Central Administrative Tribunal - Delhi
M.M. Dahiya vs Municipal Corporation Of Delhi on 26 March, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI T.A. NO.23/2009 with T.A. NO.1/2009 T.A. NO.21/2009 T.A. NO.37/2009 T.A. NO.40/2009 T.A. NO.41/2009 T.A. NO.42/2009 T.A. NO.43/2009 T.A. NO.45/2009 T.A. NO.46/2009 T.A. NO.68/2009 T.A. NO.80/2009 T.A. NO.81/2009 This the 26th day of March, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI SHAILENDRA PANDEY, MEMBER (A) TA No. 23/2009 M.M. Dahiya R/o 56, First Floor, Nav Jivan Vihar, New Delhi 110 017. Applicant Versus 1. Municipal Corporation of Delhi, Through the Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 2. The Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 3. The Lt. Governor, Govt. of NCT of Delhi, Raj Niwas, Civil Lines, Delhi. 4. Municipal Corporation of Delhi, Through Municipal Secretary, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. Respondents TA No. 1/2009 Vijay Kumar Kadyan R/o B-418, Meera Bagh, Paschin Vihar, New Delhi 110 063. Applicant Versus 1. Municipal Corporation of Delhi, Through the Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 2. The Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 3. The Lt. Governor, Govt. of NCT of Delhi, Raj Niwas, Civil Lines, Delhi. 4. Municipal Corporation of Delhi, Through Municipal Secretary, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. Respondents TA No. 21/2009 R.K. Bhattacharya, 1485, Outram Lines, Guru Teg Bahadur Nagar, Delhi 110 009. Applicant Versus 1. Municipal Corporation of Delhi, Through the Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 2. The Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 3. The Lt. Governor, Govt. of NCT of Delhi, Raj Niwas, Civil Lines, Delhi. 4. Municipal Corporation of Delhi, Through Municipal Secretary, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. Respondents TA No. 37/2009 R.P. Dabas, S/o Sh. Ishwar Singh Dabas, R/o 4-D, Madhur Apartments, Near Mianwali Nagar, Paschim Vihar, New Delhi 110 087. Applicant Versus 1. Municipal Corporation of Delhi, Through its Commissioner, Town Hall, Chandni Chowk, Delhi 110 006. 2. Lt. Governor of Delhi, (Appellate Authority) Raj Niwas Marg, Delhi. Respondents TA No. 40/2009 S.L. Meena S/o Sh. Devi Lal Meena, R/o 273, Neelkanth Apartment, Sector-XIII, Delhi- 110 085. Applicant Versus 1. Municipal Corporation of Delhi, Through its Commissioner, Town Hall, Chandni Chowk, Delhi 110 006. 2. Lt. Governor of Delhi, (Appellate Authority) Raj Niwas Marg, Delhi. Respondents TA No. 41/2009 R.B.S. Bansal R/o 103, Shrestha Vihar, Delhi 110 092. Applicant Versus 1. Municipal Corporation of Delhi, Through its Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 2. The Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006 3. The Lt. Governor, Government of NCT of Delhi, Raj Niwas, Civil Lines, Delhi. Respondents TA No. 42/2009 R.K. Gupta, 137, Savita Vihr, Delhi 110 092. Applicant Versus 1. Municipal Corporation of Delhi, Through its Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 2. The Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006 3. The Lt. Governor, Government of NCT of Delhi, Raj Niwas, Civil Lines, Delhi. Respondents TA No. 43/2009 Nazrul Islam S/o Sh. Ashfq Ahmed, R/o A-30A, Abul Fazal Enclave-II, Okhla, New Delhi 110 025. Applicant Versus 1. Municipal Corporation of Delhi, Through its Commissioner, Town Hall, Chandni Chowk, Delhi 110 006. 2. Lt. Governor of Delhi, (Appellate Authority) Raj Niwas Marg, Delhi. Respondents TA No. 45/2009 Birj Pal Singh, S/o Shri Murari Lal, R/o C-3/58A, Yamuna Vihar, Delhi 110 053. Applicant Versus 1. Municipal Corporation of Delhi, Through its Commissioner, Town Hall, Chandni Chowk, Delhi 110 006. 2. Lt. Governor of Delhi, (Appellate Authority) Raj Niwas Marg, Delhi. Respondents TA No. 46/2009 B.B. Jaiswal, S/o Sh. Jagdish Prasad, R/o 95, Pocket-E, Mayur Vihar, Phase-II, Delhi 110 091. Applicant Versus 1. Municipal Corporation of Delhi, Through its Commissioner, Town Hall, Chandni Chowk, Delhi 110 006. 2. Lt. Governor of Delhi, (Appellate Authority) Raj Niwas Marg, Delhi. Respondents TA No. 68/2009 Mohd. Ilyas, B-12, Azad Apartment, Plot No. 111, I.P.Extension, Delhi 110 092. Applicant Versus 1. Municipal Corporation of Delhi, Through the Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 2. The Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 3. The Lt. Governor, Govt. of NCT of Delhi, Raj Niwas, Civil Lines, Delhi. 4. Municipal Corporation of Delhi, Through Municipal Secretary, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. Respondents TA No. 80/2009 R.K. Jain, Sh. Panna Lal Jain, E-84, Preet Vihar, Delhi 110 092. Applicant Versus 1. Municipal Corporation of Delhi, Through the Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 2. The Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 3. The Lt. Governor, Govt. of NCT of Delhi, Raj Niwas, Civil Lines, Delhi. 4. Municipal Corporation of Delhi, Through Municipal Secretary, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. Respondents TA No. 81/2009 Sh. A.C. Garg, 4221, Gali Ahiran, Pahari Dhiraj, Delhi 110 006. Applicant Versus 1. Municipal Corporation of Delhi, Through the Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 2. The Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. 3. The Lt. Governor, Govt. of NCT of Delhi, Raj Niwas, Civil Lines, Delhi. 4. Municipal Corporation of Delhi, Through Municipal Secretary, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 110 006. Respondents Present:- Shri Anil Grover and Sh. R.K. Garg, counsel for applicants in TA Nos.23, 21, 41, 42, 68, 80 and 81 of 2009. Sh. Sumit Bansal and Sh. Manish, counsel for the applicants in TA Nos. 37, 40, 43, 45 and 46 of 2009. Shri Amit Paul with Sh. Parveen Swarup, counsel for respondents in all the TAs. O R D E R Justice V. K. Bali, Chairman:
Kalyan Sanstha Social Welfare Organization, by way of public interest litigation, filed WP (C) No.4582/2003 in the Honble Delhi High Court, complaining about mass-scale unauthorized construction in Delhi. During the course of hearing of the aforesaid writ petition, the High Court observed in its various orders to be referred hereinafter in detail, that such unauthorized construction could not be possible without the connivance of officials of Municipal Corporation of Delhi (MCD). Successive orders passed by the High Court on different dates, i.e., 30.11.2005, 6.12.2005, 14.12.2005, 18.1.2006, 16.2.2006 and 23.3.2006, coupled with some other events, resulted into mass dismissal of Executive Engineers, resorting to provisions of Section 95 (2) (b) of the Delhi Municipal Corporation Act, 1957 (hereinafter to be referred as the DMC Act) and Regulation 9 (ii) of the DMC Services (Control & Appeal) Regulations, 1959 (hereinafter to be referred as the Regulations of 1959), as also Article 311 of the Constitution of India, by dispensing with holding of any enquiry. The orders of dismissal dated 7.4.2006 passed against 17 Executive Engineers one of whom, it is stated during the course of arguments, committed suicide, whereas other had even before passing of the orders superannuated are similarly worded. In appeal filed against the order aforesaid, the Lt. Governor, the appellate authority, has reduced the penalty of dismissal from service to that of compulsory retirement, vide order dated 3.4.2007. Thirteen out of the 17 Executive Engineers filed various writ petitions before the High Court of Delhi, which, by virtue of provisions of Section 29 (2) of the Administrative Tribunals Act, 1985, have come to be transferred to this Tribunal. Since all the Transferred Applications (TAs) involve common questions of law and facts, we propose to dispose of the same by present common order. This is what precisely has been suggested by learned counsel representing the parties as well. The facts for facility of reference have been extracted from TA No.23/2009 in the matter of M. M. Dahiya v Municipal Corporation of Delhi & Others. The primary question that has been posed for adjudication is as to whether reasons for dispensing with the enquiry, thus having resort to provisions of Section 95(2)(b) of DMC Act, Regulation 9(ii) of the Regulations of 1959 and Art. 311 of the Constitution, are justified. With a view to determine the primary controversy as mentioned above, the facts leading to filing of the TA would need necessary mention.
2. Before we may refer to the pleadings of the parties, it would be appropriate to refer to the impugned order dated 7.4.2006 passed by the Commissioner, MCD, as also order dated 3.4.2007 passed by the appellate authority, as the contentions raised by the learned counsel representing the parties can be better appreciated, as they primarily emanate from the said orders. In the impugned order dated 7.4.2006 passed by Commissioner, MCD, it is noted that in compliance of directions of the Honble High Court of Delhi in WP (C) No.4582/2003 Kalyan Sanstha Social Welfare Organization Vs. Union of India & Others, the entire record was scrutinized and the same was placed before Commissioner, MCD, who, by invoking the provisions of the DMC Act, Regulations of 1959 and the Constitution of India, as mentioned above, inflicted penalty of dismissal from service. It is then noted that the applicant had worked as Executive Engineer, Central Zone during the period 1.3.2002 to 31.5.2005, and that while working as such, was duty bound to get stopped/demolished the unauthorized construction carried out in the area/zone, as per provisions of the DMC Act, and was also to maintain/get maintained construction watch register/supervise the entire construction carried out in his area/zone, as also to take action against misuser of properties resulting into large-scale commercialization of the area. Mention is then of the MCD filing a list of total 18299 properties which were booked for unauthorized construction during the period from January, 2001 to December, 2005, in the PIL aforesaid. It is further mentioned that records of properties booked for unauthorized construction, list of which had been filed in the court, was scrutinized, and that from perusal of records, it would be clear that total of 1698 properties were booked for unauthorized construction pertaining to the working tenure of the applicant as Executive Engineer (Central Zone), and further that it was not in dispute that large number of buildings had been allowed commercial user in violation of the sanctioned use without following due process of law, resulting into large scale commercialization in the area. It is then noted that the applicant being the Executive Engineer of the Zone for over one year, was primarily responsible for not taking action as per provisions of the DMC Act with mala fide intention, which established his connivance with owners/builders. It is further noted that the applicant failed in maintaining the standard of integrity, and that he not only failed in his duties as a team leader, but also betrayed the confidence of his seniors reposed in him by not taking action against the unauthorized construction and allowing large-scale commercialization of the zone. It is then noted that in large number of cases the unauthorized construction had not even been booked which would make it much more difficult to hold inquiry with regard to such lapses, and that the conduct of the applicant in allowing mushrooming of unauthorized construction and not taking action as per the provisions of the Act and further allowing misuse of properties from sanctioned use or from residential to commercial would be unbecoming of a municipal employee. For arriving at the conclusion for dispensing with the enquiry, various orders of the High Court that were passed from time to time in the PIL aforesaid, have also been relied upon.
3. The applicant against the order dated 7.4.2006 filed an appeal, which came to be dismissed by the Lt. Governor on 3.4.2007. In paragraph 2 of the order, mention is of orders passed by the High Court on 18.1.2006, 16.2.2006 and 23.3.2006, as per which, it is noted, the MCD had scrutinized the records of properties booked for unauthorized constructions. Mention then is of 1698 properties booked for unauthorized construction during the tenure of the applicant w.e.f. 1.3.2002 to 31.5.2005. The applicant, it is observed, was found responsible for not taking action in accordance with the provisions of the DMC Act to check mushrooming of unauthorized constructions and allowing large-scale commercialization in the area by mis-utilization of the sanctioned use of properties, in order to serve his mala fide intentions in connivance with the owner/builder of such buildings. Mention is then of the order passed by the disciplinary authority. The appellate authority has then mentioned some grounds of appeal taken by the applicant in his memorandum of appeal. In paragraph 6, it is, however, mentioned that during the course of hearing given to the applicant, the following issues were pressed:
(i) that the impugned order has been issued without issuing a show cause notice and holding a regular inquiry.
(ii) that the Commissioner, MCD is not competent to be the Disciplinary Authority in his case as per Regulation 7 of DMC Service (Control & Appeal) Regulations 1959. The points raised were then dealt with and rejected by observing as follows:
(ii) Further, in view of the Section 95(3) of DMC Act providing that if any question arises whether it is reasonably practicable to give to any officer or other employee an opportunity of showing cause under sub-section (2), the decision thereon of the authority empowered to remove or dismiss such officer or other employee shall be final, as such the question of responsibility of not holding inquiry cannot be agitated or considered at this stage.
(iii) Regarding the question raised by the appellant over the competency of Commissioner, MCD in passing the impugned order, I find that as per the Section 59(d) of DMC Act stipulated that subject to any regulations that may be made in this behalf, Commissioner shall be disciplinary authority in relation to all municipal officers and other municipal employees r/w Section 92(1) of the DMC Act (substituted w.e.f. 01.10.1993), providing that .the powers of appointing the Municipal Officers and other Municipal employees whether temporary or permanent shall vest with the Commissioner, MCD. Thus it is established that the appointing Authority is the Commissioner, MCD. He has inherent powers to act as Disciplinary Authority and thus fully competent to order the appellants dismissal. Owing to the same reasons, I heard the present appeal. In paragraph 8 it has been mentioned that the applicant utterly failed to check the unauthorized constructions and large-scale commercialization of the area in his zone. Paragraph 8 reads as follows:
8. I have gone through the observations of Commissioner, MCD in the impugned order dated 07.04.2006, the averments made by the appellant in his written appeal and during the personal hearing granted to him a per his request and the relevant facts and records of the case. I find that the appellant utterly failed to check the unauthorized constructions and large-scale commercialization of the area in his Zone. The plea of shortage of staff, non-availability of skilled workforce and proper equipments, non-availability of police force is only an excuse to cover his misconduct and dereliction to duty. While, however, considering the quantum of punishment, in paragraph 9, the appellate authority observed as follows:
9. Considering the above facts and circumstances of the case, the provisions of DMC Act, DMC Services (Control & Appeal) Regulations 1959 and the nature of misconduct committed by the appellant, I am of the considered opinion that the penalty so imposed upon the appellant is not proportionate to the gravity of his misconduct. The appellant, although failed in his duties, which resulted in large scale unauthorized construction and commercialization, cannot be held solely responsible for the same. I, therefore, feel that the ends of justice would be met if the penalty of dismissal from service imposed upon him vide the impugned order dated 07.04.2006 is reduced to that of compulsory retirement. I order accordingly
4. Inasmuch as, the primary reason, of course, in addition to the reasons mentioned above for showing the applicant exit door are the High Court orders issued in the PIL aforesaid, it would be necessary to make a mention of the same. Before we may advert to the orders, we may mention that all the orders are interim and further that the main issue in the PIL was massive unauthorized construction in Delhi. In its order dated 9.11.2005 in WP (C) No.15397-98 of 2004, the Honble High Court observed that unauthorized construction had gone unabated, and in spite of court monitoring unauthorized construction in residential areas, no efforts had been made by the MCD to check the same. It has further been observed that as a matter of fact, for the MCD authorities it is a lucrative business. It is also observed that until and unless serious action is taken and major penalty imposed, the unauthorized construction would remain rampant. Executive Engineer of the area concerned along with Assistant Engineer as well as Junior Engineer, it is observed, are persons mostly responsible for unauthorized construction in each and every zone of the MCD. Additional Commissioner (Engineer), Additional Commissioner (Establishment) were ordered to remain present in the court on the next date of hearing with complete chart of transfers and postings of Executive Engineers, Assistant Engineers and Junior Engineers in all the zones of MCD so that appropriate action be initiated against those under whose jurisdiction unauthorized construction has gone unabated. The matter was ordered to be notified on 30.11.2005. On the date aforesaid, while making mention of its order dated 9.11.2005, the High Court proceeded to note that Mr. Kutty, Additional Commissioner (Engineering) MCD was present in court, and he had placed on record the details asked for by the court, according to which, during the years 2001 to 2005 there were 2765, 4385, 3749, 4466 and 2934 cases respectively of unauthorized construction, making a total of 18299. The Court noted the steep rise in unauthorized construction each year, and expressed surprise that in spite of action taken by courts and in spite of the paraphernalia available with MCD, unauthorized constructions have gone unabated. From the facts as mentioned above, the Court observed that it would show that the officials of MCD are hand-in-glove with those who indulge in unauthorized constructions and that without their active or passive connivance, it was not possible for such mushrooming of unauthorized constructions in the capital of the country. The Court also noted the role of Station House Officers of the area concerned to be dubious and questionable. It was observed that primary responsibility of unauthorized construction though vests in the Engineering Department of MCD, but the SHO concerned cannot take the plea that no cognizance can be taken by him for an unauthorized construction which is being carried out by any person falling within his area. A direction then came to be issued to Mr. Kutty to fix responsibility of concerned Engineers and other officials who allowed or took no notice of unauthorized construction in relation to the admitted figure of 18299, and initiate action of major penalty against all such persons who are found guilty of having abated or in any manner connived with those who indulge in unauthorized construction. Report in that regard was to be filed in the Court by the next date of hearing. Other observations made in the order may not be relevant for the purpose of deciding the present case. On 6.12.2005, while giving reference of its order dated 30.11.2005 with regard to taking of major penalty proceedings against the concerned officials, the High Court noted the tardy progress in the matter of demolition of illegal constructions. Some directions in regard to issue of unauthorized construction were given. In the order dated 14.12.2005 observations are with regard to the real issue and some directions in the light of observations made in that context have been issued. In the order dated 18.1.2006, in addition to the observations made with regard to the issue of unauthorized construction involved in the writ petition, the High Court also observed as follows:
With regard to the action taken against erring engineers and the officers of the MCD, it is stated in the Action Taken Report that 94 officials of the level of Junior Engineers and Assistant Engineers have been identified for major penalty proceedings. Since the MCD itself has booked over 18,000 properties as unauthorized and illegal, the same could not have come up without the active or passive connivance of the Junior Engineers, Assistant Engineers and Executive Engineers of all the Zones. We are, therefore, not inclined to accept that only 94 officials were involved in coming up of such unauthorized and illegal construction. We direct the Commissioner of MCD to identify all such engineers and other officials who were involved or abetted in the coming up of such constructions and initiate major penalty proceedings against them as well. Such an exercise would send message to all concerned that it is not the buildings alone which are being targeted but even the delinquent officials who were involved, connived or abetted in coming up of such buildings are being dealt with severely. These penalty proceedings should be time bound. We direct that the action for major penalty be taken against all delinquent officials within a period of two months from today. In the order, mention then is with regard to the real issue of illegal construction etc, which may not be relevant for purpose of deciding this Application. In the order dated 16.2.2006, insofar as, the controversy involved in the present case is concerned, it has been mentioned as follows:
It is not only Junior Engineers, Executive Engineers or Assistant Engineers, the responsibility is also of the Superintending Engineers and the Deputy Commissioners of the zone concerned. What action has been taken against the Deputy Commissioners or the Superintending Engineers by the MCD? Simply passing the buck on Junior Engineers and the Assistant Engineers and not taking action against the Deputy Commissioners, the Superintending Engineers will be making mockery of justice in this whole drama of unauthorized constructions which could not have taken place but for the active connivance of these officers. If the citizens of Delhi on account of their unauthorized action have to pay for demolition and loss occurred to them, then by no stretch of imagination these officers who have been instrumental in getting these unauthorized constructions done in spite of the fact that they were paid from public exchequer for keeping a vigil not to allow unauthorized constructions, have to face the consequences. In our last order we have made it very clear that the unauthorized construction could not have been possible but for the abetment of these persons who were responsible for checking the unauthorized constructions in spite of our directions. When a person is appointed to carry out a public duty in terms of statute and if it is found that statute has been violated in spite of putting the custodian on duty by providing funds from the public exchequer, the principle of audi alteram partem cannot be invoked by such delinquent persons. Those officers and engineers of the MCD who were involved or connived or abetted in the coming up of such buildings have to be dealt with severely. As in our last order we have granted two months time on 18.1.2006 and time will expire on 18.3.2006, we would like the Commissioner of MCD to submit the action taken report against all these officers. We are also not happy as to why only officers in the six zones have been identified. The MCD has got 12 zones. Mr. Chandhiok says that process to identify is on. Why this delay? It is open to naked eye as to who were responsible if the MCD look to their own register of posting and the unauthorized construction in the zones, no further evidence is required but still we are giving time till the next date of hearing to have these persons booked and action taken. Another strange thing is that these so called 94 engineers which have been identified are still continuing in the building department. Commissioner of MCD to submit a report as to why in spite of issuance of charge-sheet, they have been still retained in the building department. We do expect the Commissioner of MCD at least not to allow these coloured people to continue for a day in the MCD and they are still continuing with the building department. Why it has happened, under whose instructions and why this lapse? The affidavit of Commissioner of MCD be filed on the next date of hearing. In the last order dated 23.3.2006, out of the orders mentioned above, whether mention of the same has been made in the impugned orders or while placing reliance thereupon by the respondents during the course of arguments, it has been observed, insofar as the controversy in issue in present case is concerned, thus:
We appreciate the stand of Union of India in realising that but for the connivance on the part of the enforcement machinery for wrongful gain these violations could not have taken place. We also appreciate the desire of the Union of India to punish these delinquent officials with exemplary and deterrent punishment including launching of criminal prosecution apart from other major penalties of dismissal...
It is keeping in view the authoritative direction issued from time to time from 1990 till this matter was dealt by us, the Courts have been emphasizing that action has to be taken if Delhi has to get rid of unauthorized construction, erring officials, builders, influential and powerful people, who have promoted or have indulged in unauthorized construction. It seems that our direction has also not been taken too seriously. On January 18, 2006 we were told that the MCD has taken action against 95 officers who were Junior Engineers and very few Assistant Engineers. In our order dated 16.2.2006 we made reference to a circular of MCD which lays down that a Construction Watching Register has to be maintained and such a register is required to be filled by functionaries of MCD which are under an obligation to fill the same right from Junior Engineers up to the Deputy Commissioner. Nothing has been stated in the status report filed by MCD as to why the same has not been done. The status report is also silent about the action taken against the Deputy Commissioners downwards? Time has come when action has to be taken from the top to the bottom. Merely by punishing few Junior engineers, the persons who are at the helm of affairs cannot escape their responsibility. Furthermore, why action has been initiated only against engineers for the year 2001 when we had directed action to be taken against all those officers who have allowed unauthorized constructions from 2001 to 2005.
In our order dated 16.2.2006 we have categorically stated that it is not only the Junior Engineers, Executive Engineers or Assistant Engineers with whom the responsibility lies, it also lies with the Superintending Engineers and the Deputy Commissioners of the zone concerned and we had asked as to what action has been taken against the Deputy Commissioners or the Superintending Engineers by the MCD. Status report is totally silent about the same. We have been told that two Deputy Commissioners of Karol Bagh zone and Rohini zone were found wanting and, therefore, they have been repatriated. What a way to dealt with corrupt officers? Instead of taking any action against them they have simply been repatriated to their parent departments. Nothing has been brought on record as to the reasons for their repatriation nor the same has been communicated to their parent departments. Mr. Parasaran, Additional Solicitor General who is present on behalf of the Union of India says that action will be initiated by Union of India against those Deputy Commissioners who have been repatriated by the MCD on account of dereliction of duty.
We have time and again observed that if the citizens of Delhi because of the unauthorised constructions carried out by them have to face demolition and consequently suffer loss, we find no reason as to why those who allowed these unauthorized constructions to come in spite of the fact that they were suppose to keep a vigil and were to ensure that no unauthorized constructions came up, should be allowed to go scot free. We have no manner of doubt that unauthorized constructions could not have been possible but for the connivance and abetment of officials/officers who were responsible to check the same. We have also observed that a person put on a public duty if found violating the law or committing gross dereliction of duty cannot be allowed to continue on that duty and such person has no right to invoke the principle of audi alteram partem.
We are not satisfied with the way the MCD has dealt with the problem. We make it very clear that if MCD fails to carry out its statutory obligations under the Act, we will have to go for other options as prescribed under the MCD Act with regard to dealing with these delinquent officials. We also make it clear that if the MCD is not serious in taking actions and showing the door to these corrupt and delinquent officers, we will use other machinery for probe.
5. The facts projected in the Application reveal that the applicant has 21 years of unblemished service record. He is stated to have always stood for sincerity and hard work with full devotion and dedication and delivered results to the utmost satisfaction of his senior officers. His service record is outstanding and no memo was ever issued to him. During the tenure of the applicant as Executive Engineer (Building), total 1698 cases are stated to have been booked for unauthorized construction. It is the case of the applicant that properties are booked for unauthorized construction by the field staff as and when the unauthorized construction is either detected by them or on the basis of any complaints/reference or court case, and that booking is a first information report to be prepared by the Junior Engineer concerned at the site of unauthorized construction in a printed book duly numbered. The registration of FIR (booking) is stated to be the first step towards taking action against the unauthorized construction. As per provisions of the DMC Act, the Commissioner, MCD has to exercise his powers and discharge his functions as prescribed under Chapter XVI of the Act, which deals with the building regulations, under general superintendence, directions and control of the Central Government. It is pleaded that powers of Commissioner, MCD for taking action against the unauthorized construction can be invoked only after the unauthorized construction has been commenced, or is being carried out or has been completed, and that no action can be taken in anticipation of unauthorized construction. Under building bye laws for minor deviations, it is then pleaded, even no permission is required to be taken from MCD and the owner/builder is at liberty to deviate from the sanctioned building plan to the extent of permissible/compoundable limits. The validity of the sanctioned building plan was earlier two years, which has been stated to have been increased to five years. It is the case of the applicant that it is very difficult to take action against deviations during the period of validity of sanctioned building plan since often the argument is raised that the building is in the process of construction and the owner/builder is at liberty to make deviations during the validity period and the deviations, if any being carried out, are within the compoundable limits, and would be got compounded after the construction is over. It is further the case of the applicant that MCD is not having police powers to stop the unauthorized construction, and that for stopping the unauthorized construction, powers have been vested with the police under Section 344 of the DMC Act, and further that for taking any action against the unauthorized construction, assistance from local police is must, which on most of occasions is denied; furthermore, the MCD cannot take demolition or any other action as per its wish and desire, but being a statutory authority, has to follow the procedure prescribed under the Act for taking action against the unauthorized construction and utmost care is taken to ensure that the prescribed procedure is followed to avoid any undesirable litigation against the MCD and its officials for damages etc. The procedure for taking action against the unauthorized construction, as has been prescribed under the Act or rules framed thereunder, or by departmental instructions is stated to be as follows:
(i) Whenever any unauthorized construction is noticed by the Junior Engineer (Building) incharge of the area, he will prepare an F.I.R/ at the site of construction in a printed book duly numbered.
(ii) This filled F.I.R. is to be placed by the J.E. concerned to his next superior officer i.e. A.E. on the very same day for appropriate orders, to whom the powers under Section 343 and 344 have been delegated by the worthy Commissioner under Section 491 of the DMC Act.
(iii) A printed and numbered Show Cause Notice under section 344 (1) and section 343 is to be prepared by the Junior Engineer according to the orders of A.E. on the F.I.R. and the same shall be placed before the Assistant Engineer for his approval and signatures. Entry of the F.I.R. and notice shall be made by Office Incharge (O.I.) in the Misal Band register on the same day. The case number as entered in the Misal Band register shall also be recorded on the F.I.R. and as well as on the notices. This number forms an integral part of the number assigned to each of the files on unauthorized construction in the particular property number for all future references. The E.E. (Bldg.) of the zone has to ensure the closure of the said Misal Band register at the end of each day.
(iv) In cases of ongoing unauthorized construction, in addition to the action as stipulated in paragraph (iii) above, the J.E. prepares a requisition under section 344(2) of the DMC Act for the police intervention.
(v) A Show Cause Notice under section 344(1) and section 343 is to be served by the Junior Engineer under the signature of Assistant Engineer on Owner/Builder/Occupier.
(vi) After expiry of the period of Show Cause Notice served upon the Owner/Builder/ Occupier, Assistant Engineer has to issue order of demolition under section 343 of the DMC Act.
(vii) After expiry of stipulated period as mentioned in the order of demolition, formal speaking order for demolition is to be passed by the Assistant Engineer and file is sent to Office Incharge (O.I.) for demolition purposes as per laid down priority.
(viii) In cases of blatant unauthorized construction, action for sealing of the property may also be initiated under section 345-A of the Act. The power of sealing has been delegated by the Commissioner, MCD to the Deputy Commissioners of the Zones.
(ix) In case it is found that owner/builder is still continuing with the unauthorized construction of blatant nature a complaint is to be lodged with the concerned police station U/S 332/461 of the DMC Act, 1957 (as amended). The power for launching complaint has been delegated to the Deputy Commissioners of the Zones.
(x) The test checks to be applied by various officers in the Misal Band Register for unauthorized constructions are mentioned in Office Order No.458/Addl.CM.(E)/2001 dated 4th July, 2001.
(xi) After demolition action has been taken, demolition charges shall be recovered from the Owner/Builder/Occupier. MCD has been divided into twelve zones for administrative purposes. In each zone one Executive Engineer (Building) has been appointed and few powers of the Commissioner, MCD have been delegated upon them for purposes of supervising the building activities in their respective zones. The powers for stopping deposit of building material under Section 324, sealing the building in case of blatant unauthorized construction under Section 345A and initiating prosecution under Section 461, 466A or 467 have been delegated upon Executive Engineer (Building). Under Section 467, no court can proceed with the trial of any offence except on the complaint of Deputy Commissioner of higher officer of MCD. Even the powers of passing demolition order under Section 343 and sending intimation letters to police under Section 344 are to be exercised by the Assistant Engineer of the concerned area. It is the case of the applicant that the Executive Engineer (Building) of the zone cannot take any action in cases of unauthorized deposit of building material, sealing of unauthorized construction and prosecution of the offender for violation of various sections of the DMC Act, and that the Executive Engineer (Building) of the zone cannot be expected to exercise those powers which have not been conferred upon him for taking any action against the unauthorized construction. It is further the case of the applicant that from the impugned order dated 7.4.2006, it would be clear that during his tenure as Executive Engineer (Building) from 1.3.2002 to 31.5.2005, due to his efficient supervision and control over the field staff of the Building Department of Central Zone, 1698 actions against unauthorized construction were initiated, and that even though, in the impugned order it is mentioned that the records of the properties booked for unauthorized construction, a list of which has been filed in the Court, has been scrutinized, but the records of these 1698 cases booked for unauthorized construction have nowhere been discussed. Relevant and complete records of properties booked in these cases are stated not to have been placed before the Commissioner, MCD, and only the compiled number of bookings of unauthorized construction was placed. It is the case of the applicant that had all the records pertaining to action taken in pursuance to the booked unauthorized construction during his tenure been scrutinized and placed before the Commissioner, the following facts summarized in a tabular form, could have emerged from records:
Sl.No. Description of Action No. of action taken
1. Unauthorized construction detected and action initiated u/s 343/344 for demolition and stopping U/C 1698
2. Sealing proceedings u/s 345-A 754
3. Letters sent to police department u/s 344(2) and (3) for getting the unauthorized construction stopped 569 in respect of several properties as in one letter several properties were mentioned
4. Prosecution actions initiated u/s 332/461 for carrying out unauthorized construction 174
5. Prosecution actions initiated u/s 347/461 for misuse of the properties 196
6. No. of demolition/sealing action planned and fixed 882
7. No. of occasions on which police force was not made available 523 (60%)
8. No. of occasions on which police force was made available 359 (40% only) 9. No. of demolition action taken 628 10. No. of sealing action taken 230 From the facts as stated above, it is pleaded that during the tenure of the applicant requisite follow up actions were taken after unauthorized construction was detected and properties were booked for unauthorized construction, and that a relative comparison of actions taken by the applicant during his tenure with the period of six months prior to his joining and six months after his relieving as Executive Engineer (Building), Central Zone, would clearly show how efficiently he performed his duties and had taken massive demolition/sealing and other actions. It is further pleaded that during his tenure, 882 demolition/sealing actions were planned and fixed, but requisite police force was made available only on 359 occasions; on these 359 occasions, 628 demolition actions and 230 sealing actions were taken, which would show optimum utilization of the available police force; because of these actions, many owners/occupiers/builders of offending properties came forward to get their deviations compounded and bring their properties within compoundable limits; during his tenure as Executive Engineer of Central Zone, as many as 569 letters under Section 344(2) and (3) of the DMC Act involving several properties were written to the concerned police authorities for immediately stopping further unauthorized construction in such properties; and on many occasions, in one letter the information regarding several such properties was also given to the police authorities. Adequate police force, it is pleaded, is pre-requisite for taking demolition/sealing action against any unauthorized construction, and the requirement of police force for taking demolition/sealing action is for the reason that the owners/ occupiers/builders are always hostile to these actions and most of the time unruly and rowdy crowds gather which can be aggressive and violent to the municipal staff. In the past, it is then pleaded, MCD officials have suffered serious injuries on number of occasions while executing demolition/sealing action, and in one such incident an Assistant Engineer was pushed down from the roof of a building when he went there for taking demolition action, and on account of injuries sustained by him, he died. On number of occasions the MCD staff had to be hospitalized because of injuries caused to them by mobs/residents during implementation of action of demolition and sealing. It is further pleaded that during the tenure of the applicant, as many as 882 demolition/sealing actions, which included special programs fixed in pursuance of court directions, VIP references were planned and fixed and timely requisition for adequate police force was sent to concerned Deputy Commissioner of Police. Sample copies of letters aforesaid have been placed on records as Annexure A-2 (colly.). Deputy Commissioner of Police (HQ) vide letter dated 6.9.2002 addressed to Commissioner, MCD had highlighted difficulties in providing force for removal of encroachment/unauthorized construction on Friday and requested that no major demolition program be fixed on Fridays. Despite the applicants best efforts and timely requisitions, it is pleaded, the availability of requisite police force remained a major impediment in demolition/sealing of unauthorized construction, which would be evident from the fact that only on 367 occasions, requisite police force was provided against as many as 882 demolition programs fixed, and that time and again, the applicant brought this fact to notice of Deputy Commissioner of Central Zone for taking up the matter at appropriate level, and further that as a matter of fact, it is the applicant who apprised the High Court in the matter of New Friends House Building Society vs. DDA & Others regarding hammering of demolition/sealing action, owing to non-availability of requisite police force. Taking note of the prevailing circumstances, the Honble High Court called for discussion the heads of all law enforcing agencies in the court and accordingly a policy was framed for requisition of police force. As per the said policy circulated vide letter dated 27.3.2003, requisition for police force was to be sent to the concerned Deputy Commissioner of Police two months in advance. Therefore, requisitions were being sent by MCD to the concerned Deputy Commissioner of Police two months in advance by planning demolition/sealing actions. In case of emergency, the requisition could have been made seven days in advance, and under special circumstances, requisition of three days was to be sent. It is the case of the applicant that during his tenure, the Central Zone had strictly followed this policy and timely requisitions were sent, but situation remained the same and non-availability of requisite police force remained a major impediment in taking demolition/sealing action resulting in accumulation of backlog. The factum of non-availability of requisite police force was time and again brought to the notice of Commissioner, MCD through the concerned Deputy Commissioner. Non-availability of police force and concern of the applicant, it is stated, can be understood from letters dated 22.4.2003, 11.12.2003 and 18.1.2005 written by Deputy Commissioner, MCD at the instance of the applicant to Deputy Commissioner of Police, wherein it was mentioned that despite sending timely requisitions, availability of police force was very poor. Besides frequent non-availability of requisite police force, it is further stated, numerous other problems were being faced by the zone in taking demolition/sealing actions. It is stated that demolition/sealing actions are carried out with the help of demolition squad, which comprises of highly inadequate number of workforce and that too are unskilled and poorly equipped only with manual tools; available infrastructure comprised only one demolition squad, which could take action only at one place at a time; at the Central Zone level, the applicant was provided with very limited and out-dated machinery to carry out effective demolition, which aspect also, time and again, was brought to the notice of higher authorities and requests were made to strengthen and upgrade the demolition squad; considering the infrastructure inadequacy, it was often felt that proper infrastructure should be provided, as it was not feasible to accomplish the gigantic task of demolition of unauthorized construction without suitable and adequate tools and implements; even though, over the years construction activities considerably increased, requisite infrastructure has not kept pace enabling the department to keep required level of surveillance on construction activities. In addition to the difficulties as mentioned above, another difficulty was being faced at the time of taking demolition action. The applicant points out that the unauthorized construction against which demolition actions were to be taken was in the shape of deviations from sanctioned building plans beyond compoundable limits, which warranted action only against the unauthorized portions, without causing any damage to the authorized portions and the adjoining properties. Since such type of demolition actions could be taken only with the help of manual labour without involving bulldozers or JCBs, this process makes the demolition action very slow, and for taking action against one property, sufficiently long time is consumed, resulting in accumulation of backlog of properties booked under various provisions of the DMC Act for demolition actions. Commissioner, MCD vide office order dated 22.11.2000 prescribed various priorities for taking demolition action. As per the said office order, cases of unauthorized construction which have been dismissed/remanded from courts have been placed at the first priority. Furthermore, out of the same category in which demolition orders have been passed, last is to be demolished first, and with passage of time more and more court orders or VIP references are received which warrant time bound demolition action against properties, which otherwise do not fall within the priority list. In the meantime, new unauthorized construction is also detected, which warrants action earlier as per the priority fixed by Commissioner, MCD. Thus the routine action gets constrained and the property which at one point of time was high-up in priority for demolition, goes to a much lower position giving an impression that no action was ever planned to be taken against unauthorized construction against such property. The applicant has then detailed the monitoring mechanism being followed by various authorities regarding unauthorized construction, as follows:
(i) In compliance with the Office Order issued by the Commissioner, MCD the matters relating to unauthorized constructions and encroachments are being monitored on monthly basis by the Additional Commissioner (HQ) and reports compiled in this regard are being sent to the Commissioner, MCD and Government of NCT of Delhi/Raj Niwas.
(ii) Each Additional Commissioner of MCD is assigned the duties of supervisory control of the working of two Zones and they are bound to constantly review the day-to-day activities of the zone, including removal of unauthorized constructions at his level. Additional Commissioners of the concerned Zones have been entrusted with the duty of carrying out regular inspections in their respective Zones.
(iii) As per the directions of higher authorities, Monthly Action Taken Reports pertaining to removal of unauthorized construction are being sent regularly to Building Department (HQ). The Chief Engineer holding the charge of Building Department takes regular monthly meetings with the zonal superintending Engineer, Executive Engineer (Building) and other officials of the Building Department including the Building Headquarter to monitor the working of the Building Department, which includes the review of actions taken against the unauthorized construction and misuse of building premises.
(iv) The Commissioner, MCD also holds regular monthly meetings of all the Additional Commissioners, Chief Vigilance Officer, Chief Law Officer, Deputy Commissioners, etc. and in such meetings the issue pertaining to actions taken against the unauthorized construction/misuse is also taken up.
(v) The Special Task Force (STF) headed by Honble Lt. Governor, inter alia, also monitors the removal of unauthorized constructions and encroachments in Delhi.
(vi) There is District Task Force (DTF) also, headed by Deputy Commissioner (Revenue), Delhi Government, who also coordinates removal of unauthorized constructions and encroachments in their respective Districts on monthly basis.
(vii) Orders/instructions received from various Honble Courts from time to time are also compiled with and accordingly programs for removal of unauthorized constructions are prioritized and Action Plans as well as Action Taken Reports are filed in the courts after apprising/approval of the higher authorities.
6. From the facts as mentioned above, the applicant states that actions against unauthorized construction/misuse were being monitored at the highest levels and the demolition activities undertaken by the Zones, and difficulties faced by the zonal authorities were well within the knowledge of such authorities. Executive Engineers (Building) of the zones were not the only monitoring officers and actions against unauthorized construction, encroachments and misuse were well within the knowledge of Commissioner, Additional Commissioner, Deputy Commissioner, Chief Engineer holding charge of building department, as also Superintending Engineer of Central Zone. None of these authorities or any other officer had at any point of time found any dereliction of duty on the part of the applicant. Insofar as, allegations of permitting misuse of properties and not taking sealing action are concerned, the applicant pleads that vide judgment recorded by a Division Bench of the Honble High Court of Delhi way back in 1992, confirmed by a Full Bench of the same High Court vide judgment dated 31.5.2003 rendered in FAO (OS) No.292/1994 M/s Bajaj Departmental Store Pvt. Ltd. Vs. MCD, and some other writ petitions, as also in yet another batch of cases, like CS (OS) No.1037/2004 and CS (OS) No.1040/2004, it has been held that it would not be permissible for the MCD to resort to sealing on the ground of misuse. The observation to the effect aforesaid made by the High Court in CS (OS) No.1037 & 1040/2004 reads as follows:
On the issue of misuse, in view of the Full Bench decision of this Court reported as 2002 Vol. 99 DLT 401 Bajaj Departmental Store Vs. MCD, it would not be permissible for the MCD to resort to sealing on the ground of misuse. However, any other action available under the DMC Act, 1957 pertaining to misuse would be available to the MCD. MCD, it is stated, in view of the authoritative decision of the High Court, as mentioned above, was left with no powers to seal the properties being misused.
7. The applicant after making a mention of the procedure required to be adopted in sealing matters, his efforts in carrying out demolitions, insofar as it was his responsibility, difficulties faced by him and yet doing substantial work in the matter of demolitions, as also difficulty in sealing in view of judicial precedents, would explain all such facts and circumstances which have been taken into consideration in passing the impugned order dismissing him from service.
8. The applicant has filed an affidavit dated 14.3.2008, wherein it has been pleaded that during the pendency of the writ petition before the High Court, his counsel had sought the following information from MCD under provisions of the Right to Information Act, 2005:
1. Whether before passing dismissal order on 07.04.2006 by the Commissioner, Municipal Corporation of Delhi, in respect of Sh. M. M. Dahiya, Executive Engineer (Building), Central Zone, any information regarding maintenance of Construction Watch Register during the tenure of Sh. M. M. Dahiya, Executive Engineer (Building), was sought or received from the Central Zone of the Municipal Corporation of Delhi. If so, kindly provide copies of relevant papers/documents whereby such information was sought and received by the Commissioner, MCD.
2. Whether before passing the dismissal order dated 07.04.2006 in respect of Sh. M. M. Dahiya, Executive Engineer (Building), Central Zone, the Commissioner, MCD, sought any information regarding the properties which were unauthorisedly constructed during the tenure of Sh. M. M. Dahiya, Executive Engineer (Building), but were not booked for taking demolition action. If yet, kindly provide the relevant documents whereby such information was sought and received by the Commissioner, MCD from the Central Zone.
3. Whether before passing the dismissal order dated 07.04.2006 by Commissioner, MCD against Sh. M. M. Dahiya, Executive Engineer (Building), Central Zone, the information regarding actions for demolition and/or sealing taken during the tenure of Sh. M. M. Dahiya, Executive Engineer (Building) of Central Zone, was sought and received from the Central Zone of the MCD. If so, kindly provide all the relevant documents whereby such information was sought and received by the Commissioner, MCD. In reply to the issues as referred to above, the applicant got the following information:
1&2 As per record placed on file, in which Cm. MCD passed orders for dismissal of Sh. M.M.Dahiya, EE & others, there is no information reg. maintenance of C.W.R. as asked for and properties in which U/C were raised during the tenure of Sh. Dahiya, EE, but were not booked.
3. As per record, the data reg. U/C that were booked during the tenure of Sh. Dahiya, was considered before passing dismissal order. But, the record does not contain information regarding action for demolition or sealing taken during the tenure of Sh. Dahiya, EE(B).
9. We may advert to another significant feature of the case, which too has been highlighted during the course of arguments. In WP(C) No.4582/2003 in the matter of Kalyan Sanstha Social Welfare Organization (supra), respondents are stated to have filed an affidavit dated 17.4.2006, wherein it has inter alia been stated as follows:
4. In addition to the dismissal of senior officers, the Regular Departmental Action for Major Penalty against 178 Superintending Engineers, Executive Engineers, Assistant Engineers, etc., who have failed in the endeavour to restrict the violation of the Building Bye Laws have been undertaken by the Respondent Corporation. Out of 178 cases, inquiry has been completed in 151 cases and final orders have been issued in 96 cases. The Competent Authority has issued the punishment of Major Penalty to those Officers, who have been proved to have indulged in the acts of blatant violations resulting in mass Unauthorized Construction Activity by issuing the Reduction in Rank, Stoppage of Increments, etc. as quantum of punishments details are given in Annexure-2. In the Annexure-2 annexed with the affidavit dated 17.4.2008, it has been stated thus:
Sub.: Disciplinary action against the erring officials of MCD.
In pursuance of orders of the Honble High Court of Delhi on 30/11/2005 and subsequent order, the MCD has so far initiated 178 RDA proceedings against the officials so far. In first lot, 95 engineers were identified for having abetted and connived for allowing unauthorized construction of Delhi consisting of 59 JEs & 36 AEs. Further, 66 engineers were identified for having abetted and connived unauthorized construction in their respective zones consisting of 33 JEs, 21 AEs & 12 EEs. Further, the MCD has identified and initiated major penalty proceedings against 17 SEs who were found responsible for not taking sufficient action for preventing coming up of unauthorized construction in their respective zone during the period 2001-2005.
In addition, 17 Executive Engineers who worked in Bldg. Deptt. during the period 2001-2005 have been summarily dismissed from municipal service by invoking the provisions of Section 95(2) (b) of DMC Act.
Till date, inquiry proceedings have been completed in 96 cases and final orders have been issued. The Inquiry Report has also been finalized in 151 cases and orders of the disciplinary Authority are likely to be passed within few days in remaining cases.
Abstract of cases Total No. of RDA ordered 178 Enquiry completed in 151 Final orders issued in 96 Major penalty imposed 75 It is the case of the applicant that the charges against 66 engineers were that they were identified to have abetted and connived in unauthorized construction in their respective zones. On the basis of said charges, charge-sheets had been issued to the said officials. Major penalty imposed against some of the officials was in respect of stoppage of increments. It is further his case that the respondents have failed to appreciate that though the nature of charges leveled against the applicant was identical to charges leveled against the said Superintending Engineers, Assistant Engineers and Junior Engineers, but while the MCD had issued the charge-sheet to them and it was surprisingly found reasonably practicable to hold enquiry in their cases, it has not been explained as to how in the same circumstances holding of enquiry is not reasonably practicable in respect of the applicant. It is also pleaded that the vigilance department of MCD had issued various charge-sheets to Assistant Engineers and Junior Engineers in respect of these very 1698 properties, and enquiries had been conducted against the Assistant Engineers and Junior engineers by giving them opportunities to present their cases, and that almost all such officials had been exonerated by disciplinary authority either in the enquiry itself or by the Commissioner, MCD in appeals filed by them. It is further stated that had the applicant also been given a chance to defend himself in a fair and proper enquiry, he would have been cleared from all the charges, and that if the Assistant Engineers and Junior Engineers had not been held guilty, there was no question that the applicant would have been held guilty for the same charges. It is pleaded that primarily it was the responsibility of the Junior Engineers and Assistant Engineers to carry out demolition operations, but even if it may be said to be a case of joint and several responsibility, wherein Junior Engineers and Assistant Engineers had been cleared of the charges with regard to the same very bookings numbering 1698, there was no question that the applicant would have been held guilty.
10. As mentioned above, the applicant, besides the factual position given in the earlier part of the judgment, which, according to him would prove beyond doubt that he in fact had taken every action for demolition of illegal constructions, despite the difficulties faced by him, as also difficulty in sealing the properties in view of judgment of the High Court of Delhi, has further stated that while exercising powers of supervision over the field staff, he had given repeated instructions to take cognizance of misuse, wherever noticed, under respective areas of their jurisdiction and to invariably initiate actions under various relevant provisions of the Act. Sample copies of some relevant instructions dated 7.10.2002, 18.11.2002 and 21.2.2005 issued in this regard have been annexed with the Application as Annexure A/5 (colly.). It is the case of the applicant that due to his efficient supervision and control over the field staff during his tenure, 196 prosecution actions were initiated under Sections 347/461/467 of the DMC Act for misuse of properties and were sent to concerned authorities for filing appropriate proceedings before the court of competent jurisdiction. In the matter of prosecution under Sections 347/461/466A for misuse of properties, however, despite repeated persuasion follow-up action was not taken by the police authorities and the cases were permitted to be barred by time. This situation was also brought to notice of the police authorities by the applicant as also by the Deputy Commissioner, MCD. Regarding allegation of large number of buildings having been allowed commercial user in violation of the sanctioned use, it is the case of the applicant that he had not allowed any building to be used for commercial activities in violation of law; on the contrary, repeated instructions were issued to the field staff to initiate action as per law against the misuse whenever and wherever noticed; and that this allegation is based on assumptions and presumptions without any evidence to that effect being placed on record before the Commissioner. Regarding the allegation that construction watch register was not being maintained in the zone, it is the case of the applicant that sincere efforts were made by him to ensure that the said register was maintained properly, and that though instructions for maintaining the register were issued in 2001, no such register was found to have been issued in the Central Zone when the applicant took over the charge on 1.3.2002, and further that after the applicant took over the charge, these registers were requisitioned by him from the municipal press, and that it was only due to his sincere efforts that the said registers were issued to all JEs working in building department of the zone vide letter dated 7.3.2002, issued in the very first week of his joining. Thereafter, vide circular dated 14.3.2002, AEs were directed to send copies of the sanctioned building plan to concerned JEs so that the details in respect thereof could be entered in the construction watch register. The applicant has given further details also of his effective and meaningful monitoring of important issues. It is also his case that his duties as Executive Engineer were administrative and supervisory in nature. However, while supervising his juniors, he was not vested with any power to take disciplinary action against them. The allegation made against the applicant that he was primarily responsible for not taking action as per provisions of the DMC Act is refuted. It is pleaded that the responsibility of Executive Engineer (Building) is to take action against such unauthorized constructions, which in the case of the applicant had been taken regularly. He stoutly denies the allegations of mala fides. In that connection, he refers to his unblemished, spotless and clean record spanned over a period of 21 years.
11. Pursuant to notice issued by the High Court, the respondents entered appearance and filed their written statement. By way of preliminary objection, it is pleaded that the impugned orders have been passed in compliance of court orders dated 30.11.2005, 18.1.2006 and 16.2.2006 in WP(C) No.4582/2003, and, therefore, remedy available to the applicant would have been to file appropriate appeal or review but instead, he has filed the present Application. While giving reference to the writ petition of Kalyan Sanstha Social Welfare Organization (supra) it has been averred that the High Court had expressed severe dismay over the large-scale unauthorized constructions that had come up in Delhi. The Court observed that the officers of MCD and its engineers were hand-in-glove with those who indulged in unauthorized construction and that without their active or passive connivance, such mushrooming of unauthorized construction in the capital of the country would not have been possible. It is stated that action was taken as per the orders passed by the High Court, and that the High Court had also directed the proceedings to be time bound. Mention is then made of the other orders passed by the High Court, reference whereof has already been made above. It is then stated that in compliance of the mandate of the High court, the matter was entrusted to vigilance department of MCD by the competent authority. They obtained tenures of EEs (Bldg.) who worked in different zones, number of buildings which had come up and booked during their tenure. It was revealed that total 18299 unauthorized constructions were booked by all 12 zones between the period 2001 to 2005 and the same has also been put on the website of MCD. It is further averred that the Executive Engineer is primarily responsible for taking necessary action against ongoing/booked properties, and that had timely deterrent action been taken against the same, no unauthorized construction would have come up in the zone, and that failure of the applicant to discharge his duties would be evident from the fact that effective actions were not taken against the unauthorized construction, and whatever action was planned/taken on paper, was never taken to its logical conclusion citing one reason or the other. It is pleaded that construction watch registers which were required to be maintained in respective zones in compliance of the orders of Additional Commissioner dated 28.8.2001 were also not maintained, and that the duty has been cast upon the Executive Engineer to get the entries made in the said register for effective monitoring of constructions activities in the zone, and further that since no construction watch register was maintained in the zone, apparently no checking was being done against the ongoing constructions in the zone. In addition, large-scale unauthorized constructions have been alleged to come up in whole of Delhi. Executive Engineers with minimum of one years continuous tenure in building department have been broadly identified and held prima facie responsible for unauthorized construction in their respective zone. Number of properties that have come up during their tenure have also been indicated to give a broad idea regarding the extent of unauthorized construction during their tenure. Following Executive Engineers have been identified who worked during the period 2001 to 2005:
S. No. Name of EE Period Zone No. of Prop.
1. Sh. Manohar Diwani 28.09.01 to Oct.02 City 143
2. Sh. B.P.singh 15.04.02 to 09.05.03 West 1612
3. Sh. Vijay Kadiyan 05.05.03 to 31.05.05 West 161
4. Sh. Naresh Gupta 18.04.02 to 06.05.03 K.B.Zone 701
5. Sh. R.K. Bhattacharya 07.05.03 to 07.09.05 K.B.Zone 1551
6. Sh. M.M.Dahiya 01.03.02 to 31.05.05 Central 1698
7. Sh. S.P.Gautam 12.05.01 to 31.10.02 Shah.South 284
8. Sh. RBS Bansal 09.05.03 to 09.08.04 Shah.South 305
9. Sh. R.K.Gupta 09.08.04 to 31.12.05 Shah.South 357
10. Sh. BB Jaiswal 28.10.02 to 27.10.03 South 567
11. Sh. RBS Bansal 09.08.04 to 01.12.05 South 446
12. Sh. Mohd. Ilyas 01.03.01 to 18.06.02 Rohini 403
13. Sh. SL Meena 01.11.02 to 19.02.04 N.G.Zone 241
14. Sh. RP Dabas 20.02.04 to 31.12.05 N.G.Zone 573
15. Sh. Piar Singh 01.01.01 to 30.10.02 Shah.North 160
16. Sh. RK Jain 30.10.02 to 17.08.04 Shah.North 545
17. Sh. SL Meena 18.08.04 to 07.09.05 Shah.North 493
18. Sh. Nazrul Islam 02.11.02 to 02.08.04 Civil Line 566
19. Sh. SRK Kochar 22.08.01 to 28.10.02 S.P.Zone 25
20. Sh. AC Garg 25.08.04 to 19.12.05 166 It is then pleaded that it is not possible to complete enquiry proceedings in a short time indicated by the Honble High Court and further it is not possible to have exact date of construction, for which no concrete evidence is available on record, but the fact remains that the unauthorized constructions have come up and remained unchecked without any effective punitive action being taken during their tenure, and, therefore, no further enquiry into exact culpability was required at that stage in view of the directions passed. Further, public interest warranted not to hold a full fledged enquiry in view of the material on record as the same was sufficient to warrant a view to be taken because of the reason that unauthorized buildings booked and inaction thereon was clearly identifiable matching the tenure of the persons who worked in the zone. It is further pleaded that it is well known fact that in a large number of cases, the unauthorized construction had not even been booked which made it much more difficult to hold enquiry with regard to such lapses, and that further enquiry would not have been practicable because of the apparent nexus between the beneficiary of unauthorized construction and the official concerned. In the light of material on records, vigilance department of MCD placed the matter before the Commissioner after obtaining necessary advice from the Chief Law Officer, and the Commissioner in his capacity of disciplinary authority, after considering the record passed detailed speaking order dated 7.4.2006 thereby imposing the penalty of dismissal from service. Mention is then of the appeal filed by the applicant which is stated to be dealt with in accordance with law. The contention of the applicant to the effect that he had only a peripheral role to play in checking mushrooming of unauthorized construction in the zone has been denied. It is rather stated that the organizational structure of the building department of MCD, which is responsible for initiating action against the unauthorized construction in the zone, is such that the entire supervisory responsibility for the said purpose in the zone would be placed on Executive Engineer (Building) with other officers functioning under him. There are some other preliminary objections, but as no argument thereupon has been advanced during the course of arguments, there would be no need to make a mention of the same.
12. In the reply on merits, what we find is that while giving para-wise reply, with regard to most of the paras of the Application, it is stated that the same are matter of record and anything contrary thereto would be false and thus denied. With regard to the procedure as mentioned by the applicant in paragraph 1 for booking unauthorized construction and taking action thereon, it is averred that the applicant has broadly outlined the procedure defined under the provisions of the DMC Act, however, he has failed to focus upon the relevant role of Executive Engineer (Building) in the zonal set up, and further that the officer of the rank of Executive engineer (Building) is head of department in charge of building regulations in the concerned zone, and he is entirely responsible for any unauthorized construction carried out in the area under his jurisdiction, being head of the building department of the zone. It is then averred that subordinate officials like AE (Building)/JE (Building) are under direct control and supervision of Executive Engineer (Building), who is also vested with the powers of allocation of area amongst the subordinates so as to ensure proper check and action against unauthorized constructions. Monthly schedule of demolition programmes are also exclusively drawn by EE (B), and in that process, he may consult OI (Bldg.) or any subordinate official. The main issue which was raised in the PIL aforesaid was regarding failure to initiate demolition action against the booked unauthorized construction wherein demolition orders were passed during the period 2001-2005. In the said context, it is averred, the role of EE (Bldg.) is pivotal but the applicant has conveniently concealed the same in the entire procedure outlined in the para under answer. Insofar as, the judicial precedents referred to by the applicant with regard to initiating sealing action against misuse of properties is concerned, it is stated that the same are irrelevant, and that it is not the case of the applicant that he brought his inability to seal the premises being misused to the notice of senior officers and sought their intervention so as to put him in an enabling position to take sealing action against them. It is averred that the applicant was duty bound to initiate action against even the misuse by lodging prosecution u/s 347/461 of the DMC Act, but he failed to do so, and that the main issue before the High Court in the PIL was the failure to initiate and take to its logical conclusion demolition action against unauthorized construction. Insofar as, the plea raised by the applicant with regard to maintaining of construction watch register is concerned, it is stated that the applicant being head of department of building department, was duty bound to ensure that the construction watch register was properly maintained by subordinate JEs/AEs, since there was a provision of 20% test checking of the entries made in such register by the applicant himself. It is stated that the applicant could not make out even a single case of complete demolition action taken in respect of any property of his zone, which was outstanding for demolition during the check period, i.e., 2001 to 2005, and was sub judice in the PIL aforesaid, and hence the figures on action taken as projected by the applicant are without any cogent/tangible evidence vis-`-vis the end result at the site. It is averred that other than giving one excuse or the other for not carrying out demolition, the applicant has conveniently chosen to put the blame on other authorities. No separate reply with regard to the grounds taken by the applicant in the Application has been given. In fact, one paragraph has been thought over to be sufficient for replying all the grounds A-Z, AA-KK & H-I, joint reply whereof reads as follows:
That in regard to grounds raised by the petitioner like non-issue of show cause notice, non-holding of inquiry, the order not being passed by the Disciplinary Authority, non-appreciation of duties of the petitioner etc. are not maintainable in the light of background of the case leading to imposition of the penalty as detailed out in the introductory paragraphs, as well as in the orders of disciplinary authority dt. 07.04.06, the contents of which are reiterated in support of specific denial of these grounds. However, these grounds are legally not maintainable in view of the peculiar facts and circumstances in the present case. It is significant to mention that there is no reply whatsoever with regard to factual position and the contentions raised thereon, as taken in grounds (g) and (w) pertaining to action taken against others with the result mentioned therein, or not taken against others, fully detailed above, while giving narration of facts as projected in the Application.
13. The applicant has filed a rejoinder to the written statement filed on behalf of the respondents, wherein the various pleas in the preliminary objections raised by the respondents have been controverted. It is stated that the Honble High Court has passed orders for taking disciplinary action against the erring officials who were found to have abetted or connived in unauthorized construction by unscrupulous builders. Vide order dated 18.1.2006 two months time was granted to the MCD for completing the enquiry and disciplinary proceedings by 17.3.2006. It is the case of the applicant that the High Court had never directed the MCD or the Commissioner to take any action against the officials who were not found wanting in their responsibilities. In compliance with the directions passed by the High Court, various authorities in the MCD conducted enquiries and disciplinary proceedings against various officials including JEs(B), AEs(B), EEs(B) and Superintending Engineers in accordance with the Regulations by giving them chance to defend themselves and the procedure as contemplated under the Regulations was followed. Nothing has been explained in the order as to what happened suddenly which warranted immediate disciplinary action of dismissal from service. It is the case of the applicant that the High Court never passed any order for dispensing with the departmental enquiries and for terminating services of the applicant and that too without finding and ascertaining the guilt, and that had there been any such directions, no enquiry would have been necessary against any of the officials of MCD posted in or looking after the work of the building department; if the High Court had directed for termination of services without conducting enquiries and giving any chance to anybody to defend himself, why were enquiries conducted against 178 SEs, EEs, AEs and JEs. It is further the case of the applicant that though the High Court gave two months time to the respondents to find the erring officials and take disciplinary action against them, but the records of MCD would reveal that the entire exercise for terminating services of 17 Executive Engineers was completed merely within ten days under the apprehension that the Court would not be satisfied in less than the dismissal of the engineers without enquiry, and if the services of the applicant were not terminated without conducting enquiry, the Court would pass severe strictures against the vigilance department of MCD. It is pleaded that the applicant was not a party to the said PIL, and for that reason as well the orders passed by the High Court were not applicable in his case, and further the MCD has not brought all the facts regarding functioning of the applicant and the actions taken by the building department of central zone during his tenure, during which almost everyday demolition/sealing actions were planned and taken whenever police assistance was made available. There would be no need to give further details of the contents of the rejoinder as by and large, while controverting the averments made in the written statement the ones taken in the Application have been reiterated.
14. The only other aspect of the case on which also there is a controversy, and which would need a mention before we may advert to the rival contentions of learned counsel representing the parties, would pertain to the procedure prescribed under rules/instructions for booking the properties and for demolition, as also the officers who are involved in the aforesaid process. Order of demolition and stoppage of buildings and works in certain cases has been provided in Section 343 of the DMC Act. It is the case of the applicant that the properties are first booked for unauthorized construction by the field staff as and when the same is either detected by the field staff or on the basis of any complaint/reference or court case. An FIR is prepared by the JE concerned at the site of unauthorized construction in the printed book duly numbered. That is the first step taken towards taking action against unauthorized construction. Under provisions of the DMC Act, the Commissioner, MCD has to exercise his powers and discharge his functions as prescribed under Chapter XVI of the Act, which deals with the building regulations under the general superintendence, directions and control of the Central Government. That indeed is so, as by virtue of provisions contained in Section 343 of the DMC Act, where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in Section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of the Act or bye-laws made thereunder, the Commissioner may, in addition to any other action that may be taken under the Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed. In the summary of the procedure emanating from the Act and instructions referred to in the earlier part of the judgment, it is the case of the applicant that the FIR should be prepared by the JE concerned and placed before the AE, who is his next superior on the same very day for appropriate orders, to whom powers under Section 343 and 344 have been delegated by the Commissioner under Section 491 of the Act; a printed and numbered show cause notice under Section 344(1) and Section 343 is to be prepared by the JE according to the orders of the AE on the FIR and the same is to be placed before the AE for approval; entry of the FIR and notices are to be made by the office incharge (OI) in the misal band register on the same day, and the case number as entered in the misal band is also to be recorded on the FIR as well as on the notices; the EE (B) of the zone has to ensure the closure of the said misal band register at the end of each day. With regard to ongoing unauthorized construction, the JE prepares a requisition under Section 344(2) for police intervention. A show cause notice is then issued under section 344(1) and Section 343, to be served by the JE under signatures of the AE on the owner/builder/occupier. After expiry of the stipulated period as mentioned in the order of demolition, formal speaking order for demolition is to be passed by the AE and the file is sent to OI for demolition purposes. In cases of blatant unauthorized construction, action for sealing of the property can also be initiated under Section 345-A. The power of sealing has been delegated by the Commissioner to the Deputy Commissioners of the zones. In case it is found that owner/builder is still continuing with the unauthorized construction of blatant nature, a complaint is to be lodged with the concerned police station u/s 332/461 of the DMC Act. Power of lodging complaint has been delegated to the Deputy Commissioners of the zones. The last checks to be applied by various officers in the missal band register for unauthorized construction are mentioned in office order dated 4.7.2001. It is the positive case of the applicant that EE (B) cannot exercise such powers which have not been conferred upon him. The respondents, without denying the procedure as given in detail by the applicant, would, however, plead that the EE (B) is the head of department in charge of building regulations in the concerned zone and he is entirely responsible for any unauthorized construction carried out in area under his jurisdiction, and further that the subordinate officials like AE (B)/JE(B) are under direct control and supervision of EE(B), who is also vested with the powers of allocation of area amongst his subordinates so as to ensure proper check and action against unauthorized constructions. Monthly schedule of demolition programmes are stated to be exclusively drawn by EE(B), and in that process he may consult OI (Bldg.) or any other subordinate official. The issue raised in the PIL was regarding failure to initiate demolition action against the booked unauthorized construction wherein demolition orders were passed during the period 2001 to 2005, and in the said context the role of EE (Bldg.) is stated to be pivotal. We have not been shown any specific rules dealing with construction or sealing, from where it may be spelled out that the pivotal role in the matter of demolition of unauthorized construction is that of the EE (B). Any head of department that may go wrong in the department, may always be morally responsible, as surely being the head of department, overall supervision may vest with him, but from that alone, it cannot be said that he is directly responsible for any lapse that may happen in the department. In the matter of demolition of illegal construction, the responsibility may be joint and several as well, but from that also it cannot be said that the role of EE(B) even though, he may be the head of department of the building department, would be pivotal. To illustrate, if the concerned JE or AE may not even book an unauthorized construction, the matter may not proceed any further. Insofar as, booking the properties and passing orders for demolition are concerned, it does not appear from the material placed before us that the EE(B) may be directly responsible for the same. In fact, in the matter of booking, issuing notices and passing orders, it appears, he has no role to play. His role may be in supervising demolition of the illegal constructions but from that alone it cannot be said that his role is pivotal in the matter of demolition of illegal construction. We may mention at this stage that the respondents for the plea as raised by them, as noted above, have relied upon instructions Annexure-E, which is an order dated 2.6.1997. Vide the order aforesaid it has been directed by the Commissioner in exercise of powers vested in him u/s 491 DMC Act, that the powers conferred on him under various Sections of the Act, as mentioned in column 1 of the schedule given thereunder, shall subject to his overall supervision, control and review, be also exercised by the officers mentioned in column 3, to the extent indicated in column 4 of the schedule. In column 1 of the schedule, against the scope of powers u/s 343, mention is of power with regard to order of demolition and stoppage of building and works in certain cases and appeal. In column 3, the officers to whom the powers have been delegated are mentioned as all Deputy Municipal Commissioners/Superintending Engineers of the zones, all Executive Engineers (Building), and all Assistant Engineers of zones. Insofar as Section 345A dealing with powers to seal unauthorized construction is concerned, such powers have been delegated to all Deputy Municipal Commissioners. The power of removal of dangerous buildings, as per provisions of Section 348, has been delegated to all Executive Engineers, but we may mention here that the power is with regard to removal of dangerous buildings and not of unauthorized construction. Insofar as, thus the power of demolition and stoppage of buildings and works in certain cases is concerned, the same has not been delegated to Executive Engineer (Building) alone. The same has also been delegated to all Deputy Municipal Commissioners/Superintending Engineers and all Assistant Engineers (Building) as well. It is significant to mention at this stage that even though, the Lt. Governor may have found no merit in the appeal of the applicant, but one thing that was accepted and so held, was that it was a case of joint and several responsibility. It is in consideration of that fact only that the punishment of dismissal from service of the applicant was converted to that of compulsory retirement. We may only mention at this stage that we are not giving any conclusive finding with regard to the conflicting stands of the parties with regard to the extent of role played by Executive Engineer (Building) in the matter of demolition of unauthorized constructions. That may be gone into, if we may ultimately hold that the impugned order cannot sustain and the department in any case, would be at liberty to proceed against the applicant in a regular departmental enquiry. Our observations as made above are on the basis of material placed before us and should not be construed as an expression of our final opinion. All that we say is that, at best, it was a moot point and could not be held to be conclusive, as either said in the impugned orders or in the counter reply filed on behalf of the respondents.
15. During the course of hearing, the learned counsel representing the applicant has, however, concentrated on some of several issues raised in the Application. In the context, it is first urged by him that once, the respondents themselves proceeded for regular departmental enquiry against number of Junior Engineers and Assistant Engineers, wherein the charges were exactly the same as were against the applicant, there could be no reason to hold that enquiry, insofar as the applicant and other Executive Engineers are concerned, was not practicable. The next plea raised by the learned counsel is that assuming it that the respondent MCD felt bound by some observations made in the interim orders passed by the High Court to the effect that a person put on a public duty if found violating the law or committing gross dereliction of duty, cannot be allowed to continue on that duty and such person has no right to invoke the principle of audi alteram partem, and assuming that to be the law as well, there was no finding given in the impugned orders that the applicant alone by virtue of some specified provisions in the Act of 1957, rules framed thereunder, or even by any executive instructions, was the only person who was to book unauthorized constructions, issue notices against concerned parties, pass orders of demolition and carry out the demolition process either by himself or through his subordinates, or to supervise the demolition process, and that being so, the observation made by the High Court that the delinquent would have no right to invoke the principle of audi alteram partem would not be applicable. The next contention raised by the learned counsel is that the respondents have picked-up stray observations with regard to delinquent having no right to invoke the principle of audi alteram partem, without considering the reference and context in which such observations were made. In fact, the Honble High Court required the respondents to proceed against all concerned by way of regular departmental enquiry. The counsel also contends that some observations made in the interim orders without there being an issue and debate, would, at the most, be considered as sub silentio and per incuriam. The next and the last contention raised by the learned counsel is that in addition to the interim orders passed by the Honble High Court, the enquiry was dispensed with by holding the case to be of a sensitive nature involving public interest. It is urged that neither the matter with regard to action against the delinquents was a sensitive issue, nor the same involved any public interest. The counsel representing the respondents, per contra, would join issues with the counsel representing the applicant on his submissions as noted above.
16. We may mention at the very outset that it has gone unrebutted either in the pleadings or during the course of arguments that against number of JEs and AEs and some SEs also regular departmental enquiries were ordered. The respondents themselves filed an affidavit in the High Court wherein they clearly mentioned that in addition to dismissal of senior officers, regular departmental action for major penalty against 178 SEs, EEs, AEs etc., who had failed in their endeavour to restrict the violation of the building bye laws had been undertaken by the MCD, and out of 178 cases, inquiry had been completed in 151 cases and final orders issued on 96 cases. Along with the affidavit Annexure-2 was filed wherein it was mentioned that in the first lot, 95 engineers were identified for having abetted and connived for allowing unauthorized construction of Delhi, consisting of 59 JEs and 36 AEs, and further that 66 engineers were identified for having abetted and connived unauthorized construction in their respective zones, consisting of 33 JEs, 21 AEs and 12 EEs. The abstract of cases is given as, total number of regular departmental action ordered in 178 cases, enquiry completed in 151, final orders issued in 96 and major penalty imposed in 75 cases. It is the positive case of the applicant, as mentioned, not controverted, and therefore, admitted, that the major penalty against the officers found guilty as mentioned above, was only to the extent of stoppage of increments. With regard to 1698 properties booked for demolition, insofar as the role of the applicant is concerned, it is once again the positive case of the applicant, and once again not controverted by the respondents, that AEs and JEs were given opportunity to defend their cases in departmental enquiries and all of them have been exonerated by either of the authorities. In the context of the admitted facts as mentioned above, the significant question that arises is that if it was practical, possible or feasible to hold departmental proceedings against them, why it was not so in the case of the applicant. Could, in the facts and circumstances, as mentioned, the distinction between the applicant and those who were departmentally tried that the applicant being Executive Engineer (Building) had a pivotal role in the matter of demolition of illegal constructions, be justified?
17. We have given our serious thoughts to the conflicting stands taken by learned counsel representing the parties on the issue as mentioned above. We are of the considered view that if it was practical to hold departmental proceedings against Junior Engineers, Assistant Engineers and Superintending Engineers pertaining to the same very charges as alleged against the applicant, there was no impediment in the way of the respondents in resorting to departmental proceedings in the case of the applicant as well. It is significant to mention that during the course of arguments, to the plea raised by learned counsel for the applicant that if others facing the same charges were departmentally tried, there could be no earthly reason to deviate from the said procedure insofar as, the applicant is concerned, there is no reply except that the applicant in the matter of demolition of illegal constructions had a pivotal role to play. It is not denied that those who were departmentally tried also at least shared the responsibility in the matter of demolition of illegal constructions. A firm finding on the facts as mentioned above that can be given is that the only distinction sought to be made by the respondent MCD in adopting different procedures for its employees is wholly unjustified. If the respondents found it practicable to hold departmental proceedings against as many as 178, including officers junior and senior to the applicant, there was no difficult in resorting to the same procedure insofar as, the applicant is concerned. Even if it be admitted that the applicant being the Executive Engineer (Building) had a pivotal role to play in the matter of demolition of unauthorized constructions, at the most, it would make difference in the quantum of punishment and not in holding departmental proceedings with regard to others, and resorting to procedure for summary dismissal insofar as, the applicant is concerned. The respondents, it may be recalled, while opposing the cause of the applicant, have almost exclusively relied upon the interim orders passed by the Honble High Court from time to time, fully detailed above. From the said orders as well, no distinction between the case of the applicant and those who were departmentally proceeded can be made out. In fact, the role of all officers, be it Junior Engineers, Assistant Engineers, Executive Engineers, Superintendent Engineers, Deputy Commissioners and even SHO of the area concerned, came to be commented adversely in equal measures. No distinction whatsoever on that count has been made that may even remotely show that different treatment was to be meted out to the Executive Engineers.
18. The second contention of the learned counsel as noted above, is that be it in the order passed by the Commissioner, MCD or the Lt. Governor, no provision of the statute has been indicated which the applicant might have violated or transgressed. No doubt, it is mentioned that the applicant in his capacity as Executive Engineer was duty-bound to get stopped/demolished the unauthorized construction carried out in the area/zone, as per provisions of the DMC Act, but as mentioned above, no such provision has been mentioned in the orders. During the course of arguments, the counsel representing the respondents could not point towards any provision by virtue of which Executive Engineer may alone be responsible for stopping/demolishing the unauthorized constructions. It would be rather interesting to note that in the impugned order passed by the Commissioner, it is mentioned that the record of properties booked for unauthorized construction, list of which had been filed in the court, was scrutinized and from perusal of records, it would be clear that total of 1698 properties were booked for unauthorized construction pertaining to the working tenure of the applicant as Executive Engineer, and that it was not in dispute that large number of buildings had been allowed commercial user in violation of the sanctioned use without following due process of law. It is also mentioned that being the Executive Engineer of the zone, the applicant was primarily (emphasis supplied) responsible for not taking action as per provisions of the DMC Act with mala fide intentions. The order passed by the Lt. Governor is almost reproduction of the order passed by the Commissioner on the aspects as mentioned above. Insofar as, booking of unauthorized construction is concerned, it is proved on the basis of pleadings, fully detailed above, that the responsibility was exclusively of Junior Engineers, or at the most, Assistant Engineers. Notice to the party indulging in unauthorized construction had also not to be issued by the Executive Engineer. The order with regard to demolition was to be passed by the Assistant Engineer. At the most, the Executive Engineer was to supervise demolition of illegal constructions. Supervision of Executive Engineer does not appear to be a mandate of any statutory provision. It is the case of the respondents themselves that the organizational structure of the building department of MCD would make it clear that Executive Engineer (Building) is responsible for initiating action against unauthorized construction in the zone. Entire supervisory responsibility, it is further stated, would be placed upon Executive Engineer (Building) with other officials functioning under him. Surely, the organizational structure of the building department of MCD cannot take partake the character of the statute, even if it is accepted that entire supervisory responsibility may be of the Executive Engineer (Building). There is another facet of this aspect of the case, which would also need a necessary mention. It may be recalled that the applicant had sought information under the Right to Information Act. The applicant has filed affidavit dated 14.3.2008, wherein mention has been made with regard to the information sought for and supplied to him. We have already made a mention of the same in preceding part of the judgment (paragraph 8). One of the allegations against the applicant is that he failed to maintain/get maintained the construction watch register, supervise the entire construction carried out in his area/zone, as also to take action against misuser of properties, resulting into large-scale commercialization of the area. The applicant sought information as to whether before passing the order of dismissal, any information regarding maintenance of the construction watch register during his tenure as EE(B) was sought or received from the Central Zone of MCD. Reply given to the applicant is that there was no information regarding maintenance of the construction watch register with regard to properties in which unauthorized construction was raised during the tenure of the applicant. The applicant also sought information as to whether before passing the dismissal order any information was sought regarding the properties which were unauthorisedly constructed during his tenure, but were not booked for taking demolition action. Reply received by the applicant in that regard is that as per record, the data regarding unauthorized constructions that were booked during his tenure was considered before passing the dismissal order, but the record does not contain information regarding action for demolition or sealing taken during his tenure. What clearly emerges from the information sought for and supplied to the applicant is that in the impugned orders such allegations have been held to be proved without even looking at the concerned documents. There could not be any finding returned by the Commissioner that the applicant was duty-bound to maintain/get maintained the construction watch register. If the same was not even looked at, how could it be possibly said that he had either not maintained or got maintained the construction watch register. The Commissioner, even though might have seen booking of unauthorized construction, which is stated as 1698 properties, but it is proved that as to whether with regard to such booked properties any action was taken or not, was not even looked at. There could thus be no finding given that the applicant had not taken any action either of sealing or demolition of the said properties. It may be also recalled at this stage that it is the positive case of the applicant given in all its minute details that with regard to 1698 properties that were booked, sealing proceedings were initiated u/s 345A in respect of 754 properties; letters were sent to police department u/s 344(4) and (3) for getting the unauthorized construction stopped with regard to 569 properties; prosecution action was initiated u/s 332/461 for carrying out unauthorized construction in 174 cases; prosecution actions u/s 347/461 initiated for misuse of properties in respect of 196 properties; 882 number of demolition/sealing actions were planned and fixed, out of which on 523 (60%) occasions police assistance was not made available, and only on 359 (40%) occasions police assistance was made available; and yet the applicant was able to get demolished 628 illegal constructions and take action of sealing against 230 such properties. There is no specific denial to the pleadings made by the applicant in that regard. Once again, we may refrain from giving a firm finding of fact on the issue aforesaid, as, any finding given by us may prejudice the case of the department in a departmental enquiry, if at all the authorities may consider it appropriate. Suffice, however, to say that on the basis of pleadings made by the parties and the material placed before us, it cannot be said that the applicant had taken no action in his supervisory capacity, either with regard to sealing of the properties or with regard to demolition of unauthorized constructions.
19. We may now examine the next contention raised by the learned counsel as noted above. The impugned orders were primarily passed on the dint of interim orders passed by the High Court from time to time. It may be recalled that the respondents are seeking to defend their action almost exclusively on such orders. In the first order dated 9.11.2005, the High Court observed that until and unless serious action was taken and major penalty imposed, the unauthorized construction would remain rampant. Executive Engineer of the area concerned along with Assistant Engineer as well as Junior Engineer, it is further observed, are persons mostly responsible for unauthorized construction. Two Additional Commissioners were ordered to remain present in court on the next date of hearing with transfers and postings of Executive Engineers, Assistant Engineers and Junior Engineers in all the zones so that appropriate action be initiated against those under whose jurisdiction unauthorized construction has gone unabated. There is no observation that action be taken against the erring officials by a process by which regular departmental proceedings may be dispensed with. On the next date of hearing, i.e., 30.11.2005, the court observed that the officials of MCD are hand-in-glove with those who indulge in unauthorized constructions and that without their active or passive connivance, it was not possible for such mushrooming of unauthorized constructions in the capital of the country. The role of SHO of the area concerned also came up for adverse comments. It was also observed that the primary responsibility of unauthorized construction though vests in the engineering department of MCD, but the SHO concerned cannot take the plea that no cognizance can be taken by him for an unauthorized construction. After so observing, a direction came to be issued to the Additional Commissioner to fix responsibility of concerned engineers and other officials who allowed or took no notice of unauthorized construction in relation to the admitted figure of 18299, and initiate action of major penalty against all such persons who are found guilty of having abetted or in any manner connived with those who indulge in unauthorized construction. Once again, there are on observations so as to dispense with the departmental enquiry. In fact, the observations are to initiate action for major penalty. In the order dated 6.12.2005, while giving reference of order dated 30.11.2005 with regard to taking of major penalty proceedings, the court noted the tardy progress in the matter of demolition of unauthorized construction. Vide order dated 18.1.2006, insofar as the issue in the present Application is concerned, the High Court observed that with regard to taking of major penalty proceedings against the concerned officials of MCD, it was stated in the action taken report that 94 officials of the level of Junior Engineers and Assistant Engineers had been identified for major penalty proceedings. The court further observed that once, the MCD itself had booked over18000 properties as unauthorized and illegal, the same could not have come up without the active or passive connivance of JEs, AEs and EEs of the zones. The Commissioner, MCD was directed to identify all such engineers and other officials who were involved or abetted in the coming up of such constructions and initiate major penalty proceedings against them as well. These penalty proceedings were to be time-bound. It is once again, absolutely clear that the court required the MCD to initiate major penalty proceedings not only against the 94 officials of the level of JEs, AEs and EEs, but higher officials as well, which were to be time-bound. The next relevant observations came to be made on 16.2.2006, after two months and ten days, when observations with regard to initiating major penalty proceedings against all the concerned officials were made by the court. The court was not satisfied with the action taken only against JEs and AEs. It was of the opinion that Superintending Engineers and Deputy Commissioners of the zones concerned were also responsible. The respondents were required to intimate the court as to what action had been taken against them. The court, it appears, was of the firm view that only JEs and AEs were not responsible for illegal constructions. Deputy Commissioners and Superintending Engineers, in that context, it was also observed, would be equally responsible. In the context of responsibility of higher officers with regard to illegal construction and demolition, it also came to be observed that When a person is appointed to carry out a public duty in terms of statute and if it is found that statute has been violated in spite of putting the custodian on duty by providing funds from the public exchequer, the principle of audi alteram partem cannot be invoked by such delinquent persons. Even while so observing, the court referred to its last order dated 18.1.2006 when time of two months was given to the respondents to take action. This time limit was to expire on 18.3.2006, as observed in the order itself. The Commissioner was directed to submit the action taken report against all officers. The court after observing that there was no reason for delay as the responsibility would be fixed on the basis of records, still gave time to the respondents to take action by the next date of hearing. It is observed that we are giving time till the next date of hearing to have these persons booked and action taken. It may appear from the earlier part of the order where observation has been made that when a person is appointed to carry out a public duty in terms of statute and if it is found that statute has been violated in spite of putting the custodian on duty by providing funds from the public exchequer, the principle of audi alteram partem cannot be invoked by such delinquent persons, that the High Court was of the opinion that action could be taken by dispensing with the enquiry, but in ultimate analysis, time was given to the respondents to take action against all the concerned, as mentioned in order dated 16.2.2006. We may reiterate that the action suggested in order dated 16.2.2006 is for regular departmental enquiry. In the last order dated 23.3.2006, it appears that even by the date aforesaid, no action against higher officers was taken. The court was informed on 18.1.2006 that action had been taken against 95 officers who were Junior Engineers and few Assistant Engineers. The court then made reference to the status report which was silent about the action taken against Deputy Commissioners downwards. It was also observed that time had come when action was to be taken from the top to the bottom, and that merely by punishing some junior officials, the persons at the helm of affairs could not escape their responsibility. The court then made observation with regard to no action being taken against Deputy Commissioners of the zones. While making reference of its earlier observations, the court also referred to the observation made in the earlier order that a person put on a public duty if found violating the law or committing gross dereliction of duty, cannot be allowed to continue on that duty and such person has no right to invoke the principle of audi alteram partem. The observations made in the order dated 23.3.2006 relate to the order dated 16.2.2006, wherein, as mentioned above, the ultimate action suggested is regular departmental enquiry. The Honble High Court, it appears, was extremely unhappy and in fact anguished for no action having been taken against the higher officers even though, it was suggested on number of occasions that action should be taken against them as well. That being so, it was observed in the order aforesaid that the court was not satisfied with the way MCD had dealt with the problem, and that if MCD failed to carry out its statutory obligations under the Act, the court would have to go for other options as prescribed under the DMC Act with regard to dealing with the delinquent officials. It was also made clear that if MCD was not serious in taking action and showing door to the corrupt officials, the court would use other machinery for probe.
20. From the orders, as fully detailed above, what can be easily concluded is that action suggested by the High Court was for departmental enquiry. It is only because the respondent MCD was delaying action against the higher officials and was proceeding departmentally only against junior level officials, that some findings with regard to no right of the delinquent officials to invoke the principle of audi alteram partem came to be made. It can further be spelled out that the respondent MCD resorted to invoking provisions of Section 95(2)(b) of DMC Act read with regulation 9(ii) of the Regulations of 1959, as also Art. 311 of the Constitution, as it had failed to take departmental action against higher officers, despite sufficient time granted to it to do so, and further for the reason that the court observed that if the respondents failed to do so, the court would take action for showing the door to such officers. It is rather apparent that the procedure for summary dismissal came to be adopted only because the respondents despite directions given to them would not proceed against higher officers. The court even suggested to take this responsibility upon its own shoulders. The observation with regard to no right of a delinquent to invoke the principle of audi alteram partem cannot be read in isolation. In the context of observations made by the High Court from time to time, as fully detailed above, what is easily decipherable is that the action suggested was for regular departmental enquiry. The respondent MCD would, however, resort to the procedure of summary dismissal only for its carelessness, slackness or inability to proceed against higher officials in the time-bound manner suggested by the court. It further appears that respondent MCD by simply taking cue from an isolated observation, without its reference and context, resorted to invoking provisions of Section 95(2)(b) of DMC Act read with regulation 9(ii) of the Regulations of 1959, as also Art. 311 of the Constitution, which is wholly illegal and unjustified.
21. The counsel representing the applicant vehemently urged that the observation made by the High Court that When a person is appointed to carry out a public duty in terms of statute and if it is found that statute has been violated in spite of putting the custodian on duty by providing funds from the public exchequer, the principle of audi alteram partem cannot be invoked by such delinquent persons, in any case, would not be binding upon the applicant, who is not a party-respondent in the PIL before the High Court. He also contends that the issue before the Honble High Court was unauthorized construction, which was required to be demolished. There was no issue in the PIL with regard to persons responsible for the same and, in particular, as to what action is required to be taken against them. There was no issue either as to whether in the context of the provisions of the statute and responsibility of various officers to carry out the provisions of the Act and rules, action could be taken against those who may be responsible, by resorting to the procedure of summary dismissal. It is urged that the observations made by the High Court in its interim orders with regard to no right of a delinquent to invoke the principle of audi alteram partem have been made without there being any issue and debate thereon. It is urged that in the circumstances as mentioned above, the respondents may feel bound by such observations, but the applicant cannot. It is further urged that in view of Art. 141 of the Constitution, the law declared by the Supreme Court shall be binding upon all courts within the territory of India, but even in a case decided by the Supreme Court it is only the ratio decidendi which is binding, and not the general observations. The observations made by the High Court in the interim orders passed by it without there being an issue and discussion, would be sub silentio. It is further urged that the observations made by the Honble High Court, as referred to above, came to be made without taking into consideration the law on the issue, and even if the observations are to be taken as judgment, the same would be per incuriam. It is also urged that the observations made by the court are not to be read as Euclids theorems nor as provisions of the statute; speeches and observations cannot partake the character of a judgment; and that there is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, further contends the learned counsel. The learned counsel, for the submissions as made above, has referred to several judicial precedents. Prima facie, the contention raised by the learned counsel appears to be correct. We, however, need not go into the same and give a finding, as, in our view, the various observations made in the interim orders referred to above have to be read in the context the same have been made. The suggestion or directions, if at all, were only with regard to proceeding against the delinquent officials in regular departmental enquiry. The respondent MCD appear to have invoked the provisions of Section 95(2)(b) of DMC Act read with regulation 9(ii) of the Regulations of 1959, as also Art. 311 of the Constitution, as observed above, only because it failed to take such action against the delinquent officials within the time frame as directed by the High Court. We may accept the argument raised by the learned counsel representing the applicant that such provisions were invoked for rear of action being taken by the High Court against those who were responsible for taking action against the delinquent officials and had failed to do so, within the time frame as mentioned above. Dispensing with enquiry against the applicant on the basis of interim orders passed by the High Court and observations made therein does not appear to be justified in the facts and circumstances of the case. Having found that observations made by the High Court were not sufficient reason so as to hold that it was not reasonably practicable to hold an enquiry, time is now ripe to see the other grounds, either mentioned in the impugned orders or in the counter reply endeavouring to justify that it was not reasonably practicable to hold enquiry.
22. Counsel representing the applicant, as mentioned above, has urged that the other grounds are only sensitivity of the issue and public interest. Before, however, we may deal with the contention of the learned counsel as noted above, we may briefly advert to the relevant provisions in the Constitution of India and the DMC Act. By virtue of provisions contained in Art.311(1) no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he was appointed. He also cannot be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges, as provided in clause (2) of Art. 31. There are three exceptions, provided in sub-clauses (a), (b) and (c) of clause (2) of Art. 311, to necessarily hold an inquiry before punishment, as mentioned above, is to be inflicted upon a government servant. The first exception is where the person concerned has been convicted in a criminal charge. The second exception is where the authority empowered is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry. The last exception is where the President or the Governor is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. Resort in the present case has been made to second exception as provided in Art. 311(2)(b). By virtue of provision contained in Art.311(3), when a question may arise as to whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. It has been admitted position during the course of arguments that provisions contained in Section 95(2)(b) of the Act of 1957 are pari materia to Article 311 of the Constitution. There would be thus no need to make a mention of the same. We may first deal with the contention raised by the learned counsel representing the respondents based upon Article 311(3) that once, the concerned authority found it to be a case that it is not reasonably practicable to hold an inquiry, the decision of the said authority would be final and, therefore, once, such authority had arrived at such conclusion, there would be no scope to deal with the issue any further. This contention needs to be rejected straightway, as in our view, once such decision is taken by the disciplinary authority, no other authority would be able to overlook that. The order with regard to dispensing with the enquiry by holding that it is not practicable to do so is always justiciable and can be called in question in a competent court of law. If the contention of the counsel representing the respondents is to be upheld, then perhaps in no case the courts would be able to set aside the order dispensing with departmental inquiry.
23. In the impugned order, even though it is mentioned that it is a settled law that every action of an administrative of executive authority which visits adverse or evil consequences upon a citizen, or any person, has to be proceeded by rules of natural justice and fair procedure, and this would be more so in a case where services of an employee are sought to be terminated/dismissed, it is, however, observed that a small area has been carved out to cater to exceptional cases, i.e., where the nature of charge is either so sensitive or public interest warrants that an enquiry would not be either practicable or would lead to unfair results or in cases where public interest warrants not to hold a full-fledged enquiry and material are sufficient to warrant a view to be taken. After making general observations as mentioned above, the conduct of the applicant has been stated to be reprehensible, and it is then stated that the charge is so sensitive and the public interest warrants that the enquiry would not be either practicable or would lead to unfair results, and further that the public interest warrants not to hold a full fledged enquiry and material on record is sufficient to warrant a view to be taken in the matter because of the reason that unauthorized buildings booked were clearly identifiable matching the tenure of the person who worked in the zone. In the operative part of the order, it is mentioned that Considering the sensitiveness of the charge, the public interest and material available on record and lastly that holding of a full fledged inquiry would lead to unfair results, I hereby dispense with the inquiry against such charged officials as the same is not reasonably practicable in the present state of circumstances. In the context of the facts and circumstances of the present case, we find the reasons for dispensing with the enquiry, as mentioned above, are wholly irrelevant and unjustified. What was sensitive about the charges on which the applicant may have been tried is not explained either in the impugned orders or in the counter reply or in the submissions made during the course of arguments. The issue of unauthorized construction may be sensitive, but the issue of holding an enquiry in case of an official who is alleged to have not checked or taken measures to demolish illegal constructions, in our considered view, cannot be stated to be sensitive at all. Once again, public interest may be with regard to demolition of illegal constructions, but there was no public interest involved in proceeding against individuals.
24. As to in what circumstances enquiry can be dispensed with has been a subject matter of number of judicial precedents. We may not further burden this judgment, by making mention of all the judicial precedents. Suffice it to say that in a recent decision recorded by us in OA No.1216/2007 decided on 28.11.2007 in the matter of Ex. SI (Exe.) Rajeshwar Prashad v Union of India & Others, we referred to almost all case law on the subject. The decisions recorded by the Honble Supreme Court, Full Bench of this Tribunal and co-ordinate Benches were also taken into consideration. On the basis of judicial precedents of the Honble Supreme Court and this Tribunal, we distilled some essential principles and conditions for application of Article 311(2)(b) as follows:
i) reasons for dispensing with the regular departmental enquiry must be established by holding that it is `not reasonably practicable to do so and reasons for this must be recorded in writing;
ii) disciplinary enquiry should not be dispensed with lightly or arbitrarily or out of ulterior motive;
iii) disciplinary enquiry should not be dispensed with to avoid the holding of an enquiry or because the departments case against the government servant is weak and must fail;
iv) the reason for dispensing with enquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of second proviso;
(v) the authority is obliged to show that his satisfaction is based on objective facts. The decision to dispense with the departmental enquiry can not be rested solely on the ipse dixit of the concerned authority;
(vi) the subjective satisfaction must be fortified by independent material to justify dispensing with the enquiry envisaged by Article 311 (2);
recourse to Article 311 (2) (b) can be taken even after enquiry has been started;
the gravity of offence is not a ground for dispensing with regular departmental enquiry and invoking Article 311 (2) (b);
(ix) courts can interfere with such orders on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised, notwithstanding clause (3) of Article 311;
(x) in examining the relevance of reasons, the court will consider the situation, which led the disciplinary authority to conclude that it was not reasonably practicable to hold the enquiry;
(xi) court should examine whether the reasons are relevant and in order to do that the court must put itself in place of the disciplinary authority and consider what in the then prevailing situation a reasonable person acting reasonably would have done. Where two views are possible, the court will decline to interfere;
when the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of whim or caprice of the concerned officer. Subjective satisfaction recorded in the order has to be fortified by any independent material to justify the dispensing with the enquiry envisaged by Article 311 (2) of the Constitution; and that the appellate authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by the concerned officer in the appeal. Counsel representing the applicant, we may, however, mention, relied upon the judgments of the Honble Supreme Court in Union of India v Tulsi Ram Patel [(1985) 3 SCC 398], Indian Railway Construction Co. Ltd. v Ajay Kumar [AIR 2003 SC 1843], Prithpal Singh v State of Punjab & Others [2006 (11) SCALE 28], Jaswant Sinvh v State of Punjab & Others [AIR 1991 SC 385], Sudesh Kumar v State of Haryana & Others [(2005) 11 SCC 525], Chief Security Officer & Others v Singasan Rabi Das [AIR 1991 SC 1043], and a decision of this Tribunal in OA No.1291/2007 decided on 1.11.2007 in the matter of Mali Ram Meena v Government of NCT of Delhi & Others, in his endeavour to show that the decision to dispense with the enquiry was wholly unjustified, and as to what parameters would be required to dispense with the enquiry. In the context of the facts and circumstances of the present case, we are of the opinion that no sensitivity or public interest was involved in departmentally proceeding against the applicant or other Executive Engineers, particularly when others who were equally responsible, if not more, were departmentally tried and in their case, sensitivity and public interest was a non-issue. Sensitivity or gravity of a charge is also not a ground for dispensing with regular departmental enquiry. We need not delve on this issue any further, as the forceful submission raised by the learned counsel that there was no sensitivity or public interest involved, and that, in any case, seriousness of the issue was not a ground to dispense with the enquiry, could be met by the learned counsel representing the respondents only half-heartedly and without any conviction.
25. For the reasons mentioned above, impugned orders dated 7.4.2006 and 3.4.2007 passed by the disciplinary and appellate authorities, are quashed and set aside. The Application is allowed by directing the respondent MCD to forthwith reinstate the applicant and other similarly situated (applicants in connected cases) with back wages and continuity of service. Respondents would, however, be at liberty to proceed against the applicants departmentally. In the peculiar facts and circumstances of the case, these shall, however, be no order as to costs.
27. Before we may part with this order, we may reiterate that the controversy insofar as, delinquency of the applicant is concerned, has to be thoroughly gone into in a departmental enquiry, wherein the department may choose to bring on record all the relevant facts, which, according to it, may show that the applicants in fact and reality indulged in misconduct, and the applicants would have equal opportunity to project their view point. Any observations made by us on facts constituting misconduct or otherwise, as mentioned in the order, are for the purpose of deciding these Applications, and shall not be construed as a final expression of opinion. Concerned authority would be at liberty to come to its own conclusion on the basis of evidence and material placed before it.
( Shailendra Pandey ) ( V. K. Bali ) Member (A) Chairman /as/