Central Administrative Tribunal - Delhi
Sharbati Devi vs Municipal Corporation Of Delhi, Govt. ... on 21 November, 2017
1 OA 4274/14
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.4274 OF 2014
New Delhi, this the 21st day of November, 2017
CORAM:
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
AND
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
..........
Smt. Sharbati Devi,
Aged 45 years,
W/o Shri Chander Pal,
R/o D-2/190, J.J.Colony,
Madangir,
New Delhi 110062 .............. Applicant
(By Advocate: Ms.Meenu Mainee)
Vs.
1. The Commissioner,
South Delhi Municipal Corporation,
Dr.Shyama Prasad Mukherjee,
Civic Centre, J.L.N.Marg,
New Delhi.
2. The Additional Commissioner (DEMS),
Vigilance Department,
South Delhi Municipal Corporation,
Dr.Shyama Prasad Mukherjee,
Civic Centre, J.L.N.Marg,
New Delhi.
3. The Sanitation Superintendent,
South Delhi Municipal Corporation,
South Zone, Green Park,
New Delhi ............... Respondent
(By Advocate: Ms.Anupama Bansal)
..............
ORDER
Per RAJ VIR SHARMA, MEMBER(J):
The applicant has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs: Page 1 of 35 2 OA 4274/14
"(a) to quash and set aside the impugned orders of penalty dated 23.1.2014 communicated on 26.2.2014 and impugned order of appellate authority dated 13.5.2014 communicated on 28.5.2014 by D.L.O. (Annexure A1 colly.) commanding the respondents to reinstate the applicant along with all consequential benefits like as continuity in service and arrears of pay for the intervening period i.e. from the date of compulsory retirement dated 23.1.2014 till her reinstatement in service which she gets as if she had not been compulsorily retired from service.
(b) to quash and set aside the charge sheet dated 12.6.2007 declaring that charge sheet is bad in law after recovering the amount of HRA which gave rise to issue the show cause notice dated 29.6.2005.
(c) to allow the Original Application along with all consequential benefits.
(d) to pass any other or further order as this Hon‟ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. The brief facts giving rise to the present O.A. are as follows:
2.1 While working as a Safai Karmachari under the control and supervision of the Sanitation Superintendent in C.S.E.South Zone, Delhi Municipal Corporation, the applicant was issued a show-cause notice dated 29.6.2005 (Annexure A2) stating thus:
"Whereas while you are working as a regular S.K. in Ward No.61(Post-24), a Govt. accommodation No.516, Sect.5, Pushp Vihar Type II was allotted in the name of your husband Sh.Chander Pal in which you were sharing the Govt. accommodation during the period Oct.98 to Aug. 04; whereas the said accommodation was allotted on 7.10.98, vide letter No.1693 by the CPWD and remained in possession up to 31.8.04; whereas you were supposed to inform this fact to the Department, but you remained failed and continued the drawal of HRA with salary for which you were not entitled.
Whereas after going through the record and investigation, it reveals that you have deceived the Deptt. and illegally drawn an excess amount of Rs.73480/- as a shape of HRA. Thus you Page 2 of 35 3 OA 4274/14 are hereby directed to deposit Rs.73,480/- in Spl.Treasury within 30 days from the receipt of this notice and also directed to explain your conduct as to why you have concealed this fact as to why the disciplinary action may not be taken against you which is against the CCS Conduct Rule applicable upon all Govt. servants. If your reply not reach in this office within stipulated time then matter will be forwarded for disciplinary action against you."
2.2 The applicant submitted her reply on 15.7.2005 (Annexure A3) stating, inter alia, that during the period in question she had a dispute with her husband, and that is why she was not residing with her husband at the Government accommodation, which fact was verbally intimated by her to the office. She being illiterate could not give written information to the office on the subject. She also expressed her willingness to deposit Rs.73,480/- which was held to have been erroneously paid to her towards HRA. It was also prayed by the applicant that being an illiterate lady and unaware of the rule position, she might be forgiven for the fault, if any. 2.3 On the very same day, i.e., 15.7.2005, the applicant deposited Rs.73,480/- in the Special Treasury of Delhi Municipal Corporation, vide treasury challan dated 15.7.2005 (Annexure A4).
2.4 While so, the respondent-Municipal Corporation of Delhi issued a charge memo dated 12.6.2007 (Annexure A/5), along with the statement of charge framed against the applicant, statement of allegation on the basis of which the charge was framed against the applicant, list of documents by which, and list of witnesses by whom the charge framed against the applicant was to be sustained, proposing to hold an enquiry Page 3 of 35 4 OA 4274/14 against the applicant under Regulation 8 of the Delhi Municipal Corporation Service (Control & Appeal) Regulations, 1959.
2.5 The statement of charge framed against the applicant, and the statement of allegations on the basis of which the charge was framed against the applicant read thus:
(i) Statement of charge:
"Smt. Sarbati was working as S.K. in Ward No.61, EMS Deptt., South Zone during the period from 1998 to 2004. She failed to maintain absolute integrity and devotion to duty and committed gross misconduct in as much as she had withdrawn unauthorized payment of HRA during the period from October, 1998 to August, 2004 by concealing the fact that she has been sharing Govt. accommodation allotted to her husband at Pushpa Vihar.
She, thereby, contravened Rule 3(1)(i)(ii) & (iii) of CCS (Conduct) Rules, 1964 as made applicable to the employees of MCD."
(ii)Statement of allegations:
Smt. Sarbati was working as Safaikarmachari in Ward No.61, EMS Deptt. South Zone during the period from October, 1998 to August, 2004. She was duty bound to inform the department that she has been sharing Govt. accommodation allotted to her husband and also not to withdraw HRA for that period.
A complaint was received that Smt. Sarbati, SK has been drawing her HRA, while she has been sharing Govt. accommodation allotted to her husband at Pushpa Vihar. Accordingly, matter was investigated at Zonal level/South Zone. The Investigation revealed that Shri Chander Pal husband of Smt. Sarbati, JIO-I, Ministry of Home Affairs, I.B.North Block, New Delhi was allotted Govt. accommodation No.516, Sector-V, M.B.Road, Pushpa Vihar (Type II) on 7.10.1998. Smt. Sarbat, SK did not disclose this fact to the Municipal authorities and continued to draw the HRA unauthorizedly from the department w.e.f. October, 1998 to August, 2004. In this regard, she was served a show cause notice no.242/CSE/SS.SZ/05 dated 29.6.2005 to which she also submitted her reply dated 15.7.2005. But the same was not Page 4 of 35 5 OA 4274/14 found satisfactory. It also revealed that subsequently she deposited the amount of Rs.73,480/- in municipal treasury drawn by her unauthorizedly as HRA, vide challan No.749/ACA/SZ dated 15.7.2005. Her husband had also surrendered/vacated the said Govt.accommodation on 31.8.2004.
From the foregoing, it is evident that Smt. Sarbati, SK failed to maintain absolute integrity, and devotion to duty and committed gross misconduct in as much as she had withdrawn unauthorized payment of HRA during the period from October, 1998 to August, 2004 by concealing the fact that she has been sharing Govt. accommodation allotted to her husband at Pushpa Vihar.
She, thereby, contravened Rule 3(1)(i)(ii) & (iii) of CCS (Conduct) Rules, 1964 as made applicable to the employees of MCD."
2.6 On 26.6.2007, the applicant submitted written statement of her defence (Annexure A6), wherein, besides reiterating more or less the same plea as in her reply to the show-cause notice dated 29.6.2005 (ibid), she stated, in paragraphs 6 and 7, as follows:
"6. Sh.Hem Raj Singh is my son in law and my family along with my daughter have the litigation with Sh.Hem Raj more than 5 years. In the court proceeding the Hon‟ble Court awarded the maintenance to my daughter against Sh.Hem Raj and ordered him to comply with the same. Sh. Hem Raj Singh also filed a divorce suit before the Distt. Judge, Delhi and the same also is pending for adjudication. Sh. Hem Raj Singh also have the quarrelsome nature since the long time and he is not maintaining my daughter as well as their family members including parents and have the abusive nature and also short- tampered person.
7. Sh.Hem Raj Singh is also employed in the Govt. Department and he always trying to pressurize myself along with my family members only to settle the all disputes and matters pending before the Hon‟ble courts at Delhi for adjudication. This act also to compel or create the undue pressure on myself, thereby I will settle the all disputes."
The applicant also pleaded that she at all relevant times maintained absolute integrity and devotion to duty assigned to her by the authorities. She never Page 5 of 35 6 OA 4274/14 committed any misconduct. In compliance with the show cause notice dated 29.6.2005(ibid), she deposited Rs.73,480/-, while stating that due to strained relationship with her husband, she was not residing with her husband and was residing separately. She, therefore, requested the Disciplinary Authority to take into consideration all aspects of the matter and to drop the charge memo.
2.7 Thereafter the departmental enquiry was conducted. After about five and half years of initiation of the departmental proceedings and submission of written statement by the applicant, the Inquiry Officer submitted his report dated 7.11.2012 (Enclosure to Annexure A7) finding the charge as proved against the applicant. The relevant part of the enquiry report is reproduced below:
"BRIEF NARRATION OF THE DEPOSITION OF PROSECUTION WITNESSES Shri Ram Pal, SS (retired), while appearing as PW-1, in his statement stated that he worked as SS/South Zone during the relevant period. A complaint was received that the S.K. Smt.Sarbati has been drawing HRA while she had been sharing Govt. Accommodation allotted to her husband at Pushp Vihar. Accordingly, the matter was investigated at zonal level in South Zone and the investigation revealed that Sh.Chander Pal husband of Smt. Sarbati, JIO-I,, Ministry of Home Affairs, IB North Block, New Delhi was allotted Govt. accommodation No. 516, Sector-5, M.B.Road, Pushpa Vihar, Type II on 7.10.98. The Charged Official did not disclose this fact to the Municipal Authorities and continued to draw the HRA unauthorizedly from the Department w.e.f. October, 1998 to August 2004. In this regard she was served a show cause notice dated 29.6.2005, report of CSI dated 30.5.2005, copy of application submitted by the C.O. in respect of allotment of Govt. accommodation dated 15.7.2005, copy of show cause notice dated 29.6.2005, copy of challan dated 15.7.2005, copy of allotment letter in favour of Shri Chander Pal, vacation letter Page 6 of 35 7 OA 4274/14 dated 31.8.2004, photocopy of the ECRs for the period of October, 1998 to August, 2004 and photocopy of service book pages 10 and 11 are collectively marked as Ex.PW-1/A (6 sheets).
On being cross-examined by the Charged Official through her D.A., the witness admitted that the complaint does not bear his signatures. The documents exhibited were forwarded by the OS to him along with his report and he forwarded the case to the higher authorities. He did not come across the reply submitted by the Charged Official to the show cause notice. He did not investigate the matter, however, the matter was put up to him by the OS and he forwarded the same to the higher authorities. He had no personal knowledge about the residence of the Charged Official and her husband. He had no knowledge about the residence of the Charged Official. He admitted that he had not seen the Service Book and Personal File of the Charged Official with regard to her residential address.
Shri Hem Raj Singh, Process Server, Tourism Department, Old Sectt., while appearing as PW-2, in his statement stated that he had seen his complaint dated 21.3.2005 which was addressed to the CVC. He recognized his signatures at point „a‟ thereon and also confirmed its contents as correct and true.
The Charged Official did not cross-examine the witness although an opportunity was afforded to her. FINDINGS As per Charge-sheet the charge against Smt. Sarabati is that she while working as SK in Ward No.61, EMS Department, South Zone during the period from 1998 to 2004, failed to maintain absolute integrity and devotion to duty and committed gross misconduct in as much as she had withdrawn unauthorized payment of HRA during the period from October, 1998 to August, 2004 by concealing the fact that she has been sharing Govt. accommodation allotted to her husband at Pushpa Vihar.
The prosecution has examined two PWs to prove the aforesaid charge against the Charged Official besides producing the following documents which are collectively marked as Ex.PW-1/A (16 sheets):-
Complaint dated 21.3.2005 made by Shri Hem Raj Singh, Process Server, Tourism Department, GNCTD, addressed to Central Vigilance Commissioner (CVC) regarding withdrawal of HRA by the Charged Official Smt. Sarbati though she was residing with her husband who had been allotted a Govt. accommodation at Pushpa Vihar, New Delhi.Page 7 of 35 8 OA 4274/14
The investigation report of CSI, South Zone submitted on 30.5.2005 in which it has been mentioned that under the orders of SS/South Zone he had gone through the case number of times. Smt. Sarbati had given her statement in writing that a Govt. accommodation had been allotted to her husband at Pushp Vihar area bearing Q.No.516, Sector-V, Type II and that both husband and wife lived in the same flat with their children for few days and just after surrendered the same flat to the department of his husband on 31.8.2004.
Show cause notice dated 29.6.2005 issued to the Charged Official under the signatures of SS/South Zone for recovery of Rs.73,480/- on account of illegal drawal of HRA.
Reply dated 15.7.2005 submitted by the Charged Official in response to memo dated 29.6.2005 in which she stated that it is correct that her husband had got allotted a Govt. flat and started residing separately. She was not residing with him in the said flat. She further stated that due to illiteracy she had no knowledge regarding the rules of HRA, therefore, she could not give intimation in her office. She also stated that as per directions she had deposited Rs.73,480/- in the Municipal Treasury.
Copy of challan dated 15.7.2005which shows that the Charged Official had refunded the HRA amount of Rs.73,480/- drawn by her w.e.f. October, 1998 to August, 2004.
Copy of allotment letter dated 7.10.98 which shows that the Charged Official‟s husband Shri Chander Pal, JIO-I, Ministry of Home Affairs, IB, North Block, New Delhi, was allotted Govt. accommodation No.516, Sector-V, M.B.Road, Type II, Pushp Vihar, New Delhi.
Vacation report dated 31.8.2004 which shows that her husband of the Charged Official had vacated the Govt. accommodation bearing No.516, Sector-V, M.B.Road, Type II, Pushp Vihar, New Delhi.
Photostat copy of ECR for the period from October, 1998 to August, 2004 in respect of the Charged Official Smt. Sarbati, SK, which shows that she had drawn HRA w.e.f. October, 1998 to August, 2004 with her salaries.
Photostat copy of Service Book of the Charged Official of pages 10 and 11.
The Charged Official in her written arguments has admitted that Govt. accommodation was allotted to her husband but she was living separately due to conflict between them.She further stated that she had given the reply to the department in response to letter No.897 dated 5.1.2005 in which she had stated that she is living in P.No.D-II/190, Madangir, Delhi and her husband is living in Govt. Accommodation.
Page 8 of 35 9 OA 4274/14
The plea taken by the Charged Official is not convincing because the Charged Official had never intimated the department regarding allotment of Govt. accommodation to her husband though her husband was allotted the Govt.
accommodation in October, 1998 and the Charged Official was residing with her husband since that date. The Charged Official had intimated the department about the allotment of Govt. accommodation to her husband in the month of January,2005. Had she was not residing with her husband in Govt.
accommodation, she would not have refunded the HRA amount but she on receipt of.
It is proved from the record brought on file that the Charged Official‟s husband was allotted Govt. accommodation bearing No.516, Sector V, M.B.Road, Type II, Pushp Vihar, New Delhi in October, 1998 and he vacated this accommodation/flat in August 2004. It is an admitted fact that the Charged Official had drawn HRA along with her salary w.e.f. October 1998 to August 2004. However, on making complaint by Shri Hem Raj Singh on 21.3.2005 in the C.V.C. and on issuance of memo dated 29.6.2005 by the SS/South Zone, the Charged Official had refunded the HRA amounting to Rs.73,480/- on 15.7.2005.
The Charged Official was working as Safai Karamchari and is an illiterate employee of M.C.D. She may not have knowledge of law and rules regarding the drawal of H.R.A. as contained in the Rules Book, which fact mitigates the gravity of charge. The charged official had refunded the HRA withdrawn by her from October 1998 to August 2004 by not disclosing the fact to her department that she has been sharing the Govt. accommodation allotted to her husband at Pushpa Vihar. Therefore, the charge as framed against the Charged Official is proved.
Thus, to sum up, what has been stated, explained and discussed above, I come to the conclusion that the charge as framed against Smt. Sarbati, Safai Karmachari, EMS Department, South Zone, is proved.
The Inquiry Report is submitted to the Discipiniary Authority for consideration and for favour of passing appropriate orders under the DMC Service (Control & Appeal) Regulations, 1959."
2.8 The Assistant Law Officer (Vig.), vide Memo dated 16.1.2013 (Annexure A7), supplied a copy of the above enquiry report to the applicant Page 9 of 35 10 OA 4274/14 and called upon her to make any representation or submission thereon within seven days of receipt of the Memo.
2.9 In her representation (Annexure A10) against the enquiry report, the applicant reiterated her pleas as raised in her reply to the show cause notice dated 29.6.2005(ibid) and the written statement of her defence submitted by her on 26.6.2007 (ibid).
2.10 Thereafter, the Assistant Law Officer (Vigilance) issued to the applicant a memo dated 31.5.2013 (Annexure A9) stating, inter alia, that the Additional Commissioner, SDMC, as Disciplinary Authority, proposed to inflict upon her the penalty of Compulsory Retirement, and that she was given an opportunity to make such representation as she might wish against the proposed order of penalty.
2.11 The memo dated 31.5.2013(Annexure A9) was received by the applicant on 5.12.2013. In response thereto, the applicant made a representation dated 7.12.2013 (Annexure A10), wherein the pleas raised by her earlier were reiterated, and the Disciplinary Authority was requested to take into consideration the entire facts and circumstances of the case and to exonerate her of the charge.
2.12 Thereafter, the Assistant Law Officer (Vigilance), South Delhi Municipal Corporation (Vigilance Department), issued office order dated 26.2.2014(Annexure A1) which reads thus:
"OFFICE ORDER Whereas Smt. Sarbati, Safai Karmachari, Ward No.61, DEMS Deptt., South Zone has been proceeded for major penalty vide charge sheet No.3/40/2007/CPC/Vig./DA-Page 10 of 35 11 OA 4274/14
II/2007/125 dated 12.6.2007 on the charge that she had withdrawn unauthorized payment of HRA during the period from October,1998 to August 2004 by concealing the fact that she has been sharing Govt. accommodation allotted to her husband at Pushp Vihar.
And whereas Dy. Director of Inquiries-I the Inquiry Officer after conducting the regular departmental inquiry under Inquiry No.59/07/DE/DDI-I held the charge as „proved‟ against St. Sarbati, Safai Karmachari vide Inquiry Report dated 7.11.2012.
And whereas Addl. Commissioner-I after considering the Inquiry Report, reply thereto as filed by Smt. Sarbati, Safai Karmachari and allied record of the case proposed to inflict the penalty of „compulsory retirement‟ upon Smt.Sarbati, Safai Karmachari, vide his orders dated 27.5.2013.
And whereas a show cause notice dated 3.5.2013 was issued and served upon Smt. Sarbati, Safai Karmachari, to which she has not submitted her reply despite acknowledging the same on 5.12.2013.
AND Now, therefore, Addl. Commissioner-II after considering the record of the case in its entirety, has finally confirmed the proposed penalty of „compulsory retirement‟ upon Smt. Sarbati, Safai Karmachari, vide her orders dated 23.1.2014.
This is being issued and notified for information and necessary action by all concerned."
2.13 Being aggrieved, the applicant made an appeal (Annexure A11) to the Appellate Authority against the punishment order passed by the Disciplinary Authority. By Memo dated 28.5.2014 (Annexure A1) issued by the Dy.Law Officer (Vigilance), SDMC(Vigilance Department), the applicant was informed of rejection of her appeal by the Appellate Authority, i.e, the Commissioner, SDMC, vide his order dated 13.5.2014 which is reproduced below:
"ORDER In this case, Smt. Sarbati, Safai Karmachari, Ward NO.61, DEMS Deptt.South Zone was proceeded for major penalty on the charge that she had withdrawn unauthorized Page 11 of 35 12 OA 4274/14 payment of HRA during the period from Oct. 1998 to Aug.2004 by concealing the fact that she has been sharing Govt. Accommodation allotted to her husband at Pushp Vihar.
Dy.Director of Inquiries-I after conducting regular department inquiry held the charge as „PROVED‟against Smt. Sarbati, Safai Karmachari vide Inquiry Report dated 7.11.2012.
The copy of Inquiry Report was issued and served upon Smt. Sarbati, Safai Karmachari, to which, she submitted her reply.
Disciplinary Authority/Addl.Commissioner-I after considering the Inquiry Report, reply thereto as filed by Smt. Sarbati, Safai Karmachari and allied record of the case proposed to inflict the penalty of „Compulsory Retirement‟ upon Smt. Sarbati, Safai Karmachari, vide his orders dated 27.5.2013.
Show cause notice dated 3.5.2013 was issued and served upon Smt. Sarbati, Safai Karmachari, to which, she preferred not to file any reply despite acknowledging the same.
Disciplinary Authority/Addl. Commissioner-II after considering the record of the case in its entirety finally confirmed the penalty of „compulsory retirement‟ upon Smt. Sarbati, Safai Karmachari, vide her orders dated 23.1.2014, issued and notified vide office order No.3/40/2007/Vig./P/NS/2014/463 dated 26.2.2014.
Aggrieved by the said penalty orders, Smt Sarbati, Safai Karmachari has preferred the present appeal, wherein she has inter alia prayed for taking a lenient view in the matter considering the fact that the entire amount of Rs.73,480/- was refunded in the year 2005.
I have gone through the grounds of appeal, orders passed by the disciplinary authority dated 27.5.2013 and 23.1.2014, inquiry report, allied record of the case and also heard appellant in person. On the bare perusal it is revealed that the appellant Smt. Sarbati, S.K. did not disclose the fact that she had withdrawn HRA during the period with effect from Oct. 1998 to Aug. 2004 though she was admittedly sharing Govt. accommodation allotted to her husband at Pushp Vihar. However, subsequently on complaint when show ause notice was served upon her, she deposited the amount for a sum of Rs.73,480/- in municipal treasury vide challan No.749/ACA/SZ dated 15.07.2005 which was drawn by her in an unauthorized manner as HRA. The Inquiry Officer vide report dated 07.11.2012 held the charge as „PROVED‟ against the appellant. Further relying upon the findings of the inquiry report disciplinary authority after considering the entire record Page 12 of 35 13 OA 4274/14 proposed and confirmed the impugned penalty i.e. „penalty of compulsory retirement‟ upon the appellant.
In view of the foregoing I do not find any infirmity in the orders passed by the disciplinary authority and there is no merit in the appeal filed by Smt. Sarbati, SK. Therefore, I hereby uphold the order passed by disciplinary authority dated 23.01.2014 and reject the present appeal.
Appellant be informed accordingly."
2.14 Hence, the present O.A. has been filed by the applicant seeking the reliefs as aforesaid.
3. In support of her case, the applicant has contended as follows:
(1) Once the respondent-authorities had decided and issued the show cause notice dated 29.6.2005(ibid) to recover the amount of HRA purportedly drawn by her erroneously during the period in question, and in compliance with the show-cause notice she had deposited the amount of HRA in the Municipal Treasury, while denying the allegation that she was sharing the Government accommodation allotted to her husband, and pleading that due to strained relationship with her husband, she was separately residing during the period in question, the initiation of the impugned disciplinary proceeding, vide charge memo dated 12.6.2007, is per se mala fide and consequently, and the enquiry report and the orders passed by the Disciplinary Authority are bad and illegal and liable to be quashed.
(2) She has not committed any misconduct inasmuch as the HRA was paid to her during the period in question when she was not residing with her husband at the Government accommodation Page 13 of 35 14 OA 4274/14 and was residing separately on account of strained relationship with her husband.
(3) When the HRA purportedly drawn by her erroneously was refunded to the respondent-Municipal Corporation on 15.7.2005, the initiation of the disciplinary proceedings vide charge memo dated 12.6.2007 and the order of penalty of compulsory retirement passed on 26.2.2014 are clearly hit by the doctrine of double jeopardy.
(4) The enquiry was not conducted in accordance with the DMCS (Control & Appeal) Regulations, 1959, inasmuch as the Inquiry Officer did not question her on the circumstances which came in the evidence against her and, therefore, the enquiry report and the orders passed by the Disciplinary and Appellate Authorities stand vitiated.
(5) The Inquiry Officer has failed to consider the pleas raised by her in the written statement of defence and has rejected her plea of living separately during the period in question without any justifiable reason. There was no evidence led by the prosecution to substantiate the charge that she was sharing the Government accommodation allotted to her husband, and was drawing the HRA by concealing the said fact during the period in question. Thus, the findings arrived at by the Inquiry Officer are perverse and/or are based on no evidence, and the orders passed by the Page 14 of 35 15 OA 4274/14 Disciplinary and Appellate Authority accepting such perverse findings of the Inquiry Officer and inflicting upon her the major penalty of compulsory retirement are unsustainable and liable to be quashed.
(6) The Disciplinary Authority and Appellate Authority have passed the impugned orders without applying their mind to the facts and circumstances of the case and the materials available on record of enquiry and also without considering the pleas raised by her in proper perspective and, therefore, the impugned orders are liable to be quashed.
4. The respondents, in their counter reply, have pleaded that there is sufficient evidence to prove the charge against the applicant. The Inquiry Officer, Disciplinary Authority, and Appellate Authority have all recorded the findings in fair manner. The procedure established by law has been duly followed. There is no infirmity in the orders passed by the authorities.
5. The applicant has filed a rejoinder reply refuting the stand taken by the respondents.
6. We have heard Ms.Meenu Mainee, the learned counsel appearing for the applicant, and Ms.Anupama Bansal, the learned counsel appearing for the respondents.
7. Besides reiterating the contentions as raised in the O.A., Ms.Meenu Mainee, the learned counsel appearing for the applicant, submitted that though five persons were cited as witnesses in the list of Page 15 of 35 16 OA 4274/14 witnesses, the prosecution examined only two witnesses. On the basis of the purported complaint made by Shri Hem Raj Singh (PW 2), Shri R.B.Sali, CSI/SZ, was stated to have investigated the matter and submitted a report which led to the issuance of the show-cause notice dated 29.6.2005 and initiation of the impugned departmental proceedings (vide charge memo dated 12.6.2007) against the applicant. The said Shri R.B.Sali, CSI/SZ, though cited as witness no.3 in the list of witnesses, was not examined during the enquiry and therefore, the applicant was deprived of an opportunity to cross-examine the said Shri R.B.Sali, and the investigation report, which was the very basis of the departmental proceedings and was relied on by the Inquiry Officer, Disciplinary Authority, and Appellate Authority to return their findings against the applicant, was inadmissible in evidence. Furthermore, P.W.1 clearly deposed in his cross-examination that he had not investigated the matter. He had only forwarded the complaint, the report of the CSI, and the applicant‟s reply to the higher authorities for appropriate action. P.W.2-Shri Hem Raj Singh, who was the son-in-law of the applicant and had previous litigations with the applicant and other family members, being inimical towards the applicant and her family, his evidence ought not to have been accepted by the Inquiry Officer, Disciplinary Authority, and Appellate Authority in the absence of any corroborative evidence being led by the prosecution. Thus, there was no legally admissible evidence to support the conclusions/findings arrived at by the Inquiry Officer, Disciplinary Authority and Appellate Authority. Therefore, Page 16 of 35 17 OA 4274/14 the findings/conclusions arrived at by the Inquiry Officer, Disciplinary Authority and Appellate Authority are perverse/based on no evidence and hence unsustainable in the eyes of law.
7.1 It was also submitted by Ms.Meenu Mainee that after examination of the two prosecution witnesses was over, and when the applicant did not choose to examine any defence witness, nor did she examine herself as a defence witness, the Inquiry Officer did not subject the applicant to general examination and thereby the applicant was denied an opportunity of explaining the circumstances, if any, appearing against her in the evidence led by the prosecution and she was gravely prejudiced. Thus, the enquiry was not conducted as per rules and the enquiry report submitted by the Inquiring Officer and the orders passed by the Disciplinary Authority and Appellate Authority are unsustainable and liable to be quashed. 7.2 It was further submitted by Ms.Meenu Mainee that on the facts and circumstances of the case, the major penalty of compulsory retirement is highly disproportionate to the charge purportedly held to have been proved against the applicant.
7.3 In support of her contentions, Ms.Meenu Mainee, the learned counsel appearing for the applicant, relied on the decisions of the Hon‟ble Supreme Court in Ministry of Finance & Anr. Vs. S.B.Ramesh, JT 1998(1) SC 319; and Moni Shankar Vs. Union of India and Anr., 2008(3) SLJ 325(SC); and the decisions of the Hon‟ble High Court of Delhi in Union of India Vs. Mr.Lalit Kumar, W.P. ( C ) No.11396 of 2005, Page 17 of 35 18 OA 4274/14 decided on 10.3.2011; Union of India Vs. Rajesh Kumar Meena, W.P. ( C ) No. 6930 of 2009, decided on 28.3.2017; and Union of India and Anr. Vs. Surinder S.Batra, W.P. ( C) No. 4357 of 2015, decided on 1.5.2015. 7.3.1 In Ministry of Finance & Anr. Vs. S.B.Ramesh (supra), the Tribunal, on a consideration of the pleadings and documents placed before it, found that the findings were rendered on surmises and presumptions and the documents marked as exhibits were not properly proved and the non- examination of one witness was fatal to the case of the prosecution. The Tribunal found that there was a total dearth of evidence to bring home the charge. Accordingly, the Tribunal set aside the order impugned before it, namely, the order of compulsory retirement. Dismissing the Civil Appeal and upholding the Tribunal‟s decision, the Hon‟ble Supreme Court observed that the departmental enquiry conducted in that case was totally unsatisfactory and without observing the minimum required procedure for proving the charge.
7.3.2 In Moni Shankar Vs. Union of India and Anr. (supra), the Hon‟ble Supreme Court held that that the guidelines contained in the Railway Vigilance Manual may be administrative, but cannot be totally ignored. In disciplinary proceedings, though the strict rules of evidence are not applicable, but at least standard of preponderance must be fulfilled. 7.3.3 In Union of India Vs. Mr.Lalit Kumar (supra), the Tribunal set aside the order of punishment on the grounds of violation of Rule 14(18) of the CCS (CCA) Rules and non-supply of the copy of the advice of the Page 18 of 35 19 OA 4274/14 UPSC and recommendation of the CVC. The writ petition filed against the Tribunal‟s decision was dismissed by the Hon‟ble High Court of Delhi. 7.3.4 In Union of India Vs. Rajesh Kumar Meena (supra), the respondent was removed from service on the charge of unauthorized absence for a long period being proved in the departmental proceedings. After considering the materials available on record, the Tribunal held that the enquiry had not been conducted as per law, and the proportionality of punishment with regard to the misconduct had not been properly examined by the Disciplinary Authority and Appellate Authority. Accordingly, the Tribunal quashed the punishment of removal and directed the petitioner to reinstate the respondent and to treat the period of absence as spent on duty for all purposes except back wages. The Hon‟ble High Court of Delhi quashed the Tribunal‟s decision and disposed of the writ petition with the following observations:
"16. In the present case, the matter pertains to the year 2000 and has travelled to the Tribunal on three occasions. The respondent was a mere porter having put in numerous years of service and the unauthorized absence was an isolated incident allegedly owing to the ill-health of the family members of the respondent. In this background, the original penalty imposed of removal from service seems to be wholly disproportionate to the charges proved against the respondent and thus, shocks the conscience of this Court. In order to shorten litigation, the ends of justice would be met if the punishment awarded to the respondent is modified and the order of the disciplinary authority and the appellate authority are upheld. Accordingly, the order of the Tribunal is quashed, however, the penalty imposed upon the respondent would be modified to one of compulsory retirement from the date of the order of the disciplinary authority.
17. We make it clear that the respondent would not be entitled to any back-wages and any other benefits. He would Page 19 of 35 20 OA 4274/14 also not be entitled to any subsistence allowance, if it had not been claimed earlier. Since the matter has been pending since the year 2000, we hope that the petitioner would deal with the same expeditiously."
7.3.5 In Union of India and anr. Vs. Surinder S.Batra (supra), the Tribunal directed for holding de novo proceedings only on the ground that the Inquiry Officer appointed by the petitioners was a member of the Vigilance Department. Relying on the decision of the Hon‟ble Supreme Court in UOI Vs. Prakash Kumar Tandon, (2009)1 SCC (L&S) 394, the Hon‟ble High Court found no infirmity in the Tribunal‟s decision and disposed of the writ petition with observation that if the petitioners were convinced that there was a need to conduct a de novo enquiry, then they shall proceed in the matter.
8. Per contra, Ms. Anupama Bansal, the learned counsel appearing for the respondents, submitted that in view of the facts that the applicant had deposited the entire amount of HRA wrongly drawn by her, and that the applicant declined to cross-examine P.W.2, no prejudice was caused to the applicant for not subjecting her to the general examination after the prosecution witnesses were examined, and when the applicant chose not to examine any defence witness during the enquiry. Therefore, the enquiry report finding the charge as proved against the applicant cannot be said to have suffered from any infirmity.
8.1 Ms.Anupama Bansal also submitted that the deposit of the HRA wrongly drawn by her would not absolve the applicant of the charge levelled against her in the departmental proceedings, and, therefore, the Page 20 of 35 21 OA 4274/14 enquiry report and the orders passed by the Disciplinary Authority and Appellate Authority remain unassailable.
8.2 In support of her contentions, Ms.Anupama Bansal relied on the decisions of the Hon‟ble Supreme Court in State Bank of Patiala and others Vs. S.K.Sharma, (1996) 3 SCC 364; and Commissioner of Rural Development and others Vs.A.S.Jagannathan, (1999) 2 SCC 313. 8.2.1 In State Bank of Patiala and others Vs. S.K.Sharma (supra), the Hon‟ble Supreme Court held, inter alia, that in the case of violation of a procedural provision, 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 requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent employee has not waived it, or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (including the setting aside of the order of punishment), keeping in mind the approach adopted in Managing Director, ECIL Vs. B.Karunakar, (1993) 4 SCC 727. The ultimate test is always the same, viz., test of prejudice, or the test of fair hearing, as it may be called.
8.2.2 In Commissioner of Rural Development and others Vs.A.S.Jagannathan (supra), the respondent was found guilty of shortage Page 21 of 35 22 OA 4274/14 and misappropriation of stores. The Disciplinary Authority, keeping in view that the respondent was to retire from service in near future, took a lenient view and imposed n him the punishment of stoppage of increments for two years without cumulative effect. His suspension period was directed to be treated as service period but without pay. In addition, loss of Rs.51,300/ caused by the respondent was also ordered to be recovered from him. The Tribunal set aside the Disciplinary Authority‟s order insofar as it inflicted the punishment of stoppage of two increments without cumulative effect, and directed the appellant to pay the respondent‟s salary for the period of suspension. Thus, the Tribunal modified the punishment imposed. Allowing the Civil Appeal and setting aside the Tribunal‟s decision, the Hon‟ ble Supreme Court held that the Tribunal had no jurisdiction to interfere with the punishment imposed by the Disciplinary Authority. The order of recovery of loss caused on account of respondent‟s negligence and misconduct is permissible under the Rules. The Tribunal was wrong in holding that if an order is passed for recovery of the amount from the employee, no punishment could be imposed on him.
9. In Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Others, AIR 1984 SC 1805, it has been laid down by the Hon‟ble Supreme Court that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It has also been laid down that where a quasi judicial tribunal records findings based on no Page 22 of 35 23 OA 4274/14 legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.
10. In B.C. Chaturvedi v. Union of India, AIR 1996 SC 484, reiterating the principles of judicial review in disciplinary proceedings, the Hon‟ble Apex Court has held as under:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.Page 23 of 35 24 OA 4274/14
11. In High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil, (2000) 1 SCC 416, the Hon‟ble Supreme Court has held thus:
"...Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above.."
12. In Syed Rahimuddin v. Director General, CSIR and others, ( 2001) 9 SCC 575, the Hon‟ble Apex Court has observed as under:
"...It is well settled that a conclusion or a finding of fact arrived at in a disciplinary enquiry can be interfered with by the court only when there are no materials for the said conclusion, or that on the materials, the conclusion cannot be that of a reasonable man...."
13. In Government of Andhra Pradesh v. Mohd. Nasrullah Khan, (2006) 2 SCC 373, the Hon‟ble Apex Court has reiterated the scope of judicial review as confined to correct the errors of law or procedural error if it results in manifest miscarriage of justice or violation of principles of natural justice. In para 7, the Hon'ble Court has held:
"By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error if any resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by appreciating the evidence as an Appellate Authority....."Page 24 of 35 25 OA 4274/14
14. After having given our thoughtful consideration to the facts and circumstances of the case and the rival contentions in the light of the decisions referred to in the preceding paragraphs of this order, we have found considerable force in the contentions raised by the applicant.
15. The misconduct alleged to have been committed by the applicant is that she had drawn HRA during the period from October 1998 to August 2004 by concealing the fact that she had been sharing Government accommodation allotted to her husband. The applicant did not dispute the facts of allotment of Government accommodation in favour of her husband, and drawal of HRA by her during the period in question. The applicant‟s plea was that due to strained relationship with her husband, she had been residing separately at P.No.D-II/190, Madangir, Delhi. Her further plea was that the fact of her not residing with husband was verbally intimated to the office, and being an illiterate lady she could not give written intimation to the office about the same.
16. At this stage, it is pertinent to note here that as per rules, the employees, who stay in rented accommodation, or in house owned by self/spouse/children/parents, and who are not provided with Government accommodation are entitled for HRA at prescribed rate, which is paid to them along with their monthly pay. In terms of paragraph 5(c)(iii) of the M.F., O.M.No.F.2(37)EII(B), dated 27.11.1965, when the spouse of a Government employee is allotted Government accommodation at the same station, he/she is not entitled for HRA, irrespective of the fact whether or not Page 25 of 35 26 OA 4274/14 he/she resides in that accommodation, and whether or not he/she resides separately in accommodation rented by him/her.
17. It transpires from the record that on the complaint lodged by Sh.Hem Raj Singh(PW 2), the respondents had carried out an investigation. On the basis of the investigation report, the respondents had issued a show- cause notice dated 29.6.2005 directing the applicant to deposit Rs.73,480/- in Special Treasury within 30 days from the receipt of the notice and to explain as why disciplinary action should not be taken against her for concealing the fact of allotment of Government accommodation to her husband and for drawing the HRA along with salary although she was residing with her husband during the period in question. The applicant submitted her reply on 15.7.2005 stating that she was not residing with her husband in the Government accommodation due to strained relationship between them and was residing separately; that she had verbally intimated the office about the same; that being an illiterate lady, she could not give written intimation to the office about the same; and that being an illiterate lady and unaware of the rule position, she might be forgiven for the fault, if any. On the very date of submission of her reply, i.e., on 15.7.2005, the applicant also deposited Rs.73,480/- in the Special Treasury of MCD. After about two years of her submission of reply and deposit of Rs.73,480/-, the respondents issued the charge memo dated 12.6.2007 initiating the major penalty proceedings under the DMC Service (Control & Appeal) Regulations, 1959. The respondent-authorities have not explained the Page 26 of 35 27 OA 4274/14 aforesaid period of delay in initiation of the impugned major penalty proceedings against the applicant on the selfsame allegations which had formed the basis of the show-cause notice dated 15.7.2005. From the statement of imputations of misconduct, enclosed with the charge memo dated 12.6.2007, it transpires that the pleas raised by the applicant in her reply dated 15.7.2005 pursuant to the respondents‟ show-cause notice dated 29.6.2005 were not at all considered by the respondents. The respondents rejected the applicant‟s explanation/reply dated 15.7.2005 without assigning any reason. In the above view of the matter, we have found substantial force in the contention of the applicant that the respondents have acted arbitrarily and mala fide in initiating the impugned departmental proceedings, vide charge memo dated 12.6.2007.
18. After going through the enquiry report and the orders passed by the Disciplinary Authority and Appellate Authority, we have found that the pleas raised by the applicant in her written statement of defence, representation against the enquiry report, and the appeal petition were rejected by the said authorities mainly on the ground that had she not been residing with her husband at the Government accommodation during the period in question, the applicant would not have refunded the HRA amount of 73,480/-. In our considered view, such an inference drawn by the said authorities was based on their surmises and conjectures. As noted earlier, in terms of the instructions issued by the Government of India, when the spouse of a Government employee is allotted Government accommodation Page 27 of 35 28 OA 4274/14 at the same station, he/she is not entitled for HRA, irrespective of the fact whether or not he/she resides in that accommodation, and whether or not he/she resides separately in accommodation rented by him/her. In the instant case, in spite of her explaining the circumstances leading to her not residing with her husband at the Government accommodation and her staying separately during the period in question, the applicant deposited Rs.73,480/- in the Special Treasury of MCD, which was purported to have erroneously been drawn by her and/or paid to her by the respondents towards HRA, in order to avoid the unwanted disciplinary action as threatened by the respondents in the show-cause notice dated 29.6.2005(ibid). On the facts and in the circumstances of the case, such approach of the applicant was not available to be construed as her admission of the fact that she was sharing the Government accommodation allotted to her husband. Therefore, the Inquiry Officer, Disciplinary Authority, and Appellate Authority cannot be said to have applied their mind to the facts and circumstances of the case, while rejecting the pleas raised by the applicant at all stages of the proceedings.
19. The next ground of attack made by the applicant to the inquiry report and the orders passed by the Disciplinary Authority and Appellate Authority is that the Inquiry Officer has failed to generally question her on the circumstances appearing against her in the evidence adduced by the prosecution during the enquiry and, therefore, the enquiry has not been conducted as per rules, and the impugned enquiry report and orders are Page 28 of 35 29 OA 4274/14 unsustainable and liable to be quashed. After going through the enquiry report, we have found that only two witnesses were examined by the prosecution to substantiate the charge against the applicant. The applicant has neither examined any defence witness on her behalf, nor has she examined herself as a defence witness. Therefore, the Inquiry Officer ought to have generally questioned the applicant on the circumstances appearing against her in the evidence for the purpose of enabling the applicant to explain any circumstances appearing in the evidence against her. But the Inquiry Officer has not questioned the applicant on the circumstances appearing against her in the evidence for the purpose of enabling the applicant to explain any circumstances appearing in the evidence against her. The provision of questioning the delinquent on the circumstances appearing in the evidence against him/her is conceived in the interest of the delinquent and based on the principle of natural justice. Had the applicant been questioned by the Inquiry Officer on the circumstances appearing in the evidence of P.Ws.1 and 2 and other documentary evidence adduced by the prosecution during the enquiry, she would have got an opportunity to explain the same, and in which event, the Inquiry Officer would have been in a position to take into consideration the applicant‟s explanation, while appraising the evidence adduced by the prosecution. As the Inquiry Officer failed to question the applicant on the circumstances appearing in the evidence against her, and the evidence adduced by the prosecution was assessed by the Inquiry Officer to return the finding that the charge was Page 29 of 35 30 OA 4274/14 proved against the applicant, gross prejudice was caused to the applicant. Thus, we have found substantial force in the contention of the applicant that the Inquiry Officer has not conducted the enquiry as per rule, and the enquiry report submitted by him and the orders passed by the Disciplinary Authority and Appellate Authority accepting the findings of the Inquiry Officer are unsustainable and liable to be interfered with.
20. The next ground of attack made by the applicant to the impugned enquiry report and orders is that there was no legally admissible evidence adduced by the prosecution to bring home the charge against her, and that the findings arrived at by the Inquiry Officer, Disciplinary Authority, and Appellate Authority were based on no evidence and/or perverse and/or based on their surmises and conjectures and, therefore, the impugned enquiry report and orders are liable to be quashed. We have carefully perused the materials available on record. The misconduct alleged to have been committed by the applicant is that she had drawn HRA during the period from October 1998 to August 2004 by concealing the fact that she had been sharing Government accommodation allotted to her husband at Pushpa Vihar. As already noted by us, the facts of payment of HRA and allotment of Government accommodation to her husband were admitted by the applicant. Her consistent plea was that due to strained relationship with her husband, she had been residing separately, and that she being illiterate could not give written intimation about her residing separately due to strained relationship with her husband and had given oral intimation about Page 30 of 35 31 OA 4274/14 the same to the office. Thus, it was to be found out in the departmental enquiry as to whether the applicant had been residing with her husband at the Government accommodation allotted to her husband and had intentionally concealed the fact of her sharing the Government accommodation allotted to her husband with a view to draw HRA during the period in question. In the list of documents (enclosed with the charge memo dated 12.6.2007) by which the charge was proposed to be sustained, nine documents were mentioned by which the charge was proposed to be sustained. They are as follows:
"1. Copy of complaint received from Shri Hem RajSingh dated
21.3.2005.
2. Report of Chief Sanitary Inspector dated 30.5.2005.
3. Copy of application submitted by Smt. Sarbati w/o Shri Chander Pal, SK in r/o allotment of Govt. Accommodation in favour of her husband dated 15.7.2005.
4. Copy of show cause notice no.242 dated 29.6.2005 issued to Smt.Sarbati W/o Shri Chander Pal, SK.
5. Copy of challan No.749/ACA/SZ dated 15.7.2005 in respect of depositing amount of Rs.73480/0 in MCDtreasury on account of refund of excess HRA amount drawn by Smt.Sarbati, SK.
6. Copy of allotment letter in favour of Shri Chander Pal H/o Smt. Sarbati.
7. Vacation letter (surrender letter) dated 31.8.2004.
8. Photocopy of therelevant ECRs for the period of Oct.1998 to August, 2004.
9. Photocopy of Service Book page 10 & 11."
In the list of witnesses (enclosed with the charge memo dated 12.6.2007) by whom, the charge was proposed to be sustained, five persons were cited to be examined as prosecution witnesses during the enquiry. They are as follows:
"1. Shri Hem Raj Singh, Process Server, Tourism Deptt. Govt. of NCT of Delhi, Room No.176, Old Sect. Delhi R/o H.No.255, Page 31 of 35 32 OA 4274/14 Sunlight Colony, Phase-1, Near Maharani Bagh, New Delhi 110014
2. Shri Ram Pal, SS/SZ-II
3. Shri R.B.Sali, CSI/SZ
4. Shri R.D.Sharma, SI/W.No.61
5. Shri Suraj Bhan, Bill Clerk/South Zone
6. Shri Tika Ram,Cashier/SZ."
Out of five witnesses cited in the list of witnesses, the prosecution examined only two witnesses, namely, Shri Ram Pal, SS/SZ-II as P.W.1, and Shri Hem Raj Singh, Process Server, Tourism Department, Govt. of NCT of Delhi, as P.W.2. The enquiry report reveals that on the basis of a complaint made by Shri Hem Raj Singh (PW2), Shri R.B.Sali, CSI, South Zone (cited as witness no.3 in the list of witnesses) had investigated the matter and submitted a report which led to the issuance of the show-cause notice dated 29.6.2005 and initiation of the departmental proceedings against the applicant, vide charge memo dated 12.6.2007. Thus, the said Shri R.B.Sali was a vital witness. The respondents have not explained the reason as to why Shri R.B.Sali, though named as witness no.3 in the list of witnesses, was not examined during the enquiry. Had he been examined as a witness, the applicant would have got an opportunity to cross-examine the said Shri R.B.Sali. Thus, the non-examination of Shri R.B.Sali as a witness during the enquiry was fatal to the prosecution, more particularly when the report submitted by Shri R.B.Sali was relied on by the Inquiry Officer and Disciplinary Authority to return the finding that the charge was proved against the applicant. Furthermore, P.W.1 clearly deposed in his cross- examination that he had no personal knowledge about the residence of the Page 32 of 35 33 OA 4274/14 applicant. He also admitted not to have seen the Service Book and Personal File of the applicant with regard to her residential address. He also admitted not to have investigated the matter. He stated to have only forwarded the complaint, the report of the CSI, and the applicant‟s reply to the higher authorities for appropriate action. Thus, it is found that the evidence of P.W.1 is hearsay. As regards the evidence of Shri Hem Raj Singh (P.W.2), it is the consistent plea of the applicant that Shri Hem Raj Singh (P.W.2) is his son-in-law and there were litigations in court for more than five years. Orders were also passed by competent court directing Shri Hem Raj Singh (PW 2) to pay maintenance to her daughter. Shri Hem Raj Singh also filed a divorce suit before the Distt. Judge, Delhi. Shri Hem Raj Singh has been trying to pressurize the applicant and other family members to settle all disputes and matters pending in different courts at Delhi for adjudication. The complaint lodged by Shri Hem Raj Singh, which led to the issuance of show-cause notice dated 29.6.2005 and the charge memo dated 12.6.2007, was to create undue pressure on her to settle all disputes with him. It is, thus, clear that Shri Hem Raj Singh (P.W.2) was inimical towards the applicant. It transpires from the enquiry report that Shri Hem Raj Singh (P.W.2) did not make any statement that the applicant was residing with her husband at the Government accommodation. He only recognized his signature appearing on the complaint addressed to the Chief Vigilance Commission and confirmed the contents as correct and true. The statements/allegations made by Shri Hem Raj Singh (P.W.2) not having Page 33 of 35 34 OA 4274/14 been corroborated by any witness ought not to have been relied upon by the Inquiry Officer to return the finding that the applicant was sharing the Government accommodation allotted to her husband and that the applicant was drawing the HRA by concealing the fact that she was sharing the Government allotted to her husband during the period in question. It also transpires from the enquiry report that the documents which were relied on by the Inquiry Officer were sought to be introduced by the prosecution and marked as Exts. by the Inquiry Officer while examining the said P.W.1 who clearly stated to have no personal knowledge about the matter. In the above view of the matter, we have found substantial force in the contention of the applicant that there was no evidence adduced by the prosecution to bring home the charge against her, and that the findings/conclusions arrived at by the Inquiry Officer, Disciplinary Authority, and Appellate Authority are based on no evidence and/or are perverse and are such as no reasonable person would have reached and, therefore, the impugned inquiry report and the orders passed by the Disciplinary Authority and Appellate Authority are liable to be quashed, as being unsustainable in the eyes of law.
21. In the light of our above discussions, we allow the O.A. and quash the impugned departmental proceedings, the enquiry report, and the orders passed by the Disciplinary Authority and Appellate Authority. The respondents are directed to reinstate the applicant in service within one month from today. Considering the facts and circumstances of the case, we Page 34 of 35 35 OA 4274/14 direct that the applicant shall be deemed to be continuing in service, except for back wages.
22. No costs.
(NAVIN TANDON) (RAJ VIR SHARMA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
AN
Page 35 of 35