Delhi High Court
Municipal Corporation Of Delhi vs Sh. Bharat Bhushan on 22 March, 2010
Author: Anil Kumar
Bench: Anil Kumar, Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.1983/2010
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Date of Decision: 22.03.2010
Municipal Corporation of Delhi .... Petitioner
Through Ms. Mini Pushkarana, Advocate for the
Petitioner/MCD.
Versus
Sh. Bharat Bhushan .... Respondent
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
ANIL KUMAR, J.
* The petitioner, Municipal Corporation of Delhi has challenged the order dated 13th October, 2009 passed in T.A. No.425/2009, Titled as 'Bharat Bhushan v. Municipal Corporation of Delhi and others' by the Central Administrative Tribunal, Principal Bench, New Delhi, allowing the petition of the respondent setting aside the order of dismissal passed against the respondent and remitting the matter to the Disciplinary Authority to reconsider the question of quantum of punishment.
WP (C) 1983 of 2010 Page 1 of 6
Brief facts to comprehend the controversy between the parties are that the respondent and a Junior Engineer, Sh.R.K.Tripathi, were jointly tried in a departmental enquiry for the gross misconduct in issuing completion certificate for the property No.129, Nirankari Colony, Delhi though the building was incomplete, and the construction was against the sanctioned building plan.
This is not disputed that the respondent was appointed as Junior Engineer/Section Officer in MCD in 1962, and on 25th January, 1981 he was promoted as Assistant Engineer. The respondent was further promoted as Zonal Engineer on 13th August, 1986.
The departmental enquiry was conducted against the respondent, as a Zonal Engineer, and another Junior Engineer Sh.R.K.Tripathi pursuant to Memo dated 19.01.1989. The respondent had contested the charges framed against him on the ground that as Zonal Engineer he was required to inspect only 20% of the buildings; and 80% of the buildings was to be inspected by the junior engineer in compliance of the Building Bye-laws. In the circumstances it was asserted that the construction made by the owner/occupant was to be assessed whether it was in accordance with the sanctioned plan by the co-delinquent, Junior Engineer Sh.R.K.Tripathi for issuing completion certificate. WP (C) 1983 of 2010 Page 2 of 6
This has not been disputed and denied that the respondent did not inspect the building, and the inspection was carried out by the Junior Engineer Sh.R.K.Tripathi. After the enquiry, the petitioner and co-delinquent were dismissed from service though the respondent had an unblemished service career spent over a period of 33 years. The order of dismissal was challenged by the respondent by filing a writ petition before the High Court, which was later on transferred to The Central Administrative Tribunal, New Delhi. Before the Tribunal the petitioners did not deny that under the Rules, the respondent was inspect only 20% of the building for issuance of the completion certificate on the report of the junior engineer and the completion certificate which was issued was prepared by the Junior Engineer and the respondent had not even inspected the building.
Before the tribunal it was also noticed that on account of deviations in the building plan, compoundable fee of Rs.10,928/- was realized which was paid on 11.12.1987, and a completion certificated was issued on the basis of the report. The plea of the respondent was that completion certificate what issued on account of the report prepared by the Junior Engineer Sh.R.K.Tripathi who did not record the deviations in the building constructed by the owner. The respondent also raised the plea before the Tribunal that his defense that only 20% was, the building was to be inspected by him and 80% of the building was to be inspected by the Junior Engineer, was not considered. Rather WP (C) 1983 of 2010 Page 3 of 6 the Disciplinary Authority and Appellate Authority did not go at all into the said issue in order to ascertain the extent of culpability of the respondent, or ascertained the extent of liability of the respondent.
The Tribunal after hearing the pleas and the contentions of the parties has held that though the respondent had to inspect 20% of the buildings which was not done by him and the completion certificate was issued on the basis of the report prepared by the Junior Engineer, therefore, whether there was massive deviations in 20% of the buildings which was liable to be inspected by the respondent has not established, and in any case in the entirety of the facts and circumstances, the penalty of dismissal from service of the respondent is disproportionate to the alleged misconduct especially concerning unblemished service record of 33 years of the respondent and that the deviation in the building were regularized subject to payment of compoundable fee, which was paid and accepted by the petitioners .
The tribunal also noticed that the deviations in the building were not such which could result in demolition of the building, but the deviations were compoundable, and therefore, the owner was asked to pay compounding fee, which was paid by the owner. In the circumstances, it has been held that the respondent had to be more cautious and deliberate intentional violation has not been established, nor any mala fides could be imputed against the respondent. WP (C) 1983 of 2010 Page 4 of 6
The learned counsel for the petitioner has reiterated pleas and contentions raised before the Tribunal. This has not been disputed and cannot be disputed by the petitioner that the report for grant of completion certificate was prepared by the Junior Engineer Sh.R.K.Tripathi, co-delinquent who has already been dismissed from service, and he has not challenged his order of dismissal. Since there were deviations which were compoundable and this fact came to the notice of the respondent, therefore, he ought to have checked before issuing of completion certificate, however, in the totality of facts and circumstances the punishment imposed is disproportionate to the lapse imputed against the respondent.
In the circumstances, the finding of the Tribunal that there was no mala fide as far as the respondent is concerned cannot be faulted. The dismissal from the service after 33 years, is therefore, apparently too harsh and disproportionate to the lapse on the part of the respondent, and in the circumstances, direction by the Tribunal to the petitioner to reconsider the question of quantum of punishment cannot be faulted nor the order of the Tribunal impugned before us can be held to be suffering from any such illegality or irregularity which will necessitate any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
WP (C) 1983 of 2010 Page 5 of 6
The writ petition therefore, in the facts and circumstances, is without any merit and it is dismissed.
ANIL KUMAR, J.
MARCH 22nd , 2010 MOOL CHAND GARG, J.
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WP (C) 1983 of 2010 Page 6 of 6