Central Administrative Tribunal - Delhi
Shri Ram Kishan vs Delhi Development Authority on 30 October, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.971/2011 Order reserved on 19th October, 2012 Order pronounced on 30th October, 2012 Honble Shri Sudhir Kumar, Member (A) Honble Shri A.K. Bhardwaj, Member (J) Shri Ram Kishan Asst. Director (Retd.) r/o AG-275 Shalimar Bagh (East) New Delhi-88 .. Applicant (By Advocate: Shri Malaya Chand) Versus Delhi Development Authority Through the Vice Chairman Vikas Sadan, INA New Delhi ..Respondents (By Advocate: Shri Manish Garg) O R D E R
Shri A.K. Bhardwaj:
The applicant has filed the present OA questioning the impugned memo No. F.27 (31)/2005/AV-IV/MJ/2/1/1670/2063 dated 9.2.2007, order No.24/Vig./DC/842 dated 1.2.2011 and the inquiry report, with consequential benefits of his exoneration from the charges contained in memo dated 9.2.2007 on the following grounds:
the impugned charge sheet containing the charge of remaining the file bearing No. F2(80) 89/ institutional, in dormant in his custody w.e.f. 18.8.1994 to 23.12.1994 was alleged against him after long delay of more than 12 years, thus the entire inquiry proceedings were vitiated, during the inquiry the respondents failed to produce movement register as well as supply of list of documents to the applicant resulting in violation of principles of natural justice, in issuance of the notification dated 29.10.2007 by the Delhi Development Authority (Personnel Branch), the procedure laid down in Section 58 of DD Act, 1957 was not followed; and the Finance Member, DDA, who imposed the penalty of 10% cut in pension for one year upon the applicant was not competent to do so, as in terms of Rule 9 of CCS (Pension) Rules only the President of India or the Vice Chairman of DDA could have imposed such penalty upon him.
2. On the other hand, Shri Manish Garg, learned counsel for respondents submitted that in the absence of challenge to the notification dated 29.10.2007 issued by the Delhi Development Authority, the plea of the applicant regarding non-adherence to procedure in issuance of said notification as well as the competence of the authority, which issued the penalty order cannot be questioned,
3. To meet the contention of the applicant regarding delay in initiation of disciplinary proceedings, he placed reliance on the judgment of the Honble Supreme Court Registrar of Cooperative Societies, Madras & another v. F.X. Fernando, (1994) 2 SCC 746. Relying upon the judgment of the Apex Court in Deputy Registrar, Cooperative Societies, Faizabad v. Sachindra Nath Pandey & others, (1995) 3 SCC 134, he argued that there is no straightjacket formula providing for interference with disciplinary proceedings on the ground of delay in initiation of the same and each case has to be examined on its own facts. Regarding the plea of production of movement register, he made a reference to the noting contained in the file to point out that on 18.8.1994, concerned file was marked to the applicant only.
4. We have heard the learned counsel for the parties and perused the records.
5. In terms of the statement of article of charge framed against him, the applicant while working as Assistant in the Institutional Branch during the year 1994 failed to take action in file bearing No.F2(80)89/Institutional pertaining to allotment of land to Rishab Jain Cooperative Housing Building Society. Shri S C Jain, the President of the said society, vide application dated 4.10.1989, had applied for allotment of land for construction of Community Hall for local residents of the said society, Karkardooma, Delhi. On receipt of the application, the case was processed in Institutional Branch vide file bearing No.F.2 (80)89/IL. After scrutiny, the society was asked vide letter dated 10.10.1990 to submit the requisite documents. On receipt of such documents from the society, a proposal was made by the IL Branch to allot a plot measuring 315 square yards to the society for the construction of the Community Hall. After considering all the technical issue, the Planning Wing finally recommended the allotment of a plot measuring 568 square yards to Rishab Jain Cooperative House Building Society for Community Hall and library vide its approval dated 5.8.1994. The case was then referred to Director (Lands), who marked the case file to AD (IL) on 16.8.1994 and AD (IL) marked the same to the applicant on 16.8.1994. The applicant recorded a note on said date itself proposing to place the case before IAC. AD (IL) vide its note dated 18.8.1994 marked the case back to the applicant to ensure the completion at all codal formalities by the society. Investigation revealed that the applicant instead of taking action to place the case before IAC, kept the file dormant which caused undue delay in allotment of plot to Rishab Jain Cooperative House Building Society resulting in non-allotment of plot to the said society and the subsequent allotment of same to another society Jai Shakti Dham Samiti. The CBI also investigated the said case and found that there had been undue delay in process for allotment of the plot. The inquiry officer found the aforementioned charge against the applicant as proved. Relevant excerpt of the inquiry report reads as under:
(h) Ex.P-8, P-9, P-10 and P-11 On the perusal of the dates of the initiation of the notes, it is found that the note was initiated on 3-8-94 and later on processed on 4-8-94 and 5-8-94. This was ultimately marked to Shri Ram Kishan/CO on 16-8-94, who in-turn recorded the following the case has been cleared by the Plg. Department as per the minutes dated 5-8-94 above. We may place this case before the IAC. For orders please.
(i) Ex. P-12 On the perusal of this note it is found that AD (IL) mentioned the date as 18-8-9 without clearly indicating the specific year. COs contention that AD(IL) did not mention the year intentionally and AD(IL) kept the file with him much after he was relieved from IL Branch on 23-12-94 is not tenable. If it is so, then file would not have been marked to Shri R.K. or Shri Ram Kishan on a date after he had already left the seat. Shri A.S. Thukral, concerned AD(IL) posted at the relevant time in fact appeared as a Witness on the request of the CO and he has been termed as Defence Witness (DW-1). On his examination by the CO, DW-1 categorically stated that the year was 1994 which he forgot to write. On this deposition of the DW-1, CO at that time did not attempt to examine him further on the specific question of the year.
(j) Ex.P-13 This note dated dated 9-6-97 was initiated by Shri C.L. Chawla, the then DA when he wrote the following: This file was found mixed with the other files. Before taking any action in this case, we may send the file to AE (IL) for fresh site report whether site proposed by the Planning vide their note at page 25-26/N is lying vacant and can be allotted to the Shri Rishab Jain CHBS Ltd. On this exhibit CO in his brief, pointed out that there is an over-writing on the date of Shri Chawla. On close scrutiny of this date of 9-6-97 and further signed by AD IL) on 11-6-97 and AE (Civil) on the same date, I am not inclined to accept the version of the CO at this stage. This over-writing of the year by Shri Chawla must be a genuine one. Furthermore, I do not thing C.O. can extract any benefit out of this as the delay caused by him was much earlier to this date.
(h) Ex. P-14 This is an application from Jai Shiv Shakti Dham dated 23-3-2000 for the allotment of land on a form As the date suggests, this was much later than the period of posting of the CO shown in the charge sheet during the year 1994. Therefore, as pointed out by the CO in his brief, he cannot be held responsible for dealing an application much later than this period of 1994.
(i) Ex. P-15 It is a note dated 5-4-02 by AD (IL) on the proposal for allotment of land to Jai Shiv Shakti Dham As this incident of 5-4-02 is later than the period of posting indicated in the charge sheet, CO cannot be held responsible.
(j) Ex.P-16 and P-17 - These are the note dated 11-4-2002 from DD (IL) again on the proposal for the allotment of land to Jai Shiv Shakti Dham. Here also as the date of incident is much later than the period of the posting of CO, he cannot be a party to this.
CO also mentioned in his brief that the movement register was not produced during the inquiry. This contention of the CO cannot be upheld because at this stage it is not understood that what benefit he would have got even if the movement register was produced in the inquiry. The fact remains that Shri Ram Kishan, CO kept the file with him for a period from 18-8-94 upto his date of relieve from IL Branch on 23-12-94 without substantiating any reasons. There is no nothing available in the relevant file between this period i.e. from 18-8-94 to 23-12-94.
6. On conclusion of the departmental inquiry proceedings, penalty of reduction of pay by 3% of his basic pay + grade pay was imposed upon the applicant vide order No.620/Vig/2008 dated 19.11.2008. The applicant preferred an appeal against the said order, which was rejected in terms of order No.174/Vig/2008 dated 2.4.2009. Questioning the said orders, the applicant approached this Tribunal by filing OA-1047/2009, which was disposed of on in terms of order dated 25.10.2010. Operative portion of which reads as under:-
9. Leaving other grounds open, we are of the considered view that the EO should not be given unfettered power to write a finding, which may even go against the record or where the contentions put-forth have not been brought in correct perspective. The only remedy left to the delinquent official against such enquiry report is to file a representation to the DA and in such an event DA irrespective of the fact that a finding has been recorded on this additional material against the applicant has to pass a speaking order. This additional material has been explained by a Constitution Bench of the Apex Court in Managing Director, ECIL v. B. Karunakar, JT 1993 SC 1.
10. In the above view of the matter, with plethora of decisions of the Apex Court, which are binding on us under Article 141 of the Constitution of India and non-existence of any provision under DDA Regulations, which bar the DA to pass speaking order, on perusal of the order passed by the DA in the background of the contentions raised, which may or may not have suited or may be an extraneous to the record, it was incumbent upon DA to have recorded a well reasoned order. Having failed to do so, the order passed cannot be countenanced in law. The appellate authority perpetuated the illegalities by not dealing with and recording even a whisper as to the contentions raised by the applicant against the order passed, imposing the punishment, which suffers from the aforesaid vice as well. Accordingly, OA is partly allowed. Impugned orders are set aside with liberty to the respondents to pass orders, if so advised, in accordance with law. In such an event, law shall take its own course. No costs.
7. Thereafter the disciplinary authority passed the order dated 1.2.2011 imposing the penalty of 10% cut in pension for one year upon the applicant. Hence the present OA on ibid grounds.
8. As far as the plea of delay caused in initiation of disciplinary proceedings against him raised by the applicant is concerned, we are of the considered view that there is no straightjacket formula suggesting interference in disciplinary matters merely on the ground of delay in commencement or conclusion of the proceedings. However, in such cases where the applicant is able to show the prejudice caused to his defence by such delay, the disciplinary proceedings can be interfered. In the present case, the applicant is unable to show any prejudice caused to his defence on account of delay in issuance of memo of charges dated 9.2.2007. Rather as can be seen from the inquiry report, he could take all such defence, which he could have taken in the year 1994, i.e., the year during which the misconduct was allegedly committed. In his representation dated 9.9.2008 made against the inquiry report, he could take factual plea that he had recommended the file by recording a note dated 16.8.1994 with the proposal to place the case before the IAC. Although in the said representation the applicant has taken the plea that the charge sheet issued to him belatedly has caused prejudice to him, but he has nowhere pleaded that the delay in issuance of charge sheet has caused prejudiced to his defence. It is but natural that initiation of disciplinary proceedings against a Government servant result in prejudice to his career.
9. As can be seen from the contents of statement of imputation of misconduct as well as the original application, the matter of remaining the file in dormant was also investigated by the CBI. The factum of investigation of the matter by the CBI also cannot be ignored while examining the tenability of the plea of delay taken as ground in disciplinary matters. In view of the nature of allegations, i.e., inaction of the applicant in keeping the relevant file in dormant as well as in the absence of any plea of prejudice caused to his defence on account of delay in initiation of disciplinary proceedings, we are unable to accept the delay as ground to interfere with the impugned orders / inquiry report.
10. In Sachindra Nath Pandeys case (supra), in view of the nature of charges, the Honble Supreme Court declined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings. Paragraph 7 of the said judgment reads as under:-
7. On a perusal of charges, we find that the charges are very serious. We arc, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay. So far as the merits are concerned, we regret to say that the High Court has not dealt with the submission of the appellant - that in spite of being given a number of opportunities the first respondent has, failed to avail of them. If the appellant's allegations are true then the appellant cannot be faulted for not holding a regular inquiry (recording the evidence of witnesses and so on). The High Court has assumed, even without referring to Regulation 68 aforesaid that holding of an oral inquiry was obligatory. Indeed, one of the questions in the writ petition may be the interpretation of Regulation 68. On facts, the first respondent has his own version. In the circumstances, the writ petition could not have been allowed unless it was held that the appellant's version of events is not true and that the first respondent's version is true. In the circumstances, we have no alternative but to set aside the order under appeal and remit the matter to the High Court once again for disposal of the writ petition afresh in the light of the observations made herein. Since the matter is a very old one it is but appropriate that the matter is dealt with expeditiously. Perhaps, it would be appropriate if the Court looks into the records relating to the disciplinary proceedings also.
11. In F.X. Fernandos case (supra), the Honble Supreme Court has held that the long delay in initiation of departmental proceedings cannot be supported because the Directorate of Vigilance and Anti-Corruption had not been prompt and the appellant cannot be faulted.
12. In Union of India & another v. B.C. Chaturvedi, (1995) 6 SCC 750, the Honble Supreme Court viewed thus:
11. The next question is whether the charge of being in possession of assets disproportionate to his known source of income is a misconduct. Section 5(1) (e) of the Act (which is equivalent to Section 13(1)(e) of the Prevention of Corruption Act, 1988) defines "criminal misconduct". A public servant is said to commit the offences of criminal misconduct if he or any person of his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account for. Thus, pecuniary resources or property disproportionate to his known source of income is a criminal misconduct. In the 1988 Act an explanation has been added to Section 13(1)(e) to explain that "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provision of any law, rules or orders for the time being applicable to a public servant. The charged officer must be a public servant. He must be found to be in possession of, by himself, or through any person on his behalf, at any time during the period of his office, pecuniary resources or property disproportionate to his known source of income. If he cannot satisfactorily account thereof, he is said to have committed criminal misconduct. No doubt it s a presumptive finding but that finding is based on three facts. Being a public servant, if at any time, during the period of his office, he is proved to have been in possession, by himself or through any person on his behalf, of pecuniary resources or property disproportionate to his known source of income, he is enjoined to satisfactorily account for the same. If he fails to account for, he commits misconduct. Therefore, as in a prosecution laid under Section 5(1)(e) of the Act (equivalent to Section 13(1)(e) of 1988 Act), a public servant is liable to punishment. The need to make this misconduct expressly a part of enumerated items of misconduct under Central Civil Services, CCA Rules is obviated.
13. In Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, (1996) 3 SCC 157, the Apex Court has held as under:-
Leave granted.
We have heard the counsel an both sides. Order dated November 12, 1993 in O.A. No.1702/93 and 2206/93 of the Tamil Nadu Administrative Tribunal, Madras is in question before us. The respondent while working as Assistant Section Officer, Home, Prohibition and Excise Department had been placed under suspension. Departmental inquiry is in process. We are informed that charge sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appear to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum de hors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across frequently such orders putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied. The appeals are accordingly allowed and the order of the Tribunal is set aside. The controversy is at large the disciplinary authority would be free to proceed with the enquiry and trial also be proceeded in accordance with law. No costs.
14. The applicant has also taken the plea of non-production of movement register as well as non-supply of list of documents to him. From the noting placed on record by the applicant as Annexure A-7 dated 3.8.1994, we find that on 18.8.1994 the Assistant Director (L) had marked the file to him (Sh. R.K.). Further, as can be seen from the report of the inquiry officer ibid, the applicant was unable to show the support which he could draw in his defence from the movement register. Even in the present OA also, the applicant could not demonstrate the prejudice caused to his defence by non-production of movement register and non-supply of list of documents to him. In State Bank of Patiala & others v. S.K. Sharma, (1996) 3 SCC 364, the Honble Supreme Court has viewed that the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule. In other words, a distinction must be made between no opportunity and no adequate opportunity, i.e., between no notice / no hearing and no fair hearing. (a) In the case of former, the order passed would undoubtedly be invalid. But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the hearing and the orders to be made shall depend upon the answer to the said query. Paragraph 33 of the said judgment reads as under:
33. We may summarise the principles emerging from the above discussion. [These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee]:
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/ departmental enquiry in violation of the rules/ regulations/ statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudicate, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision g expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory characters the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provisional which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirements either expressly or by his conduct. If he is found to have waived its then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could no be waived by him, then the Court or Tribunal should make appropriate directions [include the setting aside of the order of punishment], keeping in mind the approach adopted by the Constitution Bench in B. Karunkar. The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the Court or the Tribunal should make a distinction between a total violation of natural justice [rule of audi alteram] and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid [one may call it "void" or a nullity if one chooses to]. In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule [audi alteram partem ]. (b) But in the latter case, the effect of violation [of a facet of the rule of audi alteram] has to be examined from the standpoint of prejudice; in other word in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle [No.5] does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem [the primary principle of natural justice] the Court/ Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. . In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.
15. In the backdrop of the view taken by the Honble Supreme Court, as above, we do not find that non-production of movement register and non-supply of list of documents to the applicant as sufficient grounds to interfere with the impugned orders.
16. In terms of the notification dated 29.10.2007 issued by the DDA (Personnel Branch), the power to impose penalty (disciplinary power) in respect of retired employees of DDA against whom disciplinary proceedings are instituted before their retirement is exercised by the respective Disciplinary Authorities as per Schedule to Regulation 3 (d) of DDA (Conduct, Disciplinary and Appeal) Regulations, 1999. The said notification, which was issued in exercise of the powers conferred by Section 57 of 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 DDA regulation of DDA (Conduct, Disciplinary and Appeal) Regulations, 1999, has the statutory force.
17. The CCS (Pension) Rules, 1972 apply to Government servants including civilian Government servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments and shall not apply to persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force. Thus, when in terms of the notification dated 29.10.2007, issued with the prior approval of the Central Government the disciplinary authority is empowered to pass the order of penalty of cut in pension on DDA employees, the same cannot be held vitiated on the ground that in terms of Rule 9 of CCS (Pension) Rules, 1972, only the President has the right of withholding a pension or gratuity, or both, in respect of a Government servant found guilty of grave misconduct or negligence during the period of service. It is not the case of the applicant that the Finance Member (DDA) was not his disciplinary authority at the time of issuance of penalty order. In the absence of challenge to the aforesaid notification dated 29.10.2007, we would not examine the propriety of the procedure followed in issuance of the same.
18. No other ground is raised by the learned counsel for the applicant to espouse the relief prayed for in the OA. The aforesaid contentions raised by him are considered devoid of merit and are rejected, hence the OA is dismissed. No costs.
( A.K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/