Rajeshwar Tewari vs Delhi Jal Board
2010 Latest Caselaw 2254 Del

*         IN    THE     HIGH   COURT    OF   DELHI   AT   NEW     DELHI

+                              W.P. (C.) No.2831/2010

%                         Date of Decision: 28.04.2010

     RAJESHWAR TEWARI                            .... PETITIONER
                  Through Mr. A.K. Mishra, Advocate

                                    Versus

     DELHI JAL BOARD                            ....RESPONDENT
                   Through Mr. Jitender Kumar, Mr. Sumeet
                           Pushkarna, Advocates

      CORAM:
      HON'BLE MR. JUSTICE ANIL KUMAR
      HON'BLE MR. JUSTICE MOOL CHAND GARG

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?

      MOOL CHAND GARG, J.

*

1. By this writ petition filed under Article 226 of the Constitution of

India, the petitioner has assailed the order passed by the Central

Administrative Tribunal, Principal Bench, New Delhi (hereinafter

referred to as „the Tribunal‟) dated 05.01.2010 in O.A. No.1190/2009

whereby the petition filed by the petitioner under Section 9 of the

Administrative Tribunals Act has been dismissed.

2. Briefly stating the facts of this case are that the petitioner who

WAs working with the respondent was served with a memorandum

bearing No.DJB/VIJ/DISP/MINOR/99/CS-76/4487 dated 14.12.1999

whereby he was informed that an action was proposed against him

under Rule 16 of CCS (CCA) Rules, 1965. Statement of imputation of

misconduct was also framed against the petitioner stipulating:

i) It was alleged that the petitioner had allowed mutation of 11 Water connection installed at 6, Alipur Road, Delhi on 06.03.1996.

ii) It was further alleged that while passing the orders allowed the mutation on 06.03.1996, the petitioner had allegedly failed to ensure the recovery of outstanding water charges to the tune of Rs.1,35,024/- against the other water connections No.931C, 8315K, 1001C, 1945C, 1903C and 6304S which were running on the same property

iii) It was also alleged that the petitioner had the knowledge of the existence of 36 authorised and 39 unauthorised water connections on the same property and his knowledge was imputed on the petitioner on the ground that the petitioner had visited the site on 20th September, 1996.

iv) It was further charged that the No Objection Certificates from the Original Consumers and the remaining Venders were not taken.

v) Other allegations were also raised on the basis of the alleged cancellation order passed by Director of Revenue which were allegedly communicated to the petitioner vide letter dated 17.9.1996.

3. The petitioner gave a reply to the aforesaid memorandum and

raised the following points:

i) That the unauthorized connections were not in the knowledge of the petitioner

ii) That the property in question was auctioned on 12.9.1993 by the Income Tax Department.

iii) That as per the records available, out of the total outstanding amount of Rs.3.25 lakhs, 2.15 lakhs was recovered and a deletion of Rs.1.39 lacs was proposed against the arrears of 1.10 lakhs.

iv) The mutations were allowed on two occasions, i.e., on 09.01.1996 and 02.03.1996 whereas the information regarding the unauthorized water connections was brought to the knowledge of the petitioner by the then Area Meter Inspector during the mid of April, 1996.

v) That the total outstanding dues against the other water connections in question was only Rs.1,07,186/- and that there were no dues outstanding against water connections Nos.1903C and 6302S. As far as the water connections, for which mutation was done by the petitioner, are concerned it was clearly submitted that there were no dues to be paid. .............

ix) As far as the charge regarding obtaining the NOC from original consumers are concerned, it was explained that the same was not considered essential in view of the fact that the original/remaining consumers were in fact dislodged from their properties by Income Tax Department due to the fact that they had become defaulters. It was further submitted that the mutations were done only in the names of the persons/parties who had become the owner of the property through the proceedings conducted by Income Tax Department.

x) As far as the charge regarding obtaining the NOC from other co-owners are concerned, it was explained that the same was not brought to the notice of the petitioner. However, it was pointed out that none of the mutations

were granted in favour of any person other than the co- owner.

4. Not satisfied with the reply of the petitioner, an inquiry was held

and the office of the Principal Administration, Delhi Jal Board passed

an order dated 06.10.2000 whereby the penalty of withholding of two

increments without cumulative effect was imposed on the petitioner.

The main reason given by the Member (Administration) for imposing the

aforesaid penalty was that the builder had purchased the entire piece of

land from Income Tax Authority with all assets and liabilities and so he

was supposed to clear all the outstanding dues of all the water

connections and so the petitioner should have recovered the entire

outstanding dues of all the water connections from the builder before

passing the mutation order.

5. An appeal was filed by the petitioner against the penalty imposed

upon him which was dismissed by the Appellate Authority vide order

dated 13.07.2001. The appeal was disposed of vide order dated

17.11.2003 whereby the Appellate Authority declined to interfere with

the orders passed by it on the ground that no new material or fresh

grounds were raised by the petitioner and accordingly the appeal was

rejected.

6. The petitioner then filed W.P.(C) No.23138/2008 before this Court

on 16.11.2005 which was transferred to the Tribunal and was

registered as O.A. as aforesaid. The O.A. was dismissed by the Tribunal

vide impugned order dated 05.01.2010. It is against the said order, the

present petition has been filed.

7. Before us, the petitioner has submitted that neither the Appellate

Authority nor the Tribunal has considered the submissions made by the

petitioner in his reply to the memorandum and reiterated the points

raised therein as ground of his defence.

8. We have heard learned counsel for the petitioner and has also

taken note of the order passed by the Tribunal. We find from the order

of the Tribunal that all the issues raised by the petitioner have been

duly considered. In fact, the Appellate Authority also took note of the

representation made by the petitioner and has found that the

representation was not factually correct. Rather in his representation,

the petitioner has admitted his guilt. Some relevant portion of the order

of the Appellate Authority is reproduced hereunder;

I, M.P. Tyagi, Member (Administration) have carefully gone through the statement of imputation of misconduct, reply of Sh. Rajeshwar Tiwari in response to the charge- sheet, facts and circumstances of the case and also heard him in person. Sh. Rajeshwar Tiwari has admitted that he had mutated the alleged 11 water connections in 1995-96. He had recovered Rs.2.15 lacs out of Rs.3.25 lacs outstanding against the said water connection at that time. His contention is that the balance amount was to be deleted as construction was started in 1993-94 and there was no consumption of water during the period when the tenaments were demolished. I am told that the Builder had purchased the entire piece of land, i.e., 6, Alipur Road in auction from Income Tax Authority with all assets and liabilities so the outstanding dues of all the water

connections should have been recovered from the builder before allowing/getting water connections or electric connections. Sh. Tiwari could not satisfy me as to why all the dues of all the water connections were not recovered before mutation of the water connection.

Further, the C.O. could not give any reply as to why the water connections belonging to the registered consumer were transferred in new apartments without obtaining No Objection from the said registered consumers. As a matter of fact the builder should have applied for new bulk connection instead of allowing mutation of only a few connections without recovery of total outstandings dues in the property. The C.O. has nothing to say against the non-compliance of the orders of the Dy.D.O.R. dt. 12.09.1996 cancelling the 11 mutations of 6, Alipur Road. The reply of the C.O. is not satisfactory and therefore the penalty of "withholding of two increments without cumulative effect" is imposed upon Shri Rajeswari Tiwari, ZRO(W).

9. The Tribunal by way of the impugned order has discussed the

charges leveled against the petitioner and has also examined the

explanation furnished by the petitioner on record but did not find the

explanation satisfactory. Some of the observations made by the

Tribunal which throws light on the controversy raised by the petitioner

are reproduced hereunder:

8. We may, therefore, advert of the explanation furnished which are on record. We find that sufficiently this alone might be justifiable for the respondents to come to a conclusion that there great lapse admitted by the applicant, at least with reference to some of the default, and conduct which was found, as not conducive to the interest of Delhi Jal Board. He has even pleaded that the amounts shown as

due from the consumers were busted and perhaps Area Meter Reader had recorded wrong entries which were likely to harass the consumers which had resulted in unjustified accumulation of arrears. This was definitely beside the point. This could not have been a defence when it was pointed out that arrears over Rs.1 Lakh could not be recovered because of leniency and lethargy shown by him. In fact the attempt was to implicate „area meter reader for the whole episode‟. In other words, irregularity committed which was there on the issue had not been disputed. He has also raised a defence that only a few connections of the premises mutations had been allowed but simultaneously it is stated that all the connections were given in the names of different consumers. We may also extract herein paragraph 5 of the reply which runs as following:

"It may be incorrect to say that all the above connections belonged to the same property. After execution of the sale deeds the flats against which mutation were allowed on provisional basis on usual terms and conditions so that incase of any objection remedial measures could not be taken, same were registered in the names of different persons by paying the necessary court fees and corporation tax vide registries attached with the mutation documents. We do not charge/realize dues even in the case of ex-allottees/consumers from the new allottees/consumers of the same flat (Govt./DDA), how far it is correct to collect dues against water connections of a separate property. Moreover, properties (in most of the cases) in Delhi are being sold on the basis of GPA, hence mutations, new water/electric connections etc. are being allowed treating the properties separate entities."

In respect of allegations that NOC was not obtained from the previous consumers, the applicant had taken a stand that the same may not be considered as essential because it may not be judicious to ask for NOCs from a consumer declared defaulter and dislodged from his property and the Income Tax Department

had assigned the property to new owner. He even characterized the requirement as a "funny proposal" to ask an owner from his tenant/occupier for fixing/mutating a water connection of his own property. He has also pleaded that in respect of NOC from the co- owners it had not been brought to his notice that there were co-owners in the same sale deeds.

9. As could be seen from materials on record applicant had also made clear that in his discretion he had not considered it proper to cancel the mutation, as according to him, the better course would have been to suspend the mutation. This is his stand vis-à-vis the charge that he had disobeyed orders of his superior.

10. If we take note of the above response of the applicant, it would rather appear as a case where he had practically admitted his conduct. Therefore, it could not be urged that the disciplinary authority had committed an error in finding him answerable for the defaults.

10. From the aforesaid, it is apparent that the Tribunal did found

favour with the contention of the respondent that the conduct of the

petitioner was not conducive to the interest of Delhi Jal Board. His

reply regarding amount shown as due from the consumers were busted

and which were perhaps on the basis of wrong Area Meter Reader

entries which only goes to help the consumers who are supposed to

make that payment. Moreover, the defences which he has tried to point

out to justify non-recovery of arrears of more than Rs.1 Lac goes to

show that he was lenient and lethargic in dispensing with his duty and

was trying to pass the burden on others. Moreover, insofar as the NOC

having not been obtained there is not even any defences led on behalf of

the petitioner.

11. In these circumstances, we find that the order passed by the

Tribunal upholding the penalty imposed against the petitioner which is

a minor penalty of withholding of his two increments with cumulative

effect only does not call for any interference by us while exercising our

powers under Article 226 of the Constitution of India. Accordingly, the

writ petition is dismissed.

MOOL CHAND GARG, J.

APRIL 28, 2010                                 ANIL KUMAR, J.
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