Delhi High Court
Delhi Urban Shelter Improvement Board vs Sh. G.S. Mehra on 12 September, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.3826/2011
Judgment reserved on: 28th July, 2011
% Judgment pronounced on: 12th September, 2011
DELHI URBAN SHELTER
IMPROVEMENT BOARD ..... PETITIONER
Through: Mr.Vinay Sabharwal, Advocate.
Versus
SH. G.S. MEHRA ..... RESPONDENT
Through: Ms.Sunita Tiwari, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the Yes
judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
Invoking the jurisdiction of this Court under Articles 226 and
227 of the Constitution of India, the Delhi Urban Shelter Improvement
Board (for short „the Board‟) has assailed the order dated 19.11.2009
passed by the Central Administrative Tribunal, Principal Bench, New
Delhi (for short „the tribunal‟) in TA No.523/2009.
WP(C) No.3826/2011 Page 1 of 11
2. The facts in a nutshell are that the respondent, a retired
employee of the Municipal Corporation of Delhi (MCD), had
approached the tribunal challenging the order dated 1.7.2008 whereby
in pursuance of the proceedings initiated under Section 8-A of the
DMC Services (Control and Appeal) Regulations, 1959 (for short „the
1959 Regulations‟), a minor penalty of censure was inflicted on him.
That apart, the order dated 10.4.2008, whereby the charge of Deputy
Director from the applicant was taken over and others were promoted,
was also challenged. After the MCD, by virtue of a notification issued
under Section 14 of the Administrative Tribunals Act, 1985, came
within the ambit and sweep of the said Act, the matter stood transferred
to the tribunal for adjudication.
3. The respondent was employed with the then existing Slum & J.J.
Department of MCD. By order dated 21.12.2004, he was asked to look
after the current duty charge of Deputy Director. While he was
holding the said post, a charge sheet was issued on 21.12.2006 in
respect of certain misconduct. In pursuance of the charge sheet, an
enquiry was conducted and after conclusion of the disciplinary
proceedings, punishment of censure was imposed by order dated
WP(C) No.3826/2011 Page 2 of 11
1.7.2008. Before the punishment came to be inflicted, the current duty
charge assigned to the respondent for the post of Deputy Director was
taken over from him for administrative reasons. The respondent filed
the writ petition for quashment of the charge sheet dated 21.12.2006
and further quashment of the order by which the current duty charge of
the respondent had been taken away. A claim was also made for
promotion on adhoc basis as Deputy Director.
4. A counter affidavit was filed by the petitioner herein contending,
inter alia, that the respondent was on the current duty charge and,
hence, no right accrued in his favour. Though the current duty charge
was withdrawn, yet it had nothing to do with the initiation of the
disciplinary proceedings which was done for administrative reasons. It
was also asserted that five incumbents were promoted to the post of
Deputy Director on adhoc basis in the year 2008 and none of them
were junior to the respondent.
5. The tribunal referred to the decision in Roop Singh Negi v.
Punjab National Bank & Ors., 2009 (1) SCALE 285 and came to
hold that the misconduct had not been proved and he had been made a
scapegoat and, therefore, the penalty could not be sustained. After so
WP(C) No.3826/2011 Page 3 of 11
holding, the tribunal directed as follows:
"6. The applicant has been looking after the
current duty charge of the post of Deputy Director
since 2004 whereas his juniors, who happened to
perform the current duty charge, have been
promoted as Deputy Director on ad-hoc basis since
2005, in this view of the matter taking off the said
charge from the applicant only, on the basis of
penalty of censure, which has now been declared
illegal as a consequence thereof the applicant till
his retirement has to be deemed to be on current
duty charge and deserves consideration for ad hoc
promotion as has been done in cases of his junior
colleagues from 2005 or which a review DPC or
the methodology as adopted by the respondents
shall be brought in force so that the applicant be
placed at part with his junior colleagues with all
consequential benefits within a period of two
months from the date of receipt of a certified copy
of this order...."
6. It is worth noting, an application was made for correction of the
said paragraph on the ground that a typographical error had crept in.
The tribunal, by order dated 25.11.2010, passed the following order:
"In the interest of justice, as some typographical
error has crept-in into the order dated 19.11.2009
whereby the word „colleagues‟ has been referred to
WP(C) No.3826/2011 Page 4 of 11
as „juniors‟ in paragraph 6 of the order, this MA is
disposed of with a direction to the Registry to
make necessary correction in the order and issue a
fresh copy of the same to the parties."
7. We have heard Mr. Vinay Sabharwal, learned counsel for the
petitioner, and Ms. Sunita Tiwari, learned counsel for the respondent.
8. Upon perusal of the factual matrix in entirety and the order
passed by the tribunal, two issues emanate for consideration - one,
whether the tribunal was justified in quashing the punishment imposed
on the respondent and, secondly, whether the direction issued in the
impugned order to consider the respondent for adhoc promotion, as has
been done in the case of junior colleagues from 2005, and extend all
consequential benefits is justified or not. First, we shall refer to the
justifiability of the order of the tribunal lanceting the order of
punishment. In this context, we may refer to the statement of
imputation in the chargesheet dated 21.12.2006, which reads as
follows:
"Sh. G.S. Mehra was working as Dy. Director/JR/
West Zone, Slum & JJ Deptt. He was duty bound
to exercise proper supervision and control over the
WP(C) No.3826/2011 Page 5 of 11
functioning of his subordinate staff to ensure
proper maintenance of allotment filed.
Director (HQ) vide his orders dated 26.03.2011
directed Jt. Director (Vig) to investigate and
submit the report regarding missing files/records/
documents from the zonal office of West Zone.
The investigation was conducted by the Vig.
Deptt. The investigation revealed that more than
6000 allotment files were missing during the
working tenure of Shri G.S. Mehra, Dy. Director.
But he did not issue any circular to traceout the
said missing files. He also did not ensure the
adoption of proper procedure regarding handing
over / taking over of the charge by the staff
working under his supervision and control. He
also did not take any action against the concerned
erring official who were responsible for missing of
the said 6000 allotment files. He also did not
lodge FIR in the police station regarding missing
of allotment files.
From the foregoing, it is evident that Sh. G.S.
Mehra Dy. Director failed to exercise proper
supervision and control over the functioning of his
subordinate staff due to which more than 6000
allotment files were lot causing difficulties to the
department to recover licence fee and ground rent
etc. from the plot holder and also financial loss to
the department.
He, thereby, contravened Rule 3(1)(i)(ii)(iii) &
3(2) of CCS (Conduct) Rules, 1964 as made
applicable to the employees of MCD."
WP(C) No.3826/2011 Page 6 of 11
9. An enquiry was conducted and ultimately, the punishment of
censure was imposed. The tribunal, while setting aside the
punishment, has opined as follows:
"What has been alleged against the applicant is
that he has not taken any action for tracing out the
missing files. Perusal of record would clearly
reveal that the applicant joined only in 2004 and it
is established from the Vigilance Report submitted
after due investigation that files sent missing from
the year 2001. As such, while no action has been
taken against any of the staff till 2004 in which
year the applicant joined the post of Deputy
Director in the Section from where files were
missing, he has been made scapegoat as for three
years i.e. from 2001 when the files got missing,
neither any FIR was lodged by any of the officers
holding the post no any action, was initiated in that
regard. However, the applicant, immediately on
his joining the post of Deputy Director in the
Section of 2004 and after coming to know about
the missing files, initiated action for restructuring
of the files has not only acted diligently but
efficiently without any negligence. In such view
of the matter without any fault attributed to the
applicant with regard to missing files, the applicant
has been punished that too without passing a
speaking reasoned order without dealing with his
contentions made in his representation against the
WP(C) No.3826/2011 Page 7 of 11
show cause notice. It appears that without any
material to prove the misconduct on the part of t he
applicant and just to put the blame on the applicant
and to justify their action, the respondents have
made to applicant not only scapegoat but
victimized him which appears to be unfair and
non-judicious exercise of the discretion vested in
them. In the result, penalty cannot be
countenanced in law."
10. As far as the quashment of the punishment of censure is
concerned, we are only inclined to think that the analysis made by the
tribunal cannot be faulted. The tribunal has analyzed the facts and
dealt with the conduct of the respondent and since it observed that the
respondent had no role in the entire episode and the order passed by the
disciplinary authority is cryptic, we find that the order is justified.
Hence, we are not inclined to interfere.
11. Presently to the direction given by the tribunal after quashing the
punishment in paragraph 6 of the order impugned, which we have
reproduced hereinabove. To appreciate the controversy, it is
appropriate to refer to the order dated 21.12.2004 whereby the
respondent, along with others, was entrusted with the current duty
charge of the post of Deputy Director. On a perusal of the said order, it
WP(C) No.3826/2011 Page 8 of 11
is quite clear that five incumbents were given the current duty charge
of the post of Deputy Director in their own pay scale for a period of
one year till the post is filled up on regular/adhoc basis, whichever is
earlier. The said order was subject to the following terms and
conditions:
"1. The appointment is in the officer‟s own pay scale
and as a stop-gap arrangement.
2. It will confer no right on the officer for claiming
ad-hoc or regular appointment to this post or any
other service benefit, whatsoever.
3. The period of service rendered on current duty
charge will not count as officiation in the higher
grade for any purpose, whatsoever.
4. Other condition of service will be governed by the
relevant rules and orders may be in force from
time to time."
12. On a perusal of the aforesaid order, it is quite vivid that it was a
stop gap arrangement and did not confer any right on the incumbent
officers and further it was not to be treated as officiation in the higher
grade for any purpose.
13. That apart, he had made a bald allegation that his juniors were
WP(C) No.3826/2011 Page 9 of 11
promoted on adhoc basis since 2005. No right accrued in his favour
while he was holding the current duty charge. The learned counsel for
the petitioner has brought on record the seniority list wherein the
respondent has been placed at S.No.5. Four others who were senior to
the respondent have been promoted as Deputy Director on adhoc basis.
The list clearly shows that none of the juniors was promoted to the post
of Deputy Director on adhoc basis. The said seniority list has been
published on 5.5.2008. The respondent has been superannuated on
30.4.2009. We really fail to appreciate how the tribunal could have
issued direction for consideration of the respondent for promotion
when none of his juniors was promoted on adhoc basis. The tribunal
has presumed that he was senior and after the punishment was
quashed, he should be considered for promotion.
14. In view of the aforesaid premised reasons, we are of the
considered opinion that the order of the tribunal quashing the order of
punishment is justified for directing the present petitioner to consider
him and extend the consequential benefits.
15. Resultantly, the writ petition is allowed in part and the order
passed by the tribunal as regards the direction contained in paragraph 6
WP(C) No.3826/2011 Page 10 of 11
of the order impugned is quashed. There shall be no order as to costs.
CHIEF JUSTICE
SANJIV KHANNA, J.
SEPTEMBER 12, 2011 pk WP(C) No.3826/2011 Page 11 of 11