M.G. Aggarwal vs Municipal Corporation Of Delhi ...
1987 Latest Caselaw 321 Del

JUDGMENT

Mahinder Narain, J.

(1) In this writ petition notice to show cause was issued on 22/01/1987. An affidavit showing cause has been filed, and with the consent of the parties, the matter is being disposed of by this order.

(2) The case of the petitioner is that he was employed as a Junior Engineer in the Municipal Corporation of Delhi w.e.f. 12/03/1984 vide annexure P. 3. After joining Municipal Corporation, the petitioner was posted in the City Zone. that is to say an area with respect to old Delhi. The petitioner says that his services were terminated by an order dated 24/07/1986(annexure P. 1), and an appeal there from was disposed of by anon-speaking order dated 18/11/1986, which is annexure P. 2. The petitioner saysthat the reason for dismissal was that it was alleged against him that in HouseNo. 2434, Chhipiwara Kalan, Delhi, which property fell within his jurisdictions Junior Engineer of the Municipal Corporation, some internal structural alterations were made between 1970 and 1984. In fact, the petitioner says that while he was new at his job on 31/01/1985, an Inspector of Vigilance went to the site along with him as complaints had been received regarding unauthorised alterations having been made in the said property. The petitioner asserts that prior to that, neither the petitioner nor the Building Department of the City Zone had received any written complaint or verbal complaint for many body regarding the alterations having been made inside the said house. It is further asserted that these internal alterations were not visible from the roadside. The petitioner stated that according to the Building Bye-laws several typesof repairs can be carried on by house owners without the sanction of the Municipal authorities. The provisions of Rule 6.4.1 of the Delhi Building Bye-laws which was reproduced in the writ petition, reads as under :-

"6.4.1NOnotice and building permit is necessary for the followingalterations, which do not otherwise violate any provisions regarding general building requirements, structural stability and fire safety requirements of the Bye-laws :-

(A)Plastering and patch repairs ;

(B)Re-roofing or renewal of proof including roof of intermediate floor at the same height ;

(C)Flooring and re-flooring ;

(D)Opening and closing windows, ventilators and doors not opening towards other's property;

(E)Replacing fallen bricks, stones, pillars, beams, etc. ;

(F) Construction or re-construction of sun-shade not more than 75cm. in which within one's own land and not over-hanging over a public street;

(G)Construction or re-construction of parapet exceeding I m. and not more than 1.5m. in height and also construction or reconstruction of boundary walls as permissible under these bye-laws ;

(H)Re-construction of portions of buildings damaged by storm,rains, fire, earth-quake or any other natural calamity to the same extent and specification as existed prior to the damage,provided the use conforms to provisions of Master Plan ;

(I)White washing, painting etc. including erection of false ceiling in any floor at the permissible clear ht. provided the false ceiling in no way can be put to use as a loft/mezz. etc. :

(J)Erection or re-erection of internal partitions provided the same are within the purview of the bye-laws."

It was asserted that in the property internal partition walls could be re-erected without prior permission or sanction of the Municipal Corporation of Delhi.In any case. the petitioner avers that till the date of filing of the writ petition,the Corporation had not taken any action against the alleged alterations madein the said building.

(3) The petitioner was served with the charge-sheet on 31/01/1985which was accompanied by the statement of charge. The charge-sheet is annexed as annexure P. 5 to the writ petition. The relevant charges indicate that the petitioner was accused of having committed grave misconduct, and failed to maintain devotion of duty and absolute integrity, inasmuch as he failed to detect the alleged unauthorised construction. The charges had further mentioned that the petitioner had joined his duties in the City Zone on 1 5/06/1980, and that enquiries made had revealed that the alleged construction had commenced and had been completed much before 14/01/1984.

(4) On receipt of the charge-sheet, and the assertions therein contained that the unauthorised construction had been made before 14/01/1984,and as the petitioner had joined the duty of the Corporation only on 1 2/03/1984, the petitioner, in his reply to the charge-sheet, asserted that he could not possibly be held guilty with respect to any construction which was done prior to his employment in the Municipal Corporation. In spite of this being pointed out by the petitioner in answer to the charge-sheet that the alterations/construction had taken place prior to his joining duties, the charges were not dropped and the enquiry proceeded, by examination of vigilance Inspector Mr. S.P. Jain who categorically stated that the petitioner was working in the City Zone w.e.f. 15/06/1980, and that the construction had been carried out prior to 14/01/1984. Mr. S.P. Jain had further stated at the enquiry that on 31/01/1985 when he and the petitioner visited the site,no construction was going on and there was no building material seen at thesite. He further stated that no effort was made to determine the date of com-men cement of construction.

(5) The Municipal Corporation apparently realised its mistake, and during the course of the enquiry proceedings sent a corrigendum, which is annexed to the writ as annexure P. 9, which was designed to alter the date ofpetitioner's employment in the original charge-sheet to 15/06/1984, and further sought to alter the date of completion of construction to 14/01/1985 instead of 14/01/1984.

(6) The Municipal Corporation has not disputed the correctness of these averments which had been made.

(7) It is obvious that the effect of the corrigendum would be to make out a new charge against the petitioner. However, the earlier enquiry was not terminated and new enquiry was not commenced against the petitioner. The corrigendum substantially altered the charge against the petitioner. No new enquiry was held. Mr. S.P. Jain witness was re-called in the continued enquiryon 3/04/1986, and he further gave evidence which supported the corrigendum. The enquiry ultimately resulted in the aforesaid order of dismissal dated 24/07/1986. which was confirmed by an order dated 18/11/1986. The result of this enquiry cannot obviously besustained. When the charge has been substantially altered, it has to be tried de novo. The enquiry held and continued on the basis of the charge-sheet dated 31/01/1985and continued by incorporating the distinct charge, the subject-matter of The corrigendum dated 4/03/1986, is no enquiry at all as the petitioner has been denied an opportunity to meet the amended charge, as amended by The corrigendum. He has not been permitted to file reply to the amended charge.This being the case, the petitioner not having been given the opportunity to defend himself, the entire enquiry proceedings are bad in law, and the order of termination dated 24/07/1986 as well as the appellate order dated 1 8/11/1986 have to be quashed.

(8) This writ petition succeeds, and the order of termination dated 2 4/07/1986 as well as the appellate order dated 18/11/1986 are quashed. and it is declared that the petitioner continues in service of the respondentCorporation, and is entitled to all the benefits consequential to his being inservice.

(9) There shall, however, be no order as to costs.