Central Administrative Tribunal - Delhi
Sh. N.K. Prabhakar vs Delhi Development Authority on 11 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 3272/2011 New Delhi this the 11th day of December, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) Sh. N.K. Prabhakar, Executive Engineer, South Western Divin. NO. D.D.A, Dwarka, New Delhi-110075. Applicant. (By Advocate Shri Malaya Chand) Versus Delhi Development Authority, Through the Vice Chairman, Vikas Sadan, INA, New Delhi. Respondent. (By Advocate Shri Karunesh Tandon) O R D E R
Shri G. George Paracken:
The applicant is an employee of the respondent-Delhi Development Authority. While he was working as Executive Engineer, he was informed vide Annexure A-1 Memorandum dated 10.02.2009 that the disciplinary authority has proposed to hold an inquiry against him under Regulation 27 of the DDA Conduct, Disciplinary and Appeal Regulations, 1999. The statement of imputations of misconduct or misbehaviour on which the action was proposed to be taken reveals that the alleged misconduct or misbehaviour on his part was that during the period from 11.05.1992 to August, 1994 while he was functioning as Assistant Engineer/WD-10, he committed certain irregularities in the work C/o 384 houses i/c internal W/S, sewerage, roads in Sector-3, Dwarka, Ph-1 SH: C/o 120 SFS houses Cat.-II, 72 Cat-III houses & 144 Scooter Garages, Group-I. Accordingly, he has been served with the following Articles of Charges:
ARTICLE-1:
During the execution of work, the samples of water, used for construction purpose, under his supervision, got tested, were not the true representatives of the water actually used at site. The findings of Consultants Report indicate that higher chloride contents were found in the concrete samples which could be due to higher chloride contents in water used for construction purpose. The findings of NCC&BM have also been accepted by QAC, DDA.
ARTICLE-II:
Sh. N.K. Prabhakar, EE failed to ensure proper supervision of work resulting in inadequate cover in RCC Members at the time of laying of concrete. The SE/CC-13, after considering the site conditions, directed vide instruction No.36 Dated 17-12-93 that site staff must ensure that clear cover as per specifications is provided for RCC Members. This was reiteration of the provision in CPWD Specifications relevant to the work. The report of NCC&BM mentions that inadequate cover to reinforcements at many locations resulted in reduced protection to reinforcement bars. The report of NCC&BM has identified that the dilapidation, spalling and cracking of cover concrete in beams, columns and lintels are primarily caused by the rebar corrosion.
ARTICLE-III:-
That the said Sh. N.K. Prabhakar, EE failed to ensure proper supervision of work resulting in poor quality and lower strength of concrete used in RCC Members. The report of NCC&BM mentions that poor quality and lower strength of concrete was found in RCC Columns as observed by ultrasonic pulse velocity and core tests at few locations. The report of NCC&BM has identified that the dilapidation, spalling and cracking of cover concrete in beams, columns and lintels are primarily caused by the rebar corrosion.
That the said Sh. N.K. Prabhakar, EE 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 1 (i) and 1 (iii) of Regulation-4 of DDA Conduct, Disciplinary and Appeal Regulations, 1999.
2. As the applicant denied the aforesaid charges, an inquiry was conducted and the Inquiry Officer held that the aforesaid charges have been proved against him. Thereafter, the disciplinary authority, after following the prescribed procedure, imposed the penalty of stoppage of one increment for one year without cumulative effect upon the applicant, vide the Annexure A-2 order dated 18.08.2009. The disciplinary authority held that he had gone through the facts of the case and came to the conclusion that the charged officer (applicant herein) was responsible for not ensuring quality of water and concrete. Therefore, the ends of justice would be met by imposing the aforesaid penalty of stoppage of one increment for one year without cumulative effect upon him. On making a statutory appeal on 07.10.2009, his case was kept pending for more than two years. Finally, vide the Annexure A-3 order dated 19.07.2011, the appellate authority rejected the appeal stating that there was no reason to interfere with the impugned penalty order dated 18.08.2009.
3. This Original Application has been filed by the applicant challenging the aforesaid orders passed in the disciplinary proceedings on several grounds. The first ground raised by the applicant is that on the ground of parity, this Tribunal should quash the impugned orders. In this regard, he has stated that his predecessor Shri Shailendra Kumar approached this Tribunal vide OA 2585/2008 in similar circumstances and this Tribunal, vide its order dated 08.09.2009, held that after 10 years, the buildings had developed the cracks and initiating disciplinary proceedings against the applicant therein holding that he was responsible for the same were found to be absolutely unwarranted as the respondents had failed to justify the huge delay in initiating the proceedings against him. He has also relied upon another order of this Tribunal filed by his predecessor Shri V.K. Gupta vide O.A. 2653/2008. The said O.A was also decided allowing his application on 13.10.2009 holding that the said application was exactly similar to the one which has been considered vide OA 2585/2008 (supra).
4. The applicant has also taken other grounds stating that the action of the respondents is bad in law and facts especially when he was innocent and was facing great humiliation for last several years in his working place. However, according to him, his supervisory officers had never sought any explanation from him regarding the allegations made in the Memorandum while he was working over there or even thereafter he left the work place. Further, according to him, the inquiry was initiated against him on the advice of the CVC but the same has never been supplied to him in violation of the principles of natural justice. He has also contended that the allegations made were based on suspicion and conjectures and as per the law laid down by the Apex Court in Union of India Vs. H.C. Goel (AIR 1964 SC 364), mere suspicion should not be allowed to take place of proof even in domestic inquiries. Further, according to him, the event mentioned in the alleged charge relates back to 15 years. He stated that in the case of State of Maharashtra Vs. W.R. Kaidalwar (SLR 1981 (2) 73), the Honble High Court held that no departmental proceedings can be instituted and initiated in respect of any event which took place more than 4 years before such institution. He has also stated that even though the disciplinary proceedings were initiated against him vide Memorandum dated 10.02.2009, it culminated in the order of the appellate authority only on 19.07.2011 i.e. after a period of more than two years and five months. On the other hand, the Department of Personnel and Training vide its O.M. No. 39/39/70-Est (A) dated 04.02.1971 has issued a mandatory direction to the authorities concerned to finalize the disciplinary proceedings within a period of six months. The said O.M. reads as under:
The total period in respect of investigation and disciplinary proceedings should not ordinarily exceed six months in exceptional cases where it is not possible to adhere to these time limits, the disciplinary authority should report the matter to next higher authority explaining the reasons for delay.
5. The respondents have filed their reply. According to them, the water used in construction work was got tested from time to time from Q.C. Lab at AGVC to ensure fulfilment of I.S. requirements within specified frequency. Therefore, it was highly improbable that source of high chloride contents can be due to use of water available at site. They have also stated that the applicant got the water samples tested by his predecessor which was used by him. He got one water sample tested during his tenure which was used for laying of only slabs and beams for four units out of total 8 units slabs. Therefore, the percentage of RCC work got executed was very normal i.e. only 7.62% of total RCC work that too with the material like steel and testing of water already procured by his predecessors. The NCC&BM report has not specified any shortcoming regarding lesser thickness of cover in RCC slabs or beams of 8 units laid under his supervision. The respondents have stated other instances also showing the lapses on the part of the applicant.
6. We have heard the learned counsel for the applicant Shri Malaya Chand and the learned counsel for the respondents Shri Karunesh Tandon. It is seen that the applicant has challenged the impugned articles of charges, Inquiry Officers report, orders of the disciplinary authority and the appellate authority mainly on the ground of undue delay. Undisputedly, the charge relates to the period from May, 1992 to August, 1994. The Memorandum proposing to hold action against him under Regulation 27 of the DDA Conduct, Disciplinary and Appeal Regulations, 1999 was issued to him on 10.02.2009 i.e. after more than 13 years. After such a long lapse, if the applicant is confronted with the charge that he allowed water having higher chloride contents to be used for construction purposes, in our considered view, it would be great travesty of justice to expect him to remember all facts at that belated time. Again, the allegation that inadequate cover to reinforcements at many locations resulted in reduced protection to reinforcement bars also cannot be explained at a belated stage. Same is the case of the other allegation that the report of NCC&BM mentions that poor quality and lower strength of concrete was found in RCC columns as observed by ultrasonic pulse velocity and core tests at few locations. We fully agree with the learned counsel for the applicant that the memorandum of charges has been issued at a highly belated stage and the same is hit by delay and laches. Therefore, the Inquiry Officers report based on the same is also perverse as the findings are based on surmises. Consequently, the orders of the disciplinary authority as well as the appellate authority are also liable to be quashed and set aside. The Apex Court in the case of P.V. Mahadevan Vs. M.D. Tamil Nadu Housing Board (2006 (1) ATJ 193) held that the explanation given by the respondent regarding delay was not satisfactory. Therefore, the charge memo was quashed. Further, the Apex Court in State of Andhra Pradesh Vs. N.Radhakrishnan (1998 (4) SCC 154) has held that normally disciplinary proceedings should be allowed to take their course but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to be blamed for the delay or when there is proper explanation for the delay. The relevant part of the said judgment reads as under:
19. It is not possible to lay down any pre-determined 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 relevant factors and to balance and weigh 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 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 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 disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that 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 its 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.
7. In the above facts and circumstances of the case, this O.A. is allowed. The impugned orders of the disciplinary authority as well as the appellate authority are quashed and set aside. Consequently, we direct the respondents to restore all the benefits which have been withdrawn/withheld from him on account of the aforesaid impugned orders. We also direct the respondents to pass appropriate orders within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( MANJULIKA GAUTAM) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD