Central Administrative Tribunal - Delhi
Shri Om Prakash vs Delhi Development Authority on 20 August, 2009
Central Administrative Tribunal Principal Bench OA No. 2103/2008 New Delhi, this the 20th day of August, 2009 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Om Prakash Aged about 54 years, S/o Shri Durga Prashad R/o 174-D, Pocket-I, Mayur Vihar, Phase-I, Delhi 110 091. 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. Sh. J. D. Pahuja, Inquiry Officer, Room No.8, DDA Office Complex, Near Double Water Tank, Paschim vihar, Outer Ring Road, Delhi. Respondents (By Advocate: Shri Karunesh Tandon) :ORDER: Honble Dr. Ramesh Chandra Panda, Member (A):
Shri Om Prakash, the Applicant herein, a Superintending Engineer (SE for short) of Delhi Development Authority (DDA), has through this OA, assailed the Memorandum of charge sheet dated 15.11.2007 (Annexure-A1), Order of appointment of Inquiry Officer vide order dated 2.1.2008 (Annexure-A2) and order of appointment of Presenting Officer vide order dated 2.1.2008 (Annexure-A3). The Applicant sought the intervention of this Tribunal for interim direction to restrain the Respondent No.3 for holding of the inquiry proceedings till the disposal of this Original Application. At the admission stage, Shri Sidharth Joshi, learned counsel for the Applicant prayed for stay of the departmental proceedings against the Applicant with regard to allegations that pertains to year 1993-1995, which was heard on 26.9.2008 and stay of the departmental proceedings was granted till the next date of hearing.
2. The facts of the case would reveal that while the Applicant was working as Executive Engineer RPD-10 during the period 15.1.1992 to 22.7.1995, he was in charge of the work C/o 992 LIG Incremental Houses in Pkt.10, Sec.24, Rohini, which was being constructed by M/s Ahuja Construction Co. as per the agreement dated 24.12.1992. The Quality Control Cell (QCC) of DDA inspected the work site thrice and made certain observations in their report dated 30.4.1987, 30.11.1993, 31.5.1994 and 17.11.1995 (Annexure A/6 colly). The Applicant was served with a show cause Memorandum dated 25.7.2007 (Annexure A/3) calling for his explanations. With his fading memory, he could submit his explanation vide his letter dated 21.8.2007 (Annexure A/4). Consequently, the Applicant was issued Memorandum of Charges by the Respondent No.2 vide Memo dated 15.11.2007 (Annexure A/1) informing about the proposed enquiry to be held for 2 charges under Regulation 25 of the DDA Conduct, Disciplinary and Appeal Regulation 1999. The Applicant denied the alleged charges in his letter dated 21.11.2007 (Annexure A/5). Shri J. D. Pahuja, Chief Engineer (Retired) DDA was appointed as Inquiry Officer (I.O.) vide DDA order dated 02.01.2008 (Page 20). Shri S. P. Mitra, EE (Elect) was appointed as the Presenting Officer vide DDA Order dated 2.1.2008 (Page 21). It is the case of the Applicant that his subordinate [Shri R. C. Pruthi, the then AE (C)] admitted the charges on the basis of the same QCC Inspection Reports and was imposed the penalty of 5% cut in pension for one year involving a sum less than Rs.5000. The order dated 10.1.2008 against Shri Pruthi is at Annexure A/7. The Applicants plea is that the charge sheet was issued after 12 long years which will affect the prospect of his promotion as Chief Engineer.
3. The notice was issued to the Respondents on 26.9.2008 and the learned Counsel for the Respondents submitted written reply/counter on 04.03.2009. Thereafter, the Applicant was granted time to file rejoinder which was filed on 15.4.2009. We finally heard the rival parties on 14.7.2009, where Shri Sidharth Joshi the learned counsel represented the Applicant and Shri K. Tandon, the learned counsel represented the Respondents.
4. Shri Sidharth Joshi, the Learned Counsel for the Applicant raised many contentions in support of the OA. (1) He contended that the impugned Charge Memo was served upon the Applicant after about 12 years of the inspection by QCC and the Respondents having not furnished the explanation for delay, the entire disciplinary proceeding was to be treated as illegal. He relied on the judgment of Supreme Court in the case of State of Madhya Pradesh versus Bani Singh (AIR 1990 SC 1308. (2) Further, he highlighted that the Respondent DDA recommended for minor penalty proceeding but the CVC advised to proceed with major penalty charges. Shri Joshi contended that the Applicant did not get fair opportunity and thus such action was violative of Article 14 and the Principles of natural justice. Shri Joshi laid his reliance on the judgment of Honble Supreme Court in the case of DTC versus DTC Mazdoor Congress (AIR 1991 SC 101). (3) His contention was that the charges were based on mere suspicion and presumption that the Applicant was responsible for inadequate supervision of the works. Minor acts of negligence in discharge of official duties do not constitute misconduct. He relied on the judgment of Honble Apex Court in the case of Union of India versus J. Ahmed (AIR 1979 SC 1022). (4) After a long lapse of time, the Applicant was unable to remember the facts of what and how he supervised the works executed so many years old. (5)He also contended that prejudice was being caused against the Applicant in view of the fact that the Applicant was kept under constant fear for so many years and charged on the verge of his promotion. This opinion would be malafide, contends the Learned Counsel. The judgment of Honble Supreme Court in Kundan Lal versus Delhi Administration and Others (1976 SLR 133) was relied on.(6) His another contention is that the alleged charges were not based on the assigned duties of Executive Engineer as per CPWD Manual. (7) Shri Joshi cited judgments of this Tribunal in case of S. V. Sharma versus Delhi Development Authority and 2 others (TA 182 of 2007 decided on 21.5.2008) and C. D. Sharma versus Delhi Development Authority and 2 others (TA 126 of 2007) decided on 15.5.2008 to highlight that all charges were quashed and set aside. The Applicant in the current OA and the Applicants in the cited 2 TAs being similarly placed and facing charges after long lapse of time, needs to be quashed and the charges against him should be quashed.
5. On the contrary, Shri K. Tandon, the learned Counsel for the Respondents, opposed Shri Joshis contentions and raised preliminary objection that the Applicant had submitted himself for the inquiry and no punitive action had been arrived at. His contention is that no cause of action has arisen and the OA is prematurely moved by the Applicant. His contention was that he failed to get the works in question rectified during his tenure. After identifying the officers responsible, the charge memo was issued. He drew our attention to the events stated in the Para 4.3 of the counter reply (Page 133) to contend that there was no delay on the part of DDA. Shri Tandons contention was that the supervisory lapse on the part of the Applicant caused financial loss of Rs.533107/- (Rs.440000+Rs.93107), which is a serious misconduct and the Applicant is liable for the major penalty. Thus, he pleaded to dismiss the OA.
6. Having heard the rival contentions and perused the pleadings, we may examine the nature of charges framed against the Applicant. He was charged with 2 Articles of charges and pleaded not guilty of the charges contained in the charge sheet (Annexure-I). The statement of imputation of misconduct in support of Articles of charge read as follows :-
That the said Shri Om Prakash E.E. (Now S.E.) while working as Ex. Engineer/RPD-10 during the period 15.1.1992 to 22.7.95 was in charge of the work C/o 992 LIG incremental houses in pocket-1, 10, 13,25 & 26, Sector-24, Rohini. SH: 176 LIG incremental houses in Pkt. 10, Sec.24, Rohini. Agency: M/s Ahuja Construction Co. Agreement No.07/EE/RPD-10/92-93 dt. 24.12.92.
Article-I That the said Sh. Om Prakash, E.E. (Now. S.E.) has shown lack of supervision and failed to exercise effective supervision of work. Defects in general pointed out by Quality Control Wing were not complied judicially to the entire work, which resulted in execution of poor quality of RCC work. Till date roof slabs of flat Nos. 51, 52, 53, 60&89 have been dismantled and re-laid at an extra cost which could have been avoided, thus causing a financial loss to the Department to the tune of Rs.93,107/-.
Article-II That the said Shri Om Prakash, E.E. (Now S.E.) has shown lack of supervision and failed to take timely action for removal of efflorescence and rectification of the defective plaster at the initial stage of the execution of the work as pointed out by Q.C. Cell/DDA and other defects at the risk and cost of the agency thus, putting Department to an another tentative financial loss of Rs.4,40,000/- as per the letter of E.E./RPD-10 dated 6.9.2007.
That the said Shri Om Prakash, E.E. (Now S.E.) by his above acts failed to maintain absolute devotion to duty and behaved in a manner unbecoming of an employee of the Authority, thereby violating sub-rule I (i) and I (iii) of Regulation 4 of DDA Conduct, Disciplinary and Appeal Regulations, 1999.
7. The Applicant worked as Executive Engineer from 15.01.1992 to 22.7.1995 when he was in charge of the Works, which were inspected by QCC and submitted 3 Reports dated 30.11.1993, 31.5.1994 and 17.11.1995. He averred that all of sudden the Respondents served on him a Memorandum dated 15.11.2007 after a gap of about 12 years of the period to which the matter pertained. He alleged that the Respondents maintained an eerie silence for such long 12 years. Such delay, it is stated, is not only illegal but against the directions of CVC dated 23.5.2000. The Respondents in their written submission had submitted that DDA suffered financial loss due to the Applicants negligence. We have gone through the pleadings and provide below the important events and the dates relevant to this OA in a chronological manner:-
15.1.1992 The Applicant in position for supervision of the works.
To 22.7.1995 1993-1995 Works in question for which Applicant was in charge of supervision.
19.10.1993 1st Inspection of the works by QCC 30.11.1993 Submission of the 1st Inspection Report by QCC 3.5.1994 2nd Inspection of the works by QCC 31.5.1994 Submission of 2nd Inspection Report by QCC 6.10.1995 3rd Inspection of the Works by QCC 17.11.1995 Submission of 3rd Inspection Report by QCC 4.5.2006 On the basis of the QCC Reports, SE/CC-9 to recommended that (i) the matter regarding diversion of 22.5.2006 funds of Rs.135000 towards watch and ward and (ii) non rectification of the defects may be investigated by vigilance.
28.6.2006 Chief Engineer (Rohini Zone) sent the matter to the Vigilance Department for further investigation.
25.7.2007 Show cause Memo was issued to the Applicant calling for his explanation.
21.8.2007 The Applicant submitted his explanation.
15.11.2007 The Disciplinary Authority decided to initiate major penalty proceedings and charge memo was issued.
21.11.2007 The Applicant denied the charges and submitted his explanation.
2.1.2008 IO/PO were appointed.
23.9.2008 This OA was filed by the Applicant before this Tribunal.
8. It is admitted fact that the Respondents have not taken action from 17.11.1995 to 15.11.2007 over 12 years. It is also admitted that the Applicant was EE in charge of those works up to 22.7.1995. Since the QCC gave its observations in 3 stages (30.11.1993, 31.5.1994 and 17.11.1995), what prevented the Respondents to analyse at least 2 QCC Inspection Reports and frame charges against the Applicant during the period he was still working there (up to 22.7.1995). Respondents did not attach importance to the QCC Report and did not take action against the Applicant who continued in the same position for over one year even after the 2nd Report of the QCC. The Respondent No.1 and 2 slept over the matter for about 11 years (17.11.1995-28.6.2006) to refer the same to the Vigilance Office. The chronology of events reveal that the disciplinary case is moving at a slow pace and has already taken 16 years since the alleged misconduct seem to have taken place. We find that the Applicant was promoted in the meantime from EE to SE. But, he has been now prejudiced since he has been expecting his promotion to the post of Chief Engineer. With the fading memory of the Applicant, we feel, the disciplinary case will not grant him a fair and reasonable chance to defend his case. The inordinate delay without reasonable justification in issuing the charge sheet by the Disciplinary Authority, in our opinion, cannot be condoned.
9. The Learned Counsel for the Respondent raised an issue that the Applicant had already submitted to the disciplinary proceeding, the Enquiry is going on and when IO is conducting the inquiry and the Applicant has been attending, he has rushed to the Tribunal. Shri Joshi, the Learned Counsel for the Applicant stated that the Applicant had been raising the issue of belated action right from the date he received the show cause notice but the Respondents did not heed to the plea. We examined the issue. We have carefully considered the facts to note that the disciplinary case against the Applicant has so far taken 16 years, his memory in the matter is fading and he is prejudiced since his promotion is likely to be affected by the adverse decision if taken by the Disciplinary Authority. Even if we presume that the Applicant has not come to the Tribunal and the IO completes inquiry submits his Report and the Disciplinary Authority imposes some penalty on him, he will come up before us with the same ground of delayed action and we have to consider the same grounds for adjudication. At the pace the action in the case is moving, finalization of the case will take few more years and the Applicant will be further prejudiced. We are, therefore, of the considered view that this issue raised by the learned Counsel for the Respondent is not acceptable.
10. Having analysed the facts of the case, now we revert to examine the legal aspects of the issues involved in this OA.
11. In a disciplinary proceeding, the nature of charge and the alleged misconduct generally holds the field. There are 2 types of misconducts-viz. serious, and grave misconduct involving corruption etc. and the second type are procedural and supervisory lapses. In case of the grave charges, the Courts and Tribunals would generally tend not to prevent the disciplinary case of the delinquent officials. Honble Supreme Court considered a case of disproportionate pecuniary resources case in B. C. Chaturvedi versus Union of India (1995 (6) SCC 749) and held that delay was considered not fatal since collecting and collating entire evidence to establish the essential links between the public servant and sources of pecuniary benefit would be time consuming process. In such cases, the long hand of law would need considerable time to link the nexus. Further, Honble Apex Court held in Secretary to Government Prohibition & Excise Department versus L. Srinivasan (1996 (3) SCC 157) that case involving embezzlement and detection of false record, authorities would take long time to detect the links and need to enquire in secrecy, the quashing and setting aside of the charge memo on the ground of delay was found to be untenable and irrational. In Food Corporation of India versus V. P. Bhatia [JT 1998 (8) SC 16] where investigation involved tedious process and involvement of certain external agencies, the delay was not found to be a justifiable ground for quashing the disciplinary proceeding.
12. The case of the Applicant is not serious or grave. The disciplinary case in the present OA revolves round the supervisory lapses of the Applicant. The main supervising official being Shri Pruthi, he was imposed a penalty of 5% cut from pension for one year and in financial terms the same worked out to be less than Rs.5000. The Applicant as EE was supervising Shri Pruthi. Practically, he being supervising officer of the real Supervisor of the Works, the culpability of the Applicant in the case would rather be nil or negligible.
13. In this context, we examined the settled legal position. In Delhi Development Authority and others versus D. P. Bambah and Another (LPA 39/1999) decided on 29.9.2003, Honble High Court of Delhi has dealt very extensively the delayed action in disciplinary cases and laid down certain parameters which we consider very much relevant in this case and thus we take the extract of the same which reads as follows :
15. In our opinion the legal position, when an action is brought seeking quashing of a charge sheet on grounds of issuance of the charge-sheet or grounds of inordinate delay in completion of the disciplinary inquiry may be crystallized as under:-
Unless the statutory rules prescribe a period of limitation for initiating disciplinary proceedings, there is no period of limitation for initiating the disciplinary proceedings.
Since delay in initiating disciplinary proceedings of concluding the same are likely to cause prejudice to the charged employee, courts would be entitled to intervene and grant appropriate relief where an action is brought.
If bone fide and reasonable explanation for delay is brought on record by the disciplinary authority, in the absence of any special equity, the court would not intervene in the matter;
While considering these factors the court has to consider that speedy trial is apart of the facet of a fair procedure to which every delinquent is entitled to vis-`-vis the handicaps, which the department may be suffering the initiation of the proceedings. Balancing all the factors, it has to be considered whether prejudice to the defence on account of delay is made out and the delay is fatal, in the sense, that the delinquent is unable to effectively defend himself on account of delay.
In considering the factual matrix, the court would ordinarily lean against preventing trial of the delinquent who is facing grave charges on the mere ground of delay. Quashing would not be ordered solely because of lapse of time between the date of commission of the offence and the date of service of the charge sheet unless, of course, the right of defence is found to be denied as a consequence of delay.
It is for the delinquent officer to show the prejudice caused or deprivation of fair trial because of the delay.
The sword of Damocles cannot be allowed to be kept hanging over the head of an employee and every employee is entitled to claim that the disciplinary inquiry should be completed against him within a reasonable time. Speedy trial is undoubtedly a part of reasonableness in every disciplinary inquiry.
14. The Honble Supreme Court in catena of judgments held that if there was no justification as to the inordinate delay in initiating enquiry, the departmental proceeding would be illegal. We rely on P. V. Mahadevan versus M. D. T. N. Housing Board (2005 SCC (L&S) 861), M. V. Bijlani versus Union of INdia and Others (2006 (3) SLR SC 105), and the State of Andhra Pradesh Versus N. Radhakrishnan (1988 (4) SCC 154). The Apex Court in its judgment in Radhakrishnans case (supra) held that no predetermined principles would be possibly laid down or applicable for all cases where delay had occurred in deciding the disciplinary cases. The relevant part of the judgment reads as follows :-
It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant facts and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice than an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.
15. This Tribunal decided an OA similar to the present OA in a case between Shri Om Prakash versus Delhi Development Authority and Another (OA No.2104/2008). Facts of the case revealed that a charge memo dated 24.3.2008 was issued against the Applicant on the basis of inspection report of QCC on 14.7.1995 for the alleged irregularities which took place during 1993-95. One of the grounds in allowing the OA and quashing and setting aside the charge memo was delay of 13 years in framing the charges. In the present OA, the chronology of events would reveal that the Respondents took about 11 years to send the report of the QCC by the Chief Engineer, Rohini Zone to Vigilance office. Thereafter, Respondents took time to call for Applicants explanation and major penalty charge memo was issued only in November 2007. Thus, we find that more than a decade has been taken to issue a charge memo against the Applicant. The Respondents have not furnished the reasons as to why they took so many years to frame charges. The long hand of law is to make the officials responsible for commission of misconduct accountable provided there are reasons to convince that long hand of law took expandable time to book the delinquent. In the present case, we find that there is even no whisper by the Respondent like that, less to speak of the reasons for delay of so many years for sending QCC Report with views of Chief Engineer (RZ) to Vigilance Office.
16. As per the QCC Report dated 30.11.1993, the inspection was held on 19.10.1993 covering the works started on 3.1.1993 for completion on 2.1.1994 where the progress was only 39%. At the said work place along with the Applicant, 2 officers viz. Assistant Engineer-1, Junior Engineer-1 were also in charge of the supervision. In case of the QCC Report dated 31.5.1994, the date of inspection was on 3.5.1994 where the progress of works was 60% and one AE and another JE were in position for the works supervision. Further, with regard to the QCC Report dated 17.11.1995, the inspection was conducted on 6.10.1995 when the works progress was 100% and supervision was looked after by one more EE, one AE and one JE. This Report does not indicate the Applicant as the Departmental Officer in charge of the work supervision.
17. In the past, this Tribunal has adjudicated some of the cases of DDA, similar to the present OA. This Tribunal heard the case of Shri C. D. Sharma in TA No.126/2007, decided on 15th May 2008, quashed and set aside the charge sheet on the ground of delayed action by the DDA. The Delhi Development Authority went on appeal against the said judgment before the Honble High Court of Delhi in Writ Petition (Civil) No.366/09, which was decided by the Division Bench vide judgment dated 21.01.2009, dismissing the Writ Petition in limine. The relevant paragraphs of the judgment are extracted below, which will guide us in adjudicating the present OA:-
11. As pointed out above, charge against the respondent was that he was responsible for defective work, as pointed out by the CE(QC). The respondent was working as Junior Engineer at that time. Leveling the allegation of defective work and asking the employee to defend such an action 17 years after the execution of the work would itself create prejudice.
12. We are, thus, satisfied that in the facts and circumstances of this case and having regard to the nature of charges leveled against the respondent, delay has caused prejudice to the respondent and, therefore, it would amount to denial of principles of natural justice. We, therefore, do not want to interfere with the impugned judgment in exercise of our extraordinary jurisdiction under Article 226 of the Constitution. Accordingly, this writ petition is dismissed in limine.
18. We have very recently considered an OA (OA No.1752/2008) between Devender Prasad versus DDA and Ors. decided on 5.8.2009 where the OA was allowed taking into account the charges framed against the Applicant after a lapse of 13 years. The present OA being similar to the OA No.1752/2008, the decision in the OA No.1752/2008 would be fully applicable in the current case.
19. Taking into account the facts and circumstances of the case; well settled legal position, we come to the considered conclusion that this is a fit case where the Respondents could not convince us with reasons for the delays at the stage of initiating disciplinary proceeding after long lapse over a decade, and in the result the delayed disciplinary action has caused prejudice against the Applicant. Normally, in the cases where the disciplinary proceedings has commenced, we should not be interfering but taking into account the fact and circumstances of the case, it would be a futile exercise in this case to allow the Respondents to continue with disciplinary proceedings. Therefore, the Charges framed against the Applicant in the Memorandum dated 15.11.2007 and the orders appointing the Inquiry Officer and the Presenting Officer in 2 different orders dated 2.1.2008 are quashed and set aside. The Respondent No.1 and 2 are directed to take steps to issue consequential order and free the Applicant of the charges. They are also directed not to initiate any further departmental action against the Applicant on the same charges. The Original Application succeeds and is, therefore, allowed leaving the respective parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali)
Member (A) Chairman
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