Central Administrative Tribunal - Delhi
Shri I.J. Gupta vs Delhi Development Authority on 2 August, 2011
Central Administrative Tribunal Principal Bench O.A.No.1960/2009 New Delhi, this the 2nd day of August, 2011 Honble Mrs. Meera Chhibber, Member (J) Honble Shri Shailendra Pandey, Member (A) Shri I.J. Gupta s/o late Sh. V.P.Gupta r/o Flant No.50, SFS Flats Ashok Vihar Phase-2 Delhi 110 052. Applicant (By Advocate: Shri Siddharth Joshi) Versus Delhi Development Authority Through its Vice Chairman Vikas Sadan, INA Market New Delhi. Ashok Kumar Vice-Chairman Delhi Development Authority Vikas Sadan, INA Market New Delhi. Respondents (By Advocate: Ms. Alka Sharma) O R D E R By Shailendra Pandey, Member (A):
In this OA, the applicant has challenged the Memorandum of Chargesheet dated 24.03.2009 issued by Respondent No.2 and also the order dated 13.07.2009, appointing an inquiry officer to inquiry into the charges framed against the applicant.
On 06.08.2009, an ad interim measure, this Tribunal stayed the disciplinary proceedings initially for a period of three weeks, which has been continuing.
2. The brief facts, as set out in the OA, are that the applicant, an Executive Engineer (C), was issued a Chargesheet along with the aforesaid Memorandum dated 24.03.2009 on the following article of charge:
Shri I.J.Gupta, Executive Engineer (C) while working in Building Section as Asstt. Engineer (Civil) during the period 1998 was responsible to inspect the site under his jurisdiction i.e. various properties at Block-B, Sector-8, Dwaraka, before recommending for approval of D-forms and to check the scrutiny report submitted by his subordinate JE. He was also required to monitor the functioning of his subordinate JEs and to check the Field Observation Book maintained by his subordinate JEs working under him.
It was observed that in respect of Plot No.41, wrong D-form was recommended for approval by you. 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 this above act, Shri I.J.Gupta, EE (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. Prior to issue of the chargesheet, the applicant had been issued a Memorandum dated 20.02.2008, the relevant portion of the same is extracted below:
A complaint dated 3.03.2006 was received in the Vigilance Department alleging that completion certificates for 142 incomplete buildings/plots at B-Block, Sector-8, Bagdolla, Dwarka have been issued by the Bldg. Section/DDA. The complainant has informed that the said plots were partly constructed and have been provided with temporary boundary wall with no bath, kitchen, toilet and a temporary roof on two rooms on temporary walls exist on the said plots. It has further been alleged that these plots are in possession of builders/property dealers who have taken completion for the simple reason i.e. to get these plots freehold.
Before issuance of D-Form as per building-bye-laws (Appendix-D), sanitary works, water supply and drainage are to be provided/executed strictly as per sanctioned plan.
Detailed/various inspections were carried out by the vigilance team on 8.03.07, 14.3.07, 15.3.07, 20.3.07, 19.4.07, 23.4.07 & 25.4.07. During inspection, it was observed that in respect of Plot No.41, wrong D-form was recommended for approval by you. 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.
Shri I.J.Gupta, A.E. (C) is hereby asked to submit his version as to why D-form in respect of the aforesaid incomplete building was recommended. A reply to the said Memorandum was given by the applicant vide his letter dated 21.05.2008 (Annexure A3) stating interalia that there was no lapse on his part in issuing the `D Form and giving reasons for this. However, his explanation was not found satisfactory and accordingly, a chargesheet was issued vide respondents letter dated 24.03.2009 and an inquiry officer was also appointed vide respondents letter dated 13.07.2009.
3. The applicant has, therefore, filed this OA seeking quashing of the aforementioned orders, mainly on the following grounds:
that the chargesheet relates to an incident (issue of a `D Form) that occurred in the year 1998 and there is no valid explanation for this inordinate delay of about 10 years on the part of the respondents to issue the chargesheet. In particular, the respondents have not explained why they slept over the matter for almost 8 years upto 2006. Further the complaint they received on 03.03.2006 has no bearing at all on the facts and circumstances of his case. In this regard, reliance on the Judgement of the Honble Supreme Court in Government of M.P. v. Bani Singh, AIR 1990 (SC) 1308, and also relied on the Judgement of this Tribunal in Chand Ram v. Delhi Development Authority & Others, (OA No.202/2009, decided on 13.05.209).
that holding of an inquiry after such a long time will cause considerable prejudice to him as among other aspects it will be difficult for him to access relevant documents etc. (for his defence) at this distant date.
that he had given his version in respect of the said Memorandum of explanation vide his letter dated 21.05.2008 stating that there was no lapse on his part in issue of the `D Form. Further, after a gap of 10 years the chances of additions/alterations in the premises in question cannot be ruled out for which the applicant cannot be held responsible.
that the respondents have been biased against him as he had been in litigation with them in other service matters since 2006 and had also filed a Contempt Petition No.328/2008 in TA No.94/2007 against the respondents, and they have, therefore, decided to harass and have issued the present Chargesheet in the year 2008, after a lapse of more than 10 years.
that if the chargesheet/inquiry proceedings are not quashed he will be badly prejudiced as he is on the verge of promotion. It is settled that there is a tendency in the respondents organization to issue chargesheets to senior officers near about the time they are liable for promotion and such tendency needs to be curbed. In this connection, the applicant refers to the cases of DDA v. Om Prakash, WP(C) No.3140/2010 and R.S.Sagar v. Union of India, 1993 (2001) DLT 194 (D.B.).
that the charges are neither serious nor grave and that there has been no loss to Government and, therefore, the chargesheet needs to be quashed.
5. The respondents have opposed the OA and have stated that the OA is not maintainable inasmuch as the disciplinary proceedings are yet to be conducted/completed and, therefore, this Tribunal has no role to entertain the present OA and the OA should be dismissed on this ground alone. On merits, they have stated that the Bani Singhs case (supra) is not applicable to the facts and circumstances of the present case. As regards delay, they have stated that the delay is not deliberate and stands explained, as they came to know about the matter in the year 2006 when a complaint was received. It was decided that the Vigilance Department will complete the investigation and initiate action against the officials found responsible for committing such irregularities. Site Inspections were carried out on 08.03.2007, 14.03.2007, 15.03.2007, 20.03.2007 by the Vigilance team. Thereafter, a memorandum dated 22.02.2008 was issued to the applicant along with other officials (17 nos.) to submit their versions. The reply submitted by the applicant was also duly considered and it was felt that disciplinary proceedings should be initiated against the applicant. Hence, it was decided to issue the chargesheet and appoint an inquiry officer. Therefore, it is prayed that the OA be dismissed as premature and non-maintainable.
6. We have heard both sides and have given our anxious consideration to the rival contentions of both sides and have been through the pleadings on record.
7. At the outset, it would be useful to recall the legal position with regard to the intervention by Courts at the stage of issue of Chargesheet and the impact of delay in issue of chargesheet/conducting of disciplinary proceedings. The Honble Supreme Court of India has dealt with this issue in several cases and some of their observations in this connection are reproduced hereinafter:
I. With regard to intervention in disciplinary proceedings at an interlocutory stage:
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. In this connection, further it would be use full to refer the case of the Honble Apex Court in Union of India v. Upendra Singh, JT 1994 (1) SC 658]. It was observed 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." In a recent case, the Honble Apex Court in Union of India & Others v. Kunisetty Satyanarayana, (2006) 12 SCC 28, observed as under:
13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc.
14. 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.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. II. With regard to delay in initiation/conclusion of disciplinary proceedings:
The Honble High Court of Delhi in D.P.Lalwani v. Delhi Development Authority, 2001 VII AD (Delhi) 452, observed as under:
8. The delay of four and a half years from the date of receipt of the report from the inspecting authority till the date of issuance of chargesheet without there being any specific allegation that the petitioner has suffered any prejudice or that because of the aforesaid delay and lapse of time, it has become difficult for the petitioner to adduce evidence or to prove his innocence, cannot be said to be delay warranting quashing of the charges in this case. In the present case, it cannot be said that the delay is too long and is unexplained, particularly when the aforesaid delay is not caused or alleged to have cause prejudice to the petitioner in defending himself.
In this connection, reference may be made to a decision of the Supreme Court in State of Punjab & Ors. v. Chaman Lal Goyal reported in (1995) 2 SCC 570. In the said decision, the Supreme Court held that if the delay is too long and is unexplained the court may well interfere and quash the charges but how long a delay is too long always depends upon the facts of the given case and that moreover, and that moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. It was further held that wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances and the court is required to indulge in a process of balancing. In the said case, after weighing the factors and after indulging in the process of balancing the Supreme Court held that although there was delay of five and a half years in serving the charges, the said delay does not justify quashing of the charges against the petitioner.
I have arrived at the aforesaid conclusion after weighing various factors appearing for and against the aforesaid plea of delay and on the basis of totality of circumstances. In that view of the matter, I find no merit in this petition and the petition stands dismissed. In STATE OF ANDHRA PRADESH v. N. RADHAKISHAN, JT 1998 (3) SC 123, the Honble Apex Court considered the question of delay in conducting of departmental proceedings and held that if delay is unexplained, prejudice would be caused but if explained, it will not be a ground to quash the proceedings. Relevant observations of the Court are extracted below:
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 the 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 where there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations. (Emphasis supplied) The Honble Supreme Court had also considered the issue of delay in initiation of disciplinary proceedings in the case of STATE OF MADHYA PRADESH v. BANI SINGH AND ANOTHER, 1990 (2) SLR 798 where there was a delay of 12 years in initiation of the departmental proceedings. The Supreme Court deprecated the delay and observed as follows:
4. The appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in irregularities, and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case, there are not grounds to interfere with the Tribunals orders and accordingly we dismiss the appeal. The Apex Court in P.V.Mahadevan v. M.D., Tamil Nadu Housing Board, JT 2005 (7) SC 417 held as under:
16. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.
8. The import of the above judgements is that normally disciplinary proceedings should be allowed to take their course as per normal rules, but departmental proceedings should also be initiated at the earliest and should also be conducted with due expedition. Further, delay in starting of disciplinary proceedings would not be a fatal, if no prejudice is shown to have been caused to the delinquent employee. Thus, where there is delay, the facts and circumstances of each case would have to be gone into to decide whether any prejudice has been caused to the applicant and whether the delay is explained or not.
9. Keeping the above legal pronouncements in mind that normally Courts/Tribunals should not interfere in disciplinary proceedings at an interlocutory stage and that delay in disciplinary proceedings is not fatal if no prejudice is shown to have been caused to the charged officer, the crucial question to be considered in the present OA is whether there is any reasonable explanation for the delay in issue of the chargesheet to the applicant after a delay of more than 10 years from the date (i.e. in 1998) the incident took place, and whether the respondents can be held to be responsible for the delay.
10. In the present case we find that the complaint was received by the vigilance department of respondents only on 03.03.2006, alleging that completion certificates for 142 incomplete buildings/plots at B-Block, Sector-8, Bagdolla, Dwarka have been issued by the Bldg. Section/DDA. Detailed inspections/scrutiny was carried out by the Vigilance Department after receipt of the complaint, as a result of which, proceedings were started against a large number (17) of officials. In so far as the applicant is concerned, it was found that in respect of Plot No.41 allegedly a wrong `D Form has been issued by him and he has, therefore, been proceeded against.
11. The delay in initiation of disciplinary proceedings would, therefore, have to be reckoned from 2006. It would be difficult for us to hold that there was any significant delay in the matter after receipt of the complaint in March, 2006.
12. As already stated hereinbefore, it is settled law that in disciplinary matters, the disciplinary and appellate authorities should be allowed considerable discretion and should be permitted to take such action as is deemed necessary for efficient and clean functioning provided the same is taken as per rules and procedure prescribed, and after giving full opportunity to the other side for his defence in accordance with the principles of natural justice. Therefore, it would not be desirable for us to interfere at the stage of chargesheet. Further, the issue of the chargesheet by itself does not establish the guilt of a party. Whatever submissions the applicant has to make with regard to his not being actually responsible for the alleged wrong issue of the `D Form etc. can be made in response to the chargesheet and we are sanguine that all the issues raised would receive due consideration at the hands of the respondents.
13. Of course, as already stated a crucial aspect of the matter is the applicant must not be prejudiced in any way because of the lapse of time after the alleged incident for which he is charged and, therefore, it would need to be ensured by the concerned authorities of the respondents department that the applicant is allowed to access all the documents, etc. and have all the copies, etc of the relevant documents that he would like to have to meet his defence. The charge against the applicant is with regard to improper monitoring of the functioning of the subordinate JEs, recommendation of wrong `D form in respect of Flat No.41 and that construction had not been done as per the sanctioned plan and the covered area is more than the permissible limit. It would be necessary for the inquiry officer to see whether the alleged misconduct can be stated to have been proved on the basis of documents and evidence which have to be recorded during the inquiry. Thus, with regard to any deficiencies with respect to any documents etc, to be provided, the applicant will have occasion to point out the same to the inquiry officer during the course of the proceedings. Moreover, he has been only issued a chargesheet to which he has every right to respond to with the factual position as per his understanding, after scrutiny of the relevant records which would be made available to him by the respondents. It would, therefore, be neither necessary nor desirable to stay the proceedings at this juncture.
The applicant has placed reliance on the Judgement of a Coordinate Bench of this Tribunal in Chand Rams case (supra) but this case would not help the case of the applicant as each case of disciplinary proceedings has to be decided on its own facts and circumstances, and no straight jacket formula can be applied.
14. Thus, in the facts and circumstances of the case, we deem it appropriate to dispose of the OA with a direction to ensure that the inquiry is to be conducted expeditiously as per the prescribed procedure and all documents that are sought for and are relevant are made available to the applicant and also that he be given access to such records he would feel necessary for his defence. We also direct that in view of the statement of the applicant that he is due for promotion, the inquiry be conducted on a regular basis in which the applicant must ensure full cooperation and be completed within a period of four months from the date of receipt of a copy of this order.
15. The OA stands disposed of in the above terms. No costs.
(Shailendra Pandey) (Meera Chhibber) Member (A) Member (J) /nsnrsp/