Central Administrative Tribunal - Delhi
Mahesh Singh Nimesh vs South Delhi Municipal Corporation Of ... on 18 November, 2024
1
OA No.3547/2015
Court No.2 (item No.19)
Central Administrative Tribunal
Principal Bench
OA No. 3547/2015
Reserved on:25.10.2024
Pronounced on : 18.11.2024
Hon'ble Mr.R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Shri Mahesh Singh Nimesh,
Executive Engineer, Age 42 years
S/o Late Atar Singh
A-121, Ganga Vihar, Delhi
- Applicant
(Through Advocate: Mr.Rajeev Sharma)
Versus
1. Lt.Governor of Delhi
Raj Niwas, Civil Lines,
Delhi.
2. The Commissioner
Municipal Corporation of Delhi
9th Floor, Dr.S.P. Mukherjee Civic Centre,
New Delhi -100002.
-Respondents
(Through Advocate: Mr.D.S.Mahindru)
2
OA No.3547/2015
Court No.2 (item No.19)
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member (A):-
The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act., 1985, seeking the following relief(s) under para 8 of the OA:-
"a) to quashed the impugned orders dated 03.12.2014 and 09.07.2015 as illegal and unconstitutional.
(b) The Hon'ble Tribunal may pass any other order/ direction as deemed fit and proper in the circumstances of the present case and in the interest of justice."
2. The applicant is a Degree holder Engineer. He was initially appointed as Assistant Engineer (Civil) in the erstwhile Municipal Corporation of Delhi (MCD). Post of Assistant Engineer (Civil) could be filled up 50% by promotion and 50% by direct recruitment. Applicant was satisfying the eligibility conditions of direct recruitment, accordingly in response to the advertisement as made by the Delhi Subordinate Staff Selection Board (DSSSB), applicant had participated in the selection process and was declared successful. Accordingly, he was appointed as Assistant Engineer (Civil) in 1998. The next higher post is Executive Engineer (Civil) which has to be filled up 100% by 3 OA No.3547/2015 Court No.2 (item No.19) promotion. As per the Recruitment Rules of Executive Engineer (Civil), an officer who is having degree, becomes eligible after completing 05 years service, whereas, diploma holder Assistant Engineer becomes eligible after completing 10 years service to be considered and promoted as Executive Engineer. The applicant was eligible to be considered for the post of Executive Engineer (Civil) in 2003 after completing 05 years of service. The applicant was appointed as Executive Engineer on Ad-hoc basis on 15.12.2008 and since then working in the same capacity. The applicant states that the alleged unauthorized construction at plot No. 130 situated in the extended Lal Dora of Village Sultanpur. As per order No. F-55, Vill. Sultanpur/ The/HK/2005/915 dated 30.6.2005, this plot was part of Khasra No. 562 which was in the extended Lal Dora. It is contended that the extended Lal Dora is exempted from the purview of the Corporation and construction is permitted without sanction building plan in the extended Lal Dora. As per the office order dated 3.9.2004, owner is not required to get plan sanctioned from the Corporation if the nature of construction is residential. In the present 4 OA No.3547/2015 Court No.2 (item No.19) case, the nature of construction is residential. In these circumstances, applicant was served a charge sheet on 9.8.2010 with the following charges:-
"1. He failed to get stopped/demolished the unauthorized construction carried out at First Floor & Third floor in property No. 130 situated in extended Lal Dora of Village Sultanpur, New Delhi at its initial/ongoing stage.
2. He also failed to timely get booked the unauthorized construction for taking action u/s 343/344 of DMC act as it was booked only after receipt of complaint and on its completion upto Third floor.
3. He also failed to timely get initiated action for sealing the unauthorized construction u/s 345-A of DMC Act.
4. He also failed to initiate action for prosecution action of the owner/builder u/s 332/461 or 466-A of DMC Act.
5. He also failed to exercise proper supervision and control over the functioning of his subordinate staff who failed to take proper and timely action against the unauthorized construction."
3. The inquiry officer was appointed and after conducting the inquiry, Inquiry Report was submitted by the Inquiry Officer on 27.10.2011. None of the charges were proved against the applicant.
4. The applicant had also submitted written submissions before the Inquiry Officer stating therein that as per circular No. TP/G/ 683/04 dated 3.2.2004 issued by the Commissioner (MCD), no sanction of bldg., plan was required to be obtained from MCD for the residential unit falling in the Village Abadi (Lal Dora/Extended Lal Dora). It was also submitted that as 5 OA No.3547/2015 Court No.2 (item No.19) per office order No. PSC/62/2009 dated 19.1.2009, Commissioner, MCD has clarified that new bldg. residential in character and not going beyond 15 mtrs in height, is permitted without sanction bldg. plan in Lal Dora/Extended Lal Dora in terms of the MPD-2021 which was effective from 7.2.2007. The copy of the communication dated 19.1.2009 is annexed as Annexure No.5.
5. The applicant states that after considering the inquiry report, the Disciplinary Authority had decided that applicant deserved to be exonerated. At this stage, advice of the CVC was sought and CVC did not agree with the Disciplinary Authority. The ground which was mentioned by the CVC was not legally sustainable. It was mentioned that since R.K. Lawania, A.E. has been punished, therefore, applicant should also be punished with minor penalty as prompt action was not taken by the AE/JE. Applicant contends that if applicable rules are correctly applied in that case, no punishment could be imposed even upon Shri Lawania. He states that under the pressure of CVC, the Disciplinary Authority had changed his opinion that applicant should be punished with the penalty of 'Censure'. This Tribunal 6 OA No.3547/2015 Court No.2 (item No.19) is required to consider that when punishment is issued under the pressure of CVC, can it be sustained under the law? The advice of CVC is not binding on respondents and necessary documents of CVC are annexed as Annexure No.6. The disciplinary authority did not issue any disagreement note to the applicant in respect of Inquiry report as no charge was established against the applicant. Applicant filed an appeal on 7.6.2013 before the Appellate Authority. The Appellate Authority disposed of the same without going into the merit and the case was remitted back to the Disciplinary Authority. It is also mentioned by the Appellate Authority that the Disciplinary Authority did not serve Inquiry report along with the notice dated 01.08.2012 regarding proposed penalty. It was found material irregularity and accordingly order of penalty was set aside. Further, under the said orders, direction was issued by the Appellate Authority to obtain and consider the reply of the applicant and issue reasoned and speaking orders. Applicant submits that it is admitted fact in the present case that complainant himself has accepted that property is located in extended lal dora, however, he had made complaint on 7 OA No.3547/2015 Court No.2 (item No.19) the assumption that construction is not allowed without sanctioned building plan. It should have been made clear to the complainant at that stage itself that within extended lal dora, sanction of the building plan is not required. In compliance of the orders of the Appellate Authority, case was not considered again on merit by the Disciplinary Authority and accordingly reasoned and speaking orders was not issued. In compliance of order of appellate authority dated 26.8.2014, another order dated 3.12.2014 was issued by the Disciplinary Authority and the penalty of Censure was imposed.
6. Another appeal was filed by the applicant in view of the new orders dated 3.12.2014. At this stage, the Appellate Authority did not agree with the applicant and appeal was rejected. It may be mentioned at this stage that Appellate Authority issued almost the same order which was issued by the Disciplinary Authority and in these circumstances, the contention of the applicant is that Appellate Authority has issued the impugned order dated 09.7.2015 without proper application of mind. The Appellate Authority even did not consider his earlier decision dated 26.8.2014 that 8 OA No.3547/2015 Court No.2 (item No.19) the Disciplinary Authority must have passed reasoned and speaking orders.
7. The applicant has filed present Original Application, seeking the aforementioned relief on the grounds that the property in respect of which charge sheet was issued to the applicant was constructed strictly as per the applicable rules and regulations. The property is located in the Lal Dora/Extended Lal Dora, therefore, it was not necessary to get sanction plan from the Corporation. The property which was constructed was exempted from getting sanction plan from the Corporation in view of the prevailing rules and regulations. The orders of Commissioner applicable in the present case clearly empower the owner to construct bldg. without the sanctioned plan. The complainant himself was confused about the prevailing law and accordingly he has accepted in the complaint that the property in question is located in the Extended Lal Dora, however, he was not aware that the same is exempted from getting sanctioned building plan. The inquiry officer did not find any charges establish against the applicant. Accordingly, no charge has been proved. The Disciplinary Authority was not in a 9 OA No.3547/2015 Court No.2 (item No.19) position to express its disagreement in respect of the findings of the Inquiry Officer and по disagreement note was served upon the applicant. The appellate authority vide orders dated 26.8.2014 remanded back the case to the disciplinary Authority to give reasoned and speaking orders. In compliance of the order of Appellate Authority, the Disciplinary Authority has failed to give reasoned and speaking orders. In a mechanical manner which is absolutely clear from the order of the Appellate Authority which is under challenge in the present case. The Appellate Authority has issued mechanical order without application of mind. The impugned order cannot be sustained as the same has been issued on the advice of CVC. The copy of CVC advice is also not supplied to the applicant. The disciplinary authority has issued impugned order after the advice of CVC without application of mind and also without justifiable reasons in support of their change of mind after they received the advice of CVC.
8. On admission of the OA, notices were issued to the respondents and they have filed their reply on 27.07.2016. In their counter reply, they have stated that a memorandum alongwith the charge sheet was 10 OA No.3547/2015 Court No.2 (item No.19) issued to the applicant vide memo dated 09.08.2010 on the allegations that the applicant while working as Executive Engineer in Building Department, South Zone, w.e.f. 01.01.2008 onwards, failed to maintain absolute integrity, devotion to duty and committed gross misconduct as he failed to get stopped/demolished the unauthorized construction carried out in the 1st and 3rd Floor in the property no 130 situated in extended Lal Dora of village. Sultanpur, New Delhi at initial/ongoing stage and failed to take action as per the provision of the DMC Act. He also failed to exercise proper supervision and control over the functioning of subordinate staff who failed to take proper and timely action against the unauthorized construction. The applicant submitted the reply to the Charge Sheet. Thereafter, a joint Departmental Inquiry was conducted by the Special Enquiry officer against the applicant and other officers, who vide his Inquiry Report dated 27.10.2011, exonerated the applicant. However, the allegation against Sh. R K Lavania, AE, who was working under the applicant, were held to be proved. Thereafter, the case was sent to CVC for its advice. The Disciplinary Authority considered the 11 OA No.3547/2015 Court No.2 (item No.19) advice of the applicant and proposed to impose the minor penalty of 'censure' upon the applicant, vide order dated 17.07.2012, on the allegation that the applicant being supervisory officer, failed to check/oversee ATRs by his subordinate staff. A show cause notice dated 01.08.2012 was issued to the applicant and the applicant submitted the reply to the same. The Disciplinary Authority confirmed the proposed penalty of censure, vide order dated 26.02.2013, after hearing the applicant in person and considering the contentions of the applicant in his reply. The applicant filed an appeal against the punishment order. The Appellate Authority disposed of the appeal, without going into the merit, by remitting back the same to the Disciplinary Authority, for conducting proceeding afresh from the stage of furnishing copies of the documents to the applicant, vide order dated 26.08.2014. The applicant was provided the copies of enquiry report and proposed penalty order dated 17.07.2012, vide memo dated 10.09.2014. The applicant submitted his representation on 26.09.2014. The Disciplinary Authority heard the applicant in person on 30.10.2014 12 OA No.3547/2015 Court No.2 (item No.19) and after considering the contentions raised in the representation, confirmed the penalty of censure on the applicant, vide order dated 31.10.2014. The applicant preferred an appeal dated 06.02.2015 to the Appellate Authority. The Appellate Authority, after affording the opportunity of personal hearing to the applicant on 06.07.2015 and after considering his appeal, rejected appeal of the applicant vide order dated 09.07.2015. The respondent states that the Departmental Inquiry against the applicant have been held as per relevant rules, and instructions as per principles of natural justice and the Disciplinary Authority and the Appellate Authority have passed the order after considering the evidence on record and after considering the contentions of the applicant and hence, the OA is liable to the dismissed.
9. The applicant has filed rejoinder on 05.09.2016 wherein he stated that he has acted strictly in accordance with law. The disciplinary authority has decided to exonerate the applicant prior to taking advice of CVC. The advice of CVC has been accepted with closed eyes, however, the same is not binding on the disciplinary authority. The applicant has already 13 OA No.3547/2015 Court No.2 (item No.19) submitted that none of the officers including the subordinate staff should have been punished in view of the facts of the case and applicable law inspite of the order by the appellate Authority. The speaking order has not been issued and on second occasion also, same order has been issued in respect of which appellate authority had asked specifically to issue speaking order. The nature of order of disciplinary authority, while considering the facts and circumstances of the present case, makes absolutely clear that the disciplinary authority has issued order without application of mind and under the influence of CVC. In the OA, the applicant has established facts beyond doubt in the present case. The speaking order has not been passed by disciplinary authority despite the order of Appellate Authority.
10. We have heard counsels for the parties, examined record relating to the matter filed through pleadings and relevant rules on the subject.
ANALYSIS
11. While submitting report after completion of inquiry, the Inquiry Officer has come to the findings 14 OA No.3547/2015 Court No.2 (item No.19) and held charges against applicant 'Not Proved'. For facility of reference, the relevant portion of his findings on each charge is mentioned below:-
"Charge No. 1: As per the circular/office order, it is the prima duty of the area JE (B) to detect unauthorized construction and take demolition action. Therefore, the CO cannot be held responsible for his failure to stop/demolish the unauthorized construction at First Floor and Third Floor in property No. 130, situated at Extended Lal Dora of Sultanpur Village, New Delhi at its initial/ongoing stage. Hence, it is not proved.
Charge No. 2: The CO took over the charge of Bldg. Deptt. South Zone on 1.1.2008 onwards. Two complaints dated 2.6.2008 and 23.6.2008 were received in the zone during the tenure of CO, wherein allegation of spreading of building material etc. was for raising unauthorized construction of GF, FF and SF (Roof) were made respectively. From the perusal of record, it reveals that ongoing action was taken on 7.8.2008, whereby unauthorized construction at Fourth Floor was removed and the unauthorized construction at GF, FF, SF and TF was booked on completion on 13.8.2008. Since detection of unauthorized construction at initial stage is the primary duty of the concerned JE and the natural corollary is that it is also incumbent upon him to book the same, having detected it. Thus, the charge against CO cannot be proved.
Charge No. 3: The record on file further reveals that demolition order in this case was passed by the AE (Bldg.), South Zone on 2.9.2008 and show cause notice u/s 345-A for sealing was signed by the Dy. Commissioner, South Zone on 3.9.2008. It is evidently clear that action by the concerned AE and JE was initiated after receiving the complaint in this regard and available record reveals that the CO has taken the cognizance of the complaint on 26.8.2008 when the AE had put up his note to him which was ultimately approved by the Dy. Commissioner, South Zone on 1.9.2008. As such the CO cannot also be held responsible for not getting timely sealing action initiated.
Charge No. 4: As evident from the Status Report (Ex. S/8), the owner of the property brought to the notice of the Department that the property is situated in Extended Lal Dora. The written arguments as well as the documentary evidences given by one of the COs, the construction upto 2½ storey in the Extended Lal Dora is permitted. The CO has relied upon the manual of instructions on unauthorized construction, which provides exemption from the provision of Section 332 of the DMC Act in village Abadi. Accordingly, 15 OA No.3547/2015 Court No.2 (item No.19) he contended that it was unjustified to invoke various Sections under DMC Act immediately in such areas i.e. Village Abadi/Lal Dora/Extended Lal Dora without verifying the contents of the complaint/status of the construction alleged therein. The record further reveals that show cause notice for sealing which was signed by the DC/South Zone on 3.9.2008 but the same could not be finalized on coming to know that the property falls in the extended Lal Dora area and is well within the ambit of MPD-2021. I find force in the contention made by the CO that the prosecution action in such circumstances was not warranted and accordingly charge of his failure to get initiated prosecution action cannot be substantiated.
Charge No. 5: The CO is definitely entrusted with the responsibility to exercise proper supervision and control over the functioning of the subordinate staff. In this particular case in view of the findings with respect to charge No.s 1, 2 3 & 4 it cannot be expected that the CO being the Executive engineer would supervise and monitor each and every construction in the zone whereas the departmental instructions itself has cast upon a duty to test check certain Properties. It is a case where benefit of doubt can be granted to the CO for not inspecting zonal constructions diligently and exercising effective supervision upon the subordinate staff."
The above findings of the inquiry officer on the Articles of charge clearly brings out that the applicant is not at fault.
12. It is pertinent to point out that the specific findings of the Inquiry officer on the issue of height of construction as per the circular dated 19.01.2009 are clear and unambiguous. The I.O. has stated that the said circular is ignored by the respondents at every level. For facility of reference, the relevant portion of 16 OA No.3547/2015 Court No.2 (item No.19) the I.Os finding is as follows:-
"Circular/Office Order issued by the Commissioner on 19.01.2009 Ex. PW1/DC has remained in main plank of the decision side. Although the circular bear the date of issue on 19.01.2009, yet it is contended that it came into force w.e.f. 07.02.2007, which is date of issue of Master plan. This office order was obviously not in the knowledge of 1.0. during investigation. If the policy laid down in the circular is applied in this case, the construction raised upto a height of 15 mtrs. Was covered by exemption allowed to the properties situated in Lal Dora."
13. In para 4 of the OA, the applicant has given details of the case, whereas, in para 5 of the OA, he has mentioned grounds of challenging the impugned order. We have gone through the counter affidavit filed by the respondents on 27.07.2016 and find that the reply given by the respondents on para 4 and 5 of the OA is evasive, incomplete, unclear and does not make the position clear on the contention of applicant. It is observed that the disciplinary authority did not apply its mind on the report of the I.O. and has mechanically followed the advice of the CVC while imposing of penalty of censure on the applicant.
14. In view of above position, we find that the applicant is not at fault and hold that the contentions of respondents are devoid of any merit. Accordingly, 17 OA No.3547/2015 Court No.2 (item No.19) the present OA is allowed with following directions:-
(a) Impugned orders dated 03.12.2014 and 09.07.2015 are quashed and set aside as illegal and unconstitutional.
(b) Accordingly, the applicant shall be entitled to all consequential benefits.
(c) Pending MAs, if any, stand closed. No order as to costs.
(Rajinder Kashyap) (R. N. Singh)
Member (A) Member (J)
/mk/