Central Administrative Tribunal - Delhi
Gurmeet Kaur vs Govt. Of Nctd on 9 December, 2022
1
OA No. 2024/2017
Item No. 17
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2024/2017
Reserved on: 02.12.2022
Pronounced on: 09.12.2022
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Smt. Gurmeet Kaur,
AAO, Group B, Age 46
W/o Sh. Sukhbir Singh
R/o 105, Shyam Nagar Extn.
New Delhi. ... Applicant
(By ADVOCATE : None)
Versus
1. Lt. Governor of Delhi
Raj Niwas, Raj Niwas Marg
Rajpur Road, Civil Lines
Delhi-54
2. The Commissioner
North Delhi Municipal Corporation
4th Floor, Civic Centre, JLN Marg
New Delhi-02. ... Respondents
(By ADVOCATE: Mr. M.S. Reen)
2
OA No. 2024/2017
Item No. 17
ORDER
Mr. Ashish Kalia, Member (J):
This OA has been filed by the applicant seeking the following reliefs:
"(a) To quash and declare impugned orders dated 26.5.2016 and 12.4.2017 is illegal and unconstitutional be quashed.
(b)to issue direction to give all the consequential benefits to the applicant.
(c) the Hon'ble Tribunal may pass any other order/direction as deemed fit and proper in the circumstances of the present case and in the interest of justice."
2. The brief facts as stated by the applicant in the OA are that on allegations that she connived with the contractor and contributed in excess and undue payment of Rs. 1,69,13,867/- during the year 2010 in respect of various construction works. Department enquiry was initiated against her and the charges framed against her are extracted below:
"Statement of charges framed against Ms. Gurmeet Kaur W/o Shri Sukhbir singh, Assistant Account Officer, Maintenance Division M-III, Rohini Zone, NDMC Ms. Gurmeet Kaur while working as Divisional Accountant in Maintenance Division-IV Pitampura during the year 2010 and having additional charge of Maintenance Division-II Rohini Zone failed to maintain absolute integrity, devotion to duty and committed gross misconduct which is unbecoming of a municipal employee on following counts:-3 OA No. 2024/2017 Item No. 17
1. She in active connivance with the Contractor M/s S.A. Builder, Sh. S.K. Singhal, EE, Arun Awasthi, LDC (now UDC), Ramesh Chander Pant, the then DA-I (now UDC) and D.K. Sharma, the then DA-II made excess and undue payment of Rs. 1,69,13,867/- to the contractor during the year 2010 in respect of construction work pertaining to approaches to flyover at the level crossing on New Rohtak Road with clover leaf, slip road and service road etc. was awarded to M/s S.A. Builders vide work order No.-343/EEXVIII/83-84 dated 10.11.1983 by way of preparing/calculating and passing the bills wrongly, as such she caused pecuniary loss to the Corporation to the tune of Rs. 1,69,13,867/-.
2. She also failed to exercise proper supervision and control over the functioning of her subordinate divisional staff, who had prepared/calculated the bills of said work wrongly.
She, thereby, contravened Rule 3 (I) (i) (ii) (iii) & 3(2) of CCS (Conduct) Rules 1964 as made applicable to the employees of NDMC."
3. The applicant did not admit the allegations and therefore an Inquiry Officer was appointed. The Inquiry Officer following the principles of natural justice and relevant rules conducted an inquiry and came to the conclusion that no charge is proved against the applicant vide his inquiry report dated 14.01.2016. The Disciplinary Authority, after perusing the enquiry report disagreed with the same and gave a disagreement note on 28.01.2016. The applicant replied to the disagreement note. However, the Disciplinary Authority after considering the evidence on record, the inquiry report, 4 OA No. 2024/2017 Item No. 17 disagreement note and the reply submitted by the applicant, imposed penalty of reduction of pay by two stages in the time scale for two years with cumulative effect. The applicant filed an appeal which was rejected by the Appellate Authority on 12.04.2017. The relevant portion of the order passed by the Appellate Authority is extracted below:-
"9. .....I have carefully gone through the contentions of the appellant in her appeal petition and during personal hearing, her representations to the Disciplinary Authority, the impugned penalty order and relevant records of the case. The limited issue on which the appellant has been penalized by the Disciplinary Authority, after a regular departmental proceedings is the overpayment of Rs. 1,69,13,867/- to the contractor. The appellant has not denied appending her signature to the note prepared for the payment of Rs. 3,96,08,952/ to the contractor. The appellant as Divisional Accountant cannot be casual while dealing in financial matters. She should have scrupulously crosschecked the admissibility of various dues, not just arithmetical calculation, before forwarding the alleged note for approval Similarly, the appellant has appended her signature to the recalculation sheet and to the contingent bill. The appellant's claim to be treated on similar footing as other accounts functionaries and engineering officials mentioned in her appeal petition is, therefore, misplaced. It is not in dispute that undue payment/benefit accrued to the contractor mentioned in the Statement of Imputation of Misconduct. Hence, her contentions are not germane to the misconduct evident against the appellant. As a municipal employee, the appellant is expected to exercise due diligence at all times. Evidently, lapse was committed in this regard. The Disciplinary Authority has justifiably held the Article of Charge as 'proved', disagreeing with the 5 OA No. 2024/2017 Item No. 17 findings of the Inquiring Authority. The averments of the appellant cannot be mitigating factor to grant immunity from legitimate penal consequences for the acts of omission/commission on part of the appellant in the instant case.
10) In view of the totality of facts and circumstances of the case, I am of the considered opinion that the averments made by the appellant in her appeal are devoid of merit. The evident misdemeanor committed by the appellant renders her unbecoming of a Municipal employee. 1, therefore, see no reason to interfere with the impugned penalty order passed by Commissioner, North DMC as the Disciplinary Authority. The appeal petition is hereby rejected.
4. Notices were issued to the respondents who put their appearance through Sh. M.S. Reen, learned counsel. They have filed reply. At this stage, Sh. Reen, learned counsel submits that the present OA is similar to OA No. 2042/2017, Sh. D.K. Sharma vs. GNCTD, decided by this Tribunal vide its order dated 31.01.2020.
5. The relevant paragraphs of OA No. 2042/2017 are extracted below:-
"9. The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:
(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-
"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against 6 OA No. 2024/2017 Item No. 17 him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he crossexamined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khadabazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but 7 OA No. 2024/2017 Item No. 17 where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross- examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."
Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding 8 OA No. 2024/2017 Item No. 17 must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".
Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-
"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by 9 OA No. 2024/2017 Item No. 17 the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence."
10. In view of the facts of the case narrated above and in view of the law laid down by the Hon'ble Apex Court referred to above and in view of the fact that the counsel for the applicant has not brought to our notice violation of any procedural rules or principles of natural justice, the OAs require to be dismissed.
11. Accordingly, OAs are dismissed. No order as to costs."
10OA No. 2024/2017 Item No. 17
6. Thus, in our considered view, this issue is no more triable as already discussed and decided by this Tribunal in OA No. 2042/2017 dated 31.01.2020, which is identical in nature. Thus, the present OA is liable to be dismissed. Hence, dismissed.
There shall be no order as to costs.
(Dr. Chhabilendra Roul) (Ashish Kalia)
Member (A) Member (J)
/NS/