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Dy. Law Officer (Vig.) In all other cases similar orders were passed against the respondents with the difference about number of properties booked for unauthorised construction in their respective zones. However, the reasoning given as reflected in the italicized portion for dispensing with the enquiry while dismissing the respondents from their services in the MCD are same.

11. According to the petitioners since that order was not sought to be interfered with by moving a review application or an impleadment application before the PIL Bench despite the orders were available on website, the respondents were not entitled to assail the order before the Tribunal where they approached clandestinely, inasmuch as initially through the Forum of MCD Engineers, they tried to assail the order passed by the PIL Bench in Kalyan Sanstha‟s case (supra) by filing a SLP before the Supreme Court but did not follow it and allowed the same to be dismissed in default and in this manner allowed considerable time to lapse for reasons best known to them. Thereafter, they filed appeals before the Lt. Governor of Delhi. The petitioners submit, that it was only another attempt to buy time because the Hon‟ble Lt. Governor also in the light of directions of this Court in PIL Case probably was not in a position to interfere with the orders dated 7.4.06.

17. The respondents on the other hand have justified the orders passed by the Tribunal by stating that in the PIL case this Court only passed orders for taking disciplinary action against the erring officials who were found to have abetted or connived in unauthorized construction with 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. According to them the PIL Bench never directed the petitioners to take any action against the officials who were not found wanting in their responsibilities. In compliance with the directions of the Bench 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 were initiated 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 stated that the PIL Bench never passed any order for dispensing with the departmental enquiries and for terminating services of the respondents by invoking Section 95(2)(B) that too without finding and ascertaining the guilt or even not giving the erring officer a show cause notice as required even by the aforesaid provision. 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. However there is no explanation as to why were enquiries conducted against 178 SEs, EEs, AEs and JEs. It is further the case of the respondent that though the High Court gave two months time to the petitioners 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 respondent were not terminated without conducting enquiry, the Court would pass severe strictures against the vigilance department of MCD. It is pleaded that the respondents were not a party to the said PIL, and for that reason as well the orders passed by the High Court were not applicable in the case of the respondents and further the MCD has not brought all the facts regarding functioning of the respondents or the actions taken by the building department in their zone during his tenure respectively where almost every day demolition/sealing actions were planned and taken whenever police assistance was made available. In addition to that they have also refered to the procedure which regulates the functioning of the Building Department of MCD which does not rest the responsibility solely on the Executive Engineers (B).

26. The Tribunal further observed 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 respondent, there was no impediment in the way of the respondents in resorting to departmental proceedings in the case of the respondent as well. It is significant to mention that to the plea raised by learned counsel for the respondent that if others facing similar charges were departmentally tried, there could be no earthly reason to deviate from the said procedure qua the respondents no reply except that the respondents in the matter of demolition of illegal constructions had a pivotal role to play has been stated. It is not denied that those who were departmentally tried also at least shared the responsibility in the matter of demolition of illegal constructions. The Tribunal thus held that the only distinction sought to be made by the respondent MCD in adopting different procedures for its employees is wholly unjustified. If the petitioners found it practicable to hold departmental proceedings against as many as 178, including officers junior and senior to the respondent, there should not have been any difficulty in resorting to the same procedure insofar as, the respondent is concerned. Even if it be admitted that the respondent 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 respondents are concerned. It is stated that even from the orders passed by the PIL Bench (supra) no distinction between the case of the respondent 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.

44. Now coming to the second exception, we are in agreement with the Tribunal that in the present case once the petitioners themselves have resorted to holding a regular departmental enquiry in case of Assistant Engineers/ Joint Engineers numbering in hundreds for the same charges there is no reason which comes out or has been culled out by the petitioners to justify dispensation of the enquiry in the case of the respondents who are only part of the chain which may be ultimately held to be responsible for mushrooming of unauthorized construction in the State of Delhi. However the question as to whether they are to be dismissed from service or some other punishment is to be imparted on them would require consideration by the disciplinary authority but for that it would be necessity to consider the explanation as may be furnished by the respondents. Such procedure cannot be ruled out, rather it would be necessary as observed by the Tribunal with which we also agree, more so because in this case the respondents were not before this Court in the PIL as referred to above. The directions given by the PIL Bench in that case to dispense with the enquiry by observing that principles of audi alteram partem may not be applicable against persons who are responsible in law to do a particular thing but violates the law cannot be made applicable to the case of the respondents without even giving them a preliminary hearing to satisfy the authority or to explain their role in booking sealing or ultimately demolishing the unauthorized construction which can only be done by a joint effort of all concerned including senior officers such as Divisional Commissioners who are the ultimate persons responsible for carrying out the demolition action.