Central Administrative Tribunal - Delhi
Lalit Mohan vs Delhi Development Authroity Through ... on 31 August, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.1196/2008 M.A. NO.970/2008 This the 31st day of August, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Lalit Mohan, Internal Audit Cell, DDA, Vikas Sadan, New Delhi. Applicant ( By Ms. Sriparna Chatterjee, Advocate ) Versus Delhi Development Authroity through its Chairman, Vikas Sadan, INA, New Delhi-110023. Respondent ( By Shri Rajender Khatter, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Lalit Mohan, UDC with Delhi Development Authority, the applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 calling in question order dated 2.1.2007 imposing upon him penalty of reduction to lower stage in time scale of pay for a period of one year with cumulative effect, passed by Commissioner (Pers.), the disciplinary authority, as also order dated 29.5.2007 vide which his appeal was dismissed.
2. Brief facts of the case, as may require mention for disposing of the present Application reveal that vide memorandum dated 9.6.2005, the respondent Authority proposed to hold an enquiry against the applicant under regulation 25 of the DDA Conduct, Disciplinary and Appeal Regulations, 1999. Accompanying the memorandum is the statement of articles of charge framed against the applicant as Annexure-I, which reads as follows:
Shri Lalit Mohan, UDC while working in HAU-IX during the year 2000-2001 connived with some private persons and facilitated refund of an amount of Rs.2,64,920/- on account of interest without any request of Smt. A.Mathew, allottee of flat no.32, Sector A, Pkt. C, Vasant Kunj. The refund amount was subsequently withdrawn from the bank by the imposters by opening a joint saving account under the forged signatures of the allottee thereby causing financial loss to the tune of Rs.2,64,920/- to the Authority.
By his above act Shri Lalit Mohan, UDC exhibited lack of absolute devotion to duty, lack of absolute integrity and acted in a manner unbecoming of a Govt. Servant thereby contravened Rule 4(1)(i), (ii) and (iii) of DDA Conduct Disciplinary and Appeal Regulations 1999 as made applicable to the employees of the Authority. The enquiry officer vide his report dated 11.9.2006, after examining the evidence and facts and circumstances of the case, returned a positive finding that on account of payment of interest, the department had suffered no loss as the allottee had definitely deposited Rs.7,66,000/- in January, 1996 and the money having remained with the DDA, payment of interest thereon was justified, more so when the issue of double allotment, right or wrong, had already been settled by the housing management and the finance branch. It was further held that there was no financial loss to the DDA due to payment of interest. While, however, giving its ultimate finding, the enquiry officer held the charge proved to a minor extent, i.e., the applicant had hurriedly prepared the cheque. The enquiry officer traced the entire history of the case, which is primarily based on documents, and by process of reasoning, returned findings as mentioned above. We may reproduce the relevant discussion on the issue, thus:
The role of the Charger Official Shri Lalit Mohan as seen from the documents is limited only to the processing of the case for payment of interest. He was actually not the dealing official of this scheme (Ex.D-1) but was asked by his Sr. AO to process the file for payment of interest. All the earlier stages of allotment of flat No.4369 on 18.8.94, payment in January, 96, automatic cancellation due to late payment, allotment of another flat No.32, Sector-A, Pocket-C, Vasant Kunj at a cost of Rs.9,81,600/- treating it as a case of double allotment had been covered by the concerned dealing assistant and the officers above him. Shri Lalit Mohan had no role to play in the dealings of the case at any of the above said stages.
The quintessence of the charge against Shri Lalit Mohan is that he processed the case for payment of interest on the amount of Rs.7,16,000/- deposited in January, 96 without request from the allottee and that this process was completed just in one day on 16.6.2000. The cheque for the interest amount of Rs.2,64,920/- was handed over to some unknown person on 20.6.2000 which was enchashed by the payee fraudulently.
All the facts relating to allotment of the above mentioned flats stand confirmed by the documents marked as Exh.P-1 to P-11. Exh.P-9 is a representation dated 6.3.2000 purportedly from Smt. Mathew requesting the FA (H) to allot the flat to her at the original cost since the earlier flat No.1369 allotted to her had been occupied by Shri Vinod Kumar Singh. It is also mentioned in this representation that no interest on the amount deposited in January, 96 had been paid. Although the signature of Smt. Mathew in this representation is quite different from her signature in her application form (Exh.P-2) but the fact remains that this representation was entertained by the housing management and the cost of the flat No.32, Sector-A, Pocket-C allotted afterward was reduced to Rs.9,81,600/- as per allotment letter dated 11.4.00 (Exh.P-10) treating it as a case of double allotment. The noting made at Page 1 of Exh.P-12 made by Sr. AO (SFS) shows that this view of the housing management that it was a case of double allotment was accepted by the finance and that is why the cost of the flat was reduced. Not only this the demand-cum-allotment letter of reduced price had also been sent to the allottee. All the process stands approved by the Jt.FA(H) and the FA(H) at Page-2 of Exh.P-12. Till this stage Shri Lalit Mohan was not in the picture. However, there is a mention of the payment of interest in the AOs note dated 6.4.2000 at Page-2 of Exh.P-12. The noting at Page 3 & 4 of Exh.P-12 is about the issue of demand letter and the payment by the allottee through various challans and their verification till about 2nd week of June, 2000.
The role of Shri Lalit Mohan starts at Page-5 of Exh.P-12. It has been said that Shri Lalit Mohan was neither the dealing assistant of this case nor the file was officially marked to him. These are facts not denied by the Charged Official. But the noting clearly brings out that it was given to the Charged Official by the Sr. AO(SFS) who was his superior officer for calculation of interest. Shri Lalit Mohans note dated 16.6.2000 consisting of just two lines starts with the words As desired by Sr. AO (SFS)I. Undoubtedly, therefore, he calculated the interest at the bidding of his Sr. AO and he did not do it at his own initiative. The file thereafter moved up and came back to him on the same day and he prepared the refund bill on 16.6.2000 itself. The AAO-I and Sr. AO (SFS)I also approved it on the same day as can be seen at Pages 5&6 of Exh.P-12. Shri Lalit Mohan prepared the cheque for Rs.2,64,920/- in favour of Smt. Mathew for signature of AO (Cash) on 19.6.2000. After his signatures it was delivered to Smt. Mathew by hand on the same page. It is noticed that the receipt of cheque was also obtained but the act of handing over the cheque and obtaining receipt was completed by somebody else (dispatcher) and not by Shri Lalit Mohan.
The charge says that there was no request for payment of the interest but as stated above, the representation (Exh.P-9) does mention the grievance of the allottee that interest on the amount of Rs.7,66,000/- was not paid to her. Therefore, it will not be correct to say that there was no request from the allottee claiming interest. The presenting officer in his written brief has merely relied upon evidence of Shri Raghu Nath, AAO (SFS)III (PW2) while pointing out the failure on the part of Shri Lalit Mohan and has made the following points. While considering the brief put up by the presenting officer and the points raised by him, the enquiry officer further observed as follows:
The above view of the Presenting Officer, except relating to interest when examined in the background of what has been stated above, at once fail to the ground having no force at all. The case was treated as of double allotment on the basis of Smt. Mathews representation dated 6.3.2000 by the housing management and with the interpretation the finance branch of housing had also agreed. Not only this, the demand at the reduced price was raised and the allottee had paid the amount before the CO recorded his note about interest. The question arises whether at this stage, it was appropriate for the CO who was actually not the dealing assistant of the case to raise the issue whether it was a case of double allotment or not and again whether he had the authority to do so when the matter had already been settled by the Housing Management with the approval of the Finance. Obviously the answer to such a question would be in the negative. The noting in Exh.P-12 about this being a double allotment case is very positive by Sr.AO (SFS)I which had the approval of Joint FA (H) and the FA (H) herself and therefore expectation of such a role from the CO to examine the whole case afresh is a far-fetched idea and does not seem to be justified. The Sr. AO (SFS) had handed over the file to the Charged Official for the limited purpose of calculating the interest and in compliance with the orders of his superior officer, he calculated the interest and submitted it to his senior officer. I do not think that there was any other alternative available with the Charged Official at this stage but to abide by the orders of his controlling officer. If he was asked by his superior officer to attend to a particular file, obviously it was his duty to carry out the instructions.
The next issue is whether there was any request of the allottee for payment of interest. There are two points which need to be stated here. First of all the representation itself contains a grievance of the allottee that no payment of interest had been made to her. Secondly, the file was entrusted to the Charged Official by the Sr.AO (SFS) for calculation of interest. In view of these two factors, it will not be correct to say that there was no request from the allottee for payment of interest. As regards marking the file to him officially, the C.O.s contention is that it was given to him personally by the Sr. AO(SFS). And this assertion is clearly mentioned in his short note which has not been denied by the Sr. AO when he handled the case.
Next, there is no gainsaying the fact that different addresses of the allottee are mentioned in the listed documents. It also appears to be a fact that the signature in the representation marked as Exh.P-9 of Smt. Mathew is different from her signature in the application for registration. All these issues needed to be looked into at the time of original allotment/revised allotment and as such would be deemed to have been resolved by the Housing Management and the concerned finance branch when they finally treated it as a case of double allotment and reduced the cost of the flat. Further, for speedy movement of the file after Shri Lalit Mohan calculated the interest on 16.6.2000 and its approval by Sr. Officers, he can hardly be held responsible if they cleared the file on the same day though it looks very unusual that the file moved with lightening speed. The noting at Page-6 of Exh.P-12 shows that he prepared the refund bill on the same day. The officers above him also accorded their approval on 16.6.2000 itself and the cheque was ultimately handed over to Smt. Mathew o 20.6.2000 though by the dispatcher.
Shri Lalit Mohan has stated in his defence that the dealing assistant Shri S. Massey was not present in the office on 16.6.2000 when the St. AO (SFS)I ordered him to calculate the interest and accordingly he attended to this job. However, some haste on his part is visible when he prepared the refund bill on the same day and the cheque on 19.6.2000. His written brief is silent whether the dealing assistant was absent or present in the office on 19.6.2000. If Shri S. Massey had been present in the office on 19.6.2000, Shri Lalit Mohan had no business to prepare the cheque. The noting also shows that the cheque was delivered by the dispatcher to Smt. Mathew by hand on 20.6.2000. Thus some sort of hurriedness is apparent at Page-6 of Exh.P-12 in writing the cheque and handing it over to the claimant. The handing over of the cheque was the handiwork of the dispatcher who delivered it to the claimant by hand. Thus at the most the Charged Official can be held responsible only in a very minor extent for hurriedly attending to this work while preparing the refund bill and cheque on 16.6.2000. The disciplinary authority, it appears, did not agree with the report of the enquiry officer and thus recorded a note of dissent on 23.10.2006, available on record as Annexure RA/1 with the rejoinder. The same reads as follows:
Major penalty charge sheet was issued to Sh. Lalit Mohan, UDC vide Memo dated 6/9.6.2005 on the ground that while working in HAU-IX during the year 2000-2001 connived with some private persons and facilitated refund of an amount of Rs.2,64,920/- on account of interest without any request of Smt. A. Mathew allottee of Flat No.32, Sect.A, Pkt.C, Vasant Kunj. The refund was subsequently withdrawn from the bank by the imposters by opening a joint saving account under the forged signatures of the allottee thereby causing financial loss to the tune of Rs.2,64,920/- to the Authority.
The Inquiry Officer has submitted his findings vide letter dated 11.09.2006 and concluded the charges as proved only to a very minor extent inasmuch as he showed hurriedness in preparing the cheque.
The undersigned is not in agreement with the findings of IO on the ground that the C.O. without verifying the signatures and genuineness of the allottee prepared the refund cheque of Rs.2,64,920/- and also there was no request for refund from the allottee. Since all the formalities for preparing cheque have been completed in single day shows/established connivance of Sh. Lalit Mohan, UDC with the private persons/imposters. Under such circumstances, the findings of I.O. cannot be accepted and the charge stands proved against Sh. Lalit Mohan, UDC to the above extent. While inflicting punishment upon the applicant as mentioned above, the disciplinary authority observed as follows:
AND WHEREAS the undersigned being the Disciplinary Authority has gone through the reply of the C.O., IO Report and facts on record and observed that Sh. Lalit Mohan UDC during 2000-2001 in connivance with private persons facilitated refund of Rs.2,64,920/- on account of interest without request from the allottee which was further withdrawn from the bank by the imposters under forged signatures of the allottee thereby causing financial loss to the Authority. The IO proved the charges to a minor extent, which is not accepted as the C.O. without verifying the signatures and genuineness of the allottee prepared the refund of Rs.2,64,920/- and also there was no request from the allottee. Since all the formalities for preparing the cheque have been completed in a single day shows/established connivance of Sh. Lalit Mohan The order passed by the appellate authority, insofar as the same is relevant, reads as follows:
NOW, THEREFORE, in exercise of the powers conferred by Regulation 32 (E) (2) of DDA Conduct, Disciplinary & Appeal Regulations, 1999, after having gone through the charges against Sh. Lalit Mohan, UDC, the report of the I.O., the orders of the disciplinary authority, the contents of the appeal and the facts of the case on record, the undersigned has observed that no new facts have been brought out by Sh. Lalit Mohan, UDC in his present appeal. I, therefore, do not find any merit in the appeal preferred by Sh. Lalit Mohan, UDC and reject the same.
3. Pursuant to notice issued by this Tribunal, the respondent has entered appearance and filed its counter reply. The applicant has filed rejoinder as well.
4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. What clearly emerges from records of the case is that even though, the enquiry officer had given detailed reasons for coming to the finding that the applicant was not guilty of the main charge framed against him, and at the most, he had hurriedly prepared the cheque, the disciplinary authority by simply observing that the applicant without verifying the signatures and genuineness of the allottee prepared the refund cheque, and also that there was no request for refund from the allottee, held the applicant guilty of the charge. It appears that the disciplinary authority had not even cared to go through the report of the enquiry officer. A clear finding came to be recorded by the enquiry officer that there was indeed a request for refund of interest, which was processed at the highest level. Insofar as, verification of signatures and genuineness of the allottee is concerned, the same was not even a charge, and, in any case, at the time when the matter came up before the applicant for preparing the cheque, orders for refund had since already been passed. The disciplinary authority, it appears, was oblivious of the fact that the role of the applicant, as clearly mentioned by the enquiry officer also, was limited to processing of the case for payment of interest. He was not the dealing official. He was asked by Sr. AO(SFS) to process the file for payment of interest, and that too at a stage when all orders had since already been passed, as mentioned above, at highest level. That apart, the disciplinary authority instead of giving its tentative views, unequivocally held the applicant guilty when it observed that the conduct of the applicant would show/establish connivance with private persons/ imposters. For the reason that the disciplinary authority gave a final view holding the applicant guilty without obtaining his representation and considering it, the impugned orders ought to be straightway set aside. However, in the facts and circumstances of the case, we may not remit the case to the authorities, as that would be an exercise in futility and cause untold miseries to the applicant, who has already suffered an agonizing departmental enquiry for a period of four years. It appears that the matter needs to be given a quietus, as no good reasons are forthcoming at all either in the dissenting note or in the orders passed by the disciplinary and appellate authorities as to how the charge against the applicant has been held established. There is no denial of patent facts as fully detailed by the enquiry officer, reproduced above. It is wholly unjustified to hold the applicant guilty of the charge framed against him when it is proved by documents that he was the person only to prepare the cheque and that too as directed by his seniors. The cheque may have been prepared on the same day, but the applicant had only forwarded the matter to his seniors, who actually passed orders for clearing the cheque. The applicant had only calculated the interest. If the cheque was prepared on the same very day, the applicant cannot be blamed. Further, it is strange that when an employee may delay a particular file put up before him, then also he shall be blamed, and when he may act promptly, in that case also he shall be blamed. Be that as it may, as mentioned above, the applicant had only calculated the amount and forwarded the file to his seniors. He is not the person who may have handed over the cheque to the allottee. It is proved on records and so also held by the enquiry officer that the cheque was handed over to the allottee by the dispatcher and not the applicant. We find no evidence whatsoever against the applicant to hold him guilty of the charge framed against him. In fact, the entire evidence shows his innocence.
5. Finding merit in the present Application, we allow the same. Impugned orders dated 2.1.2007 and 29.5.2007 passed by the disciplinary and appellate authorities are quashed and set aside. The applicant shall be entitled to all consequential benefits that he may be entitled to under the rules. There shall, however, be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali ) Member (A) Chairman /as/