Central Administrative Tribunal - Delhi
Rajesh Kumar Taneja vs North Delhi Municipal Corporation on 11 January, 2021
1 OA.3543/2019 & OA.3552/2019
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3543/2019
with
O.A. No. 3552/2019
New Delhi this the 11th day of January, 2021
(Through Video Conferencing)
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
O.A. No.3543/2019
Shri Rajesh Kumar Taneja
S/o Late K.C. Taneja,
R/o B-112, Sector 50,
S.E. Age 57 years, Group 'A'
Noida, UP
...Applicant
(By Advocate : Shri Rajeev Sharma)
Versus
1. The Commissioner,
North Delhi Municipal Corporation,
Dr. S.P. Mukherjee Civic Centre, 4th Floor,
J.L. Marg, New Delhi.
2. The Commissioner,
East Delhi Municipal Corporation,
419, Udyog Sadan, Patparganj Ind. Area,
Delhi - 92.
2 OA.3543/2019 & OA.3552/2019
3. The Commissioner,
South Delhi Municipal Corporation,
Dr. S.P. Mukherjee Civic Centre, 94th Floor,
J.L. Marg, New Delhi.
...Respondents
(By Advocates : Shri Rajeev Kumar, Shri R.V. Sinha and
Shri Amit Sinha)
O.A. No. 3552/2019
Shri Rajesh Kumar Taneja
S/o Shri K.C. Taneja,
R/o B-112, Sector 50,
S.E. Age 57 years, Group 'A'
Noida, UP
...Applicants
(By Advocate : Shri Rajeev Sharma)
Versus
1. East Delhi Municipal Corporation,
Through its Commissioner,
419, Udyog Sadan, Patparganj Ind. Area,
Delhi - 92.
2. North Delhi Municipal Corporation,
Through its Commissioner,
Dr. S.P. Mukherjee Civic Centre,
J.L. Marg, New Delhi.
...Respondents
(By Advocates : Shri Rajeev Kumar, Shri R.V. Sinha and
Shri Amit Sinha)
3 OA.3543/2019 & OA.3552/2019
ORAL ORDER
Justice L.Narasimha Reddy, Chairman These two OAs are filed by the same applicant. Hence they are being disposed of through a common order.
2. The applicant joined the Engineering Services of the Municipal Corporation of Delhi as Junior Engineer, in the year 1990. He participated in the process of direct recruitment to the post of Assistant Engineer in the same service and was appointed in that post in 1990. He was promoted to the post of Executive Engineer in 1997 and to the post of Superintending Engineer on adhoc basis, on 12.04.2007. While in service, the applicant is said to have completed the Master's Degree and thereafter P.hd. from IIT Delhi. He stated that the DPC for promotion to the various posts including Superintending Engineer and Chief Engineer were not conducted for quite some time and ultimately it was conducted on 29.12.2015 and for the post of Superintending Engineer. For appointment to the post of Chief Engineer on adhoc basis, a departmental screening committee met on 25.11.2019, and an 4 OA.3543/2019 & OA.3552/2019 order of appointment was issued on 27.11.2019. The name of the applicant did not figure therein.
3. The applicant states that the respondents issued a charge memo dated 28.11.2019 alleging that an unauthorized construction of a hotel by name Arpit Palace in Karolbagh came into existence with six floors between May 1993 and January 1994 and though it was booked on several times for unauthorized construction, no effective steps were taken by the Executive Engineers who worked from time to time. It was alleged that the applicant worked there between 26.11.1999 to 30.05.2000 and that he too failed to take any action. Reference was made to the fire accident that occurred on 12.02.2019.
4. OA.3543/2019 is filed challenging the office order dated 27.11.2019 and OA.3552/2019 is filed challenging the charge memo dated 28.11.2019.
5. The applicant contends that even a perusal of the charge memo and statement of allegations discloses that the unauthorized construction came into existence in 1993-1994 and during that 5 OA.3543/2019 & OA.3552/2019 period itself, several orders of demolition were issued, but there was an order of court dated 15.01.1994, directing status quo. He contends that when he was not holding the post at any point of time, during which unauthorized construction has taken place and orders of demolition were passed, it is just un-understable as to how he can be issued charge memo. He further stated that promotion to the post of Chief Engineer was denied without any legal or factual basis.
6. The respondents 1 and 2 filed separate replies. According to them, the OA cannot be maintained against a charge memo and that the truth or otherwise of the charge memo can be considered in the inquiry. It is also stated that the fire accident in the Hotel, became subject matter of several proceedings and that it has been decided to inquire into the acts and omissions on the part of the various officers who worked in the concerned area, and accordingly charge memo was issued. In the other OA, no counter affidavit was filed.
6 OA.3543/2019 & OA.3552/2019
7. We heard Sh.Rajeev Sharma, learned counsel for the applicant and Sh.Rajeev Kumar, Sh.R.V.Sinha, and Sh.AmitSinha, learned counsel for the respondents.
8. The two OAs are filed challenging the charge memo on the one hand and the order of promotion dated 27.11.2019, to the post of Chief Engineer, in so far as it does not contain the name of the applicant.
9. The service particulars of the applicant are furnished. The applicant worked in the Karolbagh area as Executive Engineer for a period of six months between 26.11.1999 and 30.05.2000. In the charge memo, it is alleged against the applicant as under :
1. He failed to fix the effective demolition programme against the unauthorized construction at property bearing no.17A/1, WEA, Karol Bagh Zone despite the vacation/disposal of stay order dt.25.01.1994 by Hon'ble High Court of Delhi on 31.8.1995 in the matter titled as Vinod Jain Vs. MCD bearing CS(OS) No.196/1994.
7 OA.3543/2019 & OA.3552/2019
2. He failed to get demolition/sealing action against the unauthorized construction in the said property No.17A/1, WEA, Karol Bagh Zone.
3. He further failed to take prosecution action against the owner/builder of the property as per the provisions of DMC Act.
4. He failed to have proper control/supervision over the working of his subordinate JE/AE.
10. We are conscious of the fact that the Tribunal cannot interfere with the charge memo unless there exists, the few circumstances recognized by law. The first is where the charge memo is issued by the authority not vested with the power and the second one is where, no act of misconduct can be discerned against an employee, even if the facts mentioned in the charge memo are taken as true. It is keeping in view of these restrictions, that we proceed to examine the issue.
11. The unauthorized construction of Hotel Arpit Palace, in KarolBagh came into existence in the year 1993-1994. It appears that some attempts were made to prevent the construction but the owner of the hotel obtained an order of status quo from a Court of Law. Even after the proceedings in the Court terminated, the 8 OA.3543/2019 & OA.3552/2019 repeated attempts were made by various authorities, to demolish the structure. The respondents swung into the action only when a fire accident took place on 12.02.2019 in the Hotel, resulting in death of 17 persons and injuries to many. Having been in deep slumber for about quarter of a century, the respondents acted with utmost speed. But for the accident, there would not have been any scope for initiating any action whatever. The gist of the investigation that was taken up, after the fire accident is mentioned in the statement of allegations as under :
"The investigation further revealed that the Hotel "Arpit Palace" was illegally constructed in property bearing no.17- A/1, WEA, Karol Bagh Zone from basement to fifth floor along with lift room on sixth floor during the period w.e.f. May 1993 to January 1994 and the same was booked five times by the Bldg. Deptt., KBZ on 14.6.1993, 12.7.1993, 26.10.1993, 14.11.1993 & 14.01.1994 vide UC files no.B/UC/KBZ/93/177, B/UC/KBZ/93/229, B/UC/KBZ/93/325, B/UC/KBZ/93/343 &B/UC/KBZ/94/21 respectively. In the said U/C files, the demolition orders were passed on 18.06.1993, 16.07.1993, 01.11.1993, 12.11.1993 &21.01.1994 respectively.
9 OA.3543/2019 & OA.3552/2019 Thereafter, during the span of seven months approximately, cosmic demolition actions were taken thirteen times on 16.6.1993, 21.6.1993, 25.6.1993, 30.6.1993, 9.7.1993, 13.7.1993, 20.7.1993, 16.8.1993, 7.10.1993, 5.11.1993, 15.01.1994, 23.03.1995 & 24.03.1995. But despite of the above said actions, it is apparent that effective demolition actions were not taken by the officials of the building deptt. And the demolition over the structure from ground floor to sixth floor were shown on papers only.
As per report of OI(B), Karol Bagh Zone dated 8.3.2019, none of the aforesaid five UC files in respect of said property was traceable in the record of Bldg, Deptt., Karol Bagh Zone. The OI (B), Karol Bagh Zone has, however, submitted the above details of booking and demolition action were taken from missalband/demolition register. As per record, there was a court order dated 25.1.1994 passed by Hon'ble High Court of Delhi in the matter of Vinood Jain Vs.MCD in CS(OS) 196/1994 vide which Hon'ble High Court of Delhi had restrained MCD from sealing, demolition etc. regarding property in question. The Hon'ble High Court vide orders dated 31.08.1995 has disposed of the above case. Moreover, no demolition/sealing action were taken by the Bldg. Deptt., 10 OA.3543/2019 & OA.3552/2019 Karol Bagh Zone w.e.f. September 1995 to 19th May 2006 i.e. till the date & year of enactment of Special Provisions Act, 2006 granting the relief of unauthorized construction from demolition, sealing etc. by MCD."
12. These two paragraphs are self-explanatory. Hardly any role was attributed to the applicant. It is not even mentioned that as to how the Commissioners of the Corporation were not named in the process. The role attributed to the applicant is evident from the following paragraph of that statement :-
"During the investigation, it was revealed that Sh.Rajesh Kumar Taneja was posted as Executive Engineer during the period from 26.11.1999 to 30.05.2000 and he was duly bound to fix the demolition programme for demolishing the unauthorized construction in the property bearing no. 17A/1, WEA, KarolBagh (M/s Hotel Arpit Palace), which was booked on 14.6.1993, 122.07.1993, 26.10.1993, 14.11.1993 & 14.01.1994 and the court order dated 15.01.1994 having ordered by court of law for Status Quo for the subject property as well as an Hon'ble High Court of Delhi's court demolishing etc. but the said matter was disposed off by the Hon'ble High Court of Delhi on 31.08.1995. However, no 11 OA.3543/2019 & OA.3552/2019 demolition action was taken duing the period from September 1995 to 19th May 2006 i.e. the date & year of enactment of Special Provisions Act, 2006 granting relief of unauthorized construction from demolition, sealing etc. by MCD.
Hence, he was duty bound to detect/notice the unauthorized structure in the property bearing no.17A/1, WEA, Karol Bagh (M/s Hotel Arpit Palace) which was booked on 14.06.1993, 12.07.1993, 26.10.1993, 14.11.1993 & 14.01.1993 and demolish/seal the same. He also duty bound to prosecute offender who raised the unauthorized construction over the property in question. But he failed to take demolition/sealing/prosecution action against the unauthorized construction w.e.f. September 1995 to 19 th May 2006 i.e. the date & year of enactment of Special Provisions Act, 2006 granting the relief of unauthorized construction from demolition, sealing etc. by MCD."
13. Even if one takes the contentions of these paragraphs as true, it is difficult to attribute any lapses on the part of the applicant. If the building remained intact even after dozens of demolition notices were issued in the year 1993 and 1994 and the sealing and demolition that took place, at the relevant point of time.
12 OA.3543/2019 & OA.3552/2019 It is just un-understandable as to what an Executive Engineer, who worked for about six months in the year 2000 could have done anything. The spacious plea of the respondents is that a special provisions act 2006 was enacted granting relief of constructions of demolition with reference to the structures that came into existence between September 1995 and May 2006 and the applicant did not take any steps. When the Act itself came into in force in 2006, it is inconceivable as to how, an officer who worked in the year 2000 for a period of six months can anticipate the future steps and take further action. For all practicable purposes, the charge sheet issued to the applicant was,the one, for statistical purposes, to show to the public that the Municipal Corporation is serious vis-à- vis the unauthorized constructions. The Corporation ignored the fact that the right under its nose, the structure has not only come into existence, but also remained intact, for more than quarter of a century, till it was gutted in a fire accident. The emotion exhibited at the higher administration of the Corporation soon after the accident took place, cannot be permitted to mar the career of an officer who has absolutely nothing to do with the entire episode.
13 OA.3543/2019 & OA.3552/2019
14. We, therefore, allow the OA.3552/2019 and set aside the charge memo dated 28.11.2019.Since the name of the applicant was not considered for appointment as Chief Engineer on adhoc basis in view of the issuance of the charge memo, OA.3543/2019 is allowed, and the respondents are directed shall take necessary steps, for inclusion of the name of the applicant, duly following the prescribed procedure within a period of two months from the date of receipt of this order.
There shall be no order as to costs.
(Mohd.Jamshed) (Justice L.Narasimha Reddy)
Member (Admn.) Chairman
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