Central Administrative Tribunal - Delhi
Sunil Chawla vs Delhi Development Authority Delhi on 17 April, 2023
1
OA 3212/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. 3212/2015
Reserved on: 15.03.2023
Pronounced on:
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Sunil Chawla
J.E. (Civil) at Northern Division No.1,
Pitampura Office Complex,
S/o Shri Mulk Raj Chawla
Aged about 55 years,
R/o 130C, AD Block,
Pitampura, Delhi ...Applicant
(Through Ms. Rashmi Chopra with Ms.Vatsala C. Chaturvedi and
Mr. Puneet Rathi, Advocates)
Versus
1. Delhi Development Authority (DDA)
Through its Vice Chairman,
INA, Vikas Sadan,
New Delhi
2. Commissioner
North Delhi Municipal Corporation
SPM Civic Centre,
J.L.N. Marg, New Delhi ...Respondents
(Through Mr. H.K. Gangwani with Mr. Shailendra Kumar Misra,
Mr. M.S. Reen, for respondent 2)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
The present OA has been filed under Section 19 of the Administrative Tribunals Act 1985. While challenging the inquiry report dated 15.07.2008 and the orders dated 2 OA 3212/2015 19.03.2012, 1.09.2014 and 5.07.2015 passed by the disciplinary, appellate and revisional authorities respectively, the applicant has prayed for the following reliefs:
"8.1 Set aside the impugned orders at Annexure A-1 to Annexure A-4 8.2 Direct the respondents to grant consequential benefits to the applicant by restoring his reduced pay with arrears and also to grant 2nd ACP with GP of 6600 w.e.f. 5.3.2009 with all arrears and also further benefits as admissible in law."
2. The brief facts of the case are that a major penalty proceeding was initiated against the applicant vide memo dated 12.06.2006 on the ground that while functioning in Building Deptt./Rohini Zone, MCD (on deputation from DDA) as Junior Engineer (B) w.e.f. 30.06.2003 to 10.09.2003, in charge of the area of Lawrence Road Industrial Area, Delhi he had committed lapse on the following counts:
"1. He failed to stop/demolish unauthorized construction of deviations and excess coverage carried out at Ground, First & Second Floor by the owner/builder on property No.B-2, Lawrence Road Industrial Area, Delhi at its initial/on-going stage and thereby allowed owner/builder to carry out and complete the unauthorized construction of a huge Banquet Hall in blatant violation of sanctioned building plan/Master Plan.
2. He failed to book the aforesaid property against unauthorized construction for taking demolition action under section 343/344 of DMC Act.
3. He failed to initiate action for sealing the aforesaid property against unauthorized construction under section 345-A of DMC Act.
4. He failed to initiate action u/s 332/461 r/w 466-a of DMC Act for prosecution of the owner/ builder who carried out non-compoundable deviation/ excess coverage in contravention of building plan/Master Plan of Delhi.
5. He also failed to initiate action for disconnection of electricity and water to the unauthorized construction portion of the property."3 OA 3212/2015
3. The inquiry officer (IO) in his findings dated 15.07.2008 stated that out of the five charge, only Articles 1 and 2 were proved as follows:
"In view of the above assessment of evidence, Article-1 of the charge framed against the CO that he failed to stop/demolish unauthorized constructions of deviations and excess coverage out at Ground 1st, 2nd Floor by the owner/builder on property No.B-2, Lawrence Road Industrial Area, Delhi at its initial/ongoing stage and thereby allowed owner/builder to carry out and complete the unauthorized construction of a huge Banquet Hall in blatant violation of sanctioned building plan/Master Plan is PROVED.
It has already been brought out in the foregoing paras that the CO did not book the subject property against unauthorized construction for taking demolition action the relevant time, i.e. prior to 31.10.2002 and again on 19.02.2003, corresponding to the entry made in the BWR. Accordingly, Article - 2 of the charge framed against the CO that he failed to book the aforesaid property against unauthorized construction for taking demolition action under section 343/344 of DMC Act, is PROVED.
The Article 3, 4 and 5 were held as not proved."
4. On receipt of the findings of the IO, the competent Disciplinary Authority on 13.9.12 imposed a penalty of reduction by one stage in the time scale of pay for a period of one year with further direction that he will not earn increment during this period and after expiry of the penalty period it will have the effect of postponement of his future increments of pay. The Appellate Authority (AA) on consideration of his appeal reduced the penalty, in as much as he was to earn increment during the currency of penalty and after the penalty period it was not to have effect of postponement of his future increment of pay which conveyed to him on 1.09.2014. Against the order of the AA, the applicant preferred a revision petition dated 27.02.2015 4 OA 3212/2015 before the Vice Chairman (VC), DDA, requesting for a personal hearing which was granted to him on 29.04.2015. The plea taken by the applicant was that his role as JE (Building) was limited to booking of demolition programme and it was the duty of the A.E. to demolish a specific property. The VC being the revisioning authority, observed that although the A.E. is responsible for taking the final call but he is assisted by the team of subordinates i.e. Junior Engineers, nowhere is it mentioned that the applicant had pointed out about the concerned property being left out in repeated demolition programmes. If the property is left out in repeated demolition programmes, the applicant should have brought it to the notice of A.E. He, therefore, agreed with the observation of the AA that in this case AE is more responsible for such an act but JE's role to assist the AE in proper discharge of duty is not fulfilled. He concluded that had the applicant brought the same into the notice of AE and despite such notice AE had left out the property then the applicant would have a ground for exoneration. Therefore he saw no reason to interfere with the order of the AA.
5. We have heard the learned counsels for the parties and perused the pleadings on record.
6. The learned counsel for the applicant in his submission has stated that the impugned orders passed by the respondents are illegal, arbitrary, malafide and against the 5 OA 3212/2015 law on the subject as the primary responsibility for the demolition was that of AE and the applicant under orders of the AE thrice made the attempt to complete the task of demolition given to him, failing which he had brought it to the notice of the AE. He has also refuted and denied both the charges.
7. Learned counsel for the respondents, on the other hand, both through their counter and arguments advanced, have asserted that the charges against the applicant have been emphatically proved by the IO and hence the penalty imposed is fair.
8. It is not in dispute that the departmental inquiry in question is for the period between 30.06.2003 and 10.09.2003 while the applicant was working as JE (B), Building Department, Ward No.28, Rohini Zone on deputation from DDA and, therefore, Articles of Charges 1 and 2 which have been proved by the IO are to be dealt with in the context of the above mentioned period alone.
9. The Ist Article of Charge reads as follows:
"1. He failed to stop/ demolish unauthorized constructions of deviations and excess coverage carried out at Ground, First & Second Floor by the owner/builder on property No.B-2, Lawrence Road Industrial Area, Delhi at its initial/on-going stage and thereby allowed owner/builder to carry out and complete the unauthorized construction of a huge Banquet Hall in blatant violation of sanctioned building plan/Master Plan."6 OA 3212/2015
10. It follows from the above that this Article of Charge is about his failure to stop/demolish unauthorized constructions of deviation and excess coverage of area. On perusal of the relevant records, it appears that on three different occasions i.e. on 23.07.2003, 26.08.2003 and 2.09.2003, the applicant made attempt for demolition of unauthorized construction in question which could not be carried out. The stated reason for inability to carry out demolition on each occasion was shortage of time and the direction of his superior i.e. AE was to try again every time.
11. From the perusal of relevant documents which are a part of pleading, it is evident that the applicant had submitted the following note to the AE dated 10.02.2003:
"File No.09/B/UC/RZ/2003 Dated: 10.2.03 In the above noted case, show cause notice and demolition notices were issued and served upon the party, but the party has failed to comply with the directions of the demolition notice within the stipulated time.
The construction is unauthorized and cannot be regularized under BBLs. Hence, demolition orders may be passed and file be handed over to O.I. (Bldg.) for putting up the case on its turn for demolition as per policy please.
Sd/ Jr.Engineer (Building) Rohini Zone."
12. It also appears from the note submitted by the applicant to the AE that after each failed operation he arrived at the site in question after completing the work of removal of unauthorized structure/s at some other site/s. The relevant 7 OA 3212/2015 portions of noting as submitted to AE and his directions are reproduced below:
"1/12/VC/R7/02 JE - D/action could not be carried out due to shortage of time as action taken at P.N.C-6/177B as complaint reference.
Sd/-
23.7.03 AE - Try again 3.8.03 JE - D/action could not be carried out due to shortage of time as action goes to take at C-34/2 Keshav Puram Indl. Area. But due to resistance and installation of heavy refrigeration plant action could not be taken. After that action taken at ongoing work at C-8 block as complaint ref.
Sd/-
26.8.03 AE - Try again 2.9.03 JE - D/action could not be carried out due to shortage of time as action taken at 2018, Gali No.157, Ganesh Pura as Court Case reference.
Sd/-
2.09.03 AE - Try again"
What is common in all the three notings above is that the task could not be accomplished due to shortage of time and AE instructed the applicant on each occasion to try again.
13. It begs the question as to what was the responsibility of JE as per his charter of duty. The learned counsel for the applicant in this context has drawn our attention to the Circular No.D/167/EE(B)HQ/99 dated 22.03.1999 which deals at length about the procedure to be followed in taking action against the unauthorized construction. Para 3 of the 8 OA 3212/2015 said circular captioned "Action against the unauthorized construction", reads as follows:
"3. Whenever any unauthorized construction/ deviation against sanctioned building plan is noticed by the Junior Engineer (Bldg.) incharge of the area, he will prepare the F.I.R. and show cause notice u/s 343 and 344 of the D.M.C. Act and put-up to the Assistant Engineer (Bldg.). These notices will be issued under the signatures of the Assistant Engineer (Bldg.) in charge of the area. Similarly, Notice u/s 343 will be issued under the signatures of the Assistant Engineer (Bldg.) after carefully examining the merits of the case.
xxxx xxxx xxxx xxxx The Junior Engineer (Bldg.) and Assistant Engineer (Bldg.) shall work under the direct supervision of the Executive Engineer (Bldg.) and superintendence of the concerned Superintending Engineer of the area and under overall supervision and control of the Dy. Cm. of the zone."
Similarly, the instruction at para 6 captioned "Demolition Gang" reads as follows:
"Each Executive Engineer (B) will have one demolition gang with truck and labour and he will depute one Assistant Engineer (Bldg.) for taking attendance and other service matters of such gang. This demolition squad will be carved out of the existing staff of the labour in the zone including rendered surplus from the office of the Zonal Engineer (Bldg.) after obtaining orders from Dy. Cm. of the zone. Executive Engineer (Building) will however, decide the labour to be sent at his own level in consultation with the Assistant Engineer (Bldg.). Demolition action will be taken as per the instructions on the priorities already issued in this regard. However, orders of out of turn demolition will be issued by the Dy. Cm/Superintending Engineer of the zone."
14. It is evident from the above that the role of JE (Bldg.) was limited to prepare the FIR and Show Cause Notice under the relevant Section and put up to AE. These notices were to be issued under the signature of AE. Though this issue is not under contention but it amply throws light on the responsibility assigned to the JE. However, it is evident from para 6 that demolition action was to be taken as per the 9 OA 3212/2015 instruction on the priorities already issued in this regard and in the instant case the JE was taking action to remove demolition as ordered by AE and as per the priorities indicated by his superior authorities. It is also evident that on each of the three occasions he arrived at the site in question after completing some other unauthorized construction site as per the priority indicated. It is also obvious that by the time he reached at the demolition site under consideration, he was left with no time to act further, which was duly reported to the AE.
15. In the circumstances, we are of the considered view that JE performed the limited role assigned to him adequately. Though the AA and the Revisional Authorities both have mentioned in the impugned order that the demolition process could have been planned and executed after ensuring adequate time available for it and AE was more responsible for such act but JE could have advised accordingly.
16. On perusal of record, no such lapse can be assigned to JE to our mind as he dutifully reported that the property in question is left out due to paucity of time. Therefore, we do not find any dereliction of duty on his part.
17. During hearing the learned counsel for the respondents has furnished a chart indicating the status of action taken against delinquent officers involved in the present case contending that in the same case a number of officials have 10 OA 3212/2015 been given penalty including the applicant and thus action against him is justified:
"STATUS OF MCD's & DDA'S CO-ACCUSED OFFICER'S TO WHOM CHARGE SHEETS HAD BEEN ISSUED ON THE SAME COUNT ON WHICH THE APPELLANT HAS BEEN PROCEEDED AGAINST.
Sl. Name of the Was Posted Tenure Orders issued
No. Officer's as
1. Sh.R.K. E.E. (B), Jan.-2002 'Exonerated'
Bhattacharaya Rohini Zone to May- by the
2003 Commissioner,
MCD
2. Sh. S.P. Gautam E.E. (B), May-2003 'Drop'
Rohini Zone to Feb.- by the
2004 Commissioner,
MCD
3. Sh. R. R. Meena A.E. (B), 23.12.2002 'Major Penalty'
Rohini Zone to Imposed by the
(Ward No.28) 09.09.2003 Commissioner MCD
4. Sh. S.R. Ahluwalia A.E (B) 10.09.2003 'Drop' Rohini Zone to Year By the (ward No.28) 2004 Commissioner, MCD
5. Sh. S.P. Garg JE(B) 07.03.2003 'Exonerated' Rohini Zone to by the (Ward No.28) 30.06.2003 Commissioner MCD
6. Sh. Sunil Chawla JE (B) 30.06.2003 'Minor Penalty' Rohini Zone To Imposed by the (Ward No.28) 10.09.2003 Appellate Authority DDA
7. Sh. Suresh Kumar JE (B) 11.09.2003 'Exonerated' Rohini Zone To by the Disciplinary (Ward No.28) 20.01.2004 Authority, DDA
8. Sh. V.K. Singh JE (B), 21.01.2004 'Major Penalty' Rohini Zone to year imposed by the (Ward No.28) 2004 Commissioner, MCD
18. From the above it is seen that three of the officials have been exonerated, charges have been dropped against two and penalty has been imposed in three cases. But as each of these cases have been dealt with separately by the department and the imputation of charges and other material factors may be specific to each such case, the plea taken by the learned counsel does not appear to be tenable. 11 OA 3212/2015
18. So far the second charge is concerned, which is about non-booking of the property, it is apparent that such act of omission or commission does not pertain to the period 30.06.2003 to 10.09.2003 and the applicant, during the period 15.07.2002 to 7.03.2003, had booked ground floor of the property in question during his earlier period of deputation. He took charge of the post in the same year on 30.06.2003 and remained there till 10.09.2003. Since the property was already booked and demolition orders were passed as proved from the record, question of not booking the property against unauthorized construction for taking demolition action under the relevant Section of DMC Act does not arise. In the impugned order of the DA at Annexure A-2, it is admitted that the property was booked by the applicant on 22.01.2003 and demolition orders were passed on 10.02.2003. It is revealed that the applicant booked the unauthorized construction on 22.01.2003 while it was noticed by him on 31.10.2002. The DA in his order has mentioned that it is evident that he booked the unauthorized construction after a gap of about 03 months and allowed the owner/builder of the property under reference to carry out and complete the unauthorized construction of a huge Banquet Hall in blatant violation of sanctioned building plan/Master Plan. However, at the risk of repetition we assert that in the charge memo issued to the applicant, Article of Charge pertaining to his failure to book the property 12 OA 3212/2015 pertains to the period 30.06.2003 to 10.09.2003. Since the cause of action leading to the charge sheet is not relevant to the period, the charge does not stand the legal scrutiny.
19. In view of the above, we are of the opinion that the two charges based on which the penalty has been imposed, are not proved. Accordingly, the impugned orders are set aside. The respondents are directed to grant all consequential benefits to the applicant as per the extant rules. This exercise should be completed as expeditiously as possible and preferably within eight weeks of receipt of a copy of this order. No order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member(J) /dkm/