Central Administrative Tribunal - Delhi
Smt. Sheela vs Municipal Corporation Of Delhi on 6 October, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA No.837/2009 [W.P. (C ) No.4554/1997 New Delhi this the 6th day of October, 2009 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE MR. N.D. DAYAL, MEMBER (A) 1. Smt. Sheela W/o Late Shri P.R. Premi 2. Sunil Kumar S/o Late Shri P.R. Premi 3. Anil Kumar S/o Late Shri P.R. Premi 4. Sanjeev Kumar S/o Late Shri P.R. Premi All residents of 1466, Outram Lines, Kingsway Camp, Delhi-100 009. 5. Anita D/o Late Shri P.R. Premi R/o West Jyoti Colony, Shahdara, Delhi-110 032. Petitioners By Advocate: Shri P.P. Khurana, Sr. Counsel with Ms. Seema Pandey. Versus Municipal Corporation of Delhi, through its Commissioner, Town Hall, Chandni Chowk, Delhi-110 006. .Respondents. By Advocate: Shri Mukesh Gupta. O R D E R
Honble Mrs. Meera Chhibber, Member(J) Petitioners, who are the legal heirs of late Shri P.R. Premi had filed Writ Petition No. (C) 4554 of 1997 before the Honble High Court of Delhi seeking the following relief:-
(i) to quash the order dated 4.10.1990 (Annexure P-VII) whereby the deceased was dismissed from the service of the Municipal Corporation of Delhi.
(ii) to direct the respondents to pay to the petitioners consequential monetary benefits accrued till the date of death of the deceased, on the footing as if he was never dismissed from service.
(iii) to direct the respondents to pay all pensionary benefits including DCRG etc. to the petitioners.
2. It is submitted by the learned counsel for the petitioners that vide order dated 4.10.1990, husband of petitioner No.1 was dismissed from service in view of his conviction in a criminal case bearing FIR No.272/82 under Sections 353/186/332/34 IPC by invoking the power under Rule 19 (1) of the CCS (CCA) Rules, 1965. However, before passing the aforesaid order, no opportunity was given to the deceased employee whereas in Rule 19 (1), it is clearly mentioned that before passing the order, at least opportunity should be given to the employee concerned, therefore, order is liable to be quashed. He further submitted that during his life time, the deceased had given representation to the authorities that he be reinstated in service because in appeal he had been given the benefit of Probation of Offenders Act, 1958 vide judgment dated 1.4.1995 (page 51). No reply was given to him. Unfortunately, the employee died on 4.11.1995, therefore, counsel for the petitioners submitted that as far as the relief that could be granted to the petitioners with regard to the wages, would be restricted from 4.10.1990 to 4.11.1995 in case the order of dismissal is quashed and set aside. Thereafter the petitioner No.1 would be entitled to family pension. Counsel for the petitioners relied on the following judgments:-
(i) Shrawan Kumar Jha and Others Vs. State of Bihar and Others reported in 1991 (Supp) 1 SCC 330.
(ii) Union Carbide Corporation and Others Vs. Union of India and Others reported in 1991 (4) SCC 584 (para 160 and 161).
He also relied on the judgment of Honble High Court of Delhi in the case of M.P. Rajput Vs. Union Bank of India and Others (Writ Petition No. ( C) 2616/1991) to show that the High Court had granted 50% of the salary and allowances in the said case in similar circumstances.
3. Respondents on the other hand have opposed this petition. They have explained that Shri P.R. Premi was working as Assistant Teacher in MCD School. He was charge-sheeted for minor penalty proceedings in the year 1981. The said case was fixed for personal hearing before Shri V.V. Mongia, Dy. Commissioner, MCD on 17.3.1982. During the proceedings on 17.3.1982 at about 11.30 A.M., Shri Amar Nath Jha, Assistant Teacher, Shri P.R. Premi, Assistant Teacher (the concerned employee) and Shri M.D. Kaushik, Assistant Teacher, Laxmi Narain physically assaulted the Dy. Commissioner Shri Mongia and he received injuries. Accordingly an FIR No.272 dated 17.3.1982 under Sections 353/186/332/34 was lodged against the said Shri P.R. Premi and others in P.S. Kotwali, Chandni Chowk, Delhi. Shri P.R. Premi was placed under suspension vide O.D. No.S-55/Vig./82 dated 17.3.1982. Subsequently he was reinstated in service vide office order No.483/SAP/Vig./82/R-224 dated 3.12.1987.
4. The criminal case was finally decided on 30.4.1990 whereby Shri P.R. Premi & Others were convicted and Shri Premi was given sentence of RI for one month with fine of Rs.1500/- under Section 186 IPC and RI for one year with fine of Rs.1000/- for offence under Section 332 IPC.
5. In view of above, keeping in view the conduct which led to his conviction Shri Premi was dismissed from service by the Disciplinary Authority vide O.O. No. 483/SAP/Vig./8/D-102 dated 4.10.1990.
6. Shri P.R. Premi had challenged the judgment dated 30.4.1990 of the trial court. The Additional Sessions Judge, Delhi vide his judgment dated 1.4.1995 affirmed the conviction of the said Shri P.R. Premi but reduced the sentence by giving him the benefit of Probation of Offenders Act by releasing him on furnishing a bond of Rs.2000/- for one year to keep peace for that period. The matter was again considered by the Disciplinary Authority and the request of the said Shri P.R. Premi for reinstatement in service was rejected after due consideration. They have thus stated that such a case calls for no interference because conviction of the deceased employee has still been upheld by the Sessions Court.
7. Even otherwise, they have stated that the Writ Petition is barred by limitation, delay and laches as Writ Petition has been filed only in the year 1997 whereas the employee was dismissed as back as in the year 1990. They have relied on the judgment of Honble Supreme Court in the case of Union of India and Others Vs. Bakshi Ram reported in 1990 (2) SCC 426.
8. They have further stated that Rule 19 (1) of the CCS (CCA) Rules, 1963 is applicable to the employees of MCD which is analogous to Regulation 9 (1) of the DMC Service (Control & Appeal) Regulations, 1959. Since conduct of the employee which led to his conviction was such that his further retention in service was not desirable, therefore, the penalty imposed on the employee is proper. Moreover, they have stated that even as per Article 311 (2)(a) of the Constitution there is no need to give show cause notice on the quantum of punishment.
9. Counsel for the respondents invited our attention to Rule 92 (a) of DMC Act to show that no opportunity is required to be given when a person is dismissed on the ground of conduct which has led to his conviction in a criminal case. He also submitted that so long power is given under the Act which requires no show cause notice is required to be given to the employee, mere fact that while passing the order, reference is made to Rule 19 (1) of CCS (CCA) Rules, it would not make the order invalid. They have thus prayed that the petition may be dismissed.
10. We have heard both the counsel and perused the pleadings as well. Admittedly, the deceased employee was employed in the Delhi Municipal Corporation, therefore, he would be governed by Delhi Municipal Corporation Act, 1987. Section 95 (2) (a) reads as under:-
95. Punishment for municipal officers and other employees - (1) Every municipal officer or other municipal employees shall be liable to have his increments or promotion withheld or to be censured, reduced in rank, compulsorily retired, removed or dismissed for any breach of any departmental regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be prescribed by regulations:
Provided that no such officer or other employee or aforesaid shall be reduced in rank, compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed:
Provided further that the Corporation may by regulations provide that municipal employees belonging to such classes or categories as may be specified in the regulations shall be liable also to be fined by such authority as may be specified therein.
(2) No such officer or other employee shall be punished under sub-section (1) unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:
Provided that this sub-section shall not apply -
where an officer or other employee is removed or dismissed on the ground of conduct which had led to his conviction on a criminal charge; or where the authority empowered to remove or dismiss such officer or other employee, is satisfied that for some reason to be recorded by that authority, it is not reasonably practicable to give that person an opportunity of showing cause.
(3) If any question arises whether it is reasonably practicable to give to any officer or other employee an opportunity of showing cause under sub-section (2), the decision thereon of the authority empowered to remove or dismiss such officer or other employee shall be final.
(4) An officer or other employee upon whom a punishment has been inflicted under this section may appeal to such officer or authority as may be prescribed by regulations:
[Provided that in the case of an officer or other employee appointed by the Commissioner an appeal shall lie to the Administrator].
11. It is thus clear that in normal course no employee could be punished unless he is given a reasonable opportunity of showing cause against the action proposed to be taken but there is an exception to sub-section (2) of Section 95 which makes it clear that the provision of sub-section (2) would not apply if an officer is removed/dismissed on the ground of conduct which had led to his conviction on a criminal charge.
12. It is not disputed by the petitioner No.1 that her husband was indeed convicted by the trial court on 30.4.1990 for assaulting the officer and was also sentenced to one year imprisonment. Being aggrieved, he had filed an appeal. It is relevant to note that the Additional Sessions Judge, Delhi also upheld the conviction. In fact it was noted by the Additional Sessions Judge as follows:-
In view of the evidence available on the record, I am not in agreement with the learned counsel for the appellant that prosecution could not make out a case against the present appellants. The criticism that one of the accused was acquitted with the same set of evidence and others were convicted is also not to hold water since the evidence available on the record is sufficient to come to conclusion that offence was committed by the present appellants.
I see no reasons to disturb the judgment of the lower court and I affirm the same accordingly. However, on the point of sentence Shri O.P. Soni, learned Advocate appearing on behalf of the appellant submitted before me that all the three appellants are dismissed employees of the Corporation. Now they have suffered a lot on account of long litigation and they be given benefit of such Probation of Offenders Act. I have considered the submission made before me on the point of sentence. It is true that the case relates to the period as back as March, 1982. 13 long years have already roled down. The prosecution have been brooding over the head of the appellants all throughout this period. They have been suffering the torture of pendency of the criminal case and since the date of judgment by the trial Magistrate, they must be feeling themselves as if they are being the bars. In my opinion the appellants must have learnt lesson by now. All the three persons are aged persons and it will be very harsh in case they are sent to jail at this stage after 13 years and there is every likelihood that they must be mixed up with the hardened criminals there which will ruin their last part of the lift which is certainly the evening of their respective lives. I do not propose to send them to jail. I feel that the submissions made by Shri O.P. Soni, Advocate before me have some force.
I accordingly give benefit of Probation of Offenders Act to the appellants.
13. Perusal of the above portion from the judgment of learned Additional Sessions Judge would show that the conviction was upheld by the appellate court but only the sentence was modified, keeping in view the fact that all the three persons were aged and had already suffered for the last more than 13 years. In these circumstances, the prayer of the petitioners that the order of dismissal passed against the deceased employee should be quashed and set aside is not maintainable because Honble Supreme Court has already held in the case of Bakshi Ram as under:-
10. In criminal trial the conviction is one thing and sentence is another. The departmental punishment for misconduct is yet a third one. The Court while invoking the provisions of S. 3 or 4 of the Act does not deal with conviction; it only deals with the sentence which the offender has to undergo. Instead of sentencing the offender, the Court releases him on probation of good conduct. The conviction however, remains untouched and the stigma of conviction is not obliterated. In the departmental proceedings the delinquent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.
14. From above judgment, it is clear that a person can be dismissed even if he is released on probation so long conviction is upheld, therefore, simply because petitioner No.1s husband was released by giving him benefit of Probation of Offenders Act it would not invalidate the order of dismissal specially when the employee had assaulted an officer during the disciplinary proceedings. It is definitely a serious matter, therefore, if looking at his conduct, if the employee was dismissed, we do not find any good ground to interfere in the matter.
15. Counsel for the petitioners strenuously argued that principles of natural justice have not been complied with. However, Section 95 (2)(a) is absolutely clear as already quoted above which specifically states that if a person is dismissed on account of conduct which has led to his conviction in criminal case, no show cause notice is required. Admittedly, petitioner No.1s husband was an employee of MCD, therefore, he would be governed by DMC Act. It is relevant to note that Section 95 (2)(a) has not been challenged in the present petition, therefore, so long the said provision stands on statute it is binding on the petitioners. In view of above, the submission that principles of natural justice were not complied with does not hold any water.
16. It is correct that in the impugned order, reference was made to Rule 19 (1) of CCS (CCA) Rules, 1965 but since power is derived from the MCD Act which categorically states that no such reasonable opportunity is required to be given in case an employee is dismissed on the ground of conduct which has led to his conviction in a criminal charge, therefore, mere reference to Rule 19 (1) of CCS (CCA) Rules would not vitiate the order. It is settled law that reference to a wrong provision does not vitiate the order so long power to pass the order is given under the statute. We, therefore, find no merit in this case. The same is accordingly dismissed. No order as to costs.
(N.D. DAYAL) (MRS. MEERA CHHIBBER) MEMBER (A) MEMBER (J) Rakesh