Murli Singh Vs. Delhi Development Authority and ors. - Court Judgment

Excerpt:
a) the case dealt with the validity of recording the reasons mentioned in the counter affidavit - it was held that the statutory authority could not seek to sustain the order by giving the reasons mentioned in the counter affidavit, while exercising the powers under the provisions of regulation 19 of the delhi development authority (salaries, allowances and conditions of services) regulations, 1961b) the case dealt with the order of the chairman of the delhi development authority (dda) in terminating the petitioner under regulation 19 of the delhi development authority (salaries, allowances and conditions of services) regulations, 1961 - the petitioner was dismissed without service of notice and on the allegations that the certain encroachment on the dda land was made in his complicity - it was held that the order of termination could not be sustained, as it was made in violation of principles of natural justice under article 14 and 16 of the constitution of india - thus the order of termination was set aside and the petitioner was directed to be reinstated with full back wages and consequential benefits - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - he was discharged from army service on 28.2.1971. he had been having good record of service in army. or (ii) where the disciplinary authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules, the discipli- nary authority may consider the circumstances of the case and pass such orders thereon as it deems fit. bains, vice-chairman, dda am satisfied that action for imposition of one of the penalties specified under regulation 14 of dda (salaries, allowances, and conditions of service) regulation 1961 be taken against shri murli singh, naib tehsildar. bains, vice-chairman, am satisfied that it would not be reliable to conduct enquiry against shri murli singh, naib tehsildar under regulation 16, 17 and 18 of the dda (salaries, allowances and conditions of service) regulation, 1961 as the persons whose structure have been demolished will not be available for deposition in writing and during the course of inquiry against shri murli singh, naib tehsildar, as they have gone to different places after operation of demolition. ' 6. in my view, having regard to the well settled principles on the principles of natural justice, the order cannot at all be sustained. 7. when a public authority like the dda is to deal with encroachments necessary records have to be maintained and the fact of encroachment or the removal thereof cannot depend upon the act of omission or commission on the part of officials like the petitioner who is almost in the lowest rungs of the ladder of service. however, where the disciplinary authority is satisfied for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in the said rules, the disciplinary authority may consider the circumstances of the case and pass such orders as it deems fit. in this instant case, since the persons who had made the complaint that the unautho- rised construction/ encroachment were being made with the connivance of shri murli singh after the demolition of their structure had gone to different places and were not traceable and it was not possible for them to give evidence in writing or orally, thereforee, it was decided by the disciplinary authority to invoke regulation 19(2) of the dda (salaries, allowances and conditions of service) regulation, 1961 and shri murli singh was removed from the services of the authority by order dated 5.8.1989.'8. it is well settled that a statutory authority while exercising power under regulation 19 cannot seek to sustain the order by giving reason in the counter affidavit.orderk. ramamoorthy, j.1. the petitioner has challenged in this writ petition the order of removal passed by the vice chairman of the d.d.a. removing the petitioner from service under regulation 19 of d.d.a. (salaries, allowances and condi-tions of service) regulations, 1961.2. before i deal with the point that has arisen for consideration, the facts that are necessary can be noticed very briefly. the petitioner was enrolled as a clerk in army ordinance at aoc centre, sikandrabad, ap-15 on or about 6th jan., 1964. he was transferred to 17 vehicle battalion delhi cant. 10 on or about 25th september, 1965. on 15.7.1967 he was appointed as store clerk and posted at chakrotra dehradun. sometime later, he was posted in 26 infantory division ordinance, field dark nagrota, jammu. he was discharged from army service on 28.2.1971. he had been having good record of service in army. on 22.2.1972 the petitioner was offered a temporary post of patwari in d.d.a. by order dated 13.4.1978 the petitioner and other employees similarly situated were declared as quasi permanent. on 7.8.1980 the petitioner along with others was appointed officiator kannongo. on 21.4.1986 the petitioner along with other employees similarly situated appointed to officiate as naib tehsildar. on 5.8.1989 the impugned order was passed. on 5.10.1989 the petitioner preferred an appeal to the appel-late authority. on 13.5.1990 the appellate authority dismissed the appeal. on 23.7.1990 the writ petition was presented in this court.3. that the case of the petitioner is that regulation 19 is void in law and it is ultra-vires and it infringes the fundamental rights of the petitioner and articles 14 and 16 of the constitution of india. the second point raised by the petitioner is that no notice was given before the order was passed and the finding is not supported by any evidence on record and, thereforee, the order is vitiated.4. regulation 19 of dda (salaries, allowances and conditions of service) regulation 1961, reads as under :-'special procedure in certain cases. notwithstanding anything contained in regulation 16, 17 and 18. (i) where a penalty is imposed on an officer or employee on the ground of conduct which has led to his conviction on a criminal charge; or (ii) where the disciplinary authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules, the discipli- nary authority may consider the circumstances of the case and pass such orders thereon as it deems fit.' it is not necessary to go into the first point relating the validity to the rule.5. the power may be given to the vice-chairman under regulation 19 but in exercising the power the vice-chairman ought to have given notice to the petitioner and the regulation does not say that the order of removal could be made without giving any notice to the petitioner. the order passed by the vice-chairman on 5.8.1989 reads as under :-'whereas large scale encroachment on dda's land existed in revenue estate of village jashola which was demolished on 14th july, 1989 and again on 17th july, 1989. this area form part of the south east zone for which shri murli singh, naib tehsildar was incharge. during the course of demolition it was found that these encroachments on dda land in this village had taken place in complicity of shri murli singh, naib tehsildar. and whereas, i, k.s. bains, vice-chairman, dda am satisfied that action for imposition of one of the penalties specified under regulation 14 of dda (salaries, allowances, and conditions of service) regulation 1961 be taken against shri murli singh, naib tehsildar. and whereas, i, k.s. bains, vice-chairman, am satisfied that it would not be reliable to conduct enquiry against shri murli singh, naib tehsildar under regulation 16, 17 and 18 of the dda (salaries, allowances and conditions of service) regulation, 1961 as the persons whose structure have been demolished will not be available for deposition in writing and during the course of inquiry against shri murli singh, naib tehsildar, as they have gone to different places after operation of demolition. and whereas, i, k.s. bains, vice-chairman, dda being the compe- tent authority have gone to the definite conclusion that proce- dure as laid down under regulation 19(2) of dda (salaries, allowances, & conditions of service) regulation 1961 be invoked in this case in the public interest. thereforee, i, k.s. bains, vice chairman, dda do hereby order for removal of shri murli singh, naib tehsildar, from service of dda with immediate effect.' 6. in my view, having regard to the well settled principles on the principles of natural justice, the order cannot at all be sustained. the order is liable to be set aside.7. when a public authority like the dda is to deal with encroachments necessary records have to be maintained and the fact of encroachment or the removal thereof cannot depend upon the act of omission or commission on the part of officials like the petitioner who is almost in the lowest rungs of the ladder of service. in the impugned order it is stated that the encroachments on land had taken place in complicity of the petitioner. there is absolutely nothing on record to substantiate its finding. the petitioner was not given any notice to explain the situation. in the counter, it is stated :-'in reply to para 2, it may be stated that it is admitted that normally before imposing a major penalty, an enquiry must be held. however, where the disciplinary authority is satisfied for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in the said rules, the disciplinary authority may consider the circumstances of the case and pass such orders as it deems fit. in this instant case, since the persons who had made the complaint that the unautho- rised construction/ encroachment were being made with the connivance of shri murli singh after the demolition of their structure had gone to different places and were not traceable and it was not possible for them to give evidence in writing or orally, thereforee, it was decided by the disciplinary authority to invoke regulation 19(2) of the dda (salaries, allowances and conditions of service) regulation, 1961 and shri murli singh was removed from the services of the authority by order dated 5.8.1989.'8. it is well settled that a statutory authority while exercising power under regulation 19 cannot seek to sustain the order by giving reason in the counter affidavit. the factum laid down by the supreme court in mohin-der singh gill & another vs . chief election commissioner, new delhi & others, : [1978]2scr272 on this aspect is very clear. the order cannot at all be sustained. accordingly, it is set aside. the petitioner shall be reinstated in service with back wages and consequential benefits.9. the writ petition stands allowed. there shall be no order as to costs.

Judgment:
ORDER

K. Ramamoorthy, J.

1. The petitioner has challenged in this writ petition the order of removal passed by the Vice Chairman of the D.D.A. removing the petitioner from service under Regulation 19 of D.D.A. (Salaries, Allowances and Condi-tions of Service) Regulations, 1961.

2. Before I deal with the point that has arisen for consideration, the facts that are necessary can be noticed very briefly. The petitioner was enrolled as a clerk in Army Ordinance at AOC Centre, Sikandrabad, AP-15 on or about 6th Jan., 1964. He was transferred to 17 Vehicle Battalion Delhi Cant. 10 on or about 25th September, 1965. On 15.7.1967 he was appointed as Store Clerk and posted at Chakrotra Dehradun. Sometime later, he was posted in 26 Infantory Division Ordinance, Field Dark Nagrota, Jammu. He was discharged from army service on 28.2.1971. He had been having good record of service in Army. On 22.2.1972 the petitioner was offered a temporary post of Patwari in D.D.A. By order dated 13.4.1978 the petitioner and other employees similarly situated were declared as quasi permanent. On 7.8.1980 the petitioner along with others was appointed officiator Kannongo. On 21.4.1986 the petitioner along with other employees similarly situated appointed to officiate as Naib Tehsildar. On 5.8.1989 the impugned order was passed. On 5.10.1989 the petitioner preferred an appeal to the Appel-late Authority. On 13.5.1990 the Appellate Authority dismissed the appeal. On 23.7.1990 the writ petition was presented in this Court.

3. That the case of the petitioner is that Regulation 19 is void in law and it is ultra-vires and it infringes the fundamental rights of the petitioner and Articles 14 and 16 of the Constitution of India. The second point raised by the petitioner is that no notice was given before the order was passed and the finding is not supported by any evidence on record and, thereforee, the order is vitiated.

4. Regulation 19 of DDA (Salaries, Allowances and Conditions of Service) Regulation 1961, reads as under :-

'Special procedure in certain cases. Notwithstanding anything contained in regulation 16, 17 and 18.

(i) Where a penalty is imposed on an officer or employee on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) Where the disciplinary authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules, the discipli- nary authority may consider the circumstances of the case and pass such orders thereon as it deems fit.'

It is not necessary to go into the first point relating the validity to the rule.

5. The power may be given to the Vice-Chairman under Regulation 19 but in exercising the power the Vice-Chairman ought to have given notice to the petitioner and the Regulation does not say that the order of removal could be made without giving any notice to the petitioner. The order passed by the Vice-Chairman on 5.8.1989 reads as under :-

'Whereas large scale encroachment on DDA's land existed in revenue estate of Village Jashola which was demolished on 14th July, 1989 and again on 17th July, 1989. This area form part of the South East Zone for which Shri Murli Singh, Naib Tehsildar was incharge. During the course of demolition it was found that these encroachments on DDA land in this village had taken place in complicity of Shri Murli Singh, Naib Tehsildar.

And Whereas, I, K.S. Bains, Vice-Chairman, DDA am satisfied that action for imposition of one of the penalties specified under Regulation 14 of DDA (Salaries, Allowances, and Conditions of Service) Regulation 1961 be taken against Shri Murli Singh, Naib Tehsildar.

And Whereas, I, K.S. Bains, Vice-Chairman, am satisfied that it would not be reliable to conduct enquiry against Shri Murli Singh, Naib Tehsildar under Regulation 16, 17 and 18 of the DDA (Salaries, Allowances and Conditions of Service) Regulation, 1961 as the persons whose structure have been demolished will not be available for deposition in writing and during the course of inquiry against Shri Murli Singh, Naib Tehsildar, as they have gone to different places after operation of demolition.

And Whereas, I, K.S. Bains, Vice-Chairman, DDA being the compe- tent authority have gone to the definite conclusion that proce- dure as laid down under Regulation 19(2) of DDA (Salaries, Allowances, & Conditions of Service) Regulation 1961 be invoked in this case in the public interest.

thereforee, I, K.S. Bains, Vice Chairman, DDA do hereby order for removal of Shri Murli Singh, Naib Tehsildar, from service of DDA with immediate effect.'

6. In my view, having regard to the well settled principles on the principles of natural justice, the order cannot at all be sustained. The order is liable to be set aside.

7. When a public authority like the DDA is to deal with encroachments necessary records have to be maintained and the fact of encroachment or the removal thereof cannot depend upon the act of omission or commission on the part of officials like the petitioner who is almost in the lowest rungs of the ladder of service. In the impugned order it is stated that the encroachments on land had taken place in complicity of the petitioner. There is absolutely nothing on record to substantiate its finding. The petitioner was not given any notice to explain the situation. In the counter, it is stated :-

'In reply to para 2, it may be stated that it is admitted that normally before imposing a major penalty, an enquiry must be held. However, where the disciplinary authority is satisfied for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in the said rules, the disciplinary authority may consider the circumstances of the case and pass such orders as it deems fit. In this instant case, since the persons who had made the complaint that the unautho- rised construction/ encroachment were being made with the connivance of Shri Murli Singh after the demolition of their structure had gone to different places and were not traceable and it was not possible for them to give evidence in writing or orally, thereforee, it was decided by the disciplinary authority to invoke Regulation 19(2) of the DDA (Salaries, Allowances and Conditions of Service) Regulation, 1961 and Shri Murli Singh was removed from the services of the Authority by order dated 5.8.1989.'

8. It is well settled that a statutory authority while exercising power under Regulation 19 cannot seek to sustain the order by giving reason in the counter affidavit. The factum laid down by the Supreme Court in Mohin-der Singh Gill & Another Vs . Chief Election Commissioner, New Delhi & Others, : [1978]2SCR272 on this aspect is very clear. The order cannot at all be sustained. Accordingly, it is set aside. The petitioner shall be reinstated in service with back wages and consequential benefits.

9. The writ petition stands allowed. There shall be no order as to costs.