Delhi Development Authority vs Sh.Suresh Kumar Diwan
2011 Latest Caselaw 4965 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.7414/2011

%                       Date of Decision: 10.10.2011

Delhi Development Authority                                .... Petitioner

                     Through Mr.Dhanesh Relan, Advocate
                                 Versus

Sh.Suresh Kumar Diwan                                    .... Respondent

                     Through Nemo


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.      Whether reporters of Local papers may             YES
        be allowed to see the judgment?
2.      To be referred to the reporter or not?             NO
3.      Whether the judgment should be                     NO
        reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioner, Delhi Development Authority, has challenged the

order dated 9th May, 2011 passed by the Central Administrative

Tribunal, Principal Bench in OA No.2669/2010 titled as „Suresh Kumar

Diwan v. DDA and Ors.‟, allowing the original application of the

respondent and setting aside the penalty of reduction of pay by one

stage for a period of one year with cumulative effect imposed on the

respondent by order dated 7th June, 2007, which was also confirmed by

the Appellate Authority‟s order dated 17th May, 2010. The Tribunal set

aside both the orders and directed the petitioners to release the arrears

of pay withheld on account of penalty. The Tribunal also directed the

petitioners to grant the 2nd ACP to the respondent due from 2005 and

fixation of his pay accordingly.

2. Relevant facts to appreciate the disputes between the parties are

that the respondent joined the petitioner‟s establishment in the year

1981 as a Field Investigator. While the respondent was working as a

Field Investigator at the South East Zone, a demolition programme was

scheduled and efforts for removal of the encroachment were made from

March 2004 under the directions of the High Court. On 24th March,

2004 an order was issued by the Assistant Engineer (Demolition) SEZ

whereby it stated that as per the request of the Dy. Director (I&L)

demolition program was fixed. In this regard it was decided that the

survey of jhuggi cluster of Azad Camp would be done by Assistant

Director Ramkishan along with Sh. Kishan Singh, Sh. Vijay Paul, Sh.

JC Sharma and the respondent who would start their survey from 24th

March, 2004 onwards. The respondent, on the same day, came to know

that his name had been listed for control room duty on 26th March,

2004. Since the applicant was already assigned the duty of demolition

programme at Sarita Vihar and was required to conduct a survey at

Mohan Cooperative Industrial Estate near Sarita Vihar on 26th March,

2004, the respondent informed the AE (Demolition) of his assigned duty

at the Control Room. The AE (Demolition), Sh. Om Prakash Dingra,

inturn assured the respondent that he would communicate the inability

of the respondent to attend the control room duty to the Dy. Director

(LM) SEZ.

3. On 21st April, 2004, a complaint was received from one Sh. B.S.

Tanwar addressed to the Vice Chairman, DDA sating that he had lodged

a complaint with DDA Control Room on the telephone on 26th March,

2004 but the concerned staff was not available on the Control Room.

One Sh. Chauhan, although was available in the Control Room at the

time, had refused to note down the complaint of the caller.

4. Thereafter, a memorandum of charge dated 12th October, 2004

was issued by the respondents. The statement of Articles of Charges

issued to the respondent is as under:-

"Shri Suresh Kumar Diwan, Research Asstt. while working as field Investigator in South East Zone, DDA during March, 2004 was deployed to perform his duty at the Control Room situated at „D‟ block, Ground Floor, Vikas Sadan on 26.03.04 from 6 AM to 2 PM and on 08.04.04 from 2 PM to 6 PM vide office order no.F.13 (37) 89/LMC/DDA/193 dated 12.3.2004 issued by Dy.Director LMC, DDA, Sh.Suresh Kumar Diwan, Research Asstt. was found absent in Control Room, DDA on 26.3.2004 when a complaint was lodged by Shri B.S.Tanwar regarding encroachment on DDA land in Village Naraina. One Sh.B.S.Tanwar has submitted a written complaint dated 21.4.04 addressed to Vice-Chairman, DDA and informed that on 26.3.04, he has lodged the complaint with the DDA Control Room on Telephone No.24646382 but concerned staff was not available in Control Room while one Sh.Chauhan was available in the Control Room who refused to note down the complaint.

By his above act Sh.Suresh Kumar Diwan, Research/Asstt.exhibited lack of devotion to duty and acted

in a manner unbecoming of an authority servant thereby contravening Sub Regulation 1 (i) and (iii) of Regulation 4 of DDA, Conduct, Disciplinary and Appeal Regulation 1999 which are applicable to the employees of the authority."

5. An enquiry was conducted and on the basis of the Enquiry

Report, which held that the charges were proved, and the reply filed by

the respondent, the Disciplinary Authority had imposed the penalty of

reduction of pay by one stage for a period of one year with cumulative

effect by order dated 7th June, 2007. An appeal was filed by the

respondent on 14th July, 2008 which was dismissed by the Appellate

Authority as being time barred by order dated 12th September, 2008.

The respondent, however, challenged the order holding his appeal as

time barred, and the said order was set aside by the Tribunal and the

Appellate Authority was directed to decide the appeal on merit. The

appeal was thereafter dismissed by the Appellate Authority by order

dated 17th May, 2010 on merit.

6. The respondent challenged the order dated 7th June, 2007 of the

Disciplinary Authority and order dated 17th May, 2010 of the Appellate

Authority contending, inter-alia, that the evidence on behalf of the

respondent had been not only rejected, but rather not even considered

and that the conclusion arrived at by the authorities could not be

arrived at reasonably and thus it is reflective of the non-application of

mind by the concerned authorities. It was contended that the charge

against him is that he was not present in the Control Room of DDA on

26th March, 2004 without any justifiable reason, though the fact is that

he was assigned on another duty, as he was deployed on an assignment

in the context of the demolition programme and the respondent could

not possibly be present at both the places simultaneously. The

respondent contended that he took this plea at all stages i.e. in his

reply dated 29th October, 2004 in response to the memorandum of

charge; during the course of the enquiry; in his representation made to

the Disciplinary Authority, and in his appeal dated 14th July, 2008.

However, the plea of the respondent was negated on the ground that the

respondent did not produce any documentary or oral evidence in

support of his plea that he was assigned another duty pertaining to the

demolition program and he had intimated AE (Demolition).

7. In the Original Application filed before the Tribunal under Section

19 of the Administrative Tribunal Act, 1985, the respondent

categorically contended that on 24th March, 2004 an order for

conducting demolition was issued and a joint survey was to be

conducted from 24th March, 2004 onwards. In support of his plea he

also produced the copies of file notings dated 12th March, 2004 till 24th

March, 2004 pertaining to the demolition matter to which he was

assigned. The respondent produced the order dated 24th March, 2004

issued by the Assistant Engineer (Demolition) LM/SEZ directing

carrying out of a survey of Jhuggi clusters of Azad Camp by the

Assistant Director, Sh.Ram Kishan, along with Sh.Kishan Singh, FI,

Sh.S.K.Diwan, (respondent); Sh.Vijay Pal and Sh.J.C.Sharma, FI, who

had to start survey from 24th March, 2004 onwards. The order also

stipulated that Sh.V.K.Srivastava JE, shall accompany Sh.Mange Ram,

PS (Beldar) as this was an urgent work under the directions of High

Court. The order further stipulated that all the above noted officials,

including the respondent, shall attend the work compulsorily. The order

dated 24th March, 2004 is as under:-

Sub: Demolition programme fixed for 31.03.2004 at Mohan Cooperative Industrial Estate in CWP (illegible)/98

On the request of Dy.Director (I.L) vide letter No.F.12(605)98/HC/Legal/438 dated 19.03.04. D/P has been fixed vide letter No.F.12(605)98/HC/Legal/124 dated 24.03.04 by DD (LM) SEZ. Joint Survey has been carried out with P.S.Sarita Vihar alongwith Sh.A.K.Sharma, JE (I.L). It has been decided that survey of jhuggi clusters of Azad Camp be done. A.D.Sh.Ram Kishan along with Kishan Singh, F.I, S.K.Diwan, Sh.Vijay Pal and Sh.J.C.Sharma, F.I will start survey on 24.03.04 onwards. Some of the portion of Azad Camp is required to be measured alongwith road and jhuggi cluster near Flat Show Room. Being urgent work Sh.V.K.Shrivastava, JE, DA 173 alongwith Sh.Mange Ram, PS(Beldar) DA 173 are directed to attend the said site to sort out the work by 26.03.04 positively as it is high court case. Accordingly, F.I‟s and J.E DA 173 has to attend the site immediately.

This is as per discussion with Dy.Director (LM)/SEZ.

Sd/24.3.04 AE(D)/LM/SEZ"

8. The respondent also categorically and specifically asserted that he

had come to know from his colleagues that his name was listed for

Control Room Duty on 26th March, 2004 as well, and since he was

already deputed for carrying out the survey along with other officials he

immediately informed the AE (Demolition) of his assigned duty at the

Control Room. The AE (Demolition), Sh.Om Prakash Dhingra, assured

the respondent that he would communicate the inability of the

respondent to attend the Control Room Duty to the Deputy Director

(SEZ). The respondent also relied on the noting dated 26th March, 2004

which was addressed to the AE (Demolition) whereby the presence of

the respondent at the concerned site on the said date was evident and

produced a copy thereof.

9. In reply to the specific averments made by the respondent in para

4 (iv) to (vii), it was contended that the said paras in the original

application of the respondent are irrelevant, baseless and misleading

and that the documents relied on by the respondent do not reveal about

the assignment of his duty or his inability to attend his duty at the

control room on 26th March, 2004. It was also contended that he did

not attend the duty assigned to him in control room from 6.00 am to

2.00 pm deliberately which is also mentioned in para 6.4.4.3 of the

Enquiry Report. Para 6.4.4.3 of the enquiry report was also referred to

which is as under:-

"6.4.4.3 C.O. thus admitted in his General Examination that though he had come to know that his Control Room duty was fixed for 26.03.04, he did not perform the same. Instead the C.O has contended that he was asked by the AE (Demolition) to attend to the demolition programme and

survey work on 26.03.04. C.O has however, not produced any documentary evidence in support of his contention. C.O. also had the option to adduce evidence to support his contention by producing AE (Demolition) and/or Deputy Director (SEZ) as defense witnesses. Thus the CO did not adduce any documentary or oral evidence in support of his claim that he was diverted to some other duty in lieu of the Control Room duty assigned to him vide Ex.P1."

10. In the reply to sub para (vii) of para 4 of the original application

of the respondent, it was again reiterated by the petitioner that the

averments made by the respondent are irrelevant, baseless and

misleading and that the respondent was well aware about his duty in

the Control Room on 26th March, 2004, which is even admitted by him

as he himself admitted that he had informed the AE (Demolition) about

the same and therefore it stood established that he had deliberately

failed and neglected to perform his duty without any justification.

11. The Tribunal, while considering the pleas and contentions of the

parties, categorically noted that the respondent had produced the

evidence in support of his contention proving that he was assigned the

alternative duty to carry out the survey of Jhuggi clusters of Azad Camp

from 24th March, 2004 which had to continue for demolition up to 31st

March, 2004. The observations of the Tribunal in para 5 are as

under:-

"5. Along with the O.A has been enclosed as Annex A/3 a communication dated 24.3.2004. This is a direction from the AE(D)/LM/SEZ on the subject of demolition programme

fixed for 31.3.2004 at Mohan Cooperative Industrial Estate in CWP (illegible)/98. As per this communication, after the discussion with the Dy.Director (LM)/SEZ, the demolition programme preceded by a survey had been fixed from 24.3.2004 onwards and the work was to be completed positively by 26.3.2004, as it was a High Court case. The applicant had been included as one of the Members of this team and had been directed to attend the site immediately. The records along with the OA also reveal that this document had been brought in the inquiry by the charged official as D-II (Annex.A/9)."

12. The Tribunal in its order dated 9th May, 2011 which is impugned

by the petitioner/DDA held that there is no valid reason for non

consideration of the documentary proof produced by the respondent

and that the findings of the Enquiry Officer, the Disciplinary Authority

and the Appellate Authority are based ignoring the relevant evidence

produced by the respondent and therefore they would be vitiated. The

Tribunal further observed that even though other grounds had been

raised by the respondent, the penalty order and the order dismissing

the appeal were liable to be set aside on this ground alone and

therefore, other grounds raised by the respondent were not discussed

by the Tribunal.

13. The learned counsel for the petitioner has admitted that the

respondent produced the copy of the order dated 24th March, 2004

deputing the respondent for survey of Jhuggi cluster for demolition,

pursuant to the order of the High Court, at Azad Camp along with other

officials. Copies of various other notings produced by the respondent

also reflect that the respondent was assigned another duty. The learned

counsel for the petitioner, however, emphasized that the same had been

considered by the Enquiry Officer and relied on para 6.4.4.3 of the

enquiry report. However, perusal of para 6.4.4.3, which is also

reproduced hereinabove, shows that these documents i.e. order dated

24th March, 2004 and the notings produced by the respondent have not

been considered at all. The respondent also categorically averred that

when he came to know about the fixation of his duty in the Control

Room also on 26th March, 2004, he had intimated the AE (Demolition),

Sh.Om Prakash Dhingra, who had assured the respondent that he

would communicate the inability of the respondent to attend the

Control Room duty to Deputy Director (LM/SEZ). It is relevant to

consider that neither AE (Demolition), Sh.Om Prakash Dhingra, nor the

Deputy Director (LM) SEZ were examined, rather the witnesses who

were examined before the Enquiry Officer by the petitioner were Sh.

Damodar, UDC, LM (HQ) and Sh. Padam Singh DD (LMC) DDA. Once it

has been established that the respondent was assigned another duty, it

was incumbent on the petitioner to have examined AE (Demolition) Shri

Om Prakash and Deputy Director (LM) and it was not for the

respondent to have produced them. The averment made by the

respondent has also not been denied categorically by the petitioner and

therefore, the onus was on the petitioner to establish that after the

respondent was deputed on another duty on 24th March, 2004, he had

been relieved of his duty on 26th March, 2004. The five documents, P1

to P5 produced before the Enquiry Officer by the petitioner do not

negate the documents produced by the respondent D1 to D3, nor

counter the oral evidence adduced by the respondent nor is it the case

of the petitioner that the documents D1 to D3 i.e. order dated 24th

March, 2004 and the office notings, are fabricated or not correct. From

perusal of the Enquiry Report, it is apparent that the documents

produced by the respondent have not been considered rather the

enquiry officer has inferred, on the premise that the

respondent/charged officer did not produce any documentary or oral

evidence in support of his claim that he was diverted on some other

duty in place of his control room duty and the assigned work had to

continue up to the date of demolition on 31st March, 2004. This is also

not the case of the petitioner that the other work assigned to the

respondent had been concluded on 26th March, 2004 and the

respondent could carry out his control room duty from 6.00 AM to 2.00

PM on 26th March, 2004. From the order dated 24th March, 2004, it

cannot be disputed that the respondent was deputed for carrying out

the survey in the Jhuggi clusters of Azad Camp.

14. In the circumstances, the learned counsel for the petitioner has

failed to show as to how the order of the Tribunal impugned by the

petitioner suffers from illegality, irregularity or any such perversity

which will necessitate interference by this Court. The orders of the

petitioner ignoring the documentary and oral evidence of the

respondent cannot be sustained. From the documentary evidence

produced by the respondent, the inevitable inference is that he was

deputed for another assignment and could not be present at the Control

Room duty which was also brought to the notice of the AE (Demolition),

who in turn had assured the respondent that he would communicate

the inability of the respondent to the Deputy Director (LM) SEZ which

facts and evidence, documentary and oral adduced by the respondent,

remained un-rebutted.

15. In the circumstances, the findings of the Enquiry Officer ignoring

the relevant documentary and oral evidence on behalf of the

respondents were perverse and could not be arrived at and the Tribunal

was justified in setting aside the order of the Disciplinary Authority and

the Appellate Authority imposing the punishment of reduction of pay by

one stage for a period of one year with cumulative effect.

16. In the circumstances, the petitioner has failed to make out any

such ground which would entail any inferences by this Court in

exercise of its jurisdiction under Article 226 of the Constitution of India

against the order dated 9th May, 2011 passed by the Central

Administrative Tribunal in OA No.2669/2001. There is no illegality or

irregularity or any perversity in the order of the Tribunal impugned

before this Court. For the foregoing reasons the writ petition is without

any merit, and it is, therefore, dismissed. Parties are however, left to

bear their own costs.

CM Nos.16809-16810/2011

In view of the dismissal of the main writ petition, these

applications also do not survive and they are also disposed of.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

OCTOBER 10, 2011.

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