Delhi District Court
Sangeeta Gupta vs Association Of Municipalities And ... on 31 July, 2024
DLST030007052017
IN THE COURT OF ACJ-cum-CCJ-cum-ARC, SOUTH
DISTRICT COURTS COMPLEX, SAKET, NEW DELHI
PRESIDED BY: PARAS DALAL, DJS
CIVIL SUIT SCJ 390/17
CNR No. DLST03-000705-2017
Ms. Sangeeta Gupta
W/o Sh. Mahesh Kumar Gupta
R/o C-19, Second Floor, Pancheel Vihar, Khirki Gaon,
Near Malviya Nagar, New Delhi-110017
... Plaintiff
versus
Association of Municipalities and Development Authorities (AMDA)
through its Chairman
7/6, Sirifort Institutional Area,
August Kranti Marg, New Delhi-110049
... Defendant
Date of Institution : 31.03.2017
Date of arguments : 10.05.2024, 03.06.2024 &
12.07.2024
Date of Pronouncement : 31.07.2024
SUIT FOR DECLARATION, PERMANENT AND MANDATORY
INJUNCTION
Argued by: G.L. Verma, Ld. Counsel for the Plaintiff
Sh. Saurav Kumar, Ld. Counsel for the defendants
CS SCJ 390 of 2017 Pages 1 of 52
Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA)
JUDGMENT
S.No. Particulars Page No. 1 List of Relevant Dates 3 2 Averment in the Plaint 4 3 Written Submission 6 4 Issues 8 5 Plaintiff's Evidence 9 6 Defence's Evidence 11 7 Findings 12 Issue no.1 12 Issue no.2 14 Issue no. 3 & 4 21 Issue no. 6, 7 & 8 35 Issue no. 5 40 Issue no. 9 42 Issue no. 11 & 12 43 Issue no. 10 44 Issue no. 13 51 8 Decision 51
1. Plaintiff has filed the present suit for declaration and injunction against the defendant association qua the Order passed by the defendant through its Chairman and Administrative Officer for demotion, suspension and termination as well as subsequent Order for recovery of salary paid. The plaintiff has also sought to challenge the 'Inquiry Proceedings' ordered while disregarding the Service-cum-Recruitment Rules, 2011 applicable to officials of AMDA (hereinafter referred to as 'AMDA Rules, 2011') as was approved by Executive Council on 26.09.2011 and also the proceedings of inquiry as well as Orders CS SCJ 390 of 2017 Pages 2 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) being against Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as 'CCS (CCA) Rules, 1965' or 'Rules, 1965).
2. It is clarified that present case is connected with CS SCJ No. 1128 of 2017 filed by the plaintiff against the defendant Association as well as the then Administrative Officer, AMDA being additional discharged by Sh. Harsh Kalia, Assistant Director (Administration), National Capital Region Planning Board (NCRPB). The plaintiff had initially filed a Writ Petition (Civil) No. 10212/2016, which was subsequently withdrawn with liberty to file the civil suit seeking relief of declaration and injunction. The relief sought is declaration that impugned order dated 03.05.2016 as passed by Chairman, AMDA as illegal, null and void having no binding effect. Further, declaration has been sought that impugned Order dated 28.10.2016 is illegal, null and void having no binding effect on the rights of the plaintiff. Also permanent injunction has been sought restraining the defendant from recovering the payment which was paid to plaintiff as salary while working as Administrative Officer and mandatory injunction is sought directing the defendant Association to post the plaintiff in service as an Administrative Officer with continuity and all other consequential benefit including back wages. Two other declarations are also sought against the impugned Order dated 18.05.2016 as well as Order dated 24.05.2016 to be not binding on the plaintiff.
List of Relevant Dates
3. Before proceedings with the averments in the present case, the timeline is to be established and the relevant list of dates is stated in the below table -
Date Relevance 25.03.1991 Plaintiff appointed as Stenographer in AMDA on probation 29.07.1991 Probation of plaintiff was confirmed and she was absorbed in the scale of Rs.1300-50-1800-EB-75-2250 w.e.f. 01.07.1991 CS SCJ 390 of 2017 Pages 3 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) 12.06.2005 Plaintiff was redesigned from the post of Stenographer to the post of P.A. to Director under Executive Council Meeting 30.09.2011 Plaintiff appointed to the post of Administrative Officer 03.05.2016 Promotion of plaintiff was cancelled and plaintiff was demoted to the post of stenographer by then Chairman, AMDA 24.05.2016 Plaintiff was placed under suspension by Administrative Officer, AMDA additionally held by Assistant Director (Administration), NCRPB 21.06.2016 Administrative Officer issued memorandum calling explanation within three days from plaintiff 01.08.2016 Chairman, AMDA issued memorandum of charges containing two charges under Rule 14 of CCS CCA Rules, 1965.
Defendant also appointed V.P. Sharma (Retd. Assistant Accounts Officer) as 'Inquiry Officer' 28.10.2016 Administration Officer, AMDA additional handled by Assistant Director (Administration), NCPRB issued Order of dismissal of plaintiff 26.12.2016 Administrative Officer, AMDA issued Order of recovery of Rs.4,35,620/- towards amount paid in excess after promotion 07.03.2017 Administrative Officer, AMDA issued notice of recovery of Rs.4,35,620/- and made the same recoverable from leave encashment payable to the plaintiff 31.07.2019 Chairman, ADMA ordered fresh inquiry and appointed Sh. R.N. Bansal as IO to conduct fresh inquiry and said report once submitted was never accepted for further action.
Averment in the Plaint
4. Plaintiff was appointed as Stenographer in AMDA on probation w.e.f. 25.03.1991 (forenoon) for six months and was paid consolidated salary of Rs.1,200/- per month. After completion of her probation she was absorbed in pay scale Rs.1300-50-1800-EB-75-2250 w.e.f. 01.07.1991. The Service Cum Recruitment Rules for the Officers and Staff of AMDA were prepared by committee comprising of (I) Director, AMDA; (ii) Director, DDA (Planning); and (iii) Joint Director, Technical (NCRPB), whereafter the said rules were forwarded to the Vice Chairman, AMDA and put before Executive Council CS SCJ 390 of 2017 Pages 4 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) Meeting held on 26.09.2011. Based on the said rules order of promotion were passed against the post of Administrative Officer, Accounts Officer, Technical Officer and Office Assistant. The plaintiff on account of her eligibility criteria and experience, she was promoted to the post of Administrative Officer and she had already been performing the duties of Senior Stenographer/ P.A. to the Director, AMDA.
5. On 30.09.2011 in pursuance of recommendation of the Executive Council of AMDA in the meeting held on 26.09.2011, the plaintiff who was Senior Stenographer/P.A. to the Director, was appointed by the Director, AMDA to the post of Administrative Officer on regular basis in the PB-2 w.e.f. October 2011 and she was put on probation for two years. On 22.02.2016, the Chairman, AMDA issued letter asking Administrative Officer to bring all relevant records relating to promotions in AMDA in the last 10 years and on 23.02.2016, letter was issued to the plaintiff to personally hand over some files to the Chairman, AMDA by 4 PM of 23.02.2016. The plaintiff complied with the said direction on 24.02.2016 and also gave written replies to all the queries. On 02.03.2016, the Chairman, AMDA issued a Memorandum addressed to plaintiff to inform her that certain irregularities/ discrepancies were noticed while scrutinizing the files relating to Executive Council Meetings, Service-cum Recruitment Rules and the Code of Conduct related issues applicable to the AMDA Employees. The plaintiff replied to the said memorandum on 04.03.2016. On 03.05.2016 Chairman, AMDA passed Order no. Chairman/AMDA/01/2016/19/D cancelling the promotions of the plaintiff and three other and on 04.03.2016 Order no. Chairman/AMDA/01/2019/20/D was passed in which Sh. Harsh Kalia, Assistant Director (Admin), NCRPB was asked to take charge of all files and other documents from the plaintiff with immediate effect. The plaintiff filed appeal on 05.05.2016 against Order no. Chairman/AMDA/01/2016/19/D, which was dismissed on 18.05.2016 by Chairman, AMDA.
CS SCJ 390 of 2017 Pages 5 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA)
6. On 24.05.2016, Assistant Director (Admin.) NCRPB/ Handling the Charge of Administrative Officer (AMDA) passed an Order suspending the plaintiff and another officer on the ground that they entered into the room of the AD (CB & T) without authority and on 21.06.2016 he also issued memorandum on subject of Gross Misconduct in involvement in illegal activities by the plaintiff. They were granted three days to reply. On 24.06.2016, the plaintiff replied to the said memorandum through post and another memorandum was issued dated 01.08.2016 alongwith article of charges and enquiry was initiated and Inquiry Officer was appointed. The plaintiff on 17.08.2016 was served another memorandum to join the inquiry even though documents were not yet supplied. Plaintiff alleged biases and failure of natural justice during the said inquiry and without reasonable opportunity, dismissal order was passed against her on 28.10.2016. The plaintiff even filed protest letter on 28.10.2016. On 26.12.2016, another letter for recovery of excess salary was issued and reminder letters were also issued on 07.03.2017 and 17.03.2017.
7. The plaintiff has thus alleged in the present case that despite her promotion by Order on 30.09.2011, she could not have been demoted since there was no power of review, that too after a lapse of five years. The plaintiff also stated that there was no record of deficiency in the performance of duties by the plaintiff on the promoted post. Plaintiff alleged that as per AMDA Rules, 2011 the method of recruitment for the post of Administrative Officer can be promotion failing which by direct appointment failing which by short term contract. Hence once the plaintiff was found eligible and fit for promotion, her promotion could not be cancelled without holding any disciplinary proceeding and particularly when the Order of promotion was not passed at the instance of the plaintiff but rather by the official authorities of their own. The plaintiff CS SCJ 390 of 2017 Pages 6 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) alleged that discrepancies, if any was at the level of Director, AMDA, yet action was taken against the plaintiff. Hence the present suit.
Written Statement
8. By virtue of the written statement, the defendant Association preliminary objected to the present suit since they alleged that plaintiff seeking equitable relief ought to have come to Court with clean hands. The defendant stated that plaintiff herself failed to assist the Inquiry Officer and she failed to avail the numerous opportunity granted to her by the Inquiry Officer. The defendant alleged that present suit is barred by Section 14(1)(B) and 34 Specific Relief Act since the case is of master and servant, whose services have been validly terminated. The defendant stated that vide Order dated 03.05.2016, the promotion of four employees including the plaintiff was cancelled and recovery was initiated of excess salary drawn by them since the promotion was found to be illegal since no Departmental Promotion Committee (DPC) was constituted. The defendant stated that the four employees were promoted after the meeting of the Executive Council under Chairmanship of Vice Chairman, AMDA and the Executive Council was misled and informed that interview for the post could not be held as response was not adequate, whereas 9 candidates were eligible for interview. Based on this false information, the Director pushed through the proposal to promote the four employees, but since it was found that said promotion was contrary to service cum recruitment rules. The defendant stated that the plaintiff in her reply had admitted that no DPC was formed. The defendant also stated that on 05.05.2016, the plaintiff had sought personal hearing before the Chairman and when she appeared on 18.05.2016, she requested for pardon. The defendant further stated that on 24.05.2016, a complaint was received in the office of Assistant Director (Admin), NCRPB who was handling charge of Administrative Officer of the defendant society from Ms. Shipra Ranjani, Assistant Director (Capacity Building & Training) CS SCJ 390 of 2017 Pages 7 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) against the plaintiff and one another person for unauthorised entry into the chamber of complainant on 20.05.2016, after the same was locked and biometric attendance machine was punched. The plaintiff and the other person had taken the keys from the usual place, entered without authorisation and stayed there for five minutes. Pursuant to the complaint dated 24.05.2016, plaintiff filed reply, admitting that she entered the said room of Ms. Shipra Ranjani. Even memo dated 01.08.2016 was issued to plaintiff for holding enquiry under the CCS (CCA) Rules 1965 and substance of imputation was served on the plaintiff. The defendant also stated that competent authority appointed Inquiry Officer to inquire into the charges and statement of defence filed on 12.08.2016, notices were issued for appearance on 23.08.2016, but plaintiff chose not to appear. The defendant stated that plaintiff appeared before inquiry officer on 03.10.2016 and demanded documents which were supplied on 14.08.2016, however she failed to cooperate and avoided the enquiry on frivolous grounds, and left the inquiry without permission. The defendant stated that plaintiff disobeyed the inquiry officer and disregarded the inquiry. The defendant thus passed dismissal order dated 27.10.2016 against the plaintiff, cancelled promotion and sought recovery of excess amount. The defendant thus sought dismissal of the present case.
Issues
9. Upon completion of pleadings, following issues were framed vide order dated 03.12.2018:-
1. Whether the suit is not maintainable in its present form? OPD
2. Whether the plaintiff was not eligible for promotion to the post of Administrative Officer and if so, effect thereof on her promotion? OPD
3. Whether recommendation by Executive Council of AMDA was made to appoint the plaintiff as Administrative Officer by mis-representation and if so, by whom and effect thereof on her promotion? OPD CS SCJ 390 of 2017 Pages 8 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA)
4. Whether such promotion could not be made without constituting departmental promotion committee and if so, effect thereof on plaintiff's promotion? OPD
5. Whether the plaintiff's entry into the room of Assistant Director (CB&T) on 20.05.2016 was illegal and amounted to mis conduct under Service Rules and whether order of suspension on such ground was not dis proportionate? OPD
6. Whether the enquiry conducted by Mr. V. P. Sharma was illegal/irregular in procedure as well as regarding the competency of the inquiry officer? OPP
7. Whether the plaintiff is entitled to declaration that the order dt. 03.05.2016 passed by Chairman, AMDA is illegal and null and void and have no binding effect on the rights of the plaintiff? OPP
8. Whether the plaintiff is entitled to declaration that the order dt. 28.10.2016 is illegal and null and void and have no binding effect on the rights of the plaintiff? OPP
9. Whether the plaintiff is entitled to permanent injunction thereby permanently restraining the defendant from recovering the payment which was to be paid to plaintiff as a salary while working as Administrative Officer? OPP
10. Whether the plaintiff is entitled to mandatory injunction thereby permanently directing the defendant to post the plaintiff in service as an Administrative Officer with continuity in service and all other consequential benefit including back wages? OPP
11. Whether the plaintiff is entitled to declaration that order dt. 18.05.2016 is not binding against her? OPP
12. Whether the plaintiff is entitled to declaration that order dt. 24.05.2016 is not binding against her? OPP
13. Relief.
Plaintiff's Evidence
10. In order to prove her case, plaintiff examined herself as PW-1. PW-1 tendered his affidavit of evidence as Ex.PW1/A and relied upon - Ex.PW1/1 to CS SCJ 390 of 2017 Pages 9 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) Ex.PW1/29 as well as Mark A to Mark M, the details of which are not reiterated, however the reference to each exhibit is made as and when they appear to be relevant. It is further necessary to note that the defendant neither objected to any of the document placed on record by the plaintiff nor made any endeaviour to place on record the original documents, which were part of official and confidential record of service of the plaintiff in the custody of the defendant Association. The cross examination of the present case was also adopted in the other suit CS SCJ 390/2016 and she answered in her cross examination that she was appointed stenographer and had knowledge about job opening of Administrative Officer because she was posted in same department. She admitted being in-charge of Administration at the time and also admitted that she used to work on directions of Director. PW1 admitted the advertisement was published in regard to post of Administrative Officer-cum-Accounts Officer and twelve applications were received or which nine were found eligible for the said post. PW1 further stated that she did not attend the meeting dated 26.04.2011, but she was in knowledge of the agenda, however stated that she was not aware about the minutes at that meeting. PW1 stated that she was in knowledge of the Service Rules of AMDA of 2011. PW1 further admitted that as per Service cum Recruitment Rules, it is mandatory to constitute Departmental Promotional Committee for promotion which is headed by Chairman AMDA and she was not present in the EC Meeting dated 26.09.2011. PW1 denied that she was present in the said meeting. PW1 admitted that after passing the demotion Order dated 03.05.2016, she resumed her previous post 'PA to Director'. PW1 stated that her working hours were 9:30 AM to 6 PM and biometric system was started in the office in May 2016. PW1 admitted that she entered the room of AD(CB&T) but stated that at that time Ms. Kiran Chanana was not with her. PW1 denied that the time of her entering the room was not 5:30 PM. She stated that she entered the room to check the time of renewal period of AMDA website. PW1 further stated that there were two guards in the office and there were two shifts of security CS SCJ 390 of 2017 Pages 10 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) guards, however she did not know their names. PW1 admitted that Mr. Jyoti Prakash Rana was looking after the work of building caretaker and security of office and she had cordial relation with him. PW1 stated that she left office at 6:15 PM on 20.05.2016 and denied that she punched her biometric card at 6 PM and then re-entered in the room of AD(CB&T). PW1 denied that Mr. Jyoti Prakash Rana had seen her re-entering the office. PW1 further on being shown the minutes of meeting dated 26.09.2011 denied that Chairperson/ Chairman, AMDA was not present in Executive Committee Meeting on 26.09.2011 and 26.04.2011, but voluntarily stated that on the said date the post of Chairperson/ Chairman, AMDA was vacant and Vice Chairman was presiding over the meetings. PW1 on being further cross examined admitted that files under her supervision as per memo dated 02.03.2016 Mark F, had some discrepancies and irregularities during scrutiny and same was mentioned in memo dated 02.03.2016 Mark F. PW1 further admitted that she entered the room of AD(CB&T) to check the renewal date of website of AMDA, was not mentioned by her in her reply to memo. PW1 admitted that regarding entry into the room, memo was issued to her. PW1 also admitted that memo dated 03.05.2016 and 21.06.2016 are different memos and further admitted that memo dated 01.08.2016 was received by her through speed post. PW1 stated to have appeared twice before the Inquiry Officer and denied that Inquiry Officer had given her ample opportunity to put her defence. PW1 then denied various suggestion qua the allegations made by the department against her.
Defendant's Evidence
11. The defendant examined only one witness out of the three as was mentioned in their list. DW3 Sh. Sanjay Kumar Dubey, who deposed on affidavit Ex.DW3/A and he stated that he was promoted in the defendant Association and plaintiff and one Ms. Kiran used to inquire from him about promotion. He stated that both used to ask her to accept promotion as and when CS SCJ 390 of 2017 Pages 11 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) it is ordered and stated to have heard plaintiff and Ms. Kiran say that they were putting pressure on the then Director for promotion.
Findings
12. The matter was ably argued by both the sides. I have heard learned counsel for the plaintiff as well as the defendant, gone through the entire case record as well as prevailing law in this regard. Issue-wise findings of this Court are as under:
ISSUE No.1 Whether the suit is not maintainable in its present form? OPD
13. It is defended that the Association is not an instrumentality of the 'State' and its function is that of any other Association which cannot be called into question regarding promotion and termination of employee after due consideration by the Association. It is argued that the plaintiff misrepresented before the Appointing Authority and thus enjoyed the benefits of a post of which she was not eligible. Further, discrepancies were noted in the files in her custody and also she was accused of misconduct. In such eventuality, the Association took action against her and despite opportunity, she failed to present a proper defence and thus was validly terminated. Since her promotion was also found invalid, recovery of the excess salary was also ordered. The defendant Association thus submits that plaintiff seeking equitable relief must do equity first and thus the present suit is not maintainable in the first place. The defendant Association states that it is not 'State' and in fact is a private organisation wherein the plaintiff was its employee, whose services have been validly terminated. Her appeal to the Chairman was also rejected and thus she is not entitled to challenge the decision of termination before the Court of law. It is further argued that since defendant Association is not a 'State', neither Writ nor suit is maintainable.
CS SCJ 390 of 2017 Pages 12 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA)
14. This Court finds difficult to see substance in these arguments of the defendant. The jurisdiction of this Court does not come from any provision, rather its exclusion to try is restricted under Section 9 of the Code of Civil Procedure. A Civil Court has jurisdiction to try all suits of a civil nature except where cognizance of suit which are expressly or impliedly barred. There is thus always a presumption of jurisdiction to try all suit of civil nature, to prove otherwise is a burden on the defendant. The defendant in the present case, itself stated that Writ Petition filed by the plaintiff before the Hon'ble High Court of Delhi was withdrawn primarily since defendant Association is not a 'State'. Being a private entity/ association, the defendant cannot claim immunity from being tried before the Court of Law, atleast no such provision, rule or ratio- decidendi of any Court of Law has been produced before this Court. The defendant Association if acts arbitrarily against rules, effecting civil right of any individual, even if is its employee, can be called in question before the Court of Law.
15. Another oral leg of argument was that the Rules, 1965 does not apply on the defendant Association and this was the reason why no writ petition was held maintainable before the Hon'ble High Court of Delhi. This Court infact finds the Order of withdrawal of writ petition, itself giving right to the plaintiff to file the present suit. When it was found that defendant association was not an instrumentality of 'State', the plaintiff is within her rights to seek civil remedy before Court in view of the cause of action which arose in her favour. The plaintiff has categorically alleged that she was first demoted without following due process of law and without giving her an opportunity of being heard, that too after five years of promotion, and as such her rights were effected, including reputation as well as loss of income. The plaintiff also alleged that she was repeatedly put to quasi-judicial proceedings and first suspended and later terminated from her service, again effecting her rights. The plaintiff alleged CS SCJ 390 of 2017 Pages 13 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) biases in these proceedings and also alleged that due process was not followed even effecting her natural rights as well. The plaintiff thus has a civil right to challenge proceedings initiated against her.
16. Another aspect of the matter is applicability of CCS (CCA) Rules. The defendant association is neither an instrumentality of State nor there is any notification from the Hon'ble President or any other authority that defendant Association would be governed by CCS (CCA) Rules. However, the defendant Association is a registered body corporate and as such competent to frame its own rules of employment as well as condition of service. It is an admitted position in the present case, that when plaintiff joined service with the defendant Association in the year 2011, there were no rules framed regarding condition of service, however vide resolution which was passed by the Governing Council and later approved by the Ld. Chairman, CCS (CCA) rules were made applicable on the employees of the defendant Association. Moreover, the plaintiff was subjected to not just one but two disciplinary enquiries. The defendant Association thus has not only adopted CCS (CCA) rules for application on its officials, but have even conducted two enquiries under these Rules against the plaintiff. The 'Doctrine of Estoppel' as provided in Section 115 Evidence Act, would also act against the defendant Association from now denying that the present suit is not maintainable in its present form.
17. The first issue is therefore decided against the defendant in favour of the plaintiff and present suit is thus maintainable in its present form.
ISSUE No.2 Whether the plaintiff was not eligible for promotion to the post of Administrative Officer and if so, effect thereof on her promotion? OPD CS SCJ 390 of 2017 Pages 14 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA)
18. The defendant Association was to prove that plaintiff was not eligible for promotion to the post of Administrative Officer. Before deciding the issue, the timeline of the sequence of events in the present case requires to be stated. The plaintiff was appointed as Personal Assistant on 25.03.1991 and to the post of Administrative Officer on 30.09.2011. Promotion of plaintiff to the post of Administrative Officer was cancelled on 03.05.2016, she was placed under suspension on 24.05.2016 and dismissed from service on 28.10.2016. However, fresh inquiry was ordered on 31.07.2019 and report dated 24.09.2019 was submitted holding that both charges were not proved. On 26.12.2016, Assistant Director issued recovery notice of excess salary paid to the plaintiff and another notice of recovery from leave encashment was issued in 07.03.2017.
19. The present issue pertains to the promotion of plaintiff to the post of Administrative Officer on 30.09.2011. The defendant side simply relied on the cross examination of plaintiff dated 03.04.2019 wherein she answered that she was in knowledge of Service Rules of AMDA of 2011. She further in her cross examination dated 16.01.2020 admitted that as per Service cum Recruitment Rules, it is mandatory to constitute Departmental Promotional Committee. Plaintiff even had knowledge that applications were invited for the post of Administrative Officer-cum-Accounts Officer and twelve were infact received of which nine were found legible. The plaintiff further in her cross examination admitted that after the Demotion Order dated 03.05.2016, she resumed her service of Personal Assistant to Director.
20. The plaintiff has exhibited the Service-cum-Recruitment Rules of AMDA, 2011 as Ex.PW1/3. A careful perusal of these rules is necessary before proceeding with the case. The rules start with a background that AMDA has been in existence since 1983 registered under Societies Registration Act, 1860, but there were no recruitment rules and appointments from time to time were CS SCJ 390 of 2017 Pages 15 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) made in various positions and pay scales as per the requirement with approval of Executive Council. Rules further stated that Director, AMDA was contractual while other staff members comprising P.A. to Director, Technical Assistant, Office Assistant and seven supporting staff mainly Class IV employees were on regular basis. It is further pointed that post of Administrative Officer and Accounts Officer was vacant since May and June 2010, respectively. Post of two Assistant Director (Planning) and Assistant Director (Capacity Building and Training) were also found vacant since February 2011. It is further recorded that an agenda was discussed in the meeting of Executive Council held on 26.04.2011 to promote existing staff to the post of Administrative Officer, Accounts Officer and Technical Officer, however to streamline the process, the Executive Council decided that the service rules may be prepared first before the existing staff is considered for promotion. Accordingly the draft rules for the Officers and staff in AMDA were prepared for consideration which were to come into force after the approval of Executive Council. Thus, Ex.PW1/3 are Rules called 'Service cum Recruitment Rules, 2011' for officers and staff of AMDA and would cover all the officers and employees of AMDA. The Rules were to come into force from the date of approval by the Executive Council and there is no document to show how the approval was given. However, there are various replies by the plaintiff, like Mark G, which shows that the agenda of the said meeting alongwith Service-cum-Recruitment Rules, 2011 were sent to the then Chairman on 12.09.2011, the day when she took over the charge of Member Secretary, NCRPB and Chairperson, AMDA and request for convenient date to convene the meeting was also sent on 13.09.2011. Further from Mark 'G' and Mark 'H', it can be ascertained that Service-cum-Recruitment Rules, 2011 were approved by the Vice-Chairman on e-mail. Further, on 26.09.2011 Executive Council was fixed and the then Director pushed for promotion of existing staff as was decided in Executive Council meet of 26.04.2011. Based on CS SCJ 390 of 2017 Pages 16 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) said recommendation, the plaintiff was appointed to the post of Administrative- cum-Accounts Officer.
21. At this stage, it is established by preponderance of probability that Service-cum-Recruitment Rules, 2011 were framed by the Executive Council and approved by the Chairman through email. The promotion of plaintiff on 26.09.2011, therefore ought to have been in accordance of Service-cum- Recruitment Rules, 2011. The submission of plaintiff that there promotion being recommended in Executive Council meeting of 26.04.2011 and confirmed on 26.09.2011, are also to be seen in view of the Service-cum-Recruitment Rules, 2011. Rule 3 states that Department Promotion Committee for each post shall be as specified in the Rules. The Rule 4 stated that "appointment to a post in the AMDA shall be made by any one of the following methods: a) by direct recruitment; b) by promotion; or c) on contract, which shall be specified in the schedule for each post" (emphasis supplied). Here the Rule 4 does not state 'or' after point b), however the rule stated that appointment is to be made 'by any of the following methods'. The Rule does not specify that the said clause a) to c) are in succession, in fact the plain reading shows that it could be made by any one of the method. Therefore, even promotion could be a direct option than direct recruitment. Rule 7 establishes the appointing authority as well as disciplinary authority. Here the roles of Chairman and Director were made pivotal. For appointment and disciplinary from Director-cum-Member Secretary was to made to the Chairman and for remaining post, the Director-cum-Member Secretary was appointing and disciplinary authority. The appeal from decision of Director-cum-Member Secretary were also to be heard by the Chairman. Also disciplinary authority for group 'D' employee was Administrative Officer. The Rule further records that all officers and employees of AMDA shall be governed by Central Civil Services (Classification, Control and Appeal) Rules, 1965 and power vested in President shall be exercised by Chairman whereas those of CS SCJ 390 of 2017 Pages 17 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) Head of Department by the Director-cum-Member Secretary, AMDA. Further, Order Administrative Officer were to appealed to Director-cum-Member Secretary of AMDA. From Director-cum-Member Secretary appeal was to be made to Chairman, AMDA and Chairman's order could be appealed to Executive Council of AMDA.
22. Rule 9 is important which stated that the rules will cover new recruits by direct appointment or by promotion of the existing staff and in case of existing employees, they can be considered for benefit of promotion/ revised scale of pay from prospective date only if they fulfil the education qualification and experience for the post as prescribed under the rules. The Rule further states that termination due to fraud/ misbehaviour etc. shall be governed by the CCS (CCA) Rules, 1965. In view of the said rules, the eligibility for Administrative Officer is to be stated. The Rules stated that education and other qualification for said post would be Bachelor Degree in Arts/ Commerce/ Science from a recognized University/ Institution with minimum 10 years experience in administration/accounts in Central/ State government/Urban Local Bodies/Autonomous Bodies. Although Rule 4 stated that appointment to post of Administrative Officer could be made by any of the three methods, the details qua the post stated that post was to filled by promotion failing which by direct recruitment and lastly on contractual basis. The rules state that for promotion as well as direct recruitment the same education qualification was required, however there was no age limit of 40 years applicable for promotional case, as was necessitated in direct recruitment. Further, five years of experience was mandatory at the post of Senior P.A./ Senior Stenographer. Further there was two years probation period on the post and composition of Department Promotion Committee consisted of Chairman, Director-cum-Member Secretary and one Expert Member as nominated by the Chairman, all from AMDA. The CS SCJ 390 of 2017 Pages 18 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) DPC was required to chose to recruit through promotion, failing which by direct recruitment and finally by short term contract, if above two were not fulfilled.
23. In this backdrop the issue of fact is to be decided. The defendant was required to prove that plaintiff was not eligible for the post of Administrative Officer. The defendant has shown documents filed by the plaintiff herself which stated that no Department Promotion Committee was constituted when considering promotion of plaintiff from the post of P.A. to Director to Administrative Officer. The defendant Association casts this as first illegality in promotion of plaintiff and further it is alleged that since plaintiff was working as P.A. to Director, she misled the Executive Council in not putting the file of twelve applications received for the post of Administrative Officer. The defendant side has not placed on record the minutes of meeting dated 26.09.2011, although the minutes of meeting dated 20.03.2009 and 26.03.2011 is on record wherein the existing staff was sought to be promoted to senior posts which were vacant, however the Rules were to be framed and approved first. The minutes 26.03.2011 discussed giving precedence to promotion of employees of AMDA over new recruitment since existing employees had experience of the Association as well as the financial implication would be minimal. The Rules, 2011 Ex.PW1/3 were framed and even the rules specified that the first option was promotion to the post of Administrative Officer. Thus as per Rules Department Promotion Committee (DPC) was to be constituted consisting of the Chairman, Director-cum-Member Secretary and one expert nominated by the Chairman himself. Apparently, there was no Department Promotion Committee constituted and same has been admission of plaintiff herself from various exhibits filed namely Mark 'D', Mark 'G', etc. Although Rule 8 of Rules, 2011 it is stated that promotion for the post of Administrative officer will be from Sr. Stenographer/ P.A. to Director, however Rule 9 clarifies that the existing employees, can be considered for benefit of promotion/ revised scale of pay CS SCJ 390 of 2017 Pages 19 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) from prospective date only if they fulfil the educational qualification and experience for the post as prescribed under the rules. The said qualification have already been discussed in preceding paragraph.
24. The above non-formation of DPC is non-compliance on part of the defendant Association, however the defendant is to prove specifically that plaintiff was not eligible for promotion to the post of Administrative Officer. The Administrative Officer for promotion was only required to possess Bachelor Degree in Arts/ Commerce/ Science from a recognized University/ Institution with minimum 5 years experience as Senior Stenographer/ P.A. to Director. The plaintiff in her cross examination stated that plaintiff had qualified her M.Com while in service after joining the post of Stenographer in the defendant Association. The plaintiff even answered that she was holding additional charge of Administration since the date of joining as PA to Director. Plaintiff however could not give any authority of holding additional charge of Administration. At this stage, it is to be seen that the plaintiff was redesignated from the post of stenographer to Personal Assistant to Director on 12.06.2005 as per Mark 'G'. During cross examination, thus the plaintiff answered that she had education qualification.
25. The plaintiff took stand that she was looking after the work of Administration ever since she was redesignated as PA to Director from Stenographer, however there is no such authority in her favour to work on additional charge of Administration. The plaintiff has also exhibited Ex.PW1/3 i.e. Rules, 2011. In the said rules there is no mention that plaintiff was additionally looking after the work of Administration, infact Ex.PW1/3, it is recorded that the post of Administration in AMDA went vacant on 30.04.2010 on superannuation of Sh. S.R. Kashyap. Ex.PW1/3 does not even state that since 30.04.2010, the plaintiff was looking after the Administration on additional CS SCJ 390 of 2017 Pages 20 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) charge. Also in Ex.PW1/4 when plaintiff was promoted the post of Administrative Officer, her present posting then was mentioned as Senior Stenographer/ P.A. to Director and there being no mention of her looking after Administration. The plaintiff thus was redesignated as P.A. to Director on 12.06.2005, giving her requisite experience as per Rules, 2011 when she was recommended for promotion in September 2011. Plaintiff was also working as Stenographer since March 1991.
26. In view of the discussion above, the defendant has failed to prove that plaintiff did not met the educational or experience qualification to be promoted as Administrative Officer. The issue no.2 is thus decided in against the defendant and in favour of the plaintiff.
ISSUE NO. 3 & 4Whether recommendation by Executive Council of AMDA was made to appoint the plaintiff as Administrative Officer by mis-representation and if so, by whom and effect thereof on her promotion? OPD Whether such promotion could not be made without constituting departmental promotion committee and if so, effect thereof on plaintiff's promotion? OPD
27. The Executive Council of AMDA met on 26.09.2011 wherein recommendation to promote the plaintiff was passed and consequently she joined as Administrative Officer on 30.09.2011. The Executive Council meeting minutes of 26.09.2011 is thus pivotal to decide as to what deliberations were made and who all attended. Firstly, the defence has not exhibited any document or called any witness qua present issue. In cross examination of PW1, the defendant suggested that plaintiff was present in the Executive Council of 26.09.2011, which she denied. Neither the plaintiff nor the defendant have exhibited the minutes of meeting of Executive Council dated 26.09.2011. The CS SCJ 390 of 2017 Pages 21 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) plaintiff has exhibited office Order dated 30.09.2011 as Ex.PW1/4 (OSR) of her appointment as Administrative Officer following the resolution of Council meeting dated 26.09.2011. Ex.PW1/4 only records that promotion of plaintiff was made by Executive Council in meeting dated 26.09.2011.
28. The onus to prove the present issues was on the defendant and it has failed to place on record the minutes of meeting of executive council on 26.09.2011. The defendant even put a suggestion to the plaintiff that she was present in the executive council meetings, in such eventuality the defendant could have confronted the plaintiff with the minutes of meeting of executive council to show attendance or atleast reference could have been made to suggestions, representations or recommendation made before the Executive Council. In absence of the minutes of meeting, it cannot be proved to the satisfaction of this Court that the Executive Council was misrepresented to promote the plaintiff to the post of Administrative Officer.
29. It it true, that the plaintiff was directly to gain out of the recommendation of Executive Council, however to presume that recommendation to promote the plaintiff was by misrepresentation would also be to presume that the Executive Council did not see the minutes of meeting dated 26.03.2011 as well as Recruitment-cum-Service Rules, 2011. This would be presumption too many. No doubt the Executive Council erred in recommending the promotion of plaintiff to the post of Administrative Officer without formation of DPC, however without the minutes of meeting dated 26.09.2011, the issue at hand is not proved.
30. The defendant has thus failed to prove the present issue and issue no.3 is thus decided against the defendant.
CS SCJ 390 of 2017 Pages 22 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA)
31. As regards issue no.4, it is settled that Department Promotion Committee was not constituted and hence without recommendation of DPC, the plaintiff could not be promoted to the post of Administrative Officer, however it is held above that as per Rules, 2011, the plaintiff was eligible to be promoted to be post of Administrative Officer and also promotion was first option for filling the post of Administrative Officer followed by direct recruitment and lastly on short term contract, if above two conditions fail. As regards the second part of the issue i.e. effect of promotion, the Rules, 2011. It is seen that the promotion of the plaintiff was to be made on recommendation of Department Promotion Committee, however Executive Council in its meeting dated 26.09.2011 itself recommended promotion of plaintiff, which was even acted upon by the Chairman on 30.09.2011 wherein the plaintiff was promoted.
32. At the cost of repetition, it is stated that this Court does not have minutes of Executive Council dated 26.09.2011 and as such there is nothing to show as to why Executive Council relaxed the norms in promoting the plaintiff. It is given in the Rules, 2011 that the post of Administrative Officer was to be filled first from promotion and as already held in issue no.2, the plaintiff was eligible to be appointed to the post of Administrative Officer. However, the only step towards promotion of plaintiff was constitution of DPC. The Executive Council, however in its meeting dated 26.09.2011, recommended promotion of plaintiff without waiting for constitution of DPC. This could be for the urgency since the post of Administrative Officer was vacant since May 2010, or it could be since members of DPC were already present in the Executive Council. Be that as it may, the onus to prove otherwise as ̇ on the defendant Association, however the defendant not only failed to place on record the minutes of Council Meeting dated 26.09.2011 and an adverse inference has to be drawn against the defendant in this regard. Rules, 2011 provides that an approval from Executive Council is necessary for amendment/ relaxation of any provision in these rules while CS SCJ 390 of 2017 Pages 23 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) considering promotion of officer. In such circumstances, the defendant having failed to produce Minutes of Meeting of Executive Council dated 26.09.2011, this Court has to draw adverse inference, that the Executive Council met on 26.09.2011, found plaintiff eligible for promotion to the post of Administrative Officer and was also to be given precedence over direct recruitment, the Executive Council gave relaxation to the formation of DPC and approved as well as recommended the promotion of plaintiff to the post of Administrative Officer.
33. Issue no. 4 is also decided against the defendant and in favour of the plaintiff.
Conduct and communication of parties
34. Before proceeding to discuss further issues and to gain clarity in the present case, it is relevant to record what transpired between plaintiff, defendant association and subsequent Senior Officials i.e. Chairman AMDA. Not all documents which are subject matter of communication as discussed hereinunder are on record in original or produced for perusal of the Court, however have been referred to by the plaintiff as well as the Chairman, AMDA while communicating through letters, memorandums and replies.
35. As already seen that plaintiff was promoted as Administrative Officer on 30.09.2011 as stated in Ex.PW1/4 (OSR). The plaintiff was also put on probation of two years. There is nothing on record between 30.09.2011 till 22.02.2016 Mark 'B'. As already stated in Ex.PW1/3 that Service-cum- Recruitment Rules, 2011 were acted upon the all employees of AMDA was governed by CCS(CCA) Rules, 1965, the defendant Association was also to adhere to the timing of probation for its employees. There is no Order on record filed by the plaintiff or the defendant, if plaintiff probation was extended beyond CS SCJ 390 of 2017 Pages 24 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) two years, however in any case the probation period cannot exceed double the period provided. Therefore, after four years of promotion of plaintiff i.e. on 30.09.2015, the probation of the plaintiff was to expire and she was to be consumed in permanent capacity. Reference is made to Government Memorandum dated 11.03.2019 vide No.28020/3/2018-Estt.(C) Government of India Ministry of Personnel, PG & Pensions Department of Personnel & Training wherein it is clarified vide Master Circular that probation period cannot in any circumstances be extended beyond double the normal period and even the extension upon double the normal period has to be for exceptional reasons and employee is to be informed of shortcoming so to enable him to make improvements.
36. In the present case, there is nothing on record that probation period of plaintiff was extended beyond two years normal period or any performance report was prepared of the plaintiff. Atleast nothing has been filed by the defendant side on record. Plaintiff filed Mark 'B' wherein the then Member Secretary & Chairman AMDA, requested then Administrative Officer (plaintiff) to produce all files relating to promotion in AMDA in the past ten years. The said letter was issued on 22.02.2016 to be complied by the plaintiff by 4 PM of same day. Mark 'C' is next letter dated 23.02.2015 by Chairman to plaintiff to personally handover files in his office by 4 PM of meeting of Executive Council held on 13.08.2010, file in which Service cum Recruitment Rules of AMDA was approved and file in which DPC took decision to promote certain employees of AMDA. Plaintiff submitted reply dated 24.02.2016 Mark 'D' and as per this letter certain files and letters were produced. In the following communications vide Mark 'E' the Chairman issued memorandum to the plaintiff stating the discrepancies/ irregularities were found in the files relating to Executive Council Meetings, Service-cum-Recruitment Rules and the Code of Conduct.
CS SCJ 390 of 2017 Pages 25 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA)
37. Relevant would be state the contents of communication Mark 'E'. The Chairman vide Mark 'E' dated 02.03.2016 found first discrepancy/ irregularity in the files stating that "Executive Council in meeting dated 13.08.2010 decided that one retired Government Employee of Accounts and Administrative background be appointed as Administrative and Accounts Officer. The advertisement for the same was published in the newspaper on 14.09.2010 and in response 12 applications were received out of which 9 were found eligible for the post, Assistant Director (Capacity Building and Training) had put the file with a request to the Chairman to decide the date, time and venue of the interview on 23.12.2010 to the Director, AMDA. The then Chairman, AMDA had made a query and the file was sent back to the Director AMDA on 03.01.2011. On 31.01.2011 Smt. Sangeeta Gupta had put up the file along with minutes of the meeting held on 13.08.2010 without giving the details of honorarium given to staff for additional work which was asked by the Chairman on 03.01.2011 and Smt. Sangeeta Gupta marked the file to Director, AMDA. The Director wrote a half page note on 01.02.2011 and marked the same to the Chairman but he never sent the file to the Chairman, AMDA for approval and orders. Chairman, AMDA was transferred on 31.01.2011. Subsequently, in the absence of Chairman, AMDA the meeting of the EC was convened on 26.04.2011 under the chairmanship of the Vice-Chairman, AMDA in which item no.3 (action taken report) on the minutes of last meeting of EC held on 30.08.2010. The Director, AMDA explained the progress on each point. On the query about the Progress on appointment of Administrative-cum-Accounts Officer on contractual basis. It was informed that all the applications were received in response to the advertisement, interview for the post could not be held as the response was not adequate to meet the requirement of work of AMDA. In the meantime, the existing staff was given additional responsibilities of administrative and account section and was felt that instead of appointing a new person on contract basis, the existing staff who have gained sufficient CS SCJ 390 of 2017 Pages 26 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) experience in Administration and accounts may be considered for promotion to the post of Administrative Officer and Accounts Officer".
38. Based on the above first discrepancy/ irregularity the Chairman observed that as per record when twelve applications were received, and nine candidates were legible, why EC was informed that the response was not adequate. Why the file was not put up to the Chairman, AMDA with the answer of the query raised by him in time. Why the Chairman, AMDA being relieved on 31 January 2011 and the file was put up to the Director AMDA on the same day. How did Director AMDA had decided that the staff of AMDA have gained sufficient experience in administration and accounts and they may be considered for promotion. Why details of honorarium was not provided to the then Chairman, AMDA.
39. The Chairman further in second discrepancy/ irregularity noted that a meeting of EC was held on 26 April 2011 and the Director mentioned that the administrator and Account sections are without any officers and the work is being handled by the existing staff as additional responsibility and existing staff working in AMDA for the last 20 years are well qualified and have gained experience in administration and accounts Matters as such instead of appointing any body on contract basis. It would be advisable that the existing eligible stuff be promoted to the post of administrative and accounts officer to the post of administrative and accounts officer. It was further noted that for administrative convenience and correspondence the existing staff working on additional charge were proposed to be promoted and as such in principal approval was given to promote the existing staff then direct recruitment or contractual employment. Based on the second discrepancy, the Chairman observed whether the office assistant from the last 20 years looked after the work of Accounts at any time.
CS SCJ 390 of 2017 Pages 27 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA)
40. The Chairman in this letter Mark 'E' issued a long memorandum for the plaintiff to reply within two days. The crux of the above memorandum was discrepancies/ irregularities in the files of recruitment, promotion, etc. in the custody of the plaintiff. The plaintiff was thus asked to show cause about submissions made to EC in 2010 and then a shift in the year 2011 from contractual employees to promotion. Issue of not putting up file in time before the Chairman and on his immediate transfer, same being put before the Director. The issue was also highlighted as to convene Executive Council meeting dated 26.04.2011 under Vice-Chairman and making wrong submission. The Chairman also sought response with regard to appointment of DPC before considering promotion of existing employees, wrong procedure being followed and also any written approval of Service-cum-Recruitment Rules, 2011 by the Chairman before September 2011. The Chairman also sought as to why her probation file was not put before the Director or Chairman for consideration after the lapse of two years. The Chairman also sought response from the plaintiff for being a follower of Sant Nirankari Mission since 2007 and serving in Sant Nirankari Public School, Malviya Nagar for last couple of years as honorary member of Management Committee. The Chairman sought response from the plaintiff on the above discrepancies/ irregularities as well as if any permission was taken by the plaintiff to give services in the Mission even though she stated that no payment or reward was accepted as mandated under Rule 15(3) CCS Conduct Rules.
41. The plaintiff replied to the said memorandum vide Mark 'G' on 04.03.2016 and as regards the events of 2010 and 2011, she stated that same was being dealt with by the Director himself and honorarium was approved for additional charge in the EC on 13.08.2010. As regards her gaining experience, the plaintiff replied that she was looking after the Administration since 1991. The plaintiff further clarified that since Vice-Chairman, AMDA was located in CS SCJ 390 of 2017 Pages 28 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) Bangalore, the correspondence and approval of Service-cum-Recruitment Rules, 2011 was done through email. Plaintiff again reiterated that no DPC was constituted when she was granted promotion. The reply Mark 'G', further clarified that appointing and disciplinary authority of Administrative Officer is Director-cum-Member Secretary, however the said post was lying vacant since March, 2013. The reply is however silent if she took any permission for honorary services to the Mission as mandated under Rule 15(3) of CCS Conduct Rules.
42. Following these communication, an Order dated 03.05.2016 was passed by the Chairman, AMDA, Mark 'H', wherein the plaintiff alongwith three others who were promoted vide Executive Council approval on 26.09.2011 were demoted. The Chairman in his communication highlighted various discrepancies in the defendant Association pertaining to recruitment, redesignation of employees and changing stands of Executive Council and put the entire blame on the existing employees to have manipulated the Director, AMDA, the Chairman, AMDA and also the Executive Council, AMDA. The Chairman referred to existing rules applicable on the employees of AMDA without specifying the provisions or rules. It is to be borne in mind that AMDA in resolution dated 26.03.2011 for the first time resolved to formulate condition and rules of service and promotion of its employees. Before the year 2011, the employees of AMDA were appointed as on requirement basis. The then Chairman in Mark 'H' proceeds that earlier appointments, recruitments, and other actions etc. made in the AMDA were against rules and principles, however the Chairman fails to point out what were these rules which were flaunted. When the Executive Council of the AMDA itself recognised that earlier to 26.03.2011, there were no rules for appointment, recruitment or promotion of employees of AMDA and thus necessity arose to first frame rules, then how come Chairman in his letter 03.05.2016 held that AMDA was acting against CS SCJ 390 of 2017 Pages 29 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) rules prior to 2011 in recruitment, appointment and condition of services of its employees.
43. It was only on 26.09.2011 that the Service-cum-Recruitment Rules, 2011 were adopted in the email by the Chairman and CCS (CCA) Rules were made applicable on the employees of the AMDA. Any action prior to 26.09.2011, cannot be brought in the purview of CCS (CCA) Rules. If the Executive Council wanted to decide otherwise, same would have been part of Executive Council resolution of 26.09.2011. However, even the Chairman in his Order dated 03.05.2016 has not highlighted as to what rules would apply on appointment of employees of AMDA before September 2011. The Chairman not being above the Executive Council cannot override and challenge unilaterally the Executive Council decision with his Order of 03.05.2016.
44. Be that as it may, the Order dated 03.05.2016 of the then Chairman itself records that he sent a copy of the Order dated 03.05.2016 to Assistant Director (Capacity Building and Training) with a request to prepare agenda note for the next Executive Council meeting to ratify the decision taken. The Chairman very well understands that Executive Council decision are binding on him and he requires ratification of his Orders/ actions. Further, the Chairman wrote about rules not being followed in appointment employees of AMDA prior to 2011, however he himself forgot that since 26.09.2011, Service-cum-Recruitment Rules, 2011 were made applicable on the employees of AMDA. As such the employees of AMDA were subjected to CCS(CCA) Rules and they could not be demoted without following the rules of CCS (CCA) Rules. As per the communications Mark 'B' to Mark 'G', Chairman was only inquiring into the irregularities and issuing memorandum to the four employees who were promoted by Executive Council resolution dated 26.09.2011. No doubt the Appointing Authority and Disciplinary Authority qua the employees even after CS SCJ 390 of 2017 Pages 30 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) promotion on 26.09.2011 was Director, AMDA, however any Order as to cancellation of promotion from the date it was issued as well as recovery of payment of monies to the employees consequent upon the promotion, is part of 'major penalties' under Rule 11 CCS (CCA) Rules, 1965. The Chairman, AMDA in his Order dated 03.05.2016 while referring to some non-existent rules prior to 2011, forgot that the Order dated 03.05.2016 passed by him imposing penalties on the four employees cannot be Ordered by him without following the Rules under CCS (CCA) Rules, 1965.
45. Continuing further, the Chairman issued another Order dated 04.05.2016 giving Assistant Director (Administration) additional charge of Administration related work. The plaintiff wrote letter Mark 'J' dated 05.05.2016 to the Chairman to reconsider his Order dated 03.05.2016. The Chairman on 18.05.2016 issued another Order Mark 'K', wherein on receipt of letter Mark 'J', the Chairman gave personal hearing to the plaintiff on 17.05.2016 and rejected her oral contention. The Chairman also held that in the personal hearing, the plaintiff had sought pardon to the acts committed by her. The Chairman vide Mark 'J' rejected to interfere with his Order dated 03.05.2016.
46. The Administrative Officer Sh. Harsh Kalia went on further to pass Order dated 24.05.2006 (sic) [the Order ought to have read 24.05.2016, since all communications and actions were of contemporaneous period]. In the said Order Mark 'L', the Administrative Officer Sh. Harsh stated that on 24.05.2016 at about 6PM, the plaintiff and one other person Smt. Kiran Chanana, Office Assistant had entered the room of AD (CB & T) in absence of the officer and even though the Order Mark 'L', the Assistant Director (Administration) stated that it was subject matter of enquiry why the employees entered the room of AD (CB & T), but with immediate effect, the two employees were placed under suspension.
CS SCJ 390 of 2017 Pages 31 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA)
47. Further, memorandum dated 21.06.2016 was issued to the plaintiff and Smt. Kiran of gross misconduct and illegal action, in opening the official room of Assistant Director (CB & T) after the closure of the office and remaining in the office premises ever after punching the biometric attendance system. The memorandum further records that earlier also similar activities of both the employees were reprimanded by the AD (CB&T) however no specific incident or date was alleged. Vide the memorandum, the employees were asked to reply within three days before appropriate action for initiation of departmental proceedings/ department inquiry would be initiated. The said memorandum was issued by Assistant Director (Administration). The plaintiff replied dated 24.06.2016 Ex.PW1/7 (OSR) to the said memorandum wherein she admitted to have entered into the room of Assistant Director (CB&T) PM 24.06.2016 which she stated was already informed to Ms. Shipra Ranjani the then AD (CB & T) and plaintiff further clarified that she entered the room as a routine exercise and earlier also she use to go to the room and there was never any objection nor any mishandling of any file. The plaintiff sought to reiterate her reply dated 21.06.2016. Plaintiff contested that she entered the room before she punched in the biometric attendance and left the office. She also contested the claim that earlier also AD (CB&T) had reprimanded her of similar conduct.
48. Based on the above sequence of events and communications, the Chairman, AMDA then issued memorandum dated 01.08.2016 Ex.PW1/18 to the plaintiff proposing to hold inquiry against her. The Articles of Charge (Annexure-I), a statement of imputation of misconduct or misbehaviour in support of the articles of charge was also given (Annexure-II). Copy of evidence as provided by the caretaker was also given (Annexure-III). The plaintiff was granted 10 days time to file her written statement of defence. Noteworthy is to see that this enquiry was proposed under Rule 14 of the CCS (CCA) Rules, CS SCJ 390 of 2017 Pages 32 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) 1965. Annexure-I contained articles of charge wherein in Article-I it was stated that she made undue and unwarranted access to the room of Assistant Director (CB&T) on 20.05.2016 after the normal closing of the office as well as after marking their attendance through the Biometric System of attendance. Article-II was issued for allegedly being involved in furnishing false and concocted information to influence the promotion of the employees of the organisation and acted in gross violation of the provision connected to the promotion process of the employees of the organization. She ignored the Recruitment Rules as well as Departmental Promotion Committee and submitted the cases of promotion for approval of the competent authority. It is was further stated that Smt. Sangeeta Gupta was under the charge of handling the promotion procedure deceived the superiors by not submitting the true and correct information and violated the trust of the superiors in their subordinates and the action shown gross untrustworthiness towards the master.
49. To conduct the disciplinary inquiry, on 01.08.2016, the then Chairman, AMDA Sh. B.K. Tripathi appointed one Sh. V.P. Sharma, Retd. Assistant Accounts Officer from Ministry of Urban Development as 'Inquiry Officer' and Sh. Harsh Kalia, Assistant Director (Administration) in NCR Planning Board was to handle the charge of Administration Officer as 'Presenting Officer'. The Order is Ex.PW1/19. The disciplinary inquiry was conducted against the plaintiff mentioned as PA to Director, AMDA. During these proceedings, on 03.10.2016, the plaintiff requested Sh. S.P. Rustogi, Retd. Deputy General Manager (HR), NBCC to stand as 'Defence Counsel'. This inquiry was then concluded and charges were stated by the Inquiry Officer to have been proved and consequent upon the report, the Chairman ordered dismissal of the plaintiff from the service on 27.10.2016. Said Order was communicated to plaintiff vide Office Order of Assistant Director (Admin.), NCRPB discharging the duty of Administrative Officer, AMDA on 28.10.2016 which is Ex.PW1/26. Further, the CS SCJ 390 of 2017 Pages 33 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) Administrative Officer issued office memorandum dated 26.12.2016 Ex.PW1/27 seeking recovery of Rs.4,35,620/- in view of her cancellation of promotion dated 30.09.2011 and all excess amount paid in view of this cancellation from back date. Also notice of recovery was issued on 07.03.2017 Ex.PW1/28 by Administrative Officer.
50. Interestingly, the plaintiff has challenged all these proceedings against her to be bad in law and against the CCS (CCA) Rules, 1965. Subsequently, the plaintiff also filed application for production of documents and defendant Association produced one report of Sh. B.N. Bansal dated 24.09.2019. The said report was filed under the Orders of the Court by Director-cum-Member Secretary, AMDA wherein it is mentioned in the report that in view of the disciplinary inquiry initiated against the plaintiff, the then Chairman, AMDA appointed Sh. Shireesh Sharma, Assistant Director (Admin.) and Accounts Officer, AMDA as 'Presenting Officer' and Sh. B.N. Bansal as 'Inquiry Officer', which was necessitated when the plaintiff filed representation against her Order of dismissal and the then Chairman, considering the facts of record and keeping in view the principals of natural justice in exercise of the powers conferred by sub rule 2 read with sub rule 14 of CCS (CCA) Rules 1965 ordered a fresh inquiry by the Inquiry Officer. The Inquiry Officer gave a different report wherein he held that none of the two charges against the plaintiff were proved. The said report as stated by the Director-cum-Member Secretary was not accepted by AMDA for further action. The above said discussion shall be relevant for the decision in issue no. 5 to 12.
ISSUE NO. 6, 7 AND 8Whether the enquiry conducted by Mr. V. P. Sharma was illegal/irregular in procedure as well as regarding the competency of the inquiry officer? OPP CS SCJ 390 of 2017 Pages 34 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) Whether the plaintiff is entitled to declaration that the order dt. 03.05.2016 passed by Chairman, AMDA is illegal and null and void and have no binding effect on the rights of the plaintiff? OPP Whether the plaintiff is entitled to declaration that the order dt. 28.10.2016 is illegal and null and void and have no binding effect on the rights of the plaintiff?
OPP
51. In view of discussions in paragraphs 34 to 50, the above three issues are to be decided. The onus to prove these issues are on the plaintiff. The issue no. 7 is considered first. It has been held by this Court in the preceding paragraphs that plaintiff was promoted to the post of Administrative Officer w.e.f. 30.09.2011 which was approved by the Executive Council in its meeting on 26.09.2011. It was also resolved vide this Executive Council meeting that employees of AMDA would be governed by CCS (CCA) Rules, 1965. The plaintiff even assumed the charge and worked as Administrative Officer from 30.09.2011 till 03.05.2016. On 03.05.2016, the Chairman, AMDA Sh. B. K. Tripathi took upon himself to issue memorandum and with response and upon his own readings of some non-existence rules of service of employees of AMDA prior to 2011 held that plaintiff and other promoted employees were illegally promoted and cancelled their promotion from back date.
52. At this juncture, it is to be seen that plaintiff who as on 03.05.2016 was governed by CCS (CCA) Rules, 1965 could not have been demoted to junior rank/ pay scale without disciplinary enquiry. The Chairman, Sh. B.K. Tripathi passed the Order 03.05.2016 in blatant disregard to Part IV - CCS (CCA) Rules, 1965. The Chairman, AMDA failed to initiate disciplinary inquiry under Rule 14 and 15 and immediately after the receiving replies from the employees, passed CS SCJ 390 of 2017 Pages 35 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) the Order dated 03.05.2016. The requirement of Rule 14 of Rules, 1965 need not be stated any further since, the same Chairman, AMDA himself was in knowledge of these Rules, 1965 as can be seen from subsequent conduct. After the cancellation of promotion was ordered, the Chairman, AMDA found few more shortcomings in the conduct of the plaintiff and then he issued formal charge under two heads and appointed 'Inquiry Officer' as well as 'Presenting Officer' in compliance of Rule 14 and 15 of Rules, 1965.
53. This discussion answers the issue no.7 wherein the plaintiff had proved by preponderance of probability that the then Chairman, AMDA Sh. B.K. Tripathi could not have passed Order dated 03.05.2016 without first following Part IV of Rules, 1965. Issue no.7 is therefore decided in favour of the plaintiff and against the defendant.
54. As regards the issue no.8. Some good sense did prevail in the Office of Chairman, AMDA and they tried to comply with the provisions of CCS (CCA) Rules, 1965 in initiating disciplinary inquiry. However, even the said Rules, 1965 were not followed with utmost sincerity. It is settled principles under Service Laws that CCS (CCA) Rules are sacrosanct and misreading of the same would vitiate any inquiry. It is also a settled law that codified principles of Evidence Act does not apply to disciplinary enquiries, however the said inquiries are to be governed by broader provisions of law of evidence and are particularly subservient to the principles of natural justice.
55. Coming to the case at hand, the memorandum of misconduct was issued to the plaintiff by the Sh. Harish Kalia, Assistant Director (Administrative) NCRPB also discharging the function of Administrative Officer in AMDA. NCRPB stands for National Capital Region Planning Board and Sh. Harish Kalia was employed at the post of Assistant Director, but in the AMDA he was CS SCJ 390 of 2017 Pages 36 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) discharging the duty of Administrative Officer. This responsibility was given to Sh. Harish Kalia by the Sh. B.K. Tripathi, then Chairman, AMDA on 04.05.2016. The said date is only one day after Sh. B.K. Tripathi, then Chairman, AMDA had demoted the plaintiff. As already held the said Order dated 03.05.2016 of demotion of plaintiff is illegal and non-est.
56. Reference again is made to CCS (CCA) Rules 1965 as made applicable on the plaintiff vide Executive Council recommendation dated 26.09.2011. Also being promoted to the post of Administrative Officer, she shall continue to hold the said post, unless removed in accordance with CCS (CCA) Rules, 1965. Therefore, as on date of 01.08.2016 when Sh. B.K. Tripathi, then Chairman, AMDA had appointed 'Inquiry Officer' as well as 'Presenting Officer', the plaintiff would have continued to enjoy the post of Administrative Officer if not for the illegal Order dated 03.05.2018. It is settled principle that an 'Inquiry Officer' should be senior in rank to the officers enquired against. The said position was clarified in G.I., C.S. (Dept. of Per.), O.M. No. 7/12/70-Ests. (A), dated 06.01.1971. In the present case, the 'Inquiry Officer' was appointed by the Chairman, however the 'Inquiry Officer' Sh. V.P. Sharma, was Retd. Assistant Accounts Officer from Ministry of Urban Development. The 'Inquiry Officer' is clearly junior in rank to the plaintiff, who was holding the post of Administrative Officer in AMDA.
57. The Chairman, AMDA or atleast the defendant Association was duty bound to adhere to the hierarchy of positions held by the plaintiff and the inquiry officer. There is a serious lapse in the appointment of 'Inquiry Officer' by the Disciplinary Authority i.e. the Chairman. The 'Presenting Officer' was discharging the function of Administrative Officer i.e. Sh. Harsh Kalia. He is also the complaint with respect to Charge-I. Otherwise the 'Presenting Officer' CS SCJ 390 of 2017 Pages 37 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) was posted as Assistant Director, NCRPB which again is a post higher in rank to that from which the 'Inquiry Officer' had retired.
58. The issue no. 6 is therefore decided in favour of the plaintiff and against the defendant and appointment of 'Inquiry Officer' junior in rank to the 'Delinquent Officer' was bad in law.
59. When the Disciplinary proceedings are vitiated, there can be no legal conclusion to the said proceedings. When the 'Inquiry Officer' was not properly appointed, very little can be expected out of such proceedings. The plaintiff even had reasons to doubt the disciplinary enquiry. It can be seen in the record that the 'Inquiry Officer' charged the delinquent officer/ plaintiff of misconduct and influencing at various meetings and point in time the officials of Executive Council and even earlier Director, under whom she was working as Personal Assistant/ Senior Stenographer. However, the 'Inquiry Officer' failed to examine the said witness. The only three witnesses cited in Annexure-III were Ms. Shipra Ranjani, (AD&T), Sh. Sanjay Kumar Dubey, Photocopy Operator and Sh. Jyoti Prakash Rana, Caretaker. From the report of 'Inquiry Officer', it is seen that he relied on the communication between Ms. Shipra to 'Presenting Officer' Sh. Harish Kalia, however no effort was made to call her in witness box. The report further does not specify as to why entry of plaintiff in the office of Assistant Director (CB&T) was out of ordinary and out of routine exercise. 'Inquiry Officer' has made no reference to what statement was made by the other two witnesses, even if examined. The plaintiff since herself admitted that she entered the room of the Assistant Director as routine exercise, the 'Inquiry Officer' has concluded that the same is admission of plaintiff and gross misconduct. Nothing has been stated in the 'Inquiry Report' as to why selective portion of plaintiff's defence has been relied upon. 'Inquiry Report' also does not state if plaintiff was routinely going into the office of Assistant Director for official work and she CS SCJ 390 of 2017 Pages 38 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) entered on 20.05.2016 without consent, then what consequences ensued. There is no effort to trace if there was any malafide on part of the plaintiff in entering the office of Assistant Director. There is no allegation of missing files, documents or tampering with any record, report, file, etc.
60. Similar is the case of Charge-II the 'Inquiry Officer' reiterated the memorandum earlier issued by the then Chairman, Sh. B.K. Tripathi and concluded that charges were proved. This Court has thus reason to believe that the Government Memorandum G.I., C.S. (Dept. of Per.), O.M. No. 7/12/70-Ests. (A), dated 06.01.1971, is issued for the specific reason and instance, like the ones this Court is dealing at hand. The 'Inquiry Officer' when found junior to the 'delinquent officer' as well as 'presenting officer' lacks command over the officers and fails to objectively conduct inquiry. To the opinion of this Court, the 'Inquiry Report' of Sh. V.P. Sharma is nothing but reiteration of memorandum and conclusion that charges stands proved.
61. The recommendation by the 'Inquiry Report' both in principle as well as in substance does not hold any merits and cannot form any basis of legal conclusion, much less of imposing a major penalty under the CCS(CCA) Rules, 1965. Since the Order dated 28.10.2016 is based on the 'Inquiry Report', the same is also not sustainable in law as per CCS (CCA) Rules. The issue no.8 is also decided in favour of the plaintiff and against the defendant.
62. In conclusion, it is reiterated that issue no. 6, 7 and 8 are decided in favour of the plaintiff and against the defendant.
ISSUE NO. 5CS SCJ 390 of 2017 Pages 39 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) Whether the plaintiff's entry into the room of Assistant Director (CB&T) on 20.05.2016 was illegal and amounted to mis conduct under Service Rules and whether order of suspension on such ground was not dis proportionate? OPD
63. This issue is directly related to the issue already discussed above. This ̧Court finds nothing illegal into the entry of plaintiff in the room of Assistant Director (CB & T). In compliance of the Order of this Court, the defendant filed report dated 11.04.2019, placing on record second Inquiry by Sh. R.N. Bansal as 'Inquiry Officer'. The defendant Association thus itself felt that the earlier inquiry ordered by Sh. B.K. Tripathi, then Chairman did not follow the law under CCS (CCA) Rules, 1965. Further, the second Inquiry Report by Sh. B.N. Bansal records the extracts of testimony of witness Sh. Jyoti Prakash Rana, caretaker who stated that he could not see who took the keys from the drawer and he even stated that plaintiff was having one key with her of the room of Assistant Director. This statement as rightly concluded by the 'Inquiry Officer' demolishes the case of departmental inquiry by the defendant Association. The plaintiff if had keys of the room of Assistant Director, would have full access to the room and therefore, the apprehension of gross misconduct by the defendant Association on this ground against plaintiff is completely baseless, frivolous and concocted.
64. This Court finds nothing illegal or gross misconduct in the entering of the plaintiff in the room of Assistant Director. Be that as it may, the then Assistant Director herself did not come to depose before the 'Inquiry Officer'. It is settled principle of law, that punishment should be proportionate to the misconduct. In the present case, the defendant association has firstly failed to establish that there is misconduct on part of the plaintiff and next it was to be proved that the misconduct was gross. Order of suspension for entering into the room of Assistant Director, is highly disproportionate to the conduct. Caretaker of the CS SCJ 390 of 2017 Pages 40 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) defendant Association in second Inquiry stated that plaintiff had keys with her of the room of Assistant Director and hence there is nothing illegal in her entering the room. The first Inquiry report is silent as to what was stated by witnesses before Inquiry Officer. It is also not the case of defendant Association that plaintiff tampered or took away any file, record or document. Under such circumstances, the action on part of Sh. B.K. Tripati, the then Chairman, AMDA and Sh. Harsh Kalia, Administrative Officer is highly questionable.
65. Sh. B.K. Tripathi, the then Chairman, AMDA seems to be working in premeditated manner. The order of cancellation of promotion without any disciplinary inquiry on 03.05.2016. On 04.05.2016 itself, Sh. Harsh Kalia was given additional charge of Administration in the AMDA. Within 20 days, Sh. Harsh Kalia, without any complaint of missing file, tampering of documents from Assistant Director, issued suspension letter of plaintiff on 20.05.2016. These series of Orders does not confirm to the judicial conscience of this Court. The Orders passed in such haste seems premeditated and determinate to terminate the services of plaintiff by hook or by crook. Sh. B.K. Tripathi, the then Chairman writes volumes about rules not being followed in AMDA before 2011 (when if fact no rules for condition of service of employees of AMDA were adopted) in his Order dated 03.05.2016. However, same Sh. B.K. Tripathi continues to violate every rule of CCS (CCA) Rules, 1965 from Order of cancellation of promotion of plaintiff from back date without any disciplinary inquiry till her termination on 28.10.2016 based on report of 'Inquiry Officer' appointed against the settled law under CCS (CCA) Rules, 1965.
66. Also, Sh. Harsh Kalia was discharging the duty of Administrative Officer and if not for illegal Order of then Chairman dated 03.05.2016, the plaintiff would have been employed as Administrative Officer in AMDA. Sh. Harsh Kalia was otherwise posted as Assistant Director, NCRPB, which is CS SCJ 390 of 2017 Pages 41 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) inconsequential to his powers adopted by AMDA in imposing penalties. As per Service and Recruitment Rules, 2011 adopted by AMDA vide Executive Council meeting on 26.09.2011, the Disciplinary Authority in case of Administrative Officer was Director-cum-Member Secretary, AMDA. It is stated by plaintiff that post of Director in AMDA was vacant and as on 2016, only Chairman would have power to impose the penalty of suspension, that too for recorded reasons.
67. This Court therefore holds that the defendant has failed to show that there was illegal act of plaintiff in entering the room of Assistant Director and amounted to gross misconduct which warranted immediate suspension. Even if the plaintiff entered, there was no gross misconduct or malafide in the action of plaintiff which would warrant penalty of suspension. The issue no. 5 is therefore decided against the defendant and in favour of the plaintiff ISSUE NO. 9 Whether the plaintiff is entitled to permanent injunction thereby permanently restraining the defendant from recovering the payment which was to be paid to plaintiff as a salary while working as Administrative Officer? OPP
68. This issue has arisen out of sheer non-adherence of law by the then Chairman, AMDA Sh. B.K. Tripathi or for lack of knowledge of law. As already held by this Court in earlier issues, the plaintiff as Senior Stenographer/ P.A. to Director was eligible for promotion to the post of Administrative Officer. The Executive Council in its meeting dated 26.09.2011, passed resolution in this aspect. The plaintiff was promoted by Order dated 30.09.2011 and until 03.05.2016, she continued to hold the said post. The defendant Association have not produced a single instance or record to show that plaintiff did not perform the function of her post held until 03.05.2016.
CS SCJ 390 of 2017 Pages 42 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA)
69. Sh. B.K. Tripathi the then Chairman, AMDA failed to show that as per Recruitment and Service Rules, 2011 approved by the then Vice Chairman (since there was no Chairman) and also adopted by the Executive Council on 26.09.2011, then by what authority he being Chairman, could challenge the resolution adopted by the Executive Council. The conduct of the then Chairman infact shows malafide and blatant disregard to the rules as did his subsequent conduct. Also, when plaintiff had discharged her functions as Administrative Officer from 30.09.2011 to 03.05.2016, then by what authority, the then Chairman could order recovery of excess pay of plaintiff at the post of Administrative Officer is beyond comprehension of the Court. This Court is unable to find any law which empowers the Chairman of defendant Association to issue such an Order without any disciplinary enquiry ordered and concluded in this regard.
70. Thus by preponderance of probability and on the principles of natural justice, the defendant cannot recover monies from the plaintiff of service already rendered. The issue no. 9 is decided in favour of the plaintiff and against the defendant.
ISSUE No. 11 AND 12Whether the plaintiff is entitled to declaration that order dt. 18.05.2016 is not binding against her? OPP Whether the plaintiff is entitled to declaration that order dt. 24.05.2016 is not binding against her? OPP
71. These issues have already been discussed in details with issue no.5. To reiterate, the plaintiff filed appeal before the then Chairman, AMDA Sh. B.K. Tripathi to reconsider his Order dated 03.05.2016. The said representation/ CS SCJ 390 of 2017 Pages 43 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) appeal of plaintiff was rejected vide Order dated 18.05.2016 and Order dated 03.05.2016 was reiterated. Since the Order dated 03.05.2016 is not valid, its reconsideration Order rejecting all representation is also bad in law. Although the plaintiff in her representation sought review on factual aspect and not on the Rules, 1965 applicable or Service and Recruitment Rules, 2011 of AMDA, however, this Court ought not to restraint itself from setting aside the Order dated 18.05.2016. The Order of 18.05.2016 rejecting reconsideration of Order dated 03.05.2016 is bad in law being hit by Service and Recruitment Rules, 2011 of AMDA as well as CCS (CCA) Rules, 1965.
72. Further vide Order dated 24.05.2024, the then Administrative Officer, Sh. Harish Kalia had put the plaintiff under suspension. This issue has already been dealt with by this Court in paragraphs number 66. Sh. Harsh Kalia discharging duty as Administrative Officer, was similar in rank to the plaintiff and by no means holding the post of Director-cum-Member Secretary, AMDA or President who was the Disciplinary Authority under the AMDA, Rules 2011 adopted by the Executive Council in its meeting dated 26.09.2011.
73. Both issue no. 11 and 12 are thus decided in favour of the plaintiff and against the defendant.
ISSUE NO. 10Whether the plaintiff is entitled to mandatory injunction thereby permanently directing the defendant to post the plaintiff in service as an Administrative Officer with continuity in service and all other consequential benefit including back wages? OPP
74. As a natural corollary of the above discussion, it is seen that the plaintiff was wrongly demoted from the post of Administrative Officer, suspended from CS SCJ 390 of 2017 Pages 44 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) the post of Senior Stenographer/ Personal Assistant to Director and then terminated from the service from the above post. All this happened between 03.05.2016 to 28.10.2016. The Order of demotion and termination was issued by the then Chairman, AMDA Sh. B.K. Tripathi; whereas Order of suspension was issued by the then Administrative Officer (discharged additionally by Assistant Director, NCRPB) Sh. Harsh Kalia.
75. If not for the above three illegal Orders, the plaintiff would have continued in the service of the defendant Association and that too on the post of Administrative Officer since 30.09.2011. Now, the plaintiff has sought the relief of mandatory injunction directing the defendant Association to reinstate the plaintiff on the post of Administrative Officer with continuity in service from 03.05.2011 itself. Relief is also sought that the plaintiff be granted all consequential benefits including back wages.
76. The defendant Association since beginning was opposed to the said relief and quoted Section 14 as well as 34 of the Specific Relief Act, 1963 to oppose the grant of these to reliefs. The defendant Association averred that Section 14 of Act, 1963 states that injunction wherein contract of performance of continuous duty which Court cannot supervise ought not to be granted. This Court fails to understand the rationale of such a submission. The defendant Association still fails to understand that its employees are now government by AMDA Rules, 2011, which have subsequently been amended in 2017. However, the qualification for promotion to the post of Administrative Officer is still the same and even as per the new Rules, 2017, the plaintiff is eligible to promotion of Administrative Officer. The defendant Association again fails to understand that its employees are not working on contractual basis, but are in permanent capacity and the plaintiff in specific is working in the Association since 1991. The defendant side has failed to show before the Court that plaintiff is accused CS SCJ 390 of 2017 Pages 45 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) of dereliction from her duties, or of any gross misconduct. If the defendant Association refers to issues at hand in the present case to allege misconduct by the plaintiff, it can clearly be seen that the then Chairman as well as Administrative Officer far exceeded their powers under the CCS (CCA) Rules. Although, this Court would hold short itself in saying that the then Chairman Sh. B.K. Tripathi and Sh. Harsh Kalia, then Administrative Officer acted in malice, under bias and pre-concocted/ pre-meditated manner, however, this Court would not hold itself in concluding that the then Chairman and Administrative Officer failed to adhere to the Service and Recruitment Rules, 2011 applicable to AMDA as well as CCS (CCA) Rules, 1965.
77. Reference here is drawn to Indian Iron and Steel Co. Ltd. v. Their Workmen, AIR 1958 SC 130 wherein issue arose as to termination of workmen after disciplinary inquiry and whether Labour Courts could interfere with disciplinary action. The present matter is neither subject matter of dispute between workmen and industry, nor is a case before labour court, however, reference is made to circumstances stated when interference by the Court is warranted. It was held that interference by Courts is warranted (a) when there is want of good faith; (b) when there is victimisation or unfair labour practice; (3) when the management has been guilty of a basic error or violation of a principle of natural justice; or (d) when on materials the finding is completely baseless and perverse.
78. This Court has already dedicated numerous paragraphs of this judgment to state that the defendant Association failed to uphold its own AMDA Service and Recruitment Rules, 2011 as were adopted in the Executive Council meeting on 26.09.2011. The then Chairman then violated every and even the very basic rules of CCS (CCA) Rules, 1965 and the conduct of the inquiry was marred by violation of principles of natural justice. The inquiry report of first Inquiry CS SCJ 390 of 2017 Pages 46 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) Officer Sh. V. N. Sharma also lacked confidence, right from the beginning. The appointment of Inquiry Officer who is junior in rank to the delinquent officer was improper and his report to reiterate the memorandum issued by the Chairman and selective reading of the written statement of plaintiff, is nothing but conclusion on baseless and perverse grounds. The reliance on the said Inquiry Report by the Chairman to terminate the services of plaintiff is thus opposed to Rules, basic principles and even unacceptable to conscience of ordinary prudent man. The punishment meted out to the plaintiff of demotion and suspension was highly disproportionate, not to forget opposed to Rules, 1965 and imposition of major penalty of termination without there being any finding of malafide is also found baseless and perverse.
79. The plaintiff is entitled to be reinstated at the post of Administrative Officer as she was promoted on 30.09.2011. There is nothing on record to show that there was negative remarks on the working of the plaintiff during her posting between 1991 to 30.09.2011 as Stenographer and PA to Director or subsequent from 30.09.2011 to 03.05.2016 when she was posted as Administrative Officer. The plaintiff if not for the reckless and careless actions of the then Chairman, would have continued to hold the position of Administrative Officer with all consequential benefits.
80. No doubt, grant of mandatory injunction is an equitable relief and still at the discretion of the Court and conduct of the parties are one factor in deciding the relief. The defendant Association argued that the plaintiff admitted her guilt, sought pardon before the then Chairman and even joined at demoted post after her promotion was cancelled. The defendant Association further held that plaintiff's representation were rejected by the then Chairman and decide the option of appeal, the plaintiff did not prefer any appeal and only filed the present case.
CS SCJ 390 of 2017 Pages 47 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA)
81. Here, the conduct of the defendant Association is also to be borne in mind. In the year 2017 itself, the defendant Association sought to rectify its mistake committed in ordering disciplinary enquiry, wherein new 'Inquiry Officer' and 'Presenting Officer' were appointed and fresh Inquiry was ordered. The 'Inquiry Officer' now appointed had retired for Government office with sufficient seniority against the post of delinquent officer and his report reasoned the testimony of the witnesses as well as objectively considered the allegations on the plaintiff. Although the Director-cum-Member Secretary, reported before the Court that second Inquiry Report was not accepted for further consideration, however this Court finds that apparent errors committed in the first Inquiry were sought to be corrected by the new Chairman. However, the old sense returned to the defendant Association and they without assigning any reason chose not to accept the report of second 'Inquiry Officer'.
82. Another important factor to be considered is the conduct of the then Chairman, AMDA Sh. B.K. Tripathi who kept ordering illegal Orders one after the other i.e. on 03.05.2016, 18.05.2016, 01.08.2016 and 28.10.2016 in blatant disregard to AMDA Rules, 2011 as well as CCS (CCA) Rules, 1965. This Court fails to see any bonafide in the actions of the then Chairman. Altough ignorance of law is no excuse, however, a blatant regard to the law despite having knowledge shows that the then Chairman was acting in pre-determined and motivated manner. The Court refuses to accept that the then Chairman who knew about ordering 'Disciplinary Inquiry' on 01.08.2016, would not be in knowledge of passing demotion Order on 03.05.2016 was also to be made after 'Disciplinary Inquiry'. This Court also fails to see any bonafide in the action of the then Chairman, AMDA while Ordering demotion on 03.05.2016 when in the same Order dated 03.05.2016 he directed Administrative Officer to convene meeting of the 'Executive Council' and as such he knew that he could not CS SCJ 390 of 2017 Pages 48 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) override the approval of 'Executive Council'. Therefore, the action of the Chairman lacks bonafide in disregarding the approval of 'Executive Council' according in meetings dated 26.03.2011 and 26.09.2011. If in the present case, the injunction as sought by the plaintiff is refused, this Court would be furthering the pre-meditated and perverse actions of the then Chairman. The then Chairman having destroyed the carrier, reputation and possibly many years of life of the plaintiff cannot be allowed to restrict the relief to the plaintiff in the Court of Law.
83. Having stated the conduct of both sides. The ingredients of injunction ought to be touched upon. The injunction may be granted where the plaintiff proves - (a) prima facie case; (b) balance of convenience in his favour; and (c) irreparable losses are shown. Existence of a prima facie case in favour of the plaintiff is not to be discussed any further. The discussion already undergone in this judgement is sufficient to hold that plaintiff has good case and not just prima facie case. The plaintiff was an employee of the defendant Association. Interestingly the defendant Association has a specific post of Director (Capacity Building and Training). The said Capacity Building would presumably be for the employees as well as the Association and thus no doubt, the defendant Association cares for its development as well as its employee for their own betterment and for effective service in the Association. Any action of the employee would be detriment to the Association and it may loss its finances and reputation, however admittedly the Association has more than 71 members which are scattered all over the Country. An action by the defendant Association against its employee, would therefore have even far reaching consequences not just in Delhi but would be communicated to all its members and cause serious prejudice to the employee in the entire Country. The defendant Association would still have resources to mitigate its loss of finance or reputation as action would be aimed at punishing an erring official, however an employee if CS SCJ 390 of 2017 Pages 49 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) prejudiced by actions of the Association would suffer much graver consequences. The present case is one such instance, where by demotion, suspension and termination of plaintiff by the then Chairman, the plaintiff suffered financially as well as lost her reputation. The discussion above is sufficient to hold that the plaintiff was made to run between 03.05.2016 to 28.10.2016 from one authority to the other to prove that she was not at fault. The then Chairman within five months turned the work profile of the plaintiff upside down and ultimately rendered her jobless. Since all the Order dated 03.05.2016, 18.05.2016, 01.08.2016 and 28.10.2016 passed by then Chairman and Administrative Officer were found to be illegal and against the AMDA Rules, 2011 as well as CCS (CCA) Rules, 1965, the plaintiff clearly has balance of convenience in her favour. Similarly, the actions of the defendant Association has caused irreparable losses to the plaintiff. The defendant Association has quantified some losses to the plaintiff by claiming refund of excess salary paid between 30.09.2011 to 03.05.2016, which were subsequently deducted from leave encashment (which is subject matter of CS SCJ 1128/2017). Further, the losses suffered subsequently due to wrongful suspension and wrongful termination is yet to be quantified, however exact calculation is not subject matter of discussion at hand. The plaintiff only has to show that irreparable losses was caused to her and demotion, suspension as well as termination is loss enough to presume that it is irreparable. The plaintiff further has been contesting proceedings against her since 03.05.2016 and without pay since 28.10.2016, which is another aspect of the irreparable losses suffered by her.
84. The plaintiff has thus satisfied on facts as well as law that she is entitled to grant of mandatory injunction in her favour. The plaintiff has been a victim of baseless and frivolous proceedings which suffered procedurally as well as opposed to the laws and settled principles. The issue no. 10 is also decided in favour of the plaintiff and against the defendant.
CS SCJ 390 of 2017 Pages 50 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) ISSUE No. 13 - Relief
85. Based on the issue wise finding from 1 to 12, the plaintiff is thus proved that she was eligible for promotion to the post of Administrative Officer in AMDA in September 2011 and Order demoting her dated 03.05.2016 is illegal. Representation of plaintiff to consider Order dated 03.05.2016 to the then Chairman which was also rejected dated 18.05.2015 was also illegal. Further the impugned Order dated 24.05.2016 passed by the Administrative Officer, AMDA putting the plaintiff under suspension is also illegal. Finally, the Order dismissing the plaintiff from service is also found to be illegal. All the above Orders are illegal, null and void and have no binding effect on the plaintiff or on the defendant Association. The plaintiff is entitled to all the salary of Administrative Officer, discharged by her between 30.09.2011 to 03.05.2016. Plaintiff is also entitled to be posted as Administrative Officer since 03.05.2016 with continuity in service and all consequential benefits including back wages.
Decision
86. The suit is, therefore, decreed in favour of the plaintiff and against the defendant qua declaration that Order dated 03.05.2016 and 18.05.2016 passed by the then Chairman, AMDA Sh. B.K. Tripathi is illegal, null and void. Further, the plaintiff is entitled to decree of declaration that Order dated 24.05.2016 and 28.10.2016 passed by the then Administrative Officer, AMDA discharged by Sh. Harsh Kalia, Assistant Director (Administration), National Capital Region Planning Board (NCRPB) as illegal, null and void. The plaintiff's suit is further decreed in her favour for permanent injunction against recovery of salary paid to the plaintiff for discharging duties as Administrative Officer from 30.09.2011 to 03.05.2016. The plaintiff's suit is also decreed in her favour qua mandatory injunction there permanently directing the defendant to post the plaintiff in CS SCJ 390 of 2017 Pages 51 of 52 Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA) service as Administrative Officer with continuity in service and all consequential benefit including back wages.
87. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
Digitally
signed by
PARAS PARAS DALAL
Date:
DALAL 2024.08.01
15:16:29
+0530
Announced in the open Court (PARAS DALAL)
on July 31, 2024 ACJ-CCJ-ARC (South)
Saket Courts/Delhi
CS SCJ 390 of 2017 Pages 52 of 52
Sangeeta Gupta v. Association of Municipalities and Development Authorities (AMDA)