Central Administrative Tribunal - Delhi
Constable Kartar Chand vs The Commissioner Of Police on 20 November, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2881/2011 ORDER RESERVED ON: 29.10.2012 ORDER PRONOUNCED ON: 20.11.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) 1. Constable Kartar Chand, S/o Shri Sadhu Ram, R/o Qtr. No. 99, Police Colony, Ashok Vihar, Delhi-52. 2. Constable Harpal, S/o Shri Fathe Singh, R/o Mem Sect Line, Vinay Marg, Bank No. 3. 3. Const. Jasmer, S/o Shri Surat Singh, R/o Barrak No. 2, Room No. 103, DAP Line Vikas Puri, IIIrd Bn, DAP, New Delhi. Applicants. (By Advocate Shri Sachin Chauhan) Versus 1. The Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. 2. The Joint Commissioner of Police, Northern Range, Through the Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. 3. The Dy. Commissioner of Police, North West Distt, Through the Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. Respondents. (By Advocate Shri Vijay Pandita) O R D E R
Shri G. George Paracken:
Earlier, the respondents have dealt with the applicants departmentally vide Office Order dated 18.05.1990 on the allegation that on 12.05.1990, they were conducting illegal checking of vehicles with ulterior motive. After a detailed inquiry and on the basis of the findings of the Inquiry Officer, the disciplinary authority awarded them the punishment of dismissal from service vide Office Order dated 25.02.1992 and their suspension period from 18.05.1990 to the date of the dismissal was also decided as period `not spent on duty.
2. The applicants preferred appeals against the aforesaid order of the disciplinary authority but the appellate authority rejected them, vide its order dated 28.05.1993. Thereafter, they have filed the O.A No. 977/1994 before this Tribunal and it was disposed of by quashing and setting aside both the orders of the disciplinary authority as well as the appellate authority and further directing the respondents to reinstate them with all consequential benefits. The respondents filed a writ petition No. 13/2000 challenging the aforesaid order of this Tribunal before the Honble High Court of Delhi. The High Court disposed of the said writ petition vide order dated 14.04.2002 with a direction to the disciplinary authority to reopen the departmental proceedings. Thereafter, the applicants were reinstated in service, vide order dated 16.02.2002/02.07.2002 without prejudice to the departmental proceedings to be initiated against them in pursuance of the aforesaid judgment of the High Court. They were deemed to be under suspension from the date of joining their duties. Thereafter, the departmental inquiry was reopened and later on they were imposed the punishment of forfeiture of three years approved service permanently for the purpose of their further promotion and seniority vide order dated 18.02.2003. They were also reinstated from suspension from the date of issue of order of punishment vide order dated 18.02.2003. However, the period they remained under suspension as well as their dismissal period till reinstatement were decided as period `not spent on duty for all intents and purposes. The applicants preferred their appeal against the aforesaid decision of the disciplinary authority but the same was rejected by the appellate authority vide its order dated 03.11.2003. Thereafter, the applicants, Constable Harpal Singh and Constable Kartar Chand filed OAs 535/2004 and 656/2004 before this Tribunal challenging the aforesaid decision of the respondents. This Tribunal, vide its order dated 17.11.2004 gave a direction to the disciplinary authority to direct the Inquiry Officer to submit a fresh report and thereafter to go ahead with the further proceedings. It was also directed that the consequential benefits should accrue to them and be given preferably within three months of the receipt of the certified copy of the order. Though the Department filed RA Nos. 66/2005, 68/2005 and 139/2005 against the aforesaid orders of this Tribunal in OA 535/2004 (supra) and OA 656/2004 (supra), they were dismissed by this Tribunal vide orders dated 30.03.2005 and 11.07.2005 respectively. Thereafter, the respondents challenged the aforesaid orders of the O.As as well as RAs before the Honble High Court of Delhi in CWP Nos. 20900/2005, 21259/2005 and 21278/2005. During the course of the hearing of the aforesaid writ petitions, the Inquiry Officer concluded that the charges against the applicants stood fully proved. Thereafter, the disciplinary authority, after careful examination, awarded the punishment of forfeiture of three years approved service permanently for the purpose of their promotion and seniority to them and their suspension period was also decided as period `not spent on duty for all intents and purposes vide order dated 27.10.2005. The appeals preferred against their punishment order were also considered and rejected by the appellate authority vide its order dated 28.11.2006. Meanwhile, the High Court of Delhi, vide its judgment dated 15.11.2007 held that the inquiry was conducted against the respondents therein (applicants herein) and as per the report of the Inquiry Officer, charge was partly proved. On that basis, punishment of withholding of increment for three years was imposed. The applicants again challenged the aforesaid orders before this Tribunal and this Tribunal was of the view that though the Inquiry Officer had concluded that the charge was partly proved, it was not stated as to which part of the charge was proved and which part of the charge was not proved. The Tribunal thus opined that it was too vague and indefinite findings, which had been accepted by the disciplinary authority. In those circumstances, this Tribunal quashed the impugned order granting liberty to the disciplinary authority to direct the Inquiry Officer to submit a fresh report and to take further proceedings on that basis. The applicants herein filed review in the aforesaid order of this Tribunal but it was dismissed by the Tribunal. Thereafter, as per the directions of this Tribunal, fresh report was submitted by the Inquiry Officer and based on it, the disciplinary authority has passed the fresh order imposing the same punishment i.e. withholding of increments for three years.
3. Thereafter, the applicants filed OA 130/2008 and the same was disposed of vide its order dated 23.03.2011 with a direction that they were not issued the Show Cause Notice regarding taking decision of their suspension till reinstatement i.e. from 18.05.1990 to 24.02.1992, 25.02.1992 to 18.06.2002, 19.06.2002 to 18.02.2003 and regularized the same period as not spent on duty while awarding the punishment, vide order dated 27.05.2005. Therefore, this Tribunal directed the competent authority to issue show cause notice in the aforesaid terms to the applicants for the aforesaid period. In compliance of the aforesaid directions, notice was issued to the applicants on 19.04.2011 to show cause as to why the above said suspension/dismissal period may not be decided as period not spent on duty for all intents and purposes. The applicants have submitted their representations in lieu of the above said show cause notice. After going through the aforesaid representations, the disciplinary authority, vide the impugned Annexure A-2 order dated 23.06.2011, decided that the suspension/dismissal period in respect of the applicants shall be treated as period not spent on duty for all intents and purposes. The relevant part of the said order reads as under:
The undersigned has carefully gone through the replies preferred by the applicants and other whole relevant files. They have mainly contended in their representation that the Honble High Court set aside the order of the dismissal from service on the ground of no compliance of the principle of natural justice and for the entire intervening period of the applicants were out of service only because of the wrongful action of the respondents as per the findings of the Honble Delhi High Court and thus the applicant cannot be denied the pay and allowances for the intervening period from the date of dismissal to the date of the re-instatement. Further they pleaded that the applicants were re-instated back in service and thus it has been established that the applicants were wrongfully restrained from discharging their duties and the same has been upheld by the adjudication of the Honble High Court. The pleas taken by the applicants are not tenable at all because the punishment of dismissal was never set aside by the Honble High Court of Delhi. However the Honble Delhi High Court had held that Inquiry was conducted against the respondents herein and as per the report of the Inquiry Officer, charge was partly proved. On that basis of punishment of withholding of increment for three years was imposed. Challenging this order applications were filed under Sec-19 of the Administrative Tribunals Act. The Tribunal was of the opinion that though the Inquiry Officer had concluded that the charge is partly proved, it was not at all stated as to which portion of the charge was proved and which part of the charge was not proved. The Tribunal, thus, opined that it was too vague and indefinite findings, which had been accepted by the disciplinary authority. In these circumstances, quashing the impugned order liberty was granted to the disciplinary authority to direct the Inquiry Officer to submit a fresh report and take further proceedings on that basis. The directions contained in the judgment fresh report was submitted on the basis of which the disciplinary authority has passed fresh order imposing the same punishment i.e. withholding of increments for three years in fact forfeiture of 3 years approved service permanently for the purpose of promotion and seniority and their suspension/dismissal period was also decided as not spent on duty. Moreover, now the Honble C.A.T. has not found the said punishment wrong. The applicants have also heard in orderly room on 16.6.2011. During the course of O.R. they have reiterated the same pleas whatever they had already submitted in their written representation to the show cause notice issued to them. In view of the above, the default of the applicants for which they were placed suspension and dismissed were fully proved during the course of enquiry.
In view of the above, I, Meenu Choudhary, Dy. Commissioner of Police, North-West District hereby decided the above mentioned suspension/dismissal period in respect of Ct. Kartar Chand No. 793/NW, 1657/NW, 7553/DAP now 2403/DAP, Ct. Harpal Singh No. 701/NW, 1457/NW, 1979/Sec. now 8975/DAP and Ct. Jasmer Singh No. 600/NW, 1649/NW, 7201/DAP, 1966/PCR, as period not spent on duty for all intents and purposes.
Let a copy of this order be given to Ct. Kartar Chand No. 793/NW, 1657/NW, 7553/DAP now 2403/DAP, Ct. Harpal Singh No. 701/NW, 1457/NW, 1979/Sec. now 8975/DAP and Ct. Jasmer Singh No. 600/NW, 1649/NW, 7201/DAP, 1966/PCR, free of cost. They can file appeals against this order within 30 days from the date of receipt to the Joint C.P./NR, Delhi, by enclosing a copy of this order, if they so desires.
4. The applicants have, therefore, challenged the aforesaid show cause notice dated 19.04.2011 and the disciplinary authoritys order dated 23.06.2011 in this O.A. and sought a direction to the respondents to treat the intervening period of the applicants from the date of dismissal to the date of reinstatement as spent on duty for all intents and purposes. The applicants have also sought a direction to the respondents to at least grant them 50% of the pay and allowances for the intervening period from the date of dismissal to the date of reinstatement with all consequential benefits.
5. In this regard, Shri Sachin Chauhan, the learned counsel for the applicants has relied upon the judgment of the Honble High Court of Delhi in WP (C) No. 2938/2007 Deputy Commissioner of Police Vs. Const. Satender Kumar decided on 31.03.2009. The respondent therein was initially dismissed from service invoking the provisions of proviso (ii) clause (b) of Article 311 (2) of the Constitution w.e.f. 24.09.1992. He was ultimately reinstated on 11.07.2003 after various round of litigations. However, he was not given any back wages for the period from 24.09.1992 to 11.07.2003. Claiming the same, he filed OA 1716/2005 before this Tribunal and this Tribunal relying upon the judgment in the case of UPSRTC Vs. Sarada Prasad Misra & Anr. directed the payment of 50% salary to the respondent for the period from 24.09.1992 to 11.07.2003. However, the learned counsel for the respondent, on the other hand, relying upon the judgment in the case of Union of India Vs. Jannaki Raman, submitted that there was no fault on the part of the respondent therein and argued that the applicants should be given 100% back wages. The learned counsel for the respondents has also relied upon another judgment of the Supreme Court in Union of India Vs. Madhusudan Prasad (2004 (1) SCC 43). The High Court held that the question whether the back wages/wages to be paid for the entire period or not depends on the facts and circumstances of each case. In the said case, the High Court found that the respondent was dismissed from service on 24.09.1992. He did not challenge that order for a period of eight years and approached the Tribunal only after his acquittal in the year 2000 by filing OA No. 51/2001. In the said circumstances, the High Court was of the opinion that ends of justice would be met if the order of the Tribunal is modified and the respondent is granted 50% of back wages from the date he filed OA 51/2007.
6. Shri Chauhan has also relied upon the judgment of a co-ordinate Bench of this Tribunal in OA 258/2005 Const. (Dvr) Ashok Kumar Vs. Govt. of NCT of Delhi & Ors. decided on 10.10.2006. In the said O.A, the applicant therein sought quashing and setting aside of th impugned order of the appellate authority dated 25.02.2004 whereby one year of approved service was forfeited, with consequential benefits in terms of seniority, promotion, etc. He had also sought a direction to the respondents to treat the entire period from the date of dismissal to the date of reinstatement as spent on duty. After detailed consideration of the case, this Tribunal found that the decision of the respondents to award the reduced punishment of forfeiture of one year approved service permanently does not deserve to be interfered in the interest of justice and maintenance of discipline in the police force. However, the Tribunal held that there was no reason as to why he should be denied relief in terms of treatment of period of his absence since it was, to a large extent, due to prolonged legal proceedings for which neither party could be held responsible. Again, placing reliance on the judgment of the Honble Supreme Court in the case of UPSRTC Vs. Sarada Prasad Misra & Anr. (supra) and the order of this Tribunal in ASI Sube Singh Vs. Union of India & Ors. (OA 779/2004), this Tribunal directed the respondents to pay 50% of the salary to the applicant for the period from 14.05.1991 to 02.10.2002. As far as the period of suspension was concerned, since the applicant therein was subsequently reinstated, this Tribunal held that he shall be entitled to full salary for the period from 01.10.2002 to 09.06.2003, if not already paid, after deducting the subsistence allowance, if any, paid to the applicant. The period of unauthorized absence from 09.08.1990 to 20.08.1990 was also ordered to be regularized by granting the leave of the kind due.
7. The respondents have filed their reply stating that FR 54-A (2) (i) and FR 54 (7) are not applicable in the case of the applicants because those rules are applicable in case only when the Govt. servant has been fully exonerated of the charge. But the applicants were never exonerated from the charges and they were awarded a major punishment of forfeiture of three years approved service permanently for the purpose of their promotion and seniority and their suspension/dismissal period in question was also decided as not spent on duty for all intents and purposes. Hence, the claim of the suspension/dismissal period under those rules is totally unlawful/illogical at this stage.
8. We have heard Shri Sachin Chauhan, the learned counsel for the applicant and Shri Vijay Pandita, the learned counsel for the respondents. It is seen that the order of dismissal of the applicants has been set aside by virtue of the judgment of the Honble High Court in CWP No. 11/2000 and 13/2000 on the ground of denial of principles of natural justice. Thus, the intervening period from the date of dismissal to that of reinstatement cannot be treated as not spent on duty for all intents and purposes as the applicants are placing reliance on the provisions contained in FR 54-A (2) (i) and FR 54 (7) which read as under:
F.R. 54-A (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government servant is reinstated without holding any further enquiry, the period of absence from duty shall be regularised and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the court.
(2) (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non-compliance with the requirements of the clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall subject to the provision of sub-rule (7) of rule 54, be paid such [amount (not being the whole) of the 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, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection, within such period [which in no case shall exceed sixty days from the date on which the notice has been served as may be specified in the notice:
(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be and the date of judgment of the court shall be regularized in accordance with the provisions contained in sub-rule (5) of Rule 54.
FR 54. (1) to (6) x x x (7) The amount determined under the proviso to sub-rule (2) or under sub-rule (4) shall not less than the subsistence allowance and other allowances admissible under Rule 53. A harmonious reading of the aforesaid rules would clearly show that if the dismissal of an employee is set aside on the ground of violation of natural justice and he is fully exonerated, then the pay and allowances for the intervening period from the date of dismissal to that of reinstatement cannot be less than subsistence allowance. Therefore, the respondents are under obligation to pay the applicants the pay and allowances of the intervening period from the date of dismissal to that of reinstatement as per the provisions contained in the aforesaid Fundamental Rules. Moreover, the applicants, as per the order of this Tribunal in OA 535-A/2004 and OA 656/2004, were entitled for all consequential benefits. Though the respondents have filed the review application against the aforesaid order but it was dismissed. Further, the Honble High Court has set aside the order of dismissal of the applicant from service on the ground of non-compliance of the principle of natural justice and for the entire intervening period, the applicants were out of service only because of the wrongful action of the respondents. As per the findings of the High Court, the applicants could not have been denied the pay and allowances for the intervening period from the date of dismissal to the date of reinstatement as the said period cannot be treated as not spent on duty as because of the denial of principles of natural justice, the applicants are reinstated back in service and thus it has been established that the applicants were wrongfully restrained from discharging their duties and the same has been upheld by the adjudication before the Honble High Court.
9. We, in the above facts and circumstances of the case, allow this OA and set aside the impugned Annexure A-1 and A-2 orders dated 19.04.2011 and 23.06.2011 and direct the respondents to treat the intervening period of the applicants from the date of dismissal to that of reinstatement as spent on duty for all intents and purposes. The respondents shall also grant the applicants 50% of pay and allowances for the intervening period from the date of dismissal to that of reinstatement with all consequential benefits. The aforesaid directions shall be complied with within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.
(MRS. MANJULIKA GAUTAM) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD