Arun Kumar & Anr. vs Municipal Corporation Of Delhi

Aggrieved by the impugned order passed by the respondents dated 04.05.2023 wherein both the applicants have been placed under suspension, the applicants have filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-

The facts of the case, in brief, as indicated in the OA are that at the time of suspension the Applicant No. 1 i.e. Arun Kumar was designated SSA (DA Zone) with the responsibility of processing of the applications with respect to all leased/licensed/freehold municipal properties and other issues, including court cases in CLZ and Applicant No.2 i.e., Kuldeep Rana was designated SSA (RC Zone) with the task of assisting DA (CLZ).

On 24.03.2023 one Smt. Preeti Mendiratta and one Sh. Dhiraj Mendiratta had applied for mutation and conversion of Shop No.25, Edward Lines, Kingsway Camp, Delhi-110009 from leasehold to freehold. On receipt of the application, site inspection was carried out by the applicants on 12.04.2023 as per the office procedure and found that the structure of the shop was demolished and digging was done without informing the Nodal Agencies i.e. lessee. Photographs of site were duly taken by the applicants and in their inspection report the same along with the draft notice as to why the lease deed of the shop should not be cancelled on the ground of violation of covenant and conditions of the lease, was put up for approval of Additional Deputy Commissioner on 21.04.2023 as Assistant Commissioner was on leave.

On the basis of above, a show cause notice was also issued to them on 04.05.2023. However, on the same date i.e. 04.05.2023 the applicants were placed under suspension. It is contended by the applicants that they were given the responsibility of site inspection and enquiry only on 31.03.2023 and though as per the Scheme of Conversion from License to Leasehold & Leasehold to Freehold of commercial units, transferred from GOI (L&DO/DOE) to erstwhile MCD, an outer limit of 90 days is prescribed, the applicants lost no time to conduct the enquiry on 12.04.2023 itself and also submitted their report within stipulated time and yet they were placed under suspension in an arbitrary manner. The applicants through sources/colleagues came to know that Smt. Preeti Mendiratta and Sh. Dhiraj Mendiratta filed a complaint making allegation against the applicants that some money was demanded from them as bribe, which was the reason for their suspension.

It is also contended that checking of unauthorised construction is not within the purview of the applicants as Delhi Municipal Corporation Act 1957 now Occupation Building Regulations (Section 330A to 349A) and Section 332 stipulates that no person shall erect or commence to erect any building or execute any of the work specified in Section 334 except with the previous sanction of the Commissioner.

The arguing counsel, thereafter, draws attention to the Amended Manual of Instructions on Unauthorized Construction under caption “Delegation of powers to officials of Municipal Corporation of Delhi to control the building activities” clearly states that a separate department is there in each zone to control the building activities in the jurisdiction of that particular zone which is known as 'Building Department' and headed by an officer of the rank of Executive Engineer. At headquarter level also there is separate department to control the building activities. Based on the above submissions, learned counsel for the applicants avers that the applicants were not responsible for preventing any illegal construction which is the mandate of Building Department. It is also submitted that the role of Land and Estate Department is limited to upholding the terms and conditions of the lease and does not include enforcement of Building bye Laws which is under the purview of Zonal DC. Support is drawn from letter dated 23.07.2023, stated to have been sent by Administrative Officer, Land & Estate Department to the Executive Engineer (Building), which affirms the above position.

Opposing the claim made in the counter by the respondents, learned counsel for the applicants also states that there was no delay in submitting the report as the offices were closed three days in a row due to Ambedkar Jyanti (14th April), Saturday and Sunday (15th & 16th April) and thus report was submitted immediately after opening of the office. Moreover, the applicants were not responsible for stopping the demolition which was the responsibility of Building Department. It is reiterated that in fact it was on the basis of the photographs taken and the inspection report, show cause notice for violation of covenant and conditions of the lease was issued to the concerned persons.

The learned counsel for the respondents, on the other hand, submits that since the applicants failed in their duty as much as they did not carry out regular inspection of the site resulting in violation of the terms and conditions of the lease, and only belatedly inspected and submitted the report to the senior officer vide report dated 18.04.2023, action was taken against them by placing them under suspension, pending major departmental proceedings. It is also submitted that case of suspension of the applicants was placed before the Suspension Review Committee and the said committee vide order dated 07.07.2023 recommended to continue the suspension of the applicants. It was also recommended that they shall continue to draw subsistence allowance as per relevant rules. It is contended that the charge sheet has been issued to the applicants and the competent authority has appointed the Inquiry Officer (IO) and Presenting Officer (PO) vide order dated 13.09.2023 for conducting departmental inquiry against the applicants and therefore intervention of the Tribunal at this stage is not called for.

To start with I have perused the statements of charges against the applicants issued dated 07.08.2023 which reads as follows:

Reading of the above indicates that the two fold charges against the applicants are that they failed to carry out the regular inspection of the area under their control to check and stop the demolition being carried out in Shop No.25, Edward Lines, Kingsway Camp at the initial ongoing stage and they only belatedly inspected and submitted report on 18.04.2023.

I have heard both the parties and also perused the pleadings on record, including the counter reply and rejoinder. We have also perused the statement based on which charges have been framed.

One of the grounds taken by the applicants for quashing the impugned order, besides violation of principles of natural justice and other grounds, is also that there was an alleged complaint by Smt. Preeti Mendiratta and Sh. Dhiraj Mendiratta about the applicants asking for bribe, which led to suspension of applicants. However, neither in the counter reply nor in the submissions made by the learned counsel for the respondents during the argument, there is any such imputation to suggest that the suspension order was passed in the light of above alleged misconduct.

The undisputed facts are that the applicants were given the responsibility to conduct certain inquiry about conversion proposal from leasehold to freehold and the same was conducted on 12.04.2023. This is not in doubt that based on their report a show cause for violation of the condition of the lease was issued. The charge against the applicants, besides delay in submission of inspection report is also about the failure of the applicants to carry out inspection of the area under their jurisdiction, to check and stop the demolition being carried out at Shop No.25, Edward Lines, Kingsway Camp at the initial ongoing stage. The learned counsel for the applicants has argued that this was not within the area of responsibility assigned to Land and Estate Department of which the applicants were a part and the main responsibility was that of the Building Department.

In support of their claim, the applicants have cited a letter dated 23.07.2023 issued by the Administrative Officer Land & Estate Department addressed to Executive Engineer (Building) which reads as follows:

A close reading of the above, indicates that the Land & Estate Department is responsible for enforcement of the conditions of lease and in the instant case there has been a violation of the lease terms, in as much as same structures were demolished unauthorisedly and as mentioned above, in fact one of the charges against the applicants is that regular inspection to be carried out by the applicants who belong to Land & Estate Department was apparently not done in the instant case.

However, I consider that this is not the occasion for the Tribunal to go into the allegation of any act of omission or commission by the applicants or even to deal with merit of the act of suspension or otherwise. It is an established principle of service jurisprudence that a public servant may be suspended as a mode of punishment or he may be suspended during the pendency of an enquiry against him if the order appointing him, or the statutory provisions governing his service, provide for such suspension. He may merely be forbidden from discharging his duties during the pendency of an enquiry against him which act is also called suspension.

Suspension in the present case is an interim order pending enquiry which has been passed in aid to the ultimate result of the investigation or enquiry. The power of suspension should, however, not be exercised in an arbitrary manner and without any reasonable ground or as a vindictive misuse of power. A suspension order cannot be actuated by mala fides, arbitrariness, or be passed for an ulterior purpose. However, the employee should or should not continue in office during the period of inquiry, is a matter to be assessed by the concerned authority.

Bearing these broad principles in mind, in the instant case, we find that the suspension order was passed dated04.05.2023 and charge memo dated 07.08.2023 has also been issued and IO and PO have since been appointed.

In the case of Khem Chand vs. Union of India and Others AIR 1958 SCC 300, the Constitution Bench of the Hon'ble Supreme Court held that suspension of a Government servant pending enquiry is a necessary part of the procedure for taking disciplinary action against him; and such action is necessary in the interest of the general public for serving whose interests the government machinery exists and functions.

Suspending an employee therefore, from performing the duties of his office, is implied term in every contract of employment; when an employee is suspended in this sense, it means that the employer merely issues a direction to him that he should not do the service required of him during a particular period.

Thus the employee should or should not continue in their office during the period of inquiry is a matter to be assessed by the concerned authority. Ordinarily, the Court should not interfere with the orders of suspension unless they are malafide and without there being even prima facie evidence on record connecting the employee with the misconduct in question.

In the instant case, at this stage, I do not find that the order of suspension was passed, out of any malice or a prima facie evidence on record connecting the employee with the misconduct is non-existent. Moreover, as evident from the counter reply, the applicants' case of suspension has been reviewed regularly and they have also been granted subsistence allowance as per rules. I also hold that it is not necessary to go into the merit and record any finding on the charge leveled against the charged officers since any observation would gravely prejudice the case of either side. Therefore, I desist from expressing any view on the merit of the case though the related contentions raised by the learned counsels on either side have been recorded for the sake of clarity.

In view of above, I do not find any justification in quashing the order of suspension and see no reason to interfere with the impugned orders at the threshold. At the most, the disciplinary authority can be directed to take necessary steps to ensure that the disciplinary proceedings are concluded expeditiously, which I do.

The O.A. is disposed of in the above terms accordingly. No order as to costs.