Central Administrative Tribunal - Delhi
Shri Dinesh Kumar Minocha vs Dda & Ors. Through on 8 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.3745/2009 New Delhi, this the 8th day of July, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri Dinesh Kumar Minocha, S/o Shri Trilok Chand, R/o 313/57-C, Anand Nagar, Inderlok, Delhi 110 035 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 Arun Birbal) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, working as an Assistant Accounts Officer under the DDA has through this OA challenged the impugned charge memorandum No.8375 dated 7.10.2009 proposing to initiate disciplinary enquiry under Regulation 25 of the DDA Conduct, Disciplinary and Appeal Regulations 1999. By way of relief, the OA seeks quashing the charge memorandum with all consequent effects. By way of interim relief, prayer for staying the proceedings had also been made. Though a limited order was passed in this respect by the Tribunal on 29.12.2009, subsequently no continuing order has been passed in this regard.
2. As per the statement of articles of charge, the applicant while working in SFS (Housing) during the year 1999-2000 had recommended the case for downward revision of cost of a specific flat in Vasant Kunj from Rs.18,62,236/- to Rs.11,90,700/- to facilitate refund of Rs.6,17,201/- to a private person without seeking the approval of the competent authority and in contravention of the relevant instructions on the subject. By this act, an alleged lack of absolute devotion to duty and integrity and acting in a manner unbecoming of a Government servant, contravening the Conduct Rules had been alleged against the applicant.
3. On behalf of the applicant, learned counsel, Shri M.K. Bhardwaj and for the Respondent, the learned counsel, Shri Arun Birbal would appear before us. We have considered carefully the oral submissions by the learned counsels and also carefully perused the material on record.
4.1 While projecting his innocence in the matter, the main plea on behalf of the applicant is on the ground of the charge sheet being a highly belated one. It would be contended by the learned counsel, Shri M.K. Bhardwaj that the charges against the applicant were the same as had been levelled in several other cases against other employees of the DDA and in several such cases the Tribunal by its separate orders had quashed the charge sheets. The learned counsel would particularly advert to the order of the Coordinate Bench of the Tribunal (Principal Bench) in OA No.1570/2009 with the OA 1578/2009 (Mohinder Kumar v DDA & Ors) decided on 9.9.2009 (Annexure A/6). Besides, reliance would also be placed on another decision by a different Bench of the Tribunal (Principal Bench) in OA No.2415/2009 (Krishan Murari v. The Lt. Governor, Delhi & Ors) decided on 8.12.2009 (Annexure A/6 (Colly).
4.2 In Mohinder Kumars case, the applicant was an Accountant in the DDA and had challenged through the OA the charge memorandum dated 25.4.2007 proposing disciplinary enquiry for a similar cause of action in the years 1998 - 2000. After examining the case on merit, the Tribunal had not found the explanation regarding the delay on the part of the respondents in issuing the impugned charge memorandum i.e. the same arising out of a housing scam in which besides the ongoing criminal proceedings, the charge sheet could only be issued after a detailed investigation as tenable. The Tribunal had taken the view that the respondents had not satisfactorily been able to explain the long delay and the issuance of the impugned charge memo was viewed only as an effort to unsettle the settled matters. Besides, taking into consideration similar cases decided vide OA No.2166/2008 as well as OA 202/2009, the decisions of the Apex Court in M.B. Bijlani v. Union of India & Ors [JT 2006 (4) SC 469] and P.V. Mahadevan v. MD Tamil Nadu Housing Board [JT 2005 (7) SC 417] had been cited to drive home the point that delayed action without adequate explanation requires to be interdicted. Further, the Tribunal had raised certain question marks about the very efficacy of initiation of the proceedings at that stage as ultimately it may not be possible for the DDA to gain something out of the proceedings and recover the funds from the allottees after such a long period. On the other hand, the effect of the disciplinary proceedings on the morale of the concerned employee and ultimately on his working was considered as being detriment to the Organization. With all these considerations, the impugned orders were quashed though with the clarification that nothing stated in the order would affect the criminal proceedings.
4.3 In OA No.2415/2009, again Shri Krishan Murari was an UDC in the Housing Accounts Wing of the DDA and was challenging the charge memorandum dated 10.8.2009 relating to a similar cause of action during the years 1998-2000. In this case also recommendation for downward revision of the cost of a flat without the approval of the competent authority and in violation of the instructions and thereby causing a loss of 5.25 lakhs to the authority had been alleged.
The order in this case is a detailed one and the Tribunal had considered at length the explanation for the delay submitted by the respondents recounting the background of the housing scam which had rocked the news in the year 2000. It had also been stated that initially all the records had been seized by the Crime Branch of the Delhi Police and after investigation of the matter by them out of 119 cases, 48 cases had been returned to the DDA for fixing responsibility departmentally. Out of the same also 13 cases were identified in the year 2000 and 20 more in June 2006 and referred to the Vigilance Cell for further Action. After detailed investigations, more than 70 charge sheets had been issued and the case of Shri Krishan Murari was said to be one of the 20 cases where initiation of major penalty proceedings had been decided.
4.4 Looking into these detailed explanations by the Respondents, the Tribunal had found serious flaws in their explanations for the delay rendered in initiation of the proceedings. Further, the Tribunal had also taken into account the decisions in the earlier OAs i.e. OA No.2525/2008 decided on 30.10.2009 in the matter of Ved Prakash v DDA as well as OA No.829/2009 dated 12.10.2009 in the matter of R.P. Tripathi v DDA and lastly OA No.1570/2009 with connected OA No.1578/2009 in the matter of Mohinder Kumar v DDA. Taking into account the decisions in these OAs, it was observed that the Respondents explanation for the delay had not been found adequate by different Benches. It had also been noted that the Respondents had not taken a stand of having challenged any of these orders.
4.5 On these grounds, the Tribunal had not found any reason to take a different view than the one taken by the Tribunal in the aforesaid judgments and in particular in OA No. 1570/2009 with connected OA 1578/2009. Accordingly, the charge memorandum dated 10.8.2009 was quashed and set aside.
5. While the plea on behalf of the learned counsel for the applicant would be that the present case is fully covered by the decisions in Mohinder Kumars case as well as Krishan Muraris case (supra); the learned counsel for the Respondents, Shri Birbal would seek to emphasize the gravity of the subject and the time taken in making detailed investigation on the spot. The learned counsel, Shri Birbal would also seek to impress that because of the misconduct of a group of employees of DDA in collusion with outsiders, loss of crores of rupees had been caused to the DDA in an illegal manner. The counter affidavit also states that the present applicant had been found to be actively associated with the housing scam and 9 FIRs ranging from the years 2000 2003 are still pending. Further, a plea would be taken that in an earlier OA, being OA no.254/2009, the Tribunal had disposed of the OA vide order dated 16.2.2009 and according to which six cases in which the proceedings had been initiated were to be finalized within six months. It would be pleaded by the leaned counsel that these proceedings were still pending with the Inquiry Officer.
6. We find the facts of the present case similar to those discussed above in Mohinder Kumar as also in Krishan Muraris case. The fact that in this case the charge memorandum has been issued after nearly 9 years is not disputed. We also note that the other Benches of the Tribunal while considering similar cases have not found the explanation for delay rendered by the respondents and that is virtually the same in the present case also as adequate or satisfactory. Without undermining the gravity of the alleged offence on the part of any delinquent employee, the Tribunal in Mohinder Kumars case had expressed serious reservation about any net gain coming from the initiation of these proceedings after an inordinately long time to the Organization itself; on the other hand it was viewed as being in detriment to its functioning. It had also been observed that in case the DDA was really serious in the matter, they should have taken prompt action in all these cases. These views had been fully endorsed by the other Bench in Krishan Muraris case.
7. As regards the issue of the FIRs pending against the applicant, that is a criminal matter to be pursued separately and would not affect the decision in the present case. Again in OA No.254/2009, on a copy of the relevant order dated 4.2.2009 being produced before us, we find that this was a case in which the OA was found to be premature and permission had been granted to the applicant to withdraw the application but reserving the contentions to be raised at an appropriate stage. While allowing the withdrawal, the Tribunal had also directed that provided there is full cooperation of the applicant, the Respondents were to ensure the finalization of the intended proceeding latest within six months from the date of the order. Since the present charge memorandum was not a part of these proceedings, we do not find this order as affecting the present issue before us.
8. In view of the foregoing facts, we are unable to accept the contentions of the respondents regarding the explanation of the delay. We also do not find any reason to take a view different from the ones taken by different Benches of the Tribunal in similar cases earlier. Resultantly, the OA is allowed and the impugned charge memorandum quashed and set aside. The parties would bear their own costs.
(VEENA CHHOTRAY) (SHANKER RAJU)
MEMBER (A) MEMBER (J)
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