Central Administrative Tribunal - Delhi
Shri C. Uday Kumar vs Union Of India on 1 September, 2015
Central Administrative Tribunal Principal Bench OA No. 2259/2015 Order Reserved on:23.07.2015 Order Pronounced on:01.09.2015 Shri C. Uday Kumar, S/o Shri S. Chellappan, R/o House No. B-2, Delhi Govt. Residential Flats, Sector D-2, Vasant Kunj, New Delhi-110070 -Applicant (By Advocates: Ms. Jyoti Singh, senior counsel assisted by Ms. Lakshmi Gurung) VERSUS 1. Union of India, Ministry of Home Affairs Through its Secretary, New Delhi-110001 2. Government of National Capital Territory of Delhi, Through its Secretary (Vigilance) Delhi Secretariat, 4th Level, C-Wing, IP Estate, New Delhi-110002 3. Delhi Development Authority, Through its Vice Chairman, Vikas Sadan, Near INA, New Delhi-110023 -Respondents (By Advocate: Shri Hanu Bhaskar for respondent no.1 Ms. Sriparna Chatterjee for respondent nos. 2 & 3) O R D E R Dr. B.K. Sinha, Member (A):
The applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 impugning the charge-sheet dated 22.06.2015 served upon him. The applicant was charged that while functioning as Deputy Director (Institutional Land) in Delhi Development Authority (DDA) during 2000-03, he referred the case to Director (Planning) Rohini to explore the availability of site for construction of Community Centre in favour of Desh Raj Jai Education Society and subsequently passed orders for placing the case in IAC meeting for allotment of land to the Society in violation of guidelines prescribed in Para 7.13 under the caption Disposal of Institutional Land; to extend undue favour to the Society. By the said Act, the applicant was charged with having exhibited lack of absolute devotion to duty and lack of absolute integrity, thereby contravening Rule 4(1)(i), (ii) and (iii) of DDA Conduct Discipline & Appeal Regulations, 1999 applicable to the employees of the Authority.
2. The applicant has prayed for the following reliefs:-
(a) quash and stale memo dated 24.6.2008 issued by the Respondent no.3;
(b) quash the invalid ante dated 22nd June 2015 charge sheet issued by the Respondents
(c) order and direct the Respondents No.1 and 2 to stay the operation and effect of the charge sheet dated 22nd June 2015 against the Applicant in compliance with the decision of the Honble Supreme Court in the cases referred above;
(d) award costs in favour of the Applicant and against the Respondents; and
(e) Pass any other or further orders/directions as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
3. The facts of the case, in brief, are that the applicant belongs to 1991 batch of DANICS and is presently working as Deputy Commissioner on deputation basis in South Delhi Municipal Corporation (SDMC). The applicant had served in DDA during the period 1999 to 2003 as Deputy Director. While serving as Director, Social Welfare, Andaman & Nicobar Islands, the applicant was served with a memorandum dated 24.01.2008 by the respondent no.3 DDA in respect of the charges mentioned above along with other two co-accused officials, namely, one Jagdish Chander, Director (Lands) and one Govind Kumar Sharma, UDC (Dealing Assistant) for not following the guidelines while processing the case of M/s Desh Raj Jai Kumar Education Society. The applicant submitted his explanation on 04.02.2008. The respondent no.3 DDA, in the meanwhile, referred the matter to CVC for first stage advice against all the above three officials. Vide letter dated 28.03.2008, CVC gave first stage advice for initiation of major penalty proceedings against the said Jagdish Chander Director and Govind Sharma UDC, Dealing Assistant (who were DDA employees). In the case of applicant, being a DANICS officer, CVC advised DDA to seek views of the respondent no.1 before giving first stage advice. Thereafter, it is the case of the applicant that he did not receive any communication from the respondent no.3. However, when the applicant applied for the post of Director Project Administration and Finance SAARC Development Fund Secretariat, Thimpu, Bhutan, on deputation, he was informed on 17.1.2011 that his application could not be forwarded on account of disciplinary proceedings pending against him. On 11.04.2011, the applicant received a letter dated 25.03.2011 from the respondent no.3 calling for his reply to the earlier communication dated 24.01.2008. The applicant submitted his explanation on 19.04.2011 denying all the charges and followed it by another letter 20.05.2011. The respondent no.1 vide his communication dated 16.08.2011 directed the respondent no.2 GNCTD to forward para wise comments of respondent no.3 DDA, on the representation dated 20.05.2011 of the applicant and draft sheet etc. In the meantime, the CVC vide its communication dated 29.08.2011 rendered second stage advice in respect of the other two officers charged along with the applicant and recommended dropping of charges against the said Jagdish Chandra and Govind Sharma and directed DDA to look into the relevancy of prescribed guidelines. The CVC further directed that in case these guidelines were required for greater transparency, the same should be made strictly enforceable. On the basis of the second stage advice, the DDA dropped the charges against the said Jagdish Chandra and Govind Sharma vide OM dated 28.09.2011. It also came to the conclusion on the basis of the representations submitted by the applicant dated 20.05.2011 and also on the basis of finding of inquiry held, that there was no case against the applicant and recommended the respondent no.2-GNCTD to drop the case against him. However, the MHA took up the case seeking para-wise comments of DDA on the representation of the applicant dated 20.05.0211 on 27.11.2012, to which the DDA intimated MHA that it had already recommended to the respondent no.2 for dropping of the charges against the applicant. It appears from the perusal of the case that the matter continued to linger and the DDA vide its letter dated 8.2.2013 again asked the MHA to close the case on the principle of equity, as in the inquiry conducted against other two persons, namely, Jagdish Chandra and Govind Sharma, charges were found not proved.
4. The respondent no.1, however, continued to pursue the matter and the DDA, vide its communication dated 14.03.2013, concurred with the explanation of the applicant that he had adopted all norms prescribed by the IAC during processing the allotment cases which were in practice at that time. As the inquiry has been dropped against the other two co-charged officials under concurrence of the CVC, the same would have also been applicable to the applicant in case he had been a DDA employee. Thereafter, it appears that the applicant submitted a series of representations to the respondents for dropping the charges and closing the case. When the issue was not resolved, the applicant filed OA No. 1507/2015 before this Tribunal, which was decided vide order 12.05.2005 directing the respondents to decide the representation of the applicant within a period of four weeks. In the meantime, the applicant entered the zone of consideration for promotion on the basis of seniority, and the DPC was conducted on 22.06.2015 wherein he was considered fit for promotion. However, the applicant alleges that the charge-sheet was handed over to him on 25.06.2015 in order to deprive him of promotion, despite the fact that his OA had been disposed of vide order dated 12.05.2015.
5. The applicant has adopted a number of grounds for his Application but during the course of arguments, only limited number of grounds were urged, which are as under:-
6. In the first place, the alleged misconduct had taken place while the applicant was on deputation to the DDA. Of the three persons charged, two were DDA employees. They were departmentally proceeded against and charges were dropped against them under the advice of the CVC. Had the applicant continued on deputation with the DDA, he would have been similarly proceeded against and exonerated as the other two co-charged officials, namely Jagdish Chandra and Govind Sharma. However, it is only because the applicant was repatriated to his parent cadre that the proceedings are being initiated against him. This, the learned counsel for the applicant vehemently submitted, is against the principles of equity, and also amounts to transgression of Article 14 of the Constitution. For this, the applicant has relied upon the cases decided by the Honble Supreme Court in Bundhan Choudhary vs. State of Bihar, (1955) 1 SCR 1045 and State of Uttarpradesh Vs. Rajpal Singh, (2010) 5 SCC 783. The allegations are identical as had been in respect of other two charged officers, namely, Jagdish Chandra and Govind Sharma, which had undergone the gambit of departmental proceedings and found unsubstantiated. Therefore, there is no way that the charges would sustain against the applicant. Further, the respondent no.1 has been repeatedly advised by the respondent nos. 2 and 3 to drop the charges, which has gone unheeded by the respondent no.1. The applicant has also adopted the ground of delay. It is lastly contended that if inquiry were to be proceeded against the applicant, it would re-open a case where inquiry had been completed in respect of two other co-charged officials. The learned counsel for the applicant submitted with good deal of passion that this is a gross abuse of the process of law.
7. Counter affidavits have been filed by the respondent nos. 1 and 3. Respondent no.2 has simply adopted the arguments of the respondent no.3. Both the respondent nos. 2 and 3 were represented by a common counsel Mrs. Sriparna Chatterjee.
8. The learned counsel appearing for the respondent no.1 sought dismissal of the OA on the ground that the applicant had not submitted reply to the charge memo issued against him on 22.06.2015. He assured the applicant that he shall have full right to defend himself and place all the points before the enquiry officer as provided under CCS (CCA) Rules. Learned counsel further questioned the scope of judicial intervention in the matter at hand on the ground that so far only a chargesheet has been issued and no other action has been taken. The best place to establish/refute the veracity of the charges is on the floors of departmental enquiry where the prosecution witnesses and the enquiry officer are face to face and where the evidence is being built up. Learned counsel strongly submitted that the applicant had submitted a representation which has been duly considered and rejected by the respondents. The second argument of the leaned counsel for the respondent no.1 was that it has been incorrectly averred that para 7.13 of the Guidelines on the Land Management (Vol.I) of the DDA ceased to be in force. It has never been retracted or placed under abeyance. Per contra, as soon as the guidelines were adopted, these provisions came into force. Just because in a particular case, the officers have not complied with the guidelines, it cannot be claimed that para 7.13 has not been operationalized. The learned counsel further submitted that the respondent no.3 and the applicant are on the same side. It is agreed that the applicant had been on deputation with respondent no.3/DDA from 1999 to 2003 during which the said alleged infringement of the rules had taken place. However, considering the fact that the respondent no.1 is the Cadre Controlling Authority of the applicant, the respondent no.3 has no business to interfere in the matter. The learned counsel further submitted that the matter had been referred to the CVC and the department was acting as per the advice of the CVC.
9. The respondent no.3 supported the applicant. The learned counsel, however, submitted that the charges have been enquired in detail through the gamut of the departmental proceedings and were found not proved. The charges being the same against the applicant, the principle of parity would be attracted and closure of the case would be just and equitable. The matter had been clarified to the respondent no.1 on occasions more than one, yet no action was being taken.
10. We have carefully examined the pleadings of the parties as also the documents submitted by them and also listened oral submissions made by their respective counsels.
11. We find that the matter is to be decided strictly within the ambit of legal framework as all other facts are admitted. We find that the following issues clearly emerge as being germane for adjudication in the matter:-
(i) Whether the matter lies within the scope of judicial review to quash the charge-memo particularly when it is pending inquiry?
(ii) Whether the action of the respondent no.1 is barred by delay?
(iii) Whether the charge-sheet served upon the applicant militates against the principle of equity?
(iv) What reliefs, if any, could be granted to the applicant under the circumstances of the case?
12. Insofar as first of the issues is concerned, it has been decided by this Tribunal in KVM Abdunnafih vs. Union of India & Ors. (OA No. 2055/2010 decided on 26.08.2014), wherein one of the issues framed was as to what is the scope of judicial intervention in departmental inquiry, which is answered in the following manner:-
8. Insofar as the first of the issues is concerned, it is well settled legal proposition that the principles of natural justice need to be complied with and the employee has to be treated fairly in departmental proceedings which may culminate into imposition of a punishment. However, it is appropriate that the scope of judicial intervention in departmental proceedings be defined at the very outset. The role of judicial intervention in departmental proceedings is indeed limited and circumscribed by pronouncements of Honble Supreme Court and Honble High Courts from time to time. During departmental proceedings, the inquiry officer is face to face with the charged officer and also has the benefit of examination of the documents on which reliance has been placed in the inquiry. He is also a privy to examination of witnesses and their cross-examination as well as proving of the documents adduced as evidence. This benefit is not there either in the appellate court or in tribunal/high courts, which have to rely upon the evidence recorded during the course of departmental proceedings. It is well settled law that the scope of judicial review is limited and is permissible to the extent of finding whether the process in reaching the decision has been observed correctly, and not the decision as such. However, we cannot reappraise the evidence on record and are to confine ourselves to the main issues concerned with the exercise of jurisdiction, namely, whether departmental proceedings are vitiated on account of mala fide or infringement of any statutory provisions relating to conduct of departmental inquiry or proceedings being barred by some gross procedural laches. In case of S.R. Tewari Vs. Union Of India & Anr. Vs. R.K. Singh & Anr. 2013 (6) SCC 602], the Honble Supreme Court has held that where the findings are perverse i.e. they have been arrived at by ignoring and excluding relevant material or taking irrelevant inadmissible material into account, the findings of the inquiry are likely to be set aside. For better illustration, it is apt to quote paras 22 and 24 from the judgment of the Honble Supreme Court in this very case:-
22. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: Union of India & Ors. v. Bodupalli Gopalaswami, (2011) 13 SCC 553; and Sanjay Kumar Singh v. Union of India & Ors., AIR 2012 SC 1783).
24. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, AIR 1984 SC 1805; Kuldeep Singh v. Commissioner of Police & Ors., AIR 1999 SC 677; Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary, AIR 2010 SC 589; and Babu v. State of Kerala, (2010) 9 SCC 189).
This view has been further supported in GAIL India Vs. Gujarat State Petroleum Corporation [2014 (1) SCC 329]:-
28. In Arun Kumar Agrawal v. Union of India and others (2013) 7 SCC 1, this Court was called upon to consider the scope of judicial review of complex economic decision taken by the State or its instrumentalities. The Government of India, ONGC and Shell entered into a production sharing contract with a private enterprise for exploration and exploitation of crude oil and natural gas in respect of the Rajasthan Block. After due deliberation, the Government of India endorsed the decision taken by ONGC. While refusing to interfere with the decision of the Government, this Court observed:
We notice that ONGC and the Government of India have considered various commercial and technical aspects flowing from the PSC and also its advantages that ONGC would derive if the Cairn and Vedanta deal was approved. This Court sitting in the jurisdiction cannot sit in judgment over the commercial or business decision taken by parties to the agreement, after evaluating and assessing its monetary and financial implications, unless the decision is in clear violation of any statutory provisions or perverse or taken for extraneous considerations or improper motives. States and its instrumentalities can enter into various contracts which may involve complex economic factors. State or the State undertaking being a party to a contract, have to make various decisions which they deem just and proper. There is always an element of risk in such decisions, ultimately it may turn out to be correct decision or a wrong one. But if the decision is taken bona fide and in public interest, the mere fact that decision has ultimately proved to be wrong, that itself is not a ground to hold that the decision was mala fide or taken with ulterior motives.
Similar views find echo in the judgments of Honble Supreme Court in Bihar State Government Secondary Teacher Association Vs. Bihar State Education Service Association, 2012(11) SCALE 291 and Union of India Vs. Upendra Singh, (1994)3 SCC 357. In the decision of Upendra Singh (supra), the Honble Supreme Court has emphasized that the Tribunal cannot take over the function of the disciplinary authority. The truth or otherwise of charges is a matter for the disciplinary authority to go into and it has no jurisdiction to go into the truth of the charges or the correctness of the findings recorded by the disciplinary authority or the appellate authority, as the case may be. In the case of H.B. Gandhi Excise and Taxation Officer-cum-Assessing Authority Kamal Vs. Gopinath and Sons, 1992 Supp.(2) SCC 312, the Honble Supreme Court reaffirmed that the judicial review is not directed against the decision, but is confined to the decision making process. It cannot extend to the examination of the correctness or reasonableness of the decision as a matter of fact. The purpose of judicial review is to ensure that individual would receive fair treatment, but not test the correctness of the decision taken by the competent authority. It is not an appeal from the decision but rather a review of the manner in which the decision is made. The Honble Supreme Court was, at pains, to dispel the impression that the court sits in judgment not in respect of the correctness of the decision but of the decision making process. It flows from the above that the Honble Supreme Court has drawn a Laxman Rekha, which this Tribunal cannot venture to cross. We, therefore, cannot go into reappraisal of the facts and the evidence adduced before us and into questions of identity and motives. This issue is accordingly answered.
It suffices to say that what is under challenge here in the instant OA is not the veracity of the charges. What is being challenged is the process by which these charges have been framed and the legal issues involved. It has been rightly observed in the case of KVM Abdunnafih vs. Union of India & Ors. (supra) that Honble Supreme Court has drawn a Laxman Rekha beyond which the Tribunal cannot venture. However, in the instant case, we find that the applicant has challenged the act of issuing a charge-sheet, which was the subject matter of departmental inquiry where same set of charges as to allotment of land to M/s Desh Raj Jai Kumar Education Society levelled against two co-charged officers were not held as proved and they were exonerated. It now remains to be seen that whether it is within the principles of jurisprudence to serve the charge-sheet upon the applicant, particularly when the respondent nos. 2 and 3 had repeatedly drawn the attention of the respondent no. 1 towards the legal as well as the factual position. Therefore, we feel that we are very much on this side of the Laxman Rekha and have not ventured beyond. It lies within the competence of this Tribunal to consider quashing the proceedings even if it has not been put through the process prescribed under the CCS (CCA) Rules where any one of the conditions laid down by various Honble superior courts are met: the chargesheet being issued by the incompetent authority; the charges not being made out in the chargesheet; proven case of mala fide deriving departmental proceedings and where the chargesheet has been made against any express provision of law or rules. The issue is accordingly answered.
13. Insofar as second of the issues is concerned, the argument of the applicant is that while the alleged occurrence relates to the year 2001, a show cause was served upon him vide memo dated 24.01.2008 and now the charge-sheet has been served upon him on 22.06.2015. Thus, there is a clear gap of 14 years between the occurrence of the charge and the service of the charge-sheet. The reply of the respondents is that the procedures involved in framing the charge-sheet under the peculiar circumstances of this case consumed a good deal of time. However, it is not necessary that in every case, the delay is fatal to the departmental proceedings. While acknowledging the factor of delay, the learned counsel for the respondents submitted that it was on account of agencies involved and the reluctance shown on the part of the other two respondents to cooperate with the department. In this regard, the applicant has relied upon the case of State of Madhya Pradesh v. Bani Singh, AIR 1990 SC 1308 wherein it has been held:-
There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the department enquiry to be proceeded with at this stage. The same is supported by the decision of this Bench in Baldev Raj v. Union of India & Ors. (OA No. 2646/2012 decided on 05.08.2014) wherein this Tribunal had held:-
4. In view of the above, you may submit your reply to explanation letter dated 25.09.2008 served upon you by the then JCDA (PD) Jalandhar Cantt.
Thus, when respondents have neither any witnesses to examine nor any relevant documents to produce, it is not understood that in what manner and for what purpose they have proposed to hold an enquiry against the applicant. We are sanguine that where the charges are fatal the delay may not be ground to interfere with the same. The premises in which a chargesheet is interfered on the ground of delay are:-
there is presumption that the disciplinary authority condoned the lapse of employee;
the delay has caused prejudice to the defence of the Charged Officer.
As has been noticed hereinabove, the allegation made against the applicant is only of not adhering to the procedure and obviously after a period of 16 years when the respondents themselves do not have the documents in their possession, the applicant cannot be expected to defend himself effectively. The only explanation for the delay given in the additional affidavit filed on behalf of respondents is that on 24.07.2008, the main accused was dismissed from service and the explanation was called from the applicant on 25.09.2008. Apparently when after the irregularity came to light in the year 2005, action could be taken against the main accused and he was dismissed from service on 24.07.2008, there is presumption that the respondents either believed there was no lapse on the part of applicant or condoned the same, otherwise, there was no reason for not instituting proceedings against him alongwith the main accused. The plea that after 2008 the applicant spent time in asking for relevant papers like the affidavit etc. is no explanation for the delay, as even now when the applicant asked for two documents, the respondents are unable to provide the same. Further, in the case of M.L. Tahilani v. DDA, 98 (2002) DLT 771, the Honble Delhi High Court after going through the cases of Rajinder Kumar Chopra vs. Food Corportion of India & Ors. 1998 Lab IC 2500 and OP Sachdeva & Ors. vs. Food Corporation of India, 2000 Lab IC 2040, held that there was no justifiable reasons for delay at the stage of framing of the charges and hence quashed the proceedings.
14. In the instant case also, we do not find the explanation of delay backed by adequate reasons. This issue was also considered in Neeraj Singh IRS v. Union of India & Ors. (OA No. 3550/2012 decided on 30.05.2013), wherein this Tribunal had gone into the issue in depth. The Tribunal found that there were instances of both kinds where delay of four years had proved fatal to the proceedings while much longer delay had been glossed over under the circumstances of the case. This Tribunal has held in the case of Neeraj Singh that there can be no hard and fast rule for judging delay in framing of charge-sheet or disposal of proceedings. It shall depend upon the circumstances of the case. It is an accepted principle of law that every case is authority in itself. Therefore, the power of judging as to whether delay in framing charge-sheet or concluding the proceedings attracts fatal consequences shall depend upon a number of factors; the gravity of the charges, the procedure involved; the explanation forthcoming from the respondents; and other extenuating factors. In the instant case, we have already mentioned that we find no satisfactory explanation for the delay. However, this will be decided conjointly with other factors.
15. The issue no.3 is the main question of law that has to be decided in order to adjudicate over this case. It is an admitted fact that the applicant and two other co-charged persons were issued identical charges; the co-charged officials were subjected to departmental inquiry on the charges and the same were not found proved; the respondent nos. 2 and 3 have brought this to the knowledge of the respondent no.1 repeatedly that in view of the aforesaid position, no charges are getting proved against the applicant. In the case of Budhan Choudary vs. State of Bihar (supra), the Honble Supreme Court have held as under:
It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question.
16. In the State of Uttar Pradesh & Ors. v. Raj Pal Singh (supra), the respondent had been charged with beating a prisoner mercilessly along with four other Asstt. Warders. The Honble High Court came to the conclusion that the charges and the delinquency being same and identical, and all the employees having been served with a set of charges out of the same incident, there was no justifiable reason to pass different orders of punishment, and, therefore, the order of dismissal could not be sustained. The Honble High Court consequently set aside the order of dismissal. It is this order of the Honble High Court which was the subject matter of challenge in this appeal filed before the Honble Supreme Court. Their Lordships after considering the decision of the Honble High Court, held as under:-
It is undoubtedly open for the disciplinary authority to deal with the delinquent and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution. Though the High Court by the impugned judgment has directed that the delinquent would be paid 50% of the backwages, but having regard to the nature of charges against the respondent, we are not inclined to allow any backwage from the period of dismissal till the date of reinstatement. We are told that he has been reinstated on 5.11.1997. We make it clear that respondent will not be entitled to any backwage from the date of dismissal till 5.11.1997.
17. In the case of Farooq Anjum v. South Delhi Municipal Corporation & Anr. (OA No. 831/2013 with connected OA Nos. 1037/2013 and 1038/2013, decided on 11.11.2013), the applicant a Junior Engineer in the respondent organization was charged with failure to maintain absolute integrity and devotion to duty and to behave in a manner which is unbecoming of a municipal employee. A similar memo was given to all other persons along with him. The plea taken by the applicant was that when the memo of charges against seven Junior Engineers and the applicants were identical, in their cases also, the departmental proceedings should have been dropped after issuing the advisory memos. Therefore, contrary action on the part of the respondents was arbitrary, illegal and in violation of Article 14 of the Constitution. The applicant in that case had also relied upon the cases of Budhan Choudhary v. State of Bihar (supra), State of Uttar Pradesh & Ors. v. Raj Pal Singh (supra) and the decision of the Allahabad High Court in Ram Pratap v. State of UP & Ors., 1999(2) ATJ 325. The Tribunal, after going through the aforesaid decisions, arrived at the following conclusion:-
8. In the judgemnt of the Apex Court in Budhan Choudhary and others (supra), it has been held that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together. Just because, after trifurcation of the Municipal Corporation, the applicants happened to be working in SDMC, the respondents cannot claim that the applicants are not similarly situated and they can treat them differently.
9. In the above identical facts and circumstances of these cases, we allow this OA and quash and set aside the impugned order and hold that the applicants are also entitled to be treated in the same manner as in the case of other similarly placed persons against whom the charges have been dropped after issuing the advisory memo. We, therefore, direct the Respondents to pass necessary orders accordingly. Consequently, the applicants will also be entitled to all consequential benefits as in the case of their counterparts against whom the charge memos have been dropped by the Commissioner, NDMC. The aforesaid directions shall be complied with within two months from the date of receipt of a copy of this order.
18. We have additionally considered two other facts. In the first instance, it is an admitted position that the land had not been allotted and transaction had never been completed. Therefore, there was no wrongful loss or wrongful gain accruing to any of the parties. In the second place, we have also considered the submission of the learned counsel for the respondents that it was wrong on the part of the respondent no.3 to have submitted that the concerned Para 7.13 of the Guidelines on Land Management had never been put into abeyance. For the sake of clarity, said Para 7.13 is reproduced below:-
Procedure for processing of institutional allotment cases 7.13 Procedure for processing of application received for allotment of institutional land has been rationalised and the following aspects of the prescribed are highlighted:-
i) All applications received on the prescribed application from (Annexure 7.1) will be entered in a Master Register, ad-seriatum, under heads; date of receipt of application, name of society, area/built up space applied for, locality preferred, if any, purpose of allotment, date of consideration by IAC, date of issue of allotment-cum-possession letter, date of handing over possession, file number etc.
ii) Applicants for allotment of land for educational purposes would be advised to approach Director of Education for allotment of land for educational purposes would be advised to approach Director of Education, Delhi Admn. Only the cases cleared by Land Allotment Committee under Director of Education will be processed in DDA for placement before the IAC for allotment of land.
iii) Applications received will be taken up for examination within 15 days of receipt of the same. A note would be prepared in respect of all the applications which are found to satisfy the requirements of Nazul Rules on standard proforma at Annexure 7.2. The standard note will be circulated to all the members of IAC inviting their comments within 15 days, specifying the date by which the comments should be received.
iv) Within a fortnight after the specified date, agenda note in form Anenxure 7.3 would be prepared by incorporating the comments of the concerned Deptts. for consideration by the IAC. Only the cases where specific plots have been recommended by the Planning wing would be considered for approval.
v) Such of the cases which are cleared by IAC will be compiled and sent to Planning Deptt. for preparation of handing over possession-plan within stipulated time of 15 days. No individual file of Land Deptt. will be referred to Planning Deptt.
vi) Entire procedure for allotment will be completed within a period of three months from the date of application, to handing over possession.
A progress report about the action taken on the cases cleared by the IAC in the previous meeting under the heads: whether the possession plan received from the Planning Department, whether site demarcation done and possession handed over, premium received and lease executed shall also be placed before IAC. The progress report would also contain a brief report about the number of applications received during the month, how many rejected for want of conformance to the Nazul Rules and how many cases finally processed for placement before the IAC. This rule had never been put into abeyance or under suspension. So long as the said para 7.13 stands on the book of statute, it cannot be pleaded that it is not under implementation or has been placed under abeyance. However, this relates to the merit of the case. This is a matter which could have been taken up by the respondent no.1 with the other two respondents. It is the respondent no.3 with whom the applicant was serving on deputation who is competent to frame charges against him. When the respondent no.3 does not take it as a misconduct and has held so in respect of two other co-charged officials, we find no ground as to why charges should sustain to proceed departmentally against the applicant. This issue is accordingly answered against the respondent no.1 and is squarely covered by the decision of the Tribunal in OA No. 831/2013 with two connected OA Nos. 1037/2013 and 1038/2013.
19. Coming to the final issue, we have already noted that the authority of this Tribunal to go into this matter is proved; that the delay in issuing show cause and then finally serving a charge-sheet is too much for comfort and remains largely unexplained; and the action of the respondent no.1 in issuing charge-sheet particularly when two other co-charged officials have been proceeded on the same charges and exonerated. We have also taken note of the facts that the transaction was never completed and the applicant is due for promotion. We have noted in many instances that such charge-sheets have a tendency to appear on the eve of promotion of an employee. It is alright for the respondents to say that the applicant is being subjected to a departmental proceeding and if he is not found guilty, he would be exonerated. This Tribunal had already held in the case of Neeraj Singh IRS v. Union of India & Ors. (supra) that a department proceeding puts an employee being proceeded to stigma and he undergoes mental tension till the proceeding is concluded and he is exonerated. It would be extremely unfair if the applicant were to be subjected to this proceeding particularly when we find that the delay in issuing charge-sheet has been fatal and the action of the respondents has rendered ultravires on account of violation of Article 14 of the Constitution. Therefore, we find merit in the OA and allow the same but without costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/