Mcd vs Kanta Rani Kumar
2010 Latest Caselaw 2382 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+              WP(C) No.2431/2010 & CM Nos. 4863-4866/2010

%                         Date of Decision: 04.05.2010

MCD                                                     .... Petitioner
                       Through Mr.Himanshu Upadhyay, Advocate

                                  Versus

Kanta Rani Kumar                                         .... Respondent
                       Through Mr.H.D.Sharma, 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             NO
      in the Digest?




ANIL KUMAR, J.

*

The petitioner/Municipal Corporation of Delhi has impugned

the order dated 8th October, 2009 passed by the Central Administrative

Tribunal, Principal Bench in TA 1196/2009 allowing the application of

the respondent and quashing the charge sheet issued in 2006 by the

petitioner and also quashing the order dated 20th February, 2006

passed against her and directing the petitioner to grant promotion to

the respondent from the date her other juniors had been given

promotions with all consequential benefits.

The case of the petitioner is that the Govt. of NCT of Delhi had

initiated regular departmental inquiry for major penalty against the

respondent who was working as an Assistant Education Officer with the

petitioner. The allegation against the respondent was that while working

as PGT in GGSSS, Nand Nagri, New Delhi, she had prepared a false

transfer certificate of Class X on 13th August, 1991 in the name of Ms.

Jyoti Rani, whereas Ms. Jyoti Rani, daughter of Smt. Jaisal Vijay,

Principal had never studied in Class X of the said school.

The respondent had joined as an Assistant Education Officer

with the petitioner on 19th May, 1992 and she had retained her lien for

a period of two years in Directorate of Education. A charge sheet was

issued to the respondent on 17th February, 1995 framing the following

charge:-

"STATEMENT OF CHARGE FRAMED AGAINST SMT.KANTA RANI KUMAR D/O SHRI BALWANT SINGH, THE THEN PGT, GGSSS, NAND NAGRI, DELHI (NOW AEO/CITY ZONE, MCD).

Smt. Kanta Rani Kumar was functioning as PGT in Govt. Girls Sr.Sec.School, Nand Nagri, Delhi during the year 1991. She prepared a false transfer certificate on 13.8.1991 in the name of Ms.Jyoti Rani, whereas Ms.Jyoti Rani never studied in Class x of GGSSS, Nand Nagri.

She, thereby, contravened Rule 3(1)(i)(ii)(iii) of CCS (Conduct) Rules, 1964 as made applicable to the Govt. employees."

The charge alleged against the respondent was denied by her.

The respondent had challenged the departmental inquiry against her by

the petitioner on the ground that she was no longer in the service of

Delhi Government and consequently the proceedings against her were

in violation of Rule 14 CCS (CCA) Rules. Pursuant to the objection by

the respondent, the stand was taken that the charge sheet dated 17th

February, 1995 was issued to the respondent in violation of Rule 14 of

CCS (CCA) Rules and the competent authority to initiate disciplinary

action was not Lieutenant Governor but the Commissioner, MCD after

her joining MCD on 19th May, 1992. It was further asserted that the

entire record has been preferred to the Commissioner/MCD for taking

necessary action in accordance with the Government of India

Instruction No. 1 under Rule 11 of the CCS(CCA) Rules, which is as

under:-

"(1) Departmental action in respect of misconduct committed in earlier employment. It is clarified that the provision of Rule 11 of the CCS (CCA) Rules, 1965, which envisages the imposition of penalties on Government servant for good and sufficient reason is adequate authority for taking action against a Government servant in respect of misconduct committed before his employment if the misconduct committed before his employment was of such a nature as has rational connection with his present employment and renders him unfit and unsuitable for continuing in service. When such action is taken, the charge should specifically state that the misconduct alleged is such that it renders him unfit and unsuitable for continuance in service."

The respondent also claimed that if the inquiry is vitiated

against her, she would also be entitled for the promotion and all the

consequential benefits. The respondent had challenged the continuation

of inquiry against her by filing a writ petition in the High Court which

was transferred to the Central Administrative Tribunal and was

numbered as TA 1196/2009.

The plea of the respondent was challenged by the MCD

contending interalia that in consultation with Central Vigilance

Commission, it has been stated that the charge sheet issued by Delhi

Government is not by any competent person and only the

Commissioner of MCD could initiate disciplinary proceedings and the

same was justified under Rule 11, Instruction No. 1. Regarding the

promotion of the respondent, it was pleaded that since the respondent

is facing a disciplinary proceeding for major penalty, she is not entitled

for promotion.

The Tribunal by considering Rule 11, Instruction No. 1 held

that continuing with the inquiry with the new employer requires that

the charge should specifically stipulate that the misconduct alleged is

such that it renders the employee unfit and unsuitable for continuance

in service with the new employer and there is a rational relation with

the alleged misconduct.

Since the charge sheet did not stipulate that the continuance of

the respondent with MCD renders her unfit and unsuitable on account

of an act allegedly committed by her, when she was not employed with

MCD, consequently, the condition precedent under Rule 11 instruction

(1) are not met and consequently, the application of the respondent was

allowed and the charge sheet issued in 2006 and the order passed on

20th February, 2006 was set aside and as the charge sheet/disciplinary

proceedings were quashed, it was also held that the respondent shall be

entitled for promotion with all consequential benefits.

The learned counsel for MCD has reiterated the pleas and

contentions raised before the Tribunal. The learned counsel for the

petitioner, however, has not been able to dispute that in order to

continue the inquiry against the respondent, the petitioner had not only

to frame the charge that there is a rational connection between the

misconduct alleged by the petitioner, while the respondent was in the

service of the earlier employer, but also had to allege and demonstrate

that the alleged misconduct with the earlier employer renders her unfit

and unsuitable for continuing in service.

This has not been disputed that the charge framed against the

respondent does not incorporate the requirement of Rule-11 instruction

(1) so as to sustain the disciplinary proceedings against her. In the

circumstances, there is no cogent explanation given by the learned

counsel to hold that the order of the Tribunal suffers from any illegality

or irregularity. On the basis of the charge framed by the petitioner, no

disciplinary action can continue against the respondent.

In the facts and circumstances and for the foregoing reasons

this Court, therefore, does not find any such perversity in the order of

the Tribunal dated 8th October, 2009 which shall require any

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India. The writ petition is without any merit,

and it is, therefore, dismissed. All the pending applications are also

disposed of. The Caveat filed by the respondent/caveator is also

discharged.

ANIL KUMAR, J.

MAY 04, 2010                                    MOOL CHAND GARG, J.
„rs‟