant was extended an offer for appointment to the post of JE(Civil/Electrical) and he joined the same in Municipal Corporation of Delhi on 01.06.2009. He was posted in the Building Department of Shahdara (South) Zone on 11.06.2009. After reorganization of Municipal Corporation of Delhi, the applicant was posted in East Delhi Municipal Corporation of Delhi. He was given supervision of four wards Nos. 217, 218, 219 & 220.
3. A joint departmental inquiry was conducted against a number of officials of Building Department, Shahdara Zone, 3 OA No.2396/2015 including some JEs and AEs on receipt of a complaint from CVC regarding carrying out of unauthorized construction at balcony and verandahs in P-4B, 4D, 4F and two additional floors, Pocket-III, Mayur Vihar, New Delhi existing in Ward No.211. On 13.08.2010, a charge sheet was issued to the applicant with the following imputation:
"STATEMENT OF CHARGES AGAINST SHRI UDAI
PARTAP SINGH, JE [B]
Shri Udai Pratap Singh was working as JE in Building Department, Shahadra [South] Zone during the period w.e.f 11.06.09 to 1.7.09. 31.12.09 to 4.3.10 and again w.e.f 18.3.10 to 18.4.10. He failed to maintain absolute integrity, devotion to duty and committed gross misconduct on the following counts:-
1. He failed to stop/demolish the unauthorized construction carried out in P.No. 4B (GF), 4D (FF), 4F (SF), Pocket-III, Phase-1, Mayur Vihar at initial/ongoing stage.
2. He also failed to book aforesaid u/c for taking action u/s 343/344 of DMC Act.
3. He also failed to keep strict watch over the property due to which O/B succeeded in carrying out further unauthorized construction at TF which was booked on 8.1.10.
4. He also failed to initiate action for prosecution of the owner/builder u/s 332/461 or 466-A of DMC Act.
5. He also failed to initiate action to seal the unauthorized construction u/s 345A of DMC Act. He thereby contravened Rule 3 (1) (i)(ii) and (iii) of CCS (Conduct) Rules, 1964 as applicable to employees of M.C.D."
4OA No.2396/2015
4. The applicant participated in the inquiry with the defence assistant. The inquiry officer submitted inquiry report dated 19.10.2012 and held the charge Nos. 1, 2 & 5 against the applicant as "proved" and charge Nos.3 and 4 as "not proved". The disciplinary authority agreed with the findings of the inquiry officer and imposed the penalty of reduction in the time scale of pay as indicated above on 21.04.2014. The applicant made a representation but vide impugned order dated 14.10.2014, the respondents retained the penalty imposed on 29.05.2014. Subsequently, the applicant preferred statutory appeal before the Lt. Governor of Delhi on 31.12.2014 which was rejected vide order dated 21.05.2015.
5. Though in the pleadings the applicant has taken several grounds in his defence, his basic contention is that the impugned final order wrongly finds that the applicant was responsible for any unauthorized construction. He also submits that he was acting under the supervision of AE and as such role of the applicant was to carry out order of the EE. Moreover, the period of unauthorized construction preceded the applicant's appointment. He has also taken 5 OA No.2396/2015 the plea that the impugned order lacks objectivity and parity as one Sh. Bijender Singh, JE who was also a part of the same inquiry was let off with a warning even though as per the charge sheet during his tenure the illegal construction was initiated and completed. It has further been contended that the inquiry officer has overlooked the statement of the sole prosecution witness, who during cross examination endorsed the submissions made by the applicant with regard to the charges completely exonerates the applicant.
6. In their counter reply, the respondents have defended their action on the ground that the applicant was given proper and full opportunity to defend his case and no principles of natural justice have been violated by the respondents. Moreover, the respondents have also given personal hearing to the applicant to present his case. They have also pointed out towards the limited jurisdiction in the case of disciplinary proceedings citing catena of judgments to argue that the Tribunal should not go into the correctness of the charges and facts of the disciplinary proceedings and it cannot approbate the functions of appellate authority. 6 OA No.2396/2015
7. We have perused the pleadings on record and also heard Shri Vinod Pandey, learned counsel for the applicant and Shri Kumar Rajesh Singh with Ms. Poonam Singh, learned counsel for the respondents.
8. One of the grounds taken by the learned counsel for the applicant to challenge the order passed by the appellate authority is that he has been subjected to discrimination, particularly with regard to a similarly charged officer one Shri Bijender Singh, who was JE(Building) and a part of common proceeding. It is submitted that five allegations were leveled against the applicant while four allegations were leveled against said Shri Bijender Singh and both at the relevant time were working as Junior Engineer in the Building Department. The inquiry officer returned the findings of three allegations as proved against the applicant and all the four allegations proved against the said Shri Bijender Singh. Learned counsel for the applicant contends that on conclusion of inquiry same penalty was imposed on said Shri Bijender Singh also and both preferred statutory appeal but the appellate authority has reduced the penalty of Shri Bijender Singh to censure. However, in the case of the applicant the appellate authority vide order dated 21.05.2015 and communicated by office 7 OA No.2396/2015 order dated 29.05.2015 upheld the penalty imposed upon the applicant by the disciplinary authority.
9. We have perused the relevant disciplinary proceedings record/file related to the impugned order including that of the appellate order passed in the case of Shri Bijender Singh, Junior Engineer (Building). The charges against Shri Bijender Singh, Junior Engineer (Building) were as follows:
"STATEMENT OF CHARGES AGAINST SHRI BIJENDER SINGH, JE [B] Shri Bijender Singh was working as JE in Building Department, Shahadra [South] Zone during the period w.e.f 1.5.09 to 1.6.09. He failed to maintain absolute integrity, devotion to duty and committed gross misconduct on the following counts:-
1. He failed to stop/demolish the unauthorized construction carried out in P.No. 4B (GF), 4D (FF), 4F (SF), Pocket-III, Phase-1, Mayur Vihar at initial/ongoing stage.
2. He also failed to book aforesaid u/c for taking action u/s 343/344 of DMC Act.
3. He also failed to initiate action for prosecution of the owner/builder u/s 332/461 or 466-A of DMC Act.
4. He also failed to initiate action to seal the unauthorized construction u/s 345A of DMC Act.
He thereby contravened Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964 as applicable to employees of M.C.D."
All the four charges are the same as in case of the applicant. In case of Shri Bijender Singh, all the four charges were proved but the penalty imposed upon him of reduction in the 8 OA No.2396/2015 time scale of pay by one stage for a period of four years without cumulative effect as was given to four other officials including the applicant, was converted to censure by the appellate authority. We find it difficult to gauge as to why in a common proceeding when facts and circumstances were identical and when the same punishment was imposed with regard to others, particularly, both Junior Engineers, the applicant and Shri Bijender Singh, in one case the penalty was reduced to censure whereas in the case of applicant it has been retained. Therefore, we are of the view that keeping in view the principles of natural justice in mind, the penalty imposed on the applicant needs a re-look.
10. We are aware of the limited jurisdiction of the Tribunal in the departmental proceedings. Power of judicial review is meant to ensure that the individual receives a fair treatment and there is no violation of principles of natural justice in conducting the proceedings and it does not bestow the Tribunal to act as an appellate authority to re-appreciate the evidence and to arrive at own independent findings on re- appreciation. But while the Tribunal should not sit as an appellate authority, it can definitely review the manner in which the decision is made. In the instant case, we find that the impugned order of the appellate authority appears to be 9 OA No.2396/2015 arbitrary and discriminatory. It does not align itself with the principles of natural justice inasmuch as differential treatment has to be given to similarly placed two officers. Therefore, we set aside the order of the appellate authority. However, liberty is given to the respondents to take a fresh look at the penalty imposed on the applicant. In case after following the due process and keeping in view the principles of natural justice, the respondents decide to impose a penalty on the applicant, it should not exceed what has been imposed on other officers in the common proceedings, more particularly Shri Bijender Singh, Junior Engineer (Building) by the appellate authority.
11. The O.A. is thus partly allowed. The competent authority among the respondents will take further action as aforesaid in the matter as expeditiously as possible and not exceeding six week from the date of receipt of the order. No costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/kdr/