Delhi High Court
Municipal Corporation Of Delhi vs H.C. Singhal on 3 December, 2010
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 03.12.2010
+ WP (C) No.6272 of 2010
MUNICIPAL CORPORATION OF DELHI ...PETITIONER
Through: Ms. Mini Pushkarna, Advocate.
Versus
H.C. SINGHAL ...RESPONDENT
Through: Mr. Bharat Bhushan Bhatia,
Mr. Navjot Kumar &
Ms. Rashmi Sharma, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE M.L. MEHTA
1. Whether the Reporters of local papers No
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
SANJAY KISHAN KAUL, J. (Oral)
1. The respondent, Shri H.C. Singhal, while functioning as Zonal
Engineer (Building) in the City Zone of the Municipal Corporation of
Delhi from 16.12.1981 to 23.4.1983 was alleged to have committed
gross misconduct and failed to maintain devotion to duty and
absolute integrity on account of delay in dealing with unauthorized
construction of a commercial complex in Chandni Chowk and failing
to comply with instructions from superior authorities resulting in
framing of charges against him and a departmental inquiry being
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held. This departmental inquiry found the respondent guilty and an
Office Order dated 16.2.1993 was issued by the disciplinary authority
after giving opportunity to the respondent upholding the finding of
the inquiry and imposing penalty of dismissal from service about
fifteen (15) days prior to the date of retirement of the respondent.
The order of the disciplinary authority was affirmed by the appellate
authority (Lieutenant Governor) vide order dated 18.4.1994.
2. The respondent aggrieved by this order of dismissal from service
filed a writ petition before this Court, being CWP No.3056/1994.
Only a limited notice to show cause was issued in that writ petition
on the question as to whether the respondent had been dismissed by
an authority who is subordinate to the authority who had appointed
the respondent. The writ petition was ultimately dismissed on
23.2.1995 with a long speaking order. We may notice that the last
line of the order says that the petition is 'dismissed in limine', which
implies that the petition was not admitted. The petitioner aggrieved
by this order preferred a Special Leave Petition No.12903/1995
before the Hon'ble Supreme Court and the same was dismissed on
12.7.1995.
3. A second round began thereafter as the petitioner filed a Revision
Petition before the President of India against the order of the
disciplinary/appellate authority. This Revision Petition was found
not to be maintainable and this was communicated to the respondent
on 10.6.1999 while simultaneously informing him that a Review
Petition could be filed for consideration of the Lieutenant Governor
under the DMC Services (Control & Appeal) Regulations, 1959. The
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petitioner thereafter filed a Review Petition before the Lieutenant
Governor on 27.10.1999, which was rejected vide order dated
27.4.2000. The said order notes the pleas raised by the respondent
that the fault was of the Junior Engineer, who was subordinate to him
in not moving the file expeditiously as also his grievance about lack
of reasonable opportunity to defend himself and the factum of three
other officers being awarded minor penalties while the petitioner had
been awarded the extreme penalty of dismissal from service. The
Lieutenant Governor has noticed that there were no infirmities in the
conduct of the inquiry proceedings and due procedure was followed
in awarding the punishment and all issues had been dealt with.
4. The respondent thereafter filed a writ petition before this Court, being
WP (C) No.5205/2000, once again making the same prayer as made
in the earlier writ petition, i.e. quashing the order of dismissal from
service and the order of the appellate authority rejecting the appeal.
This writ petition was transferred to Central Administrative Tribunal
(for short 'CAT') in view of transfer of jurisdiction and vide
impugned order dated 19.2.2010, the petition has been allowed. The
order of the CAT is now sought to be challenged by the
petitioner/MCD in the present petition under Article 226 of the
Constitution of India.
5. It is seen from the impugned order that the CAT has, once again,
gone into the inquiry report and found that the punishment imposed
was harsh and that others have been let off with minor penalties. The
penalty of dismissal from service has been modified to that of
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compulsory retirement directing the petitioner to disburse all retiral
dues to the respondent.
6. We have heard learned counsels for the parties. We find the
impugned order completely unsustainable.
7. The order against the respondent of dismissal from service dated
16.2.1993 and the appellate order rejecting the appeal dated
18.4.1994 form subject matter of adjudication in the earlier writ
petition filed by the respondent. All grievances as were permissible
in law including relating to proportionality of sentence were liable to
be raised at that stage. It is not as if against the same order at
different times separate petitions can be filed raising piecemeal
grievances. The Division Bench of this Court did not deem it
appropriate to issue notice on other aspects except the question of
authority of the person who had dismissed the respondent from the
service. Learned counsel for the respondent has greatly emphasized
on the fact that the operative line of the order dated 23.2.1995 passed
in CWP No.3056/1994 states that the petition is 'dismissed in
limine'. We, however, find that the order is not a non-speaking order
but running into couple of pages dealing with the issue and the
judgements on the point. The order has been passed after notice to
the Corporation and hearing both the parties. The phraseology
'dismissed in limine' means that 'it is not a case fit for admission and
no Rule or Rule DB issued in the matter'. Not only that the Special
Leave Petition filed by the respondent was also dismissed.
8. The scope of any review by the Lieutenant Governor thereafter is
limited. However, despite this the Lieutenant Governor has taken the
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trouble of noticing all the pleas of the respondent, once again, and
passed a speaking order on 27.4.2000.
9. In a challenge to that order all that could have been examined was
whether the exercise of the review power by the Lieutenant Governor
was in accordance with law or not. It could not have amounted to a
re-hearing of the issue of the validity of the order of dismissal and of
the appellate order. The order dated 27.4.2000 cannot be said to be
erroneous or improper. The respondent could not even have prayed
once all over again for the order of dismissal and the appellate order
to be set aside, which is the prayer which was made in the writ
petition which was transferred to the CAT and has resulted in the
impugned order but could only have on a limited aspect impugned
the order of the Lieutenant Governor dated 27.4.2000 exercising
review jurisdiction.
10. We fail to appreciate how the CAT could have, once again, gone into
the issue of the proportionality of sentence when that aspect was
either not raised or the earlier Bench of this Court had not found it fit
to be examined. Learned counsel for the respondent states that such a
plea was not raised. If the plea of proportionality of sentence was not
raised then it amounts to respondent having given up that plea while
challenging the dismissal from service.
11. We also find that had even the issue of proportionality of sentence
being examined, a finding could not have been reached that the
sentence was too severe or disproportionate so as to be interfered
with. The menace of unauthorized construction and officers of public
authority looking the other way when such construction is carried out
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permeates the city of Delhi. In the present case the respondent was
the concerned officer who took no steps against the unauthorized
construction of a commercial complex in Chandni Chowk which is a
congested area. Not only that even when communication was sent to
him by the superior officer he claims to have marked it to a
subordinate officer and did not supervise the same. Such dereliction
of duties has to be dealt with without unnecessary sympathy.
12. We consequently set aside the impunged order of the CAT dated
19.2.2010 and make the rule absolute leaving the parties to bear their
own costs.
SANJAY KISHAN KAUL, J.
DECEMBER 03, 2010 M.L. MEHTA, J.
b'nesh
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