D:\Data Transfer\2010\Shortcut vs P.C. Jain
2010 Latest Caselaw 1133 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                WP(C ) No. 540/2009

%                            Date of Decision: 26.02.2010

DDA                                                              .... Petitioner
                             Through Mr. Arun Birbal, Advocate

                                      Versus

P.C. Jain                                                       .... Respondent
                Through               Mr. R.S. Kela, Advocate

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?


ANIL KUMAR, J.

The petitioner, DDA has challenged the order dated 25th July,

2008, passed by the Central Administrative Tribunal, Principal Bench,

New Delhi in TA No. 91/2007 titled as Sh. PC Jain Vs. DDA and Anr.

setting aside the penalty order dated 26th June, 2003, whereby the

penalty of 20% cut in pension for a period of 10 years was imposed on

the respondent.

It is not disputed by the parties that the respondent Sh. P.C. Jain

had retired from DDA on 31st January, 1996 and a few days before his

retirement on 18th January, 1996, he had been served with article of

charges stipulating that while working as Director (Building) DDA, he

had shown undue favor to the allottee of Plot No. J-14 and J-15,

Vikaspuri, New Delhi by not issuing demolition orders of unauthorized

construction inspite of the report given by the Jr. Engineer and as such

the party managed to construct a huge commercial building styled as

Pelican Hotel by amalgamating both the plots.

Though the article of charges were framed on 18th January, 1996,

however, the considerable time was taken in appointing an inquiry

officer who gave a report on 29th May, 1998 holding that respondent

was guilty of charge framed against him.

After considering the report of the respondent against the inquiry

report, the Disciplinary Authority issued a penalty order on 26th June,

2003, imposing a penalty of 20 % cut in pension for a period of ten

years.

The respondent had challenged the order of the Disciplinary

Authority by filing a writ petition No. 3169/2004, however, pursuant to

notification dated 25th July, 2007, the matter had been transferred to

Central Administrative Tribunal, Principal Bench.

Before the Tribunal on behalf of the respondent, it was contended

that just few days before his retirement, the article of charge were

framed to victimize the respondent and in any case, the allegations

against the respondent were vague and based on surmises without any

basis and the inquiry officer had gone far beyond the framework of

charge-sheet to find him guilty of imaginary lapses. The Disciplinary

Authority also according to the respondent overlooked the above

aspects and a major penalty had been issued without due care and

caution.

The Tribunal after considering the respective contentions had

held that merely because the charge sheet was issued 12 days before

the retirement, the same could not be over looked. Since, no malafide

was imputed against the enquiry officer, therefore, the Tribunal held

that the plea of the respondent that the inquiry officer exceeded beyond

his jurisdiction was not accepted.

It was contended on behalf of the respondent that Jr. Engineer

(Building) had submitted a report only to the effect that the concerned

party has excavated two plots and was constructing full basement. The

Jr. Engineer had submitted a report about the unauthorized excavation

on 27th January, 1992 and the DD (Building) brought this to the

attention of the applicant on 11th February, 1992. The case was

marked on 12th February, 1992 to Dy. Director (Enforcement Branch)

for putting up show cause notice and thereafter, file had gone back and

was received later on in the office of the applicant only on 13th May,

1992.

In the circumstances, the learned counsel for the petitioner is

unable to explain as to how there was a delay on the part of the

respondent in issuing the show cause notice for 17th July, 1992. The

Tribunal noted that this is a case of no evidence as there was nothing to

show that the file had come back to the office of the applicant on 13th

May, 1992 or it had been brought to the notice of the applicant any day

prior to 17th July, 1992. If there is no evidence that the file was before

the respondent before 17th July, 1992 apparently, the respondent

cannot be held answerable for the delay from 12th February, 1992 up to

17th July, 1992 and the findings of the inquiry officer and Disciplinary

Authority are ex-facie not sustainable as there is no evidence in support

of such an inference drawn by them.

The Tribunal also noted that reports of the subordinate officers to

the respondent was that the demolition work was being attended to and

which was corroborated by the statement of party concerned that there

was no construction. The findings of the Tribunal which are relevant

are as under:-

"12. As noticed earlier, the article of charge itself was not appropriately framed, since the applicant is found responsible about construction of a huge commercial building viz. Hotel. The enquiry officer was not aware of the nature of the charges even. When the lapse alleged was that he was bound to inquire about the excavation and amalgamation carried out in the

plot, the finding is totally different. There was nothing to indicate that during the course, any construction activities were going on. In fact, the reports of the subordinate officers were that demolition work was being attended to, corroborated by the statement of the party concerned that there was no construction. Inherent defect in the charge sheet perhaps has resulted in a finding, which was unauthorized.

13. We may pause here for a moment so as to examine whether there was any bona fide attempt on the part of the DDA in putting all the blames on the applicant for the construction of a Hotel, without due sanction as a fall out of the enquiry report. Facts has been presented that during 1993 a hotel was functioning at the premises. But it is elementary that before an establishment like a hotel is permitted to function, clearance from the DDA and Municipal Authorities is mandatory, in regard to the fitness and compliance with the plans. Even in the manner of supply of electricity and water, the authorities have power to withhold grant of license and permission where the construction is unauthorized. There is no plea that the applicant was presiding himself over all these matters. As a superior officer, the applicant had to rely on the report submitted to him by the subordinate officers and it was not the case of the DDA that he was expected to go and personally examine the works about which violations were reported. There is no suggestion that the successor of the applicant after June, 1993 also had moved a little finger, to hold that construction was irregular and it was subjected to be demolished. The indication on the contrary is that the hotel complex is functioning for all fifteen years as of now."

The learned counsel for the petitioner in the circumstances, is

unable to show as to how the respondent can be held liable for delay or

unauthorized construction when the reports from the Jr. Engineer and

the Assistant Engineer to him were that no work was being transacted

but the demolition work was in progress. This also cannot be disputed

that the charge is that demolition orders of unauthorized constructions

were not issued where as the evidence shows that pursuant to the

report of the Jr. Engineer and the Assistant Engineer, demolition work

was carried on. This also cannot be disputed that for running a hotel

various permissions are required and none of these permissions were

supervised or were granted at the instance of the petitioner. In the

circumstances, the finding of the Tribunal that as a Supervisor officer,

the respondent had to rely on the report submitted to him by the

subordinate officers cannot be faulted. There is no evidence that after

1993 when the respondent was moved from the post, the successor of

the respondent did anything regarding construction, which was alleged

to be irregular and was to be demolished. For the period after 1993 no

liability can be imputed on the respondent for not carrying out the

demolition pursuant to the reports of the Jr. Engineer and the Assistant

Engineer.

The learned counsel for the petitioner Sh. Birbal, in the

circumstances, is unable to show any cogent evidence in support of

charge against the respondent that he had shown undue favor to the

allottee of Plot No. J-14 and J-15, Vikaspuri, New Delhi as the reports

before the respondent were that the demolition is being carried out and

even the party appeared during the proceedings and contended that the

demolition has been carried out.

In the circumstances, the order of the Disciplinary Authority

which is based on no evidence and is rather based on its own surmises

and conjectures could not be sustained and consequently the order of

the Tribunal setting aside the order of the Disciplinary Authority

imposing major penalty of withholding 20% of the pension cannot be

faulted and the order of the Tribunal is entitled to be sustained.

The order of the Tribunal impugned before us does not suffer

from any such illegality or irregularity which will require interference of

this Court in exercise of its jurisdiction under Article 226 of the

Constitution of India. The writ petition is without any merit in the facts

and circumstances and it is therefore, dismissed.

ANIL KUMAR, J.

FEBRUARY 26, 2010                               MOOL CHAND GARG, J.
'rs'