Central Administrative Tribunal - Delhi
Shri R.C. Meena vs South Delhi Municipal Corporation on 12 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.43/2012 Order Reserved on 10.04.2015 Order Pronounced on: 12.05.2015 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. Raj Vir Sharma, Member (J) Shri R.C. Meena, S/o Shri Ram Jivan, R/o E-3, MCD Flats, Bhamasha Market, Kamla Nagar, Delhi-110 007. -Applicant (By Advocate: Shri Rajeev Sharma) Versus 1. South Delhi Municipal Corporation, Through its Commissioner, 9th floor, Dr. S.P. Mukherjee Civic Centre, J.L. Marg, New Delhi. 2. The Commissioner, South Delhi Municipal Corporation, Dr. S.P. Mukherjee Civic Centre, 9th floor J.L. Marg, New Delhi. 3. The Commissioner, North Delhi Municipal Corporation, Dr. S.P. Mukherjee Civic Centre, 9th floor J.L. Marg, New Delhi. 4. Director (Personnel), South Delhi Municipal Corporation, Dr. S.P. Mukherjee Civic Centre, 22nd floor, J.L. Marg, New Delhi. 5. Director (Vigilance) South Delhi Municipal Corporation, Dr. S.P. Mukherjee Civic Centre, 26th floor, J.L. Marg, New Delhi. -Respondents (By Advocate: Shri Parveen Swarup) O R D E R Per Sudhir Kumar, Member (A):
This O.A. has been filed by the applicant being aggrieved by the punishment awarded to him after conclusion of a regular departmental enquiry. After filing of the OA on 03.01.2012, the Municipal Corporation of Delhi (MCD, in short) was trifurcated, and there was a change in the designation of the Respondent Nos. 2 to 4 also, and an amended Memo of Parties was allowed to be filed.
2. One of the jobs of Municipal Corporation is to regulate civil constructions being carried out in the Municipal areas, and in order to oversee the adherence to the Rules and Regulations of the Municipal Corporation, and adherence to the approved plans, and to check unauthorized constructions, if any, duties and responsibilities have been distributed and assigned to different officers of the respondent Corporation.
3. The case of the applicant is that he was appointed as Assistant Engineer (Civil) under the direct recruitment quota in the erstwhile MCD in 1998, and was later even assigned look after charge of the higher post of Executive Engineer (Civil) on 21.03.2005, which was, however, discontinued after about six months on 07.09.2005. His submission is that the basic job of regulating and conducting regular inspections of the on-going constructions in the area is that of Junior Engineer (JE, in short), who has to take rounds in a routine manner, and inspect 100% of the constructions, and detect find out any unauthorized constructions at the earliest possible point of time. The Assistant Engineer (AE, in short) is required to carry out the inspections and to scrutinize only 40% of the on-going construction cases, the inspection of which has already been made by the JE. Thereafter, in case of any detected unauthorized construction, following a due process of law, a reference is sent to the Officer-In-charge of the Building Department, and it is then the responsibility of the Executive Engineer (EE, in short) of the Building Department of the Municipal Corporation to carry out the demolition of the detected unauthorized constructions, as suggested, and to fix priority in respect of the demolition of the unauthorized construction buildings. Even before such demolition, when the case is put up by the JE, the property can be sealed on the basis of an order regarding the unauthorized construction passed by the Deputy Commissioner of the Zone, whereafter the electricity and water connection can be disconnected on the basis of that order. Since electricity and water connections are not provided by the MCD, the zonal Deputy Commissioner of the Municipal Corporation recommends to the appropriate authorities to disconnect electricity and water connections. However, a simultaneous action of prosecution is also initiated against the owner/builder of any detected unauthorized construction.
4. During the period of 2001-2005, in compliance of orders of the Honble Delhi High Court, special enquiries and inspections were conducted, and cases of numerous unauthorized constructions were investigated. The applicants case also relates to this time period. Surprisingly, in making his submissions regarding the facts of the case, in Para-4(iii) the applicant has stated that the Honble Delhi High Court did not have good experience in respect of the unauthorized constructions which were being carried out in the Municipal areas, and he has also stated that the only intention of the Honble Delhi High Court was to put into action such officers of MCD who had not been taking appropriate action as provided under the law.
5. The applicants case relates to the RDA No.1/125/2006, which was registered by the Vigilance Department of the Municipal Corporation, because of which the applicant was suspended on 17.01.2006, but was later reinstated back in service vide order dated 07.6.2006, and a charge sheet dated 02.01.2008 was issued to him in respect of only two documents, S-1 and S-2, S-1 being the report of the Director (Vigilance) of the Municipal Corporation, and S-2 being the list of 24 properties in respect of which a charge of inaction on the part of the applicant had been levelled by the respondents. The applicant has submitted that out of these 24, two properties were not only booked but demolished also. He has further submitted that the charge was wrongly framed against him, as the relevant duration in respect of which the applicant had been held responsible was only 40 days, from 08.11.2005 to 18.12.2005, when he was In-charge of the Civil Lines Zone, to which these properties listed in S-2 belong. The charges made out against the applicant were as follows:-
1. He failed to get stopped/demolished the unauthorized construction carried out in the area under his charge at its initial/ongoing stage, as per detailed indicated in the enclosed list.
2. He also failed to get booked the unauthorized construction carried out in the said properties for taking action u/s 343/344 of DMC Act.
3. He also failed to get action initiated for sealing the unauthorized construction u/s 345-A and for prosecution of owner/builder u/s 332/461 or complaint u/s 466-A of DMC Act.
4. He also failed to get action initiated for disconnection of electricity and water supply of the premises to prevent the unauthorized construction.
5. He also failed to exercise proper supervision and control over the functioning of his subordinate staff, who did not take proper and timely action against the unauthorized construction.
6. The applicant has submitted that even during this period, one Shri P.P. Sharma was also posted in the said zone as AE along with him, and two JEs namely, Shri P.K. Jain and Shri D.K. Gupta were working under him. He has admitted that with effect from 19.12.2005, the Deputy Commissioner had constituted five teams with total 6 AEs and 12 JEs under them. His contention is that the period from 19.12.2005 to 16.01.2006 has been wrongly ascribed in his case, when he was not at all In-charge of the zone in respect of which the properties listed in S-2 belong.
7. In respect of the remaining 22 properties listed in S-2 as unauthorized constructions, the applicant has submitted that the inspection reports had to be prepared by the JE concerned, and were required to be presented before him as the AE, and that it is not in dispute in the present case that the JEs working under him during the period did not take any action in respect of the remaining 22 unauthorized construction properties, in respect of which the charge sheet has been served upon the applicant. He has submitted that he had also been assigned additional charge, and work load was much more than the capacity of a normal human being, since the additional charge pertained to sanction of building plans of entire zone, as well as dealing with Court cases of the Building Department of Civil Lines Zone. He has found fault with the process of enquiry as had been conducted against him, and submitted that the Enquiry Officer had wrongly held Charge Nos. 3 and 4 to have been proved against him, as one of those charges related to disconnection of water and electricity supply, when such action had to be initiated by the JE only, and the final decision was to be taken only by the Deputy Commissioner.
8. The applicant has assailed the actions of the respondents inasmuch as that no JE, who was In-charge of the process of inspections, has ever been issued any charge-sheet, even though no report had been prepared by these JEs and presented before him as the AE, and, in the absence of such reports of the JEs, no action against the applicant, who was AE, could have been taken by the respondents. He has further submitted that in respect of another AE, namely, Shri Hisamuddin, who had also been issued a charge sheet in respect of similar nature of charges, the enquiry itself was dropped on account of his short tenure of 86 days, but the tenure of the applicant was only 40 days, and yet the Disciplinary Authority has very harshly issued an order of imposition of penalty of reduction in pay in the time scale of pay by two stages for a period of two years, with cumulative effect, vide impugned order dated 24.05.2010, and the Appellate Authority, through its order dated 27.09.2011, only partially modified the said penalty as reduction in pay in the present time scale of pay by two stages for a period of one year, without cumulative effect, which will run separately.
9. The above submissions were then taken as grounds for filing the OA, and the applicant has submitted that respondents have not considered his submissions dated 12.01.2010, as well as the fact that a number of appreciation letters had been issued to him in respect of the same duration. In the result, he has prayed for the following reliefs:-
a) to declare the impugned order dated 24.05.2010 and 27.09.2011 as illegal and unconstitutional and the same may be quashed;
b) to issue order to the respondents to give all the consequential benefits to the applicant including promotion and seniority;
c) the Honble Court may pass any other order/direction as deemed fit and proper in the circumstances of the present case and in the interest of justice.
10. The respondents filed their counter reply on 18.05.2012 and reiterated their stand that the orders of the then Commissioner, MCD, to Zonal Dy. Commissioners had been issued in pursuance to the orders of the Division Bench of the Honble High Court of Delhi in CWP No.4582/2003, for taking up effective demolition drives against the unauthorized constructions going on, because of which the properties booked during the period 2001-2005 had come under a scanner, and it was found that a number of unauthorized constructions had been carried out in the area under charge of the applicant, which had not been booked by him. They justified the charges as framed, the conduct of the departmental enquiry, the consideration of the reply to the enquiry report as submitted by the applicant, and the orders as passed by the Disciplinary Authority after giving the applicant a personal hearing on 25.02.2010. They have further submitted that even a Show Cause Memo with regard to the said proposed penalty was issued to the applicant for making his representation, if any, to which also he had submitted his reply, and after having gone through the same, and the record placed before him, the Disciplinary Authority had confirmed the proposed penalty through order dated 27.04.2010 communicated and notified on 24.05.2010. They have further submitted that the Appellate Authority, the Honble Lt. Governor of Delhi had, after considering the appeal filed by the applicant, reduced the penalty substantially, and that both the penalty orders passed by the Disciplinary Authority and the Appellate Authority were passed after taking into consideration all the facts and records of the case in its entirety, and after following the due process of law and principles of natural justice, and considering all the submissions and contentions raised by the applicant, which have also been discussed in detail in the relevant orders concerned.
11. The applicant filed his rejoinder on 24.09.2013 denying that there was any dereliction of duty on his part, and submitted that he was diligent and responsible about his duties, which has been accepted by the Appellate Authority also in its order. He has also taken a stand that there is no definition of ongoing construction available in the statute or in Rules, and, considering his short stay, all the actions taken by him do not attract any charges as had been levelled against him. He had again submitted that even the Appellate Authority has expressed his displeasure and stated that when charge Nos.1& 5 are not proved, how charge Nos. 2,3 & 4 could be held to have been proved against him. He had again cited the case of Shri Hisamuddin, AE, and had pleaded for the case against him also to be dropped, because of the ground of short period relating to his tenure in the concerned post.
12. Heard. During the arguments learned counsel of both the sides took us through their detailed pleadings, as already discussed above, and also took us through the list of 24 properties produced as S-2 at pages 15 to 18 of the OA. The learned counsel for the applicant emphasized upon the contents of his representation dated 12.01.2010 (Annexure A-5) as submitted to the then Commissioner-MCD, in which he given detailed explanations and also the date-wise contents of the daily diary from 08.11.2005 to 17.01.2006, produced by him as a part of his representation. He also emphasized the point that in his submissions to the Director of Inquiries dated 10.11.2009, the applicant had pointed out during the process of enquiry itself that his total tenure from 08.11.2005 to 16.01.2006 was just about 69 days, including Saturdays, Sundays and Holidays, as well as the fact that no name of the JEs was included, while as per the procedure the JE alone has to initiate the action against unauthorized constructions at the initial stage.
13. In his reply arguments, learned counsel for the respondents took us through the contents of the Annexures and the list of properties S-2 in respect of which the applicant had failed to take action, and pointed out the Office Order dated 20.08.2001 regarding the working of the Building Department of the Municipal Corporation, in which he had emphasized upon the following portion:-
..AE incharge of the area and EE of the zone will carry out test checks to the extent of 40% and 20% respectively of the properties entered in the said Construction watching register and will also record their findings. The modalities of test checks will be similar to that as laid down for unauthorized construction in office order dated 4th July 2001. This register should also be reviewed by S.K. once in three months and by D.C. once in six months.
14. It was submitted that the applicant had failed to conduct the test checks, and even in his O.A. he has nowhere even made an averment that he had made the required number of percentage of test checks, which he was required to make.
15. Learned counsel for the respondents further relied upon the following portions of the same Office Order to say that even the time limit fixed for inspection by J.E., A.E., & E.E. of 3,7&10 days, which had been increased to 07 days for J.E., 15 days for A.E. and 30 days for E.E., had also not been adhered to, and the applicant has nowhere been able to show the proof, either during the disciplinary enquiry, or in his various representations submitted to the Disciplinary Authority and to the Appellate Authority thereafter, that he did actually conduct the timely inspections even every 15 days during the period he was In-charge of the relevant Zone:-
Under the same clause, IInd para lays down the criterion for carrying out inspection of the area by J.E., A.E & E.E. Time limit fixed for inspection is presently 3,7&10 days respectively.
This has now been increased to 7 days for J.E., 15 days for A.E and 30 days for E.E for effective inspection of the area. To ensure that each officer carries out inspection of the area, weekly inspection report is to be sent positively to the next higher officer in the hierarchy. This inspection report should clearly mention about the areas visited on each visit and unauthorized construction detected if any and further action taken against the same. These inspection reports should be reviewed by Superintending Engineer atleast once in two months and by Dy. Commissioner once in three months.
16. While we have the entire facts of the case of the applicant before us, but we do not have the facts of the case of Shri Hisamuddin, from whose case parallelism has been sought to be drawn by the applicant at many stages. In any case, the applicant cannot be let-off for his lack of action as proved in disciplinary enquiry just because on different facts, in another case, another colleague of his had been somehow let-off, about which there is nothing on record in the instant case.
17. We have given our anxious consideration to the facts of the case. We find no infirmity either in the process of the conduct of the disciplinary enquiry, or the procedure followed by the respondents in imposition of penalty upon the applicant. The Disciplinary Authority even allowed him a second opportunity, by serving him a Show Cause Notice regarding the penalty proposed to be levied upon him, and even gave him an oral hearing. The Appellate Authority, Honble Lt. Governor of Delhi, has also passed a detailed and speaking order, and has, after appreciating the plea of the applicant, reduced the punishment. The quantum of punishment now imposed upon the applicant also does not come in the category of shocking to the conscience of this Tribunal, which may then require to be interfered with by this Tribunal.
18. The role of this Tribunal in judicial review is quite limited, and we cannot put ourselves in the shoes of either the Disciplinary Authority, or the Appellate Authority, if they had gone about performing their constitutional and legal duties in a proper manner, as they have done in the instant case. Therefore, the applicant has failed to make out a case before this Tribunal to interfere with the orders as passed, and since the Appellate Authority has substantially reduced the penalty imposed upon the applicant, the applicant cannot get away by saying before this Tribunal in his O.A. that he had been wrongly penalized because the Honble Delhi High Court did not have good experience in respect of supervisory control over unauthorized constructions in Municipal areas, and had passed orders, which have resulted in punishment being imposed upon him.
19. We find no merit in the OA, and the same is, therefore, dismissed, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.