Smt. Meena Dayal vs Delhi Urban Shelter Improvement ...
2019 Latest Caselaw 2007 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Reserved on:        06.03.2019
                                       Pronounced on:      12.04.2019

+      W.P.(C) 10342/2018
       SMT. MEENA DAYAL                                    ..... Petitioner
                          Through      Mr. Apurb Lal with Mr. Daleep
                                       Singh, Advs.

                          versus

       DELHI URBAN SHELTER IMPROVEMENT
       BOARD AND ANR.                         ..... Respondents
                    Through  Mr. Parvinder Chauhan, Adv.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                                   JUDGMENT

1. The present petition is being preferred for quashing of order dated

14.05.2018 passed by the disciplinary authority and order dated 13.09.2018

passed by the appellate authority whereby the order of penalty of reduction

in time scale of pay by two stages for one year with further direction that the

petitioner will not earn increment of pay during the period of such reduction

and on expiry of such period, the reduction will not have the effect of

postponing the further increment of pay.

2. The case of the petitioner is that a notice along with copy of order

dated 08.12.2011 was issued from the court of District Judge (North), Tis

Hazari Courts, Delhi and received in the Law Department of the respondents

on the same day which was further marked by the petitioner to the clerk for

informing the panel lawyer about the court cases. On 03.01.2012, the

concerned clerk stated that he visited the Chamber of panel lawyer to

handover the copy of the order but nobody was found to receive the same.

However, the petitioner informed the panel lawyer over telephone about the

court's orders. Therefore, the petitioner did her best to ensure that panel

lawyer should appear on the date fixed. However, the petitioner was served

with a memo dated 13.09.2012 stating therein that the petitioner, while

working as Junior Law Officer (JLO) on ad-hoc basis in the year 2011-12 in

DUSIB failed to follow up the court cases assigned to her with department

as well as panel lawyers. The petitioner filed reply to the same on

26.11.2012 and denied the allegations made against her. But without

considering the reply of the petitioner appointed inquiring officer/presenting

officer vide order dated 17.12.2012. Subsequently, on 09.06.2014, another

inquiry officer was appointed to look into the charges. The said inquiry

officer gave his inquiry report dated 17.01.2018 by holding that charge

proved against the petitioner.

3. Learned counsel appearing on behalf of the petitioner submitted that

the Law Officer, who was similarly chargesheeted by the respondents in the

same transaction, however, the inquiry officer had hold that no charges were

proved against the Law Officer. Whereas another inquiry officer, in the case

of the petitioner has held that the charges are proved. Accordingly, the

disciplinary authority imposed penalty and has been confirmed by the

appellate authority.

4. Learned counsel further submitted that the appellate authority has

rejected the appeal mechanically and without reasons vide order dated

13.09.2018. The penalty orders passed by the disciplinary authority and

confirmed by the appellate authority are not sustainable in law and on facts.

The respondents have failed to appreciate that the penalty may be imposed

on an employee for reduction to a lower stage in time scale of pay for a

specified period for misconduct committed or for any other good and

sufficient reason. The respondents should have considered the case of the

petitioner meticulously and judiciously and should have taken into account

the similar situated person has been exonerated. In addition to above, the

respondents have failed to appreciate that there is in-ordinate delay in

concluding the inquiry proceedings. The incident occurred in the year 2012

and there is no plausible explanation on the part of the respondents which

caused serious prejudice to the petitioner.

5. In case of Man Singh vs. State of Haryana & Ors.: (2008) 12 SCC

331 whereby the Hon'ble Supreme Court has held that the concept of

equality as enshrined in Article 14 of the Constitution of India embraces the

entire realm of State action. It would extend to an individual as well not only

when he is discriminated against in the matter of exercise of right but also in

the matter of imposing liability upon him. Equals have to be treated equally

even in the matter of executive or administrative action.

6. On the other hand, learned counsel appearing on behalf of the

respondents submits that Sh.Harjeet Singh was an unauthorised occupant at

Slum Property bearing No.10076/XII, Pul Bangash, Delhi-6, accordingly, a

demand notice dated 03.04.2002 for the demand of a sum of ₹33,48,183/-

was issued. When he failed to deposit the damages, the matter was referred

to Estate Officer namely Sh. B.S. Tolia, who passed an order dated

02.06.2005 for the eviction of aforesaid unauthorised occupant. An appeal

was filed by Sh.Harjeet Singh before the court of District Judge (North) and

during the course of proceedings, in the aforesaid appeal, on 08.12.2011,

following order came to be passed:

"Today once again adjournment is sought. Interestingly, a proxy counsel has turned up for the respondent today, but only to join hands with the appellant for seeking further adjournment on the premise that the counsel is suffering from Viral fever. Counsel for the appellant is stated to have not recovered from his illness, on which ground he has sought repeated adjournments earlier. In the larger interest of justice, one more opportunity is granted to the parties to address arguments making it clear that no further indulgence on any account whatsoever, shall be granted. Should, any of the counsel be not in a position to appear and address arguments, the parties should make their alternative arrangements. Copies of the proceedings be sent to Commissioner/ Standing Counsel, MCD.

Put up for final arguments on 04.01.2012."

7. Accordingly, a court notice along with copy of the aforesaid order

dated 08.12.2011 was received by the Law Officer on 02.01.2012 who, in

turn, marked the same to the petitioner with a direction to pursue with the

counsel. Despite, the petitioner failed to take any kind of steps inasmuch as

neither she took up the matter with the panel counsel nor the said order was

put before the concerned higher officials. Resultantly, even on the next date

i.e. 04.01.2012, none was present in the court to take care of the interests of

the department. Though vide order dated 11.01.2012, the Court was pleased

to dismiss the aforesaid appeal, however, following directions were issued:

"For the absence of any representation on behalf of Respondent MCD despite the fact that the copies of the proceedings dated 08/12/2011 were sent by the court to

the Commissioner, MCD and also its Standing Counsel, this court expects the Commissioner, MCD to get an inquiry conducted and fix responsibility of the concerned. The copy of the judgment be sent to the Commissioner, MCD through Regd. Post as also the ordinary process."

8. It is further submitted that despite receipt of copy of the order, the

petitioner being Junior Law Officer did not take any action for defending the

interest of the department in the court. Neither lawyer appeared in court nor

LO or JLO appeared in the court on 04.01.2012. The petitioner even did not

put up the order of court to higher authorities or forward the copy of the

order dated 08.12.2011 to concerned branch for necessary action. Hence,

the petitioner committed wilful omission which amounts to misconduct and

dereliction of duties. The above acts of the petitioner amounts to grave

misconduct, lack of integrity, lack of devotion and dereliction towards her

duties in such a manner which is unbecoming of government servant and

thereby violates Rule 3(I)(i)(ii)(iii) of CCS (Conduct) Rules 1964 which

renders her liable for departmental action.

9. The concerned officials of the concerned department were required to

follow up the matter in the court but the petitioner failed to do so. The

penalty order is natural consequence of a finding of guilt, unless there is

some special mitigating circumstances existing in favour of an employee

who has been found to be guilty.

10. It is further submitted that the petitioner participated in the

departmental inquiry and opportunity of being heard was given, thus, there

is no violation of natural justice. The punishment order can be interfered

only when the punishment is so disproportionate that it shocks the judicial

conscious of the court. The petitioner has not come up with any such case.

11. Counsel for the respondents has relied upon the case of Chief

Executive Officer, Krishna District Cooperative Central Bank Limited and

Another vs. K. Hanumantha Rao and Another: JT 2016 (11) SC 548

whereby it is held that if the punishment imposed was not shockingly

disproportionate, no question of remitting the case to the disciplinary

authority arises. Thus, the present petition deserves to be dismissed.

12. I have heard learned counsel for the parties and perused the material

on record.

13. It is not in dispute that the law department received the order dated

08.12.2011 passed by the District Judge and same day, the petitioner marked

it to the clerk for informing the same to the lawyer who was handling the

case. Accordingly, the clerk informed the lawyer, but the said lawyer did

not attend the case on the next date of hearing.

14. It is not the case of the respondents that they asked the petitioner to

attend the case in the court, therefore, she was not supposed to do the same.

It is also not the case of the respondents that the clerk has denied the fact

that the petitioner did not ask him regarding the order passed by the court to

convey the concerned lawyer.

15. Though the lawyer did not appear in court, but the said lawyer has not

deposed that he was not informed about the case. Therefore, the main

mistake was of the lawyer and not of the petitioner.

16. In addition, the departmental proceedings were initiated against the

law officer and junior law officer (petitioner) by appointing different inquiry

officers. If any carelessness was done in handling the court case, the law

officer and junior law officer (petitioner) were responsible, but by

exonerating the law officer, the junior law officer cannot be made the escape

goat.

17. The case of the respondents is also not that the law officer deputed the

junior law officer to attend the case in the court and despite that, the

petitioner did not attend. If that was not the situation, the petitioner has been

discriminated.

18. I am conscious of the settled law that the court should not interfere

with the penalty imposed by the disciplinary authority unless it is

disproportionate to the conduct committed or shocks to judicial conscious of

the court.

19. In the case in hand, law officer and junior law officer were

responsible equally, therefore, cannot be discriminated in any manner.

However, it is happened in the case of the petitioner which cannot be

overlooked.

20. In view of above discussion, I hereby set aside the order dated

14.05.2018 and 13.09.2018 passed by the disciplinary authority and

appellate authority respectively.

21. The petition is, accordingly, allowed and disposed of.

(SURESH KUMAR KAIT) JUDGE APRIL 12, 2019 ab