Central Administrative Tribunal - Delhi
Shri R.A. Goel vs Mcd on 14 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.1556/2011 NEW DELHI THIS THE 14th DAY OF OCTOBER, 2011 HONBLE MR. M.L. CHAUHAN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) Shri R.A. Goel S/o Late Sh. Suraj Bhan Goel R/o B-324, Lok Vihar, Pitampura, Delhi-34 Applicant (By Advocate: Shri Apurb Lal with Kumari Alka) VERSUS 1. MCD Through its Commissioner Ambedkar Stadium New Delhi-02. 2. Lt. Governor Raj Niwas Marg, Delhi-54. Respondent (By Advocate: Shri R.K. Shukla) :ORDER: MRS. MANJULIKA GAUTAM, MEMBER (A):
The applicant in this OA was working as Junior Engineer in the MCD. During the period from 04.06.1999 to 30.10.1999, he was posted in the Building Department Rohini Zone and was in-charge of Ashok Vihar Area. He was served with the charge sheet dated 04.01.2006 and the Enquiry Officer was appointed on 18.09.2006. Enquiry was completed and report was submitted by the Enquiry Officer on 23.12.2008. A show cause notice was issued to the applicant with regard to the proposed penalty on 04.09.2009. The applicant submitted his reply on 11.09.2009. Order of penalty was passed by Respondent No.1 on 11.11.2009 and communicated to the applicant vide office order dated 17.12.2009. The applicant preferred a statutory appeal dated 28.01.2010, which was rejected vide order dated 19.01.2011. Aggrieved by this, the applicant has filed the present OA seeking following reliefs:-
i. Set aside the impugned orders dated 17.12.2009 and 19.01.2011 passed by the Respondents in view of the submissions made herein above;
And ii. Call for the record of the case; and iii. Award the cost of litigation; and iv. Pass such other or further order(s) as may deem fit and proper to meet the end of justice.
2. The applicant has pressed the following grounds in support of prayers made:-
According to the respondents several complaints were made regarding unauthorized construction in Plot No.KD-23C, Ashok Vihar, Phase-I. The complaints were made on 08.08.1999, 01.09.1999, 06.09.1999, 16.09.1999 and subsequently on 12.02.2003 also. The complainant was Shri Laxmi Narayan. According to the applicant the above mentioned complainant was neither produced as witness by the prosecution nor were copies of the complaints given to him and proved during the enquiry, thus violating the provisions of the Indian Evidence Act.
The applicant has also taken the ground that complaints against him were received in the year 1999 and the charge sheet was issued in the year 2006. This is a case of inordinate delay and in support of his contention he has relied upon orders of the Honble High Court dated 12.01.2010 in Writ Petition No.146/2010 wherein setting aside the order of the punishment on the ground of inordinate delay, the judgment of the Tribunal has been upheld by the Honble High Court.
The applicant has, in his reply, stated that the report dated 11.10.1999 regarding the unauthorized construction was placed on record whereby assessment of the property was made w.e.f. 01.04.1999. On the basis of the complaints received and House Tax Assessment record, it is being presumed that the unauthorized construction was made during his tenure at Ashok Vihar w.e.f. 04.06.1999 to 30.10.1999 but according to the applicant, as the House Tax assessment was w.e.f. 10.04.1999, the unauthorized construction was prior to the applicants joining and that there was no evidence on record to prove that the unauthorized construction was done during the tenure of the applicant, which was only a short period of four months.
3. In the counter affidavit filed by the respondents it has been stated that enquiry against the applicant was conducted in accordance with rules and principles of natural justice. After imposition of penalty on the applicant an appeal had been filed by him, which was decided by a detailed and speaking order placed at Annexure A-1. The respondents have also stated that all documents mentioned in the charge sheet as well as the complaints received were exhibited during the course of the enquiry and at no stage did the applicant ask for the complainant to be produced as witness or for proving the authenticity of the complaint. As far as the question of delay in filing the charge sheet is concerned, the respondents have stated that the complaints regarding the unauthorized construction were received in the year 1999 and also in the year 2003 and after proper vigilance enquiry the charge sheet was served upon the applicant. According to the Enquiry Officer, House Tax record whereby assessment of the property in question was made w.e.f. 01.04.1999 whereas complaints received regarding unauthorized construction were between 08.08.1999 and 16.09.1999 are cogent proof that the unauthorized construction was carried out during the tenure of the Charged Official. At the same time, the Enquiry Officer in his report has observed that PW-1, in his cross-examination has stated that he did not inspect the site in question and on the basis of complaint and A-Form, he concluded that the unauthorized construction in question was carried out during the tenure of the Charged Official. He did not contact the complainant or record his statement. PW-2 in his cross-examination has stated that he was in-charge of the area of Ashok Vihar only from 01.01.2000 and that he did not maintain BWR or prepared the A-Form. He has also stated that I cannot say the period of construction of the property in question mentioned in A-Form.
4. We have heard both the learned counsel and perused the record on file.
5. In our opinion the ground of inordinate delay and the ground that complainant has not been produced as witness are not sufficient to vitiate the enquiry proceedings. However, we are constrained to observe that the perusal of the enquiry report, particularly cross-examination of PW-1 and PW-2 proves the fact that there is no conclusive evidence on record to prove that unauthorized construction was done during the period the applicant was posted at Ashok Vihar. In fact, in the appellate order, it has been stated that the applicant was a Field Officer of the Corporation and was duty bound to detect unauthorized construction being carried out in the area of his jurisdiction, irrespective of any complaint being or not being brought to notice. There is no evidence that he had done so. Hence, the Appellate Authority was of the view that the appellant had not diligently discharged the duties and responsibilities expected of a Junior Engineer in the Building Department and the penalty imposed on him was not disproportionate to the proven misconduct.
6. From the above, it is seen that the applicant has been charged with not taking any effective action to stop unauthorized construction but in the appellate order, it has been stated that he has not performed his duties of detecting the unauthorized construction.
7. With the above observation, we remand this matter to the Disciplinary Authority to decide it afresh in accordance with rules and law within a period of three months from the date of receipt a copy of this order. We also feel that impugned orders dated 17.12.2009 and 19.01.2011 passed by the respondents cannot be sustained and, therefore, are quashed and set aside. The OA is accordingly disposed off. No costs.
(Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) /jk/