Central Administrative Tribunal - Delhi
Shri P.C. Jain vs The Delhi Development Authority on 18 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.509/2010 New Delhi, this the 18th day of February, 2011 CORAM: HONBLE MR. JUSTICE S.D. ANAND, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri P.C. Jain, S/o Late D.D. Jain, Aged about 56 years, R/o B-90, Paryabaran Complex, Gali No.5, Ignu Road, Saket, Delhi 110 030 Applicant (By Advocate: Shri Sidharth Joshi) VERSUS 1. The Delhi Development Authority, Through its Vice Chairman, Vikas Sadan, INA Market, New Delhi 2. Commissioner Personnel, Delhi Development Authority, Vikas Sadan, INA Market, New Delhi 3. Shri D.K. Roy, CE (Retd) Inquiry Officer, DDA Office Complex, Phase-I, Ashok Vihar, Near Railunder bridge, Delhi 110 052 Respondents (By Advocate: Shri Karunesh Tandon) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, a JE under the DDA, is seeking relief at the interlocutory stage by challenging the initiation of a major penalty disciplinary inquiry against him under Regulation 25 of the DDA (Conduct, Disciplinary and Appeal) Regulations, 1999.
Vide the impugned memorandum dated 28.8.2009 and the orders No. 8838 dated 22.10.2009 and No. 8841 dated 22.10.2009 respectively, the charges have been framed and the Inquiry Officer and the Presenting Officer appointed. The OA prays quashing the impugned orders with award of all consequential benefits, including costs against the respondents. Besides, any other and further orders deemed fit in the interest of justice, have also been prayed.
On request, interim directions restraining the respondents from proceeding further in the inquiry have been issued from time to time, by the Tribunal.
2. We have heard the learned counsels, Shri Sidharth Joshi and Shri Karunesh Tandon for the applicant and the respondents respectively. We have also carefully the material on record.
3. The following article of charge had been framed against the applicant:-
That he allowed the occupancy in Govt. property i.e. Shop No.10, CSC, Pkt. B, Hastsal, New Delhi to a person not provided by the law, thereby committed an act beyond the power conferred on him while performing the official duty.
That the said Sh. P.C. Jain, JE (C) by his above act exhibited lack of devotion to duty, and conduct unbecoming of an employee of the Authority thereby violating sub-rule 1 (i) and 1 (iii) of Regulation 4 of the DDA Conduct, Disciplinary & Appeal Regulation 1999. The statement of imputation of misconduct mentioned regarding the factum of unauthorized occupancy having been proved in course of a preliminary inquiry by a Superintending Engineer rank officer as per his report dated 26.12.2003. Besides, it was also stated that subsequently, the said premises had been got vacated on 11.10.2003 with the help of the local Police.
4. The main grounds, in support of the claims in the OA are: (i) the impugned memorandum suffering from the legal infirmity of delay and latches (ii) No case being made out in the instant case of a misconduct, as minor acts of negligence in discharge of day to day official duties did not constitute misconduct. (iii) having been deprived of the reasonable opportunity, fair play and justice. A host of judicial rulings have been cited in support of the OA.
The learned counsel for the applicant, besides emphasizing the judicial rulings, would mainly contend about the delay having caused tremendous prejudice against the applicant. The learned counsel would advert to the pleadings to this effect in paras 4.8 and 4.9 of the OA. As per the contentions therein, the eerie silence on the part of the respondents for about 6-7 years from the date of the preliminary report and about 12 years after the occurrence of the event in question had been done with malafide intention just to deny the applicant his right to claim for promotion to the next rank. Further, it had been averred that the applicant was handicapped in responding to the charges owing to his fake memory pertaining to a matter being more than 10 years old.
The learned counsel for the respondents, Shri Karunesh Tandon, would, however, rebut such contentions. It would be submitted by the learned counsel that before initiating the regular departmental inquiry, the factual matrix had been ascertained in a preliminary inquiry in which the CO had participated. Further, the fact of the admission on the part of the CO would also be adverted to. Drawing our attention to the submissions in the preliminary objections, para-2 of the CA, the learned counsel would contend the present one not being a case of undue or unexplained delay. In any case, as per the law laid down by the Honble Apex Court in The Government of Andhra Pradesh & Ors vs Appala Swamy {(2007) 3 SCALE 1}, the issue of delay should appropriately be raised by the applicant before the Inquiry Officer (IO).
6. The brief facts of the case are, that in 2003 a complaint was received by the respondents from one Shri Dilbagh Singh against Shri P.C. Jain, JE, about having appointed him as a Chowkidar since 18.11.1997 and allowing him to live in the Shop No.10 (as per the particulars in the Article of Charge) and his having been living in that place since that point of time and performing the duties of a Chowkidar. It was further stated that it had been decided to pay him Rs.2500/- per month. As per the allegation, the complainant had not been made any payment for the last five years.
On receipt of this complaint, a fact finding preliminary inquiry was got conducted through a SE rank officer. A copy of this report has been enclosed with the OA as Annex. A/6. Running into more than 20 pages, it is a detailed report. After questioning a large number of officers of various ranks (from JE to Executive Engineers) as well as Class-IV staff having been found associated in one or the other way with the subject matter; some non-officials, perusal of relevant records and even a site inspection by the officer entrusted with the preliminary inquiry; detailed findings were recorded in respect of various aspects of the matter.
As regards the occupancy by the complainant of the shop in question, the same was found to be borne out according to the preponderance of probability. It was also indicated that as it appears that the complainant had been living there during broken periods. The occupation was found to be clearly unauthorized and the allegation of appointment as a Chowkidar not found to be correct. However, it was reported that the complainant had been doing the work of scavenging / cleaning of road and parks in the adjoining pocket.
While determining the role of the applicant, the IO had considered his statements dated 14.10.2003 and 12.11.2003 regarding admittedly allowing the complainant to live in the CSC, but subsequently vacating the same after a week when the work of cleaning and sweeping was over. The subsequent statement of 20.11.2003 denying about ever having allowed the complainant to live in the CSC was also taken note. On consideration of all relevant aspects in course of the inquiry, the applicant had been found responsible for the following lapse:-
Occupation of Govt. property by the person not provided in the manner in law allowed thereby committing an act beyond the powers conferred on while performing official duties.
Shri P.C. Jain, JE while performing official duties allowed Shri Dilbagh Singh to live in one of the shops in Convenient Shopping Center at Hastsal, Pkt. B which is no doubt a Govt. property as constructed by DDA after incurring an amount of Rs.24 lacs (refer copy of final bill placed at CP-38-36). The aforesaid act has been admitted by him in his statement dated 14.10.2003 to his superiors (CP-15) but denied in his St. dated 20.11.03 during the inquiry (CP-35).
Being the Jr. Engineer, he was well aware that the shops are meant for allottees to whom the Commercial Estate Wing of DDA after completion of all required formalities in pursuance of demand cum allotment letter, issues possession letters for taking over possession from the Engineering Wing. He was to hand over the vacant possession to the perspective allottee and none else.
Thus by allowing Sh Dilbagh Singh to live in the shop, he acted beyond the powers conferred on him.
Lapse is attributable to Sh. P.C. Jain, JE. Suffice it would be to note at this point that the detailed nature of the preliminary inquiry, participation of the delinquent therein, and the reasoned findings, are viewed as having a direct bearing on the issues under adjudication in the present OA.
7.1 The basic plea taken in the OA as well as reiterated by the learned counsel for the applicant is with regard to the delay in the initiation of the impugned proceedings. While the OA cites a number of judicial decisions on this aspect, to be further supplemented by several others by the learned counsel; in view of the fairly settled law on the subject, we do not find it really necessary to go into those details. We would briefly like to recapitulate in this context the broad parameters as laid down by the Honble High Court of Delhi in its decision in Delhi Development Authority & Ors vs D.P. Bambah & Anr {(LPA 39/1999) decided on 29.10.2003} 15. In our opinion the legal position, when an action is brought seeking quashing of a charge sheet on grounds of issuance of the charge-sheet or grounds of inordinate delay in completion of the disciplinary inquiry may be crystalised as under:
(i) Unless the statutory rules prescribe a period of limitation for initiating disciplinary proceedings, there is no period of limitation for initiating the disciplinary proceedings.
(ii) Since delay in initiating disciplinary proceedings or concluding the same are likely to cause prejudice to the charged employee, courts would be entitled to intervene and grant appropriate relief where an action is brought.
(iii) If bone fide and reasonable explanation for delay is brought on record by the disciplinary authority, in the absence of any special equity, the Court would not intervene in the matter.
(iv) While considering these factors the court has to consider that speedy trial is apart of the facet of a fair procedure to which every delinquent is entitled to vis-`-vis the handicaps, which the department may be suffering in the initiation of the proceedings. Balancing all the factors, it has to be considered whether prejudice to the defence on account of delay is made out and the delay is fatal, in the sense, that the delinquent is unable to effectively defend himself on account of delay.
(v) In considering the factual matrix, the court would ordinarily lean against preventing trial of the delinquent who is facing grave charges on the mere ground of delay. Quashing would not be ordered solely because of lapse of time between the date of commission of the offence and the date of service of the charge sheet unless, of course, the right of defence is found to be denied as a consequence of delay.
(vi) It is for the delinquent officer to show the prejudice caused or deprivation of fair trial because of the delay.
(vii) The sword of Damocles cannot be allowed to be kept hanging over the head of an employee and every employee is entitled to claim that the disciplinary inquiry should be completed against him within a reasonable time. Speedy trial is undoubtedly a part of reasonableness in every disciplinary inquiry. Further, the Honble Apex Court in State of Andhra Pradesh vs N. Radhakrishan {(1998) 4 SCC 154} emphasizing that each case needs to be decided as per the facts and circumstances, and the need for striking a balance between the administrative compulsions of a clean and honest administration and the demands of natural justice of not subjecting an employee to avoidable harassment by indefinitely prolonged disciplinary proceedings, had ruled the following:-
It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is not explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the Proceedings. 7.2 Being guided by the law, as laid down by the superior Courts, we need to consider the explanation rendered by the respondents to explain the reasons and the circumstances of the delay. The counter reply states the following sequence of events:-
a) Receipt of complaint : 20.09.2003
b) Preliminary Inquiry Report : 28.12.2003
c) Registration of the case in : 11.03.2004 the Vigilance Unit
d) Issuance of letters to the : 10.05.2007& applicant asking him for his 23.07.2007 version
e) Representation : 30.07.2007
f) Reply : 13.08.2007
g) Opinion of CVC : 22.07.2009
h) Issuance of Charge Sheet : 28.08.2009 The above would show that even though the alleged misconduct had originated in the year 1997; however, in view of the same coming to the knowledge of the respondents much later, the cause of action in this case would justifiably be taken from the year 2003. The only slot we find of delay is between the period 2004 to 2007. However, the same needs to be viewed in the totality of the circumstances. Besides, the critical determining factor remains as to whether the delay has caused any prejudice against the delinquent to defend himself against the charge. Considering the nature of the charge, the factum of the detailed preliminary fact finding inquiry and the involvement of the delinquent in the same; we are not convinced of the delay in this case having caused any prejudice.
Before proceeding further, we find it apt to refer to the following law laid by the Honble Apex Court in Appala Swamys case (supra) and relied upon by the respondents:-
12 . The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
Where by reason of the delay the employer condoned the lapses on the part of the employee;
Where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer.
8. It is also important that the relief claimed in this case is at the interlocutory stage. The applicant has only been issued a charge sheet. The inquiry is still to be conducted as per the rules, in which the applicant will have due opportunity to defend himself including raising the plea of delay. Further, the final decision of the competent authorities has yet not been taken. Considering the trite law of taking disciplinary action being within the legitimate domain of the executive authorities and the quasi-judicial nature of the disciplinary proceedings, any judicial intervention at the interlocutory stage is ordinarily not resorted to. We also do not at this stage consider it necessary to deal with the other pleas raised by the applicant.
9. To conclude, we do not find the present case as a fit one warranting our judicial intervention impeding the impugned charge memorandum being taken to its logical conclusion. We would, therefore, not like to quash or set it aside. However, at the same time, it would not be in the interest of justice to delay the completion of the inquiry and the final decision indefinitely. Therefore, to meet the ends of justice, this OA is disposed with a direction to the respondents to complete the inquiry as well as the decision of the disciplinary authority at least, within a period of four months. This would be from the date of receipt of a copy of this order. Needless to say the stipulated time frame envisaged in this direction is subject to the Charged Official extending full co-operation. There shall be no order as to costs.
(VEENA CHHOTRAY) MEMBER (A) (S.D. ANAND) MEMBER (J) /pkr/