A.K. Sharma v. Delhi Development Authority

P.K. Basu, Member:— The applicant is working as Executive Engineer (Civil) in Delhi Development Authority (DDA) since 12.03.2012. He was posted as Assistant Engineer from 15.02.2005 to 29.03.2007 in the Lands Management Branch of South West Zone of DDA. A departmental inquiry was started against him and charge memorandum dated 1.04.2008 was issued to him in which the Article of Charge was as follows:

“Sh. Arvind Kumar Sharma, Asstt. Engineer (C) while working in South West Zone of Land Management Wing in the year 2005-06, failed to initiate action to prevent/stop the reconstruction/renovation of the unauthorized construction of Commercial Building in the name and style of “Reebok” falling under DA-176 which was earlier demolished by DDA on 26.12.2005 & 27.12.2005. Further, he also failed to report the reconstruction/renovation of the said building to his seniors for taking action under section 30(1) and 31 (a) of DD Act 1957. The motive behind it was to extend favour to the builder/encroacher for personal gains.

By his above act, Sh. A.K. Sharma, AE exhibited lack of devotion to duty, lack of integrity and acted in a manner unbecoming of a Govt. Servant thereby contravene rule 4(1)(i), (ii) and (iii) of DDA Conduct, Disciplinary and Appeal Regulations, 1999 applicable to the employees of the Authority.”

2. The disciplinary authority vide its order dated 12.01.2010 imposed the penalty of reduction of one increment for two years, further stipulating that during the penalty period, the applicant will not earn increments and the reduction will have the effect of postponing his future increments of pay. The appellate authority i.e. the Vice Chairman, DDA rejected the appeal filed vide his order dated 30.06.2010. These orders were challenged by the applicant in OA 2327/2010 before this Tribunal and vide its order dated 7.01.2011, this Tribunal quashed both the orders order dated 12.01.2010 and 30.06.2010 and remitted the matter back to the disciplinary authority for considering the contentions raised by the applicant in his representation and passing reasoned and speaking order after considering the evidence, which has come on record during the disciplinary proceedings.

3. In compliance of the above directions of the Tribunal, the representation of the applicant dated 15.10.2009 was gone into by the disciplinary authority and through his detailed order dated 23.02.2011, the disciplinary authority held good the penalty order dated 12.01.2010. An appeal dated 4.03.2011 against this order was filed by the applicant before the appellate authority namely the Vice Chairman, DDA, which was decided by the appellate authority reducing the punishment to reduction of pay by one stage in the time scale of pay for one year with further direction that during penalty period he will not earn increment and at the end of penalty period the reduction will have the effect of postponing his future increments of pay, vide his order dated 13.09.2011.

4. A revision petition was filed by the applicant before the revisional authority, namely, the Hon'ble Lieutenant Governor, Delhi and by his order dated 18.07.2013, the Hon'ble Lieutenant Governor rejected his revision petition. Being aggrieved by these orders, the applicant has filed the instant OA praying for quashing of the orders dated 18.07.2013, 13.09.2011, 23.02.2011 and the impugned charge sheet dated 1.04.2008.

5. The contention of the learned counsel for the applicant is that the revisional authority in his order dated 18.07.2013 discarded the charge levelled against the applicant, accepted the defence contention and rejected the revision petition on a totally new charge culled out of the applicant's defence. The new charge made out by the revisional authority was totally extraneous and having no nexus with the charge sheet.

6. Secondly, it is stated that the charge sheet dated 1.04.2008 shows predetermination of the disciplinary authority against the applicant.

7. Learned counsel for the applicant stated that the charge against the applicant is that he failed to initiate action to prevent/stop the reconstruction/renovation of unauthorized construction of commercial building in the name and style of “Reebok” falling under Development Area-176 which was earlier demolished by DDA on 26.12.2005 and 27.12.2005 and further that he failed to report the reconstruction/renovation of the said building to his seniors for taking action under Section 30(1) and 31(a) of DD Act, 1957 with the motive to extend favour to the builder/encroacher for personal gains.

8. It is stated by the learned counsel for the applicant that adjacent to the above demolished property, there was another existing property of the same owner, which was not part of the property proposed to be demolished already in existence at the time of demolition, so it was not demolished during the demolition programme carried out on 26.12.2005 and 27.12.2005 in the presence of senior officers.

9. It was further stated that no reconstruction/renovation activity was carried out by the owner on the spot of demolished property where demolition had been carried out on 26.12.2005 and 27.12.2005. No detection report was submitted by the JEs in respect of any unauthorized activity after the above demolition. So no action was initiated under Section 30 (i) and 31 (i) of the DD Act.

10. It is emphasized that the allegations against the applicant are wholly false, baseless, being based on presumptions and assumptions only. It is reiterated that no reconstruction/renovation took place on the piece of land on which demolition had been carried out on 26.12.2005 and 27.05.2012. It is asserted that the piece of land is still lying totally vacant and even the ruins of R.C.C. columns showing their demolition can be seen and verified as on date also. It is stated that the higher officers have also confirmed this fact in writing to the Monetary Committee appointed by the Hon'ble High Court.

11. The learned counsel for the applicant states that the structures now existing and being run for commercial use in the name and style of “Reebok” was existing adjacent to the demolished structure on the dates when demolition of Vishal Mega Mart was carried out on 26.12.2005 and 27.12.2005 and was not part of the property proposed to be demolished.

12. It was categorically stated that in Development Area (DA) 176 what was demolished was Mr. Gyan Gupta's property known as Vishal Mega Mart and the “Reebok” godown was not demolished. Later on, the “Reebok” godown was renovated into a “Reebok” showroom and it is the contention of the applicant that the renovation was within the permissible rules of DDA and, in any case, that is not part of the charge. Therefore, since there was no unauthorized structure being put up by anybody, there was no question of reporting this matter to his seniors. It is stated that in the Booking Report dated 10.07.2002, which is in a standard format in case of reports regarding unauthorized constructions, “Reebok” godown is not mentioned nor was this included in demolition order dated 6.02.2003 as that order indicates G/F shops and halls at Ford Service Centre. In fact, it is also stated that the demolition reports dated 26.12.2005 and 27.12.2005 also indicate the owner as Shri Gyan Gupta (Vishal Megamart) and type of unauthorized construction as GF Shops & Hall (Vishal Megamart). In fact, he has also referred to his report dated 18.09.2006 to the DD/LM/SWZ, which we quote below for easy reference:

“Para No. 1 - The Vishal Mega Mart situated on NH-8 Dhaula Kuan - Gurgaon Road is the property concerned with Sh. Gyan Gupta and it was booked on 16/07/2002. For the same, demolition programme was successfully carried on 26 and 27 December 2005 and the property was completely demolished in presence of Dy. Director (LM) SWZ. Adjacent to the demolished property, there is a property of the same owner already in existence at the time of demolition and was not the part of Mega Mart. Although there had not been any construction at the spot of demolished Mega Mart except the malba of the demolished was removed by it's owner and to some extent by NHAI workers during Const. of service road work along NH - 8. At present, the Commercial activity is going on in the above mentioned adjacent Property in the name of ‘REEBOK’. To check out this commercial activity enforcement of Commercial (Land disposal) Cell will be directed to take necessary action.”

13. Further, our attention is drawn to the report given by the then JE (Annexure A-12), which is as follows:

“No on going construction activity detected at the site of demolished property where demolition programme carried out as said on 26.12.05 and 27.12.05. So no booking U/s 30(1) and 31(1) been made.

14. According to the applicant, he raised all these issues in his representation dated 15.10.2009 but the disciplinary authority passed an order without considering these issues and confirmed the earlier penalty order vide his order dated 23.02.2011, after which the penalty was slightly reduced by the appellate authority. However, according to the applicant, the revisional authority while accepting his contentions, rejected the revision petition on a totally new charge for which no show cause was issued. It is finally stated that though order of the revisional authority mentions that he heard the applicant in person, the actual fact is that the order has been passed by the present L.G. (Shri Najeeb Jung) and not the earlier L.G. (Shri Tejinder Khanna) who had given the opportunity of personal hearing. It is also the plea raised that though the applicant requested the inquiry officer that he be allowed to call the property owner during the course of the inquiry, he was not permitted to do so by the inquiry officer.

15. Reliance has been placed by the applicant on the following judgments of the Hon'ble Supreme Court:

(i) Moni Shankar v. Union of India, (2008) 3 SCC 484, where the Hon'ble Supreme Court held “Administrative Tribunal is entitled to determine whether relevant evidence was taken into consideration, irrelevant evidence excluded and requisite standard of proof (preponderance of probability) met in a given case”;

(ii) Narinder Mohan Arya v. United India Insurance Co. Ltd., 2006 SCC (L&S) 840. In this case, the Hon'ble Supreme Court held as follows:

“Departmental enquiry - Appeal - Appellate order - To what extent it should be a speaking order - Appellate Authority agreeing with the disciplinary authority - Delinquent employee raising serious contentions in his appeal - In such circumstances, the appellate order, held, must contain reasons so as to enable the writ court to ascertain whether there was application of mind to the points required by the relevant rules [R.37, General Insurance (Conduct, Discipline and Appeal) Rules, 1975 in this case] to be considered by the Appellate Authority - General Insurance (Conduct, Discipline and Appeal) Rules, 1975, R.37 - Administrative Law - Natural justice - Duty to give reasons/Recording of reasons/Speaking order.”

16. Our attention was also drawn to the Building Bye-laws of 1983. Clause 6.4.1 of the aforesaid bye-laws and explained that as per clause 6.4.1 of the building bye-laws 1983, no notice and building permit is necessary for the alterations, which do not otherwise violate any provisions regarding general building requirements, structural stability and fire safety requirements of the bye-laws:-

a) Plastering and patch repairs

b) Re-roofing or renewal of roof including roof of intermediate floor at the same height.

c) Flooring and reflooring

d) Opening and closing windows, ventilators and doors not opening towards others property.

e) Replacing fallen bricks, stones, pillars, beams etc.

f) Construction or reconstruction of sunshade not 75 cm. in width within one's own land and not overhanging over a public street.

g) Construction or reconstruction of parapet exceeding 1 m and not more than 1.5 m in height and also construction or reconstruction of boundary walls as permissible under these bye-laws.

h) Reconstruction of portions of buildings damaged by storm, rains, fire, earthquake or any other natural calamity to the same extent and specifications as existed prior to the damage, provided the use conforms to provisions of master plan.

i) White washing, painting etc. including erection of false ceiling in any floor at the permissible clear height provided the false ceiling in no way can be put to use as a lofted/mezzanine etc.

j) Erection or re-erection of internal portions provided the same are within the purview of the bye-laws.

It is thus stated that in view of the above provisions of the building bye-laws, the renovation, maintenance and repair is allowed without any permission.

17. Learned counsel for the applicant also stated that the inquiry officer was biased as in the general examination of the charged officer, he asked questions which were in the nature of a cross-examination. Our attention was specifically drawn to the following questions made:

“Q.1 You joined as A.E. in LM (South West Zone) on 15.2.05. The demolition of u/a commercial building viz. Ford Service Centre, NH-8, Rangpuri in DA-176 was carried out on 26 and 27 December, 2005. Did you make sure that demolition order of Dy. Director (LM) was fully carried out? If not, did you bring to the notice of Dy. Director as to which particular structure could not be pulled down and why?

Q.2 If the demolition order was not implemented fully, what steps were proposed by you to complete the demolition left over of unauthorized structures at the above said premises?”

18. In this regard, our attention was further drawn to D.D.A. Conduct, Disciplinary and Appeal Regulations, 1999. Regulation 18 of the aforesaid Regulations provides as follows:

“(18) The inquiring authority may, after the employee closes his case, and shall, if the employee has not examined himself, generally question him on the circumstance appearing against him in the evidence for the purpose of enabling the employee to explain any circumstance appearing in the evidence against him.”

19. Learned counsel for the respondents stated that the learned counsel for the applicant has discussed only the Article of Charge but has not touched upon the statement of imputation of misconduct which gives full details of the charge namely (i) Oil Pump, GF Hall and G.F. shops in DA-176 were found as unauthorized structure, which were demolished by the demolition squad; (ii) the encroacher/builder had reconstructed the structure/building on the government land with the connivance of DDA staff of LM (SWZ) and opened a showroom in the name and style of “Reebok”; (iii) Shri A.K. Sharma, AE who was working in S.W.Z. of LM Wing was given the charge of DA-176 on 15.02.2005 to exercise control over the whole area falling under DA-176; (iv) It was under his incumbency jurisdiction to make sure that no new encroachment/unauthorized construction takes place in the area; (v) He was solely responsible to keep close vigil over the development activities in the area but he completely failed in discharging his duties; (vi) The unauthorized structure identified as Ford Service Centre, NH-8, Rang Puri under DA-186 which was razed during demolition operation on 26.12.2005 and 27.12.2005 reconstructed during his tenure and a commercial building in the name and style of “REEBOK” Showroom came up; and (vii) Such a huge structure cannot come up and be completed within a day or two. Certainly, it takes a month or so to renovate/reconstruct such building. Thus it is clear that the reconstruction/renovation work of the building in question was in his knowledge. Therefore, now to state that new charge has been added is farthest from the truth. It is also clarified that “Reebok” structure and Vishal Mega Mart belong to the same person and the applicant was fully aware of that.

20. In fact, our attention was drawn to the report regarding unauthorized construction dated 8.12.2006 (Annexure A-13) in which in column 12, the following is clearly mentioned:

“Sh. Gyan Gupta Builder/Respondent Along to NH-8 (Reebok show room) Mahipalpur Rangpuri.”

21. Our attention was drawn to Annexure A-15 which is an order of Appellate Tribunal, MCD in the case of Sh. Gyan Gupta v. DDA dated 15.03.2007, which reads as follows:

“Memo of appearance filed by the counsel for the respondent. Counsel for the respondent seeks time to file vakalatnama as well as record by stating that was made only yesterday evening. Counsel for the appellant states that there is apprehension of demolition as well as sealing of the property. Arguments heard at length from counsels for both the parties. Counsel for the respondent expressed his inability to argue the matter completely in absence of the record. As such case is adjourned for submitting the record and arguments on 29.03.2007. Till then respondent is restrained from taking action pursuant to order dated 27.02.2007. Copy of the order be given DASTI to both the parties.”

22. The order dated 27.02.2007 was an order of the DDA regarding raising unauthorized construction of reconstruction/renovation earlier demolished structure along to NH-8 [REEBOK SHOW ROOM] New Delhi. It is stated that there was no doubt that ‘Reebok’ structure was an unauthorized structure. It is further stated that the statement of Shri Ajit Singh, JE (LM) South West Zone before the Appellate Tribunal, MCD reads as follows:

“I say that I have verified the construction existing at Reebok Show Room on the land of Khasra No. 390/2/2 of village Rangpuri situated at NH-8, New Delhi-110037 and I say that the said construction is protected under the National Capital Territory of Delhi Laws (Special Provisions) Act 2009 (No. 24 of 2009) published in the Gazette of India Extraordinary, part-II Section I on 16.3.2000.

I further undertake on behalf of the respondent DDA we shall also abide by the directions contained in the order dated 12.11.2008 passed by a Division Bench of the Hon'ble High Court of Delhi in WP) No. 4031-37/2006 - Res Wel Ass Rangpuri Extension v. UOI and no action in respect of the property in question shall be taken till the decision on regularization is taken by the authorities. The appeal be disposed of accordingly leaving the parties to bear their own cost.”

In fact, it was a wrong statement for which JE was awarded penalty, which was upheld by this Tribunal in OA 755/2013, Sh. Ajit Singh v. DDA.

23. We have heard learned counsel for the parties, gone through the pleadings available on record and perused the judgments cited.

24. The main contention of the applicant is that the revisional authority accepted his argument but upheld the order based on fresh charges for which he was not given any show cause. The above narration of facts would show that this is completely a wrong interpretation of the order of the revisional authority. Nowhere in his order has it been said that the revisional authority has accepted the contention of the applicant. Moreover, the argument of the applicant that the phrase “failure to report reconstruction/renovation of Reebok Showroom” is an admission that there was a “Reebok” godown is incorrect because the charge and statement of imputation clearly shows that the original structures had been demolished and a new structure of showroom in the name and style of ‘Reebok’ had been opened violating the DDA Rules. What the applicant, therefore, has said in para 2.1.2, 2.1.4, 3.1 and 3.1.1 of his written statement in reply to charge memorandum (A-18) and referred in para no. 8, 9, 10 and 11 of this order, is not factually correct. The demolition report of 2006 clearly shows that the “Reebok” structure was unauthorized. The attempt of the applicant, therefore, to project that “Reebok” structure was already there in the shape of godown and what the builder had done was renovation of “Reebok” showroom, is not borne out from the facts of the case. In any case, this Tribunal cannot reappreciate the evidence in a departmental proceeding matter which this tantamounts to [B.C. Chaturvedi v. Union of India, 1996 SCC (L&S) 80 (3 Judge Bench)]. The Moni Shanker (Supra) and Narinder Mohan Arya (supra), Division Bench judgments do not override the ratio laid down by the larger 3 Judge Bench in B.C. Chaturvedi (supra) and ratio laid down in B.C. Chaturvedi (supra) will hold the field. Moreover, in Moni Shanker (supra), the question was sufficiency of evidence, the I.O. acting as a prosecutor etc. In Narinder Mohan Arya, the question was again different, i.e. nexus of evidence with charge. Thus, the facts and issues are also different. Lastly, the applicant's argument that the present LG did not hear the applicant is also misplaced. It is not the ‘person’ who is the Revisional Authority but the LG, whosoever is holding that position.

25. The other issue raised by the applicant is that he had requested the I.O. for Shri Gyan Gupta's deposition and Rent Agreement between M/s Reebok India Co. & the owner of the property Shri Gyan Gupta, but this was rejected. We find that the I.O. vide letter dated 21.05.2009 had given reasons for not allowing documents of private parties as authenticity of private party documents cannot be ascertained. In fact, the detailed reasons for not allowing the Rent Agreement as evidence and Shri Gyan Gupta as defence witness are contained in the I.O's report under “Procedure Aspects”. Therefore, we see no procedural lapse in the departmental proceeding.

26. In view of above discussion, we find no merit in this OA and it is, therefore, dismissed. No costs.