Jugveer vs Municipal Corporation Of Delhi & ...
2008 Latest Caselaw 1774 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) No. 9091/2006

                            Date of Decision : September 29, 2008

Jugveer                                           ......Petitioner

                               Through : Mr. Rajeev Sharma,
                                         Advocate


                                Versus


Municipal Corporation of Delhi & Ors.             ......Respondents

Through: Mr. Sanjeev Sabharwal, Advocate

CORAM :

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1. Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in the Digest ? Yes

SUDERSHAN KUMAR MISRA, J

1. The petitioner is working as a Junior Engineer (Civil) in MCD.

He is aggrieved by an order passed by the Vigilance Department on

21.4.2006. This order came to be passed under Regulation 16 of

Delhi Municipal Corporation Services (Control & Appeal)

Regulations, 1959. By this order, the Commissioner, MCD has set

aside the orders dated 2.9.2005 and 13.2.2006 passed by the

Deputy Commissioner/C.L. Zone. As a result of this, the earlier

office order dated 1.8.2003 working out the periods for which the

penalties imposed on the petitioner were to run one after the other,

i.e., consecutively, was revived. The question before this court is

whether this revival of the order of 1.8.2003 whereby penalties

imposed on the petitioner were to run consecutively amounts to an

enhancement of the punishment when compared to the orders of

2.9.2005 and 13.2.2006 which had directed the punishments to run

concurrently, but were now set aside.

2. The petitioner was recruited by the respondent as a Junior

Engineer (Civil) in 1988. He has so far served the respondent for

about 18 years or so. At one point during this period he happened

to be posted for one year and eight months in the City Zone of the

MCD. During this tenure, as many as 15 charge sheets are said to

have been served upon the petitioner. Ultimately, as many as 14

different orders came to be passed against the petitioner. By these

orders, which were passed from 30.11.1992 to 22.5.2001, separate

penalties, inter alia, imposing stoppage of one, two or three

increments, with or without future effect, as well as reduction in

the present time-scale, came to be imposed. Ultimately, on

1.8.2003, an office order was issued by the Executive Engineer-

XVII, MCD, where the manner in which all these penalties would be

given effect to was worked out. According to that order, these

penalties were to be implemented one after the other i.e.,

consecutively. In doing so, the Executive Engineer found that these

penalties imposed on the petitioner will run upto the date of his

retirement, i.e., 30.4.2021. He also found that since the petitioner

was retiring on 30.4.2021, therefore the last penalty, which had

been imposed on the petitioner on 22.5.2001, could not be

implemented.

The following penalties have been imposed on the petitioner

by the Competent Authority :-

        S.       Type of Penalties           Office Order No. &
       No.                                  Date
       1.       Stoppage      of     two    No.1/382/9
                increments       without    1/P/Vig.
                future effect               PKS/92/89
                                            8        dt.
                                            30.11.92
       2.       Stoppage      of     one    No.1/204/91/P/Vig.
                increment        without    PKS/92/956       dt.
                future effect               31.12.92
       3.       - do -                      No.1/450/90/Vig./P
                                            610/93/261       dt.
                                            23.3.93
       4.       Stoppage      of   three    No.1/281/92/Vig./P
                increments       without    DCS/94/502       dt.
                future effect               12.5.94
       5.       - do -                      No.1/366/92/Vig./P/
                                            SK/94/555        dt.
                                            2.6.94
       6.       Stoppage       of     two   No.2/59/94/Vig./P/
                increments        without   UD/94/1802       dt.
                future effect               7.11.94
       7.       Stoppage       of     two   No.107/92/DE-
                increments with future      DDI(I)    /843   dt.
                effect                      10.11.95
       8.       Stoppage      of    three   No.2/3/95/Vig./P/
                increments        without   RK/98/579        dt.
                future effect               28.8.98
       9.       Reduction      by    four   No.1/4/92/Vig./P/
                stages in the present       RK/98/597        dt.
                time scale for four         2.9.98
                years
       10.      Stoppage       of     two   No.2/131/95/Vig./P/
                increments        without   RK/98/699          dt.
                future effect               13.10.98
       11.      Stoppage      of    three   No.141/92/DE/DDI(
                increments           with   I)/ 115 dt. 5.3.99
                cumulative effect
       12.      Stoppage      of    three   No.2/222/95/Vig./P/
                increments        without   RK/ 2000/119 dt.
                future effect               21.02.2000
       13.      Stoppage      of     ONE    No.2901/DEC/DOI/
                increment         without   2000/    681    dt.
                future effect               07.11.2000
       14.      - do -                      No.25/98/DE/DOI/
                                            II/256          dt.
                                            22.05.2001

In the same order, the Executive Engineer also noted that;

"..........these penalties of Sh. Jugveer Singh will run upto date of his retirement i.e., 30.04.2021."

3. Aggrieved by this order, the petitioner filed Writ Petition

No.6914/2003 in this Court. He contended, inter alia, that in a

similar case, several penalties imposed on another employee, Shri

Suraj Prakesh Sagta, which were to run consecutively, were later

on directed by the Deputy Commissioner, City Zone to be

implemented concurrently. In that matter, by an interim order, this

court directed the respondents to consider the petitioner's case

afresh. A direction was also issued to the respondents to obtain the

opinion of the Govt. of India in this respect. According to the

petitioner, pursuant to those directions by this Court, on 2.9.2005,

the Deputy Commissioner/C.L. Zone directed that since there is no

specific order directing any of the penalties to run separately,

therefore, in this case, the penalties will run concurrently.

4. The petitioner states that since the respondents were not

implementing the above order of the Deputy Commissioner,

directing that the penalties will run concurrently, he was denied

consideration for the post of Assistant Engineer. This prompted

him to file another writ petition no. 462/2006 in this Court praying

that the respondents be directed to consider the petitioner eligible

for the post of Assistant Engineer (Civil) with effect from 26.2.2003.

On 20.2.2006, during the pendency of that writ petition, the

Executive Engineer XVII informed the petitioner that an order has

been passed by the Deputy Commissioner, Civil Lines Zone on

13.2.2006, directing that the punishments imposed on him will

come to an end with effect from 1.9.2002. Satisfied with the above

order, the petitioner withdrew writ petition No.462/2006 on

21.4.2006. He also withdrew his earlier Writ Petition No.

6914/2003.

5. Thereafter, the impugned order dated 21.4.2006

communicating an order of the Commissioner, MCD dated

20.4.2006, was served upon the petitioner. This order stated that;

"In a review case, preferred under Regulation 16 of DMC Service (Control & Appeal) Regulation, 1959, the Commissioner/MCD vide his order dated 20.4.2006 has set aside the impugned order dated 2.9.2005 and 13.2.2006 passed by the Dy. Commissioner/C.L. Zone thereby allowing to run the penalties concurrently imposed in different RDA cases upon Shri Jugveer, JE."

6. The counsel for the respondents has urged that the decision

of the Commissioner, MCD, is in accordance with the power of

review vested in him under Regulation 16. The relevant portion of

Regulation 16 of D.M.C. Regulations, 1959 reads as follows;

"16 (1) Notwithstanding anything contained in these regulations:-

(i) the Commissioner, in case the order proposed to be reviewed has been made by the Dy. Commissioner or other officer subordinate to him;

(ii) the Corporation in case the order proposed to be reviewed has been made by the Standing Committee;

(iii) the Central Government in case the order proposed to be reviewed has been made by the Corporation;

may at any time, either on his or its own motion or otherwise call for the record of proceedings enquiry and review any order made under these regulations from which an appeal is allowed but from which no appeal has been preferred or from which no appeal is allowed and may:-

(a) confirm, modify or set-aside the other; or

(b) confirm, reduce, enhance or set-aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed, or

(c) remit the case of the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case, or

(d) pass such orders as it may deem fit.

Provided that no order imposing or enhancing any penalty shall be made by the reviewing authority unless the municipal officer or the municipal employee has been given reasonable opportunity of making a representation against the proposed penalty..."

It is the respondent's case that the aforesaid decision dated

21.4.2006, directing that the penalties imposed should run

consecutively instead of concurrently, does not amount to

enhancement of any existing penalty to bring it within the ambit of

proviso to Regulation 16. He states that, therefore, the respondents

were under no obligation to grant the petitioner any opportunity of

making the representation envisaged by Regulation 16.

7. As explained above, the effect of the impugned decision of the

Commissioner is that instead of running concurrently, as directed

by the Deputy Commissioner on 2.9.2005, the penalties imposed on

the petitioner shall now run consecutively. This order could have

been prompted by one of the two situations; a) because he felt that

the decision of the competent authority directing that the penalties

run concurrently was incorrect, inter alia, for the reason that the

competent authority had no power to direct the same; or b) because

he felt that the direction that the punishments should run

concurrently amounted to an inadequate punishment, and that

punishment by way of penalties running consecutively was more

appropriate to the circumstances of the case. Be that as it may, and

regardless of the reasons that prompted the decision of the

Commissioner, if in fact the penalty stands enhanced by this change

from concurrent to consecutive, it is obvious that the provisions of

Regulation 16 ought to have been complied with, and in case no

opportunity has been given to the affected officer, this decision

must fall to the ground. Consequently, what remains to be

considered by this Court is whether the order of the Commissioner

whereby the penalties imposed upon the petitioner were ordered to

run consecutively instead of concurrently can be termed as an

enhancement of the punishment.

8. According to Chamber's 20th Century Dictionary, 1995,

the word "enhance" is a transitive verb which means, "to heighten;

to intensify; to add to or to increase". Similarly, West's Legal

Thesaurus/Dictionary defines it as, "to make greater; increase;

intensify; embellish; augment; amplify; expand". Black's Law

Dictionary, 8th Edition defines the expression "enhanced" as,

"made greater; increased............", and the word "enhancement"

has been defined as, "the act of augmenting; the state of being

enhanced...........". It therefore follows that the word, "enhancing",

which is also a transitive verb, employed in the proviso to

Regulation 16, clearly means increasing the penalty by making it

greater, or in other words, more burdensome or onerous.

9. When compared with an order directing a punishment to run

concurrently, it is obvious that a punishment running consecutively

is more onerous. This proposition also gains strength from

pronouncements of the Supreme Court. In Ram Lal Vs. State of

Haryana (2003) 9 SCC 242 the sentence awarded to the

appellant was to run consecutively, and an appeal was preferred by

the appellant praying for the sentences to be allowed to run

concurrently. The Supreme Court rejected the contention of the

appellant on the ground that the offence committed by the

appellant was of serious nature, thought and it felt that under the

circumstances, it was inappropriate to make the punishment run

concurrently. Clearly, the Supreme Court considered consecutive

punishment more onerous and arduous.

10. Similarly, in Brij Basi Lal Vs. State of Uttar Pradesh

(1981) 3 SCC 584 the magistrate directed that the sentence

awarded to the appellant shall run consecutively. The Supreme

Court modified the sentence from consecutive to concurrent on the

ground that the sentence imposing consecutive punishment was

more onerous as compared to the gravity of the offence. Also, in

Rajbir Vs. State of Haryana (1996) 7 SCC 86 the Supreme

Court modified the consecutive sentences ordered by the

Designated Courts to concurrent sentences on the ground of the

same being unjustified and harsh. In Ranchhod Lal Vs. State of

Madhya Pradesh (1965) 2 SCR 283 it was urged by the

petitioner before the Supreme Court that the imposition of

consecutive sentences on him is prejudicial and that he is being

harassed by the same. His prayer that the sentences be ordered to

run concurrently was dismissed by that Court for the reason that

the offences committed by the petitioner do not warrant any lenient

view to be taken. Looking to all these decisions, indubitably, the

Supreme Court is of the view that a direction imposing concurrent

sentences is more lenient than one imposing consecutive sentences.

11. In this case, enhancement can also be inferred from the fact

that by the impugned order, the penalties which were supposed to

cease with effect from 1.9.2002 are now to continue till the date of

retirement of the petitioner i.e. till 30.4.2021. In other words,

because of the impugned order the petitioner will continue to be

visited by the consequences of the penalties imposed for another

18-1/2 years approximately. The order of the Commissioner under

Regulation 16 of the D.M.C Regulations, 1959, setting aside the

orders dated 2.9.2005 and 13.2.2006 passed by the Deputy

Commissioner/ C.L. Zone, is therefore onerous in nature and hence

amounts to enhancement of the penalty. It, therefore, follows that,

as required by the proviso to Regulation 16, the Commissioner

could not have done this without giving a reasonable opportunity to

the petitioner of making a representation against the order he was

proposing to make. It is made clear that the only question being

decided by this Court is that under the circumstances, the

Commissioner could not have acted under Regulation 16 without

granting the requisite opportunity in terms of the proviso thereto.

12. The impugned order dated 21.4.2006 is, therefore, set aside.

However, looking to the circumstances of the case, and specially in

view of the fact that the petitioner is a Junior Engineer (Civil) with

the Municipal Corporation of Delhi, which is a public authority with

a crying need for higher efficiency at every level of its hierarchy;

and with a view to balancing the need for efficient functioning of

the Public Authority with the rights of the individual officer to fair

consideration and treatment; the Commissioner MCD is permitted

to examine the matter afresh if he so desires. He may do so only

after giving the petitioner a reasonable opportunity of making a

representation against the proposed order as required by the

proviso to Regulation 16. He shall then issue a reasoned order

thereafter. The entire exercise be completed within four months

from today.

13. It is ordered accordingly.

14. The writ petition is disposed of in the above terms.

Sudershan Kumar Misra, J.

September 29, 2008 mb/ib