Central Administrative Tribunal - Delhi
Mr. R K Jain vs North Delhi Municipal Corporation on 8 October, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.128/2013 Order reserved on 1st October 2013 Order pronounced on 8th October, 2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Mr. R K Jain r/o E-84, Preet Vihar, Delhi-92 .. Applicant (Applicant in person) Versus 1. North Delhi Municipal Corporation Dr. Shyama Prashad Mukherjee Bhawan Civic Centre Jawahar Lal Nehru Marg, New Delh-2 Through its Commissioner 2. The Commissioner, North Delhi Municipal Corporation Dr. Shyama Prashad Mukherjee Bhawan, Civic Center Jawahar Lal Nehru Marg, New Delhi-2 ..Respondents (By Advocate: Mr. R N Singh) O R D E R
Mr. A.K. Bhardwaj:
Vide charge memo No.1/192/2003/C.P.C./Vig/DA/III/472 dated 10.9.2004, following charges were framed against the applicant:-
1. He failed to get stopped the misuse i.e. commercial use of the property when the building plan was sanctioned for residential use at P. No.1/11865, New No.E-1, Panchsheel Garden, Navin Shahdra, Delhi
2. He failed to get taken any effective step to stop/demolish the unauthorised construction, of commercial nature which was carried out at the above said property at its initial/ongoing stage.
3. He failed to get booked the unauthorised construction of commercial nature which was carried out in the said property. Thus, he allowed the owner/builder to carry out and complete the unauthorised construction and did not get action taken for demolition and misuse of property u/s 343/344/347 of DMC Act for which he is responsible. Sh. Mohd. Afzal, JE, booked the property for commercial use U/s 347 of DMC Act after receipt of call back notice from Vigilance Department on 3.7.2003.
4. He did not get initiated action for sealing the unauthorised construction and prosecution of Owner/Builder under section 345A and 332/466A of DMC Act.
5. He failed to get initiated action for disconnection of electricity connection when the unauthorised construction was carried out at the said property.
6. He also failed to exercise proper supervision and control over the functioning of his subordinate JE Sh. Mohd. Afzal, S.A. Saifi, and N.K. Aggarwal, Sh. O.P. Upadhaya, AE and Sh. Pyare lal, AE who in turn failed to initiate appropriate action to stop/demolish the unauthorised construction of commercial nature in the said property. He, thereby, contravened Rule 3 (I) (i) (ii) (iii) & 3 (II) of CCS (Conduct) Rules, 1964 as made applicable to the employees of MCD.
2. During the pendency of the proceedings initiated vide aforementioned memo of charges, the applicant was dismissed from service vide Office Order 7.4.2006 along with certain other Executive Engineers. The said order was quashed by this Tribunal on 26.3.2009 in T.A.No.80/2009. The order was challenged before the Honble High Court of Delhi and after the order dated 9.9.2010 passed by the Honble High Court, the applicant was allowed to join the service. Only after reinstatement of the applicant, the disciplinary authority, i.e., the Commissioner of erstwhile Municipal Corporation of Delhi (MCD) passed the order dated 19.4.2011 for further proceedings in the present case, i.e., RDA Case No.1/192/2003. In the meantime, the applicant retired from service on 31.7.2012.
3. In the present Original Application filed by him, the applicant has questioned the memo of charges and inquiry report (Annexures A-1 & A-2) on the ground of inordinate delay and the charge against him being not grave. According to the applicant, after his retirement, the only penalty, which the respondents can impose upon him is either cut in pension or gratuity in terms of Rule 9 of CCS (CCA) Rules, 1965 and both the penalties could be imposed only on grave misconduct and once in the charge memo and inquiry report it is nowhere mentioned that the charges alleged against the applicant is grave, the finalization of the RDA Case No.1/192/2003 against him would be futile exercise.
4. In the counter reply filed by the respondents, it is stated that following proposals are being sent to the Corporation by way of preamble, which reads thus:-
i. To rescind the earlier orders of Corporation passed vide Resolution No.1130 dated 19.3.2009 thereby inflicting the penalty of 10% cut in pension for two years upon Shri R.K. Jain, Executive Engineer who was compulsorily retired as per orders of Honble Lt. Governor of Delhi passed while deciding his appeal.
ii. To place the case before North Delhi Municipal Corporation being Disciplinary Authority for considering the Inquiry Report (Annexure A), reply filed by Shri R.K. Jain, Executive Engineer (Annexure B), allied record of the case and for passing appropriate orders in the present case as Shri R.K. Jain, Executive Engineer has retired from municipal services on 31.7.2012.
5. Mr. R.N. Singh, learned counsel for respondents also submitted that now the matter has been placed before the competent authority, i.e., Corporation to take a final view on the inquiry report, thus at this stage the Tribunal should not interfere with the inquiry report and charge memo. He also placed reliance on the decision of the Honble Supreme Court in The Secretary, Min. of Defence & others v. Prabhash Chandra Mirdha, JT 2012 (5) SC 524.
6. In rejoinder, the applicant submitted that in view of the order passed by the Honble Supreme Court in State of A.P. v. N. Radhakishan, (1998) 4 SCC 154, delay defeats justice and also vitiates the inquiry. Relevant excerpt of the said judgment reads as under:-
19. 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 enterusted 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.
7. We have heard the learned counsels for the parties and perused the material placed on record.
8. It is true that there was delay of approximately five years in issuance of charge sheet to the applicant, but as has been viewed by the Honble Supreme Court in Anant R. Kulkarni v. Y.P. Education Society & others, AIR 2013 SC 2098, the court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by the court. Relevant excerpt of the said judgment reads as under:-
8. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, must be carefully examined, taking into consideration the gravity/magnitude of charges involved therein. The Court has to consider the seriousness and magnitude of the charges and while doing so the Court must weigh all the facts, both for and against the delinquent officers and come to the conclusion, which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the said proceedings are allowed to be terminated, only on the ground of a delay in their conclusion. (Vide: State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; State of Punjab & Ors. v. Chaman Lal Goyal, (1995) 2 SCC 570; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250; and Chairman, LIC of India & Ors. v. A. Masilamani, JT (2012) 11 SC 533).
9. In The Government of Andhra Pradesh & others v. Appala Swamy, (2007) 14 SCC 49, it could be held by the Honble Apex Court that so far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, no hard and fast rule can be laid down and each case must be determined on its own facts. In terms of the view taken in the said case, the principles upon which a proceeding can be directed to be quashed on the ground of delay are (1) Where by reason of the delay, the employer condoned the lapses on the part of the employee and (2) Where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the inquiry officer. Relevant excerpt of the said judgment reads as under:-
12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
(1) Where by reason of the delay, the employer condoned the lapses on the part of the employee.
(2) Where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer.
10. Also in Prabhash Chandra Mirdhas case (supra), it could be held that the charge sheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings. Paragraph 13 of the said judgment reads as under:-
13. Thus, the law on the issue can be summarised to the effect that charge-sheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.
11. In Dy. Inspector General of Police v. K.S. Swaminathan, (2006) 11 SCC 498, the Honble Supreme Court categorically viewed that the Tribunal or the Court would not be justified to interfere with the matter at the stage of issuance of charge sheet, i.e., whether the charges are true or not. Paragraph 4 of the said judgment reads as under:-
4. It is settled law by a catena of decisions of this court that if the charge memo is totally vague and does not disclose any misconduct for which the charges have been framed, the tribunal or the court would not be justified at that stage to go into whether the charges are true and could be gone into, for it would be a matter on production of the evidence for consideration at the enquiry by the enquiry officer. At the stage of framing of the charge, the statement of facts and the charge-sheet supplied are required to be looked into by the court or the tribunal as to the nature of the charges, i.e., whether the statement of facts and material in support thereof supplied to the delinquent officer would disclose the alleged misconduct. The tribunal, therefore, was totally unjustified in going into the charges at that stage. It is not the case that the charge memo and the statement of facts do not disclose any misconduct alleged against the delinquent officer. Therefore, the tribunal was totally wrong in quashing the charge memo. In similar circumstances, in respect of other persons involved in the same transactions, this court in appeals arising out of Special Leave Petitions (C) Nos. 19453-63 of 1995 had on 9/2/1996 allowed the appeals, set aside the order passed by the tribunal and remitted the matter holding that:
"This is not the stage at which the truth or otherwise of the charges ought to be looked into. This is the uniform view taken by this court in such matters."
12. In Union of India v. Govind Manish (Civil Appeal No.1442/2011) decided on 7.2.2011, their Lordships of the Honble Supreme Court viewed as under:-
In our view, the Tribunal committed a jurisdictional error by entertaining and allowing the application filed by the respondent for quashing the chargehseet at the threshold. In the process, the Tribunal omitted to consider the law laid down by a three-Judge Bench of this Court in Chief or Army Staff v. Major Dharam Pal Kukrety (supra). While dealing with the scope of High Courts power to quash the show cause notice issued to the respondent.
.. It was the Respondent's case that the Chief of the Army Staff had no jurisdiction to issue the impugned show cause notice after he had been again found not guilty by the court-martial on revision. The said notice expressly stated that, the Chief of the Army Staff was of the opinion that the Respondent's misconduct as disclosed in the proceedings rendered his further retention in service undesirable and asked him to submit his explanation and defence, if any, to the charges made against him. If the Respondent's contention with respect to the jurisdiction of the Chief of the Army Staff to issue the said notice were correct, the Respondent was certainly exposed to the jeopardy of having his explanation and defence rejected and he being removed or dismissed from services. Were the said notice issued without jurisdiction, the Respondent would have then suffered a grave, prejudicial injury by an act which was without jurisdiction. Where the threat of a prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Court's protection. If, on the other hand, the Chief of the Army Staff had the power in law to issue the said notice, it would not be open to the Respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in Such an event his writ petition could be said to be premature. This was, however, not a contention which could have decided at the threshold until the court had come to a finding with respect to the jurisdiction of the Chief of the Army Staff to issue the impugned notice. The Court then noticed the relevant provisions of the Army Act and the Rules and held that the Chief of the Army Staff had the jurisdiction to issue show cause notice under Rule 14 of the Army Rules because he was of the opinion that further retention of the respondent in the service was undesirable and fresh trial by a court-martial was both inexpedient and impracticable.
13. In State of Punjab & others v. Ajit Singh, (1997) 11 SCC 368, the Honble Supreme Court did not uphold the approach of the High Court to interfere with the charges, though upheld its order of quashing the order of suspension. Paragraph 3 of the judgment reads as under:-
3. We do not find any ground to interfere with the judgment of the High Court insofar as the quashing of the order of suspension is concerned. We are, however, of the view that the High court was in error in setting aside the charge-sheet that was served on the respondent in the disciplinary proceedings. In doing so the High court has gone into the merits of the allegations on which the charge-sheet was based and even though the charges had yet to be proved by evidence to be adduced in the disciplinary proceedings. The High court, accepting the explanation offered by the respondent, has proceeded on the basis that there was no merit in the charges levelled against the respondent. We are unable to uphold this approach of the High court. The allegations are based on documents which would have been produced as evidence to prove the charges in the disciplinary proceedings. Till such evidence was produced it could not be said that the charges contained in the charge-sheet were without any basis whatsoever.
15. In Union of India & another v. Kunisetty Satyanarayana, (2006) 12 SCC 28, the Honble Supreme Court viewed that mere charge sheet or show cause notice does not raise any cause of action, because it does not amount to an adverse order, which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. Relevant except of the said judgment reads as under:-
13. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
16. In Union of India & another v. Ashok Kacker, 1995 Supp (1) SCC 180, the Honble Supreme Court viewed that issuance of charge sheet is not the stage at which the Tribunal should interfere the Original Application for quashing the charge and the appropriate course for the employee is to file a reply to the charge sheet and invite the decision of the disciplinary authority thereon. Paragraph 4 of the said judgment reads as follows:-
4. Admittedly, the respondent has not yet submitted his reply to the charge- sheet and the respondent rushed to the central Administrative tribunal merely on the information that a charge-sheet to this effect was to be issued to him. The Tribunal entertained the respondent's application at that premature stage and quashed the charge-sheet issued during the pendency of the matter before the Tribunal on a ground which even the learned counsel for the respondent made no attempt to support. The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf by learned counsel for the respondent. In our opinion, this was not the stage at which the tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. This being the stage at which the respondent had rushed to the tribunal, we do not consider it necessary to require the tribunal at this stage to examine any other point which may be available to the respondent or which may have been raised by him.
17. In Union of India v. Upendra Singh, JT 1994 (1) SCC 658, the Honble Supreme Court viewed that in the case of charges framed in a disciplinary inquiry, the Tribunal or court can interfere only if on the charges framed, no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to law. Paragraph 6 of the said judgment reads as under:-
6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath & Sons . The bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus :
"Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
18. In the present case, the applicant has already participated in the inquiry proceedings and has raised his possible defence, thus it cannot be said that the delay has prejudiced his defence. Besides, as has been viewed by the Honble Apex Court in Appala Swamys case (supra), it is open to the applicant to make out a case of prejudice before the disciplinary authority. In the circumstances, we decline to grant the relief prayed by the applicant.
19. The Original Application is disposed of with direction to the Corporation (disciplinary authority) to pass final order in the matter within a period of eight weeks from the date of receipt of a copy of this order. While doing so, it would keep in view the plea raised by the applicant regarding delay in initiation / conclusion of the proceedings and the charge against him being not grave. No costs.
( A.K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/