Central Administrative Tribunal - Delhi
Ved Prakash S/O Sri Ram vs Delhi Development Authority Through ... on 22 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.482 of 2010 This the 22nd day of March, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Ved Prakash S/o Sri Ram, R/o 26 Bhagwan Park, Jharoda Mazra, Delhi-110084. Applicant ( By Shri Sidharth Joshi, Advocate ) Versus 1. Delhi Development Authority through its Vice-Chairman, Vikas Sadan, INA, New Delhi. 2. Finance Member, Delhi Development authority, Vikas Sadan, INA, New Delhi. 3. Shri U. S. Jolly, Inquiry Officer, S.P.N. College, Punjabi Bagh, New Delhi. Respondents ( By Shri Dhanesh Relan, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Ved Prakash, at the relevant time employed as UDC, with the respondent Delhi Development Authority, the applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 calling in question memorandum dated 7.10.2009 vide which a decision has been taken to hold departmental enquiry against him under regulation 25 of DDA Conduct, Disciplinary and Appeal Regulations, 1999. The memorandum aforesaid accompanies with it statement of article of charge framed against the applicant as Annexure-I, which reads as follows:
Sh. Ved prakash, Assistant Director (U/S) while working as Dealing Clerk (UDC) in HAU-IX during the year 1999-2000 recommended the case for downward revision of cost of flat No.9406, Pocket-9, GF+FF, Vasant Kunj from the current cost of Rs.18,62,236/- to old cost of Rs.11,90,700/- to facilitate refund of Rs.6,17,201/- including BCI to a private person, without seeking the approval of the competent authority and also for a specific amount, in violation of Office Order No.HAU-IX/Delay/98/DDA/40-n dt. 31.3.99 read with VCs decision dated 7.9.99 in file no. F.178(404)91/SFS/JL/II for not opening the close cases of downward revision/refund i.e. cases where possession letters had already been used.
By his above act Sh. Ved Prakash, Assistant director (U/S) exhibited lack of absolute devotion to the duty, lack of absolute integrity and acted in manner unbecoming of a Government Servant thereby, contravened Rule 4-1 (i), (ii) and (iii) of DDA Conduct, Disciplinary and Appeal Regulations, 1999 as made applicable to the employees of the Authority.
2. When this matter came up for motion hearing on 11.2.2010, we recorded the following order:
Counsel, inter alia, contends that the incident subject matter of charge sheet is of 1999-2000 whereas the charge memo has now been issued in 2009, and there is no explanation of this delay.
Issue notice to the respondents returnable on 25.02.2010. Meanwhile, further departmental proceedings are stayed. In addition to the unexplained delay in resorting to departmental enquiry against him, the applicant also pleads in paragraph 4.6 of the OA that he has committed no misconduct whatsoever, as he had been strictly abiding by the directions of the competent authority, and that in fact, he forwarded the application of the concerned allottee to the competent authority for passing appropriate order about the entitlement of the allottee for refund of difference as per policy dated 31.2.1999, and further that he followed the same procedure which was being followed in all such cases by concerned employees, and that no action whatsoever was ever taken for such act against any employee. It is pleaded that the approval was granted by the Joint FA(H)/FA(H) in terms of policy dated 31.3.1999 and direction for payment was issued, and that the applicant had just discharged his duty. It is further pleaded that the applicant was nowhere concerned with the decision regarding refund of difference, and in fact, Vice-Chairman, DDA, regularized all the cases relating to category-II flats at Jasola by taking interest on the delayed payment and thereafter standing orders were issued to release the difference of cost in all cases without any default, and in such circumstances, even otherwise also, the applicant cannot be proceeded departmentally, and that too, after ten years. In the corresponding para of the reply filed on behalf of the respondents, the facts as mentioned in the OA have not been specifically denied. It has inter alia been pleaded in the said para of the reply that it is vehemently denied that the applicant has not committed misconduct or that the action of the respondent in issuing the chargesheet to him would be illegal or mala fide. It is denied that the applicant followed the same procedure which was being followed in all such cases by concerned employees. It is pleaded that office order dated 31.3.1999 was legally and validly issued after following complete office procedure and taking into account the reply/version of the applicant, and that the applicant is fully responsible and liable for the acts of omission and commission committed by him, which have been elaborated in the statement of imputation of misconduct/misbehaviour in support of the article of charge framed against him, and that the applicant cannot wriggle out of the same and in case he has any defence, he can prove it during the inquiry. The fact that a policy decision came to be taken by the high-ups and the applicant was only acting on that, and that the refund recommended by him was approved by higher authorities, is not in dispute. There is no proper explanation as regards delay. It has, however, been mentioned that a housing scam during 1999-2000 relating to detection of siphoning of crores of rupees rocked the news in the year 2000, as a result of which the records were initially seized by the Crime Branch of Delhi Police and the matter was investigated at their end. Initially 48 cases of SFS flats pertaining to the said housing scam out of 119 cases seized were returned to DDA by the Crime Branch with the observations that DDA had suffered financial losses due to negligence on the part of the officials of Housing Accounts Wing as well as Housing Management Wing. Accordingly, responsibility may be fixed and it may be indicated if the lapses are of departmental nature or otherwise. Out of the 48 cases returned by the Crime Branch, initially 13 cases of downward revision of cost of flats and their refund were identified and sent to the Vigilance Wing in the year 2000, with prior approval of Finance Member/Vice-Chairman, and further 20 more such cases were referred to the Vigilance Cell in June, 2006. In each case after detailed investigations, more than 70 chargesheets were issued to various officials/officers of the Housing Management Wing and Housing Accounts Wing. It is pleaded that out of these 20 cases referred to the vigilance cell in 2006, the applicant was one of the officials to whom chargesheet for initiation of major penalty proceedings was issued after conducting detailed investigations. The charge memo came to be issued in October, 2009, whereas, even if one is to go by the explanation for the delay furnished by the respondents, twenty cases of irregular refund were reported by the vigilance cell in 2006, and, therefore, there is no explanation as regards delay, at least from 2006.
3. It is also the case of the applicant that in similar circumstances, in number of Original Applications filed by the employees of DDA, this Tribunal has interfered and quashed the charge memo. The applicant has annexed with the OA decision of the Tribunal in OA No.829/2009 in the matter of R. P. Tripathi v DDA & others, decided on 12.10.2009. The facts of the case aforesaid reveal that a memorandum was issued to the applicant therein by DDA on 10.12.2008 informing that an enquiry would be held against him under regulation 25 of the Regulations of 1999. The articles of charge showed that while working as UDC in Housing Accounts Wing during the period 1998-2000, the applicant had processed the case for refund of belated construction interest and later on refunded the bill without approval of the competent authority. It was urged on behalf of the applicant that in certain other proceedings the DDA had been told by the court that the very basis of initiation of such action could not have been possible to be upheld. More importantly, the applicant had adverted to some of the orders passed by the Tribunal, being OA No.202/2009 dated 12.5.2009 and OA No.2166/2008 dated 9.4.2009, wherein the disciplinary action initiated belatedly had been struck down. It was further urged that the facts of those cases were totally similar, and finding that there was no explanation for the huge delay, the disciplinary proceedings had been quashed. Reliance of the learned counsel was also on the observations in the judgment of the Delhi High Court in WP(C) No.4757 of 2007 that at least in some case, delay itself could be a ground to arrive at a finding that enquiry proceedings would be vitiated. The Honble Bench seized of the matter observed as follows:
5. True the submissions as above, require acceptance in ordinary circumstance. But, however, we have also to see the helplessness of a person, who might face belatedly disciplinary action about which he may be answerable or not. In one of the cited cases, the courts have indicated that even a period of three years delay might be fatal. We also notice that there is no attempt made to explain the huge delay of nine years in initiating action if we take it that the employee was in error. It is not disclosed as to what was the reason of delay in initiating timely action when the accounts of the Establishment are subjected to periodic audit, and inspection. It does not come to reason as to why commissions and omissions of persons in the Establishment are not brought to limelight with some amount of expedition. We have also to take notice of the difficulty a person might come across in coming with materials to defend himself when inquiry is started in respect of routine transactions which were carried out decades back.
4. In the present case, besides there being no explanation for delay, at least after 2006, and further that the applicant was only executing the orders passed by the higher authorities, to which, as mentioned above, there is no denial, it would be travesty of justice if the applicant is embroiled in long drawn departmental proceedings. The counsel representing the applicant has informed us that out of twenty employees proceeded against departmentally this Tribunal has set aside the orders in the cases of as many as eighteen employees. He has, however, not placed on records such orders, and, therefore, we may not go into the aforesaid contention of the learned counsel. However, finding the present case to be of unexplained delay in initiating departmental proceedings against the applicant, and also that as a mere UDC, he was not responsible in forming policy, which he was merely executing, it would not be in the interest of justice to proceed any more with the enquiry.
5. For the reasons as mentioned above, this Original Application is allowed. Charge memo dated 7.10.2009 is quashed and set aside. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/