Central Administrative Tribunal - Delhi
Dharam Pal Kakria vs Delhi Development Authority Delhi on 4 August, 2016
Central Administrative Tribunal
Principal Bench
OA No.2621/2013
This the 4th day of August, 2016
Hon'ble Mr. Justice M.S.Sullar, Member (J)
Hon'ble Mr. V. N. Gaur, Member (A)
Sh. Dharam Pal Kakria,
Aged about 70 years,
S/o Late Sh. Nanak Chand
R/o H.No.412, Sector 22A,
Gurgaon,
Haryana-122015.
- Applicant
(By Advocate: Mr. Sidharth Joshi)
Versus
1. Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA Market,
New Delhi.
2. Vice Chairman
Delhi Development Authority
Vikas Sadan, INA Market,
New Delhi.
3. Finance Member,
Delhi Development Authority
Vikas Sadan, INA Market,
New Delhi.
- Respondents
(By Advocate: Mr. A.K.Roy for Mr. Manish Garg)
ORDER (ORAL)
Hon'ble Mr. V.N.Gaur, Member (A) The applicant has filed the present OA seeking the following relief:
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"(i) Quash/set aside the Impugned Order bearing No. 139/Vig./2013/DC/6333 dated 02.05.2013 passed by the Appellate Authority, and/or
(ii) Quash/set aside the Impugned Order bearing No. 139/Vig./2013/DC/6333 dated 02.05.2013 passed by the Disciplinary Authority, and/or
(iii) Quash/set aside the impugned memorandum bearing No. F.27 (73)96/Vig./DC/4189 dated 12.04.2012 issued by the Disciplinary Authority; and/or
(iv) Award all consequential benefits;
(v) Award cost in favour of the Applicant.
(vi) Pass such other and further orders which this Hon'ble Tribunal may deem fit and proper in the interest of justice."
2. The applicant was Assistant Director (AD) in Delhi Development Authority (DDA) from where he retired on attaining the age of superannuation on 30.06.2003. He was working in the housing department from 28.08.1991 to 03.08.1994 when an FIR No.322/94 under Section 420, 468, 471 IPC was registered on 05.10.1994/07.10.1994 in P.S. Kotla Mubarakpur on the complaint made by Dy. Director (SFS). The FIR was registered on the basis of a representation received from Sh. Harish Aggarwal in respect of allotment of a flat in 4th Self Financing Scheme (SFS) alleging that he had never applied for allotment of flat in Paschim Puri. In connection with the aforementioned criminal case the applicant was arrested by the police. After investigation a charge sheet was filed in the Court on 03.02.1997 but the applicant was acquitted by the learned Court of Metropolitan Magistrate, New Delhi by order dated 26.04.2008. 3 OA No.2621/2013
3. In the meanwhile, the respondents initiated Departmental Enquiry (DE) against the applicant vide memorandum dated 27.06.2003 by serving a charge sheet just three days before his retirement. There was no progress in the DE for next 04 years till the time the respondents issued a corrigendum dated 31.05.2007 amending the charge sheet dated 27.06.2003 in respect of the list of documents. The respondents also appointed an Enquiry Officer (EO) but the DE did not proceed further. The applicant submitted a representation dated 23.06.2008/ 07.07.2008 bringing the judgment of learned Metropolitan Magistrate dated 26.04.2008 to the notice of the respondents. There was no further progress in the matter for next two years until vide letter dated 15.04.2010 the respondents again decided to continue with the DE and a new EO was appointed on 30.11.2010. The applicant participated in the enquiry and submitted his written brief on 02.02.2011. The EO submitted his report on 14.02.2011 returning the finding that the charges levelled against the applicant was not proved. The Disciplinary Authority (DA), however, did not agree with the finding of the EO and issued a disagreement note, a copy of which was supplied to the applicant to make his representation. The applicant submitted his representation following which the DA passed the final order imposing the penalty of 15% cut in pension for 10 years. The appeal moved by the applicant dated 21.05.2012 was also rejected by the Appellate Authority (AA) by 4 OA No.2621/2013 order dated 02.05.2013. Saliently, the applicant has challenged the impugned orders on the following grounds:
(1) He was acquitted in the criminal case as well as in the departmental enquiry still the DA decided to disagree with the finding and imposed the hardest penalty of cut in pension for 10 years.
(2) The DA has not assessed the fact that there was no evidence on record that could prove any misconduct on his part.
(3) The handwritten remarks in the note dated 22.05.1992, which is the basis of implicating him in the case, is a false and frivolous remark inserted later, which was not there when the file was put up to him.
(4) The document produced before him at the time of issuing possession letter was duly attested by Notary Public and visually there was nothing that could arouse suspicion. On 02.05.1998 on the basis of the same papers the flat in question was converted from leasehold to freehold by Chairman, DDA.
(5) In the process for issuing possession letter the concerned UDC/Dealing Assistant (D.Asst) and the Superintendent were responsible to check the genuineness of documents before submitting the file to him. The Director (Vigilance) of DDA overlooked the role of the Superintendent and D.Asst and no action was taken against him.
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(6) The DA can impose the penalty of cut in pension on account of grave misconduct or negligence of the applicant and the impugned orders do not state that any grave misconduct and the negligence had been committed by the applicant.
4. Learned counsel for the applicant relied on the following cases:
(i) O.P. Ahlawat vs. DDA in OA No.1413/2011
(ii) Girdhari Lal Ref. 1970 (2) SC 530
(iii) State of A.P. vs. N.Radhakishan, (1998) 4 SCC 154
(iv) P.V.Mahadevan vs. M.D.Tamil Nadu, AIR 2007 SC 207
(v) Delhi Development Authority vs. D.B. Bambha, LPA 39/2009 of Hon'ble High Court of Delhi
(vi) R.P.Nanda vs. DDA, 2004 (73) DRJ 23
(vii) M.D.Parmar vs. Y.B.Zala, 1980 ILJ 260 of Hon'ble High Court of Gujrat
(viii) Kundan Lal vs. Delhi Administrative Delhi, 1976 (1) SLR 133
(ix) State of Maharashtra vs. W.R.Kaidalwar, SLR - 1981 (2) 73
(x) Union of India vs. J.Ahmad, AIR 1979 SC 1022
(xi) M.Raghavelu vs. Govt. of A.P. and another, (1997) 10 SCC 779
5. Learned counsel for the applicant argued that the case against the applicant has been built on the basis of a document 6 OA No.2621/2013 related to the possession letter that was issued to a person who claimed to be a power of attorney (POA) holder of Sh. Harish Aggarwal. That document, a photocopy of which has been placed on record at page 5 of Annexure A-13 of the OA, shows that D.Asst, Sh. R. Mishra had reordered handwritten remark that "SPOA had been examined by JLO (H) and the sign differs with RRs". The applicant had repeatedly pointed out in his representations and appeal that according to the work distribution it was the duty of the D.Asst and Superintendent to check the genuineness of documents that was being put up to the AD. The aforesaid remark claimed to have been recorded by the D.Asst was not there when the file was put up to AD. The learned Metropolitan Magistrate in his order dated 26.04.2008 has also acquitted the applicant. Learned counsel argued that if the persons who were actually responsible to verify the documents have not been even charge-sheeted, the applicant as supervisory officer cannot be held solely responsible for issuing the possession letter to a wrong person. The incident pertained to the year 1994 and for the first time the charge sheet was issued in 2003 just 3 days before the retirement of the applicant. The respondents still did not proceed with the DE and took 4 years to modify the list of documents attached to the memorandum of charge and another 2 years to start the enquiry. Even after exoneration in the enquiry by the EO on the basis of the evidence on record, the DA gave a 7 OA No.2621/2013 disagreement note without any justification. It only shows that the respondents were bent upon penalising the applicant while the other two persons involved in the same incident got scot free.
6. Learned counsel for the respondents denied the submissions made by the learned counsel for the applicant and submitted that the applicant was responsible not only as the supervisory officer but also as the one who actually verified the identity of the holder of power of attorney. It was his duty to check the signature of Sh. Harish Aggarwal on POA and compare it with that on record, which was not done despite a noting from the concerned D.Asst. The motivated action on the part of the applicant was clear from the fact that the possession letter to the person showing himself as POA holder was issued on 25.12.1991 which happened to be a holiday and later the date 25.12.1991 was tampered with and changed to 05.12.1991. Learned counsel denied the allegation that the noting by the D.Asst was inserted later by tempering the record and stated that the D.Asst had not initialled the allotment letter indicating that he did not propose for issuance of that letter. Learned counsel also refuted the claim of the applicant seeking parity with the other two staff members who were not charge- sheeted, stating that he cannot claim a negative equality. The representation of the applicant conveying his acquittal in the criminal case had been duly considered by the DA and it was decided to continue with the DE. The act of DA cannot be faulted 8 OA No.2621/2013 because the objective of the criminal proceeding and the departmental proceeding are quite different and even the method of arriving at the conclusions is different. Unlike a criminal case, in a disciplinary proceeding charges are proved on the basis of the preponderance of probability. The EO had given its finding that charges were not proved but respondents after careful consideration had come to the conclusion that certain aspects had been wrongly interpreted by the EO and, therefore, issued a disagreement note. The learned counsel further argued that the jurisdiction of the Tribunal in a disciplinary proceeding was limited in scope as the Tribunal had only to see whether the applicant or the charged officer had been given full opportunity to defend himself in accordance with the rules and principles of natural justice, and that the competent authority had passed the final orders after following due procedure.
7. Learned counsel relied on the following case law:
(i) B.C.Chaturvedi vs. Union of India, (1995) 6 SCC 749
(ii) The High Court of Judicature At . vs. Shashikant S.Patil and anr., AIR 2000 SC 22
(iii) Union of India vs. Bihari Lal Saldamaha, 1997 (2) SLR 523 9 OA No.2621/2013
(iv) A.N.D' Sitva vs. Union of India, (1962) Suppl. 1 SCR 968
(v) Union of India vs. H.C.Goel, AIR 1964 SC 364
(vi) State Bank of India and others vs. Ramesh Dinkar Punde, (2006) 7 SCC 212
(vii) State of Haryana vs. Rattan Singh, (1977) 2 SCC 491.
8. We have heard the learned counsel for the parties and perused the record. The applicant was charged that he had issued possession letter in respect of the SFS flat on the basis of forged documents in favour of an impersonated person. The respondents have followed the procedure as laid down in DDA (Conduct, Disciplinary and Appeal) Regulation 1999 and imposed the penalty of cut in pension for a period of 10 years. The applicant has challenged the order of DA on a number of grounds. His main ground is that the DA has disagreed with the finding of the EO, which had coincided with the findings of the Court, without giving any reason to doubt the finding of the EO which was based on detailed appreciation of the evidence adduced during the enquiry.
9. The scope for interference by the Courts in the matter of disciplinary proceeding is quite limited. It is settled law that the courts are not the appellate forum against the order of the DA. The Courts also cannot re-appreciate the evidence produced 10 OA No.2621/2013 during the departmental enquiry conducted in accordance with the statutory provisions. The DA, however, has the power to accept or reject the report of the EO but while doing so the DA has to record reasons as to why the finding of the EO based on the appreciation of the evidence on record has to be discarded. In the present case the EO in his report had considered all the grounds that have been now raised in this OA except those relating to the subsequent developments. As this Tribunal can not re-appreciate the evidence or act as an appellate forum against the order of the competent authority, we will confine ourselves to the questions of legal validity of the disagreement note and the validity of the penalty of cut in pension imposed on the applicant.
10. It is a matter of record that a DE had been conducted into the allegation against the applicant and the EO had submitted his report on 15.02.2011 returning the finding that the charges against the applicant were not proved. The DA gave a disagreement note on 24.02.2011 citing two reasons. First, that the EO was not correct in stating that the officer who was in position at the time of allotment of flat should have examined the genuineness of the case while issuing demand-cum-allotment letter. The DA took a view that the procedure required the allottee to submit the documents as per the demand-cum-allotment letter, and only after such a letter had been issued the genuineness of the allottee could be verified with reference to the documents 11 OA No.2621/2013 submitted at the time of issue of possession letter. The second reason was that EO had wrongly stated that D.Asst and Superintendent were responsible for verifying and checking the genuineness of the documents and not the AD (applicant). The DA was of the view that the AD being the officer responsible for issuing possession letter, was duty bound to verify the genuineness of the documents. He could not totally depend on the subordinate in this regard.
11. The first reason for disagreement does not make any material difference with regard to the finding of the EO as the DA has only pointed out the stage at which the genuineness of the allottee / POA holder is verified. In the context of the charge that the applicant had issued allotment letter on the basis of forged documents, the important question is who was responsible for the verification of the identity of the allottee according to the procedure or practice followed in the department. On this point, the DA has taken a view that the applicant being the officer responsible for issue of possession letter was duty bound to verify the genuineness of the documents. The DA has not given any reason in support of this conclusion. On the other hand the EO in his report has discussed the evidence in detail to establish that the D.Asst had dealt with the relevant file on several occasions prior to the day when the possession letter was issued, including when a reference was made to the Superintendent/JLO. On none 12 OA No.2621/2013 of these occasions the D.Asst raised any doubt about the signature or identity of the POA holder. The learned counsel for the applicant has also referred to Annexure A-16, which specifies the duties of Superintendents/ Assistants/ PAs-Stenos/ UDCs/ LDCs. The duties of Assistants/ UDCs read as follows:
"II. Assistants/Upper Division Clerks:
He works under the orders and supervision of the Supdt. and is responsible for the work entrusted to him.
Where the line of action on a case is clear or clear instructions have been given by the Branch Officer or higher officer, he should put up a draft without much noting.
In either cases he will put up a note keeping in view the following points:-
(i) To see whether all facts as are open to check have been correctly stated;
(ii) To point out any mistakes or mis-statements of the facts;
(iii) To draw attention where necessary to precedents or Rules and Regulations on the subject;
(iv) To put the Guard files, if necessary, and supply other relevant facts and figures;
(v) To bring out clearly the question under consideration and suggest a course of action;
(vi) To maintain work book to indicate the work done during the day wherever possible."
12. It can be seen that the primary responsibility of checking the facts and to point out any mistake or misstatement of facts lies on the Dealing Assistant. A copy of the note that had been put up by the D.Asst is at the heart of the controversy, has been placed on record at page 125 of the OA in which the printed portion of the note reads as follows:
"The documents furnished by the allottee have been checked and found correct. If agreed, possession letter and no objection certificate 13 OA No.2621/2013 for electric and water connection may be issued, which are kept opposite for signatures."
Thereafter, it has been signed on 22.05.1992. There is a handwritten insertion obviously after the main note had been prepared and signed by the D.Asst stating "SPOA has been examined. Sign differs with R.R." This aspect of contradiction between the printed portion of the note and handwritten insertion had been examined both by the EO in the DE and learned Metropolitan Magistrate in his order dated 26.04.2008. Both have given their finding that the handwritten insertion was most likely not there when the file was put up to the AD (applicant). It has also been held that the printed portion of the note and the handwritten insertion of the D.Asst cannot exist at the same time. The wording of the certificate of the printed portion and the handwritten note of the D.Asst clearly show that it was his responsibility to have checked the documents because he had given the certificate that the documents were checked and found correct. The stage at which the handwritten note was inserted is also doubtful. If checking the signature of the allottee was not his responsibility D.Asst would not have given either the certificate or the comment. The finding of the DA in the disagreement note, therefore, does not go along with the evidence flowing from record and, therefore, cannot be sustained.
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13. Another contention of the applicant is that the penalty of cut in pension is to be imposed only when the delinquent officer is guilty of grave misconduct or negligence during the period of service. In the present case even the admitted case of the DA is that it was a supervisory failure. We find substance in the submissions made by the applicant. In the order dated 12.04.2012 the observation made by the DA has been reproduced which is quoted below:
"in his reply, the Charged Officer has tried to shift the responsibility of verification of genuineness of the allottee/documents on the Dealing Assistant/superintendent. The reply of the Officer is not convincing. As Assistant Director, he was duty-bound to verify genuineness of the documents while issuing Possession Letter. The Officer cannot depend totally on the subordinate staff in this regard."
14. The DA is not saying that subordinate staff was not expected to do the verification but that the officer should not have depended totally on the subordinate staff. In other words, it was a supervisory failure. The action taken by the respondents against the applicant has to be seen in the background of the fact that there was no action initiated against the then Superintendent and the D.Asst of the Housing Branch and the UDC and Superintendent of Housing Accounts Branch. In the record there is no reference to any proposal to initiate action against other officials prima faci responsible for the lapse, except a mention of Sh. R.Mishra, D.Asst who had expired on 05.06.2005 and therefore no action was possible against him.
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15. In the case of M.Raghavelu (supra), the Hon'ble Supreme Court observed as follows:
"5. The argument of the learned counsel for the appellant is that if the persons directly in charge of the construction work were found not guilty of the charge framed, the appellant, who was indirectly in charge of the work, cannot be punished for similar charge levelled against him. We find force in the argument of the learned counsel for the appellant and we do not think that the argument of the learned counsel for the respondent that the enquiry officer in this particular case has gone into the merits and has given different finding should be accepted. As pointed out earlier, on the basis of the same set of evidence the officers who were directly in charge of the construction work were exonerated of the charge and we see no reason to pick out the appellant alone for finding him guilty of the charge."
16. We are, therefore, of the view that the DA could not have penalised the supervisory officer alone without even enquiring into the conduct of all other officials, who were involved in the lapse.
17. Learned counsel for the applicant has relied on a number of judgments of Hon'ble Supreme Court on the issue of delay in initiating and concluding departmental proceeding against the applicant. These judgments are not relevant in the context of the present case because the applicant had participated in the departmental proceeding without raising any complaint that the delay caused in the initiation and conclusion of the proceeding had caused any prejudice to his defence. The delay in itself is not a ground on which the disciplinary proceeding can be invalidated. 16 OA No.2621/2013
18. Learned counsel for the respondents has cited the case of Hon'ble Supreme Court in B.C.Chaturvedi (supra) in support of the contention that it was not necessary for the DA to discuss materials in detail and contest the conclusion of the EO. There cannot be two opinions about the fact that the report of the EO is recommendatory in nature and it is for the DA to take the final decision keeping in mind the views expressed by the EO, at the same time, the DA cannot act arbitrarily and disagree with the findings in the departmental enquiry without any indication, if not a detailed explanation or the reason for such disagreement. The only explanation for not accepting the report of the EO is stated as "the Assistant Director being the competent officer for issue of possession letter, was duty bound to verify the genuineness of the documents. He cannot depend totally on the subordinate staff in this regard". When this issue has been discussed in detail in the departmental enquiry as well as the judgment of learned Metropolitan Magistrate (ibid) the DA was expected to explain reason for rejecting the evidence and finding of the EO so that the applicant could reasonably respond to the disagreement note in his defence. The law is well established that the Disciplinary Authority or Appellate Authority performing quasi judicial role have to indicate reasons as to why they have arrived at certain decision so that the delinquent officer can adequately defend himself and the Court also during the judicial review can 17 OA No.2621/2013 decide whether the decisions had been taken in accordance with law.
19. Learned counsel for the respondents has placed reliance on the judgment of Hon'ble High Court in WP No.17721-22/1994 titled UOI vs. S.K.Mathur dated 21.10.2010, UOI vs. M.K.Sarkar, 2010 (2) SCC 59 and United Commerical Bank vs. P.C.Kakkar, 2003 (4) SCC 364 to argue that there was no doctrine of negative equality.
20. We have considered this submission but find that in the present OA it is not a question of negative equality. The issue raised, which carries conviction, is that there were a few other officials who were in the chain through which the possession letter/No Objection Certificate were issued on the basis of the forged identity papers. The respondents did not act against the other two officials who according to the distribution of work and the reasons discussed earlier in this order had greater responsibility for verifying the correctness of the documents. While the applicant cannot claim the benefit that has been wrongly given to others in view of the doctrine of negative equality, it also does not permit the authorities to adopt a policy of pick and choose by not proceeding against other officials despite being aware of their role in verifying the correctness of the document. We are, therefore, of the considered view that the 18 OA No.2621/2013 aforementioned judgments do not have application in the present case.
21. In the background of preceding discussion and for the reasons stated above, the OA is allowed. The impugned orders of DA and AA are quashed. The applicant will be entitled to all consequential benefits. The respondents shall implement this order within a period of 8 weeks from the date of receipt of a certified copy of this order. No costs.
( V.N.Gaur ) (Justice M.S. Sullar) Member (A) Member (J) 'sd' 4th August, 2016