Central Administrative Tribunal - Delhi
Chander Dev vs Municipal Corporation Of Delhi on 7 September, 2011
Central Administrative Tribunal Principal Bench TA No.1239/2009 TA No.1292/2009 New Delhi this the 07th day of September, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) TA No.1239/2009 Chander Dev, S/o Shri Makkhan Singh, R/o House No.128, Gali No.6, Block E, Sangam Vihar, New Delhi. -Applicant (Applicant in person) -Versus- 1. Municipal Corporation of Delhi, through its Commissioner, Town Hall, Chandni Chowk, Delhi. 2. Director (Primary Education), MCD Education Department, Kashmere Gate, Delhi-110006. -Respondents (By Advocate Shri Arun Bhardwaj with Shri Piyush Gaur) TA No.1292/2009 Chander Dev, S/o Shri Makkhan Singh, R/o House No.128, Gali No.6, Block E, Sangam Vihar, New Delhi. -Applicant (Applicant in person) -Versus- 1. Municipal Corporation of Delhi, through its Commissioner, Town Hall, Chandni Chowk, Delhi. 2. Director (Primary Education), MCD Education Department, Kashmere Gate, Delhi-110006. 3. Deputy Education Officer, MCD South Zone, Green Park, New Delhi. -Respondents (By Advocate Shri Arun Bhardwaj with Shri Piyush Gaur) O R D E R Mr. M.L. Chauhan, Member (J):
By this common order we propose to dispose of both these TAs.
2. In TA-1239/2009 a challenge has been made by the applicant to the charge-sheet dated 17.03.2006 for his unauthorized absence for the period from 17.12.1999 to 25.08.2000, whereas in TA No.1292/2009 applicant has prayed that salary for the period from January 2004 to 24.08.2000 may be paid to him. Since the issue involved in TA-1292/2009 is dependent upon the finding to be given in TA-1239/2009, we are disposing of both these TAs by this common order.
3. Briefly stated, facts of the case are that the applicant was issued a charge-sheet dated 17.03.2006 for his alleged misconduct of remaining unauthorized absence w.e.f. 17.12.1999 to 25.08.2000. The allegation against the applicant was that he was transferred from the Central Zone to R&E Shakti Nagar vide order dated 17.12.1999 (Annexure R-1) and he was relieved with immediate effect, but he did not join the new place of posting till 25.08.2000. It may be stated here that the transfer of the applicant effected vide order dated 17.12.1999 was modified vide order dated 25.08.2000 and the applicant was transferred to the Head Office instead of R&E Shakti Nagar where the applicant joined his duties. As already stated above, since the applicant did not join duty pursuant to his transfer/relieving order dated 17.12.1999, till 25.08.2000 and remained absent unauthorizedly from duty for the aforesaid period a charge-sheet was issued to the applicant vide order dated 17.03.2006.
4. When the matter was taken up for hearing by the High Court on 07.05.2007, after taking note of the contentions of the applicant that he was on medical leave and charge-sheet has become stale, as issued after a lapse of about 07 years from the date of alleged absenteeism, issued show cause notice to the respondents and also meanwhile restrained the respondents from holding any enquiry pursuant to the charge-sheet dated 17.03.2006 till the next date of hearing. From the various orders passed by the High Court and by this Tribunal when the matter was transferred to this Tribunal, as subsequently the jurisdiction in respect of MCD employees was conferred upon this Tribunal, the stay order was not continued. But the fact remains that the respondents have not proceeded with the enquiry proceedings. It may also be relevant to note here that the applicant has also retired from service on 31.12.2010.
5. Respondents have filed their reply wherein they have justified their action. They have also stated that the applicant was also involved in a criminal case registered against him vide FIR No.299/94 at P.S. Kashmere Gate u/s 420/471/120 IPC in which he was arrested by the police on 09.07.2005 and also placed under suspension subsequently. According to the respondents applicant had secured the job by filing a bogus ST certificate issued from Rajasthan claiming that he belongs to Meena Tribe whereas he is a native of Bulandshahar, UP belonging to Maina Thakur Caste. Regarding delay in issuance of the charge-sheet respondents in para-19 have made the following submissions, which thus read:
The petitioner has concealed that fact that inquiry had been initiated by the AEO and Sh. K.C. Sharma DEO (N) who due to non cooperation of the petitioner ultimately reported the matter to be referred to the vigilance department. The petitioner was given opportunities to appear and explain in person but he did not appear before the stated officer. And as a last attempt he was given a questionnaire too but he did not reply to it either despite numerous opportunities. Chronology of the correspondence for the inquiry is as follows:
Letter dated 23.01.2002 was sent to the petitioner by annexure R-3, to which he duly replied vide letter dated 04.02.02 annexure R-4 wherein he has not mentioned any where that he was on medical leave from 20.12.99 to 16.02.00 as he has been averred so far. Thereafter vide letter dated 10.07.03 the petitioner was directed to meet the Deputy Education Officer on 18.07.03; annexure R-5. But the petitioner did not turn up.
Then vide letter dated 10.9.93 he was given one more opportunity to appear before Sh. K.C. Sharma, Dy. Education Officer Civil Line Zone on 22.09.03; annexure R-6 but once again the petitioner choose neither to reply to the above letters nor he turned in person on the specified date and time in deliberate attempt to avoid the inquiry. Hence on 03.11.03 a detailed questionnaire was issued to the petitioner dated 03.11.03 which he was supposed to reply within 3 days, same is annexure R-8. The petitioner gave a delayed reply dated 10.11.03 without replying to even a single question and raised irrelevant contentions; annexure R-9.
Vide letter dated 19.11.03; annexure R-10 the respondent directed the petitioner to file its reply to the questionnaire within 3 days to assist in the inquiry. But the petitioner did not bother to reply. Rather sent a legal notice.
Vide letter dt. 02.01.04 the Petitioner was given last opportunity to answer the questionnaire; annexure R-11. The petitioner replied through letter Dated 08-01-04 but he kept beating around the bush and did not cooperate; annexure R-12. And finally on 23-08-04 it was decided in the absence of any satisfactory answer from the Petitioner the case be transferred to the vigilance. On 31-09-04 it was decided that major disciplinary proceedings be initiated against the Petitioner. And on 15-09-04 it was opined that major penalty be imposed on Petitioner.
All the above facts pertaining to the preliminary investigation and the non-cooperation of the petitioner have been concealed. Thus, according to the respondents there was no delay in issuing the charge-sheet and a number of opportunities were given to the applicant to explain his absence for the aforesaid period.
6. Learned counsel of respondents has also drawn our attention to Annexure R-4 letter, i.e., letter dated 04.02.2002 written by the applicant whereby he has categorically stated that he had worked in the Central Zone for the period 17.12.1999 to 24.08.2000 and he had never remained absent during this period. He has further stated that subsequently he had worked in the headquarter w.e.f. 25.08.2000 to 24.12.2000. Learned counsel submits that on the one hand applicant has stated that he had worked for the period from 17.12.1999 to 24.08.2000, whereas on the other hand the case setup by the applicant in this case is that he was on medical leave during this period, as such he could not join the new place of posting and also that the transfer and relieving order was not made available to him. Be that as it may, in view of the explanation given by the respondents in the reply-affidavit, as reproduced above, and the fact that the respondents have given applicant sufficient opportunities to explain his absence on account of his transfer w.e.f. 17.12.1999 to 24.08.2000 and ultimately it was decided by the authorities on 15.09.2004 that disciplinary proceedings for a major penalty should be initiated, we are of the view that it is not a case of such nature where the charge-sheet should be quashed on account of delay. The fact remains that the applicant did not join the new place of posting on account of his transfer and relieving order passed by the authorities, whereas the stand taken by the applicant is that such orders were never received by him and also that he was on medical leave during the said period, as such his absence was not willful. According to us, at the charge stage it is not permissible for us to go into the merit of the charges and the defence taken by the applicant. Law on this point is no more res integra. At this stage, we wish to refer to the decision of the Apex Court in the case of Union of India and Others v. Upendra Singh, (1994) 3 SCC 357, whereby the Apex Court has held thus:
6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath & Sons . The bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus :
"Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
7. To the similar effect is the decision of the Apex Court in the case of Transport Commissioner, Madras-5 v. A. Radha Krishna Moorthy, (1995) 1 SCC 332.
8. Thus, in view of what has been stated above, we are of the view that the applicant has not made out any case for quashing the impugned charge-sheet dated 17.03.2006.
9. As regards salary for the period from January 2004 to 24th August, 2000 when the applicant did not join pursuant to the transfer order dated 17.12.1999, since the aforesaid period is subject matter of departmental proceedings and payment of salary to the applicant for the aforesaid period depends upon the ultimate decision in the enquiry proceedings initiated against applicant, as such we are of the view that no direction can be given to the respondents to release salary for the aforesaid disputed period till conclusion of the departmental proceedings and payment of salary for the aforesaid period shall be regulated in accordance with the rules after conclusion of the departmental proceedings.
10. With these observations both the TAs are dismissed. However, we wish to observe that the applicant has retired from service on 31.12.2010 and charge against him is regarding his absence from duty for the aforesaid period and also that the enquiry after retirement can be continued and punishment order can be passed only after a person is held guilty of grave charges; appropriate authority will look into this aspect and consider whether the enquiry is required to be continued and in any case the appropriate authority considers it appropriate to continue the enquiry, in that eventuality the enquiry should be completed expeditiously so that withheld retrial benefits, if any, on account of the aforesaid disciplinary proceedings could be released to applicant. No costs.
11. Let a copy of this order be placed in TA-1292/2009 as well.
(Smt. Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.