Mahesh Chand vs Delhi Development Authority & ...
2012 Latest Caselaw 5226 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

                                                Judgment reserved on: 25.07.2012
                                         Judgment pronounced on: 03.09.2012
W.P.(C) No.6641/2008

MAHESH CHAND                                                       ..... Petitioner

                                       versus

DELHI DEVELOPMENT AUTHORITY & ORS.                              ..... Respondents

Advocates who appeared in this case:
For the Petitioner           : Mr Pankaj Bhagat.
For the Respondents          : Mr Arun Birbal.


CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                                 JUDGMENT

SIDDHARTH MRIDUL, J.

1. The instant writ petition assails the order dated 11.01.2008 passed by

the Central Administrative Tribunal, Principal Bench, New Delhi

(hereinafter referred to as 'Tribunal') in T.A. No.32/2007 whereby the order

imposing penalty of removal on the petitioner was upheld.

2. The facts as are germane to the adjudication of the present writ

petition are as enunciated in the succeeding paragraphs:-

(i) The petitioner commenced service in the year 1977 as a Lower

Division Clerk (LDC) on daily wage basis and was

subsequently regularized on 01.01.1982.

(ii) That sometime in December-January, 1989-90, while the

petitioner was officiating as a Cashier, some lapses were

detected during vigilance checking and on the basis of these

lapses the petitioner was suspended from service on 10.01.1990.

(iii) In due course a memorandum of charges dated 10.11.1993 was

issued to the petitioner, inter alia, alleging embezzlement to the

tune of Rs.1,73,375.39. The petitioner had submitted an

explanation on 08.12.1993 after which a departmental enquiry

was held by an independent officer.

(iv) On the basis of the enquiry report, notice was issued to the

petitioner by the Disciplinary Authority during August 1994,

giving an opportunity to the petitioner of making representation

against the proposed penalty.

(v) By an order dated 08.03.1995, the penalty of removal from

services of Delhi Development Authority (DDA), the

respondent herein, was imposed upon the petitioner.

(vi) An appeal had been preferred by the petitioner which was

disposed of by the Finance Member, DDA, vide order dated

18.10.1995.

(vii) Aggrieved by the said order dated 18.10.1995 the petitioner

preferred a writ petition therefrom being CWP No.1156/1996,

which was later on transferred to the Tribunal in 2007.

3. The petitioner herein has challenged his removal asserting that the

authority imposing the penalty of removal as well as the appellate authority

that dismissed his appeal was improperly constituted and was thereby

incompetent to order such removal. No other issue was raised before us.

4. With reference to the Regulations, counsel for the petitioner submits

that the Schedule prescribes the authorities empowered to impose penalties

in DDA. Counsel urges that in respect of Class-II posts, the Vice Chairman

is the authority for making appointments. This is the case with Class-III and

Class-IV posts as well. Further it is urged that the appellate authority in

respect of Class-III and Class-IV posts is the Chairman. The petitioner is a

Class-III employee.

5. It was consequently submitted by the counsel for the petitioner that the

charge sheet as well as the penalty advice as also the appellate order, had

been issued by persons who are far lower in the rungs of hierarchy. The

suspension order had been issued by the Member Finance and the charge

sheet had been issued by the same person. The penalty advice had come to

be issued by the Commissioner (Personnel). The appellate order was issued

by the Finance Member. According to the counsel for the petitioner all of the

above authorities are lower in the rank than the notified authority, and

therefore, the proceedings were in total violation of the governing

Regulations and without jurisdiction.

6. Per contra, on behalf of DDA it is submitted that the Schedule

attached to Regulation 15 of the DDA (Salaries, Allowances and Conditions

of Service) Regulations, 1961 with respect to Class-III employees, was

amended vide notification dated 01.03.1994 and thereafter the

Commissioner(P), DDA, was the appointing authority as well as the

Disciplinary Authority empowered to impose punishment on such

employees.

7. Dealing with the issue of penalty of removal the counsel urged that the

petitioner was removed from service vide order dated 08.03.1995 and the

authority imposing this penalty was the Commissioner(P), DDA. As noticed

above the law applicable at the relevant time was the amended Schedule to

Regulation 15 of the DDA (Salaries, Allowances and Conditions of Service)

Regulations, 1961.

8. A perusal of the said Schedule clearly indicates that the appointing

authority for the Group "C" employees was the Commissioner(P), DDA.

Also the authority empowered to impose penalty on such employees could

be either the Commissioner(P) or any other Commissioner or the Chief

Engineer or the CAO. Here it is also noticed that the petitioner was

appointed by Deputy Commissioner(Slums), DDA.

9. Therefore, it would be incorrect to hold that the authority imposing

penalty of removal on the petitioner was not duly constituted or was

incompetent in any manner.

10. Coming to the issue of appellate authority, the evidence on record

indicates that the petitioner's appeal was decided on 18.10.1995 and the

appellate order was issued by the Finance Member, DDA. The amended

Schedule as referred to hereinabove prescribes that the appellate authority is

any full time member of the DDA.

11. It is trite to state that the amended Regulations were the relevant law

at that time and consequently it is observed that the order of the appellate

authority also does not suffer from any disability since the Finance Member

was lawfully empowered to pass the same.

12. In the circumstances the present petition is devoid of merits and is

hereby dismissed. There shall be no order as to costs.

SIDDHARTH MRIDUL, J

BADAR DURREZ AHMED, J SEPTEMBER 03, 2012 mk