Central Administrative Tribunal - Delhi
Sh. R.N.Chopra vs Delhi Development Authority on 6 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 2649/2010 New Delhi, this the 6th day of January, 2011 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Sh. R.N.Chopra S/o Late Sh. Puran Mal Chopra, R/o 63-C, DDA Flat, Behind Laxmi Bai College, Ashok Vihar Phase-III, Delhi-110052. Applicant (By Advocate: Shri Apurb Lal with Sh. Daleep Singh) V E R S U S 1. Delhi Development Authority through Commissioner (Personnel) Vikas Sadan, I.N.A.Market, New Delhi-110023. 2. The Finance Member, Delhi Development Authority Vikas Sadan, I.N.A.Market, New Delhi-110023. Respondents (By Advocate: Shri Karunesh Tandon) O R D E R
Honble Dr. Veena Chhotray:
The applicant, a UDC in the DDA, challenges the penalty of reduction by one stage in the Time Scale of pay for two years with cumulative effect, imposed vide the Order dated 15.4.2010 and upheld by the Appellate Order dated 3.8.2010. The OA seeks quashing of the impugned orders besides passing any other or further orders deemed fit in the circumstances.
On behalf of the applicant the learned counsels Shri Arup Lal and Shri Daleep Singh and for the respondents the learned counsel Shri Karunesh Tandon would appear before us. We have carefully considered their respective submissions and also the material on record.
2. Vide the Charge Memorandum dated 26.6.2008 a disciplinary proceeding under the Regulation 25 of the DDA (Conduct, Disciplinary & Appeal) Regulations, 1999 was initiated against the applicant with the following charge:-
Sh. R.N.Chopra while working as UDC in Old Scheme Branch in the year 1996 failed to bring out on record that unearned increase was to be charged while putting up the case for mutation of Plot No.649, Dr. Mukherjee Nagar. On the above grounds, exhibition of lack of integrity and absolute devotion to duty, thereby contravening Regulation 4 1(i), (ii) and (iii) were alleged. This was followed by a corrigendum dated 6.11.2008 correcting the Plot No. After a regular inquiry, in which the CO participated, the inquiry report dated 15.4.2009 holding the charge as proved was submitted. Considering the representation of the CO against the findings of the IO, the Disciplinary Authority (DA), agreeing with the IO, imposed the following penalty:-
The penalty of reduction by one stage in the Time Scale of Pay for a period of two years with the condition that he will not earn increments of pay during the period of such reduction and on the expiry of such period, the reduction will have the effect of postponing his future increments of pay.
The appeal dated 10.5.2010 against the aforesaid orders was rejected by the Appellate Order dated 3.8.2010.
This has occasioned the present OA.
3. The impugned action has been challenged, inter alia, on the ground of delay. In para-5 (viii) it is averred that for an incident occurring in the year 1996, the Charge Memo was served after a period of 12 years of occurrence which itself shows that this was not in good faith but with malafide. The quashing of the Charge Sheet on this sole ground has also been pleaded.
As per the applicant, this is a case of no-misconduct. It is contended that there was no material or evidence to prove violation of any rule, regulation or administrative instruction on the part of the applicant. The findings of the IO are alleged to be based on conjectures and surmises. Besides, the I.R. is faulted on ground of non-consideration of the defence submissions. It is also the grievance of the applicant that even the Disciplinary Authority and the Appellate Authority had passed cryptic and non-speaking orders, without application of mind and due consideration of the submissions in defence made by the CO.
The claims in the OA have been contested by the respondents. The learned counsel, Shri Karunesh Tandon would justify the action in this case. It would be his submission that the penalty had been imposed after following due procedures as per rules and providing fair and reasonable opportunity of defence to the CO. It would also be submitted by the learned counsel that considering the charge being proved during the inquiry, the penalty imposed was in order and did not call for any judicial intervention.
4. At the outset, it would be apt to deal with the ground of delay. Admittedly, the disciplinary proceeding in this case had pertained to a cause of action relating to the year 1996-1997. The initiation of the proceeding was in the year 2008, after a gap of 12 years. In their counter reply, seeking to explain the cause of this delay, the respondents have stated it to be on account of the issue coming into notice when the conversion from lease hold to free hold was applied by the GPA/Purchaser during the year 1999 and after scrutiny of the documents. Even if taken at the face value, the respondents had taken another 9 years after detection of the cause of action, to initiate the DP in this case.
In a catena of judgments on the subject, the Honble Apex Court has held that delay by itself cannot be a ground to quash a disciplinary proceeding. In State of Andhra Pradesh vs N. Radhakrishnan {JT 1998 SC 123}, it was observed that while dealing with such issues the Court is required to consider the nature of charges, their complexity, the reason for delay and whether the same is explainable. Again, in P.V. Mahadevan vs M.D. Tamil Nadu Housing Board {2006 (1) SLJ SC 67}, in a case where a misconduct pertaining to the year 1990, which had come to the knowledge of the respondents in the year 1994-95, but the charge sheet had been issued after 10 years without any satisfactory explanation for the delay; the Apex Court quashing the impugned Charge Sheet had come heavily against such belated actions as not only a source of mental agony and harassment to the Govt. employee but also not being in public interest by not inspiring confidence in the Government.
Applying the aforesaid yardstick as laid down by the Honble Apex Court, we do not find the explanation rendered by the respondents as satisfactory enough to explain the inordinate delay in initiation of the proceedings. While holding the unexplained delay as a material factor in dealing with the issue before us; we would refrain from quashing the impugned penalty order solely on the ground of delay. In the following paragraphs, we would deal with the issues on merit as well.
5. In order to do justice to the issues at hand, a clarity about the basic facts is important. To begin with, in the Statement of Imputation itself, while explaining the background of the charge in question, it is stated that the Plot No.672, Dr. Mukherji Nagar had been allotted by the MCD in favour of one Siri Kishan Lal alias Siri Chand in the year 1975. This allotment was in lieu of a quarter no. E-7/27 Hudson Line. The lease for this purpose had been executed in 1975 followed by handing over the physical possession. As per the conditions of the allotment, the lessee was required to return the aforesaid quarter to the lessor within a period of 12 months. Show Cause Notices for the same had been issued by the Land & Estate Department of the MCD during the period 1978-1980.
However, in 1979 the said Siri Kishan, on an application, was granted permission to sell the aforesaid quarter to one Shri Rawail Singh. The necessary permission was granted by the L&DO Letters dated 23.11.1979/12.12.1979. It was stipulated that the purchaser was to be bound by all the covenants of the lease executed on 28.6.1969 (as transpired from the perusal of the record, this lease had pertained to the lease agreement regarding the plot in question). The Sale Deed for the said quarter was dated 10.3.1980.
The Statement of Imputation also states the following which being critically important for the issues before us is being extracted as here under:
The allottee Sri Kishan submitted a GPS/SPA in favour of Smt. Jeet Kaur w/o Sh. Rawail Singh showing Quarter No.E7/27, Hudson Line along with plot No.672, Dr. Mukherjee Nagar allotted in lieu of the said quarter to obtain sale permission of the aforesaid quarter. As a result of the aforesaid sale permission, Sh. Rawail Singh became the owner of the quarter as well as Plot No.672, Dr. Mukherjee Nagar as the plot was allotted in lieu of the aforesaid quarter. As per this Statement of Imputation, after the death of Shri Rawail Singh in 1993, the aforesaid Plot was mutated in favour of his son, Shri Mohinder Singh on 2.1.1997 by the DDA. It is further stated that since the aforesaid plot had been allotted to Siri Kishan in lieu of the quarter, the sale permission given by the L&DO for disposal of the quarter was illegal.
However, the charge against the applicant has been built up with the argument that the permission granted by the L&DO to sell the quarter had not extended to the plot. Further, the indirect sale of the plot in favour of the said Rawail Singh could have materialized only after affecting the relevant covenant of the lease deed in respect of the plot which had envisaged payment of 50% unearned increase before any transfer or parting with possession. Focusing on the alleged role of the applicant, it was stated since the transfer of ownership in respect of the plot was being dealt with for the first time at the time of mutation, the case should have been processed for charging unearned increase before allowing mutation in favour of legal heirs of Sh. Rawail Singh.
6. The stand of the applicant about the factual matrix is revealed from his written brief dated 9.1.2009 submitted to the IO (Annex. A/3), the representation dated 26.11.2009 to the DA against the Inquiry Report (Annex. A/6) and the appeal dated 10.5.2010 to the Appellate Authority (Annex. A/7).
Explaining the background of the whole issue, it is stated that after the partition of the country migrants from West Pakistan had been granted lease hold rights in favour of those persons who had occupied the quarters lying vacant at Hudson/Outram Kingsway Camp. The Kingsway Camp Re-development Scheme had been entrusted to the MCD. As per this Scheme while allotting the plots to the occupants of the quarters, the condition of the allottee surrendering the quarter within a period of one year was imposed. However, several allottees, after getting the plots had not surrendered the quarters and instead had sold the same further by managing to get permission from L&DO, Ministry of Rehabilitation. It is further stated that such persons had also got the quarters mutated in favour of purchasers and the MCD had transferred the plots in favour of the purchasers.
The present case of the original allottee, Sri Kishan getting the allotment of the plot in lieu of a quarter and subsequently instead of surrendering that quarter to the MCD getting the sale permission for it in 1979 and selling the same to the purchaser, Rawail Singh has been explained as one such case. The applicant had submitted the blame in this case lying at the time of the original permission for sale of the quarter. In the written brief some specific averments had also been made. A few examples are being given by way of illustration only: (a) During cross-examination the SW-1, Shri Anil Sharma, SLO had deposed that as per the condition no.4 of the Lease Deed 8.1.1975, it had been deposed that 50% of unearned increase was required to be deposited with the DDA at the time of affecting mutation of plot allotted to Shri Siri Chand (the alternate name of the original allottee). (b) As per Ex. D4, the mutation of property had been made in favour of Shri Rawail Singh and the L&DO had permitted the transfer of quarter in favour of Shri Rawail Singh without charging 50% unearned increase. (c) Though the mutation was made only for the property No.E-7/27 Hudson Line, but the lessee had given the GPA as well as the Sale Deed which is duly registered by the Sub-Registrar in favour of Shri Rawail Singh against E-7/27, Hudson Line as well as against the allotment of Plot No.672, Dr. Mukherjee Nagar. On this basis the mutation had been allowed by the L&DO Office vide their letter dated 5.1.1981 as annexed as D-04 by the IO. (d) Para-10 of this brief had crystallized the applicants submissions:
10. The mutation of the old premises was made by the L&DO Office, who was the lessor as well as the administrative authority prevailing at that time. If any error has been made by the previous controlling, then the further action taken by the subsequent authority on the basis of the decision taken by the previous authority can not be treated as faulty. The submission is that if the mutation of the old premises was made by the L&DO Office then the mutation made by the DDA on the basis of the decision taken by the L&DO office can not be wrong. Similar type of action was taken in the instant case, hence the mistake occurred in this case is on the part of the L&DO office with the conspiracy of the original lessee.
(e) It had further been stated that by a subsequent GOI Scheme regarding conversion of lease hold plots to free hold plots levy of 33.3% in addition to conversion charges was to be paid in case of transfer of a plot. As the same amount had been paid in this case also, the DDA had not suffered any loss on this account.
These very submissions had been reiterated by the applicant before the Disciplinary Authority as well as the Appellate Authority. In the representation against the IOs report the applicant had stated that the present case of Plot no.672, Dr. Mukherjee Nagar had already been mutated in the name of Sh. Rawail Singh (Purchaser) by the L&DO which was the managing agency of the scheme, which is highly responsible/Govt. Agency. Photo copy of the mutation letter issued by L&DO was enclosed. After death of mutattee Sh. Rawail Singh, the applicant had put up the case of mutation in favour of Sh. Mahender Singh being his son. Thus the original allottees remained in occupation of the quarters whereas the plots allotted were in the names of purchasers.
7. It is the contention of the applicant that the Inquiry Officer had not duly considered the defence brief. Besides, the report was not only cryptic but also the findings based on surmises. These contentions are found to be borne out by a perusal of the inquiry report. Para 6.3, though acknowledging that the L&DOs action to mutate the Lease Deed in favour of the purchaser Rawail Singh was not bonafide, tries to distinguish that this referred to the mutation of the lease deed of the quarter and not to the plot. Para 6.4 emphasizes the execution of the separate lease deeds for the quarter as well as the plot in question. However, while considering these facts, the CO had not at all considered the fact regarding the original lessee executing a GPA as well as a Sale Deed in favour of the Purchaser Rawail Singh not only for the quarter but also for the plot and its registration followed by the mutation allowed by the L&DO Office; as had been submitted by the charged official in his defence brief and had also found the mention in the Statement of Imputation.
Whereas, the Inquiry Officer did not find it necessary to even consider the other specific defence submissions made by the CO and referred above by us; Para 6.8 referring to the submissions regarding the blame in this case being squarely on the previous decision making authority of the L&DO Office, jumped to the following conclusion:-
From the above, it emerges that the CO was aware that the action of the L&DO to mutate the quarter in the name of Shri Rawail Singh was incorrect. Further, CO has indirectly admitted that the terms and conditions of lease envisaged payment of 50% unearned increase for transfer of plot in the name of Shri Rawail Singh. 7.1 We have no hesitation in holding that the report of the Inquiry Officer is not only sketchy but also suffers from contradictions, wrong inferences based on surmises and conjectures, besides non-consideration of defence submissions and evidence favourable to the delinquent : all of which were held by the Honble Apex Court as grounds enough to consider an inquiry report as vitiated {M.V. Bijalani vs. UOI & Ors (All India Service Law Journal X-2006 (3) 2006}.
8. The defence pleas also seem to have fallen on deaf ears at the stage of the final decision making regarding imposition of the penalty. Both the orders of the DA as well as the AA tend to be rather cryptic and non-speaking. They also do not refer to the various pleas raised by the CO against the order of penalty. Instead what is found is a reiteration of the view taken by the Inquiry Officer and justification of the proposed penalty. As is trite, non-consideration of the defence pleas even in cases where the DA and AA are agreeing with the findings of the Inquiring Authority and non-incorporation of the reasons cannot be viewed to be in consonance with law. This would be more so, where the Inquiry Report itself has been found to be gravely vitiated and the penalty imposed is as severe as removal from service, amounting to economic death of an employee.
9. In view of the foregoing, the Inquiry Report in this case is found to be suffering from grave infirmities and hence held to be vitiated. Similarly, the orders of the DA as well as the AA are cryptic, and do not consider the submissions of the defence. We also find the delayed initiation of the departmental proceeding, after a gap of 12 years (taking the year 1999 as the year of detection even then there was a delay of 9 years) as not in consonance with law, since the delay has not been explained satisfactorily by the respondents. To conclude, the impugned penalty orders are not found to be justified and hence allowing the OA they are quashed and set aside. The respondents are directed to issue the corrective orders including grant of the consequential financial benefits to the applicant within a period of two months from the date of receipt of a copy of this order. No orders as to costs.
( DR. VEENA CHHOTRAY ) ( MRS. MEERA CHHIBBER ) Member (A) Member (J) /pkr/