Central Administrative Tribunal - Delhi
Presently Posted At vs Delhi Development Authority on 12 March, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.3572 of 2013
New Delhi this the 12th day of March, 2015
Honble Mr. Ashok Kumar, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
Ashok Kumar Rellan,
A.E (C)
R/o DG-II/41 D,
Vikas Puri, New Delhi-110018
Presently posted at:-
Asst. Engineer (Civil)
Rohini Project Division No.10,
Rohini Zone, Madhuban Chowk,
Aged about 55 years
Applicant
(By Advocate: Shri Malaya Chand)
VERSUS
Delhi Development Authority,
Through Vice Chairman,
Vikas Sadan, INA,
New Delhi
Respondent
(By Advocate: Shri Rajender Khatter)
O R D E R
Ashok Kumar, Member (A):
The applicant aggrieved by the penalty imposed on him vide order dated 08.05.2007 by the disciplinary authority of reduction to one stage lower in the time scale of pay for one year during which period he would not earn increment, filed an appeal on 12.06.2007 which has still not been disposed of. Being aggrieved by the same, he has filed this OA seeking the following reliefs:-
8.
A) To quash and set aside the Impugned Memo (Annexure-A/1) and set aside the orders of Disciplinary Authority (Annexure-A/2), OR B) To direct the Appellate Authority to dispose of the appeal by passing a speaking and reasoned order by dealing with the documents relied by applicant and definitely within four weeks from receipt of copy of the order.
C) Such other/further order this Honble Tribunal may deem fit and proper in the facts and circumstances of the case be also passed in favour of the petitioner and against the respondents, in the interest of justice. It is observed from the above that the reliefs sought in para 8(A) and (B) are alternative to each other.
2. According to the applicant, respondent had issued a charge sheet to him on 11.10.2004 (Annexure-A/1) containing the charge of absence from office since January, 2004, not attending the site where he was posted as A.E (P), and not handing over the keys of Almirahs by refusing the acknowledgment of the respondents instructions sent through special Messenger. The articles of charges, statement of imputation of misconduct, the documents relied upon in support of the charges and the list of witnesses to substantiate the charges were supplied to him vide Annexure-I to Annexure-IV enclosed with the Annexure-A/1 Memorandum of charges. The written statement filed by the applicant was not considered by the disciplinary authority and an inquiry was ordered. Applicant sought various documents to make his proper defence, but was denied such opportunity and without considering the grounds and objections, the Inquiry Officer submitted his report against which the applicant had filed representation dated 01.03.2007 to the disciplinary authority. According to the applicant, the disciplinary authority without considering the representation and the documents of the applicant passed the aforenoted cryptic impugned order of penalty.
3. Various grounds have been stated in the O.A mainly to the effect that the order is not sustainable as it is non-speaking. As was required under rules in view of the judgment of the Honble Supreme Court, no opportunity was afforded to the applicant to present his defence version and hence the entire proceedings are vitiated. The third ground is that the appeal preferred by the applicant under the DDA Conduct Disciplinary and Appeal Regulation, 1999 has yet not been disposed of, and the appellate authority was under obligation to consider the medical reports. The action of the applicant which was in furtherance of the interest of department was not considered and he has been held guilty out of malice, and thus the impugned order is not based on facts. His reply to the charges has not been properly considered. Various other incidents and grounds have been mentioned in the OA.
4. Counter reply has been filed on behalf of the official respondents. It is firstly stated that the applicant has not exhausted the departmental remedies as available to him under the DDA Conduct Disciplinary and Appeal Regulation, 1999 before filing the OA. The provisions under Sections 20 and 21 of the Administrative Tribunals Act, 1985 have thus not been complied with and the statutory remedy has not been exhausted. A series of judgments have been cited by the respondents in support of their contention, both of the Honble Supreme Court as well as the Tribunal. The second aspect that has been pointed is that in the absence of any appeal having been filed by the applicant against the penalty order issued by the disciplinary authority, the OA is patently barred by time. This is because the present OA was filed only on 04.10.2013 i.e. more than six years after the penalty order was issued. Various judgments have again been cited, including in the matter of S.S.Rathore Vs. Union of India & Ors. (AIR1990 SC10) by the Constitution Bench as also the Three-Judges Bench decision in the case of Bhoop Singh Vs. UOI & Ors. (1992(3) SCC 136), wherein repeated reminder is not sufficient to condone delay and is by itself a ground to refuse the relief, irrespective of the merit of the claim. A person entitled to a relief, if he chooses to remain silent for long gives rise to a reasonable belief in the mind of others that he is not interested in claiming the relief. The judgment of the Honble Supreme Court in the matter of S.S.Rathore (supra) further specifies that the issue of limitation or delay has to be considered with reference to the original cause of action and not with reference to the date on which an order was passed in compliance of a courts direction. Repeated reminders with respect to the appeal stated to have been made by the applicant would not enable him to claim the relief. Condonation of delay is one of the basis on which the respondent has sought to challenge the OA.
5. As regards the merit of the matter, the respondents have stated that the applicant while working as JE (C) absented himself from duty w.e.f. 12.05.2004 because of which the office work got neglected, such as bills of contractors, handing over possession to allottees, preparation of A/R and M/O. The charge sheet was therefore served on the applicant. Inquiry was held after considering his representation and the charges leveled against the applicant were found to be correct. The disciplinary authority therefore, imposed the penalty vide the impugned order dated 08.05.2007.
6. The respondents have taken a categorical stand that no appeal has been filed. In any case if an appeal or reminder is filed the same ought to have been routed through proper channel. No such appeal has been forwarded as per the records available with the respondents.
7. In so far as the disciplinary proceedings are concerned, it is stated that no written statement was received. Applicant was allowed to inspect the documents and relevant copies were supplied to the applicant. On request, Shri S.P.Mitra, Executive Engineer (E) was appointed in his case and thus all proper and reasonable opportunity was afforded to the applicant for his defence. The Inquiry Officer on the basis of charge sheet, inquiry report and examination of witnesses, held the charges as proved and the disciplinary authority after considering the inquiry report and the relevant records imposed the penalty on the applicant. The respondents have also pointed out that the medical prescriptions, submitted by the applicant, reveal that the applicants treatment started from 21.04.2012. A series of medical prescriptions have been mentioned which reveal that the applicant was not so seriously ill or admitted in the hospital which would prevent him to prefer an appeal. The respondents have prayed that the OA is, therefore, fit to be dismissed.
8. Both parties were heard, namely learned counsel, Mr. Malaya Chand for the applicant and Mr. Rajender Khattar for the respondents.
9. Mr. Malaya Chand, counsel for the applicant reiterated that an appeal was filed and referred to the document at Annexure-A/3 dated 12.06.2007. On inquiry, he further clarified that the appeal has been received in the office of respondents, i.e. the Executive Member, DDA on the same date. This was based on the fact that in the corner of the appeal (copy at Annexure A/3) there is an initial with date 12/6/07. Mr. Malaya Chand also produced a copy of judgment dated 22.01.2013 of the Honble Delhi High Court in W.P. (C )334/2013 in which the order of the Tribunal was set aside on the ground of delay in preferring the claim before the Tribunal. Para 6 to para 12 of the judgment dated 22.01.2013 are reproduced below:-
6. Along with the Original Application an application was filed praying that delay in preferring the claim before the Tribunal pertaining to reliefs sought as per prayer clause A" and B" condoned and for which it was highlighted that the revision was not being decided by the revisional authority thereby necessitating the filing of the application before the Tribunal and to approach the Tribunal after a passage of time.
7. Disposing of O.A.No.963/2012, but passing no orders on the application praying for delay in filing the Original Application be condoned, the Tribunal decided, by consent, that the revision would be decided by the revisional authority within six weeks from the date of order passed i.e. July 19, 2012.
8. R.A.No.292/2012 was thereupon filed by NDMC pointing out to the Tribunal that there was a 3 years delay in preferring the Original Application. It was accordingly prayed that the order dated July 19, 2012 be recalled.
9. Vide order dated October 17, 2012 the Tribunal has held that O.A.No.963/2012 was preferred after 3 years of filing of the Revision Petition and was thus barred by limitation. Accordingly, order dated July 19, 2012 was recalled and the result is dismissal of O.A.No.963/2012.
10. It is apparent that the order dated October 17, 2012 is highly misplaced. It ignores the fact that the revision petition filed by the writ petitioner was not decided and the alternative prayer was to direct the revisional authority to decide the revision petition. As long as the revision petition was not decided the question of limitation running against the writ petitioner did not even arise.
11. That apart, while passing the order in review the Tribunal over-WP(C)No.334/2013 Page 3 of 4 looked the fact that by way of abundant precaution the writ petition had prayed for delay in preferring the Original Application to be condoned. The Tribunal also over-looked the fact that its earlier order dated July 19, 2012, evidence by the last sentence of paragraph 4 of the order, made it clear the same was passed with consent.
12. Even otherwise if a revision petition filed is not disposed of by the revisional authority, at any point of time a grievance can be raised before a judicial fora requiring the revisional authority to discharge its statutory duties.
10. Learned counsel for the respondent on the contrary contended that apart from the gross delay in filing the OA, the fact was apparent that no appeal had been preferred by the applicant. Referring to the judgments of the Honble Supreme Court, which find mention in the counter reply also, learned counsel challenged the contention of the applicant that an appeal had been filed because according to him, the appeal was neither routed through proper channel, as was evident from the absence of any such available record of filing the appeal/routing it through proper channel, nor was there any proper acknowledgment produced by the applicant that the appeal was forwarded or received by the appellate authority. The initial in the corner of the appeal at Annexure- A/3 which, according to the applicant, was proof of receipt of appeal, was not acceptable. Neither the name of the person who received the appeal was mentioned nor was any rubber stamp available on it to prove that the appeal had actually been filed.
11. We have perused the pleadings and documents on record and have also considered the arguments of both parties.
12. We have noted above that the applicant has claimed alternative relief. Para 8 (B) is for directing the respondents to expeditiously dispose of the appeal through a speaking and reasoned order within four weeks from the receipt of copy of the order.
13. We have considered the contentions of both parties and have also perused Annexure A/3 which is stated to be evidence of an appeal having been filed by the applicant with the respondents. We note that apart from an unidentified initial with date on the copy of appeal at Annexure A/3, there is nothing to suggest any authenticated acknowledgement of the filing of the appeal. The initial on Annexure-A/3 does not disclose the name of the person who received the appeal application, neither is the name of the office mentioned where the said appeal was received, nor was any rubber stamp found to be affixed thereon to demonstrate acknowledgment of the appeal application. On the other hand, the contention of the respondents that this was required to be filed through proper channel is also to be noticed. We are therefore perforce to conclude that the receipt of the appeal application cannot be stated to be beyond doubt and in the light of the affirmation to the contrary by the respondents in the counter reply, we are unable to give the benefit of doubt in favour of the applicant. It is, therefore held that the there was virtually no reliable evidence to prove that the appeal application was filed. In the absence of any such proof of filing the appeal, the alternative remedy sought in para 8(B) of the OA cannot be allowed.
14. In view of the aforenoted findings, we shall now deal with the issue of delay in filing the OA. In the absence of any reliable evidence in support of the claim of the applicant to have filed the appeal against the impugned order of the disciplinary authority dated 8.05.2007 on 12.06.2007, the period of limitation has to be counted from the date on which the penalty order has been issued. As stated, the order of the disciplinary authority was issued on 08.05.2007 whereas the OA has been filed on 04.10.2013. A delay of more than six years has thus taken place in filing the OA. The only ground which could have come in support could have been filing of appeal within time. Since we are of the view that there was absence of reliable evidence to prove that any appeal was filed, it is to be necessarily held that the OA is highly delayed, especially in the absence of any other stated ground which may be sufficient cause to condone the delay. The judgments in the matter of S.S. Rathore and Bhoop Singh (Supra) as noted above do not permit any condonation of delay, nor has any condonation of delay been sought either in the OA or through specific application for this purpose. The OA is therefore hit by limitation and hence not fit to be allowed.
15. In so far as the disciplinary proceedings are concerned, we have considered this aspect also. No inconsistency or procedural irregularity vis-a-vis the related rules rule on the subject have been made out by the applicant. In cases of judicial review, the Tribunal is not required to interfere with the discretion vested in the disciplinary authority or appellate authority. The Honble Supreme Court in the case of B.C.Chaturvedi Vs. Union of India ( 1996 SCC (L&S) 80) held as under:-
The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal it cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shoc the conscience of the Court/Tribunal.
16. The Honble Supreme Court in Union of India & Ors. Vs. Upender Singh (1994 (3) SCC 357) has held that the Tribunal cannot take over the functions of the disciplinary authority and the function of the court and Tribunal is one of judicial review. 17. In view of above, finding no inconsistency or irregularity in the conduct of the inquiry/disciplinary proceedings viz-a-viz. the laid down rules and instructions, we are not impressed with the grounds referred to by the applicant for assailing the penalty order dated 08.05.2007. For this reason as well, the applicant does not succeed in this OA.
18. It is therefore held that the OA is highly delayed and lacks merit as well, and is thus not fit to be allowed. In the circumstances, no interference is called for in the impugned order passed by the disciplinary authority. OA is therefore dismissed without any order as to costs.
(Raj Vir Sharma) (Ashok Kumar)
Member (J) Member (A)
/usha/