Delhi High Court
Municipal Corporation Of Delhi And Anr. vs R.V. Bansal on 3 March, 2006
Equivalent citations: 2006 LAB. I. C. 2223, 2006 (3) AJHAR (NOC) 941 (DEL), (2006) 130 DLT 235, (2006) 2 SCT 797, (2006) 3 LAB LN 1013, (2007) 1 SERVLR 585
Author: Markandeya Katju
Bench: Markandeya Katju, Madan B. Lokur
JUDGMENT Markandeya Katju, C.J.
Page 1011
1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 19.2.2004, by which he has allowed the writ petition and quashed the impugned memorandum dated 9.3.1999, and the accompanying charge-sheet. The Appellant has also challenged the order dated 1.3.2004.
2. Heard learned counsels for the parties and perused the record.
3. It is alleged in paragraph 3 of the writ petition that the Slum & JJ Department, which was initially attached with the Municipal Corporation Page 1012 of Delhi (MCD), was transferred to the Delhi Development Authority (DDA) vide Office Order dated 27.4.1997. However, it is alleged that the identity of the Slum & JJ Department remained separate and independent from the DDA, and so also the staff. The entire staff of the Slum and JJ Department on the transfer of the Slum and JJ Department to the DDA was also transferred on deputation. Hence it is alleged that the petitioner who was appointed in the MCD was also transferred on deputation to the DDA as Junior Engineer. Later, he was promoted as Assistant Engineer vide order dated 2.4.1981, copy of which is Annexure P2 to the writ petition.
4. It is alleged in paragraph 5 of the writ petition that subsequently the Slum & JJ Department was again transferred back from the DDA to the MCD and the petitioner was also repatriated vide order dated 9.7.1984, copy of which is Annexure P3 to the writ petition.
5. The petitioner received a memo dated 15.3.1993, copy of which is Annexure P5 to the writ petition. This Memo states that during inspection in certain works, serious irregularities were revealed details of which are mentioned in the said memo. The petitioner was asked to submit his explanation within 10 days from the date of receipt of the said memo. The petitioner gave his reply, copy of which is Annexure P6. Thereafter, the petitioner received the impugned memo dated 9.3.1999, copy of which is Annexure P1 to the writ petition. That Memo is accompanied with a statement of the articles of charges against the petitioner, which are of a very serious nature alleging grave financial irregularities, etc. The Memo alleged that the petitioner R. V. Bansal failed to maintain absolute integrity, exhibited lack of devotion of duty, acted in a manner which is unbecoming of a government servant and exhibited laxity in supervision, thereby contravening Rule 3 of CCS (Conduct Rule 1964) as made applicable to the employees of the MCD.
6. Instead of replying to the above Memo dated 9.3.1999, the petitioner filed the writ petition.
7. A counter affidavit was filed in the writ petition by the MCD, and we have perused the same. In paragraph 3 of the said counter affidavit, it is stated that the Slum & JJ Department of the MCD was, prior to its transfer on 1.9.92, working under the management and control of the DDA as the Slum & JJ wing of the DDA. The present case relates to the period when the said Department was under the control of the DDA and the relevant records are with the DDA. The draft charge-sheet under reference was received in the MCD from the DDA on 3.12.98 against the misconduct of the petitioner while he was working in the DDA during the period 1984-85. The charge-sheet was served upon the petitioner. The DDA is a necessary party and is required to be imp leaded in the case. It is further alleged that there is no delay in issuing the charge-sheet.
8. An additional affidavit was also filed by the Deputy Director, (Vigilance) Slum & JJ Department of the MCD, in which it was stated that at the relevant time the petitioner was working as Assistant Engineer, in the DDA (Main). The Quality Control Cell inspected the site where the petitioner Page 1013 and other officers were working / supervising on 24.4.1987, and a large number of defects, infirmities, irregularities and lapses were noticed. Accordingly, explanations were called from all the concerned officials including the present petitioner. On 4.1.1989 the matter was referred to the Vigilance Branch of the DDA. The said complaint was registered as General Complaint No. (GC) No. 63/89 and P.E. No. 915/89 and assigned to the then Executive Engineer Vigilance-IV for further necessary action on 18.1.1989. After making the preliminary enquiries the case was sent to S.E. (Vig.) and certain records in original were called from Quality Control Cell of DDA and later were returned to the Chief Engineer, Quality Control on 14.12.1992. Letters were also issued to other departments/divisions of the DDA, where the original records relating to the matter were lying.
9. A perusal of the above allegations shows the seriousness of the charges involving grave financial irregularities etc.
10. The learned counsel for the respondent stated that in Civil Writ Petition No. 2980/2001, V. S. Bhatnagar v. DDA, the charge-sheet of Junior Engineer V. S. Bhatnagar has been quashed by a learned Single Judge of this Court on the ground of delay. In this connection, it was contended by the learned counsel for the Appellant that the DDA was not a party in the petition filed by Mr. V. S. Bhatnagar, as Shri Bhatnagar was an employee of the DDA, whereas R. V. Bansal was always an employee of the MCD and had gone on deputation to the DDA.
11. In our opinion, this court is not bound to follow the judgment of the learned Single Judge in the case of V.S. Bhatnagar for the following reasons:-
(a)The judgment in V.S. Bhatnagar's case is that of a learned Single Judge, whereas we are sitting in a Division Bench and hence not bound by the judgment of the learned Single Judge.
(b)The MCD was not a party in the petition of V.S. Bhatnagar, as Bhatnagar filed the petition against the DDA.
12. In our opinion, in cases of grave financial irregularities, a charge sheet should not be quashed on the ground of delay.
13. Thus, in Secretary to Government and Anr. v. K. Munniappan , the Supreme Court observed that even though there is a delay in issuing the charge-sheet, the charge-sheet should not be quashed where it was a case of embezzlement of public funds and a threadbare investigation was required.
14. A similar view was taken by the Supreme Court in Secretary to Government, Prohibition & Excise Department v. L. Srinivasan .
Page 1014
15. In Union of India and Anr. v. Ashok Kacker 1995 Supp (1) SCC 180 the Supreme Court observed:-
Admittedly, the respondent has not yet submitted his reply to the charge-sheet and the respondent rushed to the Central Administrative Tribunal merely on the information that a charge-sheet to this effect was to be issued to him. The Tribunal entertained the respondent's application at that premature stage and quashed the charge-sheet issued during the pendency of the matter before the Tribunal on a ground which even the learned counsel for the respondent made no attempt to support. The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf by learned counsel for the respondent. In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon.
16. In Deputy Registrar, Cooperative Societies, Faizabad v. Sachindra Nath Pandey and Ors. , the Supreme Court observed that where the charges are very serious, viz., misappropriation etc., mere lapse of a long period (16 years in this case), from the date of commencement of the enquiry was not a sufficient ground to quash the enquiry.
17. In State of Punjab and Ors. v. Chaman Lal Goyal , even though there was a delay of 5 1/2 years in issuing the charge-sheet, the Supreme Court held that same should not have been quashed. One of the reasons for holding this as mentioned in paragraph 10(ii) of the aforesaid judgment was that the charges were very grave. Another reason as mentioned in paragraph 10(iii) of the said judgment was that there was no allegation in the writ petition that any of the defense witnesses were dead or unavailable. In the present case also, there is no allegation that any of the witnesses which the petitioner wanted to produce in the enquiry were dead or unavailable.
18. Admittedly, the respondent was the sanctioning authority. It is alleged that during the period of 1 1/2 month when the respondent was in office, on 15.1.1985, he passed two running bills for Rs. 38,53,062/- even though the estimated cost of the whole contract was Rs. 18,12,074/- and tendered cost was Rs. 25,89,454/- and thus the amount of the two bills passed by the respondent was much beyond the deviation limit.
19. The work was inspected by the Chief Engineer Quality Control Cell of the DDA on 24.4.1987 and a large number of defects, infirmities, irregularities and lapses were found. Explanations were called from all concerned officials including Page 1015 the present respondent who had been repatriated back to the MCD in 1985. Thereafter the matter was referred to the Vigilance in 1989 and was assigned to the Vigilance, DDA. The respondent gave his explanation on 14.5.1993, which was vague and he was asked to give further explanation. Letters were again sent to him on 30.6.1993, 6.7.1993 and again on 12.10.1993 but he was avoiding the same and delaying the progress of the enquiry.
20. In our opinion, the delay in submitting the charge-sheet has been explained in the additional affidavit filed by the DDA in the writ petition. Apart from that, there were other delinquents who were involved in the said case/contract belonging to other departments and hence there was delay in getting replies. However, the Vigilance Department after getting information from the officials and persons concerned started preparing the charge-sheet in December 1998 and sent the same to the DDA for serving on the respondents. In these circumstances, in our opinion the learned Single Judge erroneously quashed the charge sheet.
21. In our opinion, ordinarily a charge sheet should not be quashed, particularly when the charges relate to financial irregularities or other serious misconduct and the writ petition challenging the same should be dismissed as premature. Whatever the accused employee has to say in his defense, he can say during the enquiry. It is not proper for the Court to exercise its writ jurisdiction at this stage, particularly when there are serious allegations of financial irregularities, such as passing of bills beyond limit within a period of 1 1/2 month, when the petitioner was in charge and in supervision of the work. In fact, it has been stated that though as per the terms of the contract the date of starting was to be 27.11.1984, the petitioner had made payment to the contractor of amount of Rs. 15,58,514/- even before that date. In cases where there are charges of financial irregularities it usually takes a long time to collect the evidence, and in fact very often the misconduct comes to light after several years of the said irregularities. Hence in such cases a charge-sheet should not be quashed on the ground of delay.
22. Apart from that, the learned counsel for the MCD to explain the delay in submitting the charge sheet placed before us the relevant details which are as follows:-
Estimated costs of the work Rs. 18,12,074/- Tender Cost Rs. 25,89,454/- Date of acceptance of Contract 17.11.1984 Date of start of the work as per the contract 27.11.1984
Advance payment of Rs. 15,58,514/- was made by the petitioner who was in charge of the work before the stipulated date of start under the contract by way of first running bill i.e., 21.11.1984 Further advance payment of Rs. 22,94,548/- was sanctioned vide second running bill on 15.12.1984 Petitioner went on leave from 18.1.1985 to 14.7.85 The petitioner was repatriated to MCD from Deputation from DDA 15.8.1985 Page 1016 Note : The amount of the aforesaid first and second running bills which were much beyond the contract amount were sanctioned and paid by the petitioner before he went on leave and before he was repatriated in violation of Clause 12 (a) of the Contract.
Stipulated date of completion under the contract was 26.3.1985 Actual date of completion 21.1.1988 Quality Control Cell under Chief Engg. (DDA) inspected the site on.
24.4.1987 Notices were sent by QCC to the petitioner and other concerned offices on 5.5.1988 Work was actually completed Matter was referred to vigilance Deptt. of DDA on and was registered as General complaint No. 63/87 & PE No. 915/89.
21.01.1988 04.01.1989 The said complaints were assigned to the Executive Engg. (Vigilance) DDA for enquiry/investigation.
18.01.1989 Records were called incollected from Quality Control Cell and other concerned departments of DDA by the Vigilance Deptt.
13.03.1993 Since petitioner was from MCD and since Shri K. L. Arora was from CPWD the letters were sent to them through their concerned offices.
15.03.1993 When no reply was received from petitioner and some other delinquent officials reminder was sent.
14.05.1993 Petitioner submitted an evasive reply and did not answer the requisite query vide reply dated.
30.6.1993 In view of evasive reply of the petitioner letter was sent by Vigilance Deptt. of DDA to petitioner through Director, Vigilance MCD.
06.07.1993 Reply was however sent by petitioner 12.10.1993 No reply was however received from Sh. K. L. Arora of CPWD and from Shri M. P. Jain, Executive Engineer. The delinquent officials were not co-operating and so the investigation / enquiry by the vigilance Deptt. of DDA was being delayed and could be completed.
1st week of Oct. 1997.
Letters were sent to the petitioner & other delinquent officials after the investigation.
10.10.1997 Petitioner submitted reply.
28.10.1997 Draft charge-sheet was prepared by Vigilance Deptt. of DDA and was sent to Director Vigilance MCD for further disciplinary action.
25.11.1998 Director/Vigilance MCD obtained permission from the competent authority and served the charge-sheet upon Petitioner.
09.3.1999.
23. A perusal of the above details shows that there was no extraordinary delay on the part of the DDA. The petitioner appears to have made Page 1017 payment of more than the contract amount in advance while he was in charge and supervising the work, even during this short period of 1 1/2 month before he went on leave.
24. We are not expressing any final opinion on the merits of the allegations against the petitioner, but are only pointing out that there were serious charges against the petitioner, and hence there was no justification for quashing the charge-sheet, even though it was belated.
25. In Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr. ; The Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and Ors. and; Ulagappa and ors. v. Divisional Commissioner, Mysore and Ors. 2001 10 SCC 639, the Supreme Court held that ordinarily a writ petition should not be entertained against a show cause notice.
26. In our opinion, the ratio of the above cases also applies to a charge- sheet. Ordinarily, a writ petition against a show-cause notice or charge-sheet should be dismissed as premature because no cause of action arises at that stage. A cause of action will arise if some punishment is given to the employee, and it is only at that stage that he can file an appeal/revision, if provided under the rules, or a writ petition if it is not. A writ petition against a charge-sheet or show-cause notice should ordinarily be dismissed because at that stage the petition is premature, since no cause of action has arisen as no punishment has been given at that stage. It is quite possible that after the enquiry the employee may be exonerated. Hence the petition should not ordinarily be entertained at this premature stage.
27. For the aforesaid reasons, the appeal is allowed, the impugned judgment dated 19.2.2004 and the order dated 1.3.2004 are set aside and the writ petition is dismissed as premature.