Judgment:
1. By order dated 28.09.2007, the Delhi High Court, had transferred, among others, CWP No. 1023 of 1991, to be heard and disposed of by this Tribunal consequent to Notification dated 25.07.2007. The applicant, S.C. Jain, through the said writ petition, had challenged disciplinary proceedings taken against him, and especially the order of removal, Annexure `H' as also the appellate order, Annexure `J'. The articles of charges (Annexure A-1) and the disciplinary proceedings as a whole were subjected to challenge. He had been removed from service, and no interim orders had been passed in the Writ Petition.
2. The applicant was an Assistant Engineer working in the Delhi Development Authority, first respondent. The Vice Chairman, Delhi Development Authority is the second respondent. The applicant had died, during the course of the Writ Petition, on 27.12.2002 and the legal representatives had got themselves impleaded to the proceedings.
3. As an Assistant Engineer, the deceased officer, had been during 1974-76, attached to the Hastsal Water Tank project. The work originally had been awarded to a Contractor Kripa Ram & Sons. For some reason, the Contractor had stopped the work mid way in May, 1976. The project was not pursued thereafter for a long period and the Assistant Engineer had been transferred to another Division the same year. It is seen that the work was resumed thereafter, only a few years later, and it had been completed in February, 1981. The water tank put up, had been inaugurated by the Lt. Governor, on 12.02.1981. It had only a brief life, as on 28.03.1981 the tank had collapsed resulting in loss of human life. It is on record that from August, 1980 onwards, the execution of the work was under one M.P. Garg, a contractor, who had come over to the job on a work order basis. It is also evident that after May, 1976, the applicant had no connection with the work at any point of time.
4. It has come out through records that an Inquiry Committee had looked into the matter to assess the situation available and later on Annexure A-1 charge-sheet dated 13.08.1981 had been issued. The first article of charge as against him was that while working as Assistant Engineer from 2/74 to 28.05.1976, he had failed to exercise proper supervision over the construction of overhead tank at Hastsal and allowed use of sub-standard material thereby causing weakness in the shaft, which resulted in the collapse of the tank on 28.03.1981. The second article of charge was that he had during the aforesaid period accepted/recommended for payment of sub-standard works involving deviations beyond permissible limits, and had failed to maintain absolute integrity and devotion to duty.
5. It is also relevant to note that the Executive Engineer, in-Charge of the work Shri S.C. Gupta, and the Junior Engineer Shri R.C. Kaushal were also issued with identical charges. In exercise of the powers conferred on him, the second respondent had directed that a joint enquiry would be held against them by the Additional Chief Engineer, DDA Mr. K.B. Rajoria.
6. After such orders dated 11.02.1983, it is evident that inquiry had commenced and ultimately a report had come to be submitted by the Chief Engineer on 28.10.1985 (Annexure `G'). In his conclusions, the inquiry officer found that the charges cannot be taken as proved against the three charged officers. It may be relevant that after the collapse of the tank, a High Power Committee had engaged itself to inquire into the attendant circumstances, collected materials, and had formulated a report. Heavy reliance was attempted by the prosecution on such report as well. The inquiry officer had recorded his opinion, in the following manner: 4.1 The conclusions of the inquiry committee report were based on the fact that the samples of the concrete were taken in the proper manner and tested. Similarly the Inquiry report was also based on the factual information with regard to work done by different agencies as supplied to them. As analysed, the committee report gave its conclusions on the basis of test results, which were not for the authentic and proper samples. Thus, the test results as computed by Enquiry committee cannot be considered reliable to derive conclusions.
4.2 For variations in the quality of the concrete, no documentary or scientific evidences could be produced. Besides the committee while commenting on the fact regarding variation of the concrete, did not have this fact in their consideration that certain works such as cutting of the holes, cutting of the reinforcement, fixing of the ladders etc. were got done in the shaft later on while executing the balance work. Thus, the visual observations cannot be considered as a conclusive proof to sustain the charges unless the same was supported by the scientific and authentic results.
4.3 It is a matter of regret that even when the tank was failed and the committee has given its report, the charges cannot be proved on account of lack of proper evidences to sustain the charges. The tests were conducted through officers who were in-charge of the balance work and that too, without observing any scientific method for collection of the samples, transportation of the samples, their sealing, their submissions etc. Besides, certain facts remained hidden from the Enquiry Committee. The most important of being the tank was tested after filling water and paid for. The committee members were also not aware of the fact that the holes were made, reinforcement was cut and ladder was provided in the shaft. On the other hand, of course, the charged officers have also not been able to prove that the structure collapsed on account of various reasons, such as flooding of the area, salt-petre action, foundation failure etc.
In view of the lack of evidence, according to him, the charge cannot be taken as proved against the three charged officers.
7. Eighteen months thereafter, on 3/6.5.1987, the Vice Chairman had addressed a Notice to the applicant (Annexure `H') indicating that as the disciplinary authority, he found it necessary to disagree with the findings of the enquiry officer. According to him, he had provisionally arrived at a conclusion that the charge proved against the Assistant Engineer warranted imposition of a penalty of removal from service. By the letter, applicant had been given opportunity to make representation against the penalty proposed. A copy of the enquiry report, as well as the disagreement note also were forwarded. In deference to the above, it seems that a representation had been submitted which runs to 23 pages. By order dated 05.01.1989 Annexure `J' penalty as proposed had been advised.
8. Although initially placed under suspension in May, 1981, the officer had been reinstated on 14.05.1985. The removal order had been given effect promptly. The applicant had filed CWP 2251/1990. His departmental appeal had been directed to be disposed of. After the above, CWP 1023/01 incorporating comprehensive attack, was filed.
9. Learned Counsel on behalf of the applicant had although referred to the plea urged in respect of the jurisdictional errors, as well as the incompetence of the authorities to take action, however, did not pursue the above, perhaps taking notice of the circumstance that the Parliament had passed Delhi Development Authority (Validation of Disciplinary Powers) Act, 1998, which had the effect of validating the disciplinary actions taken by the Vice Chairman of the DDA during the period from 22.11.1979 to 01.03.1994. He had principally referred to the arbitrary manner, in which the disciplinary authority had thrown the report overboard, notwithstanding specific observations made by the inquiry officer giving reasons for his findings. Counsel submits that the findings as arrived at by the disciplinary authority could have been characterized only as perverse and one sided. It was also suggested that ignoring the report of the inquiry officer, he had permitted himself to be guided by external authorities (Chief Vigilance Commissioner). He had been given freedom to comment not only about the findings of E.O., but also was to suggest about the penalty that was to be imposed on the officers concerned. The disciplinary authority had no residuary powers to draw inspiration from outside. It was also irregular, counsel submits, on the part of disciplinary authority that the applicant was directed to make submissions about the penalty advice alone, and not upon the disagreement note.
10. It had been submitted, that written arguments could be filed by counsel for respondents. These have been duly received. A perusal of the same show that advertence is made to the jurisdictional powers for initiating proceedings and imposition of the penalty, inviting attention to the Validation Act of 1998. It is further submitted that there was no prejudice caused to the applicant because of the intervention of the Chief Vigilance Commissioner. It is also submitted that in matters of disciplinary proceedings, Tribunal is not expected to act as an appellate authority and if it is found that there were specific aspects to be further looked into, the matter was liable to be remitted for reconsideration, taking note the observations of the Supreme Court on the subject. In his written note, counsel for applicants had recorded that he is not pressing arguments on the jurisdictional defects any more.
11. At page 201 of the paper book, Office Memorandum issued by the Chief Vigilance Commissioner is placed as Annexure `N'. It is dated 01.08.1986. The subject is shown as departmental inquiry against the three officers and reference is made to the letter of the DDA dated 08.04.1986.
12. Going by the dates, it could be gathered that a letter has been written by the DDA to the CVC enclosing a copy of the report of the inquiry officer. It has been observed by the CVC, duly, as following: Commission does not find itself in agreement with the findings of the Inquiry Officer.
13. After discussions, report is concluded by observing that the charged officer had accepted substandard (materials), which resulted in the collapse of the tank within a period of one and a half months of its commissioning leading to the death of one person, and injuries to many people. It had been added on that the Commission would advise major penalty of removal on all the Engineers involved.
14. What we find from the disagreement note of the second respondent is that he has practically reproduced the observations of the CVC under his signature, presenting them as his objections to the findings of the Inquiry Officer. This is difficult to be countenanced. Of course, the 1999 Regulations, in detail provides for the disciplinary authority's procedure for such exercises, but the old rules were practically silent on such matters. Even if it is presumed that disciplinary authority could have drawn guidance from whatever sources he found inspiration, if a disagreement note was contemplated, it should have been thorough and complete in itself. Authority ought to have dealt with the twilight areas specifically referred to by the enquiry officer requiring enlightenment. That does not appear to be the case here. Enquiry files are shelved; surmises are given precedence.
15. A disciplinary authority is entitled to hold an inquiry by himself or to arrange an inquiry to be held by a person nominated by him. Of course, he is also entitled to disagree with the findings of the officer and record his findings on the basis of the materials that is collected in the inquiry. But that does not appear to have been borne in mind. Straightaway he had come to a decision that in the nature of the charges, a penalty of removal was being advised. He had dealt with only one aspect which had been highlighted by the CVC viz. that with reference to discrepancy of analysis of samples taken for examination.
But evidently he had overlooked the more serious lapses that had been commented on and highlighted by the inquiry officer, namely, that the fact finding inquiry had been conducted by persons without full details, laboratory analysis had been carried out at the instance of officers who were in charge of the work themselves after the year 1980, and who might have made every effort to save their own skins. This assumes importance since the prosecution was heavily relying on the Committee's report to suggest that the officer was guilty of the lapses. There was no comment forthcoming from the disciplinary authority about the circumstances highlighted by enquiry officer that works of cutting of holes, breaking of reinforcement, fixing of ladders, etc. done to the shaft during the subsequent procedure were practically hidden from the purview of the Committee by the officers concerned. The tests were also arranged through officers who were in charge of completing the balance work. Without observing any scientific method for collection of the samples, transportation, sealing, etc. the laboratory tests were carried out. The suggestion was that there was opportunity to plant evidence. The inquiry officer had not in so many words found that there might have been a conspiracy. The samples were never taken in the presence of the delinquents who were at the dock.
Hardly any direct evidence had come, to show that there was any shortfall as directly arising out of the conduct of personnel, who were in charge of the work during 1975-76, or to suggest that they were lethargic. These were the prime factors to be established in the proceedings. The failure was, therefore, fatal.
16. A disciplinary authority has no unqualified discretion to ignore serious omissions, which have been pinpointed out by the inquiry officer. Nor has he absolute discretion to rely on the probabilities that were suggested by the CVC. On the allegations raised, there should have been convincing evidence to show that the collapse of the tank, was because of the omission of supervision by the applicant alone and not for any other reasons. A lethargic or halfhearted attempt could not have been sufficient to establish a charge even in a domestic inquiry.
Relaxed standards could not have gone below a reasonable level. Of course, the Lt. Governor as well as Vice Chairman would have been unhappy that within a month of inauguration a huge water tank had come down, and in the process, an individual had died. But that is no reason for applying yardsticks, which are inaccurate to pin down guilt on individuals, who had associated themselves in the process.
17. Again to highlight the contentions, the disciplinary authority had not referred to a circumstance where it was evident that a concrete structure was lying abandoned for about five years. Work was re-started by a non-qualified contractor all of a sudden. As many as thirty holes had been drilled on the shaft, and its impact had been overlooked, although the E.O. had found the circumstance as highly relevant. A ladder had been fixed. These possibly could have been real reasons for collapse but the inquiry report has been sidelined to the convenience of some of those, who too were involved.
18. In the matter of structural soundness, it is well settled that more than one element have active roles. Heavy reliance is placed on a circumstance that some of the debris of the shaft on examination were found as not having sufficient and acceptable content of cement and sand. However, there was no conclusive evidence to show that this was the single factor, even if it be accepted that the tested piece was from the shaft itself. A concrete structure is a synthetic conglomerate. Cement, which is a binder with water, binds the aggregates. The defect can be anywhere, viz in the ingredients, processing or curing. The design of a structure also is important, especially a water tank, which is expected to hold a heavy load throughout its lifetime. A defective design would have brought the tank down at some point of time. With scanty materials, the attempt of the prosecution was to establish a factum, which a technical officer, in the form of an inquiry officer, was not prepared to swallow. Rightly he was critical. We are of the view that the disciplinary authority has bungled the issue, by arriving at a finding, which is perverse and not acceptable and which has too many loose ends. In the circumstances, we have to hold that the penalty advice was not proper or warranted.
19. We are told that in spite of the advice of the Vigilance Commissioner, the two other persons identically charged along with the applicant in the writ petition, had gone unscathed. There was only bar of increments for the Executive Engineer. Junior Engineer although had been imposed with a penalty of removal, had because of the interim orders passed in the writ petition filed by him, completed his tenure, had received promotions and had retired honourably. For alleged lapse of the year 1975-76, proceedings were initiated against the applicant only in 1983, and his career has been wrecked by orders passed in 1991.
We do not think it was justifiable.
20. It may not be possible for us to accept the submissions made on behalf of the respondents that in the disciplinary proceedings, most often we have to keep our hands off, if there is sufficient material to show that legal formalities have been duly complied with. In proper findings, lies the essence of inquiry. When there was no sufficient or convincing material, a person could not have been held as guilty. It may not be also at this point possible to take note of the contention of the respondents that the proceedings are to be permitted to be continued de novo because nothing ultimately is likely to come out from such proceedings at this point of time.
21. By way of reliefs, the officer concerned require to be compensated and now the legal representatives. There is nothing to indicate as to what would have been his normal date of superannuation. We direct that it should be deemed by respondents that the deceased officer was continuing in service till the date of his superannuation uninterruptedly, including the period during which he was under suspension (May 1981 to 14.05.1985). His salary has to be appropriately fixed notionally as on the date of his normal date of retirement. From the next date of his normal date of retirement, he will be deemed as entitled to fully eligible pension, and gratuity, as if he was drawing salary and earning increments all through out and, of course, from the date of eligibility family pension benefits as became due.
22. From the date of removal till the date of his notional date of retirement, the respondents are to pay the legal representatives arrears of pay, the officer would have drawn, of course, to be calculated at the rate of 50% of his admissible notional pay and dearness allowance. However, in the matter of provident fund, since full back wages are denied, he will not be entitled to anything more than what is legally and factually available in his credit. No other benefits also would be payable.
23. If the date of death was before his date of actual superannuation from Government service, his dependents will be entitled to all the sums arrived on the basis of the observations made above, including family pension as per rules.
24. The O.A. is allowed in the above terms. The benefits are to be calculated and appropriate orders are to be drawn up within a maximum period of three months from today. Parties are to suffer their own costs.