Central Administrative Tribunal - Delhi
Shri Sageer Ahmed vs Delhi Development Authority on 3 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.4058/2011 Order reserved on 24.11.2012 New Delhi this the 3rd day of December, 2012 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K.Bhardwaj, Member (J) Shri Sageer Ahmed, Son of Shri Mohd Hanif, JE (C) ED-2/DDA, r/o 346-C, Pocket E, LIG Flat, GTB Enclave, New Delhi. Applicant (By Advocate Shri Rishi Prakash ) VERSUS 1. Delhi Development Authority, Through its Vice Chairman, Vikas Sadan, INA, New Delhi. 2. Engineer-Member, Delhi Development Authority, Vikas Sadan, INA, New Delhi. 3. Commissioner (Personnel), Delhi Development Authority, Vikas Sadan, INA, New Delhi. Respondents (By Advocate Shri Manish Garg) O R D E R Honble Mr. A.K.Bhardwaj, Member (J) :
As has been nailed down in the Original Application, the applicant joined Delhi Development Authority (DDA) as Junior Engineer on 21.11.1986 and went on deputation to Municipal Corporation of Delhi w.e.f. 18.02.2003, where he remained posted till 2.08.2004, i.e. for a period of one and half years. During the said period he discharged the duty as Junior Engineer (B) in building department, Shahdara (South) Zone in ward No.75-76 (w.e.f. 29.02.2003 to 14.12.2003), ward No.81-82 ( w.e.f. 1.10.2003 to 14.12.2003), Ward No.71-72 ( w.e.f. 15.12.2003 to 29.01.2004), Ward No. 73-74 ( w.e.f. 15.12.2003 to 2.8.2004) and Ward OA 4058/2011 No. 69-70 w.e.f. 30.1.04 to 2.08.2004. Vide memo No. F.27 (23) 09/AVO (Bldg)/Vig/7340 dated 02.09.2009, he was charged for committing misconduct of:-
allowing the owner/builder to carry out and complete the unauthorized construction in the property indicated in Annexure A to said memo and failing to stop/demolish the same at its initial/ongoing stage during the period of his aforementioned posting in MCD.
his failure to book the unauthorized construction carried out in the said property ( mentioned in Annexure-II the memo of charges) for taking action under section 343/344 of DMC Act; and failure in taking action for sealing the unauthorized construction under Section 345-A of DMC Act and to take action for prosecution of the owner/builder under Section 332/461-A or complaining under Sec. 466-A of DMC Act.
Shri B.B.Roy, Chief Engineer (Retd.) was appointed as Inquiring Authority to inquire into the aforementioned charges. During the course of enquiry on 15.01.2010, the Charged Officer vide his letter dated 9.12.2009 put forth that the irregularities committed in the properties mentioned in Annexure A to the charge sheet had already been investigated in a separate enquiry initiated vide Memo. F.27 (115)06/Vig./AVO(B)11032 dated 14.11.2006 and requested for keeping the said property out of purview of the enquiry proceedings which culminated with issuance of the orders assailed in the present Original Application. The Enquiry Officer accepted the said plea of applicant and confined the enquiry only to the charges in respect of the following properties:
1. 29/1 Bhola Nath Nagar
2. 437, Gali No. 14 West Guru Angad Nagar
3. 402, Gali No. 6, West Guru Angad Nagar OA 4058/2011
4. 1/596, West Guru Angad Nagar. Having taken the listed as well as defence documents on record, the enquiry officer examined Shri R.B.S.Bansal, Executive Engineer (Bldg) and Shri V.K.Gaur, OI (Bldg), Shahdara Zone, MCD as SW-1 and SW-II. Copies of listed documents as well as statement of the State witnesses were made available to applicant. P.O preferred not to examine the other State witnesses, namely, Shri Dharamvir Singh, Inspector, CBI and Shri P.K.Jain, AE (B), MCD and dropped them, which was not opposed by the Charged Officer. Since the applicant did not examine himself in his defence, he was generally examined by I.O. under regulation 25 (18) of DDA, Conduct, Disciplinary and Appeal Regulation 1999. Having considered the applicants duty as JE (B) MCD regarding unauthorized construction and his role in the entire issue, i.e. the subject matter of enquiry as well as also analyzing the evidence, the Enquiry Officer found the article 1 and 2 of the charges as not proved, charge contained in Article 3 as partly proved and Article 4 as fully proved against the applicant. In other words, the applicant was found guilty for not taking action for sealing the unauthorized construction and failure to take action for prosecution against owner/builder under Section 332/461-A or filing complaint under Section 466-A of DMC Act. While arriving at the aforementioned conclusion, in his report the enquiry officer enumerated the procedure followed in taking action for sealing the unauthorized construction under Section 345-A of the DMC Act as well as action for prosecution of the owner/builder as under:-
i. An FIR is to be prepared by the JE at the site of construction in a printed book duly page numbered to be issued by EE (Bldg).
ii. This FIR is to be placed by the JE concerned to AE on the same day for orders.OA 4058/2011
iii. A show cause notice under section344 (1) & section 343 shall be prepared by JE according to orders of AE on FIR and same shall be placed before AE for his approval and signature.
iv. JE will also prepare requisition in prescribed format under section 344 (2) of DMC Act for police intervention on the same day.
v. In case it is found that owner/builder is still continuing to work, a complaint is to be lodged to concerned Police Station u/s 466 A of Act read with section 34/120 of IPC in prescribed format.
vi. A show cause notice u/s 344 (1) & u/s 343 will be served by the JE under signatures of AE as laid down in section 444 of the act on owner/builder/occupier.
vii. Simultaneously actions for prosecution should be initiated u/s 332. This action shall be proceeded with soon after service of notice u/s 344 (1) and u/s 343.
viii. After expiry of a period of show cause notice, AE willpass a speaking order for demolition u/s 343.
ix. Action for sealing the property shall also be initiated u/s 345-A. x. It shall be incumbent on the par of concerned JE (Bldg) in charge of the area to have complete inspection of the area within 3 days to ensure that all the effective actions against the U/A construction/deviation/construction against sanction building plan are taken. As per Enquiry report, the property described as 29/1, Bhola Nath Nagar was booked by applicants predecessor on 6.08.2003 and show cause notice in respect of the same was issued on 6.08.2003. The demolition notice, demolition order and vacation notice were issued on 11.08.2003, 27.08.2003 and 17.10.2003 respectively. On 20.10.2003 the applicant pasted the vacation notice at the site. Taking note of the facts that the property was booked on 6.7.2003 i.e. 2 months before the applicant took the charge of the post in the area on 1.10.2003 and the fact that the unauthorized construction existed in the property before his joining, the enquiry officer absolved the applicant from the charge of allowing the unauthorized construction and for not stopping the same in the said building. Similarly in view of the sealing action initiated in respect of OA 4058/2011 property, by the predecessor of applicant, he was absolved from the article of charge No. 3 also. However, since the applicant was very much aware of the booking of the property as well as sealing action and he did not initiate the process for prosecution under Section 332/461-A of DMC Act till 15.12.2003, i.e. about two months, article 4 of the charge, i.e. for not initiating process for prosecution of builder/owner of property described as 29/1/ Bhola Nath Nagar (Ward No.81-82) was held proved against the applicant. While recording finding in respect of said charge ( article 4), the inquiring authority specifically viewed, though in terms of Circular 2/C dated 7.04.1994, ZE (B) might be responsible to initiate action but in terms of circular No D/167/EE(E)HQ99 dated 22.3.1999, JE (B) and AE (B) were responsible to initiate the action for sealing and prosecution. Relevant excerpts of the report of Inquiring Authority read as under:-
If two circulars are issued on a particular issue, the latest circular is to be followed independent of the fact whether supersession is mentioned or not. In this case the direction regarding sealing & prosection had been revised/changed in circular dt.22.3.99. In circular 2/c ZE (B) was required to pass order but in circular dt.22.3.99 this restriction has been removed & JE (B) & AE (B) has been made responsible to initiate action. Had it been the intention of the authority to maintain the direction issued in Circular 2/c, there was no requirement for changing the same in circular dt. 22.3.99 as the authority could have used the same language in circular dt. 22.3.99 as the circular dt. 7.4.94. But authority did not do the same thereby putting onus of responsibility for initiating actions for sealing & prosection on, either JE (B) or AE (B). The defence of CO is rejected.
Further, as per duty structure of JE (B) as elaborate in forgoing paras, JE will also prepare requisition in prescribed format u/s 344 (2) of DMC Act for Police intervention on the same day of booking. JE (B) will lodge a complaint to concerned police station u/s 466-A of DMC Act read with section 34/120 of IPC in prescribed format. CO did not take any action in this regard also. I hold the charge 4 against the CO as proved. As in property described as 437, Gali No.14, West Guru Angad Nagar, 402, Gali No. 6 West Guru Angad nagar and 1/596, West Guru Angad Nagar, the unauthorized construction existed before the applicant was OA 4058/2011 given the charge of the area E.O. absolved him from the charge of stopping unauthorized construction and allowing the builder/owner to carry out and complete unauthorized construction in the properties. Further having found that all the properties were booked on 19.7.2004, he was also absolved from the charge of failure of booking the property. However, he was held responsible for inaction/failure to book the unauthorized construction in time and for not initiating action for sealing the unauthorized construction and prosecution against owner/builder under Section 332/461-A or complained under Section 466-A of DMC Act. The plea of the applicant of being over burdened was dealt with by the Inquiring Authority as under:-
It is correct that CO was given four wards at a time. But from the facts it has emerged that regarding charges 3& 4 CO did not take any action. It is not over burdening but lack of knowledge or negligence regarding his duty as JE (B) which had attributed to his failure to take action. Accepting the enquiry report, the disciplinary authority passed order No. 15/Vig/529 dated 20.1.2011 (Annexure A 2) imposing the penalty of reduction of pay of the applicant by two stages in the time scale of pay for a period of two years upon the applicant. The penalty order had the effect of non grant of his increment during the currency of penalty and postponement of future increment. The appeal preferred by applicant against the said order was rejected in terms of order No. 254/Vig/7297 dated 21.07.2011. Thus the applicant has filed the present OA praying therein:-
(i) to quash and set-aside the impugned orders as mentioned in para no.1 above of OA and direct the respondents to restore the applicant his original time scale of pay which he was drawing at time of imposition of punishment with all consequential financial benefits including earning of increments on its due time, seniority/promotion and arrears of pay.OA 4058/2011
ii) to ward costs in favour of the applicant and against respondents.
iii) to pass any other or further order or orders which Honble Tribunal may consider just, proper and equitable in the facts and circumstances of the present case. Though in the OA, applicant has put forth as many as 32 grounds. However, to buttress his challenge to the impugned orders, during the course of hearing, Mr. Rishi Prakash, learned counsel for the applicant confined his submissions to three grounds only, i.e. The applicant was over burdened as he was given the charge of four wards, thus could not be blamed for not taking action for sealing of three property and prosecution of builder/owner of the 4 properties mentioned in the charge sheet, wherein unauthorized construction had taken a place.
Although the charges contained in article 1 were held by the enquiry officer as not proved against the applicant, but the appellate authority could take a view that applicant could not show any evidence which debarred him from taking immediate action to stop the illegal construction, thus the said order was defective.
(iii) Because two state witnesses examine during the enquiry did not
support the charges.
2. Per contra, Mr. Manish Garg, learned counsel for the respondents submitted that it was the duty of the applicant to take steps for sealing of the property wherein unauthorized construction had taken place and to initiate action for prosecution of the defaulting owner and builder or lodging complaint. He also placed reliance on judgment of Honble Delhi High Court in WC (C) No. 2292/2010 (UOI & Ors Vs. Dr. V.T.Prabhakaran).OA 4058/2011
3. We have heard the learned counsel appearing for the parties and perused the record.
4. As far as the contention of the applicant regarding the charge of four Wards is concerned, the quantum of work assigned to an employee cannot be accepted as justification for committing dereliction to duty. No Government servant can be heard saying that the negligence committed in performance of duty by him is justifiable because he was over burdened with work. If over burden is accepted as valid excuse or explanation for committing a misconduct, most of the staff would prefer to shirk the work and in case of not being allowed to do so, would claim to be authorized negligent. In UOI & Ors Vs. Dr.V.T.Prabharakan, Honble Delhi High Court viewed as under:-
33.Acts of moral turpitude, acts of dishonesty, bribery and corruption would obviously be an aggravated form of misconduct because of not only the morally depraying nature of the act but even the reason that they would be attracting the penal laws. There would be no problem in understanding the gravity of such kind of offences. But that would not mean that only such kind of indictments would be a grave misconduct. A ready example to which everybody would agree with as a case of grave misconduct, but within the realm of failure to maintain devotion to duty, would be where a fireman sleeps in the fire office and does not respond to an emergency call of ire in a building which ultimately results in the death of 10 persons. There is dishonesty. There is no acceptance of bribe. There is no corruption. There is no moral turpitude. But none would say that the act of failure to maintain devotion to duty is not of a grave kind.
34. It would be difficult to put in a strait jacket formula as to what kinds of acts sans moral turpitude, dishonesty, bribery and corruption would constitute grave misconduct, but a ready touchstone would be where the integrity to the devotion to duty is missing and the lack of devotion is gross and culpable it would be a case of grave misconduct. The issue needs a little clarification here as to what would be meant by the expression integrity to the devotion to duty. Every concept has a core value and a fringe value. Similarly, every duty has a core and a fringe. Whatever is at the fringe would not be the integrity of the duty but may be integral to the duty. It is in reference to this metaphysical concept that mottos are chosen by organizations. For example in the fire department the appropriate motto would be: Be always alert. It would be so for the reason the integrity of the duty of a fire officer i.e. the core value of his work would be to be always OA 4058/2011 alert. Similarity, for a doctor the core value of his work would be duty to the extra vigilant. Thus, where a doctor conducts four operations one after the other and in between does not wash his hands and change the gloves resulting in the three subsequent patients contacting the disease of the first, notwithstanding there being no moral turpitude involved or corruption or bribery, the doctor would be guilty of a grave misconduct as his act has breached the core value of his duty. The example of the fireman given by us is self explanatory with reference to the core value of the duty of a fireman to be always alert.
35. What we have stated in para 34 above is best understood with reference to the example in para 33 above. Thus following the view taken by Honble Delhi High Court, we are not inclined to accept the plea of the applicant that the quantum of work assigned to him was valid reason for not discharging the duty efficiently and being negligent in performance. It is true that two State witnesses examined during the enquiry deposed that the applicant had requested for withdrawing the charge of 3 Wards from him, but we are unable to appreciate that how the requests made by the applicant vide letters dated 8.10.2003 and 8.2.2004 for taking back the work of three Wards from him could justify his inaction or not taking follow up action in respect of property already booked. Besides, the enquiry Officer has come to a conclusion that the misconduct committed by the applicant was not the result of over burdening but was consequence of negligence regarding his duty. The stand taken by two witnesses is of course not relevant to the charges ( article 3 and 4) leveled against the applicant. Nevertheless, the applicant also could not bring out that he had initiated action for sealing of the property in question or prosecution of the builder/owner of the said property. Even otherwise also in the case of High Court of Judicature at Bombay V, Udaysingh s/o Ganpatrao (1997 (5 SCC 129), Honble Supreme Court ruled that the charge in disciplinary proceeding can be held proved on the basis of preponderance of probability. Relevant excerpts of the judgment read as under:-OA 4058/2011
12. It is seen that the evidence came to be recorded pursuant to the complaint made by Smt. Kundanben, defendant in the suit for eviction. It is true that due to time lag between the date of the complaint and the date of recording of evidence in 1992 by the Enquiry Officer, there are bound to be some discrepancies in evidence. But the Disciplinary proceedings are not a criminal trial. Therefore, the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see what there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion. The question, therefore, is; whether on the basis of the evidence on record, the charge of misconduct of demanding an illegal gratification for rendering a judgment favourable to a party has been proved ? In that behalf, since the evidence by Kundanben, the aggrieved defendant against whom a decree for eviction was passed by the respondent alone is on record, perhaps it would be difficult to reach the safe conclusion that the charge has been proved. But there is a contemporaneous conduct on her part, who complained immediately to her advocate, who in turn complained to Assistant Government Pleader and the Assistant Government Pleader in turn complained to the District Government Pleader, who in turn informed the District Judge. The fact that the District Judge made adverse remarks on the basis of the complaint was established and cannot be disputed. It is true that the High Court has directed the District Judge to substantiate the adverse remarks made by the District Judge on the basis of the statement to be recorded from the advocates and the complaint. At that stage, the respondent was not working at that station since he had already been transferred. But one important factor to be taken note of is that he admitted in the cross-examination that Shri Gite, District Government Pleader, Nasik had no hostility against the respondent. Under these circumstances, contemporaneously when Gite had written a letter to the District Judge stating that he got information about the respondent demanding illegal gratification from some parties, there is some foundation for the District Judge to form an opinion that the respondent was actuated with proclivity to commit corruption; conduct of the respondent needs to be condemned. Under these circumstances, he appears to have reached the conclusion that the conduct of the respondent required adverse comments. But when enquiry was done, the statements of the aforesaid persons were recorded; supplied to the respondent; and were duly cross-examined, the question arises; whether their evidence is acceptable or not? In view of the admitted position that the respondent himself did admit that Gite had no axe to grind against him and the District Judge having acted upon that statement, it is difficult to accept OA 4058/2011 the contention that the District Judge was biased against the respondent and that he fabricated false evidence against the respondent of the three advocates and the complainant. When the evidence was available before the disciplinary authority, namely, the High Court, it cannot be said that it is not a case of no evidence; nor could it be said that no reasonable person like the Committee of five Judges and thereafter the Government could reach the conclusion that the charge was proved. So, the conclusion reached by the High Court on reconsideration of the evidence that the charges prima facie were proved against the respondent and opportunity was given to him to explain why disciplinary action of dismissal from service could not be taken, is well justified In any case, we find that the various grounds raised by the applicant in his appeal dated 11.3.2011 have not been met out by the appellate authority while passing the order dated 21.07.2011. Moreover though the Inquiring Authority absolved the applicant from article one of charges, the appellate authority viewed that he was not able to show any evidence which debarred him from seeking police intervention to stop the unauthorized construction. When accepting the defence of the applicant, the Inquiring Authority had absolved the applicant from the charge of allowing the unauthorized construction and not stopping the same in the properties in question. The aforementioned view of the appellate authority that the applicant was unable to show any evidence which prevented him from stopping the illegal construction reflects non application of mind by him while disposing of the appeal of the applicant. As has been viewed by Honble Punjab and Haryana High Court in Ex.Constable Gurshinder Singh V. State of Punjab ( 2003 (3) ATJ HC (P&H) 560), appellate authority need to decide the appeal by way of speaking order. Relevant excerpts of the said order reads as under:-
16. Learned counsel for the petitioner has next contended that there was breach of Rule 16.31 of the Rules in the order passed in appeal, Annexure P-20, and as such, it was not sustainable in the eye of law. Rule 16.31 of the Rules is reproduced as under:-
16.31. Orders on appeals:- Every order passed in appeal shall contain the reasons therefore. A copy of every appellate order and the reason therefore shall be given free of costs to the appellant. OA 4058/2011
17. Learned Counsel for the petitioner has also relied in this behalf on a decision of this Court in the case of Paramjit Singh, Ex-Head Constable v.State of Punjab, 1995 (8)SLR 741. The learned Single Judge while allowing the writ petition had made the following observations:-
The order passed in appeal too cannot be sustained. Rule 16.31 of the 1934 Rule specifically provides that the order passed in appeal shall contain the reasons therefor. The Appellate authority is required to give a reasoned order while disposing of the appeal. According to the petitioner, as is evident from the grounds of appeal which has been annexured to the petition as Annexure P-2, he had raised more than 11 points for consideration of the appellate Authority in addition to his past record and also commendation certificates which he had obtained during the course of his services. The impugned order in this case shows hardly any application of mind on the part of the Appellate Authority. Appellate Authority has totally ignored the points raised by the petitioner for its consideration and the appeal has been disposed of by a very brief order.
5. In the circumstances, the order of appellate authority is quashed and matter is remitted back to the said authority for fresh adjudication of the appeal by way of speaking order.
( A.K.Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) sk