Central Administrative Tribunal - Delhi
Sh. Vinod Kumar Singhal vs North Delhi Municipal Corporation on 16 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.4226/2011
Order Reserved on: 28.03.2014
Pronounced on: 16.05.2014
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. V.N. Gaur, Member (A)
Sh. Vinod Kumar Singhal
S/o Shri O.D.Singhal
Presently posted as JE
(MCD project Division)
Civil Lines Zone,
R/o B-38, Surajmal Vihar,
Delhi-92.
..Applicant
(By Advocate: Shri Nilansh Gaur)
Versus
North Delhi Municipal Corporation
Through its Commissioner,
4th level, Dr. SPM Civic Centre
JLN Marg,
New Delhi-110002.
..Respondent
(By Advocate: Sh. R.K.Jain)
O R D E R
Mr. V.N. Gaur, Member (A) The applicant was working as JE Buildings in Building department of Karol Bagh Zone of Municipal Corporation of Delhi from 29.02.2003 to 11.03.2004. He received a chargesheet with the following allegations:
1. He failed to take effective steps to stop/demolish the deviations against sanctioned building plan at basement Floor, GF, FF, SF and projection on Mpl. Land in property No.C-103, New Rajinder Nagar at its initial/ongoing stage.
2. He also failed to book the aforesaid deviations timely for taking action u/s 343/344 of DMC Act.
3. He also failed to initiate action for sealing the aforesaid deviations u/s 345-A and prosecution of the owner/builder u/s 332/461 or 466A of DMC Act.
He, thereby, contravened Rule 3 (1) (i) (ii) and (iii) of CCS (Conduct) Rules, 1964 as made applicable to the employees of MCD.
2. After considering his reply a departmental enquiry was conducted in which the charges were proved against the applicant vide report dated 13.04.2009. The applicant submitted a representation, an undated copy of the same is annexed with the OA. The disciplinary authority has passed an order on 24.02.2010 imposing the penalty of reduction in pay in the present time scale of pay by two stages for a period of 2 years with cumulative effect. The appeal against the order of the disciplinary authority was also rejected by the appellate authority vide order dated 7.06.2011. The applicant has filed this OA with a prayer to quash the orders of the disciplinary authority and appellate authority dated 24.02.2010 and 12.05.2011 respectively.
3. The case of the applicant is that the building plan of the property in question no.C-103, New Rajinder Nagar was sanctioned on 28.10.2003 for construction of basement, Ground Floor (GF), First Floor (FF) and Second Floor (SF). The applicant had noticed deviation and excess coverage by the owner of the property against the sanction plan, and therefore, he promptly initiated the demolition action on 9-10.01.2004. He was transferred out on 11.03.2004 (according to respondents he continued in that post till 05.04.2004). It was during the tenure of his successor Sh. Sunil Chawla, JE (11.03.2004 to 11.07.2004) that a complaint regarding property C-103 was received and it was booked on 06.04.2004. The grounds taken by the applicant are:
1. The respondents have not been able to establish that the unauthorized construction that was booked after the tenure of the applicant, had been raised during his tenure from 29.09.2003 to 11.03.2004. It has been stated that Honble High Court of Delhi in WPC No.7976/2011 by a judgment dated 14.11.2011 while reversing the order of this Tribunal laid down the above proposition. (A copy of order of the Honble High Court has not been supplied).
2. The order dated 24.02.2010 was passed by the disciplinary authority without any application of mind. There is no discussion on the findings of the Inquiry Officer which indicates that disciplinary authority has not applied its own mind in the issues involved.
3. The appellate authority has also not applied its mind to the contentions raised in the representation filed by the applicant as can be seen in the office order dated 07.06.2011 which again does not discuss the reasons for arriving at the conclusions by the appellate authority.
4. The learned counsel for the applicant during the arguments submitted that the charges against the applicant were vague as the same did not indicate specifically that any deviation in the property C-103 had taken place during the tenure of the applicant. Sh. Chaman Lal, the then AE under whom the applicant was working was also charged in an identical manner. Sh. Chaman Lal had filed OA-99/2012 which was disposed of by this Tribunal on 15.02.2013. In that order the Tribunal had came to the conclusion that construction of third floor did not seem to have taken place during the tenure of Sh. Chaman Lal. However, the respondents were directed to once again look at the representation of the applicants and pass a speaking order. The learned counsel further submitted that the applicant had discharged his responsibility by taking demolition action on 09-10.01.2004 which has been confirmed by the statement of Sh. Sunil Chawla before the enquiry officer. Only thing remaining was to book the property and the same was done after the transfer of the applicant by his successor. There was no complaint received by the respondents between 11.03.2004 to 05.04.2004 proving the point that the building was booked as a sequel to the action taken by the applicant during his tenure.
5. Learned counsel for respondents submitted that it was incorrect to say that there was no application of mind by the respondents for passing the orders. With the counter reply respondents have filed a copy of the detailed order passed by the Commissioner, MCD which was conveyed through a brief order dated 01.02.2010. The appellate authority also had passed a detailed order dated 07.06.2011, a copy of which is annexed by the applicant with the OA. He further submitted that in the disciplinary matters scope for interference by the Tribunal is limited and in this case applicant has not alleged any malafide or procedural irregularity or violation of the law of natural justice. It was submitted that during the enquiry it had been proved that the demolition action taken by the applicant on 09-10.01.2004 was limited to FF as stated by Sh. Sunil Chawla, JE. It is significant to note that the applicant remained posted in that jurisdiction till 05.04.2004 and the deviation against sanctioned plan in the shape of excess coverage at Basement, GF, FF and SF and projection on Municipal land was booked on 06.04.2004 (page 26 of the paper book). As the documents filed by the applicant himself would show that all actions by the authorities of giving show cause notice, sealing the property etc. followed subsequently. The applicant, therefore, cannot escape from the responsibility of not taking timely action to prevent such large scale deviation from his building plan.
6. We have considered the pleadings and the submissions made by the learned counsels. We are in agreement with the submissions of the learned counsel for the respondents that the scope of this Tribunal is limited in the disciplinary proceedings instituted by the competent authority. In B.C. Chaturvedi v. Union of India and others, (1995) 6 SCC 749 it has been held by the Honble Supreme Court that the High Court/Tribunal in exercise of review power cannot normally interfere with the punishment imposed by disciplinary/appellate authority, except where it shocks the judicial conscience in which case it can mould the relief either by directing the authority to reconsider the punishment/penalty imposed or in exceptional cases by itself imposing an appropriate punishment recording cogent reasons.
7. Judicial review is said to be addressed to the decision-making process. Following passage from the decision in H.B. Gandhi, Excise & Taxation Officer cum-Assessing Authroity, Karnal v. Gopinath & Sons, 1992 Supp. (2) SCC 312 was cited by the Honble Supreme Court in Union of India & others v. Upendra Singh, (1994) 3 SCC 357 to highlight the scope of judicial review:
"Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
8. With regard to the grounds of judicial review, after referring to State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723 and B.C. Chaturvedi v. Union of India, 1995 (6) SCC 749, the Honble Supreme Court restated the grounds of judicial review in High Court of Judicature at Bombay v. Shashikant S. Patil, (2000) 1 SCC 416, which in an enumerated form would be as follows:
(a) where there has been a violation of the principles of natural justice; or
(b) the proceedings have been held in violation of statutory regulations prescribing the mode of such enquiry; or
(c) the decision is vitiated by considerations extraneous to the evidence and merits of the case; or
(d) if the conclusion made by the authority is ex facie arbitrary or capricious that no reasonable person could have arrived at such conclusion; or
(e) other very similar to the above grounds.
It was also reiterated that if there was some legal evidence on which the findings could be based, then adequacy on even reliability of such evidence would be outside the pale of judicial review.
9. The applicant has not alleged any mala fide, deviation from the laid down procedure for conducting the disciplinary proceedings or violation of the law of natural justice. The main ground taken by the applicant is that the respondents have not been able to establish that the unauthorized construction on the aforesaid property took place during the tenure of the applicant. The documents filed by the applicant shows that he had taken demolition action on 09.01.2004 in respect of deviation at the FF. Applicant has not challenged the fact of the deviations in the basement, GF, FF and SF and encroachment of municipal area. The document FIR-A filed by reporting official, Jr. Engineer (B), Karol Bagh Zone to the Zonal Engineer (Building) mentions:
Upon inspection of premises No.C-103, New Rajender Nagar, New Delhi, it was noticed that deviation against sanctioned building plan in the shape of excess coverage at Basement floor, Ground floor, First floor, Second floor and projection on Municipal land, as booked vide file No.B/UC/KBZ/2004/126 dt. 06.04.2004, has been commenced or has been completed by and at the instance of the Owner/Builder/occupier. (page 26 of the paper book)
10. If the statement of the applicant is taken at his face value, it would mean that the deviations to the extent of 100% in the basement, GF, FF and SF and projection on Municipal land was constructed between 11.03.2004 and the date of inspection (date not given) which must be on or before 06.04.2004. Even if that date was 06.04.2004, the aforesaid huge deviations could arise within 25 days. Though the lay out of that building is not on record, there can be a reasonable doubt as to how the entire construction leading to the aforesaid deviations could be done within 25 days going by the normal methods followed for construction of buildings. With regard to the assertion by the applicant that no complaint was received about any deviation between 11.03.2004 and 05.04.2004 the following observation of the appellate authority in the order dated 12.05.2011 communicated to the applicant vide letter dated 07.06.2011 are relevant:
Also the complaint forwarded by Central Vigilance Commission (S-1) has a copy of complaint dated 22.06.2005, enclosing a previous complaint dated 22.12.2003 wherein it had been informed that the owner builder has razed the superstructure of the old construction and after encroaching the government land, construction has reached up to roof level of basement and pillars have been put to cover upper ground floor. The complainant had also mentioned in the complaint dated 22.06.2005 that he had earlier complained on 24.12.2003, 23.02.2004 & 03.03.2004 about the unchecked construction going on in the property. These dates fall within the tenure of the appellant. Therefore, the claim of the appellant that no complaint was received from any quarter during his tenure is misleading.
11. Applicant has not questioned these facts brought out in the appellate order specially when the CVC letter was one of the documents in the list of documents on the basis of which the charges were proved by the Inquiry Officer. The applicant has also referred to the order dated 15.02.2003 passed by this Tribunal in OA-99/2012 where it had given its finding with regard to the construction of third floor on the property under reference. We do not find much relevance to the observations of this Tribunal in the order dated 15.02.2013 to the present case, as the present charge sheet does not relate to the allegations of deviations on the third floor.
12. Taking these facts into account, we are not convinced by the contention of the applicant that respondents were not able to establish that the alleged deviations took place during the tenure of the applicant. In this connection, we would like to refer to the judgment of Honble Supreme Court in Raibareli Kshetriya Gramin Bank v Bhola Nath Singh [1997 SCC (L&S) 80], wherein it was held that Tribunal cannot sit as an appellate Court and reappreciate the findings and take a different view from departmental authorities.
13. Considering the entire conspectus of the case and for the aforesaid reasons, we find no merit in the OA and the same is dismissed. No order as to costs.
( V.N. Gaur ) ( V. Ajay Kumar ) Member (A) Member (J) sd