Delhi High Court
S.K. Nagpal vs Delhi Development Authority on 22 January, 1998
Equivalent citations: 1998(46)DRJ55
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT K. Ramamoorthy, J.
1. The Petitioner was working as Assistant Engineer (C) since 15.12.1978. He was incharge of construction of 156 LIG Houses at Bo della, Block 'J' Pocket 'JG IP Vikaspuri and construction of 72 LIG houses at Bo della Block 'J' Pocket 'JG IP executed by M/s Japan Nath Ashok Kumar under agreement No. 11/EE/HD/III/79-80 and 7/EE/HD-III/79-80, along with other officials of the Delhi Development Au-hoity. In para 5 of the petition it is stated:
That the petitioner was transferred to Sub-division No. 11 w.e.f. 28.10.1980 and was not apprised of any developments in the matter of the alleged inspections aforesaid and the petitioner presumed that the matter was closed.
2. The fact is not disputed by the DDA in the counter affidavit. On 27.01.1994 a chargesheet was issued against the petitioner with reference to the alleged irregularities in the construction referred to. The question before to look at the counter affidavit filed by the Delhi Development Authority, in para 2 of the counter affidavit it is stated thus:
With regard to that statements made n para No.2 to 7 of the petition, it is submitted that the Petitioner was posted as an Assistant Engineer in housing division No.3 during 1979-81. He was in charge of following 2 works viz. construction of 156 LIG houses at Bo della, Block-J, Pocket JG-II, Vikaspuri and construction of 72 LIG, houses Block-J, Pocket JG-II where the Petitioner completely failed to supervise the work and accepted the work of RCC staircase landings which contained major defects as pet completions certificates for which the respondents had incurred infructuous expenditure amounting to Rs.l,,00,606/-to get these defects rectified. It is further submitted that the Petitioner made part rate payments for the RCC staircase landings for care of 72 LIG houses at almost full rates in-spite of staircase landings having major defects. Thereby undue financial benefit was given to the contractors. Therefore, it cannot be said that the Petitioner is not liable any legal action for what he has committed. In fact such serious charges are to be enquired, otherwise it would mean that the person would be allowed to take advantage of his own wrong. Moreover the petitioner will get ample opportunity to prove himself innocent before the enquiry officer.
3. In para 5 the circumstances culminating for framing charges are referred to in the following terms:
With regard to the statements made in para -II, it is submitted that delay occurs due to following reasons which are as follows:
i) Case referred by Dir.(Works to CVO, as per order of VC, to initiate minor penalty proceedings against erring officials including Shri S.K. Nagpal AE(CP-l) 28.4.1989
ii) Case file sent to EE(Vig.)III 4.9.1989 for taking necessary action.
iii) Relevant record summoned from 26.9.1989 EE/SD-2.
iv) File sent to DVO for allotment 5.10.1989 of PE No.
v) P.E. No. allotted. 25.10.1989
vi) Case transferred to EE(Vig.)VI Aug. 1990
vii) Some records received from Nov. 1993 field staff after intervention of CVO and VC.
viii) Investigation report submitted 23.11.1993 by EE(Vig.)VI.
ix) Case referred to CVC for their 7.12.1993 1st stage advice received.
x) CVC's first stage advice received. 11.1.1.994
xi) Fair minor penalty charge sheet 25.1.1994 issued.
It is submitted that Mr. S.C. Sharma, the then Executive Engineer (Vigilance)-III was issued a Caution Memo for not taking action between the period from 25.10.1989 to May, 1990.
It is further submitted that after collecting para evidence records and the investigations were completed on 2.12.1993 with due care keeping in mind that the petitioner was due for promotion. The report was submitted to CVC for first stage advise the CVC advised major penalty proceedings against the Petitioner which was received on 11th January 1994. Therefore, it appears from the above explanation that there is plausible explanation for delay in issuing the chargesheet and moreover the Hon'ble Supreme Court has held in various cases that mere delay would not be sufficient cause to quash the departmental proceedings unless prejudice has been caused to the delinquent officer. The judgment cited by the petitioner has no relevancy in the present case because in all judgments cited by the petitioner the Hon'ble Supreme Court and this Hon'ble High Court has held that there is no plausible explanation by the respondent but in the present case it cannot be said that there is no plausible explanation and it also cannot be said that the respondent slept over the matter for quite a long period. It is not a case that the respondent has waived its right by issuing the chargesheet after 12/13 years. In fact, the respondent took every steps expeditiously because the Petitioner was due for promotion though there was delay because of few officers working with the respondents and for which caution memo was issued to these officers. In view of the above circumstances, it cannot be said that the action of the respondent is totally unjustified and mala fide without following due process of law. In fact the petitioner would be provided sufficient opportunities to prove himself innocent.
5. it is clear that no explanation is forthcoming for the delay between the period from 25.10.1989 to May 1990 and what is stated in para 5 is no explanation at all in law.
6. The DDA had issued chargesheet only for a minor penalty apparently being aware of the vulnerability of the action taken by the DDA. The dictum laid down by the Supreme Court is very clear and I have referred to the judgment of the Supreme Court in the case of CW no.2648/96 and there is no need to repeat the same here. I am satisfied that there has been no explanation has been given at all in delay on the part of the respondent. Learned counsel for the respondent submitted that there has been delay on the part of the petitioner in coming to this court. In order to escape out the situation the technical point is being taken by the respondent to put the burden on the petitioner and that cannot be allowed.
7. On the facts and circumstances of the case, I am satisfied that the case is fully covered by the judgment of the Supreme Court reported in The State of Madhya Pradesh Vs Bani Singh and another. .
8. Accordingly, the writ petition stands allowed. The writ petitioner is entitled to all the benefits and his case shall be considered for promotion in accordance with law.