Central Administrative Tribunal - Delhi
C. B. Rathi vs Delhi Development Authority on 17 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. NO. 330/2008 New Delhi this the 17th day of February, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N. D. Dayal, Member (A) C. B. Rathi, JE (C), S/o Sh. Rattan Singh, B-215, Purshant Vihar, Delhi-110085. Applicant (By Advocate Mrs. Sriparana Chatterjee ) Versus Delhi Development Authority Through its Chairman, Vikas Sadan, INA, New Delhi- 110 023. Respondents. (By Advocate Shri D.S. Mahendru ) O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (J).
The applicant is a Junior Engineer in the Delhi Development Authority (respondent herein). In the Original Application, he has prayed that a memorandum of charges dated 10.01.2008 (Annexure A-1) is to be quashed. We may briefly state the facts of the case and examine the justification in granting the prayer. On behalf of the respondents, Mr. Mahendru had appeared and had made available relevant materials, which, according to him, justify action and suggesting that the application itself was premature and, therefore, it was not maintainable.
2. The memorandum dated 10.01.2008 includes Annexure-I charge which says that while working in Building Department, during the year 1996-97, the applicant did not report about unauthorized construction on Plot No. 124, Pocket C-9, Sector 8, Rohini, Delhi. It is suggested that thereby he had extended undue benefit to the owners/builders with the result that timely action against the unauthorized constructions could not be initiated.
3. The applicant had required for certain details in his response, and had heavily relied on the circumstance that the memorandum issued after 12 years of the alleged default, was arbitrary, and unwarranted. But as proposal for further steps started, had evidently opted to remedy under Section 19 of the A.T. Act.
4. Mrs. Sriparana Chatterjee had invited our attention to the legal position as respects such circumstances by adverting to the decisions of the Honble Supreme Court in State of Andhra Pradesh Vs. N. Radhakrishan (AIR 1998 SC 1833), P.V. Mahadevan Vs. M.D. Tamil Nadu Housing Board (JT 2005 (7) SC 417), a judgment of the Delhi High Court in CW 3145 of 1994 and also the observations made by a Bench of this Tribunal in TA 95 of 2007. The gist of the submissions is that when there is huge delay in initiating disciplinary action, the rights of a civil servant are likely to be adversely affected. It may not be possible for presenting proper defence, or inviting the attention of the disciplinary authority to full factual details, and the threat of disciplinary action, is likely to undermine the efficiency of a civil servant. She submits that what is canvassed is not a proposition that delay as such will always be a circumstance, for holding that a person at fault is to be let of scot-free. But definitely there is a duty on the part of the employer to come up with justifiable circumstances to indicate that due care and caution had been employed, at all relevant times, and it was for reasons beyond him that there was delay in initiating the proceedings. Summing up the position, she also submitted that perhaps a delinquent employee may not be able to get out of a difficult situation if there are circumstances to indicate that the delay was also attributable to the conduct of the employee. It is emphatically submitted that there has not been any acceptable explanation for the huge delay of over ten years and to permit the employer to continue with the proceedings would have affected the right of a civil servant and, therefore, interference is warranted.
5. The legal points, as formulated centering on the issue of delay, appears to be relevant. As early as in State of MP Vs. Bane Singh and Anr. (AIR 1990 SC 1308), the Supreme Court had observed that delay in initiating inquiry vitiates the departmental inquiry. In N. Radhakrishnan (referred to supra) Justice Wadhwa, had in very clear terms highlighted the legal position, and it would be profitable to extract Para 19 of the judgment as hereinbelow:
It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations. Really, it is the quintessence of the principles to be followed. While examining the issue, the Division Bench of the Principal Bench had also drawn support, from the above decisions, and we do not think it may be necessary to elaborate further.
6. In this background, we may examine the sustainability of the claim vis-`-vis objections that had been raised in the counter reply.
7. There has been delay ex facie as disciplinary action is proposed in respect of a conduct of 1996-97 during the discharge of his duties. He had left the duty post in 1998. Allegation is that there was lapse of proper supervision, for detecting unauthorized building activities by the landowner. We note that facts have been narrated in the counter reply, which shows that on 08.11.1996, the applicant had inspected the site on a complaint and had observed that there were four major violations (which has been highlighted in the counter statement). In Paragraph 3, it is stated that on the basis of the above report, two show cause notices have been issued to the builder, on 17.12.1996 and 30.12.1996, which was followed by a ceiling-cum-demolition order on 22.01.1997 in respect of unauthorized construction. After rectification of irregular construction, a revised plan had been submitted by the builder and the applicant had inspected the site on 15.07.1997. He had reported that the builder had carried out rectifications and the building was as per the sanctioned plan. In para 5 of the counter statement, it is revealed that on 29.09.1997 after inspection, the applicant had further observed defects itemized as below:
(a) Roof projection on Government land at ground and first floor and second floor under construction.
Rear and front setback covered.
Second floor full portion covered.
Internal arrangement of the premises in the form of 6 nos. shops at each floor constructed. It is on record that on the basis of the above, another show cause notice was issued on 06.10.1997 by the competent authority. After about two weeks, a vigilance team of DDA had visited the spot on 22.10.1997, and they had noticed certain deviations and it is stated that on 29.10.1997, a demolition order had been passed. The objections highlighted there were the same as pointed out by the applicant, as extracted earlier. It is thereafter that a suggestion is made after ten years to the effect that the site report given by the applicant on 15.07.1997 was wrong. But there is nothing stated about the report submitted by him on 06.10.1997. The suggestion even prima facie does not appear to be convincing.
8. However, it is not disclosed that whether at all the report of the Vigilance Committee had been brought to the notice of the applicant. There is an admission that taking note of the situation, there was a proposal in August, 2004 to impose a minor penalty charge sheet to the applicant. He was, however, not taken into confidence about the decision. But, however, that was kept back because the Central Vigilance Commission on 01.11.2007 had advised for initiation of major penalty proceedings. This is stated to be the reason for issuance of Annexure A-1 charge sheet.
9. Although Mr. Mahendru submits that there was no specific plea of a prejudice and on receipt of the memorandum, there was only a request for details to be supplied, the anxiety of the employee is seen evident even from A-3 representation where he had asked for details. The parameters for forbidding disciplinary action, as laid down by the Honble Supreme Court, according to us, are fully applicable here. In respect of alleged lapses of 1996-97, there was no whisper of allegation brought to the notice of the applicant. The reasons for the delay, are totally unacceptable if non inconvincing. When it is stated by the DDA that a vigilance report was there as early as on 29.10.1997, there cannot be any justification for incorporating a statement in the articles of charge that because of the default of the applicant timely action against the unauthorized construction could not be initiated. It is not known as to why no action had been taken for years together and the conclusion possible is that there might not have been any violation sufficient enough for initiating coercive action at least against the applicant. Further, on the showing of the respondent, it is revealed that it was a case where the applicant had been bringing to the notice of the DDA the infractions that were there in respect of the project. At this distance of time, a charge sheet and inquiry will definitely result in persecution and it cannot be considered as initiated for maintaining discipline in the office or for bringing about administrative efficiency.
10. When the matter had come for admission, further proceedings on the basis of the memorandum of charges had been stayed, and the order has not been varied. The cumulative circumstances, according to us, are sufficient enough to direct that a quietus to the issue is to be given as far as the applicant is concerned. Accordingly, Annexure A-1 is quashed. We make no order as to costs.
( N. D. Dayal) ( M. Ramachandran) Member (A) Vice Chairman (J) SRD