Central Administrative Tribunal - Delhi
Ashok Kumarverma vs Delhi Development Authority Delhi on 17 July, 2023
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OA No.3551/2017
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.3551/2017
Reserved on: 03.07.2023
Pronounced on: 17.07.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Ashok Kumar Verma, A.E. (C),
AE (Booking) to CE (Rohini),
S/o Sh. Surendra Nath,
O/o Chief Engineer (Rohini)
DDA Office Complex, Madhuban Chowk,
Rohini, Delhi-110085.
R/o 44, F-25, Sector-7, Rohini
Delhi-110085.
...Applicant
(By Advocates: Mr. Malaya Chand and Mr. Prem
Anand)
-Versus-
Delhi Development Authority,
Through its Vice-Chairman,
Vikas Sadan, INA, New Delhi.
...Respondents
(By Advocate: Mr. Rajeev Kumar)
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OA No.3551/2017
ORDER
R.N. Singh, Member (J):
In this OA, the applicant has challenged the Memorandum dated 08.08.2017 issued by Respondents. He has prayed for quashing and setting aside of the impugned Memorandum issued vide no.F.26(02) 2007/EE(Vig.)-VI/DDA/5246 dated 08.08.2017 with a direction to the respondents to exonerate him from the impugned Memorandum dated 08.08.2017. He has further prayed for issuing suitable directions to the concerned authority to release all the legitimate/consequential benefits as is available to him.
2. On 10.10.2017 when the matter was taken up for admission, this Tribunal, as an ad interim measure, directed the respondents that in the meantime, the disciplinary proceedings against the applicant shall remain in abeyance.
3. The brief facts, as set out in the OA, are that the applicant joined on the post of Junior Engineer (Civil)/RPD-XI-DDA in October, 1993 and was assigned the work of group (i) from 31.12.1993 3 OA No.3551/2017 till completion, work of group (ii) from 31.03.1994 and work of group (iii) from 21.03.1994 till completion. He has discharged his duties with sincerity on the said post to the satisfaction of his superiors.
3.1 The work had started for Group (i) on 04.12.1992 and was completed on 30.06.1995; for Group (ii) it was started on 04.04.1992 and completed on 10.03.1995 and for Group (iii) work was started on 21.03.1994 and actually completed on 25.07.1996.
3.2 When the applicant had joined the post of JE (C) on 15.10.1993, two works out of the three had already commenced by the predecessor/JE. After joining the work which was carried out by the predecessor officer, it was carried out by the applicant and the work was also inspected by the competent authority and quality control officer and was found to be satisfactory. In Group (ii) structural work has already been completed when the applicant had taken over the charge of the work.
3.3 The applicant was shocked to receive a Memorandum dated 15.02.2007 issued by EE 4 OA No.3551/2017 (Vig.)-VI/DDA for committing certain irregularities while he was working as JE in RPD-11 during the period w.e.f. December, 1993 to July, 1996. 3.4 It is submitted that the Memorandum is nothing but abuse of the process of law and there is no explanation for the delay and latches which is unexplained and implausible.
3.5 It is further submitted that the applicant immediately replied to the above Memorandum dated 15.02.2007, denying all the alleged irregularities. The respondents, however, without considering the reply filed by the applicant and without considering the whole facts issued Memorandum/charge-sheet on the basis of suspicions, conjectures and surmises and that too without any explanation about the delay and latches in issuing the Memorandum.
3.6 It is further submitted that applicant has been met with hostile discrimination as total 270 MIG flats in pocket-4, Sector-24, Rohini were completed during the period from 1992 to 1996 under the supervision of various JEs/AEs/EEs from time to time but during his reported period of December, 1993 to July, 1996 no concrete work 5 OA No.3551/2017 was found to be weak and all were checked by Quality Control of Department and samples were passed by the Superior officers as per guidelines of CPWD Manual. All the concrete cube test reports were found to be satisfactory as per the provisions of the CPWD specifications 1972. The applicant has clarified his position in his reply and despite lapse of 22-23 years the issuance of the charge sheets smacks mala fide on the part of the respondents.
3.7 It is further submitted that applicant is aggrieved of the said Memorandum which is nothing but a stigma, and without application of mind and without considering his reply have miserably failed to consider the fact that the applicant has handed over the charges of the said post and the same was actually completed on for Group (i) completed on 30.06.1995; for group (ii) completed on 10.03.1995 and for group (ii) actually completed on 25.07.1996.
3.8 It is further submitted that quality control inspections were carried out by the QC Cell including the Chief Engineer (QC) on various dates and from time to time prior to completion of work 6 OA No.3551/2017 and at least 3 times each for all the three groups separately during the execution period of the work and always has given a satisfactory report and now issuance of the Memorandum is contradictory to the earlier report.
3.9 It is further submitted that the Superintending Engineer has counter-signed the work as satisfactory and issued the completion certificates for all the three works. Group (i) was also inspected by CTE/CVC and the report was satisfactory and no adverse remark was ever made about the quality of the work (i) and (ii) was actually completed in the year 1995 whereas the work of Group (iii) was also completed in 1996 and the applicant being innocent cannot be held liable for any irregularity, if any, on the part of the other.
4. Mr. Malaya Chand, learned counsel appearing for the applicant argued that the impugned charge-sheet issued on 08.08.2017 by the respondents suffers from vice of delay and latches. There is no explanation of inordinate and unexplained delay of about 22-23 years. On this ground alone the Charge-sheet is liable to be quashed and set aside.
7OA No.3551/2017 4.1 The learned counsel further argued that the case of the applicant is squarely covered by the decision of this Tribunal in similar circumstances with the identical charges in the matter of Shailender Kumar v. DDA, OA No.2585/2008, V.K. Gupta v. DDA, OA No.2653/2008, Yudhister Yadav v. DDA, OA No.2621/2008 and also in the case of P.L. Pubbi v. DDA, R.K. Jain v. DDA and in many other cases. It is further argued that the respondents have assailed the judgment before the Hon'ble High Court of Delhi in the matter of D.D.A. v. Shailender Kumar, W.P. (C) No.3793/2010, decided on 31.05.2010, which was dismissed by the Hon'ble High Court of Delhi and as such the matter has attained finality.
4.2 The learned counsel has further argued that the impugned Memorandum although has been suitably replied by the applicant, the same was not at all considered. Thus the event of the alleged charge is date back more than 23 years. In support of his contention, the learned counsel has relied upon the decision of the Hon'ble High Court of Karnataka in the matter of State of Maharashtra v. W.R. Kaidalwar, 1981 (2) SLR 73, 8 OA No.3551/2017 where the Hon'ble High Court of Karnataka has held that "no departmental proceedings can be instituted and initiated in respect of any event which took place more than 4 years before such institution."
4.3 The learned counsel therefore argued that in view of the said judgment the order/decision of the respondents is illegal and is liable to be set aside.
4.4 The learned counsel for the applicant further argued that applicant has been meted out hostile discrimination, as all other JEs. AEs and EEs were allowed to retire with promotion and no charge-sheet has been issued to them till their retirement. It is argued that even Memo dated 15.02.20076 was served upon some other JEs and AEs, but the charge-sheet has only been issued to the applicant by adopting pick and choose policy by the respondents.
4.5 It is argued by the learned counsel that the applicant cannot be held responsible for poor strength of RCC structures as the responsibility of maintaining the quality of RCC as per CPWD Manual vests with the AE of the work. It is also 9 OA No.3551/2017 pertinent to note that all the sampling for Cube test of RCC was mandatorily done by the then AE only. The entire cube test conducted in the report period/tenure of the applicant was found to be satisfactory as fulfilled the acceptance criteria for RCC work. It is also not out of palace to mention here that all the tests were conducted at DDA Laboratory and were found to be satisfactory. Now holding applicant responsible for the same is illegal and vague and not as per the guidelines/specification/Manual.
5. Pursuant to the notices issued, the respondents entered appearance and filed their reply, vehemently opposing the claim of the applicant. Mr. Rajeev Kumar, learned counsel appearing for the respondents, by referring to the reply filed by the respondents, argued that the case pertains to the sub-standard quality of construction of the three housing pockets in Sector-24, Pocket-4, Rohini.
5. 1 Flats were constructed during the period 1992 to 1996. In view of the general prevailing poor conditions of the flats with wide spread cracks appearing and corroded steel bars coming out from 10 OA No.3551/2017 the various structures like rooms slabs, beams etc. and in view of the seriousness of this problem which could have caused injury to the occupants of these flats, M/s Engineering and Development Consultants were appointed on 11.09.2006 by the Department to carry out technical investigation and to suggest remedial measures for repair of structural defects in these flats.
5.2 But before the consultant could submit its report, the balcony of the flat no.50 (first floor) collapsed on 22.09.2006 and the matter was reported to the higher authorities and the said consulting agency. Further, to enquire into the reasons of mishaps of the collapse of balcony, Engineer Member, DDA constituted a committee on 25.09.2006 comprising of Chief Engineer (Design), Chief Engineer (Rohini), Superintending Engineer (CC-9) and Superintending Engineer (P) Rohini. 5.3 The said committee submitted its report to the Engineer Member of DDA on 17.10.2006 enlisting serious deficiencies in the quality of construction like steel bars coming out from room slaps, dangerous condition of balconies of other flats, wide cracks in railings of balconies, large 11 OA No.3551/2017 cracks in the waist slabs of staircase, long vertical cracks in the columns etc. 5.4 Taking cognizance of report that the concrete quality is extremely poor, steel has corroded, balconies in almost all the flats are having cracks and could fall without notice, the dilapidated portions were ordered to be replaced and the department incurred expenditure to the tune of Rs.1,21,76,271/- for Gr.I), Rs.56,92290/- for Gr.II and Rs.26,62,514/- for Gr.III. The matter was also referred to Vigilance for further investigation on 20.10.2006 for identifying officers who were responsible for poor construction. 5.5 The learned counsel argued that on the basis of the report of the committee and the consultant M/s Engineering & Development Consultants report, the case was further investigated in the Vigilance Cell and accordingly call version memos were issued to identified officials of the department who were found responsible for the lapses.
5.6 It is further argued that the process of investigation was completed and the Disciplinary Authority issued the charge-sheet dated 12 OA No.3551/2017 08.08.2017 which does not suffer from any legal infirmity. The learned counsel therefore prayed that the OA is liable to be dismissed, being devoid of any merit.
6. We have heard both sides and have given our anxious consideration to the rival contentions of both sides and have been through the pleadings on record.
7. We have considered the facts of the case and submissions made on behalf of the applicant and the respondents. The fact that the alleged misconduct which is subject matter of the charge sheet issued to the applicant was committed during December, 1994 to July, 1996 is not in dispute. It is also not in dispute that the charge sheet was issued only on 08.08.2017, i.e., after a lapse of more than 23 years. Thus prima facie it is obvious that the charge sheet which was served on the applicant on 08.08.2017 relating to misconduct alleged to have been committed more than 23 years ago. Reference in this regard may be made to the decision of the Hon'ble Supreme Court in the case of State of M.P. v. Bani Singh and Anr., (1990) Supp. SCC 738. In this case it was held by the 13 OA No.3551/2017 Apex Court that where the Department was aware of the involvement of an officer alleged irregularities and no satisfactory explanation was given by the Department for the inordinate delay in issuing the charge sheet after a lapse of 12 years, the charge sheet was liable to be quashed. In the case of the applicant of the present O. A. also there is a delay of more than 23 years in the issue of charge sheet from the date on which the alleged misconduct is stated to have been committed and hence the ratio of the decision of the Apex Court in the case of State of M.P. v. Bani Singh (supra), will squarely be applicable to the facts of the instant case.
8. In the case of State of Punjab and Ors. v. Chaman Lal GoyalB, (1995) 2 SCC 570), it was observed as under by the Hon'ble Supreme Court:
"Disciplinary proceedings must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time as it would not be fair to the delinquent officer. Delayed initiation of the proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the Court may well interfere and quash the charges. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted (Para 9)."14 OA No.3551/2017
9. In the matter of Prafulla Kumar s/o Laxminarayan Chaturvedi Vs. State of MP, reported in 2009 (4) MPLJ 204 Hon'ble High Court of Madhya Pradesh has considered the various judgments on the point and has held as under:-
"7. It is the settled position in law that if there is inordinate delay in initiating the Departmental Enquiry and there is no satisfactory explanation for the delay in issuing the charge-sheet, then it would not be fair to permit the department to continue with the Departmental Enquiry. In the matter of The State of M.P. Vs. Bani Singh (supra), the Departmental Enquiry initiated by serving charge-sheet in 1987 in respect of the incident of 1975-76 was challenged on the ground of inordinate delay of over 12 years, and Supreme Court held that:-
"4. The appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned Counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is W.P. No.15534/2015 unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders an accordingly we dismiss this appeal."
10. In the matter of State of A.P. Vs. N. Radhakishan, reported in (1998) 4 SCC 154, the 15 OA No.3551/2017 Hon'ble Supreme Court took the view that while examining the question of quashing the disciplinary proceedings on the ground of delay all the relevant factors should be taken into account and disciplinary proceedings should be allowed to terminate after the delay, particularly when the delay is abnormal and there is no explanation for the delay and the Court has to consider the two diverse considerations i.e. the prejudice caused to the charged officer due to the delay and the fact that normally disciplinary proceedings should be allowed to take their own course as per relevant rules. The Supreme Court in this context in the matter of N. Radhakishan (supra) held that:-
"19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The W.P. No.15534/2015 delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to 16 OA No.3551/2017 the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delayed defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations."
11. Protracting disciplinary enquiry and keeping a government official under charges of corruption and disputed integrity cause unbearable mental agony and distress to the officer concerned and for the mistake committed by the department in initiating the disciplinary proceedings, the employee concerned cannot be made to suffer. The Supreme Court in the matter of P.V. Mahadevan Vs. M.D.,T.N. Housing Board, reported in (2005) 6 SCC 636 held that:-
"11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the W.P. No.15534/2015 departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary 17 OA No.3551/2017 proceedings. As a matter of fact, the mental agony and suffering of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."
12. The Division Bench of Hon'ble High Court of Madhya Pradesh in the matter of Sadashiv Shivram Garud and others vs. Food Corporation of India and others, reported in 2003(4) MPLJ 183, considered the same question in the background of the fact that the charge-sheet in that case was issued in 1999 for the grave misconduct committed in 1987-88. The Departmental Enquiry was initiated after more than 10 years. The Division Bench of Hon'ble High Court of Madhya Pradesh held that:-
"9. Having found nothing against the appellants during investigation and having used them as prosecution witnesses, it is not understandable why the Corporation has been instructed to initiate departmental enquiry after more than 10 years, more so, in absence of any finding as to their statements by the Special Judge. The Corporation could, W.P. No.15534/2015 if it wanted, initiate the enquiry, when the lapse was detected, it did not do so.
10. Another face of the question is whether this Court can interfere at this stage. The common threat running through catena of cases is where charge is serious and proveable by large number of documents and witnesses reasonable delay in completion of enquiry is excusable and time can be fixed to complete the same. While in cases of unexplained delay and charge is not serious, proceedings can be quashed. The Court can entertain the petition and quash the proceedings where there is no satisfactory explanation for the inordinate delay in initiating and completing the departmental enquiry. However, as said by the Apex Court in N.Radhakishan's 18 OA No.3551/2017 case (supra), it is not possible to lay down any pre- determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Each case has to be examined on the facts and circumstances of that case. The Corporation could initiate the enquiry during 1987-88 or within a reasonable time thereafter. It did not initiate it, which means it is doing it at the directions of the Central Bureau of Investigation. Under what rules/regulations this direction is issued, is neither here nor there. The Corporation failed to apply its mind independently, therefore, initiation of departmental enquiry against the appellants is grossly delayed. It is neither legitimate nor inconsonance with principles of justice and fair play, when seen in the context of the facts and circumstances of the case.
The appellants could challenge the initiation and continuance of the departmental enquiry/charge-sheet against them at any stage, longer the delay in completing the departmental W.P. No.15534/2015 enquiry more the justification to challenge it. Conclusion that the petitions have been filed after three years, is unsustainable on facts and law.
10-A.The departmental enquiry puts an employee under great strain and stigma. It has serious repercussions on his family as well. Therefore, delinquent employee has a right that the disciplinary proceedings against him are concluded expeditiously. He is not made to undergo mental agony and also monetary loss when the enquiry is unnecessarily initiated and prolonged without satisfactory explanation and without any fault on his part in delaying the proceedings. He is bound to be prejudiced in such an enquiry and constant strain and agony suffered by him cannot be compensated. Therefore, such an enquiry would in violation of Article 14, 16 and 21 of the Constitution of India."
13. Thus, the settled position in law is that the Departmental Enquiry should be initiated without delay and inordinate delay without proper explanation for the same furnishes ground for quashing the same. It is also settled that the Departmental Enquiry once initiated should be completed expeditiously and long delay in 19 OA No.3551/2017 completing the enquiry without proper justification can also be ground to quash the enquiry.
14. The common thread running in all these judgments is that if there is an inordinate delay in initiating the departmental enquiry and there is no sufficient and proper explanation for the delay, then the inordinate delay furnishes a ground for quashing the departmental enquiry.
15. Having heard learned counsel for the parties and on perusal of the record, it is noticed that the charge sheet was issued to the applicant 08.08.2017, i.e., after a gap of more than 23 years from the date of alleged misconduct. Now after a gap of more than 23 years, the impugned charge- sheet dated 08.08.2017 has been issued without giving any justification, whatsoever, for the inordinate delay. Delay in issuing the charge-sheet for more than 23 years itself indicated great prejudice to the applicant in the form of mental agony as well as monetary loss.
16. Hence, this case is squarely covered by the ratio of the aforesaid judgments referred herein 20 OA No.3551/2017 above, where no explanation has been put-forth by the respondents in issuing the charge-sheet.
17. We also find that the case of the applicant is squarely covered by a decision of this Tribunal in Shailendra Kumar (supra), where this Tribunal in similar circumstances, allowed the OA. The applicant therein was also alleged for similar misconduct as the applicant before us. The said decision of this Tribunal was challenged by the respondents before the Hon'ble High Court of Delhi in W.P. (C ) No.3793/2010 - Delhi Development Authority v. Sh. Shailender Kumar. The Hon'ble High Court was pleased to dismiss the W.P. (C) vide its judgment and order dated 31.05.2010. Hence, the decision of this Tribunal in Shailender Kumar (supra) has attained finality and is squarely applicable to the applicant in the instant case.
18. In view of the aforesaid facts and circumstances, we are of the considered opinion that the charge sheet dated 08.08.2018, issued to the applicant after more than 23 years of the alleged incidents, deserves to be set aside and is hereby set aside. As a consequence, the respondents are directed to exonerate the applicant 21 OA No.3551/2017 from the impugned memorandum/charge-sheet dated 08.08.2017. The OA is allowed in the aforesaid terms.
19. However, in the facts and circumstances of the case, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N.Singh)
Member (A) Member (J)
'San.'