Vinod Kumar vs Delhi Development Authority And Ors

S.N.Terdal, J

We have heard Mr.Sidharth Joshi, counsel for applicant and Mrs. Sriparna Chatterjee, 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:

"(i). Quash/ set aside the Impugned Order bearing no.18/Vig./07/436 dated 11.01.2007 passed by the Respondent no. 2, and /or

(ii) Quash and set aside the un-communicated Order dated 29.03.2007 passed by the Respondent no.3, and/

or

(iii) Quash/ set aside the memorandum no. F27 (19)04/Vig./AVO-VI/3342 dated 26.04.2006 passed by the Respondent no.2 and / or

(iv) Award all consequential benefits;

(v) Award cost in favour of the Applicant;

(vi) Pass such other and further orders which this Hon'ble Tribunal may deem fit and proper in the interest of justice."

The relevant facts of the case are that a departmental enquiry was initiated against the applicant for alleged misconduct of helping one Mohd. Mobin in getting conversion from freehold of a flat situated in Mayur Vihar. The details of charge sheet are extracted below:-

"Shri Vinod Kumar, LDC has been charged as under:

Shri Vinod Kumar, LDC while working in Enforcement Branch (H),DDA during the year 2004 was pursuing conversion case relating to flat No. 182, Pkt.E, Mayur Vihar, Ph. II to help Mohd. Mobin for getting freehold conversion, which were reported as forged/fabricated documents. Whereas he had no role in official capacity to deal with the matter. Lease was executed on 3.3.04. Later on allotment file No.F.134(217)85/SFS pertaining to above flat was misplaced as an act of removal of evidence.

By his above act Shri Vinod Kumar, LDC, exhibited lack of absolute devotion to duty lack of absolute integrity and acted in a manner unbecoming of a Govt. Servant and thereby, contravened Rule 4.1 (i) (ii) and (iii) of DDA Conduct, Disciplinary and Appeal Regulations, 1999 as made applicable to the employees of the Authority."

As the applicant did not admit the charges, in accordance with the provisions of DDA Conduct, Disciplinary and Appeal Regulations, 1999, an Inquiry Officer was appointed. The Inquiry Officer following the principles of natural justice and the relevant rules regarding conducting of the departmental enquiry examined a PW and perused the documents and came to the conclusion that the charge leveled against the applicant was not proved vide his inquiry report dated 10.07.2006. The disciplinary authority after perusing the inquiry report issued a disagreement note dated 03.10.2006 giving the applicant 15 days time to file representation against disagreement note. The applicant submitted representation against the disagreement note. After considering the representation of the applicant against the disagreement note, the disciplinary authority imposed a penalty of reduction to a lower stage in the time scale of pay for a period of one year without cumulative effect vide order dated 11.01.2007.

The counsel for the applicant vehemently and strenuously submitted that the disagreement note is very cryptic and is not based on evidence brought on record in the departmental enquiry and hence the same requires to be set aside. The said disagreement note is extracted below:-

"I have also seen the case of Sh. Vinod Kumar, LDC. The IO in his findings has held the chare not proved against Sh. Vinod Kumar, LDC. The IO has ignored the material evidence/document and which is to be construed as the admission of CO in writing i.e. he has started that Sh. G.D. Sharma was friend of the CO and he was helping Sh. G.D.Sharma. In view of the documentary evidence I disagree with the findings of the IO and hold the charge fully established."

The counsel for applicant further submitted that the alleged admission of the applicant is not brought on record and regarding the same the inquiry officer has made detailed discussion about the non-furnishing of the same to the applicant and thereby denial of opportunity of cross-examination and also regarding denial of principles of natural justice in his inquiry report. The relevant portion of the inquiry report is extracted below:-

"However, to prove the charge the Presenting Officer has enclosed a copy of the statement of Shri Vinod Kumar with his written bright in which the charged official seems to have accepted that he had helped Mohd.Mobin in the matter at the request of his friend, Sh. G.D.Sharma. But this statement was never made a listed document, nor did it figure in any way in the evidence of the two witnesses. The Presenting Officer has picked it up from the reconstituted file No.F.134(217)/85/SFS which is a defence document of Shri Ranbir Singh (Peon) who is an accused in the case though the charge sheet has been served on him separately. It is against the system and spirit of Departmental Inquiry to take recourse to a document of another case and use it and that too without giving an opportunity of cross-examination to the other party. This point has also been emphasized greatly by the C.O in his written brief and he is right in objecting to the use of this document against him. Since, placing reliance on such a document to support the charge when it has not been made a listed document, is against the principles of holding a Departmental Inquiry, no cognizance of this document is being taken. If the prosecution had intended to use this statement against Shri Vinod Kumar, it should have ideally made it a listed document, which has not been done. The charge therefore has been found totally lacking in evidence."

From the perusal of the extracted portion of the disciplinary authority regarding disagreement note and the above referred relevant extract regarding the alleged document evidencing the admission by the applicant by the Inquiry Officer, we are of the view that the disagreement note is neither a reasoned disagreement note nor it is based on evidence brought on record in the disciplinary proceedings and it is cryptic and arbitrary and the said disagreement note requires to be set aside.

Consequently the order of penalty dated 11.01.2007 also requires to be set aside.

Accordingly, the OA is allowed. Disagreement note dated 03.10.2006 and the penalty order dated 11.01.2007 are set aside with all consequential benefits. No order as to costs.