ORDER Y.K. Sabharwal, J.
1. The respondent joined the Municipal Corporation of Delhi (MCD) as a Junior Engineer on 15th April, 1981. He was posted in City Zone as a Junior Engineer on 20th April, 1981 and remained as such till 2nd November, 1982. The respondent was placed under suspension on 2nd November, 1982 in connection with a Departmental case with which we are not concerned. It was noticed that there was unauthorized construction of four storeyed market at Ground Floor, First Floor, Second Floor and Third Floor at premises No. 1366/5 Maliwara within the jurisdiction/area of respondent. Mr. Ram Kishore, Junior Engineer booked the said unauthorised construction and lodged the FIR on 9th November, 1982. Ram Kishore had taken over as Junior Engineer from the respondent on 3rd November, 1982. On 8th December, 1982, one Mr. P.K. Jain, Junior Engineer (Building) inspected the site and found and noted the unauthorised construction. The show cause notice was also issued to the owner - builder in respect of the unauthorised construction.
2. The respondent was served with a charge-sheet on 8th December, 1983. The charge against the respondent, inter alia, was that during the year 1982 he committed gross mis-conduct and failed to maintain absolute integrity and devotion to duty, inasmuch as with mala fide intention he did not book the aforesaid unauthorised construction during his tenure as Junior Engineer. It may also be noticed that Ram Kishore had also been proceeded with departmentally and was charge-sheeted for the unauthorised construction that took place between 9th November, 1982 and 8th December, 1982. A Director of Enquiry was appointed. On the basis of the material placed on record and testimony of the witnesses produced before the Enquiry Officer, he came to the conclusion that the statement of allegations as contained in the charge-sheet had been proved against the respondent. The Disciplinary Authority in terms of notice dated 25th November, 1985 proposed to inflict the respondent penalty of dismissal from service. On 10th October, 1986, the Disciplinary Authority after giving personal hearing to the respondent confirmed the proposed penalty of dismissal from service. The Disciplinary Authority, inter alia, held that considering that it was a case of huge, commercial unauthorised construction, it was the duty of the respondent Junior Engineer to prevent it and take appropriate action against it; he has failed miserably in discharging his duties and thereby helped the builder and evidently, it could not have been done without his connivance with the builder. On 2nd February, 1988 the Appellate Authority, after hearing the respondent and perusing of the record dismissed the appeal preferred by the respondent. The Appellate Authority, inter' alia, observed that he was unable to accept the plea of the respondent that unauthorised construction of such a magnitude had not come up during the period when he was the Incharge of the area. The Appellate Authority did not find any justification to interfere with the decision of the Disciplinary Authority.
3. Under the aforesaid circumstances, writ petition out of which this appeal has arisen, was filed by the respondent challenging the finding of the Enquiry Officer and questioning the penalty of dismissal from service imposed on him.
4. The learned Single Judge observing in the impugned judgment that the writ court does not sit as a court of appeal has declined to set aside the Enquiry Report. Considering, however, the facts and circumstances of the case, the learned Judge has come to the conclusion that lessor penalty deserved to be inflicted. The learned Single Judge Took into consideration, as a mitigating circumstance for awarding lessor punishment to the respondent, the fact of the Enquiry Officer having failed to take into consideration the statement and the report of one Mr. Jolly. The impugned judgment holds tht the Enquiry Officer has failed to take into consideration the vital aspect of the report and statement of Mr. Jolly and also other facts which show his non-application of mind which were mitigating circumstance to reduce the penalty. Another mitigating circumstance taken into consideration was that although the original Charge framed against the respondent was that he failed to maintain absolute integrity but that charge had not been proved and the only charge of negligence and dereliction of duty of serious nature had been proved against him. It was also noticed by learned Single Judge that the respondent was a young man and diploma holder and penalty of dismissal will debar him from getting any job in Government service in future and also that although charge against Ram Kishore was proved but he had been lightly dealt with by the department in the matter of awarding the punishment. Accordingly, the learned Single Judge held that the ends of justice will be met in case the respondent's penalty of dismissal from service is converted into minor penalty of stoppage of two increments with cumulative effect. Further it was held that respondent will not be entitled to any salary from the date of termination of his services till date of reinstatement.
5. The MCD is in appeal. It deserves to be noticed that the respondent did not file any appeal against the impugned judgment. While admitting the appeal on 5th May, 1993, the operation of the impugned judgment was stayed. The respondent was served in the appeal sometime in May, 1994. About a year later an application (CM. 1146 95) was filed by the respondent seeking vacation of the order dated 5th May, 1993 and in the alternative praying that LPA be set-down for final disposal on some early date. On 16th August, 1995 respondent filed reply to the present grounds of appeal and also cross-objections against the impugned judgment. Along with the reply cross-objections, an application (CM. 1932/95) was filed seeking condensation of delay in filing the cross-objections. The only ground stated in CM. 1932/95 is that when CM. 1140/95 came up for hearing before the court, the court observed that since no cross-objections have been filed by the respondent, he could not challenge the judgment of learned Single Judge whereby the learned Single Judge had declined to set-aside the Enquiry Report and in this view the objections have been filed as also an application seeking condensation of delay.
6. On the facts and circumstances noticed above, we find hardly any ground justifying condensation of delay. The respondent has not been able to show any cause much less sufficient cause to condone the delay in filing the cross-objections. It may also be noticed that learned counsel for the respondent did not seriously dispute that if the MCD had not filed the appeal challenging the quantum of punishment, inflicted by learned Single Judge, respondent would not have preferred an appeal against the impugned judgment.
7. Assuming that the delay in filing the cross-objections may be condoned, we find merit in the submission of Ms. Tewatia, learned counsel for the appellant that the cross-objections were not maintainable.
8. In Union of India and another Vs. The Wearwell Cycle Co. (India) Ltd. and another AIR 1986 Delhi 5, a Division Bench of this Court held that in Letters Patent Appeal against decision in the writ petition, cross-objections were not maintainable. It is true that this decision is based on the concession of counsel for the respondent but there are other decisions wherein similar opinion has been expressed In Mt. Dropadi Devi and another Vs. S.K. Dutt and another , a Division Bench of Allahabad High Court has held that in a Letters Patent Appeal there was no right to file cross-objections. This decision was affirmed in Sukhanand Mathura Prasad Vs. Baikunth Nath and it was again reiterated that right to file cross-objections was not available in the Letters Patent Appeal. We are in respectful agreement with the views of Allahabad High Court. The cross-objections are thus not maintainable.
9. Apart from above, we have independently also examined the entire matter and have perused the material on record including the statement of Mr. S.S. Jolly and also his report. On the facts and circumstances of the case, the mere fact that Mr. Jolly had not compared the unauthorised construction with the House Tax record is not at all of any significant consequence so also the number of unauthorised constructed rooms. It deserves to be noticed that Mr. Jolly had, inter alia, stated in his deposition before the Enquire Officer, while admitting that he had not consulted the House Tax record for the purpose of verification of the extent of accommodation, that the entire building was constructed from the foundation upto the 4th floor and the verbal local enquiry made at the site revealed that the construction work had started in October, 1982 and from appearance also it was clear that the structure was constructed from Ground Floor to Third Floor (Commercial). The present is not a case of finding of enquiry officer being perverse. Admittedly, it is also not a case of denial of opportunity. The respondent had been granted ample opportunity. Reference may be made to the case of B.C. Chaturvedi Vs. Union of India and others (1995) 6 Supreme Court Cases 749 holding that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. On the facts of the case, it cannot be held that the respondent did not get fair treatment at the hands of the Enquiry Officer or the Disciplinary Authorities. It also cannot be held that the finding was based on no evidence. In the present case, the interference with the report of the Enquiry Officer is not called for since it cannot be held that the conclusions arrived at by the Enquiry Officer are such which no reasonable person could arrive at. The respondent was granted sufficient opportunity not only before the Enquiry Officer but was also granted right of personal hearing by the Disciplinary Authority and further by Appellate Authority. There is no error patent on the face of the record. The decision in the case of Union of India Vs. H.C. Goel relied upon by Mr. G.D. Gupta has no applicability to the present case since neither it is a case of "No evidence" nor can it be held that no reasonable person would have acted on the evidence nor can it be held that there was any error in a decision making process or that any important evidence was ignored. The facts of the decision in H.C. Goel's case show that it was case of no evidence. There can be no quarrel with the proposition that test of perversity is that the findings may not be supported by any legal evidence at all. This proposition for which Mr. Gupta relied upon Central Bank of India Ltd. Vs. Prakash Chand Jain , has no application to the facts of the Present case. Here it cannot be concluded that the findings are not based on any legal evidence. The decision in the case of Nand Kishore Prasad Vs. The State of Bihar and others , for the similar reasons, has no applicability to the present case. It may be reiterated that judicial review is not an appeal from the decision of the authorities. What is to be gone into is not the correctness of the decision but the correctness of decision making process. In the present case, there is no infirmity in the decision making process.
10. Lastly, dealing with the question of quantum of punishment, it has tobe borne in mind that there is rampant unauthorised construction in Delhi. We are constrained to observe that in all likelihood such unauthorised constructions of huge markets and buildings cannot be undertaken without the connivance of the officers of Municipal Authorities and other Departments. We are firmly of the view that the punishment for those who may be responsible, directly or indirectly for coming up of such unauthorised constructions shall be deterrent. Public interest would be the casualty if while awarding the punishment in such cases leniency is shown. A message is required to be sent that despite the position an officer may hold in the hierarchy, he would be severely dealt with in case of direct or indirect involvement in the unauthorised construction of the nature with which we are concerned. In the present case unauthorised construction of a market took place during the tenure of respondent as a Junior Engineer within the area under his jurisdiction and the authorities had inflicted punishment of dismissal which has been ordered to be converted into a minor penalty in terms of judgment under appeal.
11. In State of U.P. and others Vs. Ashok Kumar Singh and another , the Supreme Court while dealing with punishment inflicted on a Police Constable who had been found to be absent on several occasions and in whose case the order of removal from service pursuant to a duly conducted Department Enquiry was quashed by the High Court in exercise of writ jurisdiction leaving it open to the Disciplinary Authority to impose any minor punishment, opined that High Court has acceded its jurisdiction in modifying the punishment while concurring with the finding of the Tribunals of facts. The Supreme Court said that High Court failed to bear in mind that the respondent was a police constable and was serving in disciplined force demanding strict adherence to the rules and the procedure more than any other department and also that there was no justification for the High Court for holding the "punishment does not, commensurate with the gravity of the charge". In the present case too as Junior Engineer. It was the duty of the respondent to check and take appropriate action against unauthorised construction within the area under his jurisdiction. The four storeyed market could not have been built within the span of only couple of days. Some person in our, considers does not deserve any sympaity. a lienant view on the ground that a young man would be debarred from getting any job in Government in future is not called for on the facts and circum-stances of the present case.
12. The law regarding the interference by courts on the quantum of punishment in exercise of the power of Judicial review has been recently examined by the supreme Court in the case of Union of India and another Vs. G. Ganutham (1997) 2 SCC 463. In this decision, on considering of Various decisions including that of Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation (1948) 1 KB 223, Council of Civil Service Unions Vs. Minister for Civil Service, (1984) 3 All England Reports 935, Ranjit Thakur Vs. Union of India and B.C. Chaturvedi's cases (Supra), it has been held by Supreme Court that unless the Court opines that the administrator was, on the material before him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remanded back to the appropriate, authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi's case (supra) that the court may not remand the case and itself impose appropriate punishment with cogent reasons in support thereof to shorten the litigation.
13. The punishment in the present case cannot be said to be such so as to shock the conscious of the court nor is it an exceptional and rare case justifying reduction of punishment from the dismissal to minor penalty of stoppage of two increments. It is also not a case which calls for being remitted back to the appropriate authority for reconsideration of the quantum of punishment.
14. The submission made by Mr. Gupta that the punishment inflicted on respondent is violative of Article 14 on the ground that lessor punishment was inflicted on Ram Kishore is also without any merit. The decision in the case of Sengara Singh and others etc. Vs. The State of Punjab and others AIR 1984 Supreme Court 1499 relied upon by Mr. Gupta has no, applicability to the present case. That was a case where disciplinary action was initiated by State of Punjab against about 1100 members of the police force who had been dismissed from service on the ground that they had participated in an agitation which was not permissible under the rules of the discipline in the police force of the State of Punjab. After the dismissal of the writ petitions, about 1000 former members of police force were reinstated and criminal cases pending against some of them were withdrawn. A committee considering of members of the superior rank of the police force reviewed the cases of the dismissed agitators and reinstatement followed the recommendations of the said committee. The remaining who were left out filed the writ petitions which were dismissed by the High Court. It was in this context that while allowing the appeals of the employees, it was observed that they must receive same benefit which those reinstated received in the absence of distinguishing feature of their cases. It also deserves to be noticed that Ram Kishore was posted in the area as Junior Engineer on 9th November, 1982 and remained there for only couple of days whereas the respondent was Junior Engineer posted in the City Zone Department from 20th April, 1981 till 2nd November, 1982 when he was suspended and it was during this period that the unauthorised construction carried out on vertical iron beams, horizontal Iron beams had come up., Mr. Jolly had stated that such a construction cannot be made within a week i.e. 3rd November, 1982 when Ram Kishore took charge and 9th November, 1982 when the unauthorised construc-tion was booked. There was this no similarity between the case of the respondent and Ram Kishore.
15. For the aforesaid reasons, setting aside the impugned judgment, we allow this appeal and dismiss the writ petition. The appellant would also be entitled to its cost through out which we quantify at Rs. 25,000/-.