W.P.(C) 9300/2009 & conn. Matters Page 1 of 39 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 26.08.2010 Judgment Delivered On: 09.09.2010 + W.P.(C) 9300/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. Versus S.L. MEENA ..... Respondent Through Mr.Sumit Bansal, Mr.Manish Paliwal, Mr.Ateev Mathur, Advs. + W.P.(C) 10797/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. Versus M.M. DAHIYA ..... Respondent Through Mr.Vikas Singh,Sr.Adv., Mr.V.P. Singh, Sr.Adv., Mr.Anil Grover, Mr.R.K.Garg, Advs. + W.P.(C) 10789/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. Versus B.B. JAISWAL ..... Respondent Through Mr.Sumit Bansal, Mr.Manish Paliwal, Mr.Ateev Mathur, Advs. + W.P.(C) 10790/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. W.P.(C) 9300/2009 & conn. Matters Page 2 of 39 Versus MOHD.ILYAS ..... Respondent Through Mr.Vikas Singh,Sr.Adv., Mr.V.P. Singh, Sr.Adv., Mr.Anil Grover, Mr.R.K.Garg, Advs. + W.P.(C) 10791/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. Versus NAZRUL ISLAM ..... Respondent Through Mr.Sumit Bansal, Mr.Manish Paliwal, Mr.Ateev Mathur, Advs. + W.P.(C) 10792/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. Versus A.C. GARG ..... Respondent Through Mr.Vikas Singh,Sr.Adv., Mr.V.P. Singh, Sr.Adv., Mr.Anil Grover, Mr.R.K.Garg, Advs. + W.P.(C) 10793/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. Versus R.K. GUPTA ..... Respondent Through Mr.Vikas Singh,Sr.Adv., Mr.V.P. Singh, Sr.Adv., Mr.Anil Grover, Mr.R.K.Garg, Advs. + W.P.(C) 10794/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. W.P.(C) 9300/2009 & conn. Matters Page 3 of 39 Versus R.B. S. BANSAL ..... Respondent Through Mr.Vikas Singh,Sr.Adv., Mr.V.P. Singh, Sr.Adv., Mr.Anil Grover, Mr.R.K.Garg, Advs. + W.P.(C) 10795/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. Versus BRIJ PAL SINGH ..... Respondent Through Mr.Sumit Bansal, Mr.Manish Paliwal, Mr.Ateev Mathur, Advs. + W.P.(C) 10796/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. Versus R.K. JAIN ..... Respondent Through Mr.Vikas Singh,Sr.Adv., Mr.V.P. Singh, Sr.Adv., Mr.Anil Grover, Mr.R.K.Garg, Advs. + W.P.(C) 10798/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. Versus VIJAY KUMAR KADYAN ..... Respondent Through Mr.Vikas Singh,Sr.Adv., Mr.V.P. Singh, Sr.Adv., Mr.Anil Grover, Mr.R.K.Garg, Advs. + W.P.(C) 10799/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. W.P.(C) 9300/2009 & conn. Matters Page 4 of 39 Versus R.P. DABAS ..... Respondent Through Mr.Sumit Bansal, Mr.Manish Paliwal, Mr.Ateev Mathur, Advs. + W.P.(C) 10800/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. Versus R.K. BHATTACHARYA ..... Respondent Through Mr.Vikas Singh,Sr.Adv., Mr.V.P. Singh, Sr.Adv., Mr.Anil Grover, Mr.R.K.Garg, Advs. + W.P.(C) 12608/2009 MCD ..... Petitioner Through Mr.Parag P.Tripathi, ASG with Ms. Monisha Handa, Mr.Ajay Arora, Advs. Versus PIAR SINGH ..... Respondent Through Mr.Rajat Aneja, Adv. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? MOOL CHAND GARG, J 1. Municipal Corporation of Delhi (MCD) has filed the aforesaid writ petitions aggrieved of the order passed by the Central Administrative Tribunal, New Delhi (hereinafter referred to as “the Tribunal”) dated 26.03.09 whereby the Tribunal has set aside the orders passed by the petitioners dated 07.04.06 in having dismissed all the respondents with immediate effect without holding any Departmental Enquiry as well as the W.P.(C) 9300/2009 & conn. Matters Page 5 of 39 Orders of the Appellate Authority dated 03.04.07 upholding the aforesaid order but converting dismissal to compulsory retirement. 2. The orders dated 07.04.2006 were passed by invoking provisions of Section 95 (2)(b) of the DMC Act r/w Regulations 9(ii) of the DMC Services (Control & Appeal) Regulations, 1959 and under Article 311(2) of the Constitution of India and which are similar in all the cases. The respondents challenged those orders by filing appeals before the Hon‟ble Lt. Governor of Delhi, which were disposed of by the Appellate Authority vide common orders dated 03.04.2007 upholding the order dated 07.04.2006 but converting the order of dismissal to that of compulsory retirement. 3. The respondents thereafter filed writ petitions before this Court to assail the orders dated 07.04.2006 and dated 03.04.2007 which were transferred to the Tribunal registered as TA Nos.23/2009, 1/2009, 21/2009, 37/2009, 40/2009, 41/2009, 42/2009, 43/2009, 45/2009, 46/2009, 68/2009, 80/2009 and 81/2009 respectively. 4. The Tribunal vide impugned order dated 26.03.2009 allowed all these transfer applications and set aside the orders dated 07.04.2006 and 03.04.2007. The Tribunal also directed reinstatement of all the respondents in service with immediate effect with full backwages with continuity of service. However liberty was granted to the petitioners to proceed against the respondents departmentally in terms of the following: - “We may reiterate that the controversy insofar as, delinquency of the respondent is concerned, has to be thoroughly gone into in a departmental enquiry, wherein the department may choose to bring on record all the relevant facts, which, according to it, may show that the respondents in fact and in reality indulged in misconduct, and the respondents would have equal opportunity to project their view point. Any observations made by us on facts constituting misconduct or otherwise, as mentioned in the order, are for the purpose of deciding these applications, and shall not be construed as a final expression of opinion. Concerned authority would be at liberty to come to its own conclusion on the basis of evidence and material placed before it.” 5. The petitioners have come before us by way of the aforesaid writ petitions with a prayer to set aside the impugned order passed by the W.P.(C) 9300/2009 & conn. Matters Page 6 of 39 Tribunal. The lis subject matter of the aforesaid writ petitions arise out of a PIL titled as Kalyan Sanstha Social Welfare Organization Vs. Union of India & Ors. (CWP 4582/03), wherein a Division Bench of this Court (hereinafter referred to as the “PIL Bench”) taking cognizance of mushroom growth of unauthorized construction throughout Delhi besides misuse of the properties, passed various orders from time to time against the petitioners from time to time. In the order dated 30.11.2005, it was observed:- “that the menace of unauthorized construction would remain rampant unless and until serious action was taken and major penalty imposed on the executive engineers of the area concerned along with the assistant engineers as well as junior engineers all of whom were mainly responsible for the same. In view of the MCDs own case as stated by Mr Kutty that unauthorized constructions have been on rise, we direct Mr Kutty to fix responsibility of the concerned engineers and other officials who allowed or took no notice of unauthorized constructions in relation to the admitted figure of 18299 and initiate action of major penalty against all such persons who are found guilty of having bated or in any manner connived with those who indulge in unauthorized construction” 6. Vide order dated 18.01.2006, the PIL Bench also observed:- “With regards to the action taken against erring engineers and the officers of the MCD, it is stated in the Action Taken Report that 95 officials of the level of Junior Engineers and Assistant Engineers have been identified for major penalty proceedings. Since the MCD itself has booked over 18,000 properties as unauthorized and illegal, the same could not have come up without the active or passive connivance of the Junior Engineers, Assistant Engineers and Executive Engineers of all zones. We direct the Commissioner of MCD to identify all such engineers and other officials who were involved or abetted coming up of such constructions and initiate major penalty proceedings against them as well. Such an exercise would send message to all concerned that it is not the buildings alone which are being targeted but even the delinquent officials who were involved connived or abetted in coming up of such buildings are being dealt with severely. These penalty proceedings should be time bound. We direct that the action for major penalty be taken against all delinquent officials within a period of two months from today.” 7. Vide order dated 16.02.2006, the Bench further observed:- “In our last order we have made it very clear that the unauthorized construction could not have been possible but for the abetment of these persons who were responsible for checking the unauthorized constructions in spite of our direction. When a person is appointed to carry out a public duty in terms of statue and if it is found that statue has been violated inspite of W.P.(C) 9300/2009 & conn. Matters Page 7 of 39 putting the custodian on duty by providing funds from the public exchequer, the principle of audi alteram partem cannot be invoked by such delinquent persons. Those officers and engineers of the MCD who were involved or connived or abetted in the coming up of such buildings have to be dealt with severely. As in our last order we have granted two months time on 18.01.2006 and time will expire on 18.03.2006, we would like the Commissioner of MCD to submit the action taken report against all these officers. The MCD has got 12 zones. Mr Chandihok says that process to identify is on. Why this delay? It is open to naked eye as to who were responsible if the MCD look to their own register of posting and the unauthorized construction in the zones, no further evidence is required but still we are giving time till next date of hearing to have these persons booked and action taken. Another strange thing is that these so called 94 We were also not happy as to why only officers in the six zones have been identified engineers who have been identified are still continuing in the building department. Commissioner of MCD to submit a report as to why in spite of issuance of charge-sheet, they have been still retained in the building department. We do expect the Commissioner of MCD at least not to allow these coloured people to continue for a day in the MCD and they are still continuing with the building department. Why it has happened, under whose instructions and why this lapse? The affidavit of Commissioner of MCD be filed on the next day of hearing.” 8. Vide order dated 23.03.2006, it was further observed:- “We appreciate the stand of Union of India in realising that but for the connivance on the part of the enforcement machinery for wrongful gain these violations could not have taken place. We also appreciate the desire of the Union of India to punish these delinquent officials with exemplary and deterrent punishment including launching of criminal prosecution apart from other major penalties of dismissal... It is keeping in view the authoritative direction issued from time to time from 1990 till this matter was dealt by us, the Courts have been emphasizing that action has to be taken if Delhi has to get rid of unauthorized construction, erring officials, builders, influential and powerful people, who have promoted or have indulged in unauthorized construction. It seems that our direction has also not been taken too seriously. On January 18, 2006 we were told that the MCD has taken action against 95 officers who were Junior Engineers and very few Assistant Engineers. In our order dated 16.2.2006 we made reference to a circular of MCD which lays down that a Construction Watching Register has to be maintained and such a register is required to be filled by functionaries of MCD which are under an obligation to fill the same right from Junior Engineers up to the Deputy Commissioner. Nothing has been stated in the status report filed by MCD as to why the same has not been done. The status report is also silent about the action taken against the Deputy Commissioners downwards? Time has come when action has to be taken from the top to the bottom. Merely by punishing few W.P.(C) 9300/2009 & conn. Matters Page 8 of 39 Junior engineers, the persons who are at the helm of affairs cannot escape their responsibility. Furthermore, why action has been initiated only against engineers for the year 2001 when we had directed action to be taken against all those officers who have allowed unauthorized constructions from 2001 to 2005. In our order dated 16.2.2006 we have categorically stated that it is not only the Junior Engineers, Executive Engineers or Assistant Engineers with whom the responsibility lies, it also lies with the Superintending Engineers and the Deputy Commissioners of the zone concerned and we had asked as to what action has been taken against the Deputy Commissioners or the Superintending Engineers by the MCD. Status report is totally silent about the same. We have been told that two Deputy Commissioners of Karol Bagh zone and Rohini zone were found wanting and, therefore, they have been repatriated. What a way to dealt with corrupt officers? Instead of taking any action against them they have simply been repatriated to their parent departments. Nothing has been brought on record as to the reasons for their repatriation nor the same has been communicated to their parent departments. Mr. Parasaran, Additional Solicitor General who is present on behalf of the Union of India says that action will be initiated by Union of India against those Deputy Commissioners who have been repatriated by the MCD on account of dereliction of duty. We have time and again observed that if the citizens of Delhi because of unauthorized constructions carried out by them have to face demolition and consequently suffer loss , we find no reason as to why those who allowed these unauthorized constructions to come up in spite of the fact that they were suppose to keep a vigil and were to ensure that no unauthorized constructions come up, should be allowed to go scot free. We have also observed that a person put on a public duty cannot be allowed to continue on that duty and such a person has no right to invoke the principle of audi alteram partem. It seems that the MCD lacks the desire to check the rampant corruption and unauthorized construction and to take action against unauthorized construction which has already taken place. We direct that on the next date of hearing record of posting of Junior Engineers, Assistant Engineers, Executive Engineers, Superintendent Engineers and Deputy Commissioners posted in south zone, central zone, karol bagh zone and rohini zone from 2002 to 2005 be produced. We further direct that action be taken against such delinquent officials/ officers and report be submitted in this court. We are adjourning this matter at the request of Mr Chandihok. We are not satisfied with the way the MCD has dealt with the problem. We make it very clear that if MCD fails to carry out its statutory obligations under the Act, we will have to go for other options as prescribed under the MCD Act with regard to dealing with these delinquent officials. We also make it clear that if the MCD is not serious in taking actions and showing the door to these corrupt delinquent officers, we will use other machinery for probe.” W.P.(C) 9300/2009 & conn. Matters Page 9 of 39 9. According to the petitioners in a nutshell the effect of these orders was that once the petitioners identified the persons responsible for the unauthorized construction going on unchecked inasmuch as at least a list of 18,299 such properties were identified where rampant unauthorized construction/misuse had taken place forming part of various municipal zones in Delhi in the relevant period, in view of the orders passed by the PIL Bench being in the nature of a writ of mandamus were obliged to take action against the guilty officers, who according to the Bench were not even entitled to audi alteram partem, the petitioners passed the order dated 7.4.2006 against the respondents as they were posted as Executive Engineers (B) in their respective zone in the relevant period and were directly responsible for the menance as aforesaid. 10. To understand the reasoning of such orders; a sample order issued in the case of S.L. Meena (CWP No.5282/2007) which is similar to all other cases invoking procedure as per the proviso of Sub clause 95 (2 ) (b) of the MCD Act read with Regulations 9 (ii) of the DMC Services (Control & Appeal) Regulations, 1959 and Article 311 of the Constitution of India, is reproduced hereunder for the sake of reference:- 16, RAJPUR ROAD, CIVIL LINES, DELHI-110054. No. DLO/Vig./P/2006/D-174 Dated: 07/04/2006 OFFICE ORDER In compliance of directions of the Hon‟ble High Court of Delhi passed in WP (C ) No. 4582/2003, Kalyan Sanstha Social Welfare Organisation Vs. Union of India & Ors., the entire record was scrutinized by the Vig. Deptt. and the same was placed before the Commissioner/MCD. The Commissioner by invoking the provisions of Sect. 95(2) (b) read with Regulation 9 (ii) of the DMC Services (Control & Appeal) Regulations, 1959 and the provisions contained in Article 311 of the Constitution of India has inflicted the penalty of „dismissal from services which shall ordinarily be a disqualification for future employment‟ upon Shri S.L.Meena, Executive Engineer, is reproduced below:- “Shri S.L. Meena had worked as Executive Engineer‟ in Najafgarh Zone during period w.e.f. 1.11.2002 to 19.2.2004 and in Shahdara North Zone during period w.e.f. 18.8.2004 to 7.9.2005. He while working as EE(B) was duty bound to get stopped/demolished the unauthorized construction carried out in the area/ zone, under DMC Act. He was also to maintain/get maintained Construction Watch Register/ supervise the entire construction carried out in his area/zone. He was also duty bound to take action against W.P.(C) 9300/2009 & conn. Matters Page 10 of 39 the misuse of property resulting into large scale commercialization of the area. The MCD has filed a list of total 18299 properties which were booked as unauthorized construction during the period from Jan. 2001 to December 2005 in PIL titled as “Kalya Sanstha Social Welfare Organization Vs. Union of India & Ors” in (WP No. 4582/2003). The Hon‟ble Court observed vide order dated 30.11.2005 that the officers of MCD, its engineers are hand in glove with those indulging in unauthorized construction and that without their active or passive connivance, it was not possible for such mushrooming of unauthorized construction in the capital of this country. Accordingly, the Court directed to initiate major penalty proceedings against all such persons who are found guilty of having abetted and connived with those who indulged in unauthorized construction. The Hon‟ble High Court of Delhi vide orders dated 18.1.2006 had directed MCD to take action against all such engineers who were involved or abetted in the coming up of such constructions and initiate major penalty proceedings against them as well. Such an exercise would send message to all concerned that it is not the buildings alone which are being targeted but even the delinquent officials who were involved, connived or abetted in coming up of such buildings are being dealt with severely. These penalty proceedings should be time bound. The Hon‟ble Court directed that the action for major penalty be taken against all delinquent officials within a period of two months from today. It is stated that power to punish an employee for misconduct as contained in Sub Sec. (2) of Sec. 95 mandates that, the said power can be exercised after due opportunity is given to an employee to answer the charges. Proviso (b) of this sub-section, which is identical to Regulations 9 (ii) of the DMC Services (Control & Appeal) Regulations, 1959, reads as follows: “where the authority empowered to remove or dismiss an officer or other employee is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in these regulations; the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit.” It is well settled law that every action of an administrative or executive authority which visits adverse or evil consequences upon a citizen or any person has to be preceded by rules of natural justice and fair procedure. This is more so in cases where an employee‟s services are sought to be terminated/dismissed. However, a small area has been carved out to cater to exceptional cases i.e. where the nature of charge is either so sensitive or public interest W.P.(C) 9300/2009 & conn. Matters Page 11 of 39 warrants that an enquiry would not be either practicable or would lead to unfair results or in cases where public interest warrants not to hold a full fledged inquiry and material are sufficient to warrant a view to be taken. Article 311 of the Constitution of India also empowers the Competent Authority to dispense with an inquiry if it is deemed to be not reasonably practicable to hold it. Thus, the condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that “it is not reasonably practicable to hold” the inquiry contemplated by clause (2) of Article 311. What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Proviso to Sec. 95 Clause 2 (b) and Regulation 9 (ii) of the DMC Services (Control & Appeal) Regulations, 1959 is directly in line with provisions contained in Article 311 of the Constitution of India. A consideration that would be valid to conclude that it is “not reasonably practicable” in one given case may not be valid and justifiable in another case. In other words, there is no absolute standard or “yardstick as to what would be reasonable not practicable to hold an inquiry. The expression “practicable”‟ would imply that either the witnesses are not available or the nature of charge is so sensitive that it would not be in the public interest to hold the full fledged inquiry and that the material are sufficient to warrant the view to be taken. This requirement ought to be construed in the strictest possible manner where the principles of natural justice are not followed but are dispensed with. (As held by Hon‟ble High Court of Delhi in the case titled T.R. Gupta Vs MCD & Ors in CWP No. 7463/2002 vide judgment dated 15.9.2005). In compliance of the directions of the Hon‟ble Court, the records of the properties booked for unauthorized construction, a list of which has been filed in the court, has been scrutinized. From perusal of the records, it is clear that total of 734 properties have been booked for unauthorized construction pertaining to the working tenure of Shri S.L. Meena, Executive Engineer, Najafgarh Zoe & Shahdara North Zone. It is also not in dispute that large number of buildings have been allowed commercial user in violation of the sanctioned use without following due process of law resulting into large scale commercialization in the area. Shri S.L. Meena, Executive Engineer, Najafgarh Zone & Shahdara North Zone who was posted in the zone for over one year is primarily responsible for not taking action as per the provisions of DMC Act with malafide intention which establishes his connivance with the owner/builder. Shri S.L. Meena, Executive Engineer, Najafgarh Zone & Shahdara North Zone has failed in maintaining the standard of integrity. He not only failed in his duties as a team leader but also betrayed the confidence of his senior officers reposed in him by not taking action against the W.P.(C) 9300/2009 & conn. Matters Page 12 of 39 unauthorized construction and allowing large scale commercialization of the zone. This conduct of Shri S.L. Meena, Executive Engineer, Najafgarh Zone & Shahdara North