Central Administrative Tribunal - Delhi
Shri O.P.Ahlawat vs Delhi Development Authority on 27 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No.2690/2012 Reserved on : 12.09.2013 Pronounced on: 27.02.2014 HONBLE MR. SUDHIR KUMAR, MEMBER (A) HONBLE MR. A.K. BHARDWAJ, MEMBER (J) Shri O.P.Ahlawat S/o Late Sh. Mukhtiar Singh Flat No.496, Pocket-2, Sector-9 Dwarka New Delhi 110 070. Applicant (By Advocate: Shri Daleep Singh) Versus Delhi Development Authority Through its Vice Chairman Vikas Sadan, I.N.A.Colony New Delhi 110 023. .. Respondent (By Advocate: Shri Manish Garg) O R D E R By Shri Sudhir Kumar, Member (J):
The facts of this case lie in a narrow campus. The applicant is before this Tribunal against the order of penalty of 10% cut in pension for two years, imposed upon him by the respondent, through Annexure A/1 dated 28.09.2010, which he has impugned.
2. In this OA, at the very out set, the applicant had tried to frame the questions of law involved in his O.A., as perceived by him to arise in his case, and had enumerated them in Para 4.2 of his OA, as follows:
4.2 That the substantial questions of law arise for consideration by this Honble Tribunal are as follows:-
Whether the respondent can withhold or withdraw the pension or any part of it, if the applicant is not found guilty of grave misconduct? Whether in the absence of good and sufficient reasons the order of penalty is sustainable in law? Whether the findings of the Inquiry Officer are perverse or based on conjectures and surmises? Whether the charges framed against the applicant are sustainable in the absence of any evidence? Whether the action of respondent is bonafide?
Whether the impugned orders in any view of the matter are sustainable in law?
3. The brief facts of the case, as narrated in his OA, are that the applicant had joined service with the respondents as a Lower Division Clerk on 25.03.1968, and was promoted to the post of UDC in 1971, further promoted as Assistant in 1980, and thereafter further promoted as Superintendent in 1989. With effect from 27.09.2000, when the cadre of Superintendents was merged with the cadre of Assistant Directors in the respondents organization, and he was accorded the benefit of pay scale of Rs.6500-10500. He was further promoted in September, 2005 to the post of Deputy Director, and retired on his superannuation on 31.05.2008. The date 30.05.2008 was his last working day, as 31.05.2008 was a holiday.
4. On his very last working day, 30.05.2008, the respondents served him with a Memorandum and Articles of Charges under Regulation 25 of the Delhi Development Authority (Conduct, Disciplinary and Appeal) Regulations, 1999 (DDA Regulations 1999, in short) proposing to hold an inquiry against, through Annexure A/2. After his superannuation, the applicant submitted his reply on 09.06.2008, requesting to drop the charges, but the respondent persisted, and appointed an Inquiry Officer and Presenting Officer, vide Order dated 27.01.2009. An inquiry was conducted, and the Inquiry Officer submitted his report on 30.10.2009 holding the charges as proved, which the applicant has assailed as having been done without appreciating the evidence on record, judicially and meticulously. He has submitted that the findings of the Inquiry Officer were perverse, and not sustainable in law.
5. Vide Notice dated 13.01.2010, Annexure A/3, he was asked to make a representation, and he submitted his representation dated 27.01.2010, Annexure A/4, and pointed out that the Inquiry Officer had not even read his defence, as is required under the Rules, and praying that the inquiry report may be rejected, as it suffers from serious illegalities, and on account of non-consideration of the evidence, based on the documents. Unmoved by this representation, the Disciplinary Authority passed the impugned Order dated 28.09.2010 (Annexure A/1), imposing the penalty of 10% cut in pension for two years, but without giving any finding on the submissions made by the applicant.
6. The applicant assailed the findings of the Inquiry Officer, and the cryptic and perverse orders passed by the Disciplinary Authority, by filing an appeal before the Appellate Authority, the Hon'ble Lt. Governor, vide his representation dated 18.10.2010 under Regulation 32-B of the DDA Regulations 1999, read with Rule 9 of the CCS (Pension) Rules, 1972, through Annexure A/5 dated 28.09.2010. In reply, the applicant was informed, through letter dated 15.05.2012, Annexure A/6, that the Vice Chairman, DDA, the Disciplinary Authority, has decided to impose the penalty, in exercise of the powers delegated to him, vide Gazette Notification dated 01.11.2007, notifying the DDA (Personnel Branch), Notification dated 27.09.2007, and, as such, against the orders of cut in pension passed by Vice Chairman, DDA, in terms of the Gazetted delegation of powers, no appeal lies against any such order, and, therefore, the appeal filed by the applicant is not maintainable as per Rule 32 of the DDA Regulations, 1999.
7. The applicant had submitted that under the general principles of law expressed in the maxim delegatus non potest delegare, the delegate of a power cannot himself further delegate that power to some other, in all cases of delegated authority, where personal trust or confidence is reposed in the agent, and especially where the exercise, and application of the delegated power, is made subject to his own judgment or discretion, such authority is purely personal, and cannot be then delegated by him to another, unless there is a special power of substitution, either expressed or necessarily implied.
8. The applicant had further submitted that upon superannuation, the relationship of `master and `servant between the employer and the employee comes to an end, and in such a situation, it is not open to the employer to take any disciplinary action against the employee, unless the service rules, as applicable to the employee, provide for such a contingency. He had pointed out that in order to deal with such cases, when either departmental proceedings or judicial proceedings are pending, or in contemplation, at the time of retirement of a Government servant, Rule 9 of CCS (Pension) Rules, 1972, has been framed, which deals with a situation arising out of post-retirement, continuation of disciplinary inquiry against the Government servant, and had, therefore, submitted that the penalty order passed by the Disciplinary Authority is not sustainable either in law, or on facts.
9. The applicant had thereafter assailed the actions of the respondents in having violated the settled provisions of law, and having failed to appreciate that the alleged misdemeanour pertained to lack of integrity, and absolute devotion to duty, i.e., an infringement of Rule 4 of the applicable service Rules, and that the findings of the Inquiry Officer, were perverse, and based on conjectures and surmises, and that the respondents have not considered the evidence on record judiciously, and that they had not properly considered the written briefs submitted by the applicant during the inquiry proceedings, and that there was no concrete evidence on record, and the impugned order was passed purely on suppositions and presumptions, and that the Disciplinary Authority had not applied its own mind and given cogent reasons for coming to its conclusions, and that though the incident had occurred in the year 2004, the chargesheet memo was served upon the applicant four years after the date of occurrence, and that too at the verge of his date of retirement, which itself goes to show that it was not in good faith, but with malafide intentions, and further that there was no material on record that the applicant had violated any Rule/Regulations /Administrative instructions, and that the impugned orders are bad in law, and on facts, and he had, therefore, prayed that the OA be allowed, with the following reliefs:
(i) Quash and set aside the impugned orders dated 28.9.2010 passed by the disciplinary authority.
Pass such other and further order(s) as may be deem fit and proper in the circumstances of the case.
To allow the cost of the O.A.
10. The respondents filed their counter reply on 20.12.2012, taking certain preliminary objections, and thereafter refuting the submissions in the OA, para by para. They had submitted that the present OA is an abuse of the process of law, and is liable to be dismissed at the threshold, and had submitted that since the applicant had superannuated from service, thus Part-II of the Notification dated 29.10.2007 Gazette Notified on 01.11.2007 regarding delegation of powers for imposing of penalty was applicable, and, as such, the appropriate authority, the Vice Chairman, has correctly passed the orders, and, therefore, there was no question of further delegation of powers, or the application of the maxim delegatus non potest delegare,
11. It was submitted that it was incumbent upon the applicant to plead and prove the prejudice which has been caused to him. It was submitted that the Courts and Tribunals should be slow in considering matters concerning proportionality of punishment, as laid down by the Hon'ble Apex Court in Krishna Chandra Tandon Vs. The Union of India, (1974) 4 SCC 374. It was also submitted that a fair and reasonable opportunity had been given to the applicant at all levels of the disciplinary and the appellate proceedings, and shelter had been sought by the respondents behind the Honble Apex Court judgments in Union of India v. M.K.Sarkar, (2010) 2 SCC 59, and Chairman, United Commercial Bank v. P.C.Kakkar, (2003) 4 SCC 364.
12. It was further submitted that in the Hon'ble Apex Court's decision in State of Haryana v. Rattan Singh, (1977) 2 SCC 491 it was held that a domestic inquiry can take into consideration all the materials logically probative for a prudent mind, and that there is no allergy of admissibility of even hearsay evidence, provided it has a reasonable nexus and credibility. It was submitted that Hon'ble Apex Court had said that what is to be seen is as to whether there was some evidence, or it was a case of no evidence, and if the Courts and Tribunals find that there was some evidence before the Inquiry Officer, the orders passed in the domestic inquiry could not be held to be invalid, and the relevant portion of the Hon'ble Apex Court judgment had then been cited.
13. Thereafter, the respondents had given details of the file notings and transactions, on the basis of which the guilt of the applicant had been established, but since in judicial review we are not supposed to re-appreciate the evidence, the same need not be discussed here.
14. It was stated in their reply that the applicant had retired on 31.05.2008 as Deputy Director, but the major penalty chargesheet was issued to the applicant under Regulation 25 of the DDA Regulations, 1999, on his last working day, vide Memorandum dated 30.05.2008/2.06.2008, and the applicant submitted his initial reply. After considering it, the respondents appointed Shri S.K.Garella, a retired Chief Engineer, as Inquiry Officer, through Order dated 27.01.2009, who conducted the inquiry, and submitted his report dated 30.10.2009, holding that the charges as having been proved. The findings of the Inquiry Officer, were accepted by the Disciplinary Authority, the Vice Chairman, DDA on 30.11.2009, and the applicant was asked further comments on the report of the Inquiry Officer. After considering his representation dated 27.01.2010, the Disciplinary Authority, the Vice Chairman, DDA, imposed the order of penalty of 10% cut in Pension for two years, vide Order dated 28.09.2010. When the applicant filed an appeal against this order, before the Appellate Authority, the Lt. Governor, he has rejected appeal of the applicant, as according to the Notification dated 29.10.2007, Gazette Notified on 01.11.2007, through G.S.R. 692 (E), the powers under the Regulation No.3 (d) of the DDA Regulations, 1999 are exercisable by the Disciplinary Authority, and under Regulation 32 of the same Regulations, no appeal lies against any order made by the Disciplinary Authority under its delegated powers as the Authority.
15. After discussing the facts of the case in great detail, the respondents had first submitted that Inquiry Officer had correctly held that the Charges No. I and II as against the applicant were proved. They had denied that the conclusion arrived at by the Inquiry Officer of the charges as having been proved is perverse, or that the written brief, submitted by the applicant during the inquiry proceedings, had not been considered, or that his representation to the Disciplinary Authority, against the report of the Inquiry Officer, had not been considered on merits, and they had prayed for the OA to be dismissed as not maintainable, with exemplary costs.
16. A rejoinder had been filed by the applicant on 02.01.2013, more or less reiterating most of his contentions, as already raised in the OA, and discussed in detail above. He had submitted that the impugned penalty order does not mention about the Disciplinary Authority having considered the representation filed by the applicant. He had further submitted that his appeal filed before the Chairman, DDA/Hon'ble Lt. Governor, also ought to have been considered under Rule 9 of the CCS (Pension) Rules, 1972. It was further submitted that the Inquiry Officer has proved the charge, without appreciating the evidence on record judiciously and meticulously, and the defence submissions have been ignored and not considered, and that there is no evidence of proof that the applicant was negligent or guilty of grave misconduct. He had submitted that no grave misconduct had been proved against him, and, therefore, the orders passed, after his retirement, suffer from patent illegality. He had also filed a copy of the Order dated 03.09.2012, passed in the case of the disciplinary proceedings initiated by the respondents against his superior Shri R.S.Nirwal, Director (Retd.), in which case the latter had been let off on the basis of the same circumstances and set of facts, in respect of which the applicant had been punished. He had, therefore, prayed for the OA to be allowed.
17. Heard. The case was argued vehemently by both the learned counsel. The learned counsel for the applicant pointed out that the Memorandum and Articles of Charge dated 30.05.2008 (Annexure A/2) had been served upon the applicant on the last working day, on 30.05.2008, one day prior to his date of retirement on 31.05.2008, a Holiday. He emphasized on the legal issues, as framed by him and reproduced by us, from Para 4.2 of the OA as above. The learned counsel for the respondents however submitted that the question of applicability of Rule 9 of CCS (Pension) Rules, 1972, does not arise, as the disciplinary proceedings had been started against the applicant while he was still in service, prior to the date of his superannuation, which fell on a Holiday.
18. Annexure A/8 dated 03.09.2012 was filed by the applicant, along with his rejoinder dated 12.01.2013, to submit that in the case of his immediate superior, Shri R.S. Nirwal, similar set of facts on the basis of which the applicant had been punished, had been appreciated in a different manner. It is seen that in Paragraphs 2, 3, 4 and 5 of the order passed in the case of the said Shri R.S.Nirwal, a conclusion has been drawn that the decision to process the case for mutation of the allotment from the name of the deceased allottee of the flat to her legal heir and husband had been taken after the said legal heir had appeared in the public hearing before the Deputy Director (MIG) on 04.11.2004, and because of which action, the earlier request made by the same legal heir of the deceased allottee of the house, for refund of registration money, had been conceded to be discarded, even though, on the basis of that earlier request, which had been properly received, diarized, and then considered in the file notings, an order of cancellation of allotment of flat in the name of the deceased allottee had already been passed in the file notings. The ground taken by the respondents in the case of Shri R.S. Nirwal was that though the order for cancellation of the flat in the name of deceased allottee had been passed on the file, no actual refund of the registration money had yet been made by the DDA, and the house allotment, as per records, still stood in the name of the deceased allottee as on the date of the public hearing by him as the Deputy Director (MIG), and even after that. A view was, therefore, taken that the subsequent allotment of that flat to the legal heir of the deceased, original registrant made thereafter was on equitable grounds, and no un-entitled person had been benefited by any omission or commission on the part of Shri R.S.Nirwal, the then DD, MIG, and only Authoritys Displeasure was conveyed to him.
19. However, it is seen that out of the two charges framed against the applicant, the first of the two charges related to his having deliberately removed from the file the letter containing the request for refund of the Registration Amount, with a view to give undue benefit, and it was alleged that he had thus altered the course of action which ought to have been followed by the DDA once the request for refund of the registration amount had been made by the legal heir of the deceased, and even an order for cancellation of the allotment in the name of the deceased allottee had already been passed on the concerned file.
20. The purpose of any such public hearing is to redress the grievances of the public, and when the said Shri R.S. Nirwal, the then DD, MIG, who later retired as Director, DDA, had during the Public Hearing on 04.11.2004, re-considered the case on the basis of equity, and decided to permit to allot the said flat to the legal heir of the deceased-allottee, which decision apparently he was competent to take during the course of the Public Hearing, and which has been since upheld by the respondents, by only conveying a displeasure to him, through the Annexure A/8 Order dated 03.09.2012, we have only to examine that his subordinate, the present applicant before us, had taken further actions or decisions only following in furtherance of processing the assurance given by his superiors during the Public Hearing, or had exceeded his brief/task.
21. The learned counsel for the applicant had, while making his submissions, relied upon Para 20 of the Judgement of the Hon'ble Apex Court in Man Singh v. State of Haryana & Others, (2008) 12 SCC 331, in which the Hon'ble Apex Court has held as follows:
20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of 'fair play' and reasonableness.
22. However, we find that it was proved during the disciplinary enquiry that not only had the applicant connived in removing the vital letter seeking refund of the Allotment Amount from the relevant file, but he had further exceeded his own brief/task, and had signed on 17.11.2004 and dispatched on 18.11.2004 the approval letter for conveying the mutation and substitution, even before the said Shri R.S. Nirwal had on 19.11.2004 signed the file to give approval for the assurance given by him during the Public Hearing on 04.11.2004. Thus, the role of the said Shri R.S. Nirwal and the applicant in the whole transaction was entirely different.
23. The learned counsel for the respondents had, further relied upon the judgment of the same Bench dated 30.10.2012, passed in OA No.971/2011 (Shri Ram Kishan v. Delhi Development Authority), wherein in Paras 16 and 17, the Bench has already upheld the applicability of the Gazette Notification dated 29.10.2007, published in the Gazette of India on 01.11.2007, Annexure A/7.
24. It was held by the same Bench in OA No.3129/2011 S.K. Trehan vs. M/o Railways on the concept of negative equality as follows:-
22. As has been held by the Honble Apex Court in its numerous judgments concerning Articles 14 & 16 of the Constitution of India, equality is not a negative concept, and there cannot be a concept of negative equality under the Constitution of India: State of West Bengal & Ors. vs. Debasish Mukherjee & Ors: JT 2011 (11) SC1 (para 21).. The following judgments on the point of discrimination in punishment can also be considered here:-
i) State of U.P. & Ors. Vs. Raj Pal Singh 2010 (4) SCALE 485;
ii) Man Singh vs. State of Haryana and Ors. (2008) 12 SCC 331;
iii) Anand Regional Coop. Oil Seedgrowers Union Ltd. vs. Shailesh Kumar Harshadbhai Shah (2006) 6 SCC 548;
iv) Union of India Vs. Ex-Constable Mohinder Singh (Deceased) Represented through LRs 91(2001) DLT 291 (DB);
23. We have gone through the above judgments. As long as there is any difference in the delinquency of different employees in respect of the misconduct in which they had joined together, imposition of different punishments is not prohibited, because in the case of State of U.P. vs. Raj Pal Singh (supra), the Honble Apex Court had held that it was not open for the disciplinary authority to impose different punishments for different delinquents when it was not able to indicate as to any difference in the delinquency of these employees. But the converse is not true, and if difference in delinquency of the employees can be established, there can be different punishments imposed upon them. Therefore, it is clear that benefit of this cited judgment cannot be provided to the applicant before us.
24. In the case of Man Singh (supra) also, the Honble Apex Court had exercised its extra ordinary powers under Article 142 of the Constitution of India, in order to interfere with the punishment meted out to the petitioner before it, on the reasoning that the punishment imposed on the appellant was arbitrary, and unfair, as compared to that imposed upon his subordinate, who had been completely let off, though the subordinate was held to have been the perpetrator of misconduct. The benefit of this cited judgment cannot also be provided to the applicant, since in this case all the four persons, in whose cases the delinquency had been totally proved, had been punished appropriately, and some had been imposed lesser punishments also.
25. In the case of Anand Regional Coop. Oil Seeds Growers Union Ltd. (supra), the Honble Apex Court had noted that in determining the nature of work, the essence of the matter should be considered and not the designation of the employee, or the name assigned to his post, which cannot be given any undue importance, as for the purpose of establishing supervisory role, the primary duties performed are more important. On the point of parity in punishment, the Honble Apex Court had noted with approval the dismissal of the workmen under the Industrial Disputes Act, 1947, in respect of whom misconduct had been proven. However, since the workmen of similar seniority as a group had indulged jointly in the misconduct, it had noted with disapproval that others against whom identical allegations were there, were not so dismissed, but were allowed to take the benefit of voluntary retirement scheme. In this case before us, the benefit of this judgment of the Honble Apex Court cannot also be extended to the applicant, since no such persons were together involved, at the same point of time, in undertaking the same mischief. They had performed the mischief when the files and the papers concerned had passed their desk, and had only acted in concert or in collusion with each other. Therefore, the benefit of this judgment of the Honble Apex Court cannot also be made applicable to the applicant.
26. In the case of Union of India v. Ex. Constable Mohinder Singh (supra), the incident concerned four Constables together using Criminal Force while assaulting their superior officers, and only one of them had been dismissed from service, while the other three co-accused had been let off with lesser punishments. In that case, the Honble Delhi High Court had held the punishment of dismissal in only one case to be discriminatory and arbitrary, and had awarded monetary compensation to the legal heirs of the deceased applicant/petitioner. Here, no employees of the respondent- Railways have acted together, at the same point of time, as mentioned above also. They acted in perpetrating the mischief in dealing with the papers in a particular manner when the concerned papers and files passed through their desk, and lent there own might, according to their own delegation of powers in perpetrating the mischief. When the respondents have weighed through an enquiry the quantum of their contribution in perpetrating the mischief in respect of the different delinquents, and have punished the others with lesser punishment, the benefit of this judgment cannot also be provided to the applicant before us.
27. As per the law laid down by the Honble Apex Court in the case of Union of India & Ors. vs. Upendra Singh: (1994) 3 SCC 357, this Tribunal cannot relegate itself, and put itself in the shoes of either the Enquiry Officer, or the Disciplinary Authority, or the Appellate Authority, or the Reviewing/Revisional Authority, where such a Review/Revision has been provided for, for undertaking an exercise of re-appreciation of the evidence adduced, and to go into the correctness or truth of the charges. When the evidence regarding the applicant has come on record, and it has been noted that a number of other officers involved in the same excess purchase have been separately punished, without having the full facts of the respective disciplinary enquiries conducted against all those other officials who were also punished, merely based upon the submissions of the present applicant in the context of the disciplinary enquiry concerning him, this Tribunal cannot be a judge of the quantum of punishment having been less in the case of others, and more in case of the present applicant, who was one of the many delinquent officials in the respondent-Railways, against whom separate departmental enquiries had been initiated.
28. It is further clear that those delinquent officials of the respondent-Railways belonged to various levels of seniority. They were not proceeded against in a common departmental enquiry, when there would have been a single set of the Disciplinary Authority, the Appellate Authority and the Revisional/Review Authority. When parallel proceedings are initiated against delinquent officials of various levels of seniority, even though they may be in respect of the same set of events connected with a mischief, not only are the charges different in respect of the delinquent officials of different levels of seniority, but also many sets of Disciplinary Authorities, Appellate Authorities and Revisional/Review Authorities emerge, though many of them may be overlapping sets. The Appellate Authority of a junior delinquent official may be the Disciplinary Authority of his senior, and the Revisional/Review Authority of a junior delinquent official may be the Appellate Authority of his senior delinquent official, and so on and so forth. Therefore, the appreciation of the relative quantum of guilt, based upon the charges as proved in respect of the individual case of delinquent officials of different levels of seniority, and the proposed quantum of punishment, would also as a result vary, and would have to be based upon the charges proved against the particular concerned official.
29. Therefore, this Tribunal cannot venture to undertake the process of re-appreciating the evidence adduced in a disciplinary enquiry by putting itself in the shoes of either the numerous Enquiry Officers, or of the numerous Disciplinary Authorities, or of the numerous Appellate Authorities, who took decisions based upon the quantum of guilt that could be established in each of the disciplinary enquiry case separately, based upon the charges as framed and proved against the many concerned delinquent officials.
25. It is trite law that there is no concept of negative equality. If a co-delinquent has, in a joint departmental enquiry, been punished, or let off, on the same charge, nobody can be allowed to claim the negative equality of being imposed with the same punishment, or being let off, as the case may be, just because the level of delinquency of co-delinquents even in the same sequence of events or set of facts may have been established during the departmental enquiry to be of different level. Here, in the instant case, in fact the level of delinquency of the present applicant has been proven to have been of a much more grave nature, in having connived in removing a vital letter from the file, and then acting on the mutation/substitution, even before it was actually approved on file.
26. In the case of Balbir Chand vs. Food Corporation of India Ltd. and Others (1997) 3 SCC 371, the Honble Apex Court had held that merely because one of the officers was wrongly given the lesser punishment, compared to others against whom there is a proved misconduct, it cannot be held that they too should also be given the lesser punishment, lest the same mistaken view would be repeated. Omission to repeat same mistake would not be violative of Article 14 and cannot be held as arbitrary or discriminatory leading to miscarriage of justice. It was held that it may be open to the appropriate higher authority to look into the matter and take appropriate decision according to law by stating as follows:-
6. It is further contended that some of the delinquents were let off with a minor penalty while the petitioner was imposed with a major penalty of removal from service. We need not go into that question. Merely because one of the officers was wrongly given the lesser punishment compared to others against whom there is a proved misconduct, it cannot be held that they too should also be given the lesser punishment lest the same mistaken view would be repeated. Omission to repeat same mistake would not be violative of Article 14 and cannot be held as arbitrary or discriminatory leading to miscarriage of justice. It may be open to the appropriate higher authority to look into the matter and take appropriate decision according to law.
27. In the case of Chairman and Managing Director, United Commercial Bank and Others (2003) 4 SCC 364, the Honble Apex Court has held that awarding of lesser punishment to a co-delinquent is not a good ground for judicial interference in regard to difference in the quantum of punishment of the delinquent, as the allegations against the two persons were contextually different, by stating as follows:-
13. In the case at hand the High Court did not record any reason as to how and why it found the punishment shockingly disproportionate. Even there is no discussion on this aspect. The only discernible reason was the punishment awarded in M.L. Keshwani's case. As was observed by this Court in Balbir Chand vs. Food Corporation of India Ltd. And Ors. (1997 (3) SCC 371), even if a co-delinquent is given lesser punishment it cannot be a ground for interference. Even such a plea was not available to be given credence as the allegations were contextually different.
28. However, in the instant case, the respondent-DDA has provided for a mechanism for redressal of public grievances of individuals by making provisions for Public Hearings. It cannot be anybodys case that these Public Hearings for redressal of individual grievances should be turned into empty formalities, and that any decision arrived already on any of the files of the DDA ought not to be changed even after such a Public Hearing has been given. The very purpose of providing for Public Hearings for redressal of public grievances is in recognition of the fact that some decision may have been already taken, which may lead to a grievance, which may be genuine, worth-listening to, and worth-acceding to, which would then mean changing the decision already arrived at on the file of the Authority, without which obviously the grievance cannot be redressed, as promised and assured during the Public Hearing.
29. In its wisdom, the Authority had in this case delegated this power of holding Public Hearings to Deputy Director (MIG) in respect of MIG flats who happened to be the said Shri R.S. Nirwal, the then Deputy Director (MIG), and a superior of the present applicant. At such a Public Hearing held on 04.11.2004, when the applicants superior, the said Shri R.S. Nirwal, the then Deputy Director (MIG), had considered the grievance of the legal heir and husband of the deceased allottee of flat not to cancel the allotment of flat made in the name of his wife, who was since no more, and he had publicly acceded to the request for removal of the grievance of the legal heir and husband of the deceased allottee, and to allow for mutation of the allotment of the flat from the name of the deceased allottee to the name of her legal heir and husband. Thereafter it fell upon the applicant, who was in-charge in processing the file, to process the file according to the assurance given in public in the public grievance redressal Public Hearing by his superior. The charges against the applicant, as proved, are that he went overboard, and did things in connivance after that, as already recorded above, which had not yet been approved on the file also. The charges brought out against the applicant, and the said Shri R.S. Nirwal also must have been different, because the said Shri R.S. Nirwal was the decision- making and taking authority, and the applicant before us was the person in-charge below him to implement the assurance given during the public hearing for redressal of such grievance, but which he could have done only after the said decision had been modified and amended on the file.
30. We can now state our views on the legal issues as had been framed by the applicant in Para 4.2 of his O.A., which we have reproduced in Para-2 above. In regard to the first issue as to whether the respondent can withhold or withdraw the pension or any part of it, if the applicant is not found guilty of grave misconduct, we find that on the basis of the discussion of the case law as above, the applicant having been found to have tampered with the records, and having removed or connived in removing the relevant letter from the concerned file, did indeed amount to a grave misconduct. The respondents have held him guilty of misconduct after both the charges against him have been proved, and have been able to demonstrate as to how the applicant had retained the file in his own custody, rather than letting the Dealing Assistant process the file, signed the letter conveying the mutation/substitution on 17.11.2004, and dispatched it on 18.11.2004, even before the approval of his superior, Shri R.S. Nirwal, for such an action to be adopted by the DDA was accorded on 19.11.2004, and only after that the applicant had marked the file down to the Dealing Assistant on 19.11.2004. Since the Enquiry Officer concluded that the charge that the applicant had conveyed approval of mutation/substitution, prior to the approval of the Competent Authority for the same, has been proved, it would certainly amount to a grave misconduct, when the applicant has shown over-enthusiasm in dealing with the subject, and not letting the Dealing Assistant to deal with the file in a routine, proper and usual manner, as a matter of course.
31. We are, therefore, of the view that there is nothing wrong with the orders, as passed by the respondents in this respect, even though while recording a finding of his having been guilty, a finding of grave misconduct has not been specifically recorded, which was not so required to be recorded, since in this case the disciplinary enquiry had already been commenced before the applicant superannuated. In regard to the second issue raised by the applicant as to whether there were any good and sufficient reasons, and as to whether the order of penalty is sustainable in law, we have already discussed above, and need not reiterate our views. The third question of law raised by the applicant was as to whether the findings of the Inquiry Officer are perverse or based on conjectures and surmises, on which we may only state that these findings had been accepted by the Disciplinary Authority as well as by the Appellate Authority, after following due process, and it is trite law that the disciplinary authorities are the best judges of facts, and that findings relating to facts cannot now be assailed in judicial review before this Tribunal. Even otherwise, since the Dealing Assistant had never dealt with the file till it was marked to him on 19.11.2004, after the approval by the superior of the applicant, and the concerned application for refund of the registration amount was found to have been removed around that date, it cannot be said that it was only mere conjectures or surmises on the part of the Enquiry Officer to have held the charge of the applicant having removed the relevant letter on the file as being true. We also find that the enquiry was conducted properly, and it was not as if the charges were proved against the applicant in the absence of any evidence whatsoever, and that it was a case of no evidence. We have also discussed that the actions of the respondents have been bonafide, and that the impugned orders are, therefore, otherwise sustainable in law.
32. As a result, in the peculiar facts and circumstances of this case, recognizing fully that there is no concept of negative equality, the respondent-authorities obviously also had the power to impose the penalty upon the applicant, as they have imposed. Even though they have let off the superior of the applicant, who had actually taken the decision, and given an assurance in public during grievance redressal Public Hearing, for having given effect to such an assurance already announced in public, the applicant on his part had gone overboard while processing the case after the Public Hearing, and his guilt has been established in the disciplinary enquiry. Therefore, we do not find that this case deserves judicial intervention, and, the OA is rejected, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.