Central Administrative Tribunal - Delhi
Shri Jagdish Prasad vs Delhi Development Authority on 18 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 2245/2009 New Delhi, this the 18th day of May, 2011 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) Shri Jagdish Prasad S/o Late Shri Jai Diyal Singh Aged 53 years R/o A-68, Gangotri Apartment, Vikas Puri, New Delhi. .Applicant (By Advocate : Shri Sidharth Joshi) Versus 1. Delhi Development Authority Through its Vice Chairman, Vikas Sadan, INA Market, New Delhi. 2. Vice Chairman, Delhi Development Authority, Vikas Sadan, INA Market, New Delhi. 3. Engineer Member, Delhi Development Authority, Vikas Sadan, INA Market, New Delhi. ..Respondents (By Advocate: Shri Arun Birbal) ORDER (ORAL)
Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 15.09.2008 (page 105) passed by the Disciplinary Authority and order dated 19.03.2009 (page 24) passed by the Appellate Authority.
2. It is submitted by the applicant that memorandum dated 09.01.2007 (page 34 at 36) was served on the applicant with the following allegations:
Article:-1 Shri Jagdish Prasad, AE while working as AE/WD-13 during the year 2000 had recommended & forwarded the bills for payment of Watch and Ward Service charges for the following works on the basis of which the payment amounting to Rs.5,53,300/- was made to the contractor.
1. 2. 3. 4. 5. 6. 7. 8.
Sl. No. Name of work Acutal date of complof main work Dt. Of final bill of main work Dt. Of drawl of Suppl. Agmt. Period of watch and ward payment Amt. of payment ref. to MB No. Amt. Paid prior to 2.5.97
1.
85D C/o of 2693/2714 EWS & 358376 LIG houses in Bindapur Pkt.III, Dwarka Project SH: C/o 284 EWS & 36 LIG houses in Block-B Pkt.I 6.5.94 23.11.98 5.1.2000 6.11.94 to 5.4.2000 5,53,300 MB No.916 2,64,000
1. Shri Jagdish Prasad, AE recommended & forwarded the bills for payment of the above mentioned work amounting to Rs.5,53,300/- for the period prior to the date of drawl of the Supplementary Agreement and further in contravention to the EMs circular No.509, 510 dated 2.5.97 and also circular No.520 dated 30.3.99 which is also irregular and loss to the organization.
2. Shri Jagdish Prasad, while working as AE/WD-13 had recommended and forwarded bills of watch & ward service charges for the above work in spite of the fact that as per record the defects were still existing on the date of drawl of Supplementary Agreement. Thus the whole payment made was infructuous and resulted into undue benefit to the Agencies.
3. Shri Jagdish Prasad, while working as AE/WD-13 recommended and forwarded bills for payments of watch & ward services without verifying the facts as to whether the watch & ward services were actually provided by the Contractors in respect of these works since no such Register/Muster Rolls showing the Attendance marked, Labour Reports and Vouchers corroborating such payments exist. Also no such certificates as to the deployment of the labour based on any verification, as above, had been recorded in the bills or MBs for the works for which payment of Watch & Ward service charges had been paid.
4. Shri Jagdish Prasad, A.E. while working as AE/WD-13 had recommended and forwarded the bills for payment of watch & ward charges prior to 2.5.97.
3. After holding a detailed enquiry, Inquiry Officer gave his report wherein Para 1(1), 1(2) and 1(3) of Article-I were not proved. Only Para 1(4) of Article-I was proved. Disciplinary Authority gave his disagreement note on 29.07.2008 against Para 1(1) and 1(3) (page 73) which according to the counsel for the applicant, itself, was wrong as it was issued without giving copy of the Inquiry Officers report to the applicant and without considering his representation as is required under Regulation 26(1). Moreover, the disagreement note was not tentative but indicated final view taken by the disciplinary authority, therefore, it is liable to be quashed on this ground alone. Counsel for the applicant has placed reliance on judgments dated 25.09.2008 passed in OA No. 497/2008 in the case of Shri L.D. Sharma Vs. DDA & Ors. and judgment dated 09.01.2008 passed in TA No.94/2007 in the case of Shri I.J. Gupta vs. DDA & Ors.
4. Applicant gave a detailed representation on 11.08.2008 (page 96) but without considering any of his contentions, Disciplinary Authority passed the order dated 15.09.2008 (page 105) imposing the penalty of reduction of pay by one stage with immediate effect in the time scale of pay with cumulative effect for a period of one year with a rider that he will not earn increment during the period of penalty and after expiry of penalty period, reduction will have the effect of postponing future increments of the applicant also. Being aggrieved, he filed detailed appeal on 08.10.2008 (page 106) but the said appeal has also decided by the Appellate Authority without discussing any of the grounds taken by the applicant vide order dated 19.03.2009 (page 24).
5. It is submitted by the counsel for the applicant that even copy of the CVC report was given to him without taking his representation which has deprived the applicant his right to give his version of the defence before the CVC could take a decision. He has thus prayed that the O.A. may be allowed.
6. Respondents, on the other hand, have stated that the Disciplinary Authority has passed order after considering all the facts and circumstances and all available evidences along with the reply filed by the applicant. Since Disciplinary Authority did not agree with the findings of the Inquiry Officer, he has given disagreement note which is required as per law for giving an opportunity to the applicant to give his representation, therefore, it cannot be stated that principles of natural justice have been violated. Even CVC advice was also obtained in the matter before final orders have been passed by the Disciplinary Authority. They have stated that applicant has violated the Engineer Members Circular No.509 & 510 dated 2.5.97 and Circular No.520 dated 30.03.1999. These circulars stipulated necessary and mandatory conditions which the applicant did not fulfill before releasing the payment which were noted by the Appellate Authority, therefore, it calls for no interference. They have further stated that aspect of verification of deployment of Chowkidars was required to be done by the JE. The issue of rates was to be seen by the AE as also the deployment. Since applicant did not verified these things, he was rightly been imposed the punishment. They have thus prayed that the O.A. may be dismissed.
7. We have heard both the counsel and perused the pleadings also.
8. Admittedly, the charge sheet was served on the applicant with the allegations in four parts.
9. After a detailed enquiry was held, the Inquiry Officer gave his conclusions as under:
From above deliberations, it is concluded that the positions of the irregularities under Article-I as indicated in the charge sheet for recommending & forwarding the payment for watch & ward services by Shri Jagdish Prasad/CO as follows:-
Article-I
1. : Not proved.
2. : Not proved.
3. : Not proved.
4. : Proved. The Disciplinary Authority did not agree with the Inquiry Officer on his findings in Paras 1(1) and 1(3) and as such gave disagreement note on 29.07.2008 which reads as under:
WHEREAS Disciplinary proceedings under Regulation 25 of DDA Conduct Disciplinary & Appeal Regulation 1999 were initiated against Sh.Jagdish Prasad, AE, vide Memo No.27(46)03/EE(Vig.)III/257-64 dated 09.01.2007.
WHEREAS Sh. B.K.Roy, CE (Retd,) was appointed as I.O. to inquire into the charges framed against Sh.Jagdish Prasad, AE (C) vide order No.128/Vig/2007/2531 dated 01.3.2007.
AND WHEREAS, the I.O. submitted his report on dated 17.3.2008 and has held the Article-I (1), (2) & (3) of the charges as not proved & Article (4) as proved against Sh. Jagdish Prasad, AE(C).
In pursuance of the provision contained in the para 1(a) of Regulation 26 of the DDA Conduct, Disciplinary & Appeal Regulation 1999, a copy of the Inquiry report, disagreement note and extract of CVCs 2nd stage advice are enclosed herewith. The Disciplinary Authority will take a suitable decision after considering the report and facts on record.
If Sh.Jagdish Prasad, AE(C) wishes to make any representation or submission against the findings of I.O. he may do so in writing to the Disciplinary Authority within 15 days of receipt of this letter.
In case no representation is received within the stipulated period, it will be presumed that the charged officer has nothing to say in the matter and the case will be processed accordingly.
10. Though counsel for the applicant has taken objection to the issuance of this disagreement note on the ground that no such disagreement note could have been issued without giving a copy of the enquiry report as required under Regulation 26 of DDA Conduct, Disciplinary and Appeal Regulations, 1999. However, we have not touched that aspect for the present because we find this O.A. needs to be allowed on the other ground and this case needs to be remitted back to the Authorities. If we comment on any of the grounds taken by the applicant now, it would amount to prejudging the issue.
11. Perusal of the order passed by disciplinary authority or the appellate authority shows at no stage the contentions raised by the applicant have been considered. Similarly in the disagreement note, no reasons have been assigned also how the applicant has violated the Circulars mentioned therein or any conditions which applicant is alleged to have violated. In the absence of these facts, it did not give any chance to the applicant to give an effective proper representation. After all, the whole object of giving disagreement note to the applicant is, to inform him the view point of the Disciplinary Authority so that he may defend himself by giving a representation. As we have just noted above, the disagreement note cannot be said to have given those details, the disagreement note itself is liable to be quashed.
12. Similarly, Disciplinary Authority has passed the order in one paragraph which for ready reference reads as under:
AND WHEREAS the undersigned being Disciplinary Authority after careful consideration of the reply of Sh. Jagdish Prasad, AE & overall facts on record, has come to the conclusion that Sh.Jagdish Prasad AE was found responsible for preparing the bills for the payment of watch & ward service charges in violation of various conditions applicable as per EMs circular No.509 and 510 dated 2.5.97 & EMs circular No. 520 dated 30.3.99. Therefore, after considering all the facts and circumstances of the case, the undersigned has come to the conclusion that the ends of justice will be met if the penalty of reduction by one stage with immediate effect in the time scale of his pay with cumulative effect for a period of one year is imposed upon Sh. Jagdish Prasad, AE and he will not earn increment during the period of penalty. After expiry of the penalty period, reduction will have the effect of postponing his future increments of pay.
NOW, THEREFORE, the undersigned being the Disciplinary Authority in exercise of powers conferred under the said Regulations hereby, imposes the penalty of reduction of pay by one stage with immediate effect in the time scale of pay with cumulative effect for a period of one year against Sh. Jagdish Prasad, AE and he will not earn increment during the period of penalty. After expiry of penalty period, reduction will have the effect of postponing his future increments of pay. Perusal of the same shows that neither he has discussed how the charges against the applicant stands proved nor he has discussed the defence raised by the applicant which shows total non-application of mind and cannot be termed as a speaking order, therefore, the same is also liable to be quashed.
13. Perusal of the order dated 19.03.2009 passed by the Appellate Authority similarly also shows that none of the contentions raised by the applicant have been considered, therefore, this also cannot be termed as a speaking order, therefore, this is also liable to be quashed.
14. At this stage, we do not want to comment on the merits of the case because that would amount to pre-judging the issue. Since we are quashing the orders on the grounds mentioned above, the case is remitted back to the authorities for passing the order from the stage of disagreement note. It goes without saying the orders shall be passed after considering all the contentions raised by the applicant and the exercise shall be completed within a period of three months from the date of receipt of a copy of this order. The intervening period will be decided only after the final orders have been passed.
15. With the above direction, this O.A. stands disposed of. No order as to costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
/jyoti/