Mool Chand Garg, J.@mdashMunicipal 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 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 Tribunal.
The lis subject matter of the aforesaid writ petitions arise out of a PIL titled as Kalyan Sanstha Social Welfare Organization v. Union of India and
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 Rs.
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 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 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.
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 Rs. 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
v. Union of India and 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 Section 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 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 v. Union of India and 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 Section (2) of Section 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 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 Section 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 v. MCD and 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 unauthorized construction and allowing large scale commercialization of the zone.
This conduct of Shri S.L. Meena, Executive Engineer, Najafgarh Zone & Shahdara North Zone is most reprehensible and totally unexpected of an
officer holding such a high position. Due to his gross misconduct and dereliction of duties, the image of Municipal Corporation of Delhi in the eyes
of public has been tarnished and as such he is not worthy to be retained in municipal service any more. The present case is glaring example of gross
misuse of power and dereliction of duty on the part of Shri S.L. Meena, Executive Engineer, Najafgarh Zone & Shahdara north Zone which
gravely affected the public interest. The nature of charge is so sensitive and the public interest warrants that the inquiry would not be either
practicable or would lead to unfair results. Further, the public interest warrants not to hold a full fledged inquiry and material on record is sufficient
to warrant a view to be taken in the matter because of the reason that unauthorized buildings booked are clearly identifiable matching the tenure of
the person who worked in the zone. It is a well known fact that in large number of cases, the unauthorized construction has not even been booked
which makes it much more difficult to hold inquiry with regard to the such lapses. The conduct of Shri S.L. Meena, Executive Engineer, Najafgarh
Zone & Shahdara North Zone in allowing mushrooming of unauthorized construction and in not taking action as per the provisions of DMC Act
and further allowing misusing of properties from sanctioned use or from residential to commercial is unbecoming of a municipal employee and
injurious to public interest and the evidence on record is sufficient and clear enough for the purpose of taking action against him under Clause 9(ii)
of the aforesaid regulations. Considering the sensitiveness of the charge, the public interest and the material available on the record any lastly that
holding of a full fledged inquiry would lead to unfair results, I hereby dispense with the inquiry against such charged official as the same is not
reasonably practicable in the present state of circumstances.
Dy. Law Officer (Vig.)
In all other cases similar orders were passed against the respondents with the difference about number of properties booked for unauthorised
construction in their respective zones. However, the reasoning given as reflected in the italicized portion for dispensing with the enquiry while
dismissing the respondents from their services in the MCD are same.
11. According to the petitioners since that order was not sought to be interfered with by moving a review application or an impleadment
application before the PIL Bench despite the orders were available on website, the respondents were not entitled to assail the order before the
Tribunal where they approached clandestinely, inasmuch as initially through the Forum of MCD Engineers, they tried to assail the order passed by
the PIL Bench in Kalyan Sanstha�s case (supra) by filing a SLP before the Supreme Court but did not follow it and allowed the same to be
dismissed in default and in this manner allowed considerable time to lapse for reasons best known to them. Thereafter, they filed appeals before the
Lt. Governor of Delhi. The petitioners submit, that it was only another attempt to buy time because the Hon�ble Lt. Governor also in the light of
directions of this Court in PIL Case probably was not in a position to interfere with the orders dated 7.4.06.
12. In the alternative, it is submitted that the information with regard to unauthorized construction in various zones had been collected by the MCD
through the respondents themselves. Thus, there is an admission on the part of the respondents that there was unauthorized construction in their
area in the relevant period which was unchecked and this tantamount to admission of their guilt. In such circumstances, where there was gravity
and sensitivity in the charges levied against them and the possibility of witnesses coming forward to depose against those officers, if any enquiry
would have been conducted was remote. In these circumstance keeping public interest in view invocation of the provisions contained u/s 95(2)(b)
of the MCD Act read with Article 311(2)(b) of the Constitution of India was fully justified and did not call for any interference by the Tribunal. The
Lt. General of Delhi acting as the Appellate Authority vide order dated 03.04.2007 has dismissed the appeals filed by the respondents except by
converting the punishment of dismissal to that of compulsory retirement. The relevant observations in that order are:
8. I have gone through the observations of Commissioner, MCD in the impugned order dated 07.04.2006, the averments made by the
Respondents in their written appeal and during the personal hearing granted to them as per his request and the relevant facts and records of the
case. I find that the appellants utterly failed to check the unauthorized constructions and large-scale commercialization of the area in his Zone. The
plea of shortage of staff, non-availability of skilled workforce and proper equipments, non-availability of police force is only an excuse to cover his
misconduct and dereliction to duty.
9. Considering the above facts and circumstances of the case, the provisions of DMC Act, DMC Services (Control & Appeal) Regulations 1959
and the nature of misconduct committed by the appellants, I am of the considered opinion that the penalty so imposed upon the appellant is not
proportionate to the gravity of his misconduct. The appellant, although failed in his duties, which resulted in large scale unauthorized construction
and commercialization, cannot be held solely responsible for the same. I, therefore, feel that the ends of justice would be met if the penalty of
dismissal from service imposed upon him vide the impugned order dated 07.04.2006 is reduced to that of ""compulsory retirement� I order
accordingly....
13. Petitioners have also submitted that the Tribunal while passing the impugned order has failed to appreciate that the order dated 07.04.2006
was passed by the petitioners pursuant to and in compliance with orders of the PIL Bench of this Court passed in WP(C) No. 4582/2003 titled as
Kalyan Sanstha Social Welfare Organization which was a Public Interest Litigation entertained by this Court in view of large scale unauthorized
construction which had come up in Delhi. In the said case the Bench expressed a severe dismay over the large scale unauthorized construction
which had come up in Delhi and observed that officers of the MCD and its engineers who include the respondents herein were hand in glove with
those indulged in unauthorized construction and that without their active or passive connivance, such mushrooming of unauthorized construction in
the capital of the country would not have been possible. Various Orders as stated above were passed directing actions to be taken against the
officers responsible for it. The order dated 7.4.06 was passed accordingly in compliance with the orders passed by this Court.
14. It is stated that accordingly the matter was entrusted to the Vigilance Department of the MCD by the competent authority. They obtained
tenures of EEs (Bldg.) who worked in different zones, number of buildings which had come up and booked during their tenure. It was revealed that
total 18299 unauthorized constructions were booked by all 12 zones between the period 2001 to 2005 and the same has also been put on the
website of MCD. It is further averred that the Executive Engineer is primarily responsible for taking necessary action against ongoing/booked
properties, and that had timely deterrent action been taken against the same, no unauthorized construction would have come up in the zone, and
that failure of the respondent to discharge his duties would be evident from the fact that effective actions were not taken against the unauthorized
construction, and whatever action was planned/taken on paper, was never taken to its logical conclusion citing one reason or the other. It is
pleaded that construction watch registers which were required to be maintained in respective zones in compliance of the orders of Additional
Commissioner dated 28.8.2001 were also not maintained, and that the duty has been cast upon the Executive Engineer to get the entries made in
the said register for effective monitoring of construction activities in the zone, and further that since no construction watch register was maintained in
the zone, apparently no checking was being done against the ongoing constructions in the zone. In addition, large-scale unauthorized constructions
have been alleged to come up in whole of Delhi. Executive Engineers with minimum of one year continuous tenure in building department have been
broadly identified and held prima facie responsible for unauthorized construction in their respective zone. Number of properties that have come up
during their tenure have also been indicated to give a broad idea regarding the extent of unauthorized construction during their tenure. Following
Executive Engineers have been identified who worked during the period 2001 to 2005:
S. No. Name of EE Period Zone No. of Prop.
1. Sh. Manohar Diwani 28.09.01 to Oct. 02 City 143
2. Sh. B.P. singh 15.04.02 to 09.05.03 West 1612
3. Sh. Vijay Kadiyan 05.05.03 to 31.05.05 West 161
4. Sh. Naresh Gupta 18.04.02 to 06.05.03 K.B. Zone 701
5. Sh. R.K. Bhattacharya 07.05.03 to 07.09.05 K.B.Zone 1551
6. Sh. M.M. Dahiya 01.03.02 to 31.05.05 Central 1698
7. Sh. S.P. Gautam 12.05.01 to 31.10.02 Shah. South 284
8. Sh. RBS Bansal 09.05.03 to 09.08.04 Shah. South 305
9. Sh. R.K. Gupta 09.08.04 to 31.12.05 Shah. South 357
10. Sh. BB Jaiswal 28.10.02 to 27.10.03 South 567
11. Sh. RBS Bansal 09.08.04 to 01.12.05 South 446
12. Sh. Mohd. Ilyas 01.03.01 to 18.06.02 Rohini 403
13. Sh. SL Meena 01.11.02 to 19.02.04 N.G. Zone 241
14. Sh. RP Dabas 20.02.04 to 31.12.05 N.G. Zone 573
15. Sh. Piar Singh 01.01.01 to 30.10.02 Shah. North 160
16. Sh. RK Jain 30.10.02 to 17.08.04 Shah. North 545
17. Sh. SL Meena 18.08.04 to 07.09.05 Shah. North 493
18. Sh. Nazrul Islam 02.11.02 to 02.08.04 Civil Line 566
19. Sh. SRK Kochar 22.08.01 to 28.10.02 S.P. Zone 25
20. Sh. AC Garg 25.08.04 to 19.12.05 166
15. It is then pleaded that since it was not possible to hold a regular departmental enquiry in a short time as indicated by this Court and further it is
not possible to have exact date of construction, for which no concrete evidence is available on record, but the fact remains that the unauthorized
constructions came up and remained unchecked without any effective punitive action being taken by the respondents during their tenure, and no
further enquiry into exact culpability was required at that stage. Further the public interest warranted not to hold a full fledged enquiry in view of the
material on record. A view was taken that unauthorized buildings booked and inaction thereon was clearly identifiable matching the tenure of the
persons who worked in the zone. It is further pleaded that it is well known fact that in a large number of cases, the unauthorized construction had
not even been booked which made it much more difficult to hold enquiry with regard to such lapses, and that further enquiry would not have been
practicable because of the apparent nexus between the beneficiary of unauthorized construction and the official concerned. In the light of material
on records, vigilance department of MCD placed the matter before the Commissioner after obtaining necessary advice from the Chief Law
Officer, and the Commissioner in his capacity of disciplinary authority, after considering the record passed detailed speaking order dated 7.4.2006
thereby imposing the penalty of dismissal from service.
16. It has been denied that the respondents only had a peripheral role in checking unauthorized construction in the zone. It was stated that the
organizational structure of the building department of MCD, which is responsible for initiating action against the unauthorized construction in the
zone, is such that the entire supervisory responsibility for the said purpose in the zone would be placed on Executive Engineer (Building) with other
officers functioning under him. Subordinate officials like AE (Building)/JE (Building) are under direct control and supervision of Executive Engineer
(Building), who is also vested with the powers of allocation of area amongst the subordinates so as to ensure proper check and action against
unauthorized constructions. Monthly schedule of demolition programmes are also exclusively drawn by EE (B), and in that process, he may consult
OI (Bldg.) or any subordinate official. The main issue which was raised in the PIL aforesaid was regarding failure to initiate demolition action
against the booked unauthorized construction wherein demolition orders were passed during the period 2001-2005. In the said context, it is
averred, the role of EE (Bldg.) is pivotal. It is averred that other than giving one excuse or the other for not carrying out demolition, the respondent
has conveniently chosen to put the blame on other authorities.
17. The respondents on the other hand have justified the orders passed by the Tribunal by stating that in the PIL case this Court only passed
orders for taking disciplinary action against the erring officials who were found to have abetted or connived in unauthorized construction with
unscrupulous builders. Vide order dated 18.1.2006 two months time was granted to the MCD for completing the enquiry and disciplinary
proceedings by 17.3.2006. According to them the PIL Bench never directed the petitioners to take any action against the officials who were not
found wanting in their responsibilities. In compliance with the directions of the Bench various authorities in the MCD conducted enquiries and
disciplinary proceedings against various officials including JEs(B), AEs(B), EEs(B) and Superintending Engineers in accordance with the
Regulations were initiated by giving them chance to defend themselves and the procedure as contemplated under the Regulations was followed.
Nothing has been explained in the order as to what happened suddenly which warranted immediate disciplinary action of dismissal from service. It
is stated that the PIL Bench never passed any order for dispensing with the departmental enquiries and for terminating services of the respondents
by invoking Section 95(2)(b) that too without finding and ascertaining the guilt or even not giving the erring officer a show cause notice as required
even by the aforesaid provision. Had there been any such directions, no enquiry would have been necessary against any of the officials of MCD
posted in or looking after the work of the building department. However there is no explanation as to why were enquiries conducted against 178
SEs, EEs, AEs and JEs. It is further the case of the respondent that though the High Court gave two months time to the petitioners to find the erring
officials and take disciplinary action against them, but the records of MCD would reveal that the entire exercise for terminating services of 17
Executive Engineers was completed merely within ten days under the apprehension that the Court would not be satisfied in less than the dismissal
of the engineers without enquiry, and if the services of the respondent were not terminated without conducting enquiry, the Court would pass
severe strictures against the vigilance department of MCD. It is pleaded that the respondents were not a party to the said PIL, and for that reason
as well the orders passed by the High Court were not applicable in the case of the respondents and further the MCD has not brought all the facts
regarding functioning of the respondents or the actions taken by the building department in their zone during his tenure respectively where almost
every day demolition/sealing actions were planned and taken whenever police assistance was made available. In addition to that they have also
referred to the procedure which regulates the functioning of the Building Department of MCD which does not rest the responsibility solely on the
Executive Engineers (B).
18. The Common issues arising out of the order dated 7.4.06 which is similar in all the aforesaid matters, passed by the petitioners in having
dispensed with the services of the respondent without holding any enquiry relying upon Section 95(2)(b) of the MCD Act read with Article 311(2)
(b) of the Constitution of India are:
(i) Whether the various orders of the PIL Bench of this Court in the PIL titled as Kalyan Sanstha Social Welfare Organization (CWP 4582/03)
were in the nature of mandamus, directing the petitioner to dispense with the services of the respondents without holding any enquiry?
(ii) Whether the observations of the PIL Bench that a public servant entrusted with legal duty in law to do a thing in a proper manner, if violates that
law is not entitled to audi alteram partem justifies the order dated 7.4.06 in the case of the respondents who were neither a party to those
proceedings nor were heard before the orders were passed?
(iii) Whether there was enough material attracting invocation of the provisions contained u/s 95(2)(b) of the MCD Act r/w Article 311(2) of the
Constitution of India for issuing the aforesaid orders?
(iv) Whether the order dated 26.3.09 passed by the Tribunal in 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 in having set-aside the order dated 7.4.06 and the Appellate Order dated 3.7.07
with a direction to reinstate the respondents with full back wages with continuity of service is sustainable or needs to be interfered with by this
Court in its Writ Jurisdiction under Article 226/227 of the Constitution of India?
19. The Tribunal has dealt with all the aforesaid issues. As regard the procedure prescribed under rules/instructions for booking the properties and
for demolition/sealing etc the tribunal has observed that as per Section 343 of the DMC Act, the properties are first booked for unauthorized
construction by the field staff as and when the same is either detected by the field staff or on the basis of any complaint/reference or court case. An
FIR is prepared by the JE concerned at the site of unauthorized construction in the printed book duly numbered. That is the first step taken
towards taking action against unauthorized construction. Under provisions of the DMC Act, the Commissioner, MCD has to exercise his powers
and discharge his functions as prescribed under Chapter XVI of the Act, which deals with the building regulations under the general
superintendence, directions and control of the Central Government. That indeed is so, as by virtue of provisions contained in Section 343 of the
DMC Act, where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed
without or contrary to the sanction referred to in Section 336 or in contravention of any condition subject to which such sanction has been
accorded or in contravention of any of the provisions of the Act or bye-laws made thereunder, the Commissioner may, in addition to any other
action that may be taken under the Act, make an order directing that such erection or work shall be demolished by the person at whose instance
the erection or work has been commenced or is being carried on or has been completed. According to the respondents the FIR should be
prepared by the JE concerned and placed before the AE, who is his next superior on the same very day for appropriate orders, to whom powers
u/s 343 and 344 have been delegated by the Commissioner u/s 491 of the Act; a printed and numbered show cause notice u/s 344(1) and Section
343 is to be prepared by the JE according to the orders of the AE on the FIR and the same is to be placed before the AE for approval; entry of
the FIR and notices are to be made by the office incharge (OI) in the misal band register on the same day, and the case number as entered in the
misal band is also to be recorded on the FIR as well as on the notices; the EE (B) of the zone has to ensure the closure of the said misal band
register at the end of each day. With regard to ongoing unauthorized construction, the JE prepares a requisition u/s 344(2) for police intervention.
A show cause notice is then issued u/s 344(1) and Section 343, to be served by the JE under signatures of the AE on the owner/builder/occupier.
After expiry of the stipulated period as mentioned in the order of demolition, formal speaking order for demolition is to be passed by the AE and
the file is sent to OI for demolition purposes. In cases of blatant unauthorized construction, action for sealing of the property can also be initiated
u/s 345A. The power of sealing has been delegated by the Commissioner to the Deputy Commissioners of the zones. In case it is found that
owner/builder is still continuing with the unauthorized construction of blatant nature, a complaint is to be lodged with the concerned police station
u/s 332/461 of the DMC Act. Power of lodging complaint has been delegated to the Deputy Commissioners of the zones. The last checks to be
applied by various officers in the missal band register for unauthorized construction are mentioned in office order dated 4.7.01 which has been
discussed in Detail by the Tribunal which supports the aforesaid observations.
20. We find that the subsequent order dated 20.08.2001 is also relevant and reads as under:
Office Order
Subject: Workng of the building department under
New set up
In partial modification of circular No. D/167/EE (B) HQ/99 dated 22.3.99 the following instructions shall be incorporated in addition to the
instructions already issued.
1. Under S. No. 2 Approval of Building Plans
In addition to maintenance of building plan register at zonal level another register for Watching Construction shall be maintained at each ward level.
With a view to evolving a mechanism for fixing accountability for non-compoundable deviations against sanctioned plans, a register printed in Mpl.
Press duly numbered be got issued ward wise for each J.E. in the zone for watching construction activity. Every property for which building plan
has been sanctioned should find mention in the said register. The JE incharge of the ward will be required to make an entry about his observations/
findings, each time he inspects the said property. In the first instance whenever he notices that a new construction has been started in his area, he
will be duty bound to ascertain whether the owner/ builder has informed the Corporation of his intentions to start the construction as required u/s
337(4) of the DMC Act. In case of failure, prosecution action must be taken without fail and entry to this effect be made in the Constitution
Watching register. It will be made mandatory on the part of the J.E. to carry out inspections of such buildings every fortnightly and to record his
observations in the said register about any non-compoundable deviation against sanctioned plan and action taken against the said deviation. AE
incharge of the area and EE of the zone will carry out test checks to the extent of 40% and 20% respectively of the properties entered in the said
construction Watching register and will also record their findings. The modalities of test checks will be similar to that as laid down for unauthorized
construction in office order No. D/158/Addl.Cm.(E)/2001 dated 4th July, 2001. This register should also be reviewed by S.E. once in three
months and by D.C. once in six months.
In order to ensure that the building is being constructed with due sanction and is supervised by Architect and Structural Engineer, J.E. concerned
should ascertain from the site and further confirm this fact in writing from the Architect/Structural Engineer, who has furnished certificate at the time
of submission of building plans. In case it is found that building is being constructed without supervision, the construction should be got stopped and
a show cause notice should be issued to the Architect as to why communication be not made to the Council of Architect/Authority to whom the
said Architect is registered with for cancellation his empanelment.
2. Under S. No. 3 Action against the unauthorized construction.
A criterion for test checks has been fixed for unauthorized construction booked in a month to the tune of 40% by A.E. and 20% by E.E. Since it
was not mentioned as to how the test check is to be applied, it was felt to evolve a mechanism and accordingly, a circular No. D/458/ADDL.
CM(E)/2001 dated 4th July, 2001 was issued. However, there is still a need to involve the participation of higher officers in the hierarchy for
having effective control and supervision.
Henceforth Superintending Engineer at least once in two months should call for a meeting of the staff of Building Department to check whether the
record is being maintained properly and the staff is following instructions issued from time to time. The minutes of this meeting must invariably be
sent to Dy. Commissioner of the zone thereafter. In case of non-performance, he should also initiate action against the erring official.
Under the same Clause IInd para lays down the criterion for carrying out inspection of the area by J.E., A.E. & E.E. Time limit fixed for inspection
is presently 3, 7 and 10 days respectively.
This has now been increased to 7 days for J.E., 15 days for A.E. and 30 days for E.E. for effective inspection of the area. To ensure that each
officer carried out inspection of the area, weekly inspection report is to be sent positively to the next higher officer in the hierarchy. This inspection
report should clearly mention about the areas visited on each visit and uanuthorised construction detected if any and further action taken against the
same. These inspection reports should be reviewed by Suptdg. Engineer at least once in two months and by Dy. Commissioner once in three
months.
2. Under S. No. 5 Issue of Completion Certificate
In addition to test check as prescribed for A.E. & E.E., S.E. should once in two months review the completion certificate register to ensure that no
case of completion certificate if pending without a valid reason.
3. Under S. No. 6 Demolition Gang
Apart from the existing instructions, S.E. will carry out a random check at least once in two months to ensure that the demolition actions are being
taken as per the priority fixed. Similar checks will also be carried out by Dy. Commissioner once in three months.
Under S. No. 6 Recovery of demolition charges
S.E. will review once in three months, whether demand notice is being sent to the owner for making payment of demolition charges or not. In case
of non-recovery, he will ensure that reference is made to House Tax Department to recover such charges as arrears of Taxes.
(S.P. Aggarwal)
Commissioner
20/08/2001
21. A reading of the aforesaid circular makes it clear that the responsibility is not on the Executive Engineers alone but also lies with the senior
officers who alone are in fact final authorities for taking action for sealing and demolition of the Building in case of un authorized construction.
22. According to the Tribunal, any head of department who may be in the wrong would always be morally responsible, as surely being the head of
department, overall supervision may vest with him, but from that alone, it cannot be said that he is directly responsible for any lapse that may
happen in the department. In the matter of demolition of illegal construction, the responsibility may be joint and several as well, but from that also it
cannot be said that the role of EE(B) even though, he may be the head of department of the building department, would be pivotal. To illustrate, if
the concerned JE or AE may not even book an unauthorized construction, the matter may not proceed any further. Insofar as, booking the
properties and passing orders for demolition are concerned, it does not appear from the material placed that the EE(B) may be directly responsible
for the same. In fact, in the matter of booking, issuing notices and passing orders, it appears, he has no role to play. His role may be in supervising
demolition of the illegal constructions but from that alone it cannot be said that his role is pivotal in the matter of demolition of illegal construction. It
has been observed that vide office order dated 2.6.1997 issued by the MCD it has been directed by the Commissioner in exercise of powers
vested in him u/s 491 DMC Act, that the powers conferred on him under various Sections of the Act shall be subject to his overall supervision,
control and review, be also exercised by the officers mentioned in column 3, to the extent indicated in column 4 of the schedule. In column 1 of the
schedule, against the scope of powers u/s 343, mention is of power with regard to order of demolition and stoppage of building and works in
certain cases and appeal. In column 3, the officers to whom the powers have been delegated are mentioned as all Deputy Municipal
Commissioners/Superintending Engineers of the zones, all Executive Engineers (Building), and all Assistant Engineers of zones. Insofar as Section
345A dealing with powers to seal unauthorized construction is concerned, such powers have been delegated to all Deputy Municipal
Commissioners. The power of removal of dangerous buildings, as per provisions of Section 348, has been delegated to all Executive Engineers,
but we may mention here that the power is with regard to removal of dangerous buildings and not of unauthorized construction. Thus the power of
demolition and stoppage of buildings and works in certain cases is concerned, the same has not been delegated to Executive Engineer (Building)
alone. The same has also been delegated to all Deputy Municipal Commissioners/Superintending Engineers and all Assistant Engineers (Building)
as well. It is also observed that even though, the Lt. Governor may have found no merit in the appeal of the respondents, but one thing that was
accepted and so held, was that it was a case of joint and several responsibility. It is in consideration of that fact only that the punishment of
dismissal from service of the respondent was converted to that of compulsory retirement.
23. Relying upon the appellate order the Tribunal further observed that in view of the conflicting stand of the parties with regard to the extent of
role played by the respondents in the matter of demolition or unauthorized construction, it is necessary to hold a regular departmental enquiry to
find out as to what was the exact role played by the respondents and only then after it is adjudicated upon then only the issue of punishment would
have arisen. The Tribunal further observed that when it was not certain that it is only the Executive Engineer (Building) was wholly responsible and
the petitioners decided even to hold departmental enquiry against J.E./A.E. wherein the charges were exactly the same as were against the
respondents, it cannot be held that such an enquiry cannot be held against Executive Engineers, while enquiry could be conducted against J.E./A.E.
in so far as respondents and other Executive Engineers were concerned it was not practicable is a misnomer and such arguments could not be
accepted. It was thus stated that in these circumstances, there was no occasion for the petitioners to have invoked the procedure prescribed u/s
95(2)(b) of the MCD Act r/w Regulation 9 thereof.
24. Referring to the plea taken by the petitioners that the orders were outcome of observation made by the High Court in the PIL titled as Kalyan
Sanstha Social Welfare Organization, to the effect that a person put on a public duty if found committing the law or grave violation of duty cannot
be continued on duty and such persons is not entitled to audi alteram partem, the Tribunal has observed that in the order given by the PIL Bench
there were no findings that the respondents alone by virtue of some specified provisions in the Act of 1957 or the Rules framed thereunder were
the only persons who were to book unauthorized constructions, issue notices against the parties, pass orders of demolition and to carry out the
demolition process either by himself or through subordinates or to supervise the demolition process. Thus it is stated that the observation made by
the High Court that the delinquent/respondents would have no right to invoke the principles of audi alteram partem was not applicable to the case
of the respondents in the given facts. Once the petitioners who held regular departmental enquiry against number of Junior Engineers and Assistant
Engineers facing similar charges as were contemplated there was no reason to dispense with regular departmental enquiry in the case of the
respondents. In any case no finding has been returned in the order dated 7.4.2006 to the effect that it was the respondents alone who were
persons responsible to book unauthorized construction, issue notice against the concerned parties, pass orders of demolition and carry out the
demolition process. In this regard it was submitted that the High Court only required the petitioners to proceed against all concerned who were
responsible for coming up unauthorized constructions by way of regular departmental enquiry. Further the Tribunal has also observed that in the
present case the respondents were not before the Court. They were also not heard and therefore even if it is presumed that the observation of the
High Court that they were not entitled to any opportunity of hearing the said observations were sub-silentia and per inquirium.
25. The Tribunal also referred to a status report filed by the petitioners before the PIL Bench in the form of an affidavit mentioning about holding of
regular departmental action for major penalty against 178 SEs, EEs, AEs etc., who had failed in their endeavour to restrict the violation of the
building bye laws had been undertaken by the MCD. Out of 178 cases, inquiry had been completed in 151 cases and final orders issued on 96
cases. In an annexure to affidavit it is also mentioned that in the first lot, 95 engineers were identified for having abetted and connived for allowing
unauthorized construction of Delhi, consisting of 59 JEs and 36 AEs, and further that 66 engineers were identified for having abetted and connived
unauthorized construction in their respective zones, consisting of 33 JEs, 21 AEs and 12 EEs. The abstract of cases is given as, total number of
regular departmental action ordered in 178 cases, enquiry completed in 151, final orders issued in 96 and major penalty imposed in 75 cases. It is
the positive case of the respondent, as mentioned, not controverted, and therefore, admitted, that the major penalty against the officers found guilty
as mentioned above, was only to the extent of stoppage of increments. With regard to 1698 properties booked by S 1 Meena for demolition,
insofar as the role of the respondent is concerned, it is also the positive case of the respondent, and not controverted by the respondents, that all
the AEs and JEs who were given opportunity to defend their cases in departmental enquiries have been exonerated by either of the authorities.
26. The Tribunal further observed that if it was practical to hold departmental proceedings against Junior Engineers, Assistant Engineers and
Superintending Engineers pertaining to the same very charges as alleged against the respondent, there was no impediment in the way of the
respondents in resorting to departmental proceedings in the case of the respondent as well. It is significant to mention that to the plea raised by
Learned Counsel for the respondent that if others facing similar charges were departmentally tried, there could be no earthly reason to deviate from
the said procedure qua the respondents no reply except that the respondents in the matter of demolition of illegal constructions had a pivotal role to
play has been stated. It is not denied that those who were departmentally tried also at least shared the responsibility in the matter of demolition of
illegal constructions. The Tribunal thus held that the only distinction sought to be made by the respondent MCD in adopting different procedures
for its employees is wholly unjustified. If the petitioners found it practicable to hold departmental proceedings against as many as 178, including
officers junior and senior to the respondent, there should not have been any difficulty in resorting to the same procedure insofar as, the respondent
is concerned. Even if it be admitted that the respondent being the Executive Engineer (Building) had a pivotal role to play in the matter of
demolition of unauthorized constructions, at the most, it would make difference in the quantum of punishment and not in holding departmental
proceedings with regard to others, and resorting to procedure for summary dismissal insofar as, the respondents are concerned. It is stated that
even from the orders passed by the PIL Bench (supra) no distinction between the case of the respondent and those who were departmentally
proceeded can be made out. In fact, the role of all officers, be it Junior Engineers, Assistant Engineers, Executive Engineers, Superintendent
Engineers, Deputy Commissioners and even SHO of the area concerned, came to be commented adversely in equal measures. No distinction
whatsoever on that count has been made that may even remotely show that different treatment was to be meted out to the Executive Engineers.
27. The Tribunal has observed that in the first order dated 09.11.2005 the PIL Bench only observed that until and unless severe action was taken,
major penalty was taken the unauthorized construction will remain rampant. The Executive Engineer as well as Junior Engineer were the persons
mostly responsible for unauthorized constructions. On the next date of hearing i.e. on 30.11.2005 the Court observed that the officers of MCD are
hand in glove with those who indulge in unauthorized construction, and it was not possible for such mushrooming of unauthorized construction in
the capital of the country, role of SHO concerned also came up for adverse opinion. It was also observed that the primary responsibility of
unauthorized construction though vests in the Engineering department of MCD but the SHO concerned cannot take the plea that no cognizance
can be taken by him. After so observing that the direction came to Commissioner to fix responsibilities of SHO and Engineers who allowed, no
notice of unauthorized construction in relation to admitted figure of Rs. 18,299 properties where unauthorized construction has been raised and
directed action to be taken of major penalty against all such persons who were found guilty of having abated or in any manner connived with those
who indulged in unauthorized construction. The Tribunal observed that once again there was no observation to dispense with the regular
departmental enquiry. In fact observation was to impose major penalty but after holding enquiry.
28. In the order dated 6.12.2005, while giving reference of order dated 30.11.2005 with regard to taking of major penalty proceedings, the court
noted the tardy progress in the matter of demolition of unauthorized construction. Vide order dated 18.1.2006, insofar as the issue in the present
Application is concerned, the High Court observed that with regard to taking of major penalty proceedings against the concerned officials of
MCD, it was stated in the action taken report that 94 officials of the level of Junior Engineers and Assistant Engineers had been identified for major
penalty proceedings. The PIL Bench further observed that once, the MCD itself had booked over 18000 properties as unauthorized and illegal,
the same could not have come up without the active or passive connivance of JEs, AEs and EEs of the zones. The Commissioner, MCD was
directed to identify all such engineers and other officials who were involved or abetted in the coming up of such constructions and initiate major
penalty proceedings against them as well. These penalty proceedings were to be time-bound. The Court only the MCD to initiate major penalty
proceedings not only against the 94 officials of the level of JEs, AEs and EEs, but the higher officials as well, which were to be time-bound. The
next relevant observations came to be made on 16.2.2006, after two months and ten days, when observations with regard to initiating major
penalty proceedings against all the concerned officials were made by the court. The court was not satisfied with the action taken only against JEs
and AEs. It was of the opinion that Superintending Engineers and Deputy Commissioners of the zones concerned were also responsible. The
respondents were required to intimate the court as to what action had been taken against them. The court, it appears, was of the firm view that
only JEs and AEs were not responsible for illegal constructions. Deputy Commissioners and Superintending Engineers, in that context, it was also
observed, would be equally responsible. In the context of responsibility of higher officers with regard to illegal construction and demolition, it also
came to be observed that When a person is appointed to carry out a public duty in terms of statute and if it is found that statute has been violated
in spite of 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. Even while so observing, the court referred to its last order dated 18.1.2006 when time of two months was given to the
respondents to take action. This time limit was to expire on 18.3.2006, as observed in the order itself. The Commissioner was directed to submit
the action taken report against all officers. The court after observing that there was no reason for delay as the responsibility would be fixed on the
basis of records, still gave time to the respondents to take action by the next date of hearing. It is observed that we are giving time till the next date
of hearing to have these persons booked and action taken. It may appear from the earlier part of the order where observation has been made that
when a person is appointed to carry out a public duty in terms of statute and if it is found that statute has been violated in spite of 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, the High Court was of the opinion that action could be taken by dispensing with the enquiry, but in ultimate analysis, time was given to the
respondents to take action against all the concerned, as mentioned in order dated 16.2.2006 including the senior officers such as Deputy
Commissioners, Superintendents.
29. The Tribunal has rightly observed that the PIL Bench in the orders passed later only expressed its annoyance and anguish for no action having
been taken against the higher officers even though, it was suggested on number of occasions that action should be taken against them as well. That
being so, it was observed by the Bench that it was not satisfied with the way MCD had dealt with the problem, and that if MCD failed to carry out
its statutory obligations under the Act, the court would have to go for other options as prescribed under the DMC Act with regard to dealing with
the delinquent officials. It was also made clear that if MCD was not serious in taking action and showing door to the corrupt officials, the court
would use other machinery for probe.
30. Before us, the Learned Counsel appearing for the respondents also made two-fold additional arguments to justify the order of the Tribunal
impugned before us for having set-aside the orders dated 7.4.2006 and 3.7.2007, i.e.
(i) No mandamus had been issued by the PIL Bench to dispence with the services of the respondents without holding any enquiry inasmuch as, no
such order could have been issued by the High Court because a mandamus can be issued for doing a thing only in accordance with law.
(ii) That even otherwise provisions contained u/s 95(2)(b) of the MCD Act r/w Regulation 9 read with Article 311 of the Constitution of India
could have been invoked taking into consideration all the facts of this case as discussed above. It is stated that a bear reading of the order dated
7.4.06 do not justify such an action at least against the petitioners who were neither heard nor were the parties before the PIL Bench.
31. The question that arises for our consideration is whether even if it is presumed that the orders passed by the PIL Bench are to be treated as a
mandamus can it compel MCD to act contrary to law? The answer has to be in the negative.
32. It has been held by the Apex Court in State of West Bengal v. Subhas Kumar Chatterjee and Ors. Civil Appeal No. 5538/2008 decided on
17.08.2010 that neither the government can act contrary to the rules nor the court can direct the government to act contrary to rules. No
Mandamus lies for issuing directions to a government to refrain from enforcing a provision of law. No court can issue Mandamus directing the
authorities to act in contravention of the rules as it would amount to compelling the authorities to violate law. Such directions may result in
destruction of rule of law.
33. Further the Apex Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, held:
The obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This
doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction
between a quasi-judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak v. Union
of India. Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial
action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities it follows equally that it
cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known if more than one choice is available to
the administrative authorities; they have a certain amount of discretion available to them. They have ""a right to choose between more than one
possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred�. (Lord
Diplock in Secy. of State for Education and Science v. Tameside Metropolitan Borough Council. The Court cannot substitute its judgment for the
judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no
reasonable person would have taken that action, can the Court intervene.
34. We have considered the aforesaid observations made by the Tribunal and have also given our thoughtful consideration to the rival submissions
made by the parties.
35. It is not necessary for us to agree with each and every word which has been mentioned by the Tribunal in its order subject matter of the
present writ petition regarding the interpretation of the orders passed by this Court in Kalyan Sanstha�s case (supra) but we agree with the
Tribunal to the extent that even if the principle of audi alteram partem were to be dispensed with and the regular departmental enquiry as
contemplated in the orders of the PIL Bench were not to held, the petitioners while resorting to provisions of Section 95(2)(b) of DMC Act read
with regulation 9(ii) of the Regulations of 1959, as also Article 311 of the Constitution were required to follow pre-conditions for invoking such
provisions in accordance with law and in any case the observation of the High Court to dispense with the principle of audi alteram partem could
not be invoked against the respondents who were not a party before the High Court.
36. We also agree with the observations made by the Tribunal that the orders passed by the PIL Bench contained directions only to proceed
against the delinquent officials in regular departmental enquiry. It is apparent that the petitioners have invoked the provisions of Section 95(2)(b) of
DMC Act read with regulation 9(ii) of the Regulations of 1959 only because they failed to take action against the delinquent officials within the time
frame as directed by the High Court. We have no difficulty to accept the argument raised by the Learned Counsel representing the respondent that
such provisions were invoked for fear of action being taken by the High Court against those who failed to do so, within the time frame as
mentioned above. Dispensing with enquiry against the respondent on the basis of interim orders passed by the High Court and observations made
therein does not appear to be justified in the facts and circumstances of the case. Having found that observations made by the High Court were not
sufficient reason so as to hold that it was not reasonably practicable to hold an enquiry, time is now ripe to see the other grounds, if any, either
mentioned in the impugned orders or in the counter reply endeavouring to justify that it was not reasonably practicable to hold a regular enquiry in
these cases.
37. Counsel representing the respondent, as mentioned above, has urged that the other grounds are sensitivity of the issue and public interest.
Before, however, we may deal with the contention of the Learned Counsel as noted above, we may briefly advert to the relevant provisions in the
Constitution of India and the DMC Act as well as the Constitution of India. We may observe here that the provisions contained u/s 95(2)(b) read
with regulation 9 are akin to Article 311 of the Constitution of India. By virtue of provisions contained in Article 311(1) no person who is a
member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State, shall be
dismissed or removed by an authority subordinate to that by which he was appointed. He also cannot be dismissed or removed or reduced in rank
except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of
those charges, as provided in Clause (2) of Article 31.
38. There are three exceptions, provided in sub-Clauses (a), (b) and (c) of Clause (2) of Article 311, which may justify not to hold an enquiry
before inflicting punishment upon a government servant. The first exception is where the person concerned has been convicted in a criminal charge.
The second exception is where the authority empowered is satisfied that for some reason to be recorded by that authority in writing, it is not
reasonably practicable to hold such inquiry. The last exception is where the President or the Governor is satisfied that in the interest of the security
of the State it is not expedient to hold such inquiry.
39. The Order dated 7.4.06 is sought to be justified on the basis of the second exception as provided under Article 311(2)(b). By virtue of
provision contained in Article 311(3), when a question may arise as to whether it is reasonably practicable to hold such inquiry as is referred to in
Clause (2), decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. It is an admitted
position that provisions contained in Section 95(2)(b) of the Act of 1957 are pari materia to Article 311 of the Constitution. There would be thus
no need to make a mention of the same. We may first deal with the contention raised by the Learned Counsel representing the petitioners based
upon Article 311(3) that once, the concerned authority found it to be a case that it is not reasonably practicable to hold an inquiry, the decision of
the said authority would be final and, therefore, once, such authority had arrived at such conclusion, there would be no scope to deal with the issue
any further. This contention needs to be rejected straightway, as in our view such decision is always justifiable and can be called in question in a
competent court of law. Reference can be made to the judgment delivered by the Apex Court in the case of Union of India and Another Vs.
Tulsiram Patel and Others,
40. In the impugned order, even though it is mentioned that it is a settled law that every action of an administrative of executive authority which
visits adverse or evil consequences upon a citizen, or any person, has to be proceeded by rules of natural justice and fair procedure, and this
would be more so in a case where services of an employee are sought to be terminated/dismissed, it is, however, observed that 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 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 enquiry and
material are sufficient to warrant a view to be taken. After making general observations as mentioned above, the conduct of the respondent has
been stated to be reprehensible, and it is then stated that the charge is so sensitive and the public interest warrants that the enquiry would not be
either practicable or would lead to unfair results, and further that the public interest warrants not to hold a full fledged enquiry and material on
record is sufficient to warrant a view to be taken in the matter because of the reason that unauthorized buildings booked were clearly identifiable
matching the tenure of the person who worked in the zone. In the operative part of the order, it is mentioned that considering the sensitiveness of
the charge, the public interest and material available on record and lastly that holding of a full fledged inquiry would lead to unfair results. It is with
these observations enquiry has been dispensed with against the respondents holding that the same is not reasonably practicable in the present state
of circumstances. We have quoted the order passed by the petitioners dated 07.04.2006 but found that except for stating the legal position, the
only observation for justifying dispensing with the enquiry is the italicized portion of the order.
41. We are satisfied that the reasons for dispensing with the enquiry, as mentioned above, are wholly irrelevant and unjustified. What was sensitive
about the charges on which the respondent may have been tried is not explained either in the impugned orders or in the counter reply filed before
the Tribunal or in the submissions made during the course of arguments. The issue of unauthorized construction may be sensitive, but the issue of
holding an enquiry in case of an official who is alleged to have not checked or taken measures to demolish illegal constructions, in our considered
view, cannot be stated to be sensitive at all. Once again, public interest may be with regard to demolition of illegal constructions, but there was no
public interest involved in proceeding against individuals.
42. At this stage we would take note of the observations made by the Tribunal in para 24 of the impugned order where the general principles and
conditions for the application of Article 311(2)(b) have been distilled from various Judgments of the Apex Court and we agree with the same. They
are as follows:
i) reasons for dispensing with the regular departmental enquiry must be established by holding that it is `not reasonably practicable to do so and
reasons for this must be recorded in writing;
ii) disciplinary enquiry should not be dispensed with lightly or arbitrarily or out of ulterior motive;
iii) disciplinary enquiry should not be dispensed with to avoid the holding of an enquiry or because the departments case against the government
servant is weak and must fail;
iv) the reason for dispensing with enquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language
of Clause (b) of second proviso;
(v) the authority is obliged to show that his satisfaction is based on objective facts. The decision to dispense with the departmental enquiry cannot
be rested solely on the ipse dixit of the concerned authority;
(vi) the subjective satisfaction must be fortified by independent material to justify dispensing with the enquiry envisaged by Article 311(2);
recourse to Article 311(2)(b) can be taken even after enquiry has been started;
the gravity of offence is not a ground for dispensing with regular departmental enquiry and invoking Article 311(2)(b);
(ix) courts can interfere with such orders on grounds well established in law for the exercise of power of judicial review in matters where
administrative discretion is exercised, notwithstanding Clause (3) of Article 311;
(x) in examining the relevance of reasons, the court will consider the situation, which led the disciplinary authority to conclude that it was not
reasonably practicable to hold the enquiry;
(xi) court should examine whether the reasons are relevant and in order to do that the court must put itself in place of the disciplinary authority and
consider what in the then prevailing situation a reasonable person acting reasonably would have done. Where two views are possible, the court will
decline to interfere;
when the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the
satisfaction is based on certain objective facts and is not the outcome of whim or caprice of the concerned officer.
Subjective satisfaction recorded in the order has to be fortified by any independent material to justify the dispensing with the enquiry envisaged by
Article 311(2) of the Constitution; and
that the appellate authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the
contentions raised by the concerned officer in the appeal.
43. The three conditions which are available for invoking powers vested u/s 311(2)(b) which may permit dispensation of regular departmental
enquiry are: firstly, where the person concerned has been convicted of a criminal charge which is not the case before us. The second exception is
where the authority is satisfied for some reason to be recorded by that authority in writing it is not reasonably practical to hold such enquiry which
seems to be the tenor of the order passed by the petitioners. The third exception is available in those cases where the President or the Governor is
satisfied that in the interest of security of the State it is not expedient to hold such an enquiry. This is also not the case of the petitioners in this case.
44. Now coming to the second exception, we are in agreement with the Tribunal that in the present case once the petitioners themselves have
resorted to holding a regular departmental enquiry in case of Assistant Engineers/ Joint Engineers numbering in hundreds for the same charges there
is no reason which comes out or has been culled out by the petitioners to justify dispensation of the enquiry in the case of the respondents who are
only part of the chain which may be ultimately held to be responsible for mushrooming of unauthorized construction in the State of Delhi. However
the question as to whether they are to be dismissed from service or some other punishment is to be imparted on them would require consideration
by the disciplinary authority but for that it would be necessity to consider the explanation as may be furnished by the respondents. Such procedure
cannot be ruled out, rather it would be necessary as observed by the Tribunal with which we also agree, more so because in this case the
respondents were not before this Court in the PIL as referred to above. The directions given by the PIL Bench in that case to dispense with the
enquiry by observing that principles of audi alteram partem may not be applicable against persons who are responsible in law to do a particular
thing but violates the law cannot be made applicable to the case of the respondents without even giving them a preliminary hearing to satisfy the
authority or to explain their role in booking sealing or ultimately demolishing the unauthorized construction which can only be done by a joint effort
of all concerned including senior officers such as Divisional Commissioners who are the ultimate persons responsible for carrying out the demolition
action.
45. After the judgment delivered by the Apex Court in the case of Tulsiram Patel (supra), three conditions mentioned in Sub-clause (6) to Rule 19
of the CCS (CCA) becomes relevant for invoking of Sub-clause (b) of the second proviso to Article 311(2);
(a) Where a civil servant, alone or together with his associates terrorizes, threatens or intimidates witnesses who are likely to give evidence against
him with fear or reprisal in order to prevent them from doing so; or
(b) Where the civil servant by himself or though others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members
of his family so that the officer is afraid to hold the enquiry or direct it to be held; or
(c) Where an atmosphere of violence or of general indiscipline and insubordination prevails at the time of the attempt to hold the enquiry is made.
46. None of the situations as aforesaid exist. We may notice here that the approach of the petitioner had been as if there was mandamus issued by
this Court to dispense with the services of the respondents by invoking provisions contained u/s 311(2)(b) of the Constitution of India and/or by
invoking provisions contained u/s 95(2)(b) of the MCD Act r/w Rule 9 of the Regulations framed thereunder. However, it is not so for the reason
that none of the orders passed in the PIL mandates the petitioners to dismiss the respondents without holding any enquiry as has been done in this
case. Moreover, Section 95(2)(b) of the MCD Act requires hearing before passing of any such order which has not been done in this case. In any
event, as argued by Learned Counsel appearing for the respondent, even if it is treated for the sake of argument that the orders passed by this
Court in the PIL were in the nature of mandamus, such mandamus was only to act in accordance with law, that is to say, if power was available
with the petitioners even to dismiss the services of the respondent without holding any enquiry, they were required to make out a case for passing
such orders in accordance with law. In the absence of making such a case, the petitioners were duty bound to proceed against the respondents
departmentally and after complying with the principles of natural justice. Needless to say that rule of audi alteram partem is one of the essential
rules for complying with the rules of natural justice. Even if it is presumed for the sake of argument that the directions of the PIL Bench permitted to
dispense with the enquiry, this could not have been dispensed with in respect to those persons who were not before the Court and were not given
any hearing at all.
47. As observed by the Apex Court the rule of audi alteram partem requires an opportunity of hearing to a person who is likely to be affected in a
decision to be taken by a disciplinary authority. He or she is certainly entitled to hearing may be only by issuance of a show cause notice even if the
situation is urgent. We can make reference to the case of K.I. Shephard and Others Vs. Union of India (UOI) and Others, .
48. It would be relevant to take note of para 13 of the judgment in this case, which reads as under:
13. Natural justice has various facets and acting fairly is one of them. RBI which monitored the three amalgamations was required to act fairly in
the facts of the case. The situation necessitated a participatory enquiry in regard to the excluded employees. Since the decision to exclude them
from service under the transferee banks is grounded upon a set of facts the correctness whereof they deny, if an opportunity to know the
allegations and to have their say had been afforded, they could have no grievance on this score. The action deprives them of their livelihood and
brings adverse civil consequences and could obviously not be taken on the ipse dixit of RBI officers without verification effects. It is quite possible
that a maneuvering officer of the banking company adversely disposed of towards a particular employee of such bank could make a report against
such employee and have him excluded from further service under the transferee bank. The possibility of exclusion on the basis of some mistake
such as to identity cannot also be ruled out. There is all the more apprehension of this type as the process has to be completed quickly and very
often the records of a large number of employees have to be scrutinised. We are of the view that rules of natural justice apply to administrative
action and in the instant cases the decision to exclude a section of the employees without complying with requirement of natural justice was bad.
49. An enquiry can be held even by issuing show cause notice and giving an opportunity to explain before taking a final view as to whether it is a
case where a regular department enquiry under Rule 14 of the CCS(CCA) Rules should be held or further enquiry be dispensed with. However
this also has not been done by the petitioners in this case.
50. While we are of the opinion that to dispense with the enquiry was wrong, we should not be understood as saying that the depth of the enquiry
should be equivalent to that of a trial before a criminal court. The least which could have been done was to initiate an enquiry by issuing a show
cause notice giving the employee opportunity to explain, though not necessarily to record all explanations that he gives. Thereafter the Disciplinary
Authority can form its own conclusion as to whether it would be in the interests of justice to prematurely terminate the services or take some other
action as may be thought proper.
51. Taking all these facts into consideration, we find ourselves in agreement with the conclusion reached by the Tribunal, though for somewhat
different reasons, as we have noted above, take exception to the directions of the Tribunal to grant respondents full back wages and continuity of
service.
52. At this juncture we may further like to observe that it is nobody�s case that mushroom growth of unauthorized construction certainly cannot
be appreciated. It is not even disputed by the respondents that officers of MCD including the respondents themselves are not blameworthy for
what has happened. Nobody can dispute the concern shown by this Court in Kalyan Sanstha�s case which was primarily to book the
responsible officers and directions were given to MCD to take action against those who are found guilty. It is also true that the procedure declared
by the respondents as per their office order dated 20.08.2001 read with relevant provisions of the MCD Act makes it impossible for a single
person to take all the actions as are required to be taken up but apparently the responsibility being the head of the Building Department in their
respective zones are persons who are certainly responsible for the unauthorized construction though they may have adequate explanation which
after consideration may compel the authorities either to relieve them of the charges which may be leveled against them or which may persuade to
take action such as dispensing with the enquiry if situation so warrants after hearing their explanation and after giving them a personal hearing or
may call for a regular departmental enquiry.
53. To that extent we leave it to the petitioner as to what kind of enquiry would be required to be held in the present case though we would
certainly like the petitioners to serve upon the respondents with a charge sheet; take into consideration their reply if any besides giving them a
personal hearing. It is thereafter by passing a detailed speaking order the petitioner would be free to pass appropriate orders either u/s 95(2)(b)
read with Section 311 of the Constitution of India if the situation so warrants or to hold a regular departmental enquiry or to pass under Rule 14 as
the case may be. We make it clear that the petitioners will not be bound by the observations made by the Tribunal or by us on merits with regard
to the nature of enquiry to be held in this case. However, the respondents would not be entitled to back wages for the period w.e.f. 07.04.2006 till
the pronouncement of this judgment, even though they would stand reinstated in service from 07.04.2006. In this regard, the respondents
themselves have given an undertaking in this Court as recorded in our order dated 26.08.2010.
54. We also make it clear that if needed, the petitioners would also be entitled to pass an order of deemed suspension w.e.f. 07.04.2006 till the
outcome of the enquiry as may be contemplated by them preferably to be over within a period of three months from today in view of the provisions
available under Rule 10(4) of the Fundamental Rules r/w Rule 54 thereof.
55. Since the factual controversy and the legal issues are common in all the writ petitions though we have discussed the order passed in the case of
S.L. Meena but the orders passed in the other cases have also been issued on similar facts, we dispose of the writ petitions with the directions as
above by this common order with no orders as to costs.
