Central Administrative Tribunal - Delhi
Mrs. Pratima Sharma vs Delhi Development Authority on 3 September, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH T.A. 158/2007 New Delhi this the 3rd day of September, 2008 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Dr. Ramesh Chandra Panda, Member (A) Shri Mangat Ram Sharma (deceased), Through Legal Heirs 1. Mrs. Pratima Sharma W/o late Shri Mangat Ram Sharma, R/o D-4/4145 Vasant Kunj, New Delhi-110070. 2. Shri Shivan Prabhakar, S/o Late Shri Mangat Ram Sharma, R/o D-4/4145 Vasant Kunj, New Delhi-110070. Petitioner. (By Advocate Shri Rakesh K. Khanna, Sr. Counsel with Shri Reetesh Singh and Shri Faizy Ahmed Sayed) Versus 1. Delhi Development Authority, Through its Vice Chairman, Vikas Sadan, INA, New Delhi. 2. The Chairman, Delhi Development Authority, Vikas Sadan, INA, New Delhi. Respondents. (By Advocate Shri Rajinder Khatter) O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (J).
Writ Petition 1386 of 2005 came to be filed before the Delhi High Court when the petitioner, who was working as Superintending Engineer, had been retired from service in exercise of powers conferred on the Vice Chairman under FR 56 (j). The order is Annexure P-7 dated 24.02.2003. The order indicates that a review committee constituted for purpose of review of cases under FR 56 (j) after considering the overall service records and the details of vigilance cases had concluded that the applicant shall be retired from service. The normal date of retirement of the person would have been 31.08.2005. Although an appeal had been filed against the order, it was rejected, on 20.01.1995 by Annexure P-5. The writ petition filed had been transferred over to this Tribunal, in October, 2007. The case had been listed for final hearing on 17.03.2008. Later on, it was made known by MA 03 of 2008 that the applicant had expired. As at present, legal representatives of the applicant have been brought on the array of parties.
2. We had heard Shri Rakesh K. Khanna on behalf of the applicant and Shri Rajinder Khatter on behalf of the respondents.
3. Mr. Khanna submits that the decision of the respondents, for retiring the officer perhaps was a colourable exercise of power since he had an exemplary service record. At the fag end of his career, there was an attempt to tarnish his image and to deny him the benefits of promotion to the post of Chief Engineer. The circumstances as alleged never justified an action under FR 56J (j), and he points out that even in the counter reply, no substantial materials had been disclosed, which would have prompted anybody to resort to an extreme action. Legitimate expectations of the officer concerned were ruined, simultaneously bringing loss and disrepute. He submits that although principles of natural justice would have been excluded while resorting to the decision, it was to be ensured that the ipsi dixit of a superior officer should not have been the rule to be adopted. When the action is challenged, the concerned authority has a duty to disclose to the court, why the extreme measure was adopted.
4. On the other hand, Mr. Rajinder Khatter on behalf of the respondents, submits that the committee, which is specifically authorized to go into the matter had held deliberations and had come to the conclusion that the retention of the officer concerned would not have been in public interest. The decision, therefore, could not have been invalidated, especially taking notice of the chequered service history of the person involved. We may briefly advert to the submissions made by the parties.
5. Having been appointed as Junior Engineer in the DDA, in October, 1969, the officer had been able to get promotions as Assistant Engineer, in April, 1973 and Executive Engineer, in November, 1980. According to the learned counsel, it so happened that one Mr. M.C. Behal, who had succeeded the petitioner as Executive Engineer, at one point of time, in 1983, had tried to tarnish his image by raising unnecessary allegations. With reference to records, it is pointed out that in spite of his such sinister efforts, nobody had been serious about the allegations that had been raised, since it was generally known that they were motivated and perhaps because of an aberration of mind of Mr. Behel. But, however, in 1996 and 1997, charge sheets had been issued to the applicant, alleging that there was irregularity in the matter of supervision of certain projects carried out by him during the period 1980-83. It is submitted that charge sheets were issued, on 01.11.1990, 06.11.1990, 26.12.1990, 25.06.1993 and 28.07.1997, all relating to the construction works which were carried out by the officers under his supervision.
6. Finding that these were initiated without adequate justification, the Delhi High Court had quashed the charge sheets. The judgments as above had been confirmed by the Division Bench. It is also pointed out that confidential records of the applicant for almost all the years, were either Very Good or Good and even on certain occasions recorded as outstanding, but at no point of time, any adverse entry had been brought to his notice. Of course, counsel submits that there was an occasion where a recordable warning had been issued to the officer on 14.11.1996, which was a minor penalty. There was also an instance where he was brought to a lower stage of his pay also at that period. Excepting these, his service records were clean. So also were his confidential records. In fact, after the High Court had set aside the charge sheets, and even after the punishment, referred to earlier, a DPC had found him fit for promotion as Superintending Engineer. He was promoted in the year 1998. Also the officers worth had been duly recognized thereafter at least. So much so, on 21.06.2001 by Annexure P-1 he had been put in overall charge of a prestigious project of the Authority. He had carried out the additional works, and had come out in flying colours. It was notwithstanding the above that all of a sudden Annexure P-7 had come to be issued on 24.02.2003. Counsel submits that resort to the above method, could not have been permissible, taking notice of the exemplary service the officer had rendered. It had been suggested that the records leading to the order and other relevant materials should be subjected to scrutiny by this Tribunal so that it may be possible to arrive at a just conclusion as to whether or not it was a case where a bona fide decision had been taken by the authority.
7. The Standing Counsel for the respondents had made available two files, one consisting of the decision, and the appellate orders, now under challenge and another file, being the service records of the deceased officer.
8. As briefly referred to earlier, by way of counter reply, the DDA had controverted the contentions raised in the application. It is denied that Mr. Behals involvement was something relevant. It was not available to be urged at all. A series of charge sheets were issued to the officer and there was possibility to assume that he was dishonest to the work assigned to him and committed various irregularities in the execution of work running over years. It is the case of DDA that a competent authority while issuing an order under FR 56 (j) is not expected to give an opportunity to the officer concerned. It was not possible to invoke the principles of natural justice, since discretion had been vested to proceed against an officer in public interest. Respondent claimed that overall action of the officer during the period 1980-1996 were reviewed and it was considered a fit case for taking action under FR 56 (j). There were no adverse entries as such in the service records of the applicant. Efforts were made to proceed against the applicant by issuing charge sheets, but it had been frustrated because of the court orders. However, it could not have been possible for the officer to deny a circumstance that there were two instances of penalties imposed on him. In the agreed list of suspected, during one of the years, his name had been included. Assertion is that these are sufficient circumstances to establish that the order was issued with sufficient basis and in public interest.
9. We have been taken through judicial pronouncements, which dealt with the power of Government to issue orders under FR 56 (j). Particular reference may be made to the following cases cited on behalf of the erstwhile Government servant:-
(1) UOI Vs. Ajoy Kumar Patnaik (JT 1995 (7) SC 30);
M.S. Bindra Vs. UOI & Ors. (1998 (7) SCC 310);
High Court of Punjab & Haryana Vs. Ishwar Chand Jain and Anr. (1999 (4) SCC 579);
(4) High Court of Judicature at Allahabad Vs. Sarnam Singh and Anr. (2000 (2) SCC 339);
(5) State of Gujarat Vs. Umedbhai M.Patel (2001 (3) SCC 314);
M.P.Electricity Board Vs. Shree Baboo (2002 (9) SCC 704);
State of U.P. and Ors. Vs. Chater Sen (2005 (9) SCC 592);
The gist of the decision was that in judicial review, an order of compulsory retirement could be challenged if it is arbitrary, mala fide or based on no evidence.
10. As against the above, on behalf of the respondents, it is asserted that sufficient materials were there to take a bonafide decision and the issues had been discussed threadbare by a high power committee.
11. Before going to the discussions, it may be relevant to take note of a recital in paragraph 23 of the counter affidavit which is as following:-
It is submitted that the overall actions of the petitioner during the years 1980-1996 were reviewed and it was considered a fit case for taking action under FR 56 (j). This prima facie may indicate that the respondents have committed an error in tackling the issue.
12. The concept underlying FR 56, as explained by the Supreme Court, is to ensure that the Government is not burdened with an officer, who has become a deadwood. The appropriate authority is authorized to form an opinion that in public interest, he needs to be sent home. We may, therefore, examine as to whether the action taken to retire the officer concerned could be salvaged bearing in mind the above objective, and the rigor of the Rule.
13. It is admitted in clear terms that the conduct of the officer from 1980-1996 was reviewed and it formed the basis of the decision. The records made available also indicate the same. A committee had reviewed the case of the employee, so as to see whether it should have been possible to apply FR 56 (j) in his case. In Paragraph 5 of the report, they have commented that he had committed serious irregularities after he became Executive Engineer i.e. when he got independent charge of field unit. The works, which were executed under his supervision, the Committee found, during 1980-83, were discovered to be substandard in nature. Thereafter he was assigned duties mostly in Headquarters and Planning. It is also noted that confidential reporting about the officer is made in a very hurried manner and in the absence of independent reporting and review, the remarks in the reports are not to be considered as acceptable guidelines.
14. If this was the basis for the decision, we have to find that the proceedings suffer from arbitrariness. He could not have been answerable if hastily the columns of CR were filled up. It was also not his duty to get the remarks reviewed. Remarkably, there is nothing adverse against him after the year 1996. Even the two punishment orders served on him were about the alleged lapse of suspension, which was there in the course of his work during 1982-83. It is surprising that in spite of the High Court quashing the charge sheets, the Committee has thought it fit to consider them as charges substantiated. Presumably the only reason is that there was an occasion for issuing charge sheets. The presumption was totally erroneous. The approach was totally unwarranted and shows lack of application of mind. Most probably the issue had been pre decided.
15. Above all, the Committee has thought it fit to examine the officers work for a period upto 1996 and has simply omitted to take notice that he has been cleared by the DPC for appointment as Superintending Engineer in the year 1998 and also that he had been entrusted with very important projects during the period 2001-03. While exercising powers, we do not think the authority had noticed the law declared by the Honble Supreme Court, to which reference has already been made. It could not have been a situation where a conclusion could have been arrived at that the usefulness of the officer was no more there. There is nothing to disclose that it was in public interest Annexure P-7 was issued.
16. We also note that there was inordinate delay in disposing of the appeal filed by him. Sub-rule (jj) refers to a review to be made on a representation and it should have been, therefore, ensured that the matter was looked into with a sense of urgency. The inordinate delay of almost 2 years in disposing of the application for review had made inroads to the rights of the officer, for him to take useful legal measures. The appellate authority also had committed the very same mistakes as attributable to the original authority. In the aforesaid circumstances, we set aside the impugned orders.
17. But, however, since the officer was not discharging duties, we think, it may not be justifiable to order actual arrears of salary as payable to the legal representatives. But for all other purposes, his date of retirement should be deemed as 31.08.2005, i.e. his normal date of superannuation. His pay should be notionally refixed for the purpose of grant of pension and other pensionary benefits.
18. Appropriate follow up orders are to be issued within two months from today. The respondents will pay costs to the applicants, quantified as Rs.25,000/- ( Rupees twenty five thousand only).
(R.C. PANDA) (M. RAMACHANDRAN) MEMBER (A) VICE CHAIRMAN (J) `SRD