Central Administrative Tribunal - Delhi
Farooq Anjum vs South Delhi Municipal Corporation on 11 November, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.831/2013 WITH OA NO.1037/2013 & OA NO.1038/2013 NEW DELHI THIS THE 11TH DAY OF NOVEMBER, 2013 HONBLE MR. G.GEORGE PARACKEN, MEMBER (J) HONBLE MR. ASHOK KUMAR, MEMBER (A) OA No.831/2013 Farooq Anjum, S/o Sh. Anwar-Ul-Hasan, R/o 53-A, Pkt-M, Janta Flats, Sarita Vihar, New Delhi Applicant (By Advocate: Mr. M.K. Bhardwaj) VERSUS 1. South Delhi Municipal Corporation Through its Commissioner, Civic Centre, New Delhi. 2. The Additional Commissioner (Engg.), South Delhi Municipal Corporation, Civic Centre, New Delhi Respondents (By Advocate: Mr. R.K. Jain) OA No.1037/2013 Sudhish Singh Chouhan, S/o Sh. Nathu Singh Chouhan R/o Flat No.11, A-135, Panchsheel Vihar, Malviya Nagar, Delhi. Applicant (By Advocate: Mr. M.K. Bhardwaj) VERSUS 1. South Delhi Municipal Corporation Through its Commissioner, Civic Centre, New Delhi. 2. The Additional Commissioner (Engg.), South Delhi Municipal Corporation, Civic Centre, New Delhi Respondents (By Advocate: Mr. R.K. Jain) OA No.1038/2013 Sushil Kumar, S/o Sh. Sohan Lal, R/o H. No.743, Block C-2, Palam Vihar, Gurgaon Applicant (By Advocate: Mr. M.K. Bhardwaj) VERSUS 1. South Delhi Municipal Corporation Through its Commissioner, Civic Centre, New Delhi. 2. The Additional Commissioner (Engg.), South Delhi Municipal Corporation, Civic Centre, New Delhi Respondents (By Advocate: Mr. R.K. Jain) ORDER (ORAL) MR. G.GEORGE PARACKEN, MEMBER (J):
According to the learned counsel for the applicants, these three OAs are identical in nature. In this regard, he has invited our attention to the memo no. ADOVIII/RSRI/2008/2915 issued to one of the Applicants, namely Mr. Farooq Anjum on 03.06.2008. The said memo reads as under:-
MUNICIPAL CORPORATION OF DELHI VIGILANCE DEPARTMENT No.ADOV/III/RSRI/2008/2915 Dt. 03.6.2008 MEMO THAT, Sh. Farooq Anjum working as J.E. in Div. (M)-IV, South Zone is duty bound to maintain absolute integrity & devotion to duty and not to behave in a manner which is unbecoming of Municipal Employee. WHEREAS, Sh. Farooq Anjum, J.E. in Div (M)-IV, South Zone is duty bound to ensure proper lifting of silt excavating form the nallas existing in the area under his jurisdiction, transportation to the designated site and also to issue slips for silt under his signature to the drivers of vehicles carrying silt as per standing instructions. AND WHEREAS, during surprise check of SLF site Okhla by Vigilance Team on 12/5/2008 at 10 P.M. Onwards it was found that one vehicle having registration no.HR38K6512 full of malba having duly signed slip for silt was found which was confirmed by the incharge J.E. Sh. Jagdish who was on duty at that time. AND WHEREAS, Sh. Farooq Anjum, J.E. in Div. (M)-IV, South Zone as is evident from the above mentioned lapses committed gross misconduct in contravention of standing instructions and failed to maintain absolute integrity, devotion to duty and behaved in a manner which is unbecoming of an employee of MCD. NOW THEREFORE, I have been directed to have explanation of Sh. Farooq Anjum, J.E. in Div (M)-IV, South Zone on the above lapse within 10 days of the receipt of this Memo.
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Asstt.Director of Vigilance-III Sh. Farooq Anjum, J.E. in Div. (M)-IV, South Zone, Through: A.D.C. (Engg.)
2. He has also invited our attention to the identical statement of allegations on the basis of which charge dated 27.01.2012 has been framed against Shri Farooq Anjum , which reads as under:-
Shri Farooq Anjum was working as Jr. Engineer in Divn. M-IV, South Zone during the year 2008. Under the orders of Chief Vigilance Officer, the SLF site of Okhla was inspected by Vig. Deptt. On 2.5.2008, 3.5.2008, 12.5.2008 and 14.5.2008. On 12.05.2008, S/Shri Satish Kumar, SI, Raghubir Singh, VI, Brahm Prakash, VI and Rajiv Srivastava, VI, Vig. Deptt. were deputed to check the site. During checking, 02 trucks were found laden with Malba whereas slips were issued for silt. It further revealed that one slip was issued by Shri Baljeet Singh, JE and another by Shri Farooq Anjum, JE. During checking, two beldars namely S/Shri Gurran and Kali Murti were also found absent from the site without any information/permission. From the foregoing, it is evident that Shri Farooq Anjum, Jr. Engineer failed to maintain absolute integrity, devotion to duty and committed gross misconduct in as much as he in connivance with the contractor issued slip for silt while malba was being dumped at the site which has caused financial loss to MCD. He, thereby, contravened Rule 3 (I) (i) (ii) (iii) of CCS (Conduct) Rules, 1964 as made applicable to the employees of MCD.
3. To demonstrate that similar memo has been given to all other persons along with him, the learned counsel has also invited our attention to the memo. no. ADOV/Spl.Cell/2008/2960 issued to Mr. A.P. Gupta, JE, M-I, West Zone, MCD on 03.06.2008. The said memo reads as under:-
MUNICIPAL CORPORATION OF DELHI VIGILANCE DEPARTMENT 16, Rajpur Road Civil Lines, Delhi-110054.
No.ADOV/III/Spl.Cell/2008/2960 Dt. 03.6.2008 MEMO That, Sh. A.P. Gupta while working as JE was required to maintain absolute integrity, devotion to duty which is unbecoming on the part of Municipal Officer. Whereas, Sh. A.P. Gupta, while working as JE in Div. M-I West Zone was to ensure proper lifting of silt excavated form the Nallahs existing in the area under his jurisdiction, transportation designate SLF site and also to issue slips for silt under his signature to Drivers of Vehicles carrying silt as per standing instructions. And Whereas, during surprise check of SLF site Bhalaswa carried out vigilance team on 7,10,11.05.08 at 10 P.M. onwards the vehicles having registration no.HR55A 2605 full of malba having duly signed slips for silt we found which was confirmed by the incharge JE/AE_____who was on duty at that time checked and corrected the slips as malba. And Whereas, Sh. A.P. Gupta, JE (M)-I West Zone as is evident from the above mentioned lapses committed gross misconduct in contravention of standing instructions and failed to maintain absolute integrity devotion to duty and behaved in a manner which is unbecoming on the part of Municipal officer. Now Therefore, I am directed to have the explanation a Sh. A.P. Gupta, JE on the above mentioned and within (10) day positively.
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Asstt.Director Vigilance (Spl. Cell) Sh. A.P. Gupta, JE, M-I West Zone Through ADC (Engg.) Town Hall, MCD
4. Learned counsel for the applicants has also submitted that the similar and identical memos have been issued to the other similarly placed persons like A.K. Mittal, Anil Bansal, Salman Khan, S.K. Nagar, Harish Kumar, and Vinod Sharma. All of them have filed replies to the aforesaid memos. Thereafter, regular departmental action was taken against all of them vide RDA No.1/53/2008. However, considering the replies given by them the Commissioner of NDMC vide his orders dated 24.07.2012 finally decided to issue only advisory memos to them and to drop the proceedings. The letter issued in this regard is reproduced as under:-
SOUTH DELHI MUNICIPAL CORPORATION VIGILANCE DEPARTMENT 26TH FLOOR, J.L.N. MARG, S.P.MUKHERJEE CIVIC CENTER, J.L.N. MARG, N.DELHI-110002.
No.AE/VIG/DV/2012/SD42 Dated: 31.07.2012 Advisory Memo Commissioner, NDMC vide his orders dated 24.7.2012 has ordered to issue an advisory memo to the following officials in RDA No.1/53/2008. Accordingly, advisory memo is being issued to them. Sh. A.K. Mittal S/o Sh. O.P. Mittal, JE (LAC AE)/SDMC Sh. A.P. Gupta S/o Sh. Baleshwar, JE/SDMC Sh. Anil Bansal S/o Sh. Malvinder Bansal, JE/SDMC Sh. Salman Khan S/o Sh. Mohd Usman Khan, JE/SDMC Sh. S.K. Nagar S/o Sh. Daya Ram, JE/SDMC Sh. Harish Kumar S/o Sh. Amar Singh, JE/SDMC Sh. Vinod Sharma S/o Sh. Laxmi Narayan, JE/SDMC It has further been ordered by Commissioner, NDMC that RDA No.1/53/2008 pending against the aforesaid officials be dropped. This is issued and notified for information and necessary action by all concerned.
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Asstt. Engineer (Vigilance) Distribution:
Sh. A.K. Mittal S/o Sh. O.P. Mittal, JE (LAC AE)/SDMC Th: ADC(Engg.)/SDMC Sh. A.P. Gupta S/o Sh. Baleshwar, JE/SDMC Th: ADC(Engg.)/SDMC Sh. Anil Bansal S/o Sh. Malvinder Bansal, JE/SDMC Th: ADC(Engg.)/SDMC Sh. Salman Khan S/o Sh. Mohd. Usman Khan, JE/SDMC Th:
ADC(Engg.)/SDMC Sh. S.K. Nagar S/o Sh. Daya Ram, JE/SDMC Th: ADC(Engg.)/SDMC Sh. Harish Kumar S/o Sh. Amar Singh, JE/SDMC Th: ADC(Engg.)/SDMC Sh. Vinod Sharma S/o Sh. Laxmi Narayan, JE/SDMC Th: ADC(Engg.)/SDMC ADC/Engg./SDMC ALO/Vig-I Guard File Office copy
5. Learned counsel for the applicants states that when the memo of charges against the aforesaid seven Junior Engineers and those against the applicants were identical, in their cases also the departmental proceedings should have been dropped after issuing the advisory memos. Therefore, the contrary action on the part of the request is arbitrary, illegal and in violation of Article 14 of the Constitution of India. In this regard, he has relied upon the judgment of the Apex Court in the case of Budhan Choudhary and others Versus State of Bihar (1955) SCR 1045. The relevant part of the said judgment reads as under:-
It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. He has also relied upon the judgment of the Apex Court in the case of State of Uttar Pradesh and others Versus Raj Pal Singh (2010) 5 SCC 783. The relevant part of the aforesaid judgment reads as under:-
It is undoubtedly open for the disciplinary authority to deal with the delinquent and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution. Further, he has relied upon the judgment of the Allahabad High Court in Writ Petition No.9411/1989 in the case of Ram Pratap Versus State of U.P. and others, 1999(2) ATJ 325. The relevant part of the said judgment reads as under:-
In the Writ Petition it was specifically stated that against Khushal Singh, the Assistant Engineer working with the petitioner, similar charges have been leveled against the petitioner. The administrative tribunal conducted the inquiry and recommended for his dismissal from service but he was awarded only a minor punishment of stoppage of three yearly increments. In the counter affidavit no reason whatsoever has been disclosed as to why discriminatory treatment was given to the petitioner and as to why the petitioner was removed from service, particularly when Khushal Singh was awarded only minor punishment of stoppage of yearly increments. The impugned order is thus violative of Article 14 of the Constitution of India and is liable to be set aside on this ground also.
6. Respondents have filed their reply stating that the applicants in these OAs along with others were issued memo on 03.06.2008 on certain allegations and they have submitted their reply to the same. Thereafter, the charge sheet has been issued to the applicants. Further, they have stated that the persons to whom charge memo were issued along with them, are now working in NDMC and their cases, after issuing the advisory memo, the charges have been dropped. However, the applicants are presently working in SDMC. They have also stated that the other persons named by the applicants were working in different zones and against different/higher posts at the relevant time. Further accordingly to them, as per record, advisory memos/warning letters were issued to all the JEs/AEs/EEs and the disciplinary proceedings have been dropped against all of them under the orders of Commissioner, NDMC and not under the orders of the Commissioner, SDMC. However, the disciplinary proceedings have not been dropped against the applicants herein but they have been proceeded departmentally under Regulation 8 of the DMC Services (Control & Appeal) Regulations, 1959. Hence the applicants herein cannot claim that they are similarly placed with those persons.
7. We have heard learned counsel for the parties. We have also perused the entire documents available on record. It is an undisputed fact that the applicants and some similarly placed officials of the undivided MCD were proceeded against departmentally and served with identical memo of charges. Subsequently, on trifurcation of MCD, most of them remained under NDMC and the Applicants with SDMC. The Commissioner, NDMC decided to drop the charges against those who were working under him after issuing an advisory memo. In respect of the Applicants who became part of SDMC, no such action was taken. The only reason given by the respondents is that those against whom memo of charges have been dropped are working in the NDMC and the Applicants are working with SDMC. In our considered view, such an explanation by the Respondents is absolutely unreasonable.
8. In the judgment of the Apex Court in Budhan Choudhary and others (supra), it has been held that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together. Just because, after trifurcation of the Municipal Corporation, the applicants happened to be working in SDMC, the respondents cannot claim that the applicants are not similarly situated and they can treat them differently.
9. In the above identical facts and circumstances of these cases, we allow this OA and quash and set aside the impugned order and hold that the Applicants are also entitled to be treated in the same manner as in the case of other similarly placed persons against whom the charges have been dropped after issuing the advisory memo. We, therefore, direct the Respondents to pass necessary orders accordingly. Consequently, the applicants will also be entitled to all consequential benefits as in the case of their counterparts against whom the charge memos have been dropped by the Commissioner, NDMC. The aforesaid directions shall be complied with within two months from the date of receipt of a copy of this order.
10. There shall be no order as to costs.
(Ashok Kumar) (G. George Paracken) Member (A) Member (J) /jk/