Central Administrative Tribunal - Delhi
Shri H. R. Sharma vs Dda & Ors. Through on 14 December, 2011
Central Administrative Tribunal Principal Bench O.A. No.3074/2010 New Delhi, this the 14th day of December, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri H. R. Sharma S/o Late Ram Swaroop Sharma R/o C-4G/133-A, Janakpuri, New Delhi. ..Applicant (By Advocate: Shri M.K. Bhardwaj) Versus DDA & Ors. through: 1. The Lt. Governor, Delhi, Chairman DDA, Raj Niwas, Delhi 2. The Vice Chairman, DDA Vikas Sadan, New Delhi 3. The Commissioner (Pers), DDA, Vikas Sadan, New Delhi .Respondents (By Advocate: Shri Karunesh Tandon) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri H. R. Sharma working as Senior Accounts Officer under the DDA, the applicant herein, has through this OA challenged the order dated 02.04.2009 (Annexure-A1) whereby the 2nd respondent has decided to club ten number of major penalty charge sheets as only one case and has appointed the Inquiry Officer (IO). He has also assailed the impugned ten charge memoranda proposing to initiate disciplinary proceedings against him under Regulation 25 of the DDA Conduct, Disciplinary and Appeal Regulations 1999. By way of relief, he seeks quashing of the said order and ten charge memoranda with all consequential benefits. By way of interim relief, prayer for staying the said order and disciplinary proceedings had also been made. While issuing notice on 16.09.2010 to the respondents, the Tribunal directed to the respondents not to proceed further in the enquiry.
2. Brief facts of the case would disclose that a housing scam was revealed in the news papers in the year 2000 which was enquired into by the Crime Branch of Delhi Police and many DDA Officials involved in the scandal were arrested and the applicant was one of the officials arrested against whom 15 FIRs were filed and had been pending. He was suspended on 28.09.2000. In the meantime, for the housing scandal he was issued as many as 21 charge sheets, of which 6 were issued in 2003 and balance 15 were issued in the year 2008 and 2009. As per the statement of articles of charge, the applicant while working in Senior Accounts Officer during the year 1999-2000 had recommended the case for refund of belated construction interest and passed the refund bill in respect of specific flats in Jasola to facilitate refund of respective amount to private persons without seeking the approval of the competent authority and in contravention of the relevant instructions. Thereby, he caused financial loss to the DDA. By this act, he committed alleged misconduct involving lack of absolute devotion to duty and integrity and acting in a manner unbecoming of a Government servant, contravening the Conduct Regulation. We may briefly capture relevant information in each of the charge sheets in the following table:-
Brief on the alleged misconduct Flat No. Place Financial loss (in `)
01. F27(23)2007 Dy. CAO (Vig)/ Vig.9795-99 dated 1.09.2008 31 G, SFS Cat.II Sector 8 Jasola `354704
02. F27(30)2007 Dy. CAO (Vig)/ Vig.10551-55 dated 16.09.2008 18T SFS Cat.II Sector 7, jasola `210028
03. F27(31)2007 Dy. CAO (Vig)/ Vig.11342-46 dated 01.10.2008 15T SFS Cat.II Sector 7, Jasola `346898
04. F27(38)2007 Dy. CAO (Vig)/ Vig.10408-12 dated 12.09.2008 13T SFS Cat.III Sector 7, Jasola `211926
05. F27(25)2007 Dy. CAO (Vig)/ Vig.10799-803 dated 19.09.2008 37 GF Cat.III Sector 7, Jasola `232291
06. F27(117)08/Vig/AAO(Vig) 13802-07 dt. 10.12.2008 56F Sector 7, Jasola `86480
07. F27(118)08/Vig/AAO(Vig) 13865-69 dt. 10.12.2008 89S Sector 7, Jasola `271977
08. F27(116)08/Vig/AAO(Vig) 26-31 dt. 02.01.2009 11T Cat.III Sector 7, Jasola `108602
09. F27(154)08/Vig/AAO(Vig) 643-648 dt. 21.01.2009 88T Cat.III Sector 7, Jasola `108602
10. F27(127)08/Vig/AAO(Vig) 13912-16 dt. 10.12.2008 101S Sector 7, Jasola `71520 TOTAL 10 Flats `2003028
3. Shri M. K. Bhardwaj, learned counsel for the applicant while projecting innocence of the applicant in the matter, advanced the main plea that the charge sheets have been highly belated as the incident took place in 1998-99 and all the charges were issued after 9 years. Shri M. K. Bhardwaj would further submit that the charges against the applicant were the same as had been levelled in several other cases against other employees of the DDA and in several such cases the Tribunal by its separate orders had quashed the charge sheets. The learned counsel would particularly refer to and rely on the orders of the Coordinate Bench of this Tribunal (Principal Bench) in (i) OA No.1570/2009 with the OA 1578/2009 (Mohinder Kumar versus DDA & Ors) decided on 9.9.2009, (ii) OA No.2415/2009 (Krishan Murari versus The Lt. Governor, Delhi & Ors) decided on 8.12.2009 and (iii) OA No.3745/2009 (Shri Dinesh Kumar Minocha versus DDA and Others) decided on 8.07.2010.
4. Opposing the grounds taken by the applicant, the respondents have filed the reply affidavit. Repelling the plea taken on behalf of the applicant by his counsel that his case is fully covered by the decisions in Mohinder Kumars case (supra); Krishan Muraris case (supra) and Dinesh Kumar Minochas case, Shri Karunesh Tandon, learned counsel for the Respondents, would contend that the gravity of the matter and the time taken in making detailed investigation was adequate. The learned counsel, would further impress on us that because of the misconduct of a group of employees of DDA in collusion with outsiders, loss of crores of rupees had been caused to the DDA. His contention is that the applicant has been found to be actively associated with the housing scam and 15 FIRs are still pending. Further, he would draw our attention to the orders in an earlier OA i.e. OA No.509/2010 decided by the Tribunal in the matters of Shri P. C. Jain versus The Delhi Development Authority and Others on 18.12.201, where while disposing of the OA the respondents were directed to finalise the proceedings within a stipulated time frame. It was urged by the learned counsel that these proceedings were still pending with the Inquiry Officer, and the order dated 02.04.2009 issued by clubbing all 10 charge sheets together would expedite the matter. Hence, he argues to dismiss the OA.
5. Having heard the learned counsel, Shri M. K Bhardwaj and the learned counsel Shri Karunesh Tandon, we carefully perused the materials on record and the relied on judgments.
6. The controversy for our consideration is in narrow compass. Whether delay in issue of 10 charge sheets and clubbing all those in the impugned order is legally sustainable or not and whether the case is fully covered by the judgments of this Tribunal relied on by the applicant?
7. At this stage, we may refer to three decisions of this Tribunal relied on by the counsel for the applicant and one judgment relied on by the counsel for the respondents.
8. In Mohinder Kumars case (supra), the applicant was an Accountant in the DDA who had challenged the charge memorandum dated 25.4.2007 proposing disciplinary enquiry for the cause of action which arose in the years 19982000, as in the instant OA. After examining the case on merit, the Tribunal had not found the explanation regarding the delay on the part of the respondents in issuing the impugned charge memorandum. The charges were based on the alleged misconducts committed in the said housing scam in which besides the ongoing criminal proceedings, the charge sheet could only be issued after a detailed investigation. The Tribunal had decided that the respondents had not satisfactorily explained the long delay and the issuance of the impugned charge memo was viewed only as an effort to unsettle the settled matters. Besides, taking into consideration similar cases decided vide OA No.2166/2008 as well as OA No.202/2009, where the decisions of the Apex Court in M.B. Bijlani versus Union of India & Ors [JT 2006 (4) SC 469] and P.V. Mahadevan versus MD Tamil Nadu Housing Board [JT 2005 (7) SC 417] had been cited to bring home the fact that delayed action without adequate explanation prejudiced the concerned applicant. The Tribunal raised certain questions about the initiation of the proceedings at that stage as ultimately it would not be possible for the DDA to gain anything out of the proceedings and recover the funds from the allottees after such a long period. On the other hand, the effect of the disciplinary proceedings on the morale of the concerned employee and ultimately on his working was considered as being detriment to the Organization. With all these considerations, the impugned Charge Memos were quashed, with the clarification that nothing stated in the order would affect the criminal proceedings.
9. In Shri Krishan Muraris case (supra), the applicant was challenging the charge memorandum dated 10.8.2009 relating to a similar cause of action during the years 1998-2000. In this case also recommendation for downward revision of the cost of a flat without the approval of the competent authority and in violation of the instructions and thereby causing a loss of `5.25 lakhs to the authority had been alleged. The Tribunal considered the explanation for the delay submitted by the respondents recounting the background of the housing scam which had rocked the news in the year 2000. It had also been stated that initially all the records had been seized by the Crime Branch of the Delhi Police and after investigation of the matter by them out of 119 cases, 48 cases had been returned to the DDA for fixing responsibility departmentally, out of which, 13 cases were identified in the year 2000 and 20 more in June 2006 and referred to the Vigilance Cell for further action. After detailed investigations, more than 70 charge sheets had been issued and the case of Shri Krishan Murari was said to be one of the 20 cases where initiation of major penalty proceedings was included. Taking into account these explanations, the Tribunal had found serious flaws in their explanations for the delay in initiation of the proceedings. Further, the Tribunal had also taken into account the decisions in the earlier OAs i.e. OA No.2525/2008 decided on 30.10.2009 in the matter of Ved Prakash versus DDA as well as OA No.829/2009 dated 12.10.2009 in the matter of R.P. Tripathi versus DDA and lastly OA No.1570/2009 with connected OA No.1578/2009 in the matter of Mohinder Kumar versus DDA. Taking into account the decisions in these OAs, it was observed that the Respondents explanation for the delay had not been found adequate by different Benches. On these grounds, the Tribunal had not found any reason to take a different view than the one taken by the Tribunal in the aforesaid judgments and in particular in OA No. 1570/2009 with connected OA 1578/2009. Accordingly, the charge memorandum dated 10.8.2009 was quashed and set aside.
10. In Shri Dinesh Kumar Minochas case (supra) we found the facts of the case similar to those in Mohinder Kumar case (supra) as also in Krishan Muraris case (supra), and noting that in this case the charge memorandum was issued after nearly 9 years and the other Benches of the Tribunal did not find the explanation for delay advanced by the respondents convincing, allowed the OA and quashed the charge sheet. In the said order, it was noted that in Mohinder Kumars case (supra) Tribunal expressed serious reservation about any net gain coming from the initiation of these proceedings after an inordinately long time to the Organization itself; on the other hand it was viewed as being in detriment to its functioning. It had also been observed that in case the DDA was really serious in the matter, they should have taken prompt action in all these cases.
11. We may also advert to the judgment of this Tribunal relied on by the counsel for respondents in P. C. Jains case (supra). On a careful study of the relevant order dated 18.02.2011 placed before us, we note that this was a case in which the OA was found to be at the interlocutory stage and the explanation for delay given by the respondnets in the said OA was convincing. While noting that the case was not fit warranting judicial intervention the Tribunal disposed of the OA with direction to the respondents to complete the enquiry as well as decision of the Disciplinary Authority within a period of four months. Facts in this case being different from the instant OA, we distinguish the orders in P. C. Jains case (supra).
12. Admittedly, the alleged incident took place during 1998-2000, the charges were framed in the disciplinary cases between 2008-2009, and the applicant retired on superannuation on 31.03.2010. Undoubtedly the time taken by the respondents to frame charges against the applicant has been more than 9 years which has deprived him his promotion. The explanation for delay given by the respondents was that the Crime Branch had registered cases concerning the housing scam and the applicant was one of the officers involved and the criminal proceedings were going on and the departmental charge sheets were issued after proper investigation. The question arises, how can DDA take such long period to issue charge sheet which does not reflect seriousness on the part of the authorities concerned? In similar cases involving the officials as part of the housing scam, the Tribunal has quashed the respective charge sheets and allowed the OAs. The only point highlighted by the respondents is about the number of charge sheets issued to the applicant in the instant OA. Ten charge sheets would give an impression that the magnitude of misconduct was such that the belated action could be condoned. We have very thoughtfully analysed the charges in the table within. Let us briefly recapitulate the same. Each flat owner has got the refund as alleged illegally and there are 10 flats, 10 refunds in two sectors (Sector 7 and 8) of Jasola. All these have been now ordered to be clubbed in the year 2009 by the impugned order. The applicant has taken the stand that there was no blameworthy conduct on his part. He obeyed the instructions of his seniors in the matter and the refunds were ordered by the superior authorities who were well aware of their action and such actions and transactions had been regularized by the competent authority. In the counter affidavit the respondents-DDA the delay has not been satisfactorily explained.
13. It is also noted that the respondents have not taken a stand of having challenged any of these orders of the Tribunal. We also find no reasons to take a view different from the one taken by this Tribunal in three judgments referred to above. The present case, in our considered opinion, is covered in all fours by the orders of this Tribunal in Mahinder Kumars case (supra), Krishna Muraris case (supra) and Shri Dinesh Kumar Minochas case (supra).
14. Taking into account the totality of facts and circumstances of the case and for the parity of reasons given in the judgments of the Tribunal referred to above, the Original Application is allowed. Resultantly, the impugned order dated 2.4.2009 and 10 charge sheets clubbed in the said order are quashed and set aside. There shall, however, be no order as to costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/