Central Administrative Tribunal - Delhi
Sh. Jagdish Kumar vs National Buildings Construction on 1 February, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-108/2010
New Delhi this the 1st day of February, 2011.
Honble Mrs. Meera Chhibber, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. Jagdish Kumar,
S/o late Sh. Babu Lal,
R/o 306, Gangotri Apartment,
Pocket-I, Sector-12,
Dwarka, New Delhi. Applicant
(through Sh. Suhail Dutt with Sh. Azhar Alam, Advocate)
Versus
1. National Buildings Construction
Corporation Ltd. through
its Chairman-cum-Managing Director,
NBCC House, Lodhi Road,
ISPAT Bhawan, New Delhi.
2. The Chief Engineer,
National Building Construction
Corporation Ltd. NBCC House,
Lodhi Road, ISPAT Bhawan,
New Delhi. Respondents
(through Sh. Rajeev Kumar, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant has impugned the order dated 14.01.2008 of the Disciplinary Authority (DA) in which minor penalty of censure was imposed on the applicant for his lapses in respect of which disciplinary proceedings were initiated on 17.10.1988. He has also challenged he order dated 10/13-10.2008 of the Appellate Authority (AA), in which his appeal petition was rejected. His prayer is for quashing of these two orders and for a direction to respondents to promote him to the grade of Assistant Manager (Mat) retrospectively from 1994 and to give him all consequential benefits.
2. Charges were framed against him in the Memorandum No. 63(522)/87-Vig./1939 dated 17.10.1988 alleging negligence in duty for not following proper procedure for receipt of material from the client, proper checking of weight, its safe unloading at the work site and its correct accounting during 04.06.1987 to 12.06.1987. The second charge was about his liability towards misappropriation made in connivance with the transporters in respect of shortage of steel detected during this period.
3. On denial of the charges, an inquiry was conducted. The Inquiry Officer (IO) gave his finding on 21.05.1990 by holding the applicant not guilty of the charge of theft of steel but recommended that he should be issued a warning letter for the shortage at the time of unloading and for not reporting the theft in writing to the Resident Engineer (RA) Incharge. The DA thought that the inquiry did not cover the charges for which the IO was called upon to give findings, but travelled beyond the subjects of inquiry. The suspension order passed against the applicant was revoked and although a copy of the inquiry report was given to the applicant, it was decided on 15.10.1993 to start the inquiry afresh. The applicant challenged this order by filing a Writ Petition on 11.11.1993 before the Honble High Court of Delhi and obtained a stay order on 05.12.1993 against the proposed de novo inquiry. It was only on 24.03.2006 that the Writ Petition was finally disposed of with a direction to respondent authority not to go for fresh inquiry but, if they so desired, to continue with the disciplinary proceedings by issuing a disagreement note. It was further provided that if such a course of action was taken, the applicant should be given a fair opportunity to give his defence against the tentative conclusions of the Disciplinary Authority.
4. The respondents submit that pursuant to this direction of the Honble High Court of Delhi, a Memorandum was issued by the DA on 04.08.2006 containing the tentative views of the DA. Instead of replying to this Memorandum, the applicant filed Letters Patent Appeal (LPA) No. 1764/2006 against the direction of the learned Single Judge. This appeal was subsequently dismissed by the Honble High Court on 07.09.2007. It was only after dismissal of the appeal by the Honble High Court that the DA could take a final decision on the basis of available materials. The charge of misappropriation of stolen steel was held as not proved against him, but the charge of dereliction in duty which resulted in shortage was found as proved. Although it was a major penalty proceeding, but keeping in view the long delay involved and the consequences which the applicant had to suffer because of such pendency a comparatively light penalty of censure was imposed on him. For better appreciation, the conclusions of the DA are extracted hereunder:-
NOW THEREFORE, the undersigned having carefully considered the inquiry report, the representation of the CO thereon, and relevant records of the inquiry and the facts and circumstances of the case vis-`-vis the gravity of the misconduct on the part of the CO, is of the view that though the Article of Charge-II regarding misappropriation is not proved, but the CO was guilty of dereliction of duty. However, considering the totality of the case and also the fact that the CO has suffered the final consequence of this long pending disciplinary case, the ends of justice would be met if the penalty of CENSURE is imposed on the CO. Accordingly, the aforesaid penalty is hereby imposed on Shri Jagdish Kumar, Store Keeper, NBCC Limited, with immediate effect. The grounds set forth in the appeal petition were also discussed in a detailed order point by point by the AA who came to the conclusion that, in the facts and circumstances of the case, the penalty imposed on the applicant was warranted. Therefore, he refrained from interfering with the orders of the DA and rejected the appeal petition on 10.10.2008; hence this O.A.
5. At the time of hearing, the learned counsel for the applicant strenuously argued that the applicant had been completely exonerated in the original findings of the IO who had fixed responsibility on the transporters and security services for the shortage which took place during transportation of steel. According to him the IO also held the RE Incharge responsible for certain lapses. When the inquiry report was not completely rejected, the respondent authorities could not have returned a verdict of guilt in respect of the charge of negligence in duty; the minor penalty of censure could not have been passed after lapse of about 20 years.
5.1 He highlighted the fact that the applicant had suffered a great deal by way of denial of promotions all these years because of the pendency of disciplinary proceedings against him. If at all this penalty has to run currency, it should be made effective only from the date the inquiry report was submitted, or from the date the DA decided to go for de novo proceedings. It was pointed out that the suspension order of the petitioner was withdrawn and he was reinstated in service. This fact goes to prove that the inquiry report was accepted and acted upon by the respondents but a final order in the disciplinary proceedings was kept in abeyance simply to victimize him. Although he was adjudged suitable in many D.P.C. meetings in the past, yet his case was always kept in sealed cover.
5.2 It is further urged that there was no basis for the respondents to disagree with the findings of the IO; that there was no legal compulsion on the respondents not to have issued disagreement note earlier; that the impugned censure order could have been passed in 1993 and made operative for six months thereafter.
6. Learned counsel for the respondents pointed out that the delay for the most part was on account of the action of the applicant in challenging the decision of the respondent authorities to go for de novo inquiry. There were justifications for such fresh inquiry as, according to DA, the IO did not confine himself to the charges which were the subject matter of inquiry. In the counter reply the respondents have pointed out that the applicant himself is responsible for further delay when instead of giving a reply to the show cause notice containing disagreement note of the DA, he went for LPA. If he would have submitted his reply to the show cause notice, the matter could have been disposed of even earlier.
7. We find that the orders of the respondent authorities have not been challenged on the ground that there was any denial of natural justice, nor even about the quantum of punishment. The main grievance of the applicant is about the long delay after which this minor penalty has been imposed on him. It is because of such long delay in conclusion of the disciplinary proceedings that he has been made to suffer civil consequences.
8. From the recital of the case in the preceding paragraph, it is clearly seen that the delay was not on account of any malafide motive on the part of the respondent authorities. The DA was not satisfied with the report of the IO and wanted to appoint a new IO in the absence of the old one for a fresh inquiry for specific findings on the articles of charges. It is because of the prolonged litigation and stay direction of the Honble High Court of Delhi that the respondents could not proceed further in the matter. Only after they were given liberty to proceed with the disciplinary proceedings, a show cause notice containing their tentative conclusions was issued. This action was challenged by the applicant who carried an appeal against the order of the Learned Single Judge before the Division Bench of the Honble High Court of Delhi.
8.1 It is further clarified that revocation of the suspension order and his reinstatement could in no way permit the applicant to plead that he was completely exonerated. On the other hand, in the final order the DA has not accepted the explanations of the applicant and recorded the following findings in respect of Charge No.1:-
8&9 The submission of the CO is not tenable and not accepted in as much as the CO who was Store Keeper, took the delivery of 7 trucks loads of 20 mm for steel weighting 51.25 MT and 6 truck loads of 16 mm tor steel weighting 31.35 MT from CSIR stores as per his assigned duty and arranged transportation of steel through the transport contractor M/s Gurdayal Singh from CSIR stores to NBCCs stores at site and failed to maintain absolute devotion to duty as.
The CO did not accompany the truck containing the steel from the clients stores to the site, inspite of the instructions given by the Unit Incharge in this regard.
CO was not present at the time of unloading of the steel at work site.
CO did not inform the superiors in writing immediately after the loss came to his knowledge i.e. on 12.06.87. The AA also upheld these findings.
9. The scope of judicial review in respect of disciplinary proceedings is limited. Since it is not a case of no evidence nor of any perverse conclusion, it is not possible to interfere with the findings of the DA. Similarly a comparative light punishment of censure has been imposed on the applicant keeping in view the long time it took for the proceedings to conclude. Therefore, there is no scope to moderate the penalty which has been imposed on the applicant.
10. The only grievance of the applicant is about the delay in conclusion of the inquiry. From the background history of the case, it is not borne out that the delay was on account of callousness of respondent authorities. From the counter reply we find that action was taken to remuster the applicant to the post of Assistant Work Inspector and promote him to the post of Work Inspector on 05.03.2009. Neither any specific malafide on the part of the respondents has been alleged nor discernible. Therefore, no direction could be given to them in the matter of the penalty imposed.
11. In the circumstances, the O.A. is dismissed. No costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber) Member (A) Member (J) /vv/