Central Administrative Tribunal - Delhi
Lalit Gupta vs The Municipal Corporation Of Delhi on 10 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.232/2012 Order Reserved on 01.10.2013 Order Pronounced on: 10.01.2014 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Lalit Gupta S/o Late R.C. Gupta R/o C-63, DDA Colony, West Gorakh Park, Shahdara, Delhi-110032. -Applicant (By Advocate: Shri V.K. Sharma) Versus 1. The Municipal Corporation of Delhi Through its Commissioner, Civic Centre, Minto Road, New Delhi. 2. The Municipal Corporation of Delhi Through its Deputy Commissioner, Shahdara (South Zone), MCD Office, Karkardooma, Shahdara, Delhi. -Respondents (By Advocate: Shri Rajinder Khatter) O R D E R Mr. Sudhir Kumar, Member (A):
This is the third round of litigation by the applicant before this Tribunal. He had earlier filed an OA No.2766/2011, in which orders came to be passed on 02.08.2011, and had thereafter filed a Contempt Petition No.916/2011, which also came to be disposed of on 01.09.2012.
2. The applicant was appointed in Shahdara Zone of the erstwhile Municipal Corporation of Delhi (MCD, in short), presently known as Shahdara (South Zone), Delhi, in the year 1988. In 1993 he became the beneficiary of regularization of his services. On 21.05.2001, the Anti Corruption Branch of CBI caught the applicant red handed while accepting a bribe, and the applicant remained in custody for a period of more than 48 hours, as a result of which he was placed under deemed suspension w.e.f. 21.05.2001, as per orders dated 22.06.2001.
3. In due course, on a representation submitted by the applicant, by revoking the order of his suspension, his services were reinstated vide order dated 26.12.2006. In the meanwhile the criminal case was going on before the Ld. Special Judge CBI, Tis Hazari Courts, which Trial Court ultimately held the applicant guilty through its order dated 23.10.2010, and through sentence dated 27.10.2010, sentenced him to two years rigorous imprisonment along with a fine of Rs.15,000/-. Since the Trial Court had suspended the sentence and granted him liberty to seek an appropriate remedy before the Appellate Court, he preferred an appeal before the Honble Delhi High Court, which admitted the first appeal of the applicant on 10.11.2010, and suspended the sentence awarded by the Ld. Trial Court vide its order dated 27.10.2010.
4. This order of his being sentenced, however, prompted the respondents to pass an order dated 09.06.2011 imposing upon the applicant the penalty of dismissal from service which shall not be a disqualification for future employment, on account of his conviction in the said criminal case, by invoking the provisions of Regulation 9 (i) of the DMC Services (Control & Appeal) Regulations, as well as Section 95(2) (a) of DMC Act. The Disciplinary Authority had further ordered to restrict the pay and allowances of the applicant to what had already been paid to him during the period of suspension. This order dated 09.06.2011 had been challenged by the applicant in his first OA. However, that above OA was withdrawn by him on 02.08.2011, with liberty to file a statutory appeal, which statutory appeal was filed by the applicant thereafter. His statutory appeal was disposed of by the Commissioner-MCD on 18.11.2011, by passing a speaking order at Annexure A-1 colly, which was communicated to him through the covering letter dated 01.12.2011 (Annexure A-1/colly). Before this order could be passed by the Appellate Authority on his statutory appeal, the applicant had approached this Tribunal in Contempt Petition No.916/2011, which came to be dropped and closed by this Tribunal on 01.09.2012, after the order on his statutory appeal dated 18.11.2011 had been placed on record.
5. The applicant is now before this Tribunal assailing the order of the Appellate Authority, and praying for it to be quashed, as arbitrary and illegal, because the original dismissal order dated 09.06.2011 passed by the Respondent No.2 was itself without jurisdiction as per the delegation of powers. The applicant has submitted that the appointing authority of the applicant was Additional Commissioner, as it was on the orders of the Additional Commissioner regularizing the services of 410 Asstt. Sanitary Inspectors vide his order dated 28.07.1993, that the order of appointment was issued to him through Annexure P-2 dated 19.08.1993.
6. He has further alleged non-application of mind on the part of the respondents, and also submitted that neither appropriate hearing was afforded to the applicant, nor any departmental enquiry was conducted, before his services were dispensed with. He has taken further ground that since the sentence awarded to him by the Ld. Trial Court has already been suspended by the Honble Delhi High Court, after he had filed a Criminal Appeal No.1305/2010, therefore, the impugned orders are liable to be set aside.
7. In support of his contention and grounds, the applicant has cited the case of another person, Shri R.K. Gupta, and had tried to derive the benefit on the basis of the facts of that case. He has taken the ground that his services could have been dispensed with only if he had already lost his first appeal, and not otherwise, and in support of his contention, he has cited the case of Municipal Committee, Bahadurgarh, vs. Krishan Behari & Ors. AIR 1996 SC 1249. He had also submitted that there was an unexplained long delay in between when the applicant was convicted, and that the orders of the Honble High Court suspending his sentence were passed, which delay has not been considered while passing the impugned order on his representation dated 12.05.2011 by way of a statutory appeal through the impugned order. In the result, he had prayed for quashing of the impugned order dated 18.11.2011 passed by respondent No.1, as well as the original order passed by Respondent No.2 dated 09.06.2011, and costs etc. being awarded.
8. The respondents filed their counter reply explaining the circumstances in which a trap was laid by the CBI and the applicant was caught red handed while accepting a bribe, and the subsequent events as already discussed above. It was pointed out by the respondents that Section 95(2) (a) of DMC Act stipulates that while a reasonable opportunity of showing cause against the action proposed to be taken has to be given to a delinquent employee, but this provision does not apply where an officer or any other employee is removed or dismissed on the ground of conduct which has led to his conviction on a criminal charge. It was also submitted that Regulation 9(i) of the DMC Services (Control & Appeal) Regulations, 1959, specifically stipulates that where a municipal officer or other municipal employee is removed or dismissed on the ground of conduct which had led to his conviction on criminal charge, the Disciplinary Authority may consider the circumstances of the case and pass such orders as deemed fit. They had also cited the very same case of Municipal Committee, Bahadurgarh vs. Krishan Behari & Ors.(supra) to submit that Honble Apex Court has laid down the proposition of law that in cases involving corruption, there cannot be any other punishment other than dismissal. They had, therefore, stoutly defended the impugned orders dated 18.11.2011 passed by the Appellate Authority on the statutory appeal filed by the applicant, which was communicated to him on 01.12.2011.
9. The applicant filed a rejoinder also, more or less reiterating his contentions that the impugned orders are bad in law, and liable to be quashed. He had again found fault with the respondents in having terminated his services, even while his appeal was pending before the Honble High Court, and its outcome was not known, and he had again cited the case of one Shri R.K. Gupta in support of his contention.
10. The respondents filed another additional counter affidavit on 26.11.2012, more or less reiterating their contentions as already raised in the counter reply, and controverting the stand of the applicant para by para. They had also filed a copy of the order of appointment of the applicant dated 12.08.1988 in order to be able to show that he had been appointed with the MCD under the orders of the Deputy Commissioner (Health), and not under the orders of Additional Commissioner, as has had been contended by the applicant. They had also filed a copy of the order dated 27.07.2011 passed in the case of Shri R.K. Gupta, behind which the applicant had tried to seek shelter.
11. The applicant thereafter filed rejoinder to that also, again reiterating his contentions that since the regularization of his services was ordered by the Additional Commissioner (P) in a list of 410 candidates, even though his initial appointment dated 12.08.1988 was under the orders of Deputy Commissioner (Health), his appointing authority was the Additional Commissioner.
12. Heard. During arguments in the case, much emphasis was laid by both sides on the Schedule of delegation of powers (at page 62 of the paper book of the OA). It is seen that in the said schedule, related to Schedule 7 of the MCD Rules and Regulations, in the case of Category B and C posts, the Commissioner and Deputy Commissioner are respectively the authorities competent to impose penalty in respect of Category B and C posts, respectively, and where the appointment was made by the Deputy Commissioner, as given in (2) (iii), either the Deputy Commissioner, or any Municipal officer or employee to whom powers to impose penalty is delegated under Section 491 of the Act is competent to impose the penalties. Under the relevant MCD regulations, the Appellate Authorities have also been designated in the 4th Column of the said Schedule. On perusal of the papers as filed in the paper book, and the document at page-96 of the paper book, it is clear that the orders of appointment of the applicant dated 12.08.1988 were issued consequent upon the orders of Deputy Commissioner (Health) of the MCD.
13. During arguments the learned counsel for the applicant sought shelter behind the Honble Delhi High Court judgment in Municipal Corporation of Delhi vs. B.B. Bajaj 2012 III AD (DELHI) 366 to state that since no opportunity was given to the applicant to show cause against any enquiry report, and straightway a penalty was imposed, the cited judgment would protect the case of the applicant. He had also cited the case of Delhi Development Authority vs. S.C. Gautam 2012 V AD (DELHI) 627 in which the Honble Delhi High Court had held that if removal from service was minimum penalty which ought to have been awarded to respondent, it was not necessary for Disciplinary Authority to indicate reason for awarding this penalty. This second judgment actually does not support the case of the applicant at all.
14. During arguments learned counsel for the applicant had also filed written submissions, and along with that he had filed a fresh Office Order dated 22.08.1988, which had not been filed by him along with OA, or at any other stage of the pleadings, from which we observe that the last line of page-3 of the order states that it was issued after the Deputy Commissioner (Health) having approved the list on 19.08.1988. Therefore, the applicant cannot derive any benefit from the same. He had also filed along with the written submissions copies of the judgments of the Honble Delhi High Court in Municipal Corporation of Delhi vs. Ravinder Kumar Gupta Since Deceased Represented By His LRs 28 (1985) Delhi Law Times 176 in which the Honble Delhi High Court had held that when the respondents had been appointed by the Commissioner, but dismissed by Deputy Commissioner, it was not legal and proper. He had also filed a copy of the judgment of the Honble Apex Court in The Management of Delhi Transport Union vs. Shri B.B.L. Hajelay and Another (1972) 2 SCC 744, through which also the learned counsel for the applicant had sought to submit that disciplinary action of removal from service orders could not have been passed by an authority junior to the appointing authority. He had also filed a copy of the judgment in Municipal Corporation of Delhi vs. Mukhtiar Singh 22 (1982) Delhi Law Times 367, but that case does not support the case of the applicant, since in that case the Honble Delhi High Court had held that when an employee had been promoted as Upper Division Clerk by Assistant Commissioner (Establishment), and confirmed by Deputy Commissioner (Establishment), under power delegated to him by Commissioner under Section 491, the Deputy Commissioner can impose penalty and remove employee from service for misconduct. To our mind this judgment does not come to the rescue of the applicant. He had also filed a copy of the judgment of the Honble Apex Court in Municipal Corporation of Delhi vs. Shri Ram Pratap Singh 1979 AISLJ (SC) 499, in which it was held that though the departmental enquiry was held in accordance with the rules and principles of natural justice, but the respondent employee had been dismissed from service by Deputy Commissioner, i.e., an officer subordinate to Commissioner, by whom he has been appointed. The Honble Apex Court had then held that order of dismissal was bad in those circumstances, and illegality had crept in from the stage the Deputy Commissioner took the decision to dismiss him, and the Honble Apex Court had remanded the case to the Commissioner to consider the matter on merits, untrammeled by the conclusions reached by the Deputy Commissioner. In this particular case before us, we find that the Commissioner had applied his mind to the statutory appeal of the applicant, and since his Appointing Authority was a Deputy Commissioner, it cannot be said that the original order of his dismissal from service was bad.
15. Learned counsel for the respondents had very laboriously pointed out to the Schedule at page-62 of the paper book, and had reiterated their contention that the Deputy Commissioner was the original appointing authority of the applicant, and was fully competent to pass an order of applicants removal from service, and that in the spirit of the judgment of the Honble Apex Court in MCD vs. Ram Pratap Singh (supra), the Commissioner had also independently considered the representation/statutory appeal of the applicant, and had arrived at his own independent conclusion. Here it would be appropriate to reproduce the last two Paragraphs of the order dated 18.11.2011 of the Commissioner (MCD), which states as follows:-
Whereas in the appeal filed against the orders of the disciplinary authority the main contention of Shri Lalit Gupta is that he has filed an appeal against the orders of the Honble Court of Special Judge CBI before the Honble Court of Delhi and the Honble Court has suspended the sentence. Hence no action can be taken against him by invoking the provisions of Regulation 9(1) of the DMC Services (Control & Appeal) Regulations read with Section 95(a)(2) of the DMC Act. He has requested that the orders of the Disciplinary Authority may be set aside and he may be reinstated in service.
I have gone through the allegation of charges levelled against Shri Lalit Gupta Ex. ASI orders dated 23/10/2010 and 27/10/2010 of the Honble Court of Shri V.K. Maheshwari Special Judge CBI in CC No.30/2004; orders of the disciplinary authority dated 06/06/2011; plea taken by the ex charged official in the appeal and other relevant record of the case. The Honble Supreme Court of India in the matter of Municipal Committee Bahadurgarh v/s. Krishan Bihari (AIR 1996 SC 1249) has laid down the position of law that in cases involving corruption there cannot be any other punishment than dismissal. Similarly OM No.55-DSP-25 dated 10/06/1985 of CVC stipulates that the disciplinary authority need not wait for the period of an appeal or if the appeal is filed for the decision in the first Court of the appeal and should issue an order imposing punishment whatever is considered appropriate on the concerned employee. Article 311 (2) (a) stipulates that where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. Regulation 9 (i) of the DMC Services (Control & Appeal) Regulations 1959 stipulates that where a municipal officer or other municipal employee is removed or dismissed on the ground of conduct which has been led to his conviction on criminal charge there is no need to follow the procedure for imposing major penalties as laid down in Regulation 8 of the DMC Services (Control & Appeal) Regulations 1959. In the instant case the Honble High Court of Delhi has not set aside the conviction of Shri Lalit Gupta Ex. ASI but only admitted his appeal and suspended his sentence till disposal of the appeal. A further perusal of Regulation 6 of the DMC Services (Control & Appeal) Regulations 1959 reveals that the penalty of dismissal from service is ordinarily a disqualification of future employment. Hence considering all facts and relevant records of the case including the relevant provisions of law as discussed above I hereby amend the orders of the disciplinary authority dated 03/06/2011 only to the extent that the penalty of dismissal from service shall ordinarily be a disqualification for future employment which has already been inflicted upon Shri Lalit Gupta Ex. ASI in the instant case. The appeal of Shri Lalit Gupta Ex. ASI stands disposed off.
Further necessary action may be taken in the matter.
(K.S. MEHRA) Commissioner 18/11/2011
16. In the light of the judgments of the Honble Apex Court in the case of Deputy Inspector General v. S. Samuthiram [(2013) 1 SCC 598] and Commissioner of Police, New Delhi & Anr. vs. Mehar Singh (2013) 7 SCC 685, and State of West Bengal vs. Sankar Ghosh (Civil Appeal No. 10729 of 2013 , it is clear that the Honble Apex Court has held that even if an employee has been acquitted in a criminal case, the departmental authorities can still take departmental disciplinary action against the delinquent Government official. Here, in the instant case, the applicant actually already stands convicted by a Criminal Court, and only his sentence has been suspended, and suspension of sentence does not amount to setting aside of the orders of his conviction. Therefore, we do not find that the respondent-authorities have in any manner erred in having taken the view which they have taken, as reproduced above from the impugned order of the Commissioner.
17. In the result, the OA is, therefore, dismissed, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar)
Member (J) Member (A)
cc.