Central Administrative Tribunal - Delhi
Prakash Chauhan vs Municipal Corporation Of Delhi & Ors on 3 February, 2012
CENTRAL ADMINISTRTIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.1224/2011 Order Reserved on 02.12.2011 Order Pronounced on 03 .02.2012 CORAM: Honble Mr. G. George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Prakash Chauhan, R/o B-61, First Floor, Gali No.1, Majlis Park, Adarsh Nagar, Delhi Applicant (By Advocate: Shri M.K. Bhardwaj) Versus Municipal Corporation of Delhi & Ors Through 1. The Commissioner, MCD, Civic Centre, Minto Road, New Delhi 2. The CVO, MCD, Civic Centre, Minto Road, New Delhi Respondents (By Advocate: Shri Duli Chand) O R D E R
By Dr. Veena Chhotray:
The Applicant is an Assistant Assessor & Collector under the MCD. Through this OA he has challenged the penalty of reduction in pay in the present time scale by two stages for a period of two years. Though the penalty had been ordered to be with cumulative effect as per the order of the Disciplinary Authority (DA), subsequently the stipulation of its cumulative impact has been removed by way of modification by the Order of the Appellate Authority (AA).
The OA seeks by way of relief: (i) quashing the DAs Order dated 9.6.2009 and the AAs Order dated 24.2.2011; (ii) a declaration regarding the Charge Memo dated 10.5.2006 being illegal and unjust; and (iii) a direction for restoring the reduced pay and release of arrears with interest. Besides, allowing costs in favour of the applicant and passing any other order deemed fit under the circumstances have also been prayed.
2. The learned counsels Shri M.K. Bhardwaj and Shri Duli Chand would appear respectively for the applicant and the respondents.
3. A major penalty disciplinary proceeding was initiated against the applicant vide the Charge Memo dated 10.5.2006. This pertained to the year 2005 during which the applicant had been functioning as Assistant Assessor & Collector (AAC) in the Assessment & Collection Department, Civil Line Zone of MCD. The charge was about mutation of a Government property (details specified) in favour of a private party. The mutation letter had been issued under the signature of the applicant and the matter had been processed by the Head Clerk working in that seat. The other person involved was the Zonal Inspector.
As per the enclosed Statement of Imputation, the alleged irregularities had been brought to light in course of vigilance investigation on the basis of a telephonic information received by the Secretary to the Lt. Governor, which in turn had been conveyed to the Chief Vigilance Officer of the MCD. Even though subsequently, the same stood cancelled on receipt of a letter from the Government of Rajasthan about the property in question itself being a Government property; the irregularities in the processing of the entire matter at the time of the mutation in favour of the private parties had been the subject of the charge. Besides failure of supervision and proper control by the applicant, a connivance on the part of the applicant with the concerned Head Clerk Shri Ram Babu had also been alleged.
The following Statement of Charges were framed against the applicant:-
STATEMENT OF CHARGES FRAMED AGAINST SH. PARKASH CHAUHAN, S/O SH. RAM SWAROOP, AA&C, A&C DEPARTMENT, C.L. ZONE, MCD.
Sh. Prakash Chauhan, AO was functioning as AA & C in A&C Deptt., C.L.Zone during the year 2005. He failed to maintain devotion to duty and committed gross misconduct on the following counts:
The Govt. property bearing No.15, Rajpur Road was mutated in the name of private persons i.e. legal heirs of Late Sh. Rao Manohar Singh, on 26.5.2005 i.e. after 20 years of the death of recorded owner liable to tax as against 6 months prescribed period.
The property was mutated in the name of private persons without mandatory site visit, by ZI of the area, report regarding clearance of the dues and status of the possession of the property.
The processing fee was deposited by the applicant on 26.5.2005 where as the letter for mutation was already signed by Sh. Parkash Chauhan on 25.5.05 which shows his connivance with Sh. Ram Babu, H.C. and the applicants.
He also failed to exercise proper supervision and control over the functioning of Sh. Ram Babu, H.C. who did not see the original documents, submitted by the applicants while he processed the case for mutation.
He, thereby, contravened Rule 3 (1) (i) (ii) and (iii) of CCS (Conduct) Rule 1964 as made applicable to the employees of MCD.
4. In this case there were two co-delinquents i.e. the applicant as the Assistant Assessor & Collector and Shri Ram Babu, the concerned Head Clerk (Mutation). A joint Departmental Enquiry was conducted, though charge sheets had been issued separately. The allegations against the Head Clerk were for processing the case for mutation without obtaining necessary reports from the concerned Zonal Inspector and without ascertaining and checking production of the original documents. Besides, there was a charge of signing of the Mutation Letter a day before the deposit of the processing fee.
4.1 The enquiry was entrusted to the Director of Inquiries. A copy of the Inquiry Report dated 18.3.2008 has been enclosed with the OA as Annex A/4. On behalf of the prosecution, there were two witnesses i.e. Shri B.S. Jain, the Sr. Vigilance Inspector, who had conducted the investigation (PW-1) and Shri Chander Mohan, the concerned Zonal Inspector (PW-2). Besides listed documents (Exhibits S-1 to S-5 had been considered. On behalf of the delinquents no defence witness or document had been preferred. The written arguments, both by the Presenting Officer (PO) as well as the Charged Officials (CO) had been considered.
4.2 A perusal of the inquiry report reveals a consideration by the I.O of the contending versions by both the sides on the charges against the co-delinquent. The eventual findings are noted to have been arrived at in light of the submissions made and the documentary evidence on record. While holding the charges as proved, the I.O. had arrived at reasoned findings. Certain relevant extracts are reproduced as here under:
In the present case, it is seen that the COs, Shri Ram Babu and Shri Parkash Chauhan did not take any steps to ensure that the property concerned was not a government land. Further the AA&C, Shri Parkash Chauhan did not carry out any site inspection to ascertain the factual possession of the property. Further even though the application was submitted by the applicants after 20 years of death of the deceased owner, the COs at no point of time made any effort to find out the reason of huge delay, which by itself, in normal circumstances should have raised suspicions in the mind of a responsible assessing officer. Hence the COs did not comply with any of the relevant provisions laid down in the above said circular. In the light of above discussion, the first and third articles of charges framed against Shri Ram Babu and first three articles of chares against Shri Parkash Chauhan are held as proved. Further xxxx. At no point of time were the relevant original documents seen by the CO, Shri Ram Babu. Had these original documents been seen by the CO before processing the case for mutation, such improper mutation of government property in the name of private person could have been averted. The subsequent cancellation of such improper mutation based on the correspondence received from Govt. of Rajasthan further strengthened the point that serious lapses were committed by Shri Parkash Chauhan and his subordinate mutation clerk, Shri Ram Babu. In view of the above, the second article of charge framed against the CO, Shri Ram Babu and fourth article of charge framed against Shri Parkash Chauhan are also stand proved. With these conclusions, all the Articles of Charges framed against both the Charged Officials had been held as proved. Further, the fact of Shri Ram Babu having superannuated on 30.9.2006 had been noted.
5. The DAs Order dated 9.6.2009 (Annex A/1) shows that the DA examined the record of the case in entirety and had considered the written reply received from the delinquent to the show cause notice, besides giving him a hearing in person. On consideration, the DA confirmed the proposed penalty of reduction in pay in the present time scale of pay by two stages for a period of two years with cumulative effect.
5.1 The AA, The Lt. Governor of Delhi, had on considering the Appeal dated 26.8.2009 modified the penalty imposed by the DA. Reducing the rigor of the penalty, the stipulation of cumulative effect of reduction of pay had been deleted.
6. On behalf of the applicant, the main plea raised is of alleged discrimination of treatment in the two co-accused. Whereas the applicant had been subjected to the impugned penalty; the charges against the co-delinquent, Shri Ram Babu, had been dropped. The learned counsel for the applicant would cite the Apex Courts judgment in M. Raghavenlu v Govt. of AP {(1997) 10 SCC 779} to contend that when the Officers who were directly incharge were exonerated, the supervisory authority could not be punished. The learned counsel would also raise pleas of violation of principles of natural justice. Besides, contention of the present case being one of no misconduct has also been raised in the OA.
6.1 Shri Duli Chand, the learned counsel for the Respondents would justify the action of the Respondents as well as the procedure followed. It would be submitted by the learned counsel that the enquiry report as well as the orders of the DA and AA had been passed after due consideration of the facts of the case and the defence submissions. The modification of the penalty at the level of the AA would also be emphasized by the learned counsel. It would, therefore, be contended that there was not justification whatsoever for a judicial intervention by the Tribunal.
6.2 The salient contentions raised by the applicant would be dealt with in the following paragraphs.
7. Plea of discrimination qua the co-delinquent - As stated above, this would be the major thrust point by Shri M.K. Bhardwaj, the learned counsel for the applicant. However, considering the facts of the case, this is not found to be tenable.
7.1 The delinquency on the part of both the co-accused had been held as proved as per the inquiry report. Thus it was not a case of discriminatory findings at that stage. The different treatments given at the time of final decision was in view of the distinguishable factor of the co-delinquent, the Head Clerk concerned having superannuated after issue of the charge sheet and before submission of the inquiry report.
7.2 This aspect has been clearly dealt with in the AAs Order. The AA had been seized with the appellants main prayer for the impugned penalty commuted to that of dropped charges to maintain parity with the case of the other Charged Officer. However, on considering the two cases, while certain lapses by way of acts of omission and commission had been held on the part of the applicant to justify imposition of a penalty even if in a reduced form -; in the case of a retired official, the penalty could be justified only in matters of grave misconduct, which was not the case here.
7.3. Even the contention by the applicants learned counsel of a charge of supervisory failure not being in consonance with law since the charge against the basic delinquent had been exonerated would not hold good considering the facts of the case. The reliance placed on the Apex Courts judgment in M. Raghavenlu (supra) is also not applicable in light of the distinguishable factual matrix of the two cases.
7.4 The learned counsel has also referred to the decision of the Apex Court in M.V. Bijlani vs UOI & Others (All India Service Law Journal X-2006 (3) 184. In this case it was held that any inconsistency of reliance of extraneous material and non-consideration of the defence submissions by the delinquent would constitute as factors that would vitiate an inquiry report. However, the present case is not one of such contingencies.
8. Case of no misconduct - It is the stand of the applicant that he has been penalized for no fault on his part. Ground A avers about the applicant having been subjected to the departmental action without any justification. Grounds E & F aver about the action having been taken in the concerned matter as per rules. Ground I submits about no misconduct having been committed by the applicant while dealing with the case. Ground J raises the plea of there being no findings in the orders of the DA or the AA about there being any ill motive on the part of the applicant in passing the mutation order. Ground Q cites the Apex Courts judgments in Union of India v J. Ahmed [AIR 1979 SC 1022] and Inspector Prem Chand v Govt. of NCT of Delhi [JT 2007 (5) SC 294] to contend that as defined by the Honble Apex Court, misconduct with acts of negligence, error of judgment and innocent mistakes do not constitute misconduct.
8.1 Even these contentions are not fund to be acceptable. As is the settled law, a judgment is binding only in its ratio decidendi. As regards the obiter dicta, the same is to be appreciated within the factual context of a particular case. Considering the distinguishable facts, the judicial rulings relied upon by the learned counsel for the applicant cannot be pressed into service to support the argument of there being no misconduct in the present case.
Further, the crux of the allegation in this case was the mutation of a Government property in favour of a private party. In course of the inquiry, the serious lapses alleged in the process against the applicant as well as the concerned Head Clerk had been found to be proved. Under the circumstances, the defensive averment in the OA of there having been no misconduct on the part of the applicant is not tenable at all.
9. Plea of violation of principles of natural justice - It has also been contended that the action against the applicant was arbitrary and in violation of the principles of natural justice. In support several arguments have been given. The main ones being like : (i) non-affording an opportunity by the IO to the delinquent to submit written brief (Ground O); (ii) a pre-determination of the proposed penalty in the show cause notice; (iii) the orders of the DA and the AA being non-speaking and being vitiated by non-consideration of the contentions of the applicant. However, even these grounds are not found to be acceptable in the given facts of the case.
9.1 As stated above, the inquiry report clearly mentions and illustrates about adequate opportunity for defence having been given to both the co-delinquents. It is stated that despite an opportunity they had preferred not to produce any defence witness or document. They had been given an opportunity and had exercised it by way of cross-examining the prosecution witnesses. The Inquiry Repot contains a categorical finding of the written defence arguments having been submitted by the delinquents and considered by the Inquiry Officer.
9.3 The plea raised by Shri M.K. Bhardwaj, learned counsel for the applicant about the decision in this case having been vitiated by a pre-determination of the penalty in the show cause notice is not found to be convincing, since the Show Cause Notice clearly mentioned the same as a proposed penalty. The use of the adjective proposed itself connotes the lack of finality. Hence the argument of the pre-determination on the part of the Disciplinary Authority would not hold good. In any case, the DAs order reveals about not only a consideration of the written reply of the Charged Official but also his having been given an opportunity for personal hearing. The confirmation of the proposed penalty is stated to be after considering the matter in entirety on the basis of the relevant records, inquiry report and the submissions of the Charged Official. Further the decision regarding the penalty was reviewed effectively at the level of the Appellate Authority. Therefore, to argue that by a mention of the proposed penalty in the show cause notice, there was a violation of the principles of natural justice or vitiation of the impugned penalty, would not be in consonance with law. Even otherwise, the settled principle of law is not to favour a hyper technical and straight jacketed approach while interpreting the broad concept of the principles of natural justice. The basic premise being to accord to the delinquent adequate opportunity for projecting his case, which has not been found to be affected here.
9.4 The legal sustainability of the DAs and AAs orders has been challenged on the ground of these being non-speaking and non-considering the submissions of the applicant. We have mentioned in the foregoing paragraphs about the factors weighing with the DA while passing the order. These, inter alia, included the submissions by the applicant.
9.4.1 The order of the AA is a very detailed one. A perusal of the relevant order reveals that the AA had scrupulously recorded point-wise defence submissions in respect of the IOs findings. Para 5 of the order recorded certain objective findings in favour of the appellant. However, despite the extenuating circumstances revealed there from, certain very clear acts of omission and commission had been found on the part of the appellant (para-6) which stood in the way of complete exoneration as prayed for. The aspect regarding non-according of party with the Head Clerk has already been dealt above.
With reasoned findings, the Appellate Authority while upholding the penalty of reduction had found it fit in the interest of justice to modify the penalty so that it would not have any perpetuated financial implication on the appellant.
We find the plea of any injustice having been done to the applicant on this score as misconceived.
10. To conclude, having had a close look at the inquiry report and the orders of the impugned penalty, we have not found any of the contentions raised on behalf of the applicant as tenable. We do not find the present one a case warranting judicial intervention in what is acknowledgedly within the legitimate domain of the Respondents. Resultantly, the Original Application is dismissed with no order as to costs.
(Dr. Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
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