Municipal Corporation Of Delhi vs Sh. Bharat Bhushan
2010 Latest Caselaw 1591 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.1983/2010
%
                        Date of Decision: 22.03.2010

Municipal Corporation of Delhi                     .... Petitioner
                  Through Ms. Mini Pushkarana, Advocate for the
                             Petitioner/MCD.

                                  Versus

Sh. Bharat Bhushan                                        .... Respondent
                Through        Nemo.

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 petitioner, Municipal Corporation of Delhi has challenged the

order dated 13th October, 2009 passed in T.A. No.425/2009, Titled as

'Bharat Bhushan v. Municipal Corporation of Delhi and others' by the

Central Administrative Tribunal, Principal Bench, New Delhi, allowing

the petition of the respondent setting aside the order of dismissal

passed against the respondent and remitting the matter to the

Disciplinary Authority to reconsider the question of quantum of

punishment.

Brief facts to comprehend the controversy between the parties are

that the respondent and a Junior Engineer, Sh.R.K.Tripathi, were

jointly tried in a departmental enquiry for the gross misconduct in

issuing completion certificate for the property No.129, Nirankari Colony,

Delhi though the building was incomplete, and the construction was

against the sanctioned building plan.

This is not disputed that the respondent was appointed as Junior

Engineer/Section Officer in MCD in 1962, and on 25th January, 1981

he was promoted as Assistant Engineer. The respondent was further

promoted as Zonal Engineer on 13th August, 1986.

The departmental enquiry was conducted against the respondent,

as a Zonal Engineer, and another Junior Engineer Sh.R.K.Tripathi

pursuant to Memo dated 19.01.1989. The respondent had contested the

charges framed against him on the ground that as Zonal Engineer he

was required to inspect only 20% of the buildings; and 80% of the

buildings was to be inspected by the junior engineer in compliance of

the Building Bye-laws. In the circumstances it was asserted that the

construction made by the owner/occupant was to be assessed whether

it was in accordance with the sanctioned plan by the co-delinquent,

Junior Engineer Sh.R.K.Tripathi for issuing completion certificate.

This has not been disputed and denied that the respondent did

not inspect the building, and the inspection was carried out by the

Junior Engineer Sh.R.K.Tripathi. After the enquiry, the petitioner and

co-delinquent were dismissed from service though the respondent had

an unblemished service career spent over a period of 33 years. The

order of dismissal was challenged by the respondent by filing a writ

petition before the High Court, which was later on transferred to The

Central Administrative Tribunal, New Delhi. Before the Tribunal the

petitioners did not deny that under the Rules, the respondent was

inspect only 20% of the building for issuance of the completion

certificate on the report of the junior engineer and the completion

certificate which was issued was prepared by the Junior Engineer and

the respondent had not even inspected the building.

Before the tribunal it was also noticed that on account of

deviations in the building plan, compoundable fee of Rs.10,928/- was

realized which was paid on 11.12.1987, and a completion certificated

was issued on the basis of the report. The plea of the respondent was

that completion certificate what issued on account of the report

prepared by the Junior Engineer Sh.R.K.Tripathi who did not record the

deviations in the building constructed by the owner. The respondent

also raised the plea before the Tribunal that his defense that only 20%

was, the building was to be inspected by him and 80% of the building

was to be inspected by the Junior Engineer, was not considered. Rather

the Disciplinary Authority and Appellate Authority did not go at all into

the said issue in order to ascertain the extent of culpability of the

respondent, or ascertained the extent of liability of the respondent.

The Tribunal after hearing the pleas and the contentions of the

parties has held that though the respondent had to inspect 20% of the

buildings which was not done by him and the completion certificate was

issued on the basis of the report prepared by the Junior Engineer,

therefore, whether there was massive deviations in 20% of the buildings

which was liable to be inspected by the respondent has not established,

and in any case in the entirety of the facts and circumstances, the

penalty of dismissal from service of the respondent is disproportionate

to the alleged misconduct especially concerning unblemished service

record of 33 years of the respondent and that the deviation in the

building were regularized subject to payment of compoundable fee,

which was paid and accepted by the petitioners .

The tribunal also noticed that the deviations in the building were

not such which could result in demolition of the building, but the

deviations were compoundable, and therefore, the owner was asked to

pay compounding fee, which was paid by the owner. In the

circumstances, it has been held that the respondent had to be more

cautious and deliberate intentional violation has not been established,

nor any mala fides could be imputed against the respondent.

The learned counsel for the petitioner has reiterated pleas and

contentions raised before the Tribunal. This has not been disputed and

cannot be disputed by the petitioner that the report for grant of

completion certificate was prepared by the Junior Engineer

Sh.R.K.Tripathi, co-delinquent who has already been dismissed from

service, and he has not challenged his order of dismissal. Since there

were deviations which were compoundable and this fact came to the

notice of the respondent, therefore, he ought to have checked before

issuing of completion certificate, however, in the totality of facts and

circumstances the punishment imposed is disproportionate to the lapse

imputed against the respondent.

In the circumstances, the finding of the Tribunal that there was

no mala fide as far as the respondent is concerned cannot be faulted.

The dismissal from the service after 33 years, is therefore, apparently

too harsh and disproportionate to the lapse on the part of the

respondent, and in the circumstances, direction by the Tribunal to the

petitioner to reconsider the question of quantum of punishment cannot

be faulted nor the order of the Tribunal impugned before us can be held

to be suffering from any such illegality or irregularity which will

necessitate any interference by this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India.

The writ petition therefore, in the facts and circumstances, is

without any merit and it is dismissed.

ANIL KUMAR, J.

MARCH 22nd , 2010                             MOOL CHAND GARG, J.
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