Central Administrative Tribunal - Delhi
Shri Mohinder Kumar vs Dda & Ors. Through on 2 March, 2010
Central Administrative Tribunal Principal Bench OA No.3674/2009 New Delhi this the 2nd day of March, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri Mohinder Kumar, S/o Shri Devi Dyal, R/o BG-5/75B, Paschim Vihar, N. Delhi-70. -Applicant (By Advocate Shri M.K. Bhardwaj) -Versus- DDA & Ors. through: 1. The Lt. Governor, Delhi, Chairman DDA, Raj Niwas, Delhi. 2. The Vice-Chairman, DDA Vikas Sadan, New Delhi. 3. The Commissioner (Pers), DDA, Vikas Sadan, New Delhi. -Respondents (By Advocate Shri Dhanesh Rallan) O R D E R Honble Mr. Shanker Raju, Member (J):
A major penalty memorandum dated 6.10.2009 as also 10.8.2009 issued belatedly under Regulation 25 of the DDA Conduct, Disciplinary and Appeal Regulations, 1999 are being challenged.
2. Applicant, an Accountant working in Housing Unit during the year 1998 has been alleged to have caused financial loss to the DDA when he without scrutiny allowed downward revision of costs in cases where possession letters had already been issued.
3. Learned counsel of applicant states that there has been an inordinate delay in initiating enquiry against the applicant, which is not explained and is unreasonable in the circumstances, as due to inordinate delay after 10 years from the incident it shall prejudice the applicant in the matter of his defence. He relies upon a decision of the Apex Court in P.V. Mahadevan v. M.D., T.N. Housing Board, JT 2005 (7) SC 439. Learned counsel states that in M.V. Bijlani v. Union of India & Ors., (2006) 5 SCC 88 the above proposition has been reiterated. Apart from it, learned counsel has relied upon the decisions of the Tribunal in Chand Ram v. DDA, OA No.202/2009, decided on 12.05.2009), Ved Prakash v. D.D.A., OA No.2525/2008, decided on 30.10.2009, R.P. Tripathi v. DDA & Ors., OA No.829/2009, decided on 12.10.2009, Lalit Mohan v. DDA, OA No.1196/2008, decided on 31.8.2009 and decisions of the High Court of Delhi in Union of India & others v. V.K. Sareen, WPC No.4757/2007, decided on 3.7.2009 and P.K. Mathur v. Union of India, WPC No.7982/2007, decided on 4.6.2008, where also the above proposition has been laid down.
4. On the other hand, learned counsel of respondents would vehemently oppose the contentions and stated that the housing scam was sent to the vigilance cell in the year 2000 and details of 13 cases were recommended. Thereupon, in 2006 out of remaining 35 cases, 20 more cases were referred to vigilance cell. As such more than 30 charge-sheets were issued and the applicant who is one of the officials to whom charge-sheet was issued, his matter was referred to vigilance only in 2006. It is stated that no prejudice is being caused to the applicant and the charge being grave, at an interlocutory stage no interference is warranted.
5. On careful consideration of the rival contentions of the parties, a Bench of this Tribunal in Raj Kumar Rana v, Lt. Governor & Ors., OA No.2992/2009, decided on 15.2.2010 recorded as follows:
6. We have carefully considered the rival contentions of the parties and perused the material on record. We find from the statement of imputation at page 17 that the alleged misconduct took place when the applicant was working in SFS (Housing) during 1999-2000. The charges have been framed in September 2009. The time taken to frame charge is about 9 years. Delay defeats justice. The Apex Court in Forest Department v. Abdul Rasul Chowdhury, (2009) 7 SCC 305 ruled that a protracted enquiry on account of delay the charge-sheet is to be quashed.
7. A decision of the Division Bench of the High Court in Agyakar Singh v. P.S.E.B., 2009 (1) SCT 709 ruled that delay of about 11 years on equitable basis also does not permit the enquiry to go further. A coordinate Bench in Krishan Murari (supra) after meticulous discussion of the decisions having ruled that there has been a delay in holding the enquiry, which has prejudiced the applicant in his effective defence, on all fours covers the present issue and as the order has not yet been stayed or overturned by the High Court is binding on us, which we respectfully follow. Accordingly, OA is allowed. Memorandum of major penalty chargesheet is set aside with all consequences to the applicant, including the benefit of ACP, which shall be given to him within a period of three months from the date of receipt of a copy of this order. No costs.
6. In view of the decisions of the Apex Court in M.V. Bijlani and P.V. Mahadevan (supra) we are of the considered view that after 10 years when the default was very much in the knowledge of the respondents at the outset delay in issuing chargesheet to the applicant after 10 years has certainly prejudiced him, as he would not be able to effectively defend himself.
7. Resultantly, for the foregoing reasons, for want of any reasonable explanation, there has been an inordinate and unexplained delay in issuing the chargesheet, which cannot be countenanced in law. The OA is accordingly allowed. Impugned orders are set aside, including the memorandum. Consequences to follow in law. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.