Central Administrative Tribunal - Delhi
Shri L.D. Sharma vs Delhi Development Authority on 25 September, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 497/2008 New Delhi this the 25th day of September, 2008 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N.D. Dayal, Member (A) Shri L.D. Sharma, Aged about 55 years, S/o Shri M.L. Sharma, R/o 72, Saini Enclave, Delhi. Applicant. (By Advocate Shri Sidharth Joshi) Versus 1. Delhi Development Authority, through its Vice Chairman, Vikas Sadan, INA Market, New Delhi. 2. Vice Chairman, Delhi Development Authority, Vikas Sadan, INA Market, New Delhi. 3. Engineering Member, Delhi Development Authority, Vikas Sadan, INA Market, New Delhi. Respondents. (By Advocate Shri Anil Singal proxy for Mrs. P.K. Gupta) O R D E R (ORAL)
Honble Mr. Justice M. Ramachandran, Vice Chairman (J).
An inquiry was proposed to be held against the applicant in respect of certain lapses of supervision, in the course of his work as Assistant Engineer (Civil), Delhi Development Authority (DDA). It had been notified, by way of statement of article of charge that while working in Building Department during the year 1998 (he) failed to supervise the functioning of his subordinate J.E. and recommended issue of D-Form of Plot Nos. 307 Ambika Vihar ignoring the unauthorized constructions at site, to extend undue benefit to the owner/builder. Statement of imputation of misconduct also had been supplied. However, Mr. S.K. Mukerjee, the inquiry officer, in his report dated 17.03.2004 concluded that it cannot be held that the applicant had recommended issue of D Form ignoring the presence of unauthorized construction at the site. It was categorically held as following:
Thus, the charges framed against Shri L.D. Sharma, AE have not been proved.
2. Notwithstanding the above, the Engineer Member of DDA by Annexure A-4 dated 30.11.2004 recorded his note showing the reasons for disagreement. He held that the findings of the inquiry officer are not agreed to. On 07.12.2004, the applicant had been asked to make submissions against the inquiry report, as far as the disagreement note is concerned. In due course, on 09.05.2006, the Engineer Member informed the applicant that he had come to the conclusion that the charges are proved, and, so as to meet ends of justice, penalty of reduction of pay by one stage with cumulative effect was being imposed. This is Annexure A-9. Later on, Vice Chairman on 12.09.2007 through Annexure A-1 concurred with the decision as above when the appeal was rejected. Both these orders are under challenge.
3. The submissions of the applicant are three fold. According to him, the junior engineers working under him too had been proceeded against by way of disciplinary action for putting up misleading documents for orders before the Assistant Engineer, recommending for completion certificates to be issued. However, taking note of the circumstances, the inquiring authority had exonerated the JE. Consequential proceedings issued to the JE are Annexure A-8. The disciplinary authority held as following:
In fact in the complaint dated 18.1.2000 it had been stated that construction was in full swing on Plot No. 307 & 308. It has also been stated that the builder had joined both the buildings. It would thus appear that the unauthorized construction as well as amalgamation in the building had come about after `D form was issued. Further the carrying out of the unauthorized construction has also been reported by Sh. Islam Khan on 14.1.2000 in which there does not appear to be any inordinate delay in reporting..
4. The suggestion that possibly construction might have been started after the certificate was issued had been accepted. The contention raised is that when he had only acted upon the reports before him, and he had accepted such reports, he could not have been found guilty of a lapse.
5. With reference to the duties that have been assigned to the Junior Engineer (Annexure A-11), it is pointed out that the junior engineer is specifically required to inspect the buildings and submit report for issue of Form `D. As far as Assistant Engineer is concerned, he is expected to re-check the building only when he felt it necessary such course was required. Therefore, the allegations could not have been sustainable that he had defaulted. Reliance had to be placed on subordinate officers, as the procedure authorized.
6. More importantly, counsel submits that the procedural formalities have been totally violated while imposing the penalty. Reference is made by the counsel to an order passed in TA 94/2007 by the Principal Bench. He refers to the observations made by the Tribunal in regard to the steps to be taken where there is disagreement entered by the disciplinary authority about the report of the inquiry officer. Especially, paragraphs 11 and 12 have been adverted to. Regulations 25 and 26 require that on a disagreement, he is to remit the case for further inquiry and require report. Only this report is to be forwarded to the delinquent employee for written representation. Regulation 26 also defines the jurisdiction of the disciplinary authority. None of these formalities have been adverted to.
7. Thirdly, it had also been pointed out that there is yet another violation in that although there is reliance on the report of the Central Vigilance Commission, for imposition of the penalty, the report had not been made available to him. This has been decried by the Supreme Court in State Bank of India & Ors. Vs. D.C. Aggarwal and Anr. (AIR 1993 SC 1197). Mr. Joshi submits that the cumulative effect of these situations should lead to a conclusion that the findings as now recorded and the punishment order are to be declared as vitiated.
8. Mr. Anil Singal on behalf of the respondents, however, had submitted that as a supervisory officer, the Assistant Engineer had committed a lapse and the manner in which the case of Junior Engineer had been dealt with, therefore, has no relevance. He also highlights that there was a good amount of construction work carried out and it was obvious that the D Form report submitted did not represent the actual situation. This ex-facie was possible to be found. Also he submits that the applicant should be deemed as not aware of his duty to make inspections frequently and to ensure that unauthorized constructions do not spring up. He holds a more responsible position, and the plea raised is evasive. The matter has to be looked at from a larger perspective, the counsel submits.
9. However, when definite charges are framed and the matter inquired into, and when the inquiry officer comes up with a decision, it is to be given due weight and should not be upset lightly. When the disciplinary authority found it appropriate to disagree, he could not have acted in his discretion but had rest his orders on rules, to get the matter once again properly examined. May be he had good cause to hold that the construction as it was available on the day of inspection very well indicated that the structure was built at one unit, and it was never an addition made later on. But his assumptions cannot be pressed into service as the legal formalities had been over looked.
10. In the circumstances, we are of the view that the impugned orders require to be set aside. We do so. Follow up orders are to be drawn up, and served on the applicant, in line with the directions that have been passed by us. Parties to suffer their own costs.
(N.D. DAYAL) (M. RAMACHANDRAN) MEMBER (A) VICE CHAIRMAN (J) `SRD