Central Administrative Tribunal - Delhi
Shri S.K. Chambouk vs Delhi Development Authority on 20 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.2647/2009 New Delhi, this the 20th day of July, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri S.K. Chambouk, Aged about 75 years, S/o Shri Chiranji Lal, Address 17, R-Block, Gopal Nagar, Najafgarh, New Delhi 110 043 .Applicant (By Advocate: Shri Sidharth Joshi) Versus 1. Delhi Development Authority, Through its Vice Chairman, Vikas Sadan, INA Market, New Delhi 2. Commissioner (Personnel), Delhi Development Authority, Vikas Sadan, INA Market, New Delhi 3. Shri B.G. Roy, Inquiry Officer, Delhi Development Authority, Vikas Minar, New Delhi Respondents (By Advocate: Shri Rajinder Khattar) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, a Junior Engineer under the DDA has through this OA challenged the Charge Memorandum dated 24.3.2009 issued under Regulation 25 of the DDA Conduct, Disciplinary & Appeal Regulations 1999 and other orders (Annexure A/1). By way of relief, the OA seeks quashing the impugned Charge Memorandum along with order dated 31.7.2009 appointing the inquiry officer. As interim relief, the applicant has sought a direction to the respondents, restraining them from proceeding further in the departmental proceedings and stay the proceedings including appointment of inquiry officer. Vide the Tribunals interim order dated 17.9.2007 departmental proceedings against the applicant were stayed.
On behalf of the applicant, the learned counsel, Shri Sidharth Joshi and for the Respondents, Shri Rajinder Khattar would appear before us. Besides, a detailed counter affidavit has been filed on behalf of the Respondents. The present order is being passed after considering carefully the respective submissions by the learned counsels and considering the material on record. The impugned statement of article of charges framed against the applicant is extracted as hereunder:
STATEMENT OF ARTICLE OF CHARGES FRAMED AGAINST SHRI S.K. CHAMBOUK, JUNIOR ENGINEER (CIVIL).
Shri S.K. Chumbouk, Jr. Engineer (C) while working in Building Section as J.E. during the period 1998 was responsible to inspect the area under his jurisdiction and to submit timely factual report of the site related with construction work as per plan, unauthorized construction and other matters related to building permit and submission of the scrutiny report of the building i.e. various properties at Block-B, Sector-8, Dwarka, before proposing for issue of D-Form.
It was observed that in respect of Plot No.41, wrong D-form was recommended for approval by him. It was further observed that construction has not been done as per sanctioned plan and the covered area is more than permissible limits. Moreover, plot Nos. 41 & 42 have been amalgamated.
By his above act, Shri S.K. Chambouk, JE (Civil) has exhibited absolute lack of devotion to his duties thereby contravened Rule 4.1 (i), (ii) & (iii) of DDA Conduct, Disciplinary and Appeal Regulation, 1999 as made applicable to employees of the Authority.
Sd/-16/2/09 (Pramila H. Hargava) Commissioner (Pers.), DDA
3. The factual background of this case has been explained at length in the counter affidavit by the Respondents. It is submitted that their Vigilance Department had received a complaint dated 3.3.2006 making allegations regarding wrongful issue of completion certificates in respect of plots in Block-B, Sector-8, Dwarka area which had been allotted during the years 1987 - 1988. A copy of the complaint has been annexed as Annexure A/6 with the OA. It had been alleged that in several cases such certificates had been issued where the constructions were still not complete or even the plots had been lying vacant. As per the complaint, out of a total 309 plots of the said Block, completion certificates had been issued in respect of 142 cases after accepting illegal gratification. Further, it had been alleged that these plots were in possession of builders/property dealers who had taken the completion certificates only with a view to get these plots freehold.
The Counter Affidavit recounts the detailed steps taken by the Respondents after a thorough investigation in the matter and consideration at the highest level. The main stages of these investigations and their time frame can be summed up as hereunder:
Receipt of complaint : 03.03.2006.
Cite inspections by vigilance team in respect of plot Nos.1 to 138 on 7.4.2006.
In the light of the aforesaid site inspections and consultation of relevant records, a meeting was taken by the Vice Chairman, DDA on 24.1.2007 and it was decided to complete the investigations expeditiously and initiate disciplinary action against officials found responsible for the irregularities, if any.
Further site inspections by the Vigilance Team were carried out on 8.3.2007, 14.03.2007, 15.3.2007 and 20.03.2007.
Inspection by Dy. Director (Vig) along with two AVO (Bldg.) on 11.4.2007. Further detailed inspections by the Vigilance Team on 19.4.2007, 23.4.2007 and 25.4.2007.
After detailed investigations and consultation of relevant records it was found that out of a total 331 plots in that Sector, in 92 cases wrong D-Forms had been issued by the Building Department.
The decision of the Vice Chairman dated 15.1.2008 to suspend officials who committed lapse in substantial number of cases i.e. more than 15 each. Accordingly 5 of them were put under suspension which also included one Dy. Director rank officer.
4. The applicant, in particular had been issued a Memo dated 22.2.2008 to submit his version. This was along with 17 other officials. The reply to this Memorandum had been submitted vide his letter dated 22.5.2008 (Annexure A/4). The applicant had factually rebutted the allegations against him. However, as per the contentions in the counter affidavit, the Vigilance Department has not found these contentions of the delinquent as acceptable. It is further submitted that the matter is separately being investigated by the CBI also. Considering that several Group A officers had also been involved in the case, the matter was referred to CVC on 15.9.2008 for tendering its first stage advice, which was received on 15.12.2008. Subsequent to that a major penalty charge sheet was issued to the applicant on 24.03.2009, followed by appointment of an inquiry officer on 13.7.2009.
5. Besides, of course, the protestations of innocence, the main plea taken in defence of the applicant would be the issuance of the charge memorandum after a delay of 12 years. It would also be contended that by doing so, a prejudice has been caused against the applicant. The learned counsel, Shri Joshi would make an impassioned plea for quashing the charge sheet stating that after such a long period, the applicant could not be expected to really defend himself by garnering witnesses and documents. Besides, the learned counsel would also seek to reinforce his case by producing before us copies of several orders of the Coordinate Benches in which delayed issue of charge memorandum against several employees in the DDA had been quashed by the Tribunal.
On the other hand, the Respondents have strongly contested the OA and submitted that this was a case in which the delay has been adequately explained and the proposed action was taken after thorough and detailed investigations. The learned counsel, Shri Rajinder Khattar would also submit that the delinquent was free to take all the pleas in his defence before the inquiry officer and at this stage there was no justification for judicial intervention.
6. It is no more res integra that delay by itself cannot be a ground to quash a disciplinary proceeding. In State of Andhra Pradesh v. N. Radhakrishnan {JT 1998 SC 123}, reiterating the settled principle of law, the Apex Court ruled that :
While considering such issues the court is required to consider the nature of charges, its complexity, the reason for delay and whether the same is unexplainable.
It was further ruled by the Honble Court that -
it was not possible to lay down any predetermined principles applicable to all situations and each case had to be examined on facts and circumstances of the case.
The Honble Delhi High Court in Delhi Development Authority vs. D.P. Bambah & Anr in LPA No.39/1999 decided on 29.10.2003 reproduced in R.P. Nanda v. DDA & Anr {2004 (3) AISLJ 15} had occasion to crystallize the principles of law on the subject garnered from a catena of judgments. These principles, inter alia, included:
that there was no period of limitation unless prescribed by statutory rules.
As the delay is likely to cause prejudice to the charged employee, courts were entitled to intervene and grant appropriate relief. However, it was for the delinquent officer to show that prejudice had been caused.
Again in Government of Andhra Pradesh & Ors v. V. Appalaswami {2009 (1) SCC (L&S) 440}, two fold principles had been laid down whether a disciplinary proceeding could be quashed on grounds of delay alone.
We may also at this stage add that in judicial review Courts and Tribunals are ordinarily reluctant to intervene at the interlocutory state since at that stage no action has, in fact, been taken against the delinquent which could be considered as having infringed any rights of the employee. Further, it is also trite that the judicial authorities cannot step in the shoes of the administrative authorities, within whose legitimate domain it is to ascertain proving or disproving of the charges by following quasi-judicial proceedings and adopting the standard of proof of preponderance of probability.
7. On a careful consideration of the facts of the case, we find that it is true that the impugned charge memorandum in this case has been issued in 2009, though it pertained to the period 1998; however, the Respondents have been able to submit an adequate explanation for the delay. As the entire investigations had commenced on a public complaint received as late as in 2006, the point of reference would have to be taken from that year rather than from 1998. Further, the detailed recounting of the chronological steps taken by the respondents in this case would suffice to corroborate that there has not been any negligence or delay on their part, once the matter had come to their notice. We also do not find any evidence of arbitrariness either in taking some isolated actions, dragging the employees in the lower echelon of the hierarchy or doing certain things in haste. On the other hand what we find are thorough investigations based on repeated site inspections and consultation with available records. The impugned charge memorandum before us is only a small part of the action being taken by the respondents against the whole set of employees found involved in the alleged irregularities..
8. In cannot be anybodys case that in case of public complaints about irregularities and mal-practices being received by the authorities after a gap of several years, they should keep their hands tied and take no action at all to ascertain the facts or bring the delinquent to book. We are not choosing to go into the details of the other decisions adverted to by the learned counsel, as each has been decided as per the facts of that case. We note that prior to the issue of the charge memorandum, the applicant had been issued an OM dated 1.3.2008 regarding submitting his explanation about the charges. A perusal of this document (Annexure A/4) reveals thorough and detailed submissions after inspection of the relevant documents. We also note that the respondents before initiating action have at different stages consulted the relevant records. Given these facts, the defence plea of delay causing prejudice against the delinquent is not found to be tenable.
9. In view of the foregoing, we find the OA as devoid of any merit. However, since speedy trial is a facet of fair procedure to which a delinquent is entitled to; we dispose of this OA with a direction to the respondents to complete the enquiry within a period of three months from the date of receipt of a copy of this order. The final orders after the inquiry report should also be passed within a period of further three months thereafter. This would, however, be subject to all the cooperation forthcoming on the part of the delinquent. There shall be no order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU) MEMBER (A) MEMBER (J) /pkr/