Mahinder Kumar Gupta vs Mcd
2006 Latest Caselaw 921 Del

JUDGMENT

S. Ravindra Bhat, J.

1. Issue Rule. With consent of counsel for parties, the matter was heard for final disposal.

2. The facts in this case are not in dispute. The petitioner was at the relevant time working as U.D.C./Cashier with the respondent Municipal Corporation of Delhi. An FIR (First Information Report) was registered on 1.8.1999. It is alleged that on 17.1.2002, the Central Bureau of Investigation started investigation under Section 120-B read with Section 420 of the Indian Penal Code and provisions of the Prevention of Corruption Act, 1988. The petitioner in the meanwhile was placed under suspension on 2.8.1999.

3. When the criminal proceedings were afoot, the MCD by an order dated 11.2.2004, invoking its powers under Section 95(2)(b) of the Delhi Municipal Corporation Act ('The Act') read with Regulation 9(2) of the DMC Services (Control and Appeal) Regulations ('The Regulations'), terminated the petitioner's service without holding an enquiry.

4. The order terminating the petitioner from services re-cited that cheques to the tune of Rs. 47,47,000/- were collected by him and that he had admitted or confessed his mistake and even volunteered to deposit the amount. It was claimed that internal enquiry had been made and an investigation report had been conducted by the Deputy Commissioner which was considered by the Commissioner. The relevant part of the order reads as follows:

The investigation report dated 12.12.2003 submitted by Dy. Commissioner (Police)/A.C. Branch, Govt. of NCT of Delhi in the said matter has now been placed before me. Having perused the said report, it is revealed that Shri Mahinder Kumar Gupta, UDC has committed fraud/forgery on various occasions by adopting illegal/fraudulent means and indulged in continued misappropriation of the huge municipal funds for his personal gain by operating unauthorised, fraudulent bank accounts, opened by him in various banks. It has been noticed that he raised a number of inflated/bogus payments for making advanced payment to Indian Oil Corporation and managed to divert the municipal money into his private accounts. It also revealed from the investigation report that at times he had forged the signatures of his higher officers for operating the joint bank accounts opened by him unauthorisedly.

The material record placed before me thus establish a prima facie serious misconduct on the part of Shri Mahinder Kumar Gupta, UDC which is grossly unbecoming of a municipal employee. By adopting different modus operandi, he managed to siphon off around Rs. 5.50 crores into two illegal bank accounts operated fraudulently in the name of Dy. Mpl. Commissioner/C.I. Zone. Out of the above amount so siphoned off, Rs. 3.96 crores was deposited by him into the municipal account after admitting the fraud. The entire episode has reflected the glaring fact that he sabotaged the entire system including the Accounts Department and he allegedly had huge amount of ill-gotten money with him. In this case, Shri Mahinder Kumar Gupta, UDC by not maintaining the integrity, has not only failed to discharge his duties as a Govt. servant but also betrayed the faith and the confidence reposed in him by the senior officers. This act of Shri Mahinder Kumar Gupta was nothing short of treachery and is most reprehensible. By adopting such dishonest and illegal methods, he has tarnished the image of the municipal employees in the eyes of public and is, therefore, not worthy to be retained in the municipal service any more. The mere fact that it would be possible to go through the motions of conducting an inquiry, appointing an Inquiry officer and calling the witnesses etc. is not sufficient to be able to say that it is reasonably practicable to hold an inquiry. But it is necessary to consider the actual likelihood of successfully conducting an impartial inquiry keeping in view the prevailing circumstances of the case. So long as an official of such nature, even under suspension, he is able to exert influence through his colleagues, benefiting from a misguided loyality among them and may adopt dilating tactics to hamper smooth conduct of departmental inquiry proceedings.

The facts and circumstances of the case are such that it would not be reasonable practicable to hold the departmental inquiry against Shir Mahinder Kumar Gupta, UDC by adhering to the procedure prescribed in the DMC Services (Control and Appeal) Regulations, 1959 and by invoking the provisions of Section 95(2)(b) of the DMC Act read with Regulation 9 (ii) of the DMC Services (Control and Appeal) Regulations, 1959, vis-a-vis under the provisions of Article 311(2) of Constitution of India; the charged official Shri Mahinder Kumar Gupta, UDC, office of Executive Engineer, Mubarak Bagh Auto Workshop, Delhi is hereby dismissed from service which shall ordinarily be a disqualification for future employment.

5. Learned counsel for the petitioner urges that the grounds mentioned in the impugned order for dispensing with a departmental enquiry as a part of the punitive order cannot be sustained having regard to the law declared by the Supreme Court in Union of India v. Tulsi Ram Patel as well as other decisions pertaining to the MCD, including the judgment reported as Rajinder Singh Negi v. Municipal Corporation of Delhi and Anr. 128(2006) DLT 133 and T.R. Gupta v. MCD (W.P.(C) 7463/2003 decided on 15th September, 2005).

6. This Court occasion to consider the expression 'not reasonably practicable' particularly in the context of the Regulation 9 of the MCD read with Section 95(2) where the Corporation had decided to dispense with the enquiry and proceeded to straightway issue a punitive order. Following the law Tulsi Ram Patel's case as well as other subsequent decisions such as Jaswant Singh v. State of Punjab , Chief Security Officer v. Singasan Rabi Das , this Court had held that enquiry into allegations of mis-conduct is ordinarily the norm and dispensing with an enquiry is an exception. The opinion to dispense with an enquiry has to be supported by reasons which have nexus to the expression 'not reasonably practicable'. The Court had reiterated the instances cited by the Supreme Court in Tulsi Ram Patel's case to illustrate as to what constitute 'not reasonably practicable', namely, un-availability of witnesses or creation of terror or atmosphere of violence so as to vitiate or subvert the enquiry. The Supreme Court in Tulsi Ram Patel's case had stated it would not be reasonably practicable to hold an enquiry where the Government Servant, particularly, or together with associates was likely terrorize, threaten or intimidate the witnesses who are going to give evidence against him with fear or reprisal as prevent them doing so; or where the Government Servant himself or together with others intimidated or terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold an enquiry. The instances given in Tulsi Ram Patel's case, in my opinion, provide a clue as to what is the nature of facts situation which can justify a conclusion that it is not reasonably practicable to hold enquiry.

7. In this case the impugned order on the one hand admits that it is possible to hold an enquiry when the Commissioner states rather candidly that the mere fact that it would be possible to go through the motion of conducting the enquiry. Yet the final decision not to hold the enquiry is based on the assumption that even under suspension it would be possible for the petitioner to exert influence through his colleagues and the likelihood of his adopting dilatory tactics to hamper smooth functioning of the departmental enquiry.

8. The declaration in Tulsi Ram Patel's case constitute the law of the land; the law was declared as far back as more than two decades ago. Therefore, the position of the respondent articulated in the impugned order, in my opinion, is astonishing to say the least. Once the authority is of the opinion that an enquiry is possible, the mere conjectural assumption of dilatory tactics being possibly used cannot warrant or empower them seek recourse to the exception under Regulation 9(ii) read with Section 95(2)(b) of the DMC Act. Fairness and non-arbitrariness, constitute the backbone of the rule of law, and bedrock of democratic governance. Both have been given the go-bye in this case. In view of this finding, the impugned order cannot be sustained.

9. For the foregoing reasons, the impugned order is hereby quashed. It is, however, made clear that nothing said in the course of this judgment shall inhibit the respondent from initiating such departmental proceedings as may be deemed appropriate. In case the MCD chooses to do so it shall also pass an appropriate order in terms of the concerned rules and regulations with regard to the manner in which the petitioner's services would have to be dealt with for the period from 11.2.2004 and today. In case the MCD decides to hold an enquiry, it shall intimate the same to the petitioner and ensure that such proceedings are completed expeditiously.

10. The writ petition is allowed to the extent indicated above, subject to the liberty, as granted.