Central Administrative Tribunal - Delhi
Sh. V.S.Verma vs Delhi Development Authority on 15 May, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.3527/2010 with O.A.No.3886/2010 Order Reserved on: 20.03.2013 Order pronounced on 15.05.2013 Honble Shri V. Ajay Kumar, Member (J) Honble Shri Shekhar Agarwal, Member (A) Sh. V.S.Verma Aged 56 years S/o Shri Bhika Ram R/o House No.91, Village Gazipur Delhi 110 096. Applicant (By Advocate: Shri Sidharth Joshi) Versus Delhi Development Authority Through its Vice Chairman Vikas Sadan INA Market New Delhi. Finance Member Delhi Development Authority Vikas Sadan INA Market New Delhi. Commissioner (Personnel) Delhi Development Authority Vikas Sadan INA Market New Delhi. Respondents (By Advocate: Shri Manish Garg) O.A.No.3886/2010: Sh. V.S.Verma Aged 56 years S/o Shri Bhika Ram R/o House No.91, Village Gazipur Delhi 110 096. Applicant (By Advocate: Shri Sidharth Joshi) Versus Delhi Development Authority Through its Vice Chairman Vikas Sadan INA Market New Delhi. Finance Member Delhi Development Authority Vikas Sadan INA Market New Delhi. Commissioner (Personnel) Delhi Development Authority Vikas Sadan INA Market New Delhi. Respondents (By Advocate: Shri Manish Garg) O R D E R By V. Ajay Kumar, Member (J):
As both the OA filed by the same person, and the facts and the question of law involved in both the OAs are/is also same, they are being disposed of by this common order, after the consent of both the learned counsel. O.A.No.3527/2010:
2. While the applicant was working as Assistant (P&C Office), DDA, New Delhi, he was served with a Charge Memorandum dated 26.06.2007 (Annexure A3) under Regulation No.27 of the DDA CDA Regulations, 1999, for imposing a minor penalty, containing one charge and the same reads as under:
Shri Virender Singh Verma, Asstt. while working in Group Housing Branch during the year 2003 prepared and put up two letters to be sent to the Secretary President of Pride CGHS Ltd. to the Deputy Director (GH) DDA for signature and issue at wrong address.
The said Shri Virender Singh Verma, Asstt. (GH) DDA put up two letters dated 31.10.2003 / 3.11.2003 and 10.12.2003 to the Deputy Director (GH) for signature and issue which were to be sent to Secretary/President of Pride CGHS Ltd. regarding Assessment of requirement of land by the Society. As prepared and put up by him, the aforesaid two letters were signed and issued at the Societys address i.e. 56. Tarun Enclave, Pitam Pura, Delhi. But the fact is that the correct Registered Office address of the Society was 876/6 Mahrauli, New Delhi, to 56, Trun Enclave Pitam Pura, Delhi. Investigations further reveal that the address i.e. 56, Tarun Enclave Pitam Pura, Delhi happens to be the residence of Shri Pawan Garg and Smt. Mukta Garg who happens to be identified as brother-in-law (wifes brother) of one Shri Subash Chand Gupta, A society scamster. The above letters issued at the wrong address of the Society, asking the Society for the preference of area for allotment of land were received by Smt. Mukta Garg. Shri Virender Singh Verma, Asstt. willfully and negligently prepared and put up the letters with wrong address which was neither approved by the RCS nor sent by the office of RCS to DDA at any point of time. The preparation and putting up these two letters with wrong address of the Society was a deliberate act of extending favouritism to a person who subsequently identified as kin of the Society scamster.
By his above act Shri Virender Singh Verma, Asstt. exhibited lack of absolute devotion to duty and lack of absolute integrity thereby contravened Rule 41 (i) and (ii) of DDA Conduct Disciplinary and Appeal Regulations 1999 as made applicable to the employees of the Authority. The applicant vide Annexure A6 representation denied the charge leveled against him. However, the respondents vide order dated 24.10.2007 (Annexure A7) imposed a penalty of withholding of increments for three years without cumulative effect. The appeal, preferred by the applicant, dated 07.12.2007 (Annexure A10) was rejected by the appellate authority by order dated 05.05.2008 (Annexure A2).
3. The applicant preferred OA No.2348/2008 against the aforesaid disciplinary and appellate orders. He has also preferred OA No.2345/2008 against another penalty order withholding of two increments without cumulative effect, imposed in similar circumstances. This Tribunal by its common order dated 18.05.2009 (Annexure A21) allowed the said OAs and quashed the impugned orders therein, being non-speaking orders, while giving liberty to the respondents to resume the process in accordance with law from the stage of consideration of the representations by the applicant against the charge memorandums, and were directed to issue final orders within a period of three months.
4. In pursuance of the said orders, the 3rd Respondent Commissioner considered the representation dated 07.08.2007 of the applicant made in respect of the Charge Memorandum dated 26.06.2007 and again imposed the penalty of withholding of three increments without cumulative effect, vide impugned order dated 24.08.2009 (Annexure A1).
OA No.3886/2010:
5. While the applicant was working as Assistant, the respondents have issued a charge memorandum dated 25.07.2007 (Annexure A3) under Regulation No.27 of the DDA CDA Regulations, 1999, for imposing a minor penalty, containing one charge and the same reads as follows:
Shri Virender Singh Verma, Asstt. while working in Group Housing Branch during the year 2003 prepared and put up letters to be sent to the Secretary/President of Shreyas CGHS Ltd. to the Deputy Director (GH) DDA for signature and issue at wrong address.
Shri Virender Singh Verma, while sending letters to the Shreyas CGHS Ltd. did not care to verify the various addresses of the society from the RCS office. He also did not care to see that the reply from the representative of the society received in response to various letters of DDA, were from different addresses of the society and did not tally the signature on this letter. Sh. V.S.Verma, Asstt. willfully and negligently prepared and put up the letters with wrong address which was neither approved by the RCS nor sent by the office of the RCS to DDA at any point. The preparation and putting up these letters with wrong address of the society was a deliberate act of extending favouritism to a person.
By his above act Sh. Virender Singh Verma, Asstt. exhibited lack of absolute devotion to duty and lack of absolute integrity thereby contravened Rule 41 (i) and (ii) of DDA Conduct, Disciplinary and Appeal Regulations, 1999 as made applicable to the employees of the Authority. The applicant vide his representation dated 31.08.2007 (Annexure A6) denied the charges leveled against him. However, the 3rd Respondent disciplinary authority vide order dated 24.10.2007 (Annexure A7) imposed a penalty of withholding of two increments without cumulative effect on the applicant. The appeal, preferred by the applicant, dated 07.12.2007 (Annexure A10) was rejected by the 2nd Respondent Appellate Authority vide order dated 05.05.2008 (Annexure A2).
6. The applicant preferred OA No.2345/2008 questioning the aforesaid disciplinary and appellate orders. He has also filed another OA No.2348/2008 against another penalty order imposing withholding of three increments without cumulative effect in similar circumstances. This Tribunal by its common order dated 18.05.2009 (Annexure A13) allowed the said OAs and quashed the impugned orders therein, being non-speaking orders, while giving liberty to the respondents to resume the process in accordance with law from the stage of consideration of the representations by the applicant against the charge memorandums, and were directed to issue final orders within a period of three months.
7. In pursuance of the said orders, the 3rd Respondent Commissioner considered the representation dated 31.08.2007 of the applicant made in respect of the Charge Memorandum dated 25.07.2007 and again imposed the penalty of withholding of two increments without cumulative effect, vide impugned order dated 25.09.2009 (Annexure A1).
8. The applicant preferred both the present OAs against the said impugned orders passed by the disciplinary authority, without availing the statutory remedy of appeal under Regulation No.32 of the DDA CDA Regulations, 1999.
9. Shri Sidhharth Joshi, learned counsel for the applicant, while advancing common arguments in both the aforesaid OAs, inter alia, raised the following grounds:
In the similar circumstances, and in respect of the identical charge this Tribunal in OA No.501/2009, which was also filed by the applicant herein, by order dated 15.03.2010 (Annexure A15 of OA No.3886/2010), set aside the disciplinary and appellate orders therein, imposing the penalty of withholding of one increment for a period of one year without cumulative effect. The respondents have implemented the said orders vide order dated 16.07.2010 (Annexure A16 of OA No.3886/2010). Since the charges covered under the orders impugned in OA No.501/2009 and the subject charges in the present OAs are similar, and identical and hence, the present OAs are also liable to be allowed.
That the major penalty proceedings issued under Regulation 25 of the DDA CDA Regulations ibid, in respect of identical charge was dropped by the 3rd Respondent Commissioner vide order dated 30.08.2010 (Annexure A17 of OA No.3886/2011). When the major penalty proceedings itself were dropped, the subject minor penalty proceedings in the present OAs are also liable to be dropped.
The respondents in the similar circumstances and in respect of the identical charges exonerated one Shri Ved Prakash, Assistant Director, who was a superior officer of the applicant, vide order dated 25.03.2008 (Annexure A26 of OA No.3886/2010). Hence, not exonerating the applicant, in the present proceedings, is discriminatory, arbitrary and illegal.
The charge does not disclose any misappropriation or embezzlement of any public funds or any financial loss to the respondents organization or violation of any rules or regulations of the respondents in discharging the duties by the applicant. At the most, if proved, the charge constitutes only negligence on the part of the applicant. Negligence is a misconduct only which has culpability with a resulted damage, and that an error of Judgement is not a misconduct. The learned counsel for the applicant placed reliance on the Judgements of the Honble Apex Court in Union of India v. J. Ahmed, (1979) 2 SCC 286 and in Inspector, Prem Chand v. Govt. of NCT of Delhi and Others, 2007 (5) SCALE 421.
10. The respondents filed a detailed counter denying the OA averments.
11. Heard both the learned counsel and have been through the pleadings on record.
12. Shri Manish Garg, the learned counsel for the respondents submits that the facts in the present two OAs are different from that of the OA No.501/2009 (Annexure A15 in OA 3886/2010) and also from that of the Order dated 30.08.2010 (Annexure A17 in OA No.3886/2010) and order dated 25.03.2008 (Annexure A26) in OA No.3886/2010 in respect of superior officer Shri Ved Prakash. Hence, the same are not applicable to the present OAs.
13. The learned counsel for the respondents further submits that the applicant failed to show any different grounds from that of the grounds raised by him in the earlier OA Nos.2345/2008 and 2348/2008, in pursuance of which, the present impugned orders are passed. The learned counsel also submits that in any event, the applicant cannot take advantage of negative discrimination.
14. At the outset, a bare perusal of the charges leveled against the applicant, which are the subject matter in the present two OAs, and the charge leveled against him in OA No.501/2009 are similar and identical, but the only difference is the names of the Housing Societies. In similar circumstances, this Tribunal by its order dated 15.03.2010 in the said OA No.501/2009 considered the similar charge against the applicant and held that the same amounts to `negligence, since sending letters on a wrong address, which has not culminated in any loss to the DDA, the minor penalty imposed is on a Judgement of error, which would not amount to a misconduct. This Tribunal further held that once the higher authority has been found responsible in case of Shri Ved Prakash, Superintendent, punishing the applicant, who is a subordinate, would be discriminatory under Articles 14 and 16 of the Constitution of India.
15. The respondents have agreed and accepted the reasoning given by this Tribunal in the said OA 501/2009 and dropped the similar charges. It is also an admitted fact that the respondents themselves in the similar circumstances and in respect of similar charge, having observed that there was no such instruction prevalent in DDA, to check the latest address of the Housing Societies from the office of the RCS and that there does not appear to be any malafides on the part of the applicant, dropped the major penalty proceedings against the applicant vide order dated 30.08.2010.
16. In the above fact scenario, we do not find any reason to take any different view, except, treating the subject charges, i.e., sending letters on wrong address, which has not culminated in any loss to the DDA, and as there was no instructions prevalent in DDA to check the latest address from the office of the RCS, before sending letters, and that the charge does not disclose any malafide intention on the part of the applicant, as `negligence and `a judgement of error, and accordingly, we are of the considered view that the impugned orders deserves to be set aside.
17. In view of our above findings, no fruitful purpose will be served if the OA is disposed of, directing the applicant to avail statutory remedy of appeal against the impugned disciplinary authoritys orders which were passed in pursuance of the orders of this Tribunal in OA No.2345/2008 and OA No.2348/2008, after setting aside the earlier disciplinary and appellate orders. Further, since the charges pertaining to the year of 2003 and that the OA is pending since 2010, we do not deem it appropriate to reject the OA on the ground of non-availing the statutory remedy of appeal at this stage.
18. Accordingly, and in the aforesaid peculiar circumstances of this case, both the aforesaid OAs are allowed and the impugned orders therein are quashed and set aside with all consequential benefits. No order as to costs.
(Shekhar Agarwal) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/