Central Administrative Tribunal - Delhi
Unknown vs Gnct Of Delhi on 30 October, 2012
CENTRAL AMDINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA No.4447/2011 OA No.4448/2011 AND OA No.4449/2011 Case reserved on 19th September 2012 Case pronounced on 30 October, 2012 HONBLE SHRI G. GEORGE PARACKEN, MEMBER (J) HONBLE SMT. MANJULIKA GAUTAM, MEMBER (A) OA No.4447/2011 HC Subhash Chand, Belt No.222/NW, PIS No.28910323, S/o Sh. Surat Singh, R/o B-75, Street No.8, Shalimar Bagh Vilalge, N.Delhi 88, Presently posted in North West District, Group C, Aged 41 years. Applicant (By Advocate: Shri Saurabh Ahuja) Versus 1. GNCT of Delhi, Through Commissioner of Police, Police Head Quarters, I.P. Estate, MSO Building, New Delhi. 2. Joint Commissioner of Police, Northern Range, Delhi, Through Commissioner of Police, PHQ, I.P. Estate, MSO Building, New Delhi. 3. Deputy Commissioner of Police, North West Delhi, Through Commissioner of Police, PHQ, I.P. Estate, MSO Building, New Delhi. 4. Additional Commissioner of Police, Vigilance, Delhi, Through Commissioner of Police, PHQ, I.P. Estate, MSO Building, New Delhi. (By Advocate: Shri N.K. Singh for Smt. Avnish Ahlawat) Respondents OA No.4448/2011 Ct. Mahipal, Belt No.1827/NW, PIS No. 28980710, S/o Late Sh. Shiv Charan, R/o Quarter No. 411, Type-1, Police Colony, Ashok Vihar, Delhi, Presently posted in North West District, Group C, Aged 32 years. Applicant (By Advocate: Shri Saurabh Ahuja) Versus 1. GNCT of Delhi, Through Commissioner of Police, Police Head Quarters, I.P. Estate, MSO Building, New Delhi. 2. Joint Commissioner of Police, Northern Range, Delhi, Through Commissioner of Police, PHQ, I.P. Estate, MSO Building, New Delhi. 3. Deputy Commissioner of Police, North West Delhi, Through Commissioner of Police, PHQ, I.P. Estate, MSO Building, New Delhi. 4. Additional Commissioner of Police, Vigilance, Delhi, Through Commissioner of Police, PHQ, I.P. Estate, MSO Building, New Delhi. (By Advocate: Ms. Alka Sharma) Respondents OA No.4449/2011 Ct. Abhimanyu, Belt No.841/NW, PIS No.28980461, S/o Sh. Hukum Singh, R/o Village & PO Tikri, District Baghpat (UP-250025), Presently posted in North West District, Group C, Aged 34 years. Applicant (By Advocate: Shri Saurabh Ahuja) Versus 1. GNCT of Delhi, Through Commissioner of Police, Police Head Quarters, I.P. Estate, MSO Building, New Delhi. 2. Joint Commissioner of Police, Northern Range, Delhi, Through Commissioner of Police, PHQ, I.P. Estate, MSO Building, New Delhi. 3. Deputy Commissioner of Police, North West Delhi, Through Commissioner of Police, PHQ, I.P. Estate, MSO Building, New Delhi. 4. Additional Commissioner of Police, Vigilance, Delhi, Through Commissioner of Police, PHQ, I.P. Estate, MSO Building, New Delhi. (By Advocate: Ms. Sumedha Sharma) Respondents ::ORDER:: G. George Paracken, Member (J):
All these three OAs are identical and, therefore, they are disposed of by this common order. The applicant in OA No. 4447/2011-Shri Subhash Chander was appointed as Constable (Executive) in 1991. Thereafter, he was promoted on out of turn to the post of Head Constable in 2002. The applicant in OA No. 4448/2011-Shri Mahipal was appointed as Constable (Executive) in 1998. Similarly, the applicant in OA No. 4449/2011 Shri Abhimanyu was also appointed as Constable (Executive) in 1998. While they were working at Beat Number 4 under the jurisdiction of P.S. Bharat Nagar w.e.f. April to July, 2010 they were served with the following charges:-
SUMMARY OF ALLEGATIONS AGAINST THE APPLICANT IN OA NO. 4447/2011 SH. SUBHASH CHANDER IS AS UNDER:-
On 19.07.10 Sh. Prem Nath ACP/PG/NW with Insp. Banwari Lal No.D-859 (P.I.S.No.16920063) and ASI Krishan Kumar No.4792/D (P.I.S.No.28770216) of Vigilance NWD and Photographer HC Rajesh No.439/NW (P.I.S. No.28950848) visited SFS Flat No.195 Phase-IV Ashok Vihar Delhi and observed that the owner of the SFS Flat was extending the Verandah for which the preparation for shuttering was being done for laying concrete roof and the construction was still continuing. Above vigilance staff also verified that other unauthorized construction are also going on the same locality and one of the unauthorized construction was at SFS flat No.209 Phase-IV Ashok Vihar Delhi. The photographs of above flats showing unauthorized construction were taken on the spot. On checking the records from the register, it was found that above unauthorized construction was not reported to MCD till 18/7/10 and the same was reported to MCD on 19/7/10 vide format No.1467 dated 17/7/10 and No.4500 dated 19/7/10. As per the format and verification, the unauthorized construction was going on for the past 4 to 10 days respectively.
In view of the above, it is clear that beat staff of the above area namely HC Subash Chand No.222/NW (PIS No.289110323) Ct. Mahipal No.1827/NW (PIS No.28980710) and Ct. Abhimanyu No.841/NW (PIS No.28980461) are not complying with the directions of the PHQ with regard to unauthorized construction and thus giving strong suspicion of their nexus with the unauthorized construction for personal interest.
The above act on the part of HC Subash Chand No.22/NW (PIS No.289110323) Ct. Mahipal No.1827/NW (PIS No.28980710) and Ct. Abhimanyu No.841/NW (PIS No.28980461) amounts to gross misconduct dereliction in discharge on official duties and unbecoming of Govt. servant which render them liable for departmental action under the provisions of Delhi Police (Punishment & Appeal) Rules 1980. SUMMARY OF ALLEGATIONS AGAINST THE APPLICANT IN OA NO. 4448/2011 SH. MAHIPAL SINGH IS AS UNDER:-
On 19.7.2010, Sh. Prem Nath ACP/PG/NWD alongwith Vigilance Staff, Inspr. Banwari Lal No.D-859 (16920063) ASI Krishan Kumar No.4792/D (PIS No.28770216) of Vigilance Branch/NWD and Photographer HC Rakesh Kumar, No.439/NW (PIS No.28950848) visited SFS Flat No.195, Phase-IV, Ashok Vihar, Delhi and observed that the owner of the SFS Flat was extending the Verandah for which the preparation for shuttering was being done for laying concrete roof and the construction was till continuing. The above Vigilance Staff also verified that other unauthorized construction were taken on the spot. On checking the records from the register, it was found that above unauthorized construction was not reported to MCD till 18.7.2010 and the same was reported to MCD on 19.7.10 vide format No.1467 dated 17.07.2010 and No.4500 dated 19.7.2010. As per the format and verification, the unauthorized construction was going for the past 4 to 10 days respectively.
In view of the above, it is clear that beat staff of the above area namely HC Subhash Chand, 222/NW, Const. Mahipal, 1827/NW and Const. Abhimanyu, 841/NW was not complying with the directions of the PHQ with regard to unauthorized construction and thus giving strong suspicion of their nexus with the unauthorized construction for personal interest.
The above act on the part of HC Subash Chand No.222/NW (PIS No.289110323) Ct. Mahipal No.1827/NW (PIS No.28980710) and Ct. Abhimanyu No.841/NW (PIS No.28980461) amounts to gross misconduct dereliction in discharge on official duties and unbecoming of Govt. servant which render them liable for departmental action under the provisions of Delhi Police (Punishment & Appeal) Rules 1980. SUMMARY OF ALLEGATIONS AGAINST THE APPLICANT IN OA NO. 4449/2011 SH. ABHIMANYU IS AS UNDER:-
On 19.7.2010, Sh. Prem Nath ACP/PG/NW with Inspr. Banwari Lal No.D-859 (P.I.S. No.16920063) and ASI Krishan Kumar No.4792/D (P.I.S. No.28770216) of Vigilance NWD and Photographer HC Rajesh No.439/NW (P.I.S. No.28950848) visited SFS Flat No.195, Phase-IV, Ashok Vihar Delhi and observed that the owner of the SFS Flat was extending the Verandah for which the preparation for shuttering was being done for laying concrete roof and the construction was till continuing. Above Vigilance Staff also verified that other unauthorized construction are also going on the same locality and one of the unauthorized construction was at SFS flat No. 209 Phase-IV Ashok Vihar Delhi. The photographs of above flats showing unauthorized construction were taken on the spot. On checking the records from the register, it was found that above unauthorized construction was not reported to MCD till 18/7/10 and the same was reported to MCD on 19/7/10 vide format No. 1467 dated 17/7/10 and No 4500 dated 19/7/10. As per the format and verification, the unauthorized construction was going on for the past 4 to 10 days respectively.
In view of the above, it is clear that beat staff of above area namely HC Subhash Chand No. 222/NW (PIS No. 289110323) Ct. Abhimanyu No. 841/NW (PIS No. 28980461) are not complying with the directions of the PHQ with regard to unauthorized construction and thus giving strong suspicion of their nexus with the unauthorized construction for personal interest.
The above act on the part of HC Subash Chand No.222/NW (PIS No.289110323) Ct. Mahipal No.1827/NW (PIS No.28980710) and Ct. Abhimanyu No.841/NW (PIS No.28980461) amounts to gross misconduct dereliction in discharge on official duties and unbecoming of Govt. servant which render them liable for departmental action under the provisions of Delhi Police (Punishment & Appeal) Rules 1980.
2. A common enquiry was held against all the aforesaid applicants and according to the findings of the Inquiry officer. The charges against them have been partly proved. The relevant part of the Inquiry report is as under:-
I have gone through the statement of P.Ws. D.W. and the documents on record. It is clear from the statement of P.W-3, HC Govind, Reader to SHO that the beat staff filled in form regarding the unauthorized construction at SFS flat No.195 and 209, which he got signed from SHO and sent the same through Ct. Abhimanyu for delivery in MCD office. These forms were not delivered being holiday on 17.7.10 and 18.7.10 being holiday and finally these were sent on 19.7.10. Similarly D.W.-I Sh. Rajiv Arora had stated that the beat staff stopped the work on 17.7.10, which he started on 15.7.10. H.C. Subhash Chand had produced copy of DD entry lodged by ASI Subhash Chand on 18.7.10 vide No.23-B regarding the unauthorized construction at both the flats. The ASI had mentioned in daily diary report 34-B. He was detailed by SHO. He mentioned that there was preparation for putting lenter towards Bolkauni at Flat No.195. HC Subhash Chand had informed regarding unauthorized construction through PCR on channel No.109. D.W.-1, Rajiv Arora had also stated that Sh. Anupak Kumar, JE from MCD had also visited the spot on 17.7.10, finding repair work, he went away without saying any thing. None of the P.Ws had stated that the construction work was going on from 4 to 10 days earlier, whereas the D.W. had stated that he started repair work only on 15.7.10. P.W.-I Inspr. Banwari lal, P.W. ASI Krishan Kumar and P.W.-6 HC Rajesh, who visited on 19.7.10 have not deposed as to why type of unauthorized construction was there on SFS flat No.195 and 209. No P.W. has deposed about the directions which they have not complied with and their complicity.
From the above discussion, it is clear that the construction work at both the flats was well in the knowledge of local police and even SHO P.S. Bharat Nagar prior to the information with Vigilance branch and forms were prepared which could not delivered to MCD due to holidays on 17.7.10 & 18.7.10. The SHO had also detailed ASI Subhash Chand besides the beat staff HC Subhash Chand, Ct. Mahipal and Ct. Abhimanyu to confirm the version of beat staff. However, some delay in filing the forms of unauthorized construction is found on the part of beat staff. Under the circumstances mentioned above, the charge against HC Subhash Chand No.222/NW, Ct. Mahipal No.1827/NW and Ct. Abhimanyu No.841/NW is partly proved.
3. The Disciplinary Authority in its order dated 07.03.2011 awarded the punishment of withholding of increment for a period of one year temporarily without cumulative effect to all of them. The relevant part of the Disciplinary Authoritys order reads as under:-
I have gone through Statements of the PWs, Charge, Statement of the D.W., Defence statement to the charge, findings of the E.O., the representation against the findings of all the defaulters and other relevant record brought on the D.E. file. The defaulters have mainly pleaded in their representations that there was no newly constructions in the flats in questions but there was some repair/plastering work was going on. It has been confessed that Sh. Rajiv Arora has started his repairing work in his flat No.195 SFS Phase-VI Ashok Vihar, Delhi on 15.07.2010 and they have enquired about the work on 17.07.2010 and accordingly they have sent the information on a format to the reader of SHO/Bharat Nagar on 17.07.2010. Due to the holidays on 17 & 18.07.2010, the information could not be sent to MCD Deptt. However the information was sent to the MCDDeptt. on 19.07.2010. The pleas put forth by the defaulters are not plausible at all. Because PW-I Sh. Banwari Lal, Inspr/Vigilance/NW, ASI Kishan Kumar, No.4792/D, Vigilance Branch and HC Gobind Singh, No.247/NW have clearly deposed during the DE proceeding that when they were reached at Flat No.195, the work of settering for constructing of lanter (roof) was going on there and the construction material was also lying. Similarly the construction work was also going on at Flat No.209 and material was also found lying near it. As such all the defaulters obviously failed to send the information to concerned Deptt., i.e. MCD about the unauthorized construction of the above said Flats for which the E.O. has rightly held them guilty of the charge for not sending the intimation timely. All the defaulters were heard in Orderly Room, on 15.02.2011. During the orderly Room they reiterated the same pleas whatever they had already submitted in their written representation to the findings of the Enquiry Officer.
In view of the above, I Meenu Choudhary, Dy. Commissioner of Police, North-West District hereby award the punishment of withholding of next increment for a period of one year temporarily without cumulative effect to defaulters HC Subhash Chand, No.222/NW, Const. Mahipal, 1827/NW and Const. Abhimanyu No.841/NW for their above said misconduct, which would meet the ends of justice. Their above mentioned suspension period from 26.07.2010 to 18.08.2010 is also decided as period not spent on duty for all intents and purposes.
Let a copy of this order be given to HC Subhash Chand, No.222/NW, Const. Mahipal, 1827/NW and Const. Abhimanyu No.841/NW free of cost. They can file appeals against this order within 30 days from the date of its receipt to the Joint C.P./NR, Delhi, by enclosing a copy of this order, if they so desires.
4. The Appellate Authority vide its order dated 01.09.2011 rejected the appeal of the applicant Sh. Subhash Chander. Similarly, in the case of Shri Mahipal and Abhimanyu also, the Appellate Authority passed similar orders rejecting their respective appeals on 20.08.2011. The relevant part of the Appellate Authoritys orders are as under:-
In the case of Shri Subhash Chand The appellant, HC Subhash Chand, No.22/NW was heard in Orderly Room before taking a final decision in his appeal. In his oral submissions, he reiterated what he has already submitted or stated i.e. that on 17-07-10 during patrolling in the beat he noticed some construction going on in SFS Flats Nos.195 and 209, Phase-IV, Ashok Vihar. On enquiry, the owners of the flats Sh. Rajiv Arora (flat No.195) and Sh. Sabharwal (flat No.209) had informed that due to dilapidated condition of their flats and leakage in the walls, they are undertaking some repair. He asked them to take prior permission from MCD Authorities for undertaking repair but they replied that no such permission is required for repairs. He brought the matter into the notice of SHO/Bharat Nagar telephonically and on his direction the construction work was stopped immediately. Thereafter, necessary forms were filled to inform the land owning agency. The said form was sent to MCD office on 19-0710, since 17 & 18-09-2010 were holidays, being Saturday and Sunday.
The perusal of records available on file clearly shows that unauthorized construction in both the flats in question was going on and the beat staff failed to take appropriate action in time. The pleas of the appellant are neither convincing and nor they hold good on the grounds that on 19.07.2010 during the visit of ACP/PG Cell it was found that area/verandah of the flat was extended with shuttering already positioned and laying of concrete roof and the construction was in progress. Under these circumstances, I find no reason to interfere with the orders of Disciplinary Authority. Hence, the appeal is rejected. In the case of Shri Mahipal Singh The appellant, Const. Mahipal, No.1827/NW, was heard in Orderly Room before taking a final decision in his appeal. In his oral submissions, he reiterated what he has already submitted or stated i.e. that on 17-07-10 during patrolling in the beat he noticed some construction going on in SFS Flats Nos.195 and 209, Phase-IV, Ashok Vihar. On enquiry, the owners of the flats Sh. Rajiv Arora (flat No.195) and Sh. Sabharwal (flat No.209) had informed that due to dilapidated condition of their flats and leakage in the walls, they are undertaking some repair. He asked them to take prior permission from MCD Authorities for undertaking repair but they replied that no such permission is required for repairs. He brought the matter into the notice of SHO/Bharat Nagar telephonically and on his direction the construction work was stopped immediately. Thereafter, necessary forms were filled to inform the land owning agency. The said form was sent to MCD office on 19-0710, since 17 & 18-09-2010 were holidays, being Saturday and Sunday.
The perusal of records available on file clearly shows that unauthorized construction in both the flats in question was going on and the beat staff failed to take appropriate action in time. The pleas of the appellant are neither convincing and nor they hold good on the grounds that on 19.07.2010 during the visit of ACP/PG Cell it was found that area/verandah of the flat was extended with shuttering already positioned and laying of concrete roof and the construction was in progress. Under these circumstances, I find no reason to interfere with the orders of Disciplinary Authority. Hence, the appeal is rejected. In the case of Shri Abhimanyu The appellant, Const. Abhimanyu, No.841/NW was heard in Orderly Room before taking a final decision in his appeal. In his oral submissions, he reiterated what he has already submitted or stated i.e. that on 17-07-10 during patrolling in the beat he noticed some construction going on in SFS Flats Nos.195 and 209, Phase-IV, Ashok Vihar. On enquiry, the owners of the flats Sh. Rajiv Arora (flat No.195) and Sh. Sabharwal (flat No.209) had informed that due to dilapidated condition of their flats and leakage in the walls, they are undertaking some repair. He asked them to take prior permission from MCD Authorities for undertaking repair but they replied that no such permission is required for repairs. He brought the matter into the notice of SHO/Bharat Nagar telephonically and on his direction the construction work was stopped immediately. Thereafter, necessary forms were filled to inform the land owning agency. The said form was sent to MCD office on 19-0710, since 17 & 18-09-2010 were holidays, being Saturday and Sunday.
The perusal of records available on file clearly shows that unauthorized construction in both the flats in question was going on and the beat staff failed to take appropriate action in time. The pleas of the appellant are neither convincing and nor they hold good on the grounds that on 19.07.2010 during the visit of ACP/PG Cell it was found that area/verandah of the flat was extended with shuttering already positioned and laying of concrete roof and the construction was in progress. Under these circumstances, I find no reason to interfere with the orders of Disciplinary Authority. Hence, the appeal is rejected.
5. Further, according to the letter dated 21.09.2011, the respondents have also brought the names of all the three applicants in the secret list of doubtful integrity w.e.f. 07.03.2011 vide order No.08.06.2006 -08/vigilance, CA dated 30.09.2011 for the aforesaid allegations against them.
6. The applicants have challenged the aforesaid orders passed in the Disciplinary proceedings against them on the ground that the allegations made against them were not proved. They have specifically pointed out the concluding paragraphs of the findings of the Inquiry Officer wherein it has been stated that none of the PWs have stated that the construction work was going on from 4 to 10 days earlier. They have also stated that whereas the Defence Witness had stated that he started repair work only on 15.07.2010, the Inquiry Officer held that the construction work on both the flats in question was in the knowledge of local police and even SHO, PS, Bharat Nagar, prior to the information of the Vigilance Branch and forms were prepared which could not be delivered to MCD due to holidays on 17.07.2010 and 18.07.2010. Further, the Inquiry Officer has stated that the SHO detailed ASI Subhash Chand, besides the beat staff HC Subhash Chand, Ct. Mahipal and Ct. Abhimanyu to confirm the version of beat staff. However, some delay in filling the forms of unauthorized construction was found on the part of beat staff. Under the circumstances mentioned above, according to the Inquiry Officer, the charge against HC Subhash Chand No.222/NW, Ct. Mahipal No. 1827/NW and Ct. Abhimanyu No. 841/NW was partly proved.
7. The learned counsel for the applicants has also stated that there is no question of proving of charge partly when the same are not mentioned in the charge sheet. In this regard, he has relied upon an order of this Tribunal in OA No. 1826/2011- Inspector Anil Sharma v. Union of India & Ors. decided on 17.10.2011. The relevant part of the said order reads as under:-
4. Sh. Sourabh Ahuja, learned counsel representing the applicant, would contend that present is a case where, even though the enquiry officer in the discussion made by him held the applicant as not guilty, and yet held the charge partly proved, and the disciplinary and appellate authorities have, by and large, accepted the findings given by the enquiry officer. If no charge was held established against the applicant from the discussion made by the enquiry officer, there was no justification to hold the charge as partly proved; and in any case, same punishment of censure could not be inflicted upon the applicant, as was inflicted upon his con-delinquent against whom the charge was held as fully proved, thus contends the learned counsel.
8. Again, he has relied upon the Order of the Guwahati Bench of this Tribunal in OA No.182/2009 Manoj Kumar Barman v. Union of India & Ors. wherein it has been held that even though the Inquiry Officer found the applicants acted as per rules, yet it held that the charge of delivery goods without verifying genuineness of party was partly proved but without specifying which part of it has been proved. The relevant part of the said order reads as under:-
Careful perusal of the same would reveal that the Disciplinary Authority in fact disagreed with the findings of the Enquiry Officer with regard to Article-I. Though the Enquiry Officer had held that said charge was not proved, said findings were overturned by the Disciplinary Authority holding that Article-I established. At this stage we would be justified to notice even the findings recorded by the Enquiry Officer in respect of Article-II. As per the Enquiry Officers report dated 17.11.2004, though the findings were returned that said charge was Partially proved, but while undertaking the assessment of evidence the Inquiry Authority observed that: From the above discussion and also from the documents it cannot be concluded that CO committed wrong to deliver the Consignment to the representatives without verifying the genuineness of the party and the same is unbecoming on the part of a Railway Servant. When said findings are read in the context of the charges levelled against him in said article that: he delivered the onion consignment from NGC/Goods office on 1.12.2001 without verifying the genuineness of the party who took delivery. Thus he facilitated fictitious parties who were neither consignee nor endorsee to take factitious A/D., the ultimate findings recorded for said charge were partially proved is totally unjust, illegal and based on conjecture. Said findings of the Enquiry Officer very conveniently recorded that Article-II was partially proved, without highlighting the fact as to which element of Article-II had been proved. The finding that the charge is partially proved can be recorded only in the eventuality when the charge could be split and not otherwise. When Article-II, as extracted hereinabove is read in whole, one would come to the conclusion that the same could not have been split at all. As such, the finding of the Enquiry Officer that the same was partially proved is nothing but an attempt to mislead the authorities and to pacify them as if something has been proved against the applicant. Without realizing the fact that the Enquiry Officer himself concluded that the action of the applicant in delivering the consignment without verifying the genuineness of the party, was not wrong, as noticed hereinabove, the findings recorded by the disciplinary Authority virtually amounts to disagreeing with the conclusion arrived at by the Enquiry Officer. It is an admitted aspect that at stage, the Disciplinary Authority had not disclosed or conveyed to applicant that it intends to disagree with the findings of Enquiry Officer.
9. He has also invited our attention to paragraphs 5.3 and 5.4 of the reply filed by the respondents, which are reproduced as under:-
5.3 The averments made in Ground 5.3 are wrong and denied. It is submitted that the Enquiry officer has proved the charge after going through the statements of PWs, DWs and the defence statement submitted by the applicant and he further clearly mentioned in inference of his findings that some delay in filing the forms of unauthorized constructions is found on the part of the beat staff. Hence this part of the charge has been proved and further on the same charge, the Disciplinary authority has awarded the punishment after giving due consideration as mentioned in the brief facts of the case. Hence the plea taken by the applicant in this Para is not tenable.
5.4 The averments made in Ground 5.4 are wrong and denied in view of the submission made in foregoing Para and in the brief facts. It is further submitted that the applicant could not detect the unauthorized constructions in his beat area in time and for this delay, he has been awarded punishment.
10. The other contention of the learned counsel for the applicants is that in terms of Delhi Police Rules even though it is compulsory that the appellate authority should give hearing in the Orderly Room to the delinquent employees who have been imposed with major penalties and it has been stated in the appellate authoritys orders that the applicants had been heard in Orderly Room but actually no such hearing has taken place.
11. The respondents in their reply have refuted the contentions of the applicants. They have stated that the DW1 has clearly stated that he had started the work on 15.07.2010 but the applicants reached the flat for inquiry only on 17.07.2010. Hence, there was delay on the part of the applicants in detecting the unauthorized construction in the said flat. They have also submitted that there is no justification on the part of the applicants to reach the spot only on 17.7.2010 when 15th and 16th of July 2010 were not closed holidays.
12. The applicants have also filed rejoinder and submitted that the Disciplinary Authority and the Appellate Authority failed to appreciate that there was no evidence against the applicants. They have further submitted that though the inquiry officer came to the specific findings that forms (qua unauthorized construction/ renovation in Flat No.195 & 209) were prepared on 17/07/2010 which were signed by the SHO/Bharat Nagar on the 17/07/2010 and the said forms were send through the Applicant on 17/07/2010 but they could not be delivered to MCD (land owning agency) on 17/07/2010 (Saturday) or 18/07/2010 (Sunday) being holidays and the said forms were delivered/submitted in MCD immediately on reopening i.e. on 19/07/2010. But, the inquiry officer, despite the above said finding, recorded a contradictory finding that there was some delay in filing the forms of unauthorized construction was found on the part of the beat staff, i.e., the applicants, hence the charge is partly proved against the applicants. They have submitted that the inquiry officer did not appreciate that the charge leveled against the applicants can either be proved or not proved as the said charge is not severable/cannot be split. Moreover, it is submitted without prejudice to above that the inquiry officer has not even mentioned that which part of the charge is proved against the applicants and it has greatly prejudiced them inasmuch as they were not able to make their representation effectively against the findings of the inquiry officer. Hence, on this ground alone, the inquiry against the applicants having been vitiated, the impugned orders are liable to be quashed and set aside. They have submitted that the ultimate findings recorded by the inquiry officer that the charge against the applicants is partly proved is totally unjust, illegal, without application of mind and is based on conjectures and surmises. Their further contention was that they have been made a scapegoat in the entire mater.
13. We have heard the learned counsel for the applicants-Sh. Saurabh Ahuja in all the OAs and the learned proxy counsel for the respondents Sh. N.K. Singh for Mrs. Avnish Ahlawat in OA No.4447/2011, Mrs. Alka Sharma learned counsel in OA No. 4448/2011 and Mrs. Sumedha Sharma in OA No.4449/2011. As per the summary of allegations, the charges leveled against the applicants are the same. According to it, unauthorized construction was going on in phase IV, Ashok Vihar, Delhi for the past 4 to 10 days and as per the records the applicants, who are the beat staff of the said area, have reported the same only on 19.7.2010. From the above, it was clear that the applicants were not complying with the directions of the PHQ with regard to unauthorized construction, giving string suspicion of their nexus with the unauthorized construction for personal interest. The inquiry officer came to the conclusion that the unauthorized work has started only on 15.7.2010. The beat staff got the forms regarding unauthorized construction filled by PW-3 HC Govind and got it signed by the SHO but those forms were not delivered to MCD till 19.7.2010 as the 17th and 18th of July were closed holidays. But the inquiry officer stated in his report that the local police, including the SHO, were aware of the construction work at the flats before the vigilance branch came to know about it. It is not understood how the inquiry officer got such information and how the beat staff (the applicants) were aware of it. Again on the one hand the inquiry officer says that the construction work was there on 15.7.2010 and the beat staff got the necessary forms filled up for the signature of the SHO but 17th and 18th being holidays, they could be delivered to MCD only on 19.7.2010. Still the inquiry officer says that there was some delay on the part of the applicants to fill up the forms. In our considered view, such a conclusion is not based on any record or evidence and it is quite arbitrary. The inquiry officers findings should be specific and should not be left to speculation. Again, the inquiry officer says that the charge has been partly proved. When the charge was not in parts, how can the inquiry officer say that the charge was partly proved, without specifying as to which part. Therefore, the orders of the coordinate Bench of this Tribunal in Inspector Anil Sharmas case (supra) and Manoj Kumar Barmans case (supra) are quite apt in the facts and circumstances of these cases. Moreover, the reading of the conclusion arrived at by the inquiry officer would only reveal that the charge has not been proved but the inquiry officer without any explanation says that the charge has been partly proved. In our considered view, the inquiry officers report is perverse and its ultimate conclusion is contrary to what is recorded in the earlier part of its concluding paragraph.
14. The disciplinary authority has also agreed with the inquiry officer, who stated that certain repair work has started in Flat No.195 SFS Phase IV, Delhi only on 15.7.2010 and 17th and 18th being holidays, the applicants could send the information to MCD only on 19.7.2010. It is not the case of the disciplinary authority that the applicants have delayed sending the intimation on 16th as it has already been stated by the inquiry officer that the applicants got the form filled up and got the signature of the SHO before 17th.
15. The appellate authority has also signed its order in a mechanical manner. It appears that the appellate authority has also not applied its mind at all before it has passed its orders on all the three applicants. It is seen that those three orders were verbatim same, except for the names of the charged officials. Again, the appellate authority stated in its orders that the applicants have been heard in the Orderly Room without actually hearing them. We are, therefore, of the considered view that the appellate authoritys order is absolutely without application of mind and against the principles of natural justice.
16. We are conscious of the fact that it is not for the Court/Tribunal to appreciate or re-appreciate the evidence. But as held by the Apex Court in M.V. Bijlani v. Union of India & others, 2006 (3) SLR 105, the evidence recorded by the inquiry officer and the inferences drawn by him should commensurate with the charge. In the departmental inquiry proceedings, the conclusion arrived at by the inquiry officer in his report should be in accordance with the evidence on record. By merely saying that the charge has been proved or partly proved, it cannot be accepted as proved.
17. In the above facts and circumstances, we find merit in the present cases. Accordingly, these OAs (OA-4447/2011, OA-4448/2011 and OA-4449/2011) are allowed and the inquiry officers report dated 9.12.2010, disciplinary authoritys order dated 07.03.2011 and the appellate authoritys order dated 01.09.2011 are quashed and set aside. The respondents shall restore all the financial and other loss suffered by the applicants on account of the aforesaid orders and pass appropriate orders within a period of two months from the date of receipt of a copy of this order. No costs.
Let a copy of this order be placed in each case file.
(Smt. Manjulika Gautam ) ( G George Paracken )
Member (A) Member (J)
/vb/