Delhi Development Authority vs Sh.P.C.Jain
2010 Latest Caselaw 1127 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.547/2009
%
                        Date of Decision: 26.02.2010

Delhi Development Authority                             .... Petitioner
                  Through Mr.Arun Birbal, Advocate for the Petitioner

                                     Versus

Sh.P.C.Jain,                                                .... Respondent
                     Through    Mr.R.S.Kela, Advocate for the respondent.

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                NO
     in the Digest?



ANIL KUMAR, J.

*

The respondent, Delhi Development Authority, has challenged the

order dated 29.04.2009 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi in T.A No.89/2007, tilted as 'Sh.P.C.Jain v.

Delhi Development Authority' quashing the charge sheet and the penalty

of 20% cut in the pension for ten years imposed against the respondent

and to restore the cut in pension.

The respondent was accused of not taking appropriate action

regarding unauthorized construction at the Plot Nos.159-160 Transport

Centre Rohtak Road, New Delhi which were auctioned by Delhi

Development Authority (DDA) for workshop purposes, and were

purchased by M/s Pushpa Builders Ltd. in 1987. According to petitioner,

the matter regarding unauthorized construction was brought to the

notice of the respondent by his U.O. dated 1st January, 1990, but the

respondent who was Director (building) at that time did not take any

action immediately.

An appeal was filed by the Builder/Lessee of the property where

the Appellate Tribunal had directed to demolish the unauthorized

construction within 15 days, failing which the Delhi Development

Authority was authorized to seal the property or carry out the demolition

itself.

The allegation against the petitioner was that he granted one

month time more up to 23rd November, 1992 for re-sealing the premises

and thus, committed a gross misconduct contravening Rule 3(1) (i)(ii)(iii)

of C.C.S. (Conduct) Rules, 1964 as made applicable to the employees of

the DDA. Pursuant to the departmental proceedings initiated against the

respondent, which were initiated only one day before his retirement, a

penalty order dated 31st May, 2000 was passed imposing 20% reduction

in his pension for a period of 10 years.

An appeal was filed by the respondent against the penalty order

dated 31st May, 2000, however, it was contended on behalf of the

petitioner that the appeal was not maintainable, and consequently,

during the pendency of the appeal, a writ petition was filed before the

High Court. The penalty order had imposed a 20% cut in the pension of

the respondent for a period of 10 years.

The writ petition filed before the High Court was transferred to the

Central Administrative Tribunal, Principal Bench, New Delhi and was

registered as T.A.No.89/2007. Before the Tribunal it was agreed between

the parties that the question about the pendency of the appeal need not

be gone into, and T.A.(Transfer Application) be decided on merits.

The respondent had contended that the penalty of 20% cut in the

pension was imposed on him pursuant to the departmental proceedings

initiated just one day before his retirement on 30th January, 1996 was

unsustainable as he had a meritorious record of services and the action

had been taken against him as he was strict in his dealing and a lobby

had been working against him. It was asserted that charge sheet was

issued to him one day prior to his retirement on 30th January, 1996 for

an incident which dates back to 1999, and no cogent and plausible

reason had been disclosed by the petitioner for the delay.

The respondent also contended that the allegations made against

him were without any factual basis and did not constitute misconduct

actionable under law. The report of the Enquiry Officer was also

challenged on the ground that the Enquiry Officer had relied on the facts

and documents which were not proved and to which the respondent had

not been given access too, and consequently, there had been denial of

principal of natural justice, and the respondent had not been given any

opportunity to explain.

After considering the rival contention, the Tribunal had held that

the Article of charge was not definite in nature and not in consonance

with Discipline and Appeal rules prescribed for drawing article of charges

and statement of allegations so that specific dereliction of duty could be

specified which could be explained by a delinquent employee. From the

charge sheet it was inferred by the Tribunal that it did not disclose as to

what action was expected from the respondent which was not taken by

him, and how, it was in violation of which rule or regulation.

It was noted that building was not required to be demolished at

any point of time because it had been cleared by the Committee which

enjoyed jurisdiction for passing such orders. Only certain portions were

objectionable which were required to be demolished. It was also noted

that admittedly demolition order dated 31st December, 1990 was issued

much before the letter of the Vice Chairman dated 27th March, 1991, and

therefore, the plea that the demolition order was issued only after the

letter of the Vice Chairman dated 27th March, 1991 is ex facie incorrect.

The patent mistake is also apparent from the fact that only pursuant to

demolition order dated 31st December, 1990 an appeal was filed by the

Builder before the Appellate Tribunal where the order was passed to

either demolish the portions which were not inconsonance with the

Building Bye-laws or to seal the property. The tribunal also considered

that in fact, building had been sealed and remained sealed until 31st

August, 1992, when an application for removal of seal had come from the

Builder.

This had also not been disputed before the Tribunal that the option

was given by the Appellate Tribunal either to demolish the portions which

were unauthorized, or seal the building, and since the building was

sealed, till the building remained sealed, the portions of the property

which were unauthorized were not to be demolished.

Since the additional structure was removed by the Builder himself,

not demolishing or under taking any act to demolish the unauthorized

portions will not be infraction of any of the direction of the Appellate

Tribunal. In any case the object was to prevent any further unauthorized

construction which was successfully done by sealing the premises.

The Tribunal also relied on the facts that the Enquiry Officer called

for various files and noted the facts without disclosing them to the

respondent and without giving him an opportunity to give explanation

regarding them. It was held that in the circumstances, adverse inferences

could not be drawn against the respondent for not explaining various

facts which were culled by the Enquiry Officer from various files.

It was not expected of the respondent to remember everything and

to answer Enquiry Officer regarding the contents of various files which

were not relied upon along with the documents of articles of charges.

Apparently the procedure adopted by the enquiry officer was patently

wrong and was in denial of principles of natural justice. In the

circumstances, the Tribunal has held that the issue seems to have pre-

decided against the respondent and has quoted an extract of the Enquiry

Officer Report, which is as under:-

"The CO granted time extension without any justification to enable the builder to continue the unauthorized construction and also approach the Hon'ble High Court to obtain ex parte decision. The CO was repeatedly informed that the builder was not demolishing unauthorized construction and was going ahead with the unauthorized construction. In spite of being aware of this, the CO granted repeatedly extension of time to the Builder."

The observations of enquiry officer and inferences drawn by him

are patently contrary to record as demolition order was issued on 31st

December, 1990 much before the letter from the Vice Chairman dated

27th March, 1991 was issued. The patent error is also apparent from the

fact that it was against the demolition order dated 31st December, 1990

that builder had approached the Appellate Tribunal where the order was

passed either to demolish the unauthorized portions of the construction,

or to seal premises pursuant to which the premises was sealed, and it

remain sealed till 31st August, 1992 when the builder had moved for

demolition of sealing premises. This is also apparent that pursuant to

demolition order dated 31st December, 1990 no unauthorized

construction was carried on in the premises. In the circumstances,

apparently the charge against the petitioner was vague and findings are

patently incorrect and based on Enquiry Officer's assumption and

surmises and conjectures.

Though it is true that the jurisdiction of the Tribunal in judicial

review is limited, however, disciplinary proceedings being quasi-criminal

in nature, there should be some cogent and reliable evidence to prove the

charge. Although the charges in a departmental proceeding are not

required to be proved like a criminal trial i.e. beyond all reasonable

doubt, but it cannot be lost sight of the fact that the enquiry officer

performs a quasi-judicial function, who upon analyzing the evidence and

documents must arrive at a conclusion that there had been a

preponderance of probability to prove the charges on the basis of

materials on record. While doing so, he cannot take into consideration

any irrelevant fact. He cannot refuse to consider the relevant facts. He

cannot make his own assumptions. He cannot shift the burden of proof.

He cannot reject the relevant testimony of the witnesses only on the basis

of surmises and conjectures. He cannot enquire into the allegations with

which the delinquent officer had not been charged with. In case of the

respondent the enquiry officer called for the files and culled the facts

from there without disclosing them to the respondent and without

seeking explanation of the respondent. Various inferences of the enquiry

officer are also based on his own assumption and surmises and

conjectures.

The learned counsel for the petitioner has not been able to dispute

that just one day before the retirement of the respondent two more

enquiries were initiated on similar ground for other buildings where

unauthorized construction was alleged in 1990 and penalty of cut in

pension was ordered which orders were also challenged by the

respondent in two other original applications which were also decided by

the Central Administrative Tribunal dismissing the charge sheet and

penalty imposed upon the respondent. Aggrieved by quashing of the

penalty imposed in other cases, the petitioner had filed two other writ

petitions being W.P.(C) No.8759/2008, titled as 'D.D.A. v. P.C.Jain' and

W.P.(C) No.540/2009, titled as D.D.A. v. P.C.J. which have also been

dismissed by this Court.

In the facts and circumstances, the learned counsel for the

petitioner has failed to make out any such illegality or irregularity in the

order of the Tribunal dated 29th April, 2008, which will necessitate any

interference by this Court in exercise of its jurisdiction under Article 226

of the Constitution of India.

The writ petition is, therefore, without any merit, and it is

dismissed.

ANIL KUMAR, J.

FEBRUAR 26, 2010                                 MOOL CHAND GARG, J.
'VK'