Central Administrative Tribunal - Delhi
Surinder Singh vs Delhi Development Authority Delhi on 1 September, 2023
1 OA No. 4383/2017
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 4383/2017
Order reserved on: 09.08.2023
Order pronounced on: 01.09.2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Surinder Singh, Aged 56 years,
S/o Sh. Hukam Singh,
Working as Patwari in DDA,
Posted S&S-II Branch, Vikas Sadan, New Delhi.
R/o Vill. & PO Salahpur, Majra Dabas,
Delhi-81.
....Applicant
(By Advocate: Mr. Yogesh Sharma)
Versus
1. Delhi Development Authority,
Through its Vice-Chairman,
Vikas Sadan, New Delhi.
2. The Finance Member,
Delhi Development Authority,
Vikas Sadan, New Delhi.
3. The Commissioner (P),
Delhi Development Authority,
Vikas Sadan, New Delhi.
... Respondents
(By Advocate: Ms. Sriparna Chatterjee)
2 OA No. 4383/2017
ORDER
By Hon'ble Manish Garg, Member (J) Through the medium of this Original Application (OA), filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 17.3.2016 (Annex.A/1), Appellate Authority order dated 9.11.2017 (Annex.A/2), and Show cause notice dated 21.12.2015 (Annex.A/3), declaring to the effect that the same are illegal, arbitrary and against the principle of natural justice and consequently, pass an order directing the respondents to regularized the intervening period from the date of compulsory retirement to the date of reinstatement of service by treating the same as on duty for all the purposes with all the consequential benefits to the applicant including the arrears of difference of pay and allowances.
(ii). That the Hon'ble Tribunal may graciously be pleased to pass an order of regularized the suspension period w.e.f. 7.9.2000 to 22.7.2008 by treating the same as on duty for all the purposes with all the consequential benefits to the applicant, including the arrears of difference of pay and allowances and due promotions from due date.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants."
2. The brief facts of the case, as projected by the learned counsel for the applicant are as follows:
2.1 The applicant is working as Patwari in Delhi Development Authority (DDA). In the year 2000 a criminal case was registered against him vide FIR No.41/2000 under Section 7 and Section 13 (1)(d) read with Section 13 (2) under POC Act, 1988 where he was 3 OA No. 4383/2017 convicted vide judgment dated 19.06.2008 and sentence order dated 22.07.2008.
2.2 Applicant was placed under deemed suspension vide order dated 07.09.2000 and the same was revoked vide order dated 22.07.2008 and subsequently, he was compulsorily retired vide order dated 07.07.2009 with penalty of 1/3rd cut in pension, without conducting any enquiry and without issuing any charge- sheet. The suspension was regularized as leave of kind due admissible vide order dated 23.08.2012.
2.3 The applicant filed an appeal against his conviction before the Hon‟ble High Court and the same was allowed vide judgment dated 16.10.2014 where the applicant has been acquitted from the criminal charges.
2.4 The respondents filed SLP No.2480/2015 before the Hon‟ble Supreme Court which was also dismissed vide order dated 20.02.2015.
2.5 The respondents vide order dated 02.06.2015 revoked the compulsory retirement order and reinstated the applicant in service.
2.6 The applicant submitted a representation dated 17.08.2015, thereby requesting the Competent Authority to regularize the suspension period as well as the intervening period from the date of compulsory retirement to the date of reinstatement in service. 4 OA No. 4383/2017 2.7 The respondent no.3, however, vide Memorandum dated 21.12.2015 decided as under:
"The undersigned tentatively is of the view that the intervening period from the date of compulsory retirement to the date of reinstatement i.e. 07.07.2009 to 02.06.2015 cannot be treated as spent on duty under F.R. 54 (5) being acquittal on the basis of procedural grounds and not on merit and the amount received during the period of compulsory retirement, if any, should be recovered from the official. Further, in case of official so desires, he can get the intervening period of compulsory retirement to re- instatement converted into leave of any kind due. However, above said period can be regularized for the purpose of pension only."
2.8 The applicant thereafter submitted a detailed representation against the Show Cause Notice (SCN) and the Disciplinary Authority (DA) vide impugned order dated 17.03.2016 has not considered the suspension period and decided that period from 07.07.2009 to 02.06.2015 as under:
"I have considered the submissions made by Sh. Surinder Singh. It is recollected that the acquittal of Sh. Surinder Singh is on the basis of the procedural ground and not on merit and therefore he cannot claim pay and allowances for the aforesaid period, being acquittal on procedural ground and not on honourable acquittal. Therefore, the only relief which can further be given to Sh. Surinder Singh is that the said period can also be counted for the purpose of promotion to the next level as he has already been handed over the punishment of reduction to the lower pay for two year4s. The above relief may be admissible to Sh. Surinder Singh."
2.9 Against the order dated 17.03.2016, the applicant submitted an appeal to the Appellate Authority (AA) on 18.04.2016 which was rejected vide Appellate Order dated 09.11.2017. 5 OA No. 4383/2017 2.10 The DA without considering the fact and reply of applicant had passed the impugned order, which is not sustainable in the eyes of law and is liable to be set aside.
2.11 The learned counsel has assailed the order on the ground that despite the findings of the Hon‟ble High Court and Supreme Court, the DA ought not have commented upon the evidences only to turn down the regularization period. It was completely ignored by the DA that during that period the applicant was awarded certificate for his commendable job.
2.12 There are number of such other officers of DDA namely, S/Shri Uttam Chand, Ram Mahesh Yadav, Kalayan Singh, Vijender Singh and several others who were acquitted on technical point and the entire period of suspension was regularized as spent on duty for all purposes and the applicant has been meted out with hostile discrimination. Hence, the case of applicant deserves sympathetic consideration. In support of his contentions, the learned counsel for the applicant has relied upon a decision of the Hon‟ble High Court of Delhi in Union of India v. Jagdamba Singh, 2015:DHC:5191-DB, decided on 2nd July, 2015 to contend that when criminal proceedings are launched after investigation by an outside agency and the employee is acquitted of the criminal charge, he would be entitled to full pay and allowances as subsistence allowance for the period of suspension and that if one is acquitted by the Court, the entire period of suspension is to 6 OA No. 4383/2017 be treated as spent on duty for all purposes. The learned counsel, therefore, submitted that the case of the applicant is squarely covered by the aforesaid decision of the Hon‟ble High Court of Delhi and as such the same may also be decided in terms of the above order of the Hon‟ble High Court of Delhi.
3. Per contra, learned counsel for the respondents, by referring to the averments made in the counter affidavit filed on behalf of the respondents, vehemently opposed the averments made by the applicant in his OA. The learned counsel submitted that applicant was arrested by A.C.B./G.N.C.T.D. and a case was registered vide FIR No.41/2000 dated 11/08/2000 under Sections 7 and 13 (1)(d) read with Section 13 (2) of PC Act, 1988. 3.1 He was placed under suspension vide order dated 07.09.2000 w.e.f. 11.08.2000. The Trial Court in the above FIR No.41/2000 vide judgment dated 19.07.2008 convicted the applicant vide sentence order dated 22.07.2008. 3.2 Thereafter, a penalty of compulsory retirement was imposed on him vide order dated 07.07.2009. However, keeping in view the fact that he was sole breadwinner of the family, only 1/3 rd cut in his pension was imposed. He filed appeal against the order dated 07.07.2009 but the same was dismissed on 17.11.2009. 3.3 The applicant filed an appeal before the Hon‟ble High Court of Delhi against his conviction vide Crl. Appeal No.684/2008. The 7 OA No. 4383/2017 Hon‟ble High Court vide its order dated 16.10.2014 set aside the judgment of the trial court dated 19.07.2008 and the order of the sentence dated 22.07.2008.
3.4 Against the order of the Hon‟ble High Court, the respondents filed CRLMP No.2480/2015, which too was dismissed vide order dated 20.02.2015.
3.5 The DA revoked the penalty of compulsory retirement and reinstated the applicant in service vide order dated 02.06.2015 on the post of Patwari. The applicant accordingly applied for regularization of suspension period and full pay and allowances for the suspension period from the date of compulsory retirement till his reinstatement, i.e., 02.06.2015. 3.6 The respondents, however, vide order dated 17.03.2016 decided that the intervening period from the date of compulsory retirement to the date of reinstatement i.e., from 07.07.2009 to 02.06.2015 cannot be treated as spent on duty under FR 54 (5) being acquittal on procedural grounds and not on merits. 3.7 Aggrieved by the order dated 17.03.2016 applicant filed an appeal before the Appellate Authority, which has been rejected vide order dated 09.10.2017. In support of her claim, the learned counsel for the respondents has relied upon the following decisions:
8 OA No. 4383/2017
i) Judgment in LPA No.2066 of 2005, titled as S.P. Thukral v.
DDA.
ii) Judgment in LPA No.699 of 2004 titled Hans Raj v. DDA & Anr., reported as 2004 SCCOnline Del 900.
iii) Judgment titled as Union of India & Ors. v. Jaipal Singh, reported as 2004 (1) SCC 121.
iv) Judgment in W.P.C. No.1917 of 2021 titled Ravindra Prasad Munneshwar Prasad v. Union of India & Ors. passed by the Bombay High Court at Nagpur.
v) Judgment titled as Dinesh Kumar Kain v. Assistant General Manager, reported as 131 (2006) DLT 550.
vi) Judgment titled Krishnakant Raghunath Bibhavnekar v. State of Maharashtra & Ors., reported as 1997 (3) SCC 636.
vii) Judgment titled Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar, (Gujarat and Ors. reported as MANU/SC/0422/1997).
3.8 In view of the above submissions, the learned counsel for the respondents has submitted that the OA is liable to be dismissed being devoid of any merit.
4. We heard the learned counsel for the parties and perused the pleadings on record and also gone through the 9 OA No. 4383/2017 written submissions filed by the learned counsel for respondents.
5. Analysis:
5.1 Vide Office Order dated 07.09.2000 it was observed that case against the applicant in respect of a criminal offence was under investigation. He was detained in the police custody on 11.08.2000 based on which an order of suspension was passed and it was ordered as under:
"It is also ordered that Sh. Surender Singh, Patwari, will receive the subsistence allowance as under till further order: (1) subsistence allowance equal to leave salary which he would have drawn if he had been on leave on half pay; (2) Dearness allowance based on the leave salary mentioned at (1) above;
(3) other compensatory allowance which he was in receipt on the date of suspension."
5.2 The Memorandum of charges was also issued to the applicant, which reads as under:
"The undersigned proposes to hold an enquiry against Shri Surender Singh S/O It, Shri Hukam Singh, Patwari DDA under Regulatiion 25 of the DDA Conduct Disciplinary and Appeal Regulations 1999. The substance of imputation of misconduct or misbehaviour in respect of which the enquiry is proposed to be held is set out in the enclosed statement of article of charges (Annexure-I). A statement of imputation of misconduct or misbehaviour in support of article of charges is enclosed (Annexure-II). A list of documents by which and a list of witnesses by whom the articles of charges are proposed to be sustained are enclosed (Annexure III and (Annexure-IV).
2. Shri Surender Singh, Patwari is directed to submit within 10 days of the receipt of this memorandum a written statement of his defence and also to state whether he desires to be heard in person.10 OA No. 4383/2017
3. He is further informed that an enquiry will be held only in respect of those articles of charges as are not admitted. He should therefore, specifically admit or deny each article of charges.
3. Shri Surender Singh, Patwari is further informed that if he does not submit his written statement of defence on or before the date specified in para 2 above, or does not appear in person before the Enquiring Authority or otherwise fails to refuse to comply with the provisions of Regulation 25 of the DDA Conduct Disciplinary and appeal Regulations 1999 or the orders/directions issued in pursuance of the said Regulations, the Enquiring Authority may hold the enquiry against him ex-parte.
5. Attention of Shri Surender Singh, Patwari is invited to the Regulation 17 of DDA Conduct, Disciplinary and Appeal Regulations 1999 under which no employee shall bring or attempt to bring any political or outside influences to bear upon any superior authority to further his interest in respect of matters pertaining to his services under the Authority. If any representation is received on his behalf from another person in respect of any matter dealt within these proceedings, it will be presumed that Shri Surender Singh, Patwari is aware of such representation and that it has been made at his instance and action may be taken against him for violation of regulation, 17 of Conduct Disciplinary and Appeal Regulations 1999.
The receipt of the Memorandum may be acknowledged."
5.3 The article of charges against the applicant are reproduced below:
"ARTICLE OF CHARGES FRAMED AGAINST SHRI SURENDER SINGH, S/O LT. SHRI HUKAM SINGH PATWARI, DDA.
Shri Surender, Singh, while working as Patwari in DDA (LM)West Zone, Delhi demanded Rs,. 4000/- as illegal gratification from Shri Tarkeshwar Sharma. He accepted and obtained Rs. 1000/- as second installment of illegal gratification from Shri Takeshwar Sharma on 11.8.2000 and was Cought red handed by the Anti Corruption Branch, Govt. of NCT of Delhi.
Shri Surender Singh, Patwari DDA (LM)West Zone by his above act exhibited lack of absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant thereby violating rule 4 (1) (i) (ii) and (iii) of DDA Conduct Disciplinary and Appeal Regulations 1999."11 OA No. 4383/2017
5.4 The said order of suspension was revoked by virtue of an order dated 20.07.2004 and the applicant was reinstated in service by the respondents.
5.5 After conclusion of enquiry vide Office Communication dated 08.09.2004, the applicant was imposed a penalty of "reversion to lower post of khallasi in the scale of Rs.2550- 3200 at stage Rs.3080 for a period of two years on Sh. Surender Singh, Patwari (applicant). During this period of punishment he will not earn any increment. However, the punishment will not operate to postpone future increments (the punishment will be without cumulative effect.)"
5.6 It is also pertinent to mention that the applicant was convicted by a Special Judge, Tis Hazari Courts, Delhi. The relevant part of Order on Sentence dated 22.07.2008 is reproduced below:
"3. Considering all these facts and circumstances of the case, the prayer of the convict; the fact that convict has suffered trial in this case for about 7 years; the fact is that he is the only earning member of his family and is to look after his three small children; the fact that he is not a previous convict, convict Surender Singh is sentenced to undergo R.I. for one year with fine of Rs.2000/- and failing to pay the fine to undergo S.I. for two months for the commission of offence punishable U/s 7 of POC Act.
4. The convict Surender Singh is further sentenced to undergo R.I. for 1 ½ years with fine of Rs.3000 and failing to pay the fine to undergo S.I. for three months for the commission of offence punishable U/s 13 (1)(d) read with Section 13 (2) of POC Act."12 OA No. 4383/2017
5.7 Upon infliction of the conviction vide Office Order dated 07.07.2009, the DA vide its memorandum dated 07.10.2008 imposed a penalty of compulsory retirement from service. Thereafter vide Office Order dated 07.07.2009 a penalty of one third cut in pension was imposed upon the applicant with a stipulation that he will get two third of the pension after compulsory retirement.
5.8 A Criminal Appeal No.684/2008 was filed by the applicant before the Hon‟ble High Court of Delhi wherein it was held as under:
"16. A careful perusal of the evidence of PW-7 shows that in his examination in chief he spoke of the conversation that took place on the spot between PW-5 and the Appellant. According to him, the Appellant asked PW-5 whether he had brought the bribe amount, and PW-5 replied in the affirmative and then took out the treated GC notes from the pocket of his shirt and handed over the same in the right hand of the Appellant. However, in his cross-examination PW-7 gave a changed version and stated: "When we reached near the tea vendors stall the Complainant and the accused were talking in a low voice in fact it was more or less in a whispering tone. It is correct that as they were talking in a low pitch so I could not hear their talks properly. As far as I remember the Complainant might have told me the conversation which took place between him and the accused as I could not hear the whole of it because it was not fully audible. It is correct that I did not state to the police that the accused had asked the Complainant if he had brought the bribe money (The prosecutor has stated that the witness stated in his statement under Section 161 Cr.PC that on the way the Patwari also asked if he had brought money. He has stated that the question of asking money itself has implied reference to bribe money). It is correct that I did not specifically state in my statement to the IO the word "Bribe". Vol. the word bribe is implied in my statement made to the IO." (emphasis supplied)
17. The above admission on the crucial aspect of the case by PW-makes him an unreliable witness both as regards the demand made at the spot and the subsequent acceptance of the treated GC notes by the Appellant. The trial Court noticed the above change of stand but stated that "this 13 OA No. 4383/2017 admission alone is not sufficient to give clean chit to the accused." However, the question is whether the above evidence can be safely relied upon as proving beyond reasonable doubt the guilt of the Appellant. On this crucial aspect, the trial Court appears to have proceeded on the basis that the Appellant is guilty unless proved otherwise.
18. This flawed approach appears to have further persuaded the trial Court to overlook the discrepancies as regards the link evidence concerning the hand washes. The trial Court simply accepted the FSL report without noticing that the prosecution failed to establish the link evidence that would lend assurance that the hand and shirt wash samples were safely preserved. The evidence in this regard, as noticed hereinbefore, raises considerable doubts whether the hand and shirt wash samples sent to the FSL were in fact those purportedly collected at the spot.
19. In B. Jayaraj v. State of A.P. 2014 (4) SCALE 81, the Supreme Court cautioned that the prosecution has to prove the key ingredients beyond reasonable doubt before the presumption under Section 20 PC Act can stand attracted. In Mahavir Singh v. State 2014 (141) DRJ 149 it was pointed out that in the absence of a proof of demand, the question of raising the presumption under Section 20 PC Act would not arise unless it is shown that there was conscious acceptance of the amount knowing it to be illegal gratification.
20. With the evidence of PW-7 being unclear as to the conversation on the spot, and with reliable link evidence concerning the samples of the washes being absent, the mere fact that GC notes were recovered from the Appellant and his hand and shirt washes turned pink do not lend sufficient assurance to the Court that the case against the Appellant stands proved beyond reasonable doubt."
5.9 The aforesaid order of Hon‟ble High Court of Delhi was challenged by the respondents in Special Leave to Appeal CRLMP No.2480/2015, which too, was dismissed vide Order dated 20.02.2015.
6. For the purpose of adjudication of present matter, it may be useful to bring out the Rule position in terms of FR 54, relevant for our purpose, which reads thus: 14 OA No. 4383/2017
"F.R.54 (2) Where the authority competent to order re-instatement is of the opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of sub-rule (6), be paid full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any submitted by him, direct for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub- rule (7),be paid for the period of such delay, only such amount [not being the whole] of such pay and allowances as it may determine.
xxx xxx xxx (5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be treated so for any specified purpose :
Provided that if the Government servant so desires such authority may direct that the period or absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the Government servant."
6.1 Based on the aforesaid facts and circumstances of the case, it is to be seen that "whether the case of the applicant is to be covered under FR 54 (2) or (5)?"
6.2 One of the noticeable aspects in the matter is that the applicant was initially placed under deemed suspension, which was neither challenged nor appealed by the applicant 15 OA No. 4383/2017 and thus became final and binding till such time an order of compulsory retirement was passed pursuant to his conviction.
6.3 It is also noticeable that once the Competent Authority itself passed an order of regularisation of suspension period, one Mr. Kalyan Singh, in similar circumstances, was also acquitted by Trial Court. His entire period of suspension was regularised and was treated as period spent on duty for all purposes under FR 54-B. 6.4 In the present matter the applicant has been acquitted with treatment of such period as spent on duty. The payment of pay and allowances for such period and decision thereto is not a decision dependent upon whether such period has been treated as on duty or not, the said decision is independent. The payment of pay and allowances is independent. 6.5 It is not in dispute that a decision is vested with the Competent Authority to pass appropriate orders for pay and allowances.
6.6 We noticed that word „tentative‟ has been spelt out in the impugned order. Such "tentative" finding is not postulated while passing the impugned order under FR 54. The said tentative view cannot be pre-emptive action with a pre- 16 OA No. 4383/2017 determined and pre-supposed mind. Such presumption of tentative opinion is de hors the Rule position under FR 54. 6.7 Even the finding in the impugned order that "the date of reinstatement, i.e. 07.07.2009 to 02.06.2015 cannot be treated as spent on duty" under FR 54 (5), being acquittal on the basis of procedural ground and not on merits is not warranted and called for in the light of acquittal based on merits.
6.8 The amount received during the period of compulsory retirement should be recovered from the official and further in case the official so desires, he can get the intervening period of compulsory retirement to re-instatement converted into leave of any kind due. This finding is de hors the rules. As can be seen from the FR 54, the plain reading of the same, it is clear that no such finding can be arrived at. The language of FR 54 is explicit and quite clear. Such a finding by the Competent Authority in the impugned order is not only perverse but also contrary to letter and spirit to the meaning of FR 54.
6.9 Even assuming for the sake of argument, we have also highlighted in detail the observations made in the Criminal Appeal No.2480/2015 which are quite clear and even on merits the case of the prosecution was not proved beyond 17 OA No. 4383/2017 reasonable doubt. There is no whisper that a "benefit of doubt" has been accorded to the applicant in the Criminal Appeal. There is no explanation coming forth in the impugned order from where the Competent Authority has arrived at a conclusion that the acquittal is based on procedural grounds and not on merits. It appears that while passing the impugned order under FRs, the Competent Authority has sat over as Appellate Authority over the decision rendered in criminal appeal which act is not only contemptuous but de hors the Rule position. 6.10 There is also another aspect of the matter that initially the Competent Authority had inflicted the punishment of reduction to lower pay for two years. 6.11 Furthermore, if the acquittal was not honourable acquittal, as observed by the Competent Authority in its impugned order, there is no explanation coming forth as to why such intervening period may be counted for promotion purpose to next level. The said finding itself is arbitrary, illegal and perverse. On the one hand, the applicant has not been given benefit under FR 54 (2) and has been denied the benefit under FR 54 (5) which has no application in the present case and on the other hand the said period has been counted for the purpose of promotion which by itself is a clear-cut case of apparent contradiction. In the case of 18 OA No. 4383/2017 Commissioner of Police and others vs. Om Prakash and others, 2004 (3) SLJ 272, it was held that if one is acquitted by the Court, the entire period of suspension is to be treated as duty for all purposes.
7. Conclusion:
7.1 In the conspectus of the above facts and circumstances, we find that there have been certain shortcomings in the decision taken by the Appellate Authority while passing its order on receipt of the judgment of Hon‟ble High Court, as also affirmed by Hon‟ble Apex Court. On the one hand, the disciplinary action taken against the applicant suffers from various lacunae, as brought out in the foregoing paragraphs, and on the other hand, the findings of the Hon‟ble High Court are that the prosecution has miserably failed to prove its case against the accused.
7.2 In the result, for the foregoing reasons, OA is allowed. Impugned Order(s) dated 17.03.2016 (Annex.A/1), 09.11.2017 (Annex.A/2) and 21.12.2015 (Annex.A/3) are quashed and set aside. The Competent Authority amongst the respondents is directed to re-examine the case of the applicant and pass appropriate order(s) granting full pay and allowances for the intervening period within a period of two months from the date of receipt of a certified copy of this 19 OA No. 4383/2017 order. Applicant shall also be entitled to all consequential benefits flowing therefrom.
7.3 OA is allowed in the aforesaid terms.
8. No order as to costs.
(Manish Garg) (Tarun Shridhar) Member (J) Member (A) „SD‟