Delhi Development Authority vs K.P. Garg
2009 Latest Caselaw 4487 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (C.) No. 8151/2008

%                        Date of Decision: 05.11.2009

DELHI DEVELOPMENT AUTHORITY                                   .... Petitioner

                        Through: Mr. Arun Birbal, Advocate.

                                  Versus

K.P. GARG                                                 .... Respondent

                        Through: Mr. Vinod Kumar, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be                 Yes
       allowed to see the judgment?
2.     To be referred to the reporter or not?                    No
3.     Whether the judgment should be reported in                No
       the Digest?


ANIL KUMAR, J. (Oral)

*

1. The petitioner Delhi Development Authority has challenged the

order dated 16.11.2007 passed in T.A. No. 53/2007 (CWP) No.

5347/1993, Sh. K.P. Garg Vs. Delhi Development Authority setting

aside the order dated 07.04.1992 of the disciplinary authority imposing

a punishment of removal from service and directing the petitioner to

decide with regard to the interregnum period in accordance with the

rules and instructions.

2. Brief facts to comprehend the disputes between the parties are

that on the ground that while working as Assistant Engineer in Division

V at G.T. Karnal Road various contracts were executed by the DDA with

the contractors and the respondent had given undue benefits to such

contractors, he had been proceeded against under Rule 16 of the DDA

(Salaries, Allowances & Conditions of Service) Regulations 1961.

Pursuant to the enquiry conducted, an enquiry report dated 31.01.1990

was given where the respondent was exonerated from the charges.

3. Another enquiry was initiated against the respondent pursuant to

the order dated 15.01.1991 on the ground that he failed to exercise

adequate supervision and control in the work of C/C Type B group II at

Trilokpuri which resulted in execution of sub standard work and an

enquiry report dated 25.07.1991 was given. The said enquiry report

held that the charges against the respondent were partly proved.

4. Consequent to the enquiry report dated 25.07.1991, a notice

dated 06.02.1992 was given to the respondent giving him an

opportunity to make representation against the penalty proposed to be

imposed pursuant to the findings of the enquiry report dated

25.07.1991. The show cause notice required the respondent to file a

reply within 15 days from the date of the receipt of notice. Pursuant to

the notice, a reply dated 17.03.1992 was given by the respondent

contending, inter alia, that the enquiry was conducted by the enquiry

officer in common/simultaneous proceedings due to which lot of

confusion had been created in the matters and issues pertaining to

other enquiries have been considered which has resulted in holding

that the allegations against the respondent stood established. The

respondent also asserted that the observations regarding the quality

control were of highly technical nature and the enquiry had been

conducted by an officer who had no technical expertise which has

resulted in incorrect assessment of evidence on the part of the Enquiry

Officer. The grievance was also made by the respondent regarding the

facility of defense assistant of his choice being not provided to him due

to which the defense of the respondent was jeopardized. The

respondent also annexed a detailed representation against the show

cause notice and enquiry report along with his reply dated 17.03.1992

which was received by the petitioner on 18.03.1992.

5. The disciplinary authority however, passed the order dated

07.04.1992 on the premise that reply to show cause notice dated

06.02.1992 had not been filed on behalf of the respondent and awarded

the penalty of removal from service to the respondent with immediate

effect. Aggrieved by the order of removal dated 07.04.1992 the

respondent preferred a writ petition no. 5347/1993 titled Sh. K.P. Garg

Vs. Delhi Development Authoirty and Anr. which was transferred to

Central Administrative Tribunal which was disposed off by order dated

16.11.2007. Though, when the petition was decided no one was

present on behalf of the respondent, however, the Tribunal held that

since the reply to show cause notice was before the disciplinary

authority, the same should have been considered and the order of the

disciplinary authority did not record any reason to impose the extreme

punishment of removal and therefore, relying on the decisions of the

Supreme Court in Narpat Singh Vs. Rajasthan Financial Corporation,

2007 (11) SCALE 458 and National Fertilizers Ltd. Vs. P.K. Khanna,

(2005) 7 SCC 597 and Director (Marketing) Indian Oil Corporation Ltd.

& another Vs. Santosh Kumar, 2006 (6) SCALE 358, the Tribunal set

aside the order of removal from service.

6. The petitioners have impugned the order primarily on the ground

that since the disciplinary authority conferred with the findings of the

Enquiry Officer no detailed reasons were to be given and has relied on

Ram Kumar Vs. State of Haryana (1988) SCC (L&S) 246 and on

National Fertilizers Ltd. and Anr. Vs. P.K. Khanna JT 2005 (8) SC 125.

The order of the Tribunal has also been impugned on the ground that

while setting aside the order of punishment, the Tribunal should have

allowed the petitioner to proceed with the enquiry and continue the

enquiry from the stage of consideration of the reply of the respondent

filed before the disciplinary authority. The order is also impugned by

the petitioner on the ground that the question whether the respondent

was entitled to back-wages and other benefits from the date of his

removal to the date of his reinstatement should have been left for the

decision of the appropriate authority in accordance with law after the

culmination of the proceedings and depending on the final outcome.

The learned counsel has relied on Managing Director, ECIL, Hyderabad

and Others Vs. B.K. Karunakar and Others (1993) SCC (L&S) 1184;

State of Punjab and Others Vs. Dr. Harbhajan Singh Greasy (1996) SCC

(L&S) 1248; Bharat Coking Coal Ltd. & Ors. Vs. Babulal and Anr. 1998

SCC (L&S) 572 and N. Selvaraj Vs. Kumbakonam City Union Bank Ltd.

and Another 2006 SCC (L&S) 1710. Reliance has also been placed on a

Division Bench order in Writ Petition (Civil) No. 3305/2008 dated

04.11.2008, Delhi Development Authorty and Anr. Vs. Sh. Sita Ram

and Others.

7. The respondent has contended that the order of removal passed

by the petitioner could not be sustained as it was a nonspeaking order,

and it was passed without taking into consideration the pleas and

contentions raised by the respondent against the proposed penalty of

removal from service. He submits that the notice dated 6th February,

1992 was duly replied by the respondent raising various grounds as to

why the penalty should not have been imposed. The respond contended

that besides the legal submission that the charge sheet was without

jurisdiction and illegal, having being issued without the order of the

competent authority as envisaged under Regulation 18, the charge

sheet under regulation 16 or 17 could not be issued. The appointment

of enquiry officer was also challenged on the ground that vice-chairman

of the DDA had not been authorized by the order of the Central

Government to act as disciplinary authority. The responded had also

challenged the enquiry report on the ground that he could not defend

himself properly and effectively as the defense assistance of his choice

was not appointed. The respondent also impugned the findings of the

enquiry officer on the ground of discrepancies in two sets of Article of

Charges served on him. The responded also raised the grievance that

the enquiry officers had conducted common proceedings which caused

severe damage to the respondent's defense. The imposition of penalty of

removal was also opposed on the ground that certain documents denied

by the respondent which had not been proved, had been taken into

consideration by the enquiry officers and consequently the findings of

the enquiry officers are perverse and without evidence. The responded

also highlighted some assumptions made by the enquiry officer as he

proceeded on certain premises which were never contended by the

respondent.

8. In the circumstances it was contended that non-consideration of

his reply by the petitioner, vitiates the order of the petitioner imposing

the penalty of removal from service. On behalf of respondent it is also

contended that the respondent has superannuated and consequently it

will not be proper to hold a fresh enquiry against him after his

superannuation. Reliance has also been placed on (2007) 7 SCC 81, U.P

Co-operative Federatioin Ltd. and ors. Vs L.P.Rai.

9. The pleas and contentions of the respondent are contested by the

petitioner contending, inter alia, that mere retirement of the respondent

by efflux of time would not be a ground to close the enquiry or not to

resume the enquiry, in case the punishment imposed is set aside on the

technical ground that the reply of the respondent was not considered

while imposing the punishment of removal from service. The petitioner

also relied on AIR 1996 SC 280, Union of India Vs Ajoy Kumar Patnaik.

10. We have heard the learned counsel for the parties in detail. The

Central Administrative Tribunal has set aside the order of removal of

the respondent from service by order dated 16th November, 2007

primarily on the ground that the order imposing punishment by the

disciplinary authority is a non speaking order and without considering

and dealing with the contentions of the respondent raised in the reply

filed by the respondent to the show cause notice proposing imposition

of penalty of removal from service. Reliance has also been placed on

regulations 16 (10) (ii) contemplating consideration of representation or

reply in response to the show cause notice. The Tribunal has also held

that no reasons have been given for imposing the extreme penalty of

removal from service and since no reasons had been given the order of

the disciplinary authority would be an illegality. For these reasons the

Tribunal has set aside the order of removal from service and has also

held that if the respondent has not attained superannuation, he be

reinstated forthwith and the interregnum period be decided in

accordance with rules and instructions and law on the subject within

one month of the receipt of the order by the petitioners.

11. The plea of the respondent that the disciplinary authority has not

given detailed reasons and consequently the order of punishment is

vitiated, cannot be accepted in the facts and circumstances of the case.

When punishing authority accepts the findings and reasons given by

the enquiry officer, he is not required to repeat the reasons contained in

the report of the enquiry officer with which he agrees. The Supreme

Court in Ram Kumar (supra) had held that when punishing authority

accept the findings of the enquiry officer and the reasons given by him,

the question of non compliance with the principles of natural justice

does not arise and it can also be not inferred that an order of the

punishing authority relying on the reasons of the enquiry officer will not

be a speaking order. Therefore, this plea of the respondent that the

order of the punishing authority was not a speaking order cannot be

accepted and on this ground the order of removal of respondent from

service by the punishing authority cannot be set aside.

12. This cannot be disputed that regulation 16 (10) (ii) obligates the

disciplinary authority to consider representation/reply to the notice

proposing imposition of penalty. This is not disputed that in reply to

notice dated 6th February, 1992 proposing imposition of penalty of

removal from service, a reply dated 17th March, 1992 was given to the

petitioners on 18th March, 1992 which was duly received. Though the

notice stipulated that it be replied within 15 days, and as a matter of

fact the reply was not filed within 15 days, the facts remains that the

reply of the respondent was before the disciplinary authority before he

passed the order dated 07.04.1992. The order imposing penalty dated

7th April, 1992 does not consider the representation/reply at all. In the

circumstances on account of non-consideration of the reply to the

notice proposing imposition of penalty by the petitioner, the order of

removal from service of the respondent could not have been sustained

and, consequently, the order of the tribunal setting aside the order of

removal of the respondent from service cannot be faulted.

13. The next point canvassed by the learned counsel for the petitioner

is that after setting aside the order of removal of respondent from the

service, the tribunal should have allowed the petitioner to proceed from

the stage of consideration of the reply of the respondent. It is also

contended that whether the respondent would be entitled to back wages

and other benefits from the date of removal from service to the date of

reinstatement should have been left to be decided by the petitioner in

accordance with the Rules, till after the matter is reconsidered and

fresh order passed in the disciplinary proceedings. It is now well settled

that there is a procedural lapse in the disciplinary proceedings, and on

that account the penalty imposed on the employee cannot be sustained

and is set aside, the appropriate course is to permit the disciplinary

authority to take a decision, on whether or not it considers it

appropriate to proceed in the matter, and if he decides to restart the

enquiry, to follow the procedure from the stage at which the lapse has

occurred and to take action according to law. In State of Punjab Vs Dr.

Harbhajan Singh Greasy (supra) Supreme Court had held that if

enquiry was found to be faulty, it would not be proper to direct

reinstatement with consequential benefits as the appropriate course

would be to remit the matter to the disciplinary authority to follow the

procedure from the stage at which the fault was pointed out and to take

action according to law. The consequential benefits would depend upon

the result of the enquiry and the order passed thereon. Similarly in

Union of India Vs Y.S. Sadhu, Ex inspector (supra) it was held by the

Apex Court that where the departmental enquiry is found to be defective

on account of violation of principle of natural justice, reinstatement

could not be ordered on account of such infirmities and the appropriate

course is to direct fresh proceedings from the stage of alleged illegalities

without ordering reinstatement. Thus on the basis of ratio of Managing

Director, ECIL, Hyderabad and ors. Vs B.Karunakar and ors. (1993) 4

SCC 727; State of Punjab and ors. Vs Dr. Harbhajan Singh Greasy

(1996) 9 SCC 322 and Bharat Coking Coal Ltd. & ors Vs Babulal and

anr. 1998 SCC (L&S) 572 it is to be held that the right to reopen the

enquiry, when the enquiry has been quashed as not conducted in

conformity with the principle of natural justice, cannot be denied. Thus,

if the order of removal of respondent from the service is to be sustained

on account of non-consideration of his reply/representation, this

should not result in reinstatement of respondent. Rather the proper

course would be to direct the petitioner to consider the

representation/reply before passing any order imposing any penalty. In

the circumstances the direction of the tribunal in the impugned order

dated 16th November, 2007directing forthwith reinstatement of the

respondent cannot be sustained and is set aside.

14. The learned counsel for the respondent has contended that the

respondent has already superannuated. This however, will not be a

ground to deny to the petitioner to conclude their enquiry and to close

the matter. The order of the Tribunal dated 16th November, 2007 was

stayed by this Court after the present writ petition was filed by order

dated 18th November, 2007. The order of removal of the respondent

from service has been set aside on account of non-consideration of his

reply/representation. Pertinently, it is not a case where the order

imposing penalty has been set aside on merits and on the basis that the

change against the respondent under any circumstances, could not be

made out. The decision relied upon by the respondent in the case of

U.P. Cooperative (supra) does not lay down, as a matter of law, that

merely because the employee has superannuated, the enquiry cannot

be restarted against him after the penalty is set aside on technical

grounds by an order of the Court/Tribunal.

15. It will be for the petitioner to take into consideration that the

charges were framed in 1988 and the enquiry was conducted in 1992

and that the considerable time has elapsed and that the respondent has

superannuated, while deciding whether to restart the enquiry/

disciplinary proceedings.

16. For the foregoing reasons the writ petition is partly allowed. The

decision of the Tribunal setting aside the order of the removal of the

respondent is sustained, however, reinstatement of the respondent is

set aside. The disciplinary authority shall be at liberty to proceed with

the proceedings from the stage of consideration of the

reply/representation given by the respondent to the notice of the

petitioner proposing to impose penalty on the respondent. In case the

disciplinary authority decides to proceed with the enquiry further

despite the fact that the respondent has already superannuated in the

meantime, the proceedings be concluded within sixty days from the

date of receipt of this order. The disciplinary authority shall also

determine the entitlement of the respondent to back-wages and other

benefits in accordance with rules and regulations. With these

directions the writ petition is disposed off. Parties are however left to

bear their own costs.

Dasti

ANIL KUMAR J.

NOVEMBER 5th , 2009                                      VIPIN SANGHI J.
'DP'