Purushottam Meena vs Governor Of Delh

S.N.Terdal, J

We have heard Mr.Rajeev Sharma, counsel for applicant and Mr. Mr. Amit Sinha for R.V.Sinha, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"(a) To quash the impugned order dated 1.5.2015 and 12.12.2014 as illegal and un-constitutional

(b) To issue direction to the respondents to give all the consequential benefits to the applicant.

(c ) The Hon'ble Tribunal may pass any other order/direction as deemed fit and proper in the facts and circumstances of the present case.

The relevant facts of the case are that on the allegation that while working as Jr. Engineer in building department of S.P.Zone during the relevant period the applicant alongwith three others in violation of devotion to duty failed to stop deviation in construction against the sanctioned building plan of property bearing no. 91 and 92 of Shakti Nagar. The said charge is extracted below:

"Sh. Purshottam Meena was working as Jr. Engineer in Bldg Deptt. S.P. Zone during the period w.e.f. 16.4.2008 to 12.8.2008, 5.9.2008 to 11.9.2008 & 28.9.2008 onwards. He failed to maintain absolute integrity, devotion to duty and committed gross misconduct on the following counts:-

He failed to stop/demolish the deviations against sanctioned building plan in the shape of side set backs at Ground Floor, First Floor, Second Floor & Third Floor which was carried out after unauthorized amalgamation of two properties bearing no. 19/1 and 19/2, Shakti Nagar and deviations at its initial ongoing stage.

He deviations against SBP in two properties were booked in single booking file no.128/B/UC/SPZ/09 dated 19.3.2009 while building plans of both the properties should have been booked separately.

He also failed to initiate action for prosecution of the O/B u/s 332/461 and complaint u/s 466 A of DMC Act."

He, thereby, contravened Rule 3(1) (i) (ii) (iii) of CCS (Conduct) Rules, 1964 as made applicable to the employee of MCD."

Alongwith the above said article of charge, as per rules the statement of imputation of misconduct, list of witnesses and list of documents were served on the applicant. As the applicant did not admit the allegation a Special Inquiry Officer was appointed as inquiring authority to hold the departmental enquiry. The Inquiry Officer following the principles of natural justice and all the relevant rules regarding holding of the departmental enquiry examined PW1 and PW2 and discussed and analyzed the deposition and the documents brought on record and came to the conclusion that the charges leveled against the applicant were proved vide his inquiry report dated 3.09.2014. The inquiry report was served on the applicant. The applicant submitted representation against the inquiry report on 15.10.2014. The Commissioner of NDMC, the disciplinary authority after considering the inquiry report, the representation of the applicant and the entire evidence oral as well as documentary brought on record in the departmental enquiry imposed a penalty of removal from service on the applicant vide order dated 10.11.2014. The applicant aggrieved by the order passed by the disciplinary authority filed OA 4467/2014 before this Tribunal and simultaneously preferred an appeal before the appellate authority on 24.12.2014. As the appellant had filed an appeal, this Tribunal disposed of the said OA vide order dated 11.03.2015 directing the appellate authority to dispose of the appeal as per rules. The relevant portion of the order is extracted below:

"5. In view of the fact that the appellant has already preferred an appeal before the appellate authority, the present application does not lie at this stage. The application is according ly disposed of with the direction to the respondents to dispose of the appeal preferred by the applicant expeditiously, preferably within a period of two months from the date of production of certified copy of this order."

The appellate authority considered all the grounds raised by the applicant and also in view of the order passed by the Tribunal dated 11.03.2015 disposed of the appeal by modifying the penalty of removal from service imposed by the disciplinary authority to that of reduction in pay in the present scale of pay by six stages for a period of 6 years with a direction that the applicant will not draw his increments during the period of reduction and that it will have the effect of postponing his future increments of pay, vide order dated 1.05.2015. The relevant portion of the appellate order is extracted below:-

"8) In pursuance with the aforementioned order of Hon'ble Central Administrative Tribunal, the said appeal petition filed before the Appellate Authority was considered on merit. In his appeal petition the appellant has prayed for exoneration on the following grounds:-

(a) that during the inquiry the appellant had repeatedly requested the IO for calling of the relevant record, p particularly the u/c booking file of property no.19/1 and 19/2 Shakti Nagar, Delhi and the sealing file to prove and establish that the appellant had taken the required actions at the very embryo stage but unfortunately the IO did not summon the said record.

(b) That case under reference only pertains to the approved area where building plans are sanctioned and in this case, the building plans of both the properties had been sanctioned by the Corporation and thus the owner had the valid license for carrying out the construction within the ambit of BBL/SBP. Thus it is not a case of total u/c but a case of deviation against the sanctioned building plan and the owner has the right to get the same compounded/regularized subsequently.

(c) That the owner of the said two plots carried out some deviations including amalgamation of the two plots and accordingly the appellant had booked the same under section 343 & 344 of the DMC Act vide file no. 128/B/UC/SPZ/09 dated 19.3.2009 and even the demolition order had been passed in both the cases on 31.3.2009. A letter was also issued to the owner/builder and architect on 31.3.2009 directing to remove the con-compoundable deviations within three weeks. As the letter for removing the deviations in the impugned property has already been issued, prosecution action under section 332 & 446-A could not be taken against the owner/builder;

(d) That besides booking the impugned deviations against the sanctioned building plan, the major demolition action was taken to remove the non compoundable deviations on 24.4.2009 and the said deviations were demolished during four hours demolition operation in both the properties.

(e) That besides booking and taking demolition action, the sealing action had also been initiated u/s 345-A on 9.4.2009 of the DMC Act and when the sealing orders had been passed by the Dy.Commr. (SP Zone) on n16.4.2009 after observing due process of law;

(f) That the sealing orders were implemented at site on 25.5.2009 and the property bearing no. 19/1 and 19/2 Shakti Nagar were sealed on 25.5.2009. When the said properties had been sealed and the demolition action had been taken, no other action in this case was warranted, but the IO had not considered this point at all and also when the report was submitted to the Commissioner, he also did not take and cognizance of such material facts and thus the inquiry findings suffers from legal lacunae and accordingly the penalty awarded on the said report is also unjustified and incorrect

(g) That evidently when the properties under reference had been sealed and as such no work of any nature was being carried out at the impugned sites, no prosecution ui/s 332, 461 or 466-A of the DMC Act could be launched when obviously there was no offence or any violation was being committed at site. Thus, the IO has wrongly held this charge proved against the appellant when there is neither any oral evidence nor any documentary evidence to establish this charge and on the contrary the said properties were lying sealed since 25.5.2009. Thus, the said penalty awarded to the appellant is also not justified and correct;

(h) That the said two properties had been de-sealed in compliance of the orders of the ATMCD on 22.5.2012. The said property was also regularized after charging the compounding charges in the year 2012 and as evidence the letter issued to the owner is enclosed. When the properties have been regularized, which inter-alia means that there is no irregularity or any ambiguity existing at the impugned sites therefore holding the appellant responsible in the matter is totally unjustified and against the norms of justice;

(i) That insptie of written request, no opportunity of personal hearing has been granted mto the appellant by the Commissioner at any stage and thus the appellant has been deprived of legal right to present his case and the documents before the Disciplinary Authority.

I have gone through the contentions of the appellant in his appeal petition and during the personal hearing, his representations to the Disciplinary Authority, the impugned penalty order and relevant records of the case. The appellant has contradicted himself on one hand he claims due diligence by citing action taken by him against the Owner/Builder and the other hand he citers the Tribunal order desealing the impugned property as a proof of no irregularity or existence of any ambiguity at the impugned sites. In the instant case I am in agreement with the findings of the Inquiry Authority. The appellant was posted a field officer in the area and was mandated to enforce the Municipal Building Bye Laws in letter and spirit. The appellant has argued that the Owner/Builder had got the building plan sanctioned, hence, could undertake construction unchecked by the field staff. This is a misleading argument. The necessity of compounding arises only when there is violation of Building Bye Laws, which was carried out unchecked by the field engineer. Compounding should not be allowed to be a norm. It is for this reason Circular No. D/476/Addl.Comm (E)/2001 dated 20.8.2001, mandates the field engineers of the Building Department to maintain construction watch register for constructions carried out after building plan is got sanctioned. Thereby prompt action against any deviation by the Owner/Builder from the sanctioned building plan is ensured. The records beyond any reasonable doubt reflect that the appellant had been grossly lackadaisical in discharge of his duties. Especially, considering the fact that the appellant booked the deviation in respect of both the properties, which had separate building plan sanctioned, through a single booking. He apparently ignored the irregularity of amalgamation of the property committed by the Owner/Builder. Such attitude amongst the Municipal employees has been the bane for mushrooming unauthorized construction and resultant social maladies that plague this metropolis. Hence such misconduct cannot go unpunished, in fact merits to be meted out commensurate punitive action, so as to to be an adequate deterrent for others.

In view of the totality of facts and circumstances of the case, I am of the considered opinion that the penalty imposed upon the appellant is not proportionate to the gravity of his misconduct. Although the appellant had failed to take appropriate action to enforse the provisions of DMC Act, 1957, and in preventing the deviations and amalgamation in the impugned properties removing him from the service is not called for. I am of the view that the ends of justice would be met if the impugned penalty of "removal from service" imposed upon him vide order dated 12.12.2014, is modified as "reduction in pay in the present time scale of pay by six stage for a period of six years, with the direction that the appellant will not draw his increments during the period of reduction and it will have the effect of postponing his future increments of pay". I order accordingly. Further, in pursuance with provisions of FR 54(1) (a) & (b), I order that the period of absence from duty from date of Removal from service to the date of reinstatement consequent upon this order will not be treated as on duty and this period will be regulated in pursuance to provisions of FR 54(4) & (5), and subject to the condition laid down under FR 54(7). The appellant Shri Purshottam Meena, Ex- Junior Engineer be so informed."

The counsel for the applicant vehemently and strenuously contended that the orders passed by the disciplinary authority and the appellate authority are not speaking orders and are not based on evidence and they are perverse in nature. The counsel for the respondents rightly contended that the orders passed by the disciplinary authority as well as the appellate authority are based on evidence brought on record in the departmental enquiry and that they are cogent, speaking and reasoned orders. He further contended that as the applicant has not challenged the inquiry report much less on the violation of any of the provisions governing the holding of departmental enquiry and that the fairness on the part of the respondents authorities is evident from the fact that the appellate authority considering the grounds raised by the applicant reduced the penalty, he submitted that there are no grounds for interference in the impugned orders.

The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:

(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-

"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-

"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.

In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."

Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".

Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-

"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was alsoendorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence."

In view of the facts and circumstances of the case narrated above and in view of the law laid down by the Hon'ble Apex Court referred to above and in view of the fact that the counsel for the applicant has not brought to our notice violation of any procedural rules and also in view of the fact that the applicant has not challenged the inquiry report, the OA requires to be dismissed.

Accordingly, OA is dismissed. No order as to costs.