Central Administrative Tribunal - Delhi
Bhanwar Singh vs Govt. Of Nct Of Delhi & Ors. Through on 17 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 1363/2012 Order Reserved on 24.09.2013. Order pronounced on:17.12.2013 HONBLE MR. V. AJAY KUMAR, MEMBER (J) HONBLE MR. V. N. GAUR, MEMBER (A) Bhanwar Singh, S/o Sh. Kundan Singh, R/o 669/39-A, Mohlard Band Extn., Badarpur, Delhi. -Applicant (By Advocate : Shri M.K. Bhardwaj) Versus Govt. of NCT of Delhi & Ors. Through: 1. The Chief Secretary, Govt. of NCT of Delhi, I.P. Estate, New Delhi. 2. The Divisional Commissioner, Govt. of NCT of Delhi, 5, Shamnath Marg, New Delhi. 3. The Deputy Commissioner (South), M.B. Road, Saket, New Delhi. -Respondents (By Advocate : Shri Vijay Pandita) O R D E R Mr. V.N. Gaur, Member (A):
The present OA has been filed by the applicant with the following prayers:
(i) to quash and set aside the impugned charge memo dated 21.03.2002 and direct the respondents to release all consequential benefits to the applicant i.e. 1st and 2nd financial upgradation under ACP Scheme dated 09.08.1999 along with arrears of pay and interest at the rate of 24% as well as the promotion to the higher post at par with his juniors.
(ii) To declare the action of the respondents in not releasing the annual increments since 2000 as illegal, arbitrary and unconstitutional and issue directions for releasing the said increments since 2000 along with 24% penal interest and order for holding disciplinary action against the concern officers responsible for such illegal action.
2. The applicant was posted as Patwari in Sub-Division Kalkaji. An application for mutation of land bearing Khasra no.224(6-19) made by Shri Ramvir Singh enclosing power of attorney and sale deed, was marked by the Tehsildar, Kalkaji on 02.07.1999 to the Halqa Patwari (applicant) and a report on the same date was submitted by the applicant. Based on this report the Naib Tehsildar after hearing the parties on 05.07.1999 passed an order for mutation of 6 bighas and 19 biswa of land in Khasra no.224 in favour of Shri Ramvir Singh. Later on, it appeared that the land in question related to Sarkar Daulatmadar in the revenue record and it was in possession of the Land and Housing department. The aforesaid mutation was therefore cancelled and Shri Danial Masih, Naib Tehsildar, Shri Mahesh Chand Gupta, Kanungo and Shri Dharam Singh, Patwari (applicant) were placed under suspension vide orders dated 31.01.2000, 03.02.2000 and 03.07.2000. The suspension orders of Shri Danial Masih, Naib Tehsildar and Shri Mahesh Chand Gupta, Kanungo were revoked subsequently and the inquiry proceedings were also dropped against these two officers vide orders dated 29.02.2000 and 29.01.2002. A charge-sheet was issued to the applicant on 21.03.2002 under Rule 14 of CCS (CCA) Rules, 1965 and Shri A.K. Singh, SDM, Kalkaji and Shri Lal Chand, Tehsildar were appointed as Inquiry Officer (IO) and Presenting Officer (PO) respectively vide orders dated 05.06.2003. Subsequently, another officer namely Shri R.P. Sharma was appointed as IO vide order dated 07.04.2007 and following his transfer Shri R.D. Sharma, UTCS (retired) was appointed as IO vide order dated 18.12.2007. The inquiry is still in progress. However, applicant had been denied increments since the year 2000 and he has also not been given 1st and 2nd financial upgradations under the ACP Scheme.
3. This Tribunal vide order dated 25.04.2012 directed as an interim relief that the applicant may make representation to the respondents, who shall decide the said representation immediately, but in any case within a period of one month from the date of receipt of that order. The applicant thereafter filed CP-746/2012 in this OA and during the course of hearing on 15.01.2013 the respondents filed the reply stating that they had already issued necessary orders to release the increments to the applicant and the actual payment of withheld increments will be made to the applicant within next two weeks. In view of this position, the CP was closed by this Tribunal.
4. The applicant has challenged the charge-sheet dated 21.03.2002 mainly on the following grounds:
(i) The applicant was not the authorized officer for approving mutation of the land in question. This authority lies with the Naib Tehsildar who received the report through Kanungo. Thus, there were three officers who were involved in the process but the respondents while dropping the charges against the Naib Tehsildar and Kanungo, are trying to fix the entire responsibility on the applicant.
(ii) The charge-sheet was issued to the applicant for an act done in the year 1999 and the enquiry has not yet been concluded. The applicant has relied on the Honble Apex Court decision in P.V. Mahadevan v. M.D. T.N. Housing Board, JT 2005 (7) SC 417 and submitted that the delay itself has vitiated the charge-sheet. The applicant has also relied on the Honble Apex Court decision in Trilok Nath v. Union of India and others, 1967 SLR 759 (SC), M.V. Bijlani v. Union of India, (2006) 5 SCC 88 and State of M.P. v. Bani Singh, AIR 1990 SC 1308, where the Honble Apex Court has ruled that the delay vitiates the proceedings.
(iii) The applicant had represented to the respondents, alleging bias on the part of the IO, even then the respondents did not change the IO.
(iv) The applicant has not been given copies of the listed documents for defending himself.
5. Per contra, it has been submitted by the respondents that the decision taken by the Naib Tehsildar was on the basis of the report submitted by the applicant who was primarily responsible for verifying from the revenue record the status of the land in question. The land in the revenue estate of village Bahapur was already acquired which was a well known fact and it was the duty of the Halqa Patwari to consult/check the award/acquisition register before submitting the report for mutation but the same was not done by the applicant. According to the respondents the applicant never submitted any representation regarding delay in conducting the disciplinary proceedings till 01.06.2009 when he submitted a representation for change of IO. Respondent no.3 changed the IO vide order dated 18.12.2009 and another officer was appointed as PO vide order dated 18.12.2009. Due to the transfer of the latter, another PO was appointed on 13.01.2010. The applicant had again written a number of letters/representations regarding the change of IO making allegations against the IO in the year 2011. However, the respondents did not get the comments of the Defence Assistant of the applicant or PO to whom these representations were sent for comments and, therefore, no action has been taken in this regard.
6. Referring to the cases cited by the learned counsel for the applicant on the issue of delay, the learned counsel for the respondents stated that the facts of this case are different from the cases under consideration in those judgments. He particularly referred to the fact that in those cases there were delays in initiating the disciplinary proceedings like in the present case. The applicant has already been given the charge memo and the inquiry is under progress. It is true that there has been delay in completing the enquiry but the same has been due to certain administrative reasons like transfer of officers etc. and also because of the representations submitted by the applicant from time to time regarding change of IO. He also referred to the facts, as brought out in the counter-reply that during the same period there was another disciplinary case initiated against the applicant and he was placed under suspension w.e.f. 08.04.2003 and the disciplinary proceedings started vide order dated 02.06.2003 in connection with processing case of mutation in respect of land bearing Khasra no.368 measuring 05 bighas 19 biswa in village Masjid Moth belonging to Central Government in favour of a private person. That disciplinary proceeding was, however, dropped later vide order dated 25.04.2008.
7. With regard to the allegation of the applicant of non-availability of documents for defending his case, the learned counsel referred to a copy of the order-sheet dated 06.07.2011 (Annexure A-12 to the OA) wherein the DA for the charged officer had requested for going ahead with the examination of listed witnesses and the IO had given time up to 17.07.2011 to the PO to supply the documents to the CO.
8. With regard to the delay, the respondents in their counter-reply have stated that the facts of this case are different from the facts of the cases in the citation given by the applicant in the OA and therefore it will not apply to this case. It has also been stated that as can be seen in the order-sheet dated 06.07.2011 (Annexure-12 to the OA), complaining of delay in getting some documents, the DA for the charged officer had requested for going ahead with the examination of departmental witnesses. However, the IO granted time upto 17.07.2011 for production of the said document. The counter reply filed by the respondent (GNCT of Delhi) makes a statement to the effect that the answering respondent cannot comment on the reasons for not granting annual increments since the year 2000 or allowing ACP to the applicant as the present records are not available with the answering respondent, i.e., respondent no.3, as the applicant is presently posted in the Land and Building department of the GNCTD.
9. We have heard the learned counsels for the applicant and respondents and perused the materials brought on record. The main prayer of the applicant is for quashing the charge-sheet dated 21.03.2002 and release of annual increments and financial upgradation under ACP Scheme of 1999 alongwith arrears with penal interest @24% as well as promotion to the higher posts at par with his juniors. The issue relating to grant of annual increment has become infructuous as the amounts had already been paid to the applicant. Though the applicant has in the rejoinder stated that the amount paid to the applicant is not as per correct calculation, no specifics have been given in support of this contention. With regard to the interest it is noted that this Tribunal in its order dated 25.04.2012 had directed that In case, there is no impediment in releasing the increments, the respondents shall also release the increments within the aforesaid period. We, therefore, do not find any force in the demand for grant of interest on the arrears of increments.
10. We will, therefore, first address to the question whether the charge-sheet which is coming in the way of granting ACPs to the applicant, is sustainable in the given circumstances and in view of the grounds taken by the applicant.
11. The facts on record show that the alleged wrong report in connection with the mutation of land bearing Khasra no. 224 was given by the applicant on 02.07.1999 and he was placed under suspension along with two others on 03.07.2000. The charge sheet was issued to him on 21.03.2002. Thus till the stage of issuing charge sheet there was no inordinate delay in the proceedings. However, subsequently the enquiry has not progressed at the desired pace. The learned counsel of the respondents has brought out that there was another disciplinary proceedings against the applicant during that period under which the applicant was placed under suspension but the proceedings were dropped vide order dated 25.04.2008. It could also have some bearing on the progress of the inquiry against the applicant in the earlier proceedings. There is nothing on record to show the progress of the disciplinary proceedings from 2008 onwards. Both the applicant and respondents are silent on this issue. The applicant had submitted a number of representations (copies enclosed to the OA) from 2006 onwards asking for release of increments and ACPs but not once complaining about the delay in the conducting inquiry. He also made a request for change of IO in 2009 leading to the appointment of another IO on 18.12.2009. Through his letters dated 28.03.2011 and 31.03.2011 the applicant also asked for a stay on the inquiry proceedings till his request for change of IO was disposed of. Raising the issue of jurisdiction he also requested to transfer the matter to the Land and Building department under whose disciplinary control he is serving now. It was followed by a few more representations on the same lines by the applicant to the respondents.
12. Here we would also like to comment on the way counter-affidavit has been filed by the respondents. According to the memo of parties there are three respondents, namely, the Chief Secretary, Govt. of NCT of Delhi, I.P. Estate, New Delhi., The Divisional Commissioner, Govt. of NCT of Delhi, 5, Shamnath Marg, New Delhi and the Deputy Commissioner (South), M.B. Road, Saket, New Delhi. The counter reply has been field as on behalf of the respondents (GNCT). It is presumed that it is a common reply on behalf of all the three respondents. However, in several paragraphs of the reply the answering respondent, i.e., SDM (HQ)/HOO, office of Deputy Commissioner (South) M.B. Road, Saket, New Delhi states that as the applicant is working in the Land and Building Department the office of Deputy Commissioner, South District, has no authority to grant increments or to grant ACP or to even comment about the delay etc. as all the records are available only in the Land and Building department. Even with regard to the representations submitted by the applicant in compliance of the order dated 25.04.2011 passed by this Tribunal in OA-1363/12 the counter reply states that:
Sh. Bhanwar Singh, Patwari is presently working on the strength of Land & Building Department and the personal records of Sh. Bhanwar Singh, is not available in this office. The representation of Sh. Bhanwar Singh, Patwari was received in this office and the same was forwarded vide letter dated 21.06.2012 (Annexure R-6) to Administrative functionaries of Land & Building Department along with the copy of order dated 25/04/2012 and copy of O.A. in connection with taking action on the representation of Sh. Bhanwar Singh after going through the records available with them. Since, Sh. Bhanwar Singh, Patwari is working on the strength of Land & Building Department, at present this office i.e. Dy. Commissioenr (South) Distt. has no authority to grant of increment to official and if any Annual Increment is due to Sh. Bhanwar Singh then the same can be granted only by the Land & Building Deptt., Govt. of NCT of Delhi and not by the answering respondents. This is a strange way of filing joint counter reply on behalf of all the three respondents. It is expected that the answering respondent would consult the other two respondents while replying to various issues raised in the OA without making this type of plea.
13. We have considered the citations relied upon by the applicant and agree with the learned counsel for the respondents that the facts of this case are not similar to the facts of the cited judgments. Unlike in those cases, in this case the inquiry was started within a reasonable time and after that there has been delay for which it cannot be said that only one party is responsible and, therefore, we do not find it a fit case for intervention at this stage when the inquiry is under progress.
14. From the respondents side also to say that applicant never asked for expediting the inquiry is an absurd statement. It is the bounden duty of the Disciplinary Authority (DA) to ensure that the inquiry in any disciplinary proceedings is conducted expeditiously in accordance with the rules in the interest of justice to the employee as well as the organization. The DA cannot throw the responsibility on the employee in this manner.
15. The applicant has also raised other issues relating to disciplinary inquiry like he was not the decision making authority in mutation cases; non-supply of documents; complaint against IO and that the allegations against the applicant do not amount to misconduct. As these issues relate to and form part of the disciplinary proceedings, it is pre-mature for us to consider these grounds even before the inquiry has been concluded and the respondents have taken a view in the matter. Since the applicant is presently facing a disciplinary proceeding, he cannot also be considered as eligible for grant of financial upgradation under the ACP Scheme.
16. Taking into account these facts and circumstances, we do not find any merit in the OA. However, the respondents are directed to consider his representations regarding change of IO submitted in the year 2011 and take a decision by passing a speaking order in the matter within a month from the date of receipt of this order. It is further directed that the disciplinary proceedings against the applicant should also be concluded within three months from the date of passing the aforesaid speaking order with regard to change of IO. With these directions the OA is disposed off. No costs.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) San.