Central Administrative Tribunal - Delhi
Pawan Kumar Sharma vs Delhi Development Authority on 22 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1899/2010 New Delhi, this the 22nd day of November, 2010 HONBLE MR. JUSTICE S.D. ANAND, MEMBER (J) HONBLE MR. SHAILENDRA PANDEY, MEMBER (A) Pawan Kumar Sharma, UDC, DDA, Office of Sr. Accounts Officer (Estt.)NG Vikas Sadan, New Delhi. Applicant. (By Advocate Ms. Sriparna Chatterjee) Versus 1. Delhi Development Authority, Through its Vice Chairman Vikas Sadan, INA, New Delhi-110023. 2. The Finance Member, Delhi Development Authority, Vikas Sadan, INA, New Delhi-110023. 3. The Commissioner (Personnel), Vikas Sadan, INA, New Delhi-110023. Respondents. (By Advocate Shri Karunesh Tandon) ORDER
Justice S.D. Anand:
Facts of the case:
Conceded factual scenario, with required brevity and relatable to the timing of relevant facts, is as under.
2. One Gautam Dhar, hereinafter referred to as the `allottee was one of the successful applicants in a draw, for allotment of Flats in the area Jasola held by the DDA on 23.03.1993. In pursuance thereof, a demand letter dated 06/08.04.1993 came to be issued to him. For whatever reasons, the allottee filed a plea dated 07.07.1994 for cancellation of the allotment. The plea aforementioned (i.e. for cancellation of the allotment) came to be allowed by the competent authority on 07.11.1994. On 14.02.1996, the allottee moved for the refund of the registration money. The file was processed and forwarded to the Finance Branch. For reasons not available on the record, the file was withdrawn from the Finance Branch (there is nothing on the file to indicate who exactly did it), on 03.03.1996. The allottee, in the meantime, applied for the restoration of the allotment of Flat. That plea of his came to be negatived and communicated to him vide communications dated 06.06.1996, 24.01.1997 and 17.03.1997.
3. The allottee, on its own volition, deposited four installments towards the purchase price of the flat aforementioned (total thereof being Rs.5,48,760/-), on 20.05.1996, 15.11.1996 and 27.12.1996.
4. The competent authority prepared a check list dated 12.06.1998, for allotment of specific flats to the successful allottees. The name of the allottee came to be included in the draw and a specific flat was allotted to him.
5. Thereafter, a demand letter came to be issued to him for the payment of the 5th and final installment with balance cost of Rs.5,16,883/-(of the total purchase amount), which was deposited on 26.12.1998. Unanimity of facts concludes over here.
6. It is apparent from the record that papers came to be moved on behalf of the allottee on 11.01.1999 to obtain the possession of the specific flat allotted to him (in the draw held on 29/30.06.1998). The applicant herein put up that request along with his note dated 17.09.1999 (along with proposed draft possession letter).
7. Then, the allottee filed an application dated 28.10.1999 for the refund of the relevant amount. That note was processed and put up by the applicant and a cheque for Rs.2,22,663/- came to be issued in the name of the allottee. That amount was withdrawn by an impersonator, who opened a bank account, for the purpose aforementioned, under forged signatures.
8. The applicant, who was posted as SFS (Housing) during the year 1999-2000 was charged with the responsibility of processing of such like requests. There is a finding of fact recorded by the Inquiry Officer to the effect that Sh. Pawan Kumar put up a note on 17.9.99 along with a possession letter to Superintendent and AD (SFS) for issuing the same to one Sh. Parveen Kumar Arora, SPA of Gautam Dhar. The possession leter was approved by the AD, Sh. S.C. Chug and issued to Sh. Parveen Kumar Arora by hand. That finding of fact was beyond the pale of controversy at the time of presentation before this Bench.
9. A departmental inquiry was held against the applicant herein on the following articles of charge:
ARTICLE-I Shri Pawan Kumar, UDC while working in SFS (Housing) during the year 1999-2000 was responsible for processing the case for issue of possession letter dated 17.9.99 in respect of allotment of flat no.44-S, SFS Cat.II (IInd floor) Sector 8 Jasola, allotted in the name of Shri Gautam Dhar on the basis of forged documents.
ARTICLE-II Shri Pawan Kumar, UDC was responsible for putting up the case for revision of cost and refund of Rs.2,22,263/- to Housing Accounts wing on the basis of forged application dated 28.10.99 to facilitate undue refund thereby causing loss to the Authority.
By his above act Shri Pawan Kumar, UDC exhibited lack of absolute devotion to duty, lack of absolute integrity and acted in a manner unbecoming a government servant thereby contravened Rule 4 1 (i)(ii) & (iii) of DDA conduct Disciplinary appeal Regulation 1999 as made applicable to the employees of the authority.
10. On a perusal of the evidence adduced in the course of the inquiry, the inquiring authority exonerated the applicant of the charge under Article-I. However, the applicant was indicted on the charge under Article-II.
11. The disciplinary authority recorded a disagreement note, afforded an opportunity of a hearing to the applicant in the context of disagreement note aforementioned, and negatived the resistance offered by the applicant. The proceedings culminated in the impugned order dated 28.08.2008 (Annexure A/1), vide which the penalty of reduction of pay by two stages in the time scale of pay for a period of two years was imposed upon him. It was further ordered that the applicant will not earn the increment of his pay during the period of reduction and that After the expiry of the period of penalty, reduction will have the effect of postponing his future increment of pay.
12. Lady luck did not favour the applicant even in the disposal of the appeal which came to be negatived by the competent authority on 27.02.2009 (Annexure A/2).
13. Applicant applied for invalidation of his indictment at the hands of the disciplinary authority and also the imposition of the impugned penalty by raising a pure and simple plea that he had been made a scapegoat; while his seniors had been allowed to get away with impunity in spite of the fact that they were equally bound to have checked up the relevant facts on the basis of record.
14. The respondents reiterated the validity of the inquiry proceedings and also orders passed by the disciplinary authority and the appellate authority thereafter.
15. It was averred that the applicant, being the custodian of the management file, was charged with the responsibility of verifying the correctness of the facts averred by the allottee and to make a report. It was also averred that the apparent variation of signatures of the allottee on the application for refund and other record has been duly noticed by the inquiring authority in the course of the inquiry report.
16. The learned counsel appearing on behalf of the applicant raised the following three items of grievances in support of the plea for invalidation of impugned orders.
(1) Since there is no dispute that the applicant was not accountable for whatever may have happened during the pre 17.09.1999, his indictment for whatever may have happened during the period thereafter is illogical.
(2) In view of the observation made by the disciplinary authority in the impugned order itself, the officers higher in hierarchy to the applicant had also not acted diligently, there was no justification for imposition of the entire responsibility on the applicant particularly when there is not even an averment that departmental proceedings had been initiated against the senior officers aforementioned.
(3) The only responsibility of the applicant, as UDC, was to present the file to the immediate senior and he was not charged with the responsibility of ascertainment of facts nor was he obliged to compare the signatures of the allottee either with the registration record or with those appearing on refund plea.
17. We have not been able to persuade ourselves to find any force in the pleas aforementioned on behalf of the applicant. The reasons therefor are as under.
18. There is ample material obtaining on the file, including the finding of fact recorded by the inquiring authority and appearing at running page 33 of the paper book, that it was the applicant who was the custodian of the relevant file. (The management file was in the custody of Shri Pawan Kumar and if he had turned a few pages backward, he would have immediately noted and detected the marked difference in the two sets of signature of the allottee and he would have brought out this fact in his scrutiny note.).
19. In an earlier part of that very para, the inquiring authority had also made the following observations on point of fact:
The Dealing Assistant was required to examine whether the allottee had really deposited the demanded amount under protest or it was only an afterthought on his part. His note shows that Sh. Pawan Kumar had not examined this aspect. It means that he had routinely disposed of the application which had financial implications. The second issue which needed to be examined was whether the application for refund had really been submitted by the allottee, or by someone else posing as Gautam Dhar. A look at this document shows that the signature of Shri Gautam Dhar on application (p-12) is completely different from his signature in the registration record viz. P-1. There is absolutely no resemblance between the two signatures
20. It is plainly illogical on the part of the applicant to urge that the only job of dealing hand would be to (manually) present the file along with the relevant request before the higher authority. By the very nature of things, it is the dealing hand, who would be in possession of the entire documentation concerning a such like allotment. As correctly observed by the inquiring authority, the applicant just did not care to turn a few pages backward. If he had indeed done so, it would have come to his notice that the allottee had already applied for cancellation and also the refund of the registration money and that a plea raised by him for restoration of the allotment had already been negatived by the competent authority. If the applicant had exhibited even the slightest normal sense of responsibility, name of the allottee just could not have been included in the check list dated 12.09.1998. Even prior thereto, normal vigilance on the part of the applicant would have disabled the allottee from depositing four installments
21. Here, thus, was a case wherein the allottee had not only applied for the cancellation of allotment but had also filed a plea for refund of the registration money. It is also apparent from the record that the plea raised by the allottee for restoration of his flat had been negatived by the competent authority, vide communications dated 06.06.1996, 24.01.1997 and 17.03.1997. Since the applicant herein was custodian of the management file, the onus lay upon him to indicate the circumstances under which the file (which had been forwarded to the Finance Branch for refund of registration money) came to be withdrawn from that Branch. Further, it is not that the allottee would have gone to the counter and deposited the four installments on 20.05.1996, 15.11.1996 and 27.12.1996 just like that. How could an allottee, whose plea for cancellation of allotment had been allowed and whose further plea for restoration of the flat too had been negatived, be allowed to deposit four instalments towards the purchase price of the initially allotted flat defies logical comprehension. The only inference deducible therefrom is that there was culpable neglect on the part of the applicant in processing the papers in the context. It is only on account of culpable refrain/inaction on his part that the name of the applicant came to be included in the check list dated 12.06.1998 for the allotment of a specific flat. Things did not conclude there itself. After the inclusion of the name of the applicant in the check list, his name also came to be included in the draw held on 29/30.06.1998 and a specific flat, in fact, came to be allotted to him. Furthermore, a demand letter for the deposit of the 5th instalment, came to be issued and the amount in the context came to be actually deposited on 26.12.1998. The processing of all these papers was very much within the processual jurisdictional domain of the applicant herein and there is no way he can appeal for complete exoneration just because he started handling that seat w.e.f. 17.09.1999.
22. In sofar as the disbursement of the amount of Rs.2,22,663/- is concerned, there also the applicant is not on a firmer footing when he assails the validity of his indictment on that count too. The inquiring authority has recorded detailed reasoning in support of the finding that even a bare glance at the relevant papers would have convinced the applicant that it is all a fake affair.
23. The plea that the applicant cannot be allowed to be made a scapegoat is also denuded of merit. If someone accountable for the misconduct has been let off or not yet proceeded against, it would not entitle the applicant to plead for outright exoneration.
24. On point of fact otherwise, it is apparent from the material obtaining on the record and also the observations made by none else or other than the disciplinary authority that those occupying places higher to the applicant had also not been diligent and that their role is not laudatory.
25. The reliance, placed by the learned counsel for the applicant upon Anil Kumar Vs. DDA (CW No.1877/1991), Lalit Mohan Vs. DDA and Ors. (OA 1196/2008) and Roop Singh Negi Vs. Punjab National Bank (2009 (2) SCC 570), is plainly misconceived. The view obtained by the Court in those cases does not enable the sustenance of the point of view advocated on behalf of the applicant for reasons of dissimilarity of facts inter se. All that was held in those cases was that the disciplinary authority must indicate reasoning in support of the disagreement note. In the present case, the disciplinary authority has recorded detailed reasoning which impelled it to differ from the relevant finding recorded by the inquiring authority.
26. We cannot help observing that certain officials other than the applicant, too, do not appear to have conducted themselves with expected competence. Their casualness and `what do I care attitude is not in accord with the principles underlying the spirit of public service and it does not augur well for the functioning of the bureaucracy which (functioning) is, by the very nature of things, impersonal in character. Evil (be it in the form of corruption in the manner of direct acceptance of illegal gratification or any other facet) gets impetus from the feeling that the wrong doer can get away with either impunity or the proceedings can be got extended to an inordinate length, enabling the delinquent to successfully raise a plea for compassion or a diluted penalty. The interests of justice get demeaned in either eventuality. Public funds get devoured without even a demur on the part of those accountable for efficacious functional character of the organization.
27. No other point was argued.
28. In the light of foregoing discussion, we have no hesitation in holding that the O.A. deserves to be rejected and it is so ordered accordingly.
29. The parties shall bear their own costs in the circumstances of the case.
(Shailendra Pandey) (S.D. Anand) Member (A) Member (J) `SRD