Central Administrative Tribunal - Delhi
Bharat Bhushan vs The Municipal Corporation Of Delhi on 30 October, 2009
Central Administrative Tribunal Principal Bench TA No. 425/2009 New Delhi, this the 30th day of October, 2009 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman(A) Bharat Bhushan S/o late Sh. Girwar Singh 67/5330, Raigarpura, Karol Bagh, New Delhi. Applicants. (By Advocate: Mr. Sachin Chauhan) Versus 1. The Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi Service to be effected through Commissioner, M.C.D., Town Hall, Delhi. 2. Commissioner, Municipal Corporation of Delhi, Town Hall, Delhi. 3. The Lt. Governor of Delhi, Raj Niwas Marg, Delhi. Respondents (By Advocate: Ms. Saroj Bidawai) ORDER (ORAL) Justice V.K. Bali, Chairman:
Bharat Bhushan, who had unblemished service career spanned over a period of 33 years, has been proceeded against departmentally for major punishment. Sequel to departmental enquiry, he has been dismissed from service. It was a case of joint departmental enquiry where the applicant and his co-delinquent R.K. Tripathi, junior engineer, were jointly tried. The order of dismissal came to be passed on 28.07.1995. Appeal against the order aforesaid has since already been dismissed, vide order dated 29.10.1996. A writ petition came to be filed before Honble High Court of Delhi in the year 1997 which has since come on transfer to this Tribunal.
2. Brief facts of the case would reveal that the applicant was appointed as Junior Engineer/Section Officer in M.C.D. in the year 1962. He came to be promoted as Asstt. Engineer (Civil) on 25.01.1981 and was further promoted as Zonal Engineer (Building) on 13.08.1986. A charge came to be framed against the applicant, vide Memo dated 19.01.1989. Statement of charge framed against the applicant, reads as follows:-
That the said Shri Bharat Bhushan while functioning as ZE (B) in Building Department, Civil Line Zone in the year 1987, committed gross misconduct in as much as that he issued of Building Bye-laws with ulterior motive and without site inspection in respect of property No. 129, Nirankari Colony, Delhi when the building was still incomplete and had been constructed against the sanctioned building plan as detailed in the statement of allegations.
He thus failed to maintain devotion to duty and absolute integrity and thereby contravened Rule 3 of C.C.S. (Conduct) Rule, 1964 as amended from time to time and made applicable to the employee of Municipal Corporation of Delhi.
3. Inasmuch as, only one point has been raised during the course of arguments by learned counsel defending the respondents, we may mention the facts that may be relatable to the said point only. The defence of the applicant to the charge reproduced above is that under the rules he was required to inspect only 20% of the buildings and to issue completion certificate thereof whereas inspection of 80% buildings was required to be done by his co-delinquent R.K. Tripathi for issuing completion certificates. Admittedly, the building in question was not inspected by the applicant. The defence projected by the applicant has been discussed by the enquiry in paragraph 38 and reasons rejecting the same by the enquiry officer read thus:-
38. Decence Case.
The charged official denying the charge examined himself as DW-1 and has also submitted written arguments which may be seen on the file from pages 47 to 48/C. Denying the charge while being examined as DW-1and also in his written arguments, the ZE, the respondent has raised only one legal issue and that is under rules, he was to inspect only 20 per cent of the C.Cs to be issued after C.Cs being prepared by the JE and so he did not inspect the property involved in the C.C. exhibited as PW-1/H. No other document and evidence has been produced by this respondent except his plea of 20 per cent of the inspection required to be made by him. Going through the documentary evidence produced by the prosecution, it is quite evident that the unauthorized constructions was serious and massive deviations of the building plan sanctioned for the commercial nature were turned into residential flats in gross violation of the rules of the building bye-laws. That this unauthorized construction was the massive deviation has not been denied by the respondents himself and even by the JE, the co-respondent who had wrongly tried to shift the responsibility on the successor. This respondent, Bharat Bhushan working as ZE (B) was knowing that for the deviation of building plan on this very property, compoundable fee of Rs.10928/- was realized on his report by ADC and this deviation resulting into compoundable fee was made by the owner/builder and C.C. on 11.12.87 was issued on the basis of the report of this respondent containing the huge construction on this property as per the report prepared by the JE. The argument of the respondent that his inspection of C.C. was confined to only 20 per cent does not mean that he should neglect the massive unauthorized constructions and go on issuing C.C. on the basis of the misleading reports of the JE without verifying the facts at personal level at lease of such properties where construction on large scale has been reported to have been carried on. It was his prime duty as ZE to have inspected this property before issuing of C.C. because the owner/builder of this Property No. 129 had already made deviations for which he was penalized and the C.C. in question exhibited as PW-1/H was of huge structure on Property No. 129. Actually the intention of the rules framed by the MCD in such cases has been that the ZE (B) must be very vigilant and must cover even under 20 per cent of his inspection of the C.Cs issued, such buildings where massive unauthorized constructions have been carried on.
This massive deviation resulting into unauthorized constructions from sanctioned building plan of commercial nature to residential flats was not a small case but it was a serious deviation and huge unauthorized construction and which only took place before the issue of C.C. on 11.12.87 and this has been already established in the charge framed against the co-respondent, JE (B). In the issuance of this C.C., this Z.E. (B) was not less instrumental as he did not inspect the site. So, the charge against him is fully established.
4. The applicant, when the report of enquiry officer was made available to him, made a representation wherein he required the authority to re-consider his defence. He raised the issue before the disciplinary authority in paragraph 4 of his reply, which reads as follows:-
4. As per official instructions, a ZE (B) is supposed to inspect 20% cases in which C.C. is to be issued. Both, Sh. R.M. Verma, Investigation Officer and Shri H.L. Manaktala, Assistant Director of Vigilance admitted during cross examination that ZE (B) is supposed to inspect only 20% cases of C.C. They also admitted that ZE (B) is not bound to inspect each and every case of C.C. the relevant portion of their deposition are reproduced herein.
5. Disciplinary authority, however, did not deal with this point at all. In fact, disciplinary authority does not appear to have gone into any question and by simply observing that it had gone through the record and the enquiry report, the report of the enquiry officer was confirmed. The relevant part of the order passed by the disciplinary authority reads as follows:-
I have gone through the case records. In this case the Inquiry Officer has conducted the detailed enquiry and hold the charges proved. Penalty of Dismissal from service which shall ordinarily be disqualification for future employment was proposed to be inflicted upon Sh. Bharat Bhushan. As requested by the respondent personal hearing was fixed on 9.7.93, 15.10.93, 3.12.93, 10.12.93, 4.2.94, 25.2.94, 25.3.94 and 28.7.95 but he did not appear on medical ground. Since the matter has been lingering on for two years, I think it proper to decide the case. I have considered the case record and the reply filed by respondent. There is no new facts revealed in the reply. The points raised by the respondent has already been considered by the Inquiry Officer in his report.
6. The applicant reiterated the pleas raised by him in his defence before the appellate authority as well. The appellate authority dealt with the same and rejected the appeal by observing as follows:-
The contention of the appellant that he was required to inspect only 20% of the buildings for issuing completion certificates, does not mean that he should neglect massive unauthorized constructions and go on issuing completion certificates on the basis of reports of his subordinate junior engineer without verifying the facts personally. According to the departmental instructions, besides the J.E., proper checks should be carried out by the supervisory officers at regular intervals to ensure that action against unauthorized construction is taken promptly and effectively. Therefore, it was the primary duty of the appellant, being in charge of the zone, to inspect the property in question before issuing completion certificate, because the owner/builder had already made deviation which was in the knowledge of the appellant. The appellant should have been very vigilant in such cases.
7. In the context of the facts, as mentioned above, it is urged that when it is admitted and proved that the applicant was to inspect only 20% of buildings, and the building in question was not inspected by him but was instead inspected by his co-delinquent R.K. Tripathi, Junior Engineer, the punishment given to the applicant would be shockingly disproportionate to the charge framed against him. It is also urged that the applicant had unblemished service career spanned over a period of 33 years, which was not taken into consideration by any of the authorities.
8. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. There appears to be some merit in the contention of learned counsel representing the applicant, as noted above. The applicant indeed had unblemished service career spanned over a period of 33 years. Admittedly, the building in question was not inspected by the applicant and in fact, it was inspected by his co-delinquent R.K. Tripathi, Junior Engineer, who has been dismissed, and we are informed that he has not even challenged the order of dismissal. Insofar as the applicant is concerned, it is true that under the policy he was to inspect only 20% buildings, and the one in question was not inspected by him. He has yet been saddled with the responsibility of inspecting the building in question, as with regard to the said building, some deviations had come to his notice when the owner was asked to compound the same by charging compounding fee. Such a fact having come to his notice, it is stated that as the over all incharge of the area he should have been put to his guard to inspect the building himself as well before signing on the report of the junior engineer for giving completion certificate. It could not be disputed during the course of arguments that deviations were within the permissible limits, as that is why only the same was not demolished but was compounded and the owner was asked to pay the compounding fee. There may not be any flaw in the findings as recorded by the enquiry officer and the appellate authority, but the question arises that when it was a case of being not more cautious, without there being any element of mala fides, whether the punishment of dismissal would be justified, particularly when the applicant had an unblemished record of 33 years. There would have been no blemish on the part of the applicant if he was to sign the report put up before him by the junior engineer. The blemish is still there as despite the fact that the owner was asked to pay compounding fee, which in fact, was to the knowledge of the applicant, he should have also himself checked the building. For this blemish, on the part of the applicant, the extreme punishment of dismissal from service may appear to be shockingly disproportionate. It is significant to mention that while considering the quantum of punishment, this aspect was not taken into consideration by the authorities. They also did not consider that the applicant had unblemished record for a period of 33 years.
9. It is too well settled that courts and tribunals would not substitute the quantum of punishment. However, in the facts and circumstances of this case, we set aside the impugned order and remit the matter to the disciplinary authority by directing them to re-consider the question of quantum of punishment in the light of observations made above. In the peculiar facts and circumstances of the case, we are not inclined to give any consequential relief to the applicant on setting aside the impugned order at this stage. The same, in our view, would depend upon the final order that may be passed. Let the directions as ordained above be carried out within a period of three moths from today.
(L.K. Joshi) (V.K. Bali) Vice Chairman (A) Chairman /naresh/