Central Administrative Tribunal - Delhi
Rakesh Kumar Jain vs Municipal Corporation Of Delhi on 7 December, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 590/2009 New Delhi, this the 7th day of December, 2009 HONBLE SHRI L.K. JOSHI, VICE CHAIRMAN (A) HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J) Rakesh Kumar Jain Son of late Sh. P.S.Jain r/o E-2/6, Krishna Nagar Delhi-110051. Applicant (By Advocate: Ms. Amita Gupta) Versus Municipal Corporation of Delhi Through its Commissioner Kashmere Gate, New Delhi. Respondents (By Advocate: Sh. Nitin Kumar for Sh. Umesh Joshi) ORDER
Mr. L.K.Joshi, Vice Chairman (A) This is a bizarre case in which the Applicant working as Junior Engineer (JE) at the relevant time under the Respondent and also holding the current charge of Assistant Engineer (AE) had been issued two identical memoranda of charges in his capacity as JE and AE, which were inquired into by two different inquiry officers, who reached different conclusions and the disciplinary authority passed an order of punishment after clubbing the two inquiry reports. The punishment of reduction of pay in the time scale by three stages for a period of three years with cumulative effect was inflicted by order dated 30.07.2007. The appeal preferred against the aforesaid order was rejected by order of the appellate authority dated 20.12.2007. Both these orders are impugned in this OA.
2. The following charge was framed against the Applicant qua JE:
1. He in connivance with the owners/builders allowed them to carry out and complete the unauthorized construction in properties indicated in the Annexure A forming part of the Statement of allegation and failed to stop/demolish the same at its initial/ongoing stage.
2. He also failed to book the unauthorized construction carried out in the properties for taking action under section 343/344 of DMC Act.
3. He failed to initiate action for sealing the unauthorized construction under section 345-A of DMC Act.
4. He also failed to initiate action for prosecution against the owner/builder under section 332/461 or complaint under section 466-A DMC Act.
5. He also failed to initiate action for disconnection of electricity and water supply to present the unauthorized construction in the properties.
He, thereby, contravened Rule 3 (I) (i) (ii) & (iii) of CCS (Conduct) Rules, 1964 as made applicable to the employees of MCD. Identical charge was framed against the Applicant qua AE, except that another charge number 6 was added, which read thus:
6. He also failed to exercise proper supervision and control over the functioning of his subordinates who did not take proper and timely action against the aforesaid properties. The two memoranda by which the charges were communicated were issued on 22.08.2006 and 30.08.2006 respectively. The Applicant made representations on 7.09.2006, 4.10.2006 and 26.10.2006 requesting for clubbing to two charge sheets. No heed was paid to his request.
3. Two inquiry officers were appointed, one for each of the two charge sheets issued to the Applicant as J.E. and A.E. The charge sheet as JE was inquired into by Deputy Director of Inquiries-I (DDOI). The other charge sheet as A.E. was inquired into by Director of Inquiries (DOI). The reports were given by the respective inquiry officers on 14.12.2006 and 19.03.2007 respectively. The conclusions arrived at by the respective inquiry officer with respect to each charge is summed up below:
Charges D.D.O.I. D.O.I. Charge No.1 Partly proved Proved Charge No.2 Not proved Not proved Charge No.3 Partly proved Proved Charge No.4 Not proved Proved Charge No.5 Not proved Proved Charge No.6 --- Not proved
4. After the inquiry reports were submitted, these two were clubbed together. The disciplinary authority after considering the Applicants replies to the inquiry reports and representation against show cause memorandum regarding tentatively proposed penalty, passed the following order:
I have carefully gone through the contents of the Inquiry Report, documents submitted by the CO and statements made by the prosecution during enquiry as well as witnesses depose thereat. Having considered the Inquiry Report, the reply of the CO, it has been authenticated that all the charges have been proved.
So, in view of all the material fact placed before me, I hereby confirm no inflict the penalty of reduction in pay in time scale by three stages for a period of three years with cumulative effect. The Applicant preferred an appeal against the order of the disciplinary authority, which was rejected by following observations:
Now, Commissioner/MCD in the capacity of Appellate Authority after thoroughly going through the article of charges, the Inquiry Report, order dated 16.07.2007 of the Disciplinary Authority, submissions made by Shri Rakesh Kumar Jain, AE during the course of personal hearing and other facts and circumstances of the case in its entirely has uphold the order dated 16.07.2007 of the Disciplinary Authority thereby inflicting the penalty of reduction of pay in time scale by three stages for a period of three years with cumulative effct upon Shri Rakesh Kumar Jain, AE and disposed of the appeal accordingly, vide his orders dated 06.12.2007.
5. The learned counsel for the Applicant has taken serious exception to the issuance of two charge sheets on the same grounds and appointing two different inquiry officers to inquire into the same charges. The inquiry officers, as would be seen from the table in the preceding paragraph 3, have come to different conclusion. The disciplinary authority has committed patent error by clubbing the inquiry reports and then passing a totally non-speaking order imposing punishment on the Applicant, contends the learned counsel.
6. The learned counsel for the Respondents sees nothing unusual in the procedure and states that as long as the inquiries have been held as per procedure, the Tribunal should not interfere in the matter. Reliance has been placed on the judgements of the Honourable Delhi High Court in Sh. D.K.Gupta Vs. M.C.D. and ors., CWP number 3623/2008 decided on 9.05.2008 and S.M.R.Zaidi V. Municipal Corporation of Delhi and Another, CWP number 5565/2007.
7. We have perused the judgements of Honourable Delhi High Court and are of considered opinion that these are totally distinguishable on facts. The issue before us is regarding the issuance of two charge sheets for the same cause of action, appointing two different inquiry officers and then clubbing the two contradictory reports and passing order of punishment on the basis of these reports. The judgements cited are cases of departmental inquiries, which do not suffer from the aberration of two charge sheets being inquired into by two different inquiry officers and then punishment being inflicted by clubbing the two reports. These judgements would not advance the cause of the Respondent in any way. We have no hesitation in holding the Respondent has committed the gravest error of procedure by following the above mentioned procedure. Gravity of the irregular procedure has been further compounded by the fact that the two inquiry officers have given different reports, which are contradictory. Orders of the inquiry and appellate authorities are bald and non-speaking.
8. Since the OA would succeed only on this ground, we are not considering the merits of the case.
9. The OA is allowed. The impugned orders of the appellate and disciplinary authorities are quashed and set aside. The Respondent may, however, proceed afresh against the Applicant, if so advised, by issuing a fresh charge sheet. The disciplinary inquiry shall be completed within four months of receipt of this order. We are not passing any order regarding consequential benefits as these shall abide by the final order passed in the fresh departmental proceedings, if instituted. No costs.
(Dr. Dharam Paul Sharma ) ( L.K. JOSHI )
Member (J) Vice Chairman (A)
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