Central Administrative Tribunal - Delhi
Bhisham Kumar Head Clerk Gr. Ii (Dass), ... vs Government Of Nct Of Delhi Through ... on 31 October, 2006
ORDER Mukesh Kumar Gupta, Member (J)
1. Applicant, in this OA, seeks direction to Respondent to grant arrears of pay & allowances on his retrospective promotion as UDC from 05.06.1982 and as Head Clerk w.e.f. 14.05.1997 along with interest @ 18% per annum on delayed payment of arrears.
2. Admitted facts are that while working as Inspector, Food & Supplies, Circle No.27, during the year 1979, he was implicated in corrupt activities under Prevention of Corruption Act and being found guilty of an offence under Section 5(2) read with Section 5(1)(d) of aforesaid Act read with Section 161, IPC, he was sentenced to 2 years rigorous imprisonment and a fine of Rs. 100/- by the Ld. Special Judge, Delhi. On a Criminal appeal preferred before Hon'ble Delhi High Court, the said conviction awarded by Ld. Special Judge was set aside & appeal was allowed vide Judgment dated 08.01.1999 with following observations:
In view of the law laid down regarding grant of sanction and the parameters within which the sanctioning authority has to take into consideration the relevant facts and in view of the deposition of PW-4 as well as DW-4, on the short point that the sanctioning authority has not taken into consideration the entire material before granting sanction, sanction itself is vitiated and has vitiated the whole trial. On this short score alone, the appeal is allowed. The judgment passed by the Special Judge is set aside and the appellant is acquitted. The bail bonds of the appellant be discharged.
3. The State preferred SLP (Criminal) No.2092 of 1999. Though said appeal was dismissed vide order dated 25.10.1999, but considerable force was found in the State's contention that the Hon'ble High Court was totally in error in coming to the conclusion on the material produced in the case & taking into account the fact that more than 20 years have elapsed in the meantime, the Hon'ble Court observed that it was not proper to interfere with the case in exercise of power under Article 136 of the Constitution. Vide order dated 5.11.1999 his suspension was revoked. Similarly, his dismissal from service vide order dated 27.03.1980 was also set aside, and on dismissal of SLP, all aspects were reviewed and vide order dated 15/17.12.1999 the entire period of suspension was treated as period spent on duty for all purposes. Vide order dated 10.04.2002, based on recommendations of DPC, he was promoted to Grade-III (DASS)/UDC in pay scale of Rs. 4,000-6,000/- w.e.f. 05.06.1982. It was also stated therein that officials promoted vide said order, 18 in number, would not be entitled for any arrears of pay and allowances for the period they have not actually performed the duties of Grade-III (DASS). Consequently, vide order dated 03.09.2002 his pay was re-fixed w.e.f. 05.06.1982. Vide order dated 15.01.2003, based on recommendations of the DPC, he was nominated for regular promotion to Gr-II (DASS) effective notionally from 14.05.1997, the date when his immediate junior had been promoted in pay scale of Rs. 5,000-8,000/-. The said order, however, stated that he would not be entitled to payment of pay & allowances for the period for which he had not actually worked as Gr-II (DASS). His pay was fixed in said grade vide order dated 24.05.2003. Prior to it, he had submitted representation dated 05.02.2001 addressed to The Secretary (Services) requesting for promotion to Gr-III and Gr-II with financial benefits, followed by reminders dated 21.02.2002, 04.09.2002, 09.05.2005 & 25.05.2005, requesting for payment of arrears of pay & allowances on account of his promotion as UDC (Grade-III/DASS) w.e.f. 05.06.1982 and Head Clerk (Grade-II/DASS) w.e.f. 15.01.2003.
4. Shri S.N. Anand, learned Counsel appearing for applicant strenuously contended that applicant is entitled to pay & allowances w.e.f. 5.6.1982 and 14.05.1997 when he had been promoted as UDC and Head Clerk respectively. Reliance was placed on , Union of India and Ors. v. K.V. Jankiraman and Ors. 2005 (1) ATJ 154, Shashi Kumar v. Uttri Haryana Biji Vitaran Nigam (Punjab & Haryana High Court) 2005 (2) ATJ 383, Kendriya Vidyalaya Sangathan and Anr. v. S.C. Sharma and , M.R. Gupta v. Union of India and Ors. The last judgment was relied upon to contend that plea of limitation is not applicable in pay fixation matters.
5. Respondents, on the other hand, resisted applicant's claim by filing a detailed reply stating that his exoneration was on technical ground and, therefore, he was not entitled to arrears of pay & allowances on his retrospective promotion. He has been promoted on notional basis from the date his immediate juniors were promoted. Since he had not actually worked on the posts in question, in view of the provision contained in FR 17 (1) and Government of India, DOP&T's OM dated 14.09.1992 he was not entitled for payment of arrears. As many as 1628 officials were granted promotion notionally including his seniors and juniors and they had not been paid arrears of pay & allowances for the period they had not actually worked on higher grade. Furthermore, applicant has already been granted promotion to next higher post of Gr-I (DASS) vide order dated 29.08.2005. Reliance placed on K.V. Jankiraman and Ors. (supra) is misplaced as said judgment has no application in the facts and circumstances of present case. Reliance was placed on , E. Parmasivan and Ors. v. Union of India and Ors., to contend that delay is equally applicable in the case of pay fixation. Reliance was also placed on State of Haryana and Ors. v. O.P. Gupta and Ors. and order dated 12th October, 2006 of this Bench in OA No. 203/2006, Shashi Aggarwal and Anr. v. Govt. of NCT Delhi and Ors.
6. Applicant also filed rejoinder reiterating the contentions raised vide his OA and controverting the contentions raised by Respondents.
7. We have heard learned Counsel for parties and perused the pleadings placed on record.
8. On bestowing our careful consideration to all aspects of the matter, we find justification in the Respondents contention that applicant's acquittal was a 'technical' one. The Hon'ble Supreme Court order dated 25.10.1999 dismissing State SLP (Criminal) against Hon'ble Delhi High Court acquitting him reads as under:
The High Court of Delhi has set aside conviction under Section 5(1)(d) and 5(2) of the Prevention of Corruption Act on the ground of invalidity of the sanction, inasmuch as all the relevant materials had not been before the sanctioning authority before granting the sanction. Mr. Malhotra, the learned senior counsel appearing for the State contends that the High Court was totally in error in coming to the conclusion on the materials produced in the case. There is considerable force in the aforesaid contention. Mr. Jain for the accused respondent, however, submitted that without entering into the merits of the contention taking into account the fact that more than 20 years have elapsed in the meantime and the allegation of corruption is in respect of Rs. 100/- this is not a fit case to interfere in exercise of power under Art. 136 of the Constitution. Having considered the rival submission notwithstanding the fact that there is considerable force of submission of Mr. Malhotra we do not think it appropriate to interfere with the impugned order in exercise of power under Art. 136. The SLP is dismissed.
9. A perusal of above order would show that the State's contention though found favour from the Hon'ble Supreme Court, but since 20 years had elapsed in the meantime, it became the basic reason for not entertaining the SLP. It is not in dispute that consequent to aforesaid judgment, he was not only reinstated in service, but the entire period of suspension and dismissal earlier had been treated as period spent on duty for all purposes. What has been denied to him is arrears of pay& allowances on his retrospective promotion. We may note that in 1997 (2) AISLJ 38, Ranchhodji Chaturji Thakore v. The Supdt. Engineering, Gujarat Electricity Board, Himmatnagar and Anr., the Hon'ble Supreme Court observed that : since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under such circumstances, he was held to be not entitled to back wages. The aforesaid ratio squarely applies to the facts of present case.
10. Similarly in 2003 (1) SC SLJ 396, Ram Ashrey Singh and Anr. v. Ram Bux Singh and Ors., the Hon'ble Supreme Court held that there is no automatic entitlement to full back wages on reinstatement. Reference was also made therein to earlier judgment , a three Judges Bench judgment in Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd and Anr. , PGI of Medical Education & Research, Chandigarh v. Raj Kumar, the Hon'ble Supreme Court once again observed that payment of back wages having a discretionary element involved in it has to be dealt with in the facts and circumstance of each case and no straight jacket formula can be evolved. In our view, the judgments relied upon by the applicant have no application in the facts and circumstances of present case, particular when applicant's acquittal cannot be termed on merits. We may also note that the applicant has not challenged the validity of Orders dated 10.04.2002 & 15.01.2003 whereby he was promoted as UDC & DASS Gr.II, on notional basis. Having not challenged the condition prescribed therein, which denies him the arrears on retrospective promotion, he is acquiesced in the matter. In such circumstances, he cannot be allowed to seek the relief which became time barred.
11. In view of the discussion made hereinabove & finding no merit OA is dismissed. No costs.