Central Administrative Tribunal - Delhi
Shri Krishan Devnani vs Municipal Corporation Of Delhi on 8 February, 2012
CENTRAL ADMINISTRTATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.2062/2011 Order Reserved on 06.02.2912 Order Pronounced on 08.02.2012 Coram: HONBLE DR. VEENA CHHOTRAY, MEMBER (A) HONBLE MR. A.K. BHARDWAJ, MEMBER (J) Shri Krishan Devnani, S/o Shri Meghraj Devnani, Aged about 50 years, Presently posted as Assistant Engineer (Civil) in MCD, R/o B-2/18-C, Keshav Puram, Delhi Applicant (By Advocate: Nilansh Gaur) Versus Municipal Corporation of Delhi, Through its Commissioner, MCD Office Complex, Rouse Avenue, New Delhi ...Respondents (By Advocate: Shri R.K. Jain) O R D E R
By Dr. Veena Chhotray:
The Applicant, an Assistant Engineer under the MCD, through this OA is seeking relief at the interlocutory stage. A disciplinary proceeding against the applicant has been initiated by the Charge Sheet dated 26.3.2010 and the additional Charge Sheet dated 9.5.2010, for the charges relating to unauthorized construction. In pursuance of the Tribunals directions vide its order dated 23.11.2010 in the OA 390/2010, after consideration of the applicants representations dated 9.4.2010 and 24.5.2010 (Annex A/6 and A/8), the Respondents have passed a speaking order dated 18.4.2011. By this Order, holding that prima-facie the charges levelled against the applicant hold substance, a view has been taken that it would not be appropriate to drop the present disciplinary case at this stage. Accordingly, it has been decided to continue the inquiry proceedings.
By the present OA, the applicant has prayed for setting aside the impugned order dated 18.4.2011 along with the charge sheets in question.
2. Vide the charge sheet dated 26.3.2010, the following Statement of Charge was framed against the applicant:
STATEMENT OF CHARGES FRAMED AGAINST SHRI KRISHAN DEVNANI S/O SHRI MEGHRAJ, ASSTT. ENGINEER, BLDG. DEPTT., CIVIL LINE ZONE, MCD.
Shri Krishan Devnani was working as Asstt. Engineer in Bldg. Deptt., C.L. Zone remained incharge of the area of Kashmere Gate w.e.f. 7.8.2007 to 30.10.2007. He failed to maintain absolute integrity, devotion to duty and committed gross misconduct on the following counts:
1. He failed to get stopped/demolished the unauthorized construction carried out in property No.1300-1318, R.B. Sultan Singh Building, Kashmere Gate and booked on 24.6.2008 at its initial ongoing stage.
2. He also failed to timely get booked the unauthorised construction for taking action u/s 343/344 of DMC Act.
3. He also failed to get initiated action for sealing the unauthorized construction u/s 345-A and for prosecution of the owner/ builder u/s 332 /461 or 466-A of DMC Act.
4. He also failed to take action against the owner/builder for misuse of the property during his working tenure.
5. He also failed to get recovered the misuse charges from the owner/builder during his working tenure thereby causing huge financial loss to MCD.
6. He also failed to exercise proper supervision and control over the functioning of his subordinate staff who did not take proper and timely action against the unauthorized construction.
He, thereby, contravened Rule 3 (I) (i) (ii) (iii) of CCS (Conduct) Rules, 1964 as made applicable to the employees of MCD. 2.1 In continuation, an additional charge sheet dated 19.5.2010 was issued with the following additional Statement of Charge:-
ADDITIONAL STATEMENT OF CHARGE FRAMED AGAINST SHRI KISHAN DEVNANI S/O SHRI MEGHRAJ, ASSTT. ENGINEER, BLDG. DEPTT., CIVIL LINE ZONE, MCD.
Shri Kishan Devnani while working as Asstt. Engineer in Bldg. Deptt. C.L. Zone remained incharge of the area of Kashmere Gate w.e.f. 7.8.2007 to 30.10.2007. He failed to maintain absolute integrity, devotion to duty and committed gross misconduct in as much as he furnished wrong status/action taken report dated 9.10.2006 as a result a wrong affidavit was filed by Shri Sunil Kumar, SE, C.L. Zone before the Honble High Court of Delhi in the case titled Amrik Singh Lyallpuri vs MCD & Ors for which he is responsible.
He, thereby, contravened Rule 3 (I) (i) (ii) (iii) of CCS (Conduct) Rules, 1964 as made applicable to the employees of MCD.
3. In support of the claims in the OA, Shri Nilansh Gaur, the learned counsel for the applicant would contend that the charge sheets were in contravention of the instructions dated 24.10.2003 by the Commissioner, MCD (Annex. A/4). As per these instructions while taking action against delinquent officials in matters of unauthorized constructions, where the AEs had remained In-charge of the concerned area upto a period of 9 months, a warning was to be issued. However, the tenure of the applicant to which these charge sheets pertain was less than three months i.e. 7.8.2007 to 30.10.2007; and therefore the initiation of disciplinary proceedings against him was not in accordance with these instructions (Para 4.2/OA).
The main thrust of the learned counsel would be to establish that no misconduct as such was made out even prima-facie in his case. For this a number of arguments would be advanced. It would be submitted that no unauthorized construction had taken place in the property in question during the tenure of the applicant. Besides, as per the provisions of the Delhi Laws (Special Provisions) Act, 2006, action against unauthorized constructions prior to May 2006 had been prohibited. In respect of the charge of non-levying of misuser charges, this would be averred to be without any basis, as the matter of Special Area Regulations had been subjudice in the Apex Court and the MCD had taken a particular view on the subject. The recommendations of the Nodal Steering Committee dated 26.8.2009, in compliance to the directions of Delhi High Court in the matter of complaints of no action being taken regarding unauthorized constructions on the same property (as is the subject of the impugned charge sheets), would be referred in this context (Annex A/3).
As regards the additional charge of submitting a wrong status report on the basis of which a wrong affidavit got filed by the Executive Engineer in the High Court, the learned counsel would submit that according to the allegations it was a status report of 8.3.2006, which was prior to the tenure of the applicant. In this context, the documents at page 54 and information received under the RTI vide MCD communication No.1894/PA/SE/CLZ/2011 dated 25.1.1012 would also be referred to.
Further it would be argued that on the basis of certain file notings that the CVO had recommended dropping the proceeding against the applicant. However, the same had not been accepted by the disciplinary authority.
To reinforce the claims in the OA, the applicants learned counsel would also produce before us a copy of the Order dated 15.12.2011 in the OA No.999/2011 (Shri Avdhesh Kumar Sharma vs MCD & Ors).
4. In their Counter Affidavit (para-wise reply 4.2) the Respondents have submitted about the 24.10.2003 instructions being the personal opinions of the then Commissioner, MCD and no general policy having been framed in that regard. Shri Ravi Kant Jain, the learned counsel for the respondents would add that in any case they were at the most in the nature of guidelines and not mandatory at all.
The applicants contention of no action being required to take under the Special Provisions Act would be rebutted with the submission that since the present case was one of ongoing unauthorized constructions, as per Section 4 (a) of The Delhi Laws (Special Provisions) Act, 2006, the exemption from enforcement of existing laws was not applicable in such cases.
The learned counsel would also submit that as was clear from the speaking order passed by the respondents, a prima-facie misconduct was found against the applicant. The contentions now being raised on behalf of the applicant were in the nature of defences and should appropriately be raised before the Inquiry Officer, Disciplinary Authority and the Appellate Authority.
5. The settled law on the subject is that in the matter of disciplinary proceedings, prayer for a relief at the interlocutory stage is ordinarily not entertained in judicial review. This is based on the principle that taking of disciplinary action in accordance with the prescribed rules and procedures is within the legitimate domain of the administrative authorities. In the event of the charges being denied by the Charged Official, the issuance of a charge sheet is followed by a regular enquiry with the participation of the concerned official. Provision of adequate opportunity to project his defence, and conduct of enquiry in accordance with the principles of natural justice is the sine qua non of the disciplinary enquiry, which has been held to be quasi judicial in nature. Even after the submission of the enquiry report, before passing of a final order by the disciplinary authority, an opportunity for defence is granted to the CO. Another safeguard is at the level of the Appellate Authority.
In this background, since at the time of the issuance of the charge sheet no final decision has been taken regarding the proving of the alleged charges nor any penalty imposed, no cause accrues to the concerned official for seeking a judicial intervention. Only in extremely rare cases, like where it can be proved that the charge sheet has been issued by an incompetent authority, is patently contrary to law or prima-facie does not reveal any misconduct; the prayer for quashing the charge sheet is entertained in judicial review.
6. The issue involved in the OA 999/2011, relied upon, pertained to the charge sheet being vitiated by vagueness of charges. Hence the same would not be applicable here. Coming to the present case, we note that it is the second round of litigation. On the directions of the Tribunal, the respondent have already passed a detailed and speaking order considering most of the submissions made by the applicant in his representations dated 9.4.2010 and 24.5.2010. A perusal of these representations (Annex A/6 and A/8) reveals that to prove his contention of the case being of no misconduct and the charge sheets having been issued contrary to law, the applicant had raised certain factual contentions (many of them covering a common ground with the pleas being raised now).
6.1 Of the submissions being raised now, the one that seems to be prominently highlighted is regarding the additional charge of a wrong status note having been submitted by the applicant.
Even at the cost of repetition, the additional charge as per the charge sheet dated 19.5.2010 is reproduced as here under:
ADDITIONAL STATEMENT OF CHARGE FRAMED AGAINST SHRI KISHAN DEVNANI S/O SHRI MEGHRAJ, ASSTT. ENGINEER, BLDG. DEPTT., CIVIL LINE ZONE, MCD.
Shri Kishan Devnani while working as Asstt. Engineer in Bldg. Deptt. C.L. Zone remained incharge of the area of Kashmere Gate w.e.f. 7.8.2007 to 30.10.2007. He failed to maintain absolute integrity, devotion to duty and committed gross misconduct in as much as he furnished wrong status/action taken report dated 9.10.2006 as a result a wrong affidavit was filed by Shri Sunil Kumar, SE, C.L. Zone before the Honble High Court of Delhi in the case titled Amrik Singh Lyallpuri vs MCD & Ors for which he is responsible.
He, thereby, contravened Rule 3 (I) (i) (ii) (iii) of CCS (Conduct) Rules, 1964 as made applicable to the employees of MCD. The impugned order deals with this aspect as below:
Whereas Shri Krishan Devnani A.E. was required to furnish factual Action Taken Report so that correct affidavit could be filed before the Honble High Court of Delhi in the matter of A.S. Layallpuri vs MCD & Ors. However in his report dated 09.10.2006 Shri Devnani has mentioned that the existing structure in the property in question was authorized portion i.e. coverage as per Sanctioned Building Plan & Completion Certificate except their usage, as such he had hidden the fact regarding the remaining unauthorized construction existed in the property in the shape of coverage of passage which was later detected by another Asstt. Engineer for which show cause notice was also issued to owner/occupier to remove the excess coverage. As such Shri Krishan Devnani A.E. had furnished wrong/misleading report as a result of which wrong affidavit was filed by the department before the Honble High Court of Delhi. xxxx"
Considering the tenure of the applicant as per the charge sheets w.e.f. 7.8.2007 to 30.10.2007 evidently, there is a need for reconsideration.
6.2 Even the pleas like the view taken by the Commissioner, MCD in the year 2003 about certain guidelines to ensure uniformity of action in cases of alleged delinquency pertaining to unauthorized constructions or the Chief Vigilance Officers clear recommendations against initiation of a disciplinary proceeding against the applicant deserve reconsideration. This would virtually result in passing a revised order considering the pleas being raised in the instant OA, particularly the aspects highlighted by us.
7. To conclude, we do find the impugned order dated 18.4.2011 necessitating a re-look. Resultantly, the OA is disposed in terms of the following directions:-
(a) The impugned order dated 18.4.2011 in its present form is quashed and set aside.
(b) The respondents are directed to pass a revised speaking and reasoned order considering the contentions now being raised in the instant OA, in addition to those in the representations dated 9.4.2010 and 24.5.2010. Care would be taken to the specific aspects highlighted in para 6 of our order.
(c) The revised order is to be passed within a period of two months from the date of receipt of a copy of this order. Till that date further action in the disciplinary proceeding would be kept in abeyance.
There shall be no order as to costs.
(A.K. Bhardwaj) (Dr. Veena Chhotray)
Member (J) Member (A)
/pkr/s