Mahavir Singh vs Delhi Development Authority
2014 Latest Caselaw 6324 Del

$~10.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                       Date of Decision: 01.12.2014

%                           W.P.(C.) No. 5258/2013

      MAHAVIR SINGH                                 ..... Petitioner
                  Through:            Mr. C. Mohan Rao, Mr. Lokesh
                                      Kumar Sharma & Ms. Pallavi,
                                      Advocates.
                   versus

      DELHI DEVELOPMENT AUTHORITY            .....Respondent

Through: Mr. Arun Birbal & Mr. Sanjay Singh, Advocates.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (OPEN COURT)

1. The petitioner, who was the original applicant before the Central Administrative Tribunal (CAT/ Tribunal) in O.A. No.1137/2011 assails the order dated 10.10.2012, whereby the said Original Application was dismissed.

2. At the relevant time, the petitioner was working as an Upper Division Clerk (UDC) in the respondent Delhi Development Authority (DDA). He was issued a charge-sheet leveling the following charge:

"While functioning as UDC in LSB (R) in 1985 Shri Mahavir Singh handed over file No. F.4(1) 85 LSB (R) to Shri A.K. Malhotra, Stenographer, then working in Chief Architect's office without any proper requisition from Shri Malhotra or the Architect on whose behalf the file was purported to be

collected. This file pertained to auction/purchase of plot No. B- 7/112-A Extn., Safdurjung Residential Scheme, purchased by Smt. Usha Gupta and Shri Girish Gupta. After the file was handed over to Shri A.K. Malhotra, Shri Mahavir Singh did not keep tack of the file and no action was taken by him for recovery of the outstanding premium of Rs.5,10,011/- from the party till February, 1987. DDA suffered a financial loss. By his above act, Shri Mahavir, UDC displayed lack of absolute integrity and lack of absolute devotion to duty and acted in a manner unbecoming of an Authority's servant. He thereby contravened Rule 31 (1) (11) and (111) of CCS Conduct Rules as made applicable to the employees of DDA."

3. So far as the first part of the charge is concerned, i.e. with regard to the handing over of the file aforesaid to Sh. A.K. Malhotra, Stenographer working in the Office of Chief Architect without proper requisition, is concerned, the same was not eventually proved.

4. The dispute is with regard to the inquiry and punishment pertaining to the second part of the charge. At this stage, we may take note of the few relevant dates. An auction was held in respect of Building No. B-7/112-A Extension, Safdarjung Residential Scheme on 23.01.1985. The highest bid was by Smt. Usha Gupta & Sh. Girish Gupta (bidder). The 25% of the bid amount was deposited by the bidder initially. On 02.05.1985, the DDA issued the demand letter in respect of the remaining 75% of the bid amount. It appears that the same was received back undelivered. The petitioner claimed that the demand letter was again sent through Process Server on 05.06.1985. Service of the same could not be confirmed. The bidder, it appears, did not make the payment within the time granted. On 15.05.1985, the petitioner initiated action on the relevant file for taking action against the bidder, namely, cancellation of the allotment. On 16.09.1985, the said

proposal was approved. The petitioner claimed that he re-submitted the files three times on 08.08.1985, 29.08.1985 & 30.09.1985, and submitted the case for cancellation of the allotment.

5. In the departmental inquiry, the second part of the charge was that the petitioner did not keep a track of the aforesaid file, and no action was taken by him for recovery of the outstanding premium of Rs.5,10,011/- from the bidder till February 1987. This charge was held to have been established, and consequently, he was subjected to the penalty of reduction to the minimum of the existing grade for a period of three years with cumulative effect vide order dated 22.03.1999. The departmental appeal preferred by the petitioner was rejected on 23.08.1999.

6. The petitioner approached this Court in writ proceedings to assail the said orders of the disciplinary authority and the appellate authority. The case set up by the petitioner in those proceedings was that the file of the aforesaid plot was called by the Chief Architect and that after he had sent the file to the Chief Architect, he was transferred from the concerned branch sometime in February 1987. He claimed that, in the disciplinary proceedings, his stand was that some pages of the notings and correspondence side of the file were missing. He claimed that the fact regarding the missing notings could have been verified by tallying the notings of the file as per the movement recorded in the movement register. The writ petition - being CWP No.2908/2000, was disposed of by the learned Single Judge on 24.11.2003.

7. The learned Single Judge while disposing of the aforesaid writ petition, inter alia, observed as follows:

"6. Learned counsel for the respondents fairly conceded that on the face of the order passed by the Disciplinary as well as Appellate Authority, it is ex-facie clear that the point urged by the petitioner in his reply pertaining to the alleged missing records wherein the notings on the file were alleged to have been removed, has not received the attention of either the Disciplinary Authority or of the Appellate Authority. I may note that the notings on the file show file movement and would be relevant while considering the charge against the petitioner. The effect of the absence of the notings needs to be considered. Both the counsels i.e. for the petitioner and the respondent agree that in this view of the matter, it would be appropriate that the two orders are set aside and the matter is remanded to the Disciplinary Authority to reconsider the matter and pass a speaking and reasoned order specifically dealing with the point urged by the petitioner in the appeal.

7. In view of the position noted above and contentions raised by learned counsel for the parties, I quash the order dated 22.3.1999 passed by the Disciplinary Authority as well as order dated 23.8.1999 passed by the Appellate Authority.

8. The matter would be considered afresh by the Disciplinary Authority, who will proceed and pass orders afresh in the light of the directions contained above, which I may note, are passed with the consent of the parties.

9. The writ petition stands disposed of. There shall be no order as to costs."

8. Consequently, the disciplinary proceedings were re-commenced. On this occasion, the disciplinary authority passed the order dated 29.03.2007 holding that after the file was collected by Sh. A.K. Malhotra on 01.12.1985

- who was working with the Chief Architect, despite the fact that the charge of the relevant seat has been handed over by the petitioner to another Dealing Assistant in February 1986, he was responsible to apprise the new incumbent of the movement of the file for follow-up action. The

disciplinary authority, therefore, imposed the penalty of reduction of up to three stages in the time scale held by the petitioner for three years with cumulative effect. This penalty was modified in appeal on 10.09.2008 and the penalty was converted into withholding of three future increments with cumulative effect.

9. Aggrieved by the aforesaid order, the petitioner again approached the Tribunal by filing O.A. No.2284/2008. The Tribunal remitted back to the disciplinary authority, directing it to take into consideration other aspect of the case of the petitioner which may touch upon the controversy in issue.

10. On this occasion, the disciplinary authority passed a fresh order dated 04.12.2009, rejecting the petitioner's grievance that he had not been made available the movement register/ transit register/ peon book and receipt/dispatch record, by holding that the same was not available. The disciplinary authority again held that it was the responsibility of the petitioner to apprise the successor Dealing Assistant about the movement of the file, and no evidence had been led that the petitioner had informed his successor Dealing Assistant of the case. The penalty earlier imposed was reiterated. Once again, the departmental appeal preferred by the petitioner was rejected on 15.10.2010. Consequently, he once again approached the Tribunal by filing O.A. No.1137/2011, which has been rejected by the Tribunal by the impugned order.

11. The short submission of the petitioner is that the disciplinary authority, appellate authority and the Tribunal have brushed aside the relevant evidence brought on record, namely, the movement register pertaining to the file in question. In this regard reference is made to the

extract from the file movement register - a photocopy whereof has been placed on record along with a typed copy. Learned counsel submits that the same would show that he had sent the file on 23.04.1985, and again on 24.04.1985, the file had moved from him to the P Assistant on 13.09.1985, and to the ACL on 30.09.1985. Learned counsel submits that this extremely relevant aspect has been completely ignored and brushed aside by all the authorities and the Tribunal.

12. It is further submitted that though the petitioner has been held guilty of not informing his successor, i.e. of not tracking the file, there is no established or standard system or operating procedure within the organization of the DDA under which the petitioner could have recorded, or flagged the concerned file for it to be noticed by the successive Dealing Assistant. The file had been called for by the Chief Architect on 12.12.1985, and the work/ assignment of the petitioner was thereafter changed, firstly, in February 1986 and ultimately in February 1987 - when his department was altogether changed. In these circumstances, learned counsel for the petitioner submits that the disciplinary action taken against the petitioner was wholly unwarranted and the disciplinary proceedings suffer from perversity, as material evidence has been ignored.

13. On the other hand, learned counsel for the respondent while supporting the impugned order could not deny the fact that the file movement register did record the fact that the file in question had indeed been moved by the petitioner on 24.08.1985 to the P Assistant, who in turn, moved the file to the ACL as aforesaid.

14. He also did not deny the fact that there was no mechanism or standard

operating procedure within the organization of the DDA at the relevant time, whereunder the concerned file could be flag marked, so that the new incumbent Dealing Assistant would take notice of the urgency in the matter, particularly, when the file itself had been sent to the Office of the Chief Architect in December 1985, and the assignment of the petitioner changed in February 1986 by when the file had not returned to the Dealing Assistant.

15. The original record pertaining to the allotment file was produced before the Court. On the noting sheets, there is no noting found on the record which would correspond to the file movement which have taken place from the petitioner on 24.08.1985 to the P Assistant, and thereafter to the ACL. It, therefore, appears that there is merit in the petitioner's claim that the file noting pages of the relevant file are missing.

16. Having considered the submission of learned counsel and perused the impugned order and the record, we are of the view that in the aforesaid background, the petitioner could not have been held guilty of not tracking the file, or not taking timely action on the file. It appears that the petitioner did take action on the file, inter alia, on 24.08.1985 and the file moved, firstly, to the P Assistant, and thereafter to the ACL on 30.09.1985. The respondents did not produce any evidence in the inquiry proceedings to show as to how the said case was dealt with thereafter, particularly at the end of the petitioner. It is not in dispute that the file was called for by the Chief Architect on 12.12.1985, and remained with him till after the petitioner was divested of the charge over the said file.

17. It is also clear that there was no mechanism or standard operating procedure prevailing in the DDA at the relevant time, whereunder the

petitioner could have recorded the fact that the case related to cancellation of allotment, such that, the new incumbent on the same seat - as Dealing Assistant, could have noticed the urgency, or importance of the matter.

18. We find the aforesaid aspects were completely overlooked by the disciplinary authority, appellate authority as well as by the learned Tribunal, which go to the root of the matter. Pertinently, it was throughout the case of the petitioner that some pages of the file noting sheets were missing. This contention of the petitioner stands corroborated by the file movement register as noticed above.

19. Consequently, we allow the present petition and quash the order passed by the disciplinary authority dated 04.12.2009, the order passed by the appellate authority dated 15.10.2010 as well as the impugned order of the Tribunal dated 10.10.2012. The petitioner has, in the meantime, retired. The respondent is directed to re-fix the pay of the petitioner as per his entitlement and to release the arrears in accordance with law within twelve weeks from today.

VIPIN SANGHI, J.

S. RAVINDRA BHAT, J DECEMBER 01, 2014 B.S. Rohella