Delhi Development Authority vs Sh.Om Prakash
2010 Latest Caselaw 2744 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) No.3631/2010
%
                           Date of Decision: 24.05.2010

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

                                    Versus

Sh.Om Prakash                                              .... Respondent
                        Through   Mr.Siddharth Joshi & Santosh Kumar,
                                  Advocates.

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 has impugned the order dated 27th May, 2009

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in O.A.No.2104 of 2008, titled as „Om Prakash v. Delhi

Development Authority & another‟, allowing the application of the

respondent for quashing the charges framed against the respondent on

the basis of a quality control report which was made without any

inspection of the actual site.

The respondent was a Superintending Engineer and he had

challenged the Charge Memorandum dated 24th March, 2008 initiated

against him under Regulation 27 of DDA (Conduct, Discipline & Appeal)

Regulations, 1999.

The charge pertained to the period 1993-95 when the respondent

was posted as an Executive Engineer-RPD-10. The alleged irregularities

were imputed against the petitioner on the basis of inspection of the

quality control cell on 14th July, 1995 of the similar work as was

executed under the supervision of the petitioner and not the work

which was got executed by the petitioner. The misconduct against the

respondent in the charges was as followed:-

"While making payment in R/A bill Shri Om Prakash E.E. (Now S.E.) committed the following irregularity in respect of above mentioned work:-

Shri Om Prakash E.E.(Now S.E.) failed to take timely action for removal of efflorescence and rectification of defective plaster at the initial stage of the execution of the work as pointed by Q.C. Cell, DDA thereby putting Deptt. to a financial loss of Rs.5,42,647/-.

Shri Om Prakash E.E. (Now S.E.) by his above act failed to maintain devotion to duty and acted in a manner unbecoming of a Govt. servant thereby contravened Regulation 4 (1)(i) & (iii) of DDA Conduct, Disciplinary and Appeal Regulations, 1999 as made applicable to the employees of DDA."

The charges framed against the respondent were challenged by

him primarily on the ground that the whole basis of the alleged

irregularities was the general report prepared by the quality control cell

of the adjoining site and not pertaining to the site which was under the

respondent as an executive engineer.

The petitioner relied on an Inspection Note enclosed with letter

dated 28th may, 1995 from the executive engineer, quality control cell

addressed to the respondent categorically admitting that the defects

were noticed in a similar type of work at the adjoining site. The relevant

extract is as under:-

"As per the program, the inspection team inspected the site on 14.07.1995. During the discussion, at the site EE/RPD- 10 pointed that the work as completed on 5.1.95. Since the quality control inspections are to be conducted within six months from the date of completion, the work could not be inspected in detail. However, the defects notices in a similar type of work at the adjoining site are mentioned below, to take care of these defects and other defects before finalizing the bills."

The respondent also relied on the fact that on the date of

inspection i.e. 14th July, 1995, he was under orders of transfer from

that Division and he had handed over the charge on 18th July, 1995.

The respondent also contended that the memorandum regarding defects

was received in the Division after he was transferred and the petitioner

has failed to disclose as to what happened during intervening period

from 1995 till 15th November, 2006, when a letter was received from the

Chief Engineer, Rohini Zone. The respondent had challenged the

framing of charge against him on the ground that relevant documents

for framing the charge were not supplied to him and the fact that

houses were defectives in the quality was pointed out as the houses

were lying vacant for 8 years up to 2003 on account of non-availability

of water and electricity. The respondent had also raised the plea that

maintenance after completion of work in 1995 was not done by the

successor after handing over the charge of the Division in July 1995.

The Tribunal noted the un-explained delay from 1995 till 2006

and relied on various judgments. Taking into consideration the fact that

the basis of alleged defectives work was the inspection report by the

quality control cell which not based on inspection of the work which

was under the supervision of the respondent but was based only on the

assumption that if there had been defects in the adjoining work,

therefore, the work which was got executed by the petitioner must also

be defective, has quashed the charge memo against the respondent.

Learned counsel for the petitioner has very emphatically

contended that the charge against the respondent could not be quashed

and has relied on the decision of the Supreme Court in Civil Appeal

No.16353 of 2000, titled as „DDA v. I.J.Mongia‟, decided on 16th

February, 2001 holding that in case of quality of construction which is

alleged to sub standard, merely because the Delhi Development

Authority was negligent in proceedings against the delinquent officer,

could not be a ground for quashing or setting aside the disciplinary

action against the officer concerned. The Supreme Court had held that

in some cases delay in taking departmental proceedings may cause

serious prejudice to the delinquent officers and in appropriate cases the

Court may interfere but where sub standard houses are constructed,

material of the sub standard houses would always be available and it

would be open to the DDA to take action. The case of the respondent,

however, is a distinguishable as report of the quality control cell is not

based on the actual inspection of the houses which were under the

supervision of the respondent as an executive engineer/RPD-10 which

is admitted by the quality control cell in its letter dated 28th May, 1995.

It has been categorically admitted that the inspection was carried out of

the similar type of work at the adjoining site and not of the site which

was under the respondent. In the circumstances, it could not be held

even prima facie that work was defective and so therefore, charge

against the respondent that he failed to take timely action for

efflorescence and rectification of defectives plaster is not made out to

entail framing any charge of misconduct.

Learned counsel for the petitioner has also failed to give any

explanation that if the respondent was transferred from the Division on

14th July, 1995 and according to the averments of the respondent

which have not been denied by the petitioner that houses were lying

vacant for 8 years, and no maintenance work was carried out by the

successor of the respondent, even prima facie it cannot be inferred that

the respondent failed to take timely action for removal of efflorescence

and rectification of defectives plaster at the initial state of the execution

of the work. Since the inspection was not carried out, it could not be

held as to how the quality control cell could come to the conclusion that

the rectification of the defectives plaster at the initial state of the

execution of the work had not been done and it could be attributed to

the respondent. Ratio of the case of „DDA v. I.J.Mongia‟ is not applicable

to the present facts and circumstances of the case as the allegations of

sub standard work cannot be imputed to the respondent.

In the entirety of the facts and circumstances, the learned

counsel for the petitioner has failed to make out any such illegality,

irregularity or perversity in the order of the Tribunal, which would

require any interference by this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India. The writ petition in the

facts and circumstances of the case, is without any merit, and it is

therefore, dismissed.

ANIL KUMAR, J.

MAY 24, 2010                                     MOOL CHAND GARG, J.
„VK‟