Central Administrative Tribunal - Delhi
Sh. Jagbir Chaudhary vs Delhi Development Authority Through on 18 March, 2009
Central Administrative Tribunal Principal Bench, New Delhi. OA-502/2008 New Delhi this the 18th day of March, 2009. Honble Mr. Justice M. Ramachandran, Vice-Chairman(J) Honble Mr. N.D. Dayal, Member(A) Sh. Jagbir Chaudhary UDC, PR Cell, DDA, Vikas Sadan, INA, New Delhi. . Applicant (through Sh. Malaya Chand, Advocate) Versus Delhi Development Authority through the Vice Chairman, Vikas Sadan, INA, New Delhi. .. Respondent (through Sh. Rajender Khatter, proxy for Sh. D.S. Mahendru, Advocate) O R D E R
Mr. N.D. Dayal, Member(A) The applicant is aggrieved by the impugned Memo dated 15.11.2007 whereby an inquiry has been proposed to be held against him under Regulation 25 of the DDA Conduct, Disciplinary and Appeal Regulations 1999. The article of charge, statement of imputation, list of documents and witnesses were enclosed with the Memo and the applicant was required to submit his written statement of defence within 10 days of the receipt of the Memo and also to state whether he desired to be heard in person. The applicant seeks quashing of the charge Memo and issue of suitable directions to the concerned authority to consider his case for grant of ACP and release of increments.
2. Notice was issued to the respondents who have filed their counter reply to which a rejoinder has also been submitted.
3. We have heard the learned counsel and perused the material on record.
4. The charge against the applicant is to the effect that the applicant did not properly scrutinize 48 files of cases, which were processed for restoration contrary to the prescribed terms and conditions, where signatures of the original allottees were forged and new allotment letters prepared after which approval was obtained. It was alleged that 43 of the 48 cases related to a property dealer and bribe of Rs. 4 lacs was taken from him.
5. It is noticed that in an initial reply dated 20.11.2007 to the charge Memo, the applicant requested for a copy of CBI report dated 19.07.2004 which had been listed at Serial No.1 of the list of documents to be relied upon in the charge. He followed up by a reminder of 27.11.2007 and again on 05.12.2007. Thereafter, by a letter of 10.12.2007 he was allowed to inspect the records/concerned documents within one week. From the applicants letter of 14.12.2007 it appears that he inspected the records/documents on 13.12.2007 and sought 15 days further time to submit his reply to the charge Memo. On 20.12.2007, the applicant submitted his reply denying the charge and gave reasons in some detail as to why he should be exonerated. Nevertheless, he filed the present O.A. on 05.03.2008 seeking the above-mentioned relief and stay of the enquiry proceedings till disposal of the O.A. as an interim measure. The record of the case does not show that any interim directions were passed.
6. In the O.A., the applicant contends that he has a satisfactory service with the DDA since joining them as L.D.C. on 18.06.1979. He was promoted to the post of UDC and was working as Dealing Assistant in EHS (Housing) during the year 2000 and was assigned the charge of restoration of 48 flats. Being the lowest functionary in the branch he was one amongst those who processed such matters at the initial stage for approval of the competent authority. The allotment letters of the flats were signed by the concerned Assistant Director and prepared at the instance of Systems Department. Since the Dealing Assistant does not perform such functions he could not be connected with the allegations in the charge. There was no shortfall on his part in verifying the signature of the allottees though he might have done some cases on priority basis on the intervention of senior officials. He worked to the best of his ability and had not done anything wrong.
7. It is argued that he was not responsible for the signatures as per the circular at Annexure P-7 which advises precautions in issue of letters of possession and assigns responsibility in such matters to higher officers. There is no iota of material against him regarding bribery or receiving any illegal gratification, no complainant nor any material or evidence on the basis of which the matter can be pursued against him especially after the expiry of such a long period of time, since the occurrence of the incident allegedly took place in the year 2000 and he was cleared by the CBI in 2004. Besides, there is no loss to the department and he has only 7 years of service left before superannuation.
8. It is stated that on 09.11.2000, a FIR was lodged by CBI against 11 persons including him and he was suspended on 17.11.2000. Later as per chargesheet filed by CBI the allegations against him were not found to have been substantiated. Thereafter, he was reinstated by order of 28.12.2004 without prejudice to the result of investigation. He approached the authorities for regularization of his suspension period. Instead, he was served the charge Memo under challenge. His request for grant of ACP benefit was also turned down by order dated 09.01.2008. He was informed that his personal file had been called for by CBI on 27.12.2000 in connection with investigation of a case registered against the then Director (Housing) and others, which has not yet been finalized by the CBI.
9. In their counter reply, the respondents have clarified that the FIR, which named the applicant along with others indicated a conspiracy to benefit property dealers. It was the duty of the applicant to prepare allotment letters and he was required to process the cases in accordance with the policy, which included cancellation of allotment and forfeiture of earnest money. The forgery of signatures of actual allottees and the modus operendi adopted has been explained in the documents enclosed with the OA relating to the FIR and in the chargesheet filed by CBI. It was the applicants responsibility to verify the genuineness of the papers. The documents of 43 flats were seized from the property dealer. It is denied that the expiry of long period will cause any prejudice to the applicant.
10. In his rejoinder, the applicant has disputed the stand taken by the respondents and reiterated that the CBI gave him a clean chit. As such, the chargesheet has been issued with ulterior motive.
11. The applicant has placed a copy of the judgement of High Court of Delhi in CWP No. 6867 of 2000 in the matter of Manoj Saini & Ors. Vs. State (Govt. NCT of Delhi) & Ors. decided on 08.01.2004 where the petitioners were rusticated by their college on account of involvement in a stabbing incident. A FIR was filed and trial held in which they were acquitted. As such, they contested their rustication order. The Court felt that acquittal would not imply that automatically such orders should be quashed but the effect of such acquittal could be considered by the authorities in taking decision. The facts of the present case do not compare. The applicant has also relied upon a case of The State of Maharashtra Vs. Wasudeo Ramchandra Kaidalwar, 1981(2)SLR 68, to contend that no departmental proceedings can be initiated in respect of any event which took place more than four years before. But, no such observation appears to be traceable in the judgment. It is also not clarified by the applicant as to whether such observation relates to proceedings while in service or only to those initiated after retirement. Neither judgment would therefore come to his aid.
12. However, it is true that the CBI did not file a chargesheet against the applicant and informed that the allegations against him could not be substantiated in the context of the offences under various sections of IPC specifically mentioned in their communication. Such chargesheet was to be filed before the Criminal Court. The approach and object in a departmental proceeding is quite different. The preponderance of probability is sufficient to come to a conclusion and provisions of the Evidence Act do not strictly apply. The mode of enquiry and the rules governing the same are also distinct. A departmental enquiry is necessary to maintain discipline in the service in public interest, whereas the object of a criminal prosecution is mainly to determine whether a crime has been committed in violation of law or by omission of any public duty as laid down by the Honble Supreme Court in State of Rajasthan v B.K.Meena & Ors. (1996) 6 SCC 417 and Depot Manager, A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya and Others, 1997(2)SCC 699. Parallel proceedings are permissible and even if there is acquittal by a Criminal Court, the holding of departmental enquiry is not debarred. In the present case, the opinion of the CBI in the context of a criminal prosecution could not by itself be relied upon as sufficient to stall a departmental enquiry that has commenced.
13. It is noticeable that the applicant has already replied to the chargesheet issued to him in the disciplinary proceedings, having taken deliberate steps to acquaint himself with the contents of documents and after obtaining additional time for the purpose. Thus having commenced participating in the enquiry, which stood instituted with the issue of chargesheet, he appears to have had a change of mind a few months thereafter and now seeks to assail the validity and propriety of the same chargesheet to which he has responded without demur. He has also expressed a grievance in the OA that the documents asked for by him were not supplied but failed to show in what manner the opportunity of inspection availed without protest has adversely affected the defence.
14. We find that no plea of any prejudice caused to him by delay in initiation of the disciplinary proceedings has been raised by the applicant either in his reply to the chargesheet or thereafter before the authorities who appear to have been initially awaiting the institution of criminal proceedings till communication from CBI in 2004. Merely a bald statement that due to expiry of a long period, the disciplinary action will cause prejudice and injury would not suffice in these circumstance as per the judgment of the Honble Supreme Court in P.D. Agrawal Vs. State Bank of India and Others, 2006(8)SCC 776. In fact, once such proceedings are initiated they need to be taken to the logical end and as observed by the Apex Court in U.P. State Sugar Corporation Ltd. and Ors. Vs. Kamal Swaroop Tondon, 2008(2)SCC 41, it cannot be laid down as a proposition of law or rule of universal application that if there is delay in initiation of proceedings for a particular period, they must necessarily be quashed. It would be important to be satisfied if their termination would be in the interest of clean and honest administration. Further, in U.O.I. & Anr. Vs. Ashok Kacker, 1995 SCC (L&S) 374 the Apex Court was dealing with a matter where even the reply of charge Memo had not been submitted and it was held that there would be full opportunity to reply to the charge and raise all points available including those urged before the Court and thereafter await decision of the Disciplinary Authority thereon. The Court was of the view that it was not the stage at which plea for quashing the chargesheet should be entertained.
15. We do not think that the charges levelled against the applicant are vague. Nor has the applicant put forward any tenable case in this regard. It is not for the Court to go into the truth or correctness of the charges. The applicants reliance upon U.O.I. Vs. H.C. Goel, AIR 1964 SC 364 to contend that the charges are based on suspicion and surmise is premature. The enquiry has already progressed. No doubt the various grounds taken as well as arguments raised by the applicant herein could be put across during the enquiry and the applicant would also have the opportunity to rebut the case against him and defend himself as per the rules. Since grant of benefit under ACP Scheme follows the principles of normal promotion, the same would have to await the outcome of the disciplinary proceedings.
16. In view of the above, we are not inclined to accede to the applicants prayer and intervene in the disciplinary proceedings. However, we expect that the respondents shall take steps to complete the departmental enquiry and pass final orders within a period of four months from the date of receipt of a certified copy of this order. If the applicant does not co-operate, they shall be at liberty to proceed with the enquiry ex-parte. The O.A. is therefore dismissed. No costs.
(N.D. Dayal) (M. Ramachandran) Member(A) Vice-Chairman(J) /vv/