Central Administrative Tribunal - Delhi
Shri Prahlad Singh vs Delhi Development Authority on 27 February, 2014
Central Administrative Tribunal
Principal Bench
OA No.496/2013
Order reserved on: 12.09.2013
Order pronounced on: 27.02.2014
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. A.K. Bhardwaj, Member (J)
Shri Prahlad Singh
S/o Late Chandan Singh,
R/o C-9/129, Yamuna Vihar,
Delhi-110053. -Applicant
(By Advocate: Shri Daleep Singh)
Versus
Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, INA Market,
New Delhi-110023. -Respondent
(By Advocate: Shri Manish Garg)
O R D E R
Per Mr. Sudhir Kumar, Member (A):
The facts of this case lie in a brief compass. The applicant of this OA had joined the services with the respondents as Lower Division Clerk on 16.06.1970, promoted as Upper Division Clerk in October, 1977, and Assistant in March 1986, and further promoted to the post of Assistant Director in July 2001. When in June 2009 the DPC considered his case for empanelment for promotion as Dy. Director, he could not be recommended for promotion by the DPC because Memorandum No. F27(16)/2005/Dy.CAO/ Vig./4820/5233 dated 11.06.09 /01.07.2009 under Regulation 25 of the DDA (Conduct, Disciplinary & Appeals) Regulations 1999, (DDA Regulations, 1999, in short), was under issue for service upon him, in respect of an incident of the year 2004, about which the applicant claims to have been totally unaware of, and claims it to have been served upon him only on 03.07.2009, much after the DPC met, which he has produced at Annexure A-2.
2. The applicant represented against the same on 29.07.2009, but on attaining the age of superannuation two days later, he retired on 31.07.2009. The respondents, however, thereafter appointed on 10.01.2009 the Inquiry Officer and Presenting Officer to enquire into the charges. The departmental enquiry was subsequently completed, and the report submitted by the Inquiry Officer holding the charges as proved was submitted on 26.05.2010, and the applicant was asked to make a representation thereupon vide notice dated 07.07.2010, which the applicant has produced along with a copy of the enquiry report at Annexure A-3/colly.
3. The applicants case mainly is that his representation dated 28.07.2010, addressed to the Disciplinary Authority (Annexure A-4), protesting against the findings of the enquiry report, has not been dealt with by the respondents as a case of defence, as is required under the Rules, whereby prejudice has been caused to him.
4. The applicant is aggrieved that without giving due consideration to the submissions made by him, the Disciplinary Authority had passed the impugned order of punishment dated 25.10.2010 (Annexure A-1/colly), whereby first the penalty of 10% cut in pension for two years was imposed upon him, which was reduced through orders dated 05.07.2011, to the extent of 10% cut in pension for one year, after he had filed an appeal dated 04.02.2011 under Regulation 32-B of the said DDA Regulations, 1999, read with Rule-9 of the CCS (Pension) Rules, 1972 against the penalty order.
5. The applicant was entitled to file a Revision Petition also under Regulation 32-G of the said Regulations, 1999, which he filed on 22.09.2011 addressed to the Chairman-DDA, Honble Lt. Governor, Delhi, through Annexure A-6, and by an order passed For and on behalf of Honble Lt. Governor dated 21.12.2012, through Annexure A-7, it was held that as per Regulation 32 of the DDA Regulations, 1999, no such revision appeal lies against any order made by the Authority, and, therefore, his Revision Petition was not maintainable.
6. The case of the applicant, therefore, is that the power to impose a penalty of cut in pension delegated to the Authority (i.e. DDA) cannot be further delegated. His view point can be considered to be based upon the general principle of law expressed in the Latin maxim delegatus non potest delegare, which roughly means that a delegated power may not be further delegated by an authority which itself is a delegatee, to whom such power is delegated, and that in all cases of delegated authority, where personal trust or confidence is reposed in the delegate or agent, and especially where the exercise of such authority is made subject to his own judgment or discretion only, the delegation of such delegated authority is purely a personal delegation, and cannot be further delegated by him to another authority, unless there is a special power available for the purpose of such further delegation or substitution, either express or necessarily implied.
7. The applicant has further assailed the actions of the respondents, submitting that upon superannuation, the relationship of master and servant between the employer and employee comes to an end, and it is not open to the employer to take any disciplinary action thereafter against the employee, and that, therefore, the penalty order passed by the Disciplinary Authority is against Rule-9 of the CCS (Pension) Rules, 1982, and is, therefore, not sustainable in law, and also on facts, because on perusal of Article of Charge, the applicant had not been proceeded against on any charge of grave misconduct or negligence.
8. The applicant has taken numerous grounds to assail the actions of the respondents:-
i) That the actions of the respondents are in utter violation of settled provisions of law;
ii) That the misdemeanor pertained to only lack of integrity and absolute devotion to duty and infringement of Rule 4 of the applicable Service Rules, and could not have been classified as a grave misconduct;
iii) That the findings of the Inquiry Officer on the charge are perverse, and based on conjectures and surmises, and that there was no concrete evidence on record, and even the evidence available on record has not been considered meticulously and judiciously;
iv) That the due procedure of law has not been followed, and the written brief submitted by him during the enquiry proceedings had been rejected in a mechanical manner, without consideration by the Inquiry Officer;
v) That since there was no concrete evidence on record, the impugned orders have been passed purely on the basis of assumptions or presumptions, and as such the order is not maintainable in law;
vi) That the Disciplinary Authority was required to apply its own mind, and give cogent reasons for coming to any conclusion;
vii) That the charge sheet memo was served upon the applicant at the fag end of his career, near his retirement, after a lapse of 5 years after the alleged occurrence of the incident in 2004, only with malafide intention of withholding the promotion of the applicant;
viii) That there is no evidence on record that he has violated any Rules, Regulations and Administrative instructions;
ix) That the respondents have failed to consider that once the proposal/action had been approved by the higher authority, no lower officers can be held responsible and punished;
x) That the impugned orders are bad both in law and on facts.
9. In the result, the applicant had prayed for the following reliefs:-
i) To quash and set aside the impugned penalty orders dated 25.10.2010 read with order dated 05.07.2011; and
ii) to direct the respondent to issue orders granting to applicant the consequential relief of pay/pension etc. on the post of Dy. Director; or
iii) pass any other order or further orders as may deem fit and proper in the circumstances of the case.
10. The respondents filed their counter reply on 01.05.2013, stoutly defending their actions, and taking some preliminary objections, and labelling the OA to be nothing but an abuse of the process of law, and, therefore, liable to be dismissed at the threshold.
11. It was pointed out by the respondents that the delegation of power for imposing the penalty to the Disciplinary Authority was appropriate, and that the Vice Chairman has rightly passed the orders, and that the applicant has been unable to plead and prove any facts, or bring any material on record, to show as to what prejudice has been caused to him. It was submitted that the Honble Apex Court has observed in Para-12 of the judgment in Krishna Chandra Tandon v. Union of India (1974) 4 SCC 374 that the Tribunal/Court should be slow to interfere in the matter of proportionality of punishment. It was further submitted that a fair and reasonable opportunity has been given to the applicant at all the levels of disciplinary and appellate proceedings, and that the actions of the respondents were protected by the ratios of the Honble Apex Courts judgments in Union of India vs. M.K. Sarkar 2010(2) SCC 59, and in Chairman, United Commercial Bank v. P. C. Kakkar 2003 (4) SCC 364.
12. It was further submitted that the Honble Apex Court has in the case of State of Haryana and Another v. Rattan Singh (1977) 2 SCC 491 held that a domestic enquiry can take into consideration all materials logically probative for a prudent mind, and that there is no allergy even of hearsay evidence, provided it has reasonable nexus and credibility. It was submitted that the Honble Apex Court had further held that as long as there was some evidence, sufficiency thereof in proof of a finding arrived at by a domestic Tribunal is beyond scrutiny.
13. Coming to the reply on merits, it was pointed out that the applicant had in his noting on files failed to bring out clearly the cases of the allottees, who had made no payments as per the allotment letters issued to them, and that no payments had been received, and where the DDA was, therefore, free to decide those cases for restoration and raise the demand as per DDAs policy. It was further submitted that while submitting the files to Assistant Accounts Officer (Self-Financing Scheme) (SFS, in short), the applicant had submitted the file without obtaining the certified copies of the Court judgments, and getting the same accepted from the Competent Authority. It was also pointed out that the applicant had issued demand letters to such allottees at his own level, and had demanded therein only 8% interest, even though the allotment of the flats stood automatically cancelled due to non-payment of the demanded amount by the allottees, and the allotments were not once again regularized or restored by the Competent Authority. They had also pointed out that the applicant had himself issued possession letters, and also executed the Conveyance Deeds in some cases, without issuance of NOC by the Accounts Wing, and without the relevant Courts Orders being available on file. It was further submitted that the applicant had wrongly mentioned such cases to have been clubbed with the cases covered by the Courts orders, which orders were not placed on record, because of which NOC came to be wrongly issued by the Finance Wing also, thereby causing financial loss to the DDA, which loss had since been worked out (on the basis of the revised demand letters issued for such allottees concerned) to be amounting to Rs.14,85,230/-.
14. They had thereafter explained that the applicant had been found responsible for incorrect computation of the cost of the flats, and being negligent while issuing the demand letter to the respective allottees, ignoring the advice of Finance Wing to obtain a copy of the Courts judgment before issuance of the demand letters, because of which the penalty of 10% cut in pension for two years was initially imposed upon him, but after giving him a personal hearing at the time of hearing his appeal, the Vice Chairman, DDA, had modified the penalty, and reduced the cut in pension to 10% for only one year.
15. It was pointed out by the respondents that the DPC had indeed considered the case of the applicant in its meeting held on 06.05.2009, and had recommended him as being fit, but subject to implementation of penalty, and latest vigilance report, since the DPC was made aware about the vigilance status reports regarding the past two minor penalty charge sheets issued to him, and the issuance of a major penalty charge sheet, regarding which a decision had been taken in the file. The respondents had annexed a copy of the Minutes of the DPC, along with the Vigilance Reports as Annexures to their counter reply.
16. Any wrong doing on the part of the respondent-authorities was denied, and it was submitted that the charges against the applicant were held as proved after giving him due opportunity to make representation and submissions, and there was no material brought on record by him, which was not considered by the Inquiry Officer, and each and every contention of the applicant was considered by the Inquiry Officer, as well as by the Disciplinary Authority, before ordering imposition of punishment, and that the proper procedure had been followed at every stage.
17. They had, therefore defended the findings of the Inquiry Officer as being well reasoned, and based on facts and records, as made available during the enquiry, and had further defended the orders passed by the Disciplinary Authority as being speaking and reasoned orders. They had also pointed out that the Appellate Authority had reduced the period of his punishment, but since no revision lies against any such orders as per Regulation 32 of DDA Regulations, 1999, his Revision Petition could not be entertained. They had further submitted that the specific charge against the applicant of causing financial loss to the Authority to the tune of Rs. 14,85,230/- fell within the definition of grave misconduct, as given in Rule 8(5) (b) of the CCS (Pension) Rules, 1972. They had therefore prayed for the OA to be dismissed.
18. Enclosures to the reply included Vigilance Departmental Report in which the previous penalty proceedings regarding the applicants case had been mentioned and the Minutes were produced at internal page-47. It is seen therefrom that the applicants promotion for the year 2009-2010 was considered, and he was recommended to be fit subject to implementation of penalty and later Vigilance Report. The respondents had also produced a copy of the Working Sheet at internal page-32, running page 85 of the OA, in which the case of the applicant was recommended as above.
19. The applicant filed a rejoinder on 01.07.2013 more or less reiterating his contentions once again, and contesting that the respondents have failed to prove that he had indulged in any grave misconduct or negligence while dealing with the case in question. He had thereafter discussed the fact of the case in Renu Bali vs. DDA in which judgment dated 31.10.2003 was delivered in WP 5141/2001 by the Honble Delhi High Court, which was a batch of the Writ Petitions relating to a policy decision taken by DDA to levy surcharge in respect of those house allottees where payments were delayed. He had submitted that the wrong tagging of the concerned four cases with the case of Renu Bala (supra) had taken place much earlier, and that the applicant was not aware about such wrong tagging, but still his actions had rather saved the respondents from financial loss and embarrassment.
20. He had assailed that the decision of the DPC dated 08.05.2009 was kept pending and not implemented till 27.11.2009, while in the meanwhile the applicant stood retired on 31.07.2009, and one month prior to that on 01.07.2009, he was also issued the charge sheet. He had contended that in terms of the Honble Apex Court judgment in Union of India v. Jankiraman-, AIR 1991 SC 2010, this ought not to have affected the case of his promotion as recommended by the DPC. He had denied that the penalty order passed by the respondents as Disciplinary Authority/Appointing Authority was just, proper and legal, as the Finance Member was not the appointing authority of the applicant, and he had, therefore, reiterated his prayer for the OA to be allowed. Along with this, the applicant had filed a copy of the Gazette Notification dated November 1, 2007 as Annexure A-8 which reads as follows:-
DELHI DEVELOPMENT AUTHORITY (Personal Branch) NOTIFICATION New Delhi, the 29th October, 2007 Sub:- Delegation of Penalty of Disciplinary Powers for Imposing Cut in Pension and Initiation of Disciplinary Proceedings Against Employees of the Authority.
G.S.R. 692 (E)-In exercise of the powers conferred by Section 57 of the DD Act, 1957 (61 of 1957) read with sub-rule (4) of rule 3 of the Delhi Development (Misc.) Rules, 1959 and in addition to schedules to Regulation 3 (d) of Delhi Development Authority (Conduct, Disciplinary and Appeal) Regulations 1999, the DDA hereby with the prior approval of the Central Government modifies the existing Regulations and makes the following Regulation on the subject.
Powers of the Authority for imposing cut in pension by way of punishment in respect of retired employees against whom disciplinary proceedings are instituted before their retirement shall be exercised by the respective Disciplinary Authorities as per Schedule to Regulation 3 (d) of DDA (Conduct, Disciplinary and Appeal) Regulations, 1999.
Powers of Disciplinary Authority for cut in pension by way of punishment in respect of retired employees against whom disciplinary proceedings are instituted after retirement shall be exercised by Chairman, DDA/L.G., Delhi.
(Emphasis supplied).
21. As Annexure A-9 (colly) he has also enclosed copies of the two orders passed by the Finance Member of the DDA in the two previous disciplinary proceedings against him, both orders being dated 19.03.2004, and in which penalty of reduction of pay by three stages for three years without cumulative effect, not adversely affecting his pension, had been passed in one order, and the penalty of withholding of two increments for two years without cumulative effect had been imposed upon him in the second order.
22. Heard the case in detail, and we have given our anxious consideration to the facts of the case.
23. Learned counsel for the applicant had laid stress on the point that in his enquiry report dated 26.05.2010, the Inquiry Officer had arrived at his findings and conclusions on the basis of surmises and conjectures, in the absence of any proof. He had also pointed out his representation dated 28.07.2010 (Annexure A-4) in which he had pointed out that he could not be faulted at all because, at the same relevant point of time, in respect of the allottees of Festival Scheme-2004, in which in respect of similarly situated category II flats in Vasant Kunj, the Management of the DDA had recovered the cost of those flats at a much lower level, and, therefore, the finding on this issue of causing loss to the DDA needs to be set aside. He had also pointed out that the certified copy of the Courts orders dated 09.08.2004 had been placed on record, and that in similar other cases pending earlier, the Deputy Director had considered and ordered that DDA may proceed as per the proposal, and then advise to the Standing Counsel after approval. He had further submitted that the Inquiry officer has totally failed to consider that no issue of restoration of flats could be involved, as there was no cancellation of allotments of the flats, due to stay of the operation of the orders, and that the Inquiry Officer had arrived at its findings without evidence, and based on extraneous facts.
24. The learned counsel for the applicant had also assailed the impugned order dated 25.10.2010 (Annexure A-1), and had submitted that the applicant had been wrongly charged with having extended the benefit of the judgment in the case of Renu Bali & Ors. (supra), which was not applicable in the four cases of flat allotments referred to in the Charge Sheet, because of which the figure of loss to DDA had been arrived at Rs.14.85 lakhs. He had pointed out that in the connected disciplinary case of Shri D.S. Negi, Assistant Accounts Officer, it had come on record that 18% interest per annum had been recovered in two cases out of the four concerned cases, thereby reducing the alleged loss to DDA to about Rs. 7 to 8 lakhs, and had, therefore, assailed the respondents having imposed the punishment of penalty of 10% cut in pension for two years.
25. However, the learned counsel for the applicant had fairly admitted the correctness of the order passed on 21.12.2012 (Annexure A-7) that under Regulation 32 of the DDA Regulations, 1999, the Revision Petition, as submitted by the applicant did not lie. He had, however, emphasized that the Gazette Notification dated November 1, 2007, notifying the DDA Notification dated 29.10.2007 (Annexure A-8) provides that when the powers of the Disciplinary Authority for imposing cut in pension by way of punishment in respect of retired employees, against whom disciplinary proceedings are initiated after retirement, were to be exercised by the Chairman, DDA/LG., Delhi, only, the orders, as passed in the applicants case after his retirement, were without authority, as no such delegated power was available to the respondent-authorities to impose any such cut in pension.
26. On the other hand, learned counsel for the respondents pointed out that in the case of the applicant, the disciplinary proceedings were instituted and initiated one month prior to the retirement on 01.07.2009, while he had retired on 31.07.2009, and, therefore, the case of the applicant was covered by the second paragraph of the Notification dated 29.10.2007, Gazette notified on November 1, 2007, by which it was ordered and notified that the powers of the DDA-Authority for imposing cut in pension by way of punishment in respect of retired employees, against whom disciplinary proceedings were instituted before their retirement, shall be exercised by the respective Disciplinary Authorities, and, therefore, there was no error on the part of the respondent-authorities in having passed the order.
27. On a close perusal of the records of the case, it is clear that the decision to institute departmental enquiry against the applicant had been taken on file on 11.06.2009, but that decision was subsequent to the DPC held on 06.05.2009, when the case of the applicant for promotion as Deputy Director was considered, and he was found to be fit, subject to implementation of on-going penalty, and latest vigilance report. It has not been brought on record that as on the date of the DPC on 06.05.2009, there was any penalty which was still current and operating against the applicant. More than one month after that DPC met, on 10.06.2009, a decision was taken on file to initiate disciplinary proceedings against the applicant, and the Annexure A-2 dated 11.06.2009 was prepared, though it was not immediately dispatched, and was dispatched on 01.07.2009 and the applicants submission is that he received it on 03.07.2009, which has not been disputed by the respondents.
28. Therefore, it appears that for a period of 35 days, from 06.05.2009 to 10.06.2009, when the DPC had found him to be fit, there was no bar or restriction upon the applicant being promoted as Deputy Director subject to vigilance clearance as recorded by the DPC, since the currency of any previous penalty at that time has not been brought on record. The very fact that no attempt was made to obtain vigilance clearance in that period, up to the decision dated 10.06.2009, issued on 10.06.2009, and its dispatch was delayed till 01.07.2009, which the applicant was served on 03.07.2009, shows that for a period of 35 days, he was eligible for promotion as Deputy Director, but the actual orders of such promotions were not issued. The orders of promotions as Deputy Directors ultimately got issued on 20.11.2009, by which time the applicant had superannuated.
29. In DDA vs. H.C. Khurana, AIR 1993 SC 1488, the Honble Apex Court has in a landmark judgment observed as follows:-
9. The question now, is: What is the stage, when it can be said, that 'a decision has been taken to initiate disciplinary proceedings'? We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge-sheet, since issue of the charge-sheet is a consequence of the decision to initiate disciplinary proceedings. Framing the charge-sheet, is the first step taken for holding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the Government servant; the charge-sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the Government servant exonerated; but if the charges are proved, the penalty follows. Thus, the, service of the charge-sheet on the Government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the Government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information, to the Government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision-making process of the authorities for initiating the disciplinary proceedings.
10. This plain meaning of the expression used in clause (ii) of para 2 of 0. M. dated 12-1-1988, also promotes the object of the provision. The expression refers merely to the decision of the authority, and knowledge of the Government servant, thereof, does not form a part of that decision. The change made in clause (ii) of para 2 in O.M. dated 14-9-1992, merely clarifies this position by using the expression 'charge-sheet has been issued' to indicate that service of charge-sheet is not necessary; and issue of the charge-sheet by its despatch indicates beyond doubt that the decision to initiate disciplinary proceedings was taken. In our opinion, Jankiraman (AIR 1991 SC 2010) takes the same view, and it is not possible to read that decision otherwise in the manner suggested by learned Counsel for the respondent.
(Emphasis supplied).
30. This judgment had laid down the law that the date of initiation of departmental proceedings can at best be stretched back up to the date such decision of initiation of the departmental enquiry was taken, which in this case was done on 10.06.2009. However, this case was decided by the Honble Apex Court in the context of the guidelines of DoP&T as existed before the issuance of the DoP&T O.M. No.22011/4/1991-Estt.(A) dated 14.09.1992, & in para 7 of that O.M., based upon the subsequent judgment of the Honble Apex Court in K.V. Jankiraman (supra), the concept of deemed to have been kept in sealed cover came to be prescribed.
31. Therefore, even though for the period from the date of DPC held on 06.05.2009 till 10.06.2009, there was no obstacle available on the files of the Authority Incharge of issuing orders of applicants promotion to the post of Deputy Director, and the rider put by the DPC could not have acted against the applicant, for his being denied promotion, when no such adverse report has been received till then, and for those 35 days the applicant was entitled to be promoted as Deputy Director, but since, before the recommendations of the DPC could be given effect to, in terms of the Honble Apex Courts judgment in the case K.V. Jankiramn (supra), after the decision to proceed against him was taken on file, and a charge sheet was also issued, and served upon him, his case came to be covered by the concept of deemed to have been kept in a sealed cover, and his eligibility for being promoted disappeared thereafter.
32. In regard to the prayer at Para 8 (i) of the OA, it is seen that the Finance Member of DDA has all through functioned as the Disciplinary Authority of the applicant, has issued him the Memorandum and Articles of Charge dated 01.07.2009 (Annexure A-2), has passed the orders as his Disciplinary Authority, and issued notice to the applicant to give his comments on the report of the Inquiry Officer through his letter dated 07.07.2010, and then, after considering his representation, passed the impugned order dated 25.10.2010 (Annexure A-1/colly) imposing the penalty of 10% cut in pension for two years which, being his Disciplinary Authority, he was entitled to impose in accordance with the Gazette Notification dated 29.10.2007, notified in the Gazette on November 1, 2007, as reproduced above as Annexure A-8. It is also seen that the Vice-Chairman (DDA) has functioned as the Appellate Authority of the applicant, and has passed the orders dated 05.07.2011 reducing the penalty of 10% cut in pension of the applicant for only one year, and that the learned counsel for the applicant had himself conceded during the arguments that as per Regulation 32 of the DDA Regulations, 1999, the revision filed by the applicant was not maintainable, as ordered through Annexure A-7 dated 21.12.2012. Therefore, we find that it is not a case in which the maxim of delegatus non-potest delegare, invoked by the applicant initially, can be applied, and also we do not find that any of the two penalty orders dated 25.10.2010 and 05.07.2011 at Annexure A-1(colly.) had been passed by any authorities not having the delegation of powers to pass such orders.
33. In the result, we find no merit in the O.A., which is, therefore, rejected. There shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar)
Member (J) Member (A)
cc.