Shri Suresh Kumar Vs Municipal Corporation of Delhi

The present writ petition is filed against the order dated 18.11.2022 (hereafter ‘ impugned order ’) passed by the learned Central Administrative Tribunal in C.P. No. 266/2021 in O.A. No. 2978/2019 whereby the learned Tribunal closed the contempt proceedings and discharged the contemnors.

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Succinctly stated, the material facts germane to the adjudication of the present petition are as follows:

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2.1. The Petitioner was appointed on the post of vaccinator with the Respondent in the year 1990. Subsequently, in the year 1999, the

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Petitioner was posted as a Vaccination Inspector/Public Health Inspector. The Post of Chief Public Health Inspector, as claimed by the Petitioner, lay vacant from the year 2002.

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2.2. The Petitioner, after climbing up the list of seniority, made a representation to the Respondent on 04.07.2007 to take necessary steps to fill up the three vacant posts of Chief Vaccinating Inspectors and to consider him for the said post. Thereafter, several representations were made by the Petitioner to the Respondent in this regard, and the last representation was made on 04.07.2019. By representation dated 04.07.2019, the Petitioner sought promotion to the vacant post of Chief Vaccinating Inspector/Chief Public Health Inspector given that he was the senior most Vaccinating Inspector.

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2.3. However, aggrieved by the inaction of the Respondent, the Petitioner filed O.A. No. 2978/2019 before the learned Tribunal seeking a direction to the Respondent to take necessary steps to fill the post of Chief Vaccinating Inspector which lay vacant and to consider the Petitioner for the said post. During the course of the hearing, the Petitioner pleaded that he would be satisfied if time bound directions were issued to the Respondent to decide the Petitioner’s representation dated 04.07.2019. The Petitioner was set to superannuate on 29.02.2020. Considering the aforesaid, the learned Tribunal, while disposing of the original application by the order dated 24.02.2020, directed the Respondent to decide the Petitioner’s representation dated 04.07.2019 before 29.02.2020 by passing a reasoned and speaking

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order under advice to the Petitioner. The said order dated 24.02.2020 was not complied with.

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2.4. Thereafter, the Petitioner preferred a contempt petition being C.P. No. 266/2021 in O.A. No. 2978/2019. During the pendency of the same, on 16.11.2022, the Respondent passed a speaking order No. PS/DHO-II/MCD/2022/350 thereby considering the Petitioner’s representation dated 04.07.2019. The same is as follows:

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“While considering the prayer of Sh. Suresh Kumar, the Central Administrative Tribunal of Delhi, in the matter titled as, Suresh Kumar Vs South Delhi Municipal Corporation & Ors., in OA No2978/2019 has passed the certain direction to the respondents vide order dated 24.02.2020:-

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“For the foregoing reasons, the respondent SDMC who are present in court, shall bring it to the notice of the respondent NDMC and in turn the respondent NDMC are directed to decide the representation dated 04.07.2019 of the applicant before 29.02.2020 by passing a reasoned and speaking order under advice to applicant.”

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While assailing the relief from the Hon'ble Central Administrative Tribunal, Suresh Kumar Vs South Delhi Municipal Corporation & Ors., in OA No- 2978/2019, sought the following relief from Hon'ble CAT:-

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(a) Direct the respondent to take necessary steps to fill up the post of the CVI/CPHI and the post of Superintendent which is presently lying vacant for more than a decade and consider the petitioner for the said post.

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(b) Pass such other or further orders as may be deemed fit and proper in facts and circumstances of the present case.

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Accordingly, the representation dated 04.07.2019 of applicant Sh. Suresh Kumar Ex-PHI has been taken into consideration and it is stated that the grievance of the applicant will be Plan for DPC to be held in due course (if found eligible in all respect) as DPC

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has to be convened considering the eligible PHIs of unified corporation.

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This issue with the prior approval of the competent authority.”

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Taking note of the same, the learned Tribunal, by the impugned order, noted that the order dated 24.02.2020 had been complied with and closed the contempt proceedings qua the contemnors.

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The learned counsel for the Petitioner while conceding that the present petition is limited to the closure of the contempt proceedings and that the merits of the original application is beyond the scope of the present petition submitted that the learned Tribunal erred in closing the contempt proceedings qua the contemnors. She submitted that the learned Tribunal while disposing of the original application by the order dated 24.02.2020 had given a specific direction in unequivocal terms to decide the representation of the Petitioner before 29.02.2020.

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She submitted that the learned Tribunal failed to take into account the fact that the Respondent passed the speaking order dated 16.11.2022 only after contempt proceedings were initiated by the Petitioner. She submitted that the speaking order was passed after a delay of more than 2 years and 8 months in utter disregard of the order dated 24.02.2020. She submitted that the Petitioner was set to retire on 29.02.2020, and that the learned Tribunal, being mindful of the same, had directed the Respondent to decide the representation of the Petitioner before 29.02.2020.

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She submitted that in the present case time was of essence, and mere compliance that too after a delay of more than two and a half years cannot be termed as sufficient compliance.

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The learned counsel for the Respondent submitted that the present petition is misconceived and is liable to be dismissed. He submitted that in compliance of the order dated 24.02.2020, the Respondent already passed a speaking order dated 16.11.2022 thereby considering the representation of the Petitioner. He submitted that no substantive relief can be granted to the Petitioner in the present petition, and the grievance, if any, arising out of the speaking order dated 16.11.2022 was liable to be challenged in a separate original application.

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On the question of contempt, the learned counsel for the Respondent submitted that no contempt of order dated 24.02.2020 was committed by the Respondent. He submitted that by passing the speaking order dated 16.11.2022 thereby considering the representation of the Petitioner, compliance of the order dated 24.02.2020 had already been carried out.

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On the specific aspect of delay, the learned counsel for the Respondent submitted that the Petitioner was set to retire on 29.02.2020, and it was not possible for the Respondent authorities to conduct a Departmental Promotion Committee (DPC) within such a short span of time. He further submitted that the process of constitution of DPC was further hampered due to the unification of all three Municipal Corporations, that is, SDMC, NDMC, EDMC. He

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submitted that owing to the same, the Respondent was also required to issue a fresh seniority list of for the subject post.

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He submitted that the delay was not wilful and submitted that the learned Tribunal while closing the contempt petition specifically observed that the order dated 24.02.2020 was duly complied with. He consequently submitted that the present petition is liable to be dismissed. A counter affidavit in this regard has also been appended to the present petition.

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After having noted the rival contentions of the parties, and being cognizant of the fact that no substantive relief can be granted to the Petitioner in the present petition, it is pertinent to note that the limited issue that this Court is grappling with strictly pertains to whether the speaking order dated 16.11.2022 passed by the Respondent complied with the direction issued by the learned Tribunal vide order dated 24.02.2020 within the timeframe contemplated therein. In order to assess the same, this Court deems it apposite to take note of the order dated 24.02.2020 passed by the learned Tribunal while disposing of O.A. No. 2978/2019. The same is as follows:

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“4.0 Applicant pleads that he will be satisfied at this stage if time bound directions are issued to the respondent-NDMC to decide his representation. The applicant further pleaded that he is going to superannuate on 29.02.2020 and hence there is urgency.

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5.0. For the foregoing reasons, the respondent-SDMC who are present in court, shall bring it to the notice of the respondentNDMC and in turn the respondent-NDMC are directed to decide the representation dated 04.07.2019 of the applicant before

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29.02.2020 by passing a reasoned and speaking order under advice to applicant.”

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(emphasis supplied)

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What transpires from a reading of the same is that the learned Tribunal, in unambiguous terms, had directed the Respondent to decide the Petitioner’s representation dated 04.07.2019 before 29.02.2020. It is apparent that the said direction was passed keeping in mind the fact that the Petitioner was set to retire on 29.02.2020. Thus, the direction was not stipulated to be ornamental or advisory and was meant to be complied with within the prescribed time period.

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Admittedly, the Respondent neither challenged the order passed by the learned Tribunal nor complied with the direction within the stipulated period. Now, at this juncture, what is also relevant to note is that the representation made by the Petitioner, pursuant to the direction of the learned Tribunal, was complied with, by way of the speaking order dated 16.11.2022, after a lapse of more than 2 years and 8 months, which was substantially beyond the expiry of time period fixed by the learned Tribunal.

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The explanation furnished by the Respondent for the delayed compliance is that owing to the unification of the MCD, the process of promotion and the issuance of new seniority list was delayed. Emphasis has also been laid on the fact that the order was passed on 24.02.2020 and in order to consider the case of the Petitioner, a DPC was required to be constituted, for which the time span of 5 days as granted by the learned Tribunal was not sufficient. It has consequently

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been asserted that the delayed compliance was not wilful so as to amount to contempt.

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Be that as it may, the record makes it evident that the directions issued by the learned Tribunal were not acted upon in a timely manner by the Respondent, nor was any extension or clarification sought from learned Tribunal in this regard.

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Even if this Court were to take the contention raised on behalf of the Respondent at the highest, it is not the stance of the Respondent that they were not aware of the order dated 24.02.2020 and the specific directions encapsulated therein. Even assuming that the DPC could not have been conducted within a span of 5 days, it is not the case of the Respondent that they sought any extension from the learned Tribunal to comply with the order dated 24.02.2020. Infact, even the speaking order dated 16.11.2022 which was purportedly passed in compliance of the order dated 24.02.2020, only stated that the Petitioner’s representation has been taken into consideration and that the grievance of the Petitioner would be Plan for DPC that was to be held in due course. The question before this Court is not whether it was possible for the Respondent to ultimately grant any final relief to the Petitioner or not, the question is whether it was permissible for the Respondent to reduce a binding direction to a matter of timing or convenience at its discretion.

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As noted above, despite being aware of the order dated 24.02.2020, no action was taken by the Respondent to comply with the same or even seek an extension expressing their inability, if at all,

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to comply with the order. The eventual decision of the representation was rendered only after a prolonged period of more than two years and eight months, that too, in the wake of the contempt proceedings. The utter disregard in complying with the order passed by the learned Tribunal cannot be brushed aside as trivial inefficiency. The same, in the opinion of this Court, betrays a deeper malaise thereby reflecting a complete dearth of accountability and a disquieting tendency to take binding directions as non-essential.

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While this Court records its strong disapproval of the inaction and lethargic approach of the Respondent in the present matter, where time was undeniably of essence, it can equally not lose sight of the practical limitation that, at this stage, no judicial direction can undo what has already transpired. The clock, once permitted to run unchecked, cannot be judicially rewound.

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At the same time, it must also be borne in mind that the present Petition substantially calls upon this Court to examine the matter through the lens of a contempt jurisdiction, which, by its very nature, is directed against a natural person alleged to have wilfully disobeyed the orders of the Court, or as in the present case, the order of the learned Tribunal, and not merely against an institution in its abstract form.

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In this regard, it may be noted that the present Petition has been filed against the Respondent Department through its Commissioner, however, the individual officer allegedly responsible for such contemptuous conduct remains unidentified and has also not been

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impleaded. Therefore, the Petition suffers from a foundational defect. As such, before a finding of contempt is returned, the Court is expected to specifically identify the alleged contemnor and afford her/him a meaningful opportunity to show cause against the allegation of wilful disobedience. In the absence of the same before this Court, any determination on culpability would neither be consistent with settled principles governing contempt jurisdiction nor would it satisfy the requirement of procedural fairness, in particular, the principles of natural justice.

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Nevertheless, in the present case, this Court can also not remain oblivious to the colossal and rather unsatisfactory explanation provided by the Respondent for the delay in compliance with the direction issued by the learned Tribunal. The procedural defect in the Petition does not eclipse the manifest administrative indifference reflected on record. However, at this belated stage, relegating the Petitioner to amend the Petition would, in the opinion of this Court, merely prolong the present dispute, which has already suffered undue delay.

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Accordingly, in order to balance procedural propriety with the demands of substantive justice and to finally lend quietus to the present controversy, the present Petition is disposed of while directing the Respondent to pay cost of ₹2,00,000/- to the Petitioner within four weeks.

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