Central Administrative Tribunal - Delhi
Rameshwar Dayal vs Delhi Transport Corporation, Govt. Of ... on 1 August, 2023
1
OA No.2345 of 2015
Court No.6 (item No.49)
Central Administrative Tribunal
Principal Bench
OA No.2345 /2015
Reserved on: 12.07.2023
Pronouncement on: 01 .08. 2023
Hon'ble Dr.Chhabilendra Roul, Member (A)
Sh. Rameshwar Dayal (Designation: Driver)
Aged 54Years
S/oLate Sh. Ram Chander
R/o House No. 290, A-Block
Nathu Colony, Nathupura, Delhi
-Applicant.
(Present :Mr. Mukesh Kadera)
Versus
1. The Chairman cum Managing Director
Delhi Transport Corporation
Office at DTC Head Quarter
I.P. Estate, New Delhi-110002.
2. The Regional Manager,
Delhi Transport Corporation, North Region
Office at Netaji Subhash Place Depot Complex
New Delhi-110034
3. The Manager (Mech.)
Region North, B.B.M. Depot-II
New Delhi-110009.
-Respondents
(Present : Ms. Aarti Mahajan)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):- 2 OA No.2345 of 2015
Court No.6 (item No.49) The present Original application has been filed by the applicant against the order dated 4.6.2015 issued by Respodent no.3 rejecting the representation of the applicant for revocation of suspension from the date of suspension and payment of full pay and treating the period as spent on duty.
2. The brief facts of the case are that the applicant joined as a Driver with Respondents Corporation (the Delhi Transport Corporation). The applicant had an altercation with his neighbor, one Mahender Singh on 12.7.2014 and the event took an ugly turn. FIR no. 321 of 2014 US 308/34 , P.S. Swaroop Nagar was filed against the applicant and others on 12.7.2014. The applicant and other accused were arrested by the police and sent to judicial custody on 13.7.2014. The applicant was released on bail on 17.7.2014. 2.1 The respondents sought detailed information regarding his arrest and subsequent judicial custody and release on bail from the applicant vide their letter dated 23.7.2014 . The applicant furnished the information, the copy of the FIR and the release order to the respondent No.3. The respondent No.3, vide his 3 OA No.2345 of 2015 Court No.6 (item No.49) order dated 8.8.2014 placed the applicant under suspension with effect from 13.7.2014. 2.2 The applicant and other accused in the afore mentioned criminal case entered into a compromise with the affected parties and the High Court of Delhi vide their order dated 17.3.2015 accepted the compromise deed dated 12.1.2015 and quashed the FIR No.320/2014 and FIR No.321/2014 with the condition that the petitioners and respondents Nos.2 to 5 in the criminal M.C. No.677/2015 shall furnish their personal bonds of good conduct for a period of one year.
2.3 On receipt of the order of the Delhi High Court dated 17.3.2015, respondent no.3 revoked the suspension of the applicant and reinstated in service vide order dated 30.4.2015. The applicant submitted a representation to the respondents on 21.5.2015 requesting for revocation of the suspension with effect from the date of suspension and treating the suspension period as period spent on duty for all purposes., including payment of full pay and allowances. The respondent no.3 vide order dated 4 OA No.2345 of 2015 Court No.6 (item No.49) 4.6.2015 (impugned order) rejected the request by the applicant stating the following:-
" As per the orders of the Hon'ble High Court dated 17.3.15, you have not been acquitted from the charges but both the parties have compromised, proceedings pursuant thereto have been quashed qua subject to furnish the personal bonds of good conduct for a period of one year and cost of Rs. 50,000/- has been imposed while quashing the FIR. by the Hon'ble High Court. After considering the orders of Hon'ble High Court passed on 17.3.15, you were released from suspension & the subsistence allowances already paid to you during the period of your suspension were considered adequate vide letter dated 30.4.15. Hencé, you are' not entitled for the payment of full pay and allowances for the period of suspension. It is also informed that further benefits liable to you in future will be considered time to time. as per laid down procedure."
3. Being aggrieved by the aforesaid order, the applicant has come to this Tribunal in the present OA seeking the following relief:
"(i). To direct the respondents to grant revocation of suspension with effect from the date of suspension and applicant be treated as on duty for all purposes.5 OA No.2345 of 2015
Court No.6 (item No.49)
(ii). To direct the respondents to grant full pay and allowances to applicant for the period during which he remain under suspension.
(iii). To direct the respondents that for the purpose of promotion the fact of suspension not be taken into consideration.
(iv) To direct the respondents that for the purpose of pension and seniority the said period of suspension is to be counted as qualifying service and specific entries may be made in service record of applicant regarding counting of suspension period as qualifying service.
(v). To allow the OA with costs.
(vi). Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants."
4. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
5. The applicant in his OA as well through his learned counsel during the arguments have forwarded the following grounds seeking the aforementioned relief:
6OA No.2345 of 2015
Court No.6 (item No.49) 5.1 The first ground tendered by the learned counsel for the applicant in support of the claim of the applicant refers to the lack of competency by Respondent no.3 in ordering the suspension and subsequent revocation of the same after a considerable time gap. Hence, the learned counsel for the applicant has assailed the very action of the respondents in suspension and subsequent revocation as invalid ab-
initio. The learned counsel relied on the assertion by the applicant in the OA referring to the pleading that Respondent No.3 is not the Appointing Authority of the applicant within the meaning of Rule 2(a) of CCS CCA Rules and hence, he is not competent to suspend the applicant. In support of his averment, the learned counsel for the applicant cited the judgment of Hon'ble Delhi High Court in S.K. Mittal vs Union of India in RSA no.5 of 1972 decided on 26.7. 1974. It was held that that Article 311 of the constitution of India prohibits any authority other than the one by which the civil servant was been appointed to remove an employee. In the instant case , Respondent no.3 is not the appointing authority of the applicant. Hence, the initial suspension and subsequent revocation of the 7 OA No.2345 of 2015 Court No.6 (item No.49) suspension by respondent no.3 is illegal and bad in law.
5.2 The other ground for seeking the aforementioned relief, as averred by the learned counsel for the applicant referring to the pleadings in the OA is the action of the respondents are contrary to the provisions contained in various guidelines issued by the Department of Personnel from time to time regarding review of suspension of a government servant before expiry of 90 days of the initial suspension. The learned counsel for the applicant referred to Rule 10(6)and (7) of the CCS CCA Rules and instructions contained in OM No. 11012/4/2007-Estt.(A) dated 12th July 2007 according to which every suspension shall be reviewed before expiry of 90 days. He averred that no such review had been carried out in the instant case. Hence, the extension of suspension beyond 90 days is invalid. Moreover, no such order of extending the suspension period beyond 90 days has been issued. Hence, the subsequent revocation of the suspension with effect from 30.4.2015 is against statutory provisions. 5.3 In support of his averment, the learned counsel for the applicant cited the provisions contained in OM 8 OA No.2345 of 2015 Court No.6 (item No.49) No. Admn1-9(1)/2014/893-904 dated 25.11.2014 issued by the Delhi Transport Corporation. The relevant portion of which is reproduced below:-
" It has been decided that Suspension cases related to criminal activities where the employees remain under police custody / judicial custody as well as suspension cases of all the officers will be dealt by the Suspension Review Committee constituted for the purpose.
It has repatriated again that those cases where employees have been acquitted by the Hon'ble Court need not to be sent to the Suspension Review Committee. For other cases of employees who have not involved in the criminal activities, concerned Disciplinary Authority should take decision at his own level.
The status of all suspension cases clearly indicating the charges i.e. the date of suspension and released from suspension may also be forwarded from January, 2014 onwards for kind perusal of the Committee.
All Depot Managers / Unit Officers are requested to adhere the above guidelines, strictly.
This has the approval of the Competent Authority."
5.4 The very fact that this OM of DTC refers to the matter regarding review of suspension relating to the cases in which the suspension is on account of 9 OA No.2345 of 2015 Court No.6 (item No.49) involvement of the government servant suspended because of criminal cases, it implies that DTC has adopted the DOPT practice of review before expiry of 90 days of suspension.
5.5 Furthermore, the learned counsel refereed to the judgment of the Apex Court in Union of India & ors vs Dipak Mali in SLP © No. 6661 of 2006 delivered on 15.12.2009 wherein it was held:-
11. The case sought to be made out on behalf of the petitioner, Union of India as to the cause of delay in reviewing the Respondent's case, is not very convincing. Section 19(4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted.
In this case, what is important is that by operation of Sub-rule (6) of Rule 10 of the 1965 Rules, the order of suspension would not survive after the period of 90 days unless it was extended after review. Since admittedly the review had not been conducted within 90 days from the date of suspension, it became invalid after 90 days, since neither was there any review nor extension within the said period of 90 days. Subsequent review and extension, in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension.
According to this, the learned counsel for the applicant averred, that it is settled that if there is no review before the expiry of 90 days, further suspension is invalid in the eyes of law.
10OA No.2345 of 2015 Court No.6 (item No.49) 5.6 The above position has been adopted by this Tribunal n the order dated 12.8.2011 in Hari Om vs GNCTD and Ors, OA no. 217/2011. This Tribunal qushed the extension of suspension which was issued after expiry of 90 days.
5.7 The learned counsel for the applicant further averred that the FIR against the applicant was not connected with discharge of the official duty of the applicant. Hence, the harsh action of suspension by the respondents and extending it without extension order and without review committee recommendations were not warranted.
5.8 The third ground tendered by the learned counsel for the applicant is that the Respondents have not applied their mind properly to the rule position while disposing of the representation of the applicant dated 21.5.2015. The impugned order dated 4.6.2015 has not considered the plea of the applicant that the suspension should have been reviewed before expiry of 90 days and hence, the revocation should have been with effect from the day he was suspended. This plea was never discussed in the impugned order. Hence, the 11 OA No.2345 of 2015 Court No.6 (item No.49) impugned order is non-speaking and contrary to the statutory provisions as cited above.
6. Per contra, the learned counsel for the respondents rebutted the contention of the learned counsel for the applicant.
6.1 As regards to the averment by the learned counsel for the applicant regarding lack of competency by respondent no.3, the learned counsel for the respondents invited the attention of this Tribunal to Rule 15 of the DRTA ( Conditions of Appointment and Service) Regulations 1952 which states that DRTA ( DTC) may from time to time issue standing Orders governing the conduct of its employees. It has provision for delegating the powers of suspension by the Appointing Authority to any other subordinate officer. It specifically states:-
15. Conduct, Discipline and Appeal :- (1) Conduct:-
The Delhi Road Transport Authority may from time to time issue standing orders governing the conducvt of its employee. A breach of these orders will amount to misconduct.
(i)(A) Suspension pending enquiry or criminal investigating etc. the appointing authority or any officers delegated with powers by the appointing authority in this behalf may place an employee under suspension.12 OA No.2345 of 2015
Court No.6 (item No.49)
(i) Where a disciplinary proceeding against him is contemplated or is pending ; or
(ii) Where a criminal proceeding against him in respect of any offence is under investigation or Trial.
A statement setting out in detail the reasons for such suspension shall be supplied to the employee within a week from the date of suspension.
(1) (b). An employee who is placed under suspension under sub clause (1A) above shall during the period of such subsistence allowance at the rate indicated suspension be paid in clause15(4) (a) (b).
6.2 The learned counsel for the respondents further averred that vide Order No. Admn.I.-8(55/89) dated 29.6. 1989 the DTC has issued the delegation of powers to various Authorities. In case of class III and IV employees the powers of appointing authority has been delegated to the depot manager where such employees are working/deployed appointed against sanctioned posts. (Annexure -R4) 6.3 The learned counsel for the Respondents further stated that the initial suspension was based on deemed suspension of the applicant as he remained under judicial custody from 13.7.2014 to 17.7.2014. Hence, the initial suspension cannot be termed illegal. He cited the judgment of Nagpur Bench of Bombay High Court 13 OA No.2345 of 2015 Court No.6 (item No.49) in WP ( C ) 5319 of 2022 in Mr Gopal vs Union of India decided on 5.9.2022 where in it was held That;
"16. When suspension is ordered invoking rule 10(1) of the CCS CCA Rules as an interim suspension, i.e., in contemplation of a disciplinary proceeding or during such proceeding, it is largely within the discretion of the Disciplinary Authority. He may or may not order a suspension. Here, however, the case is different. In view of 9 wp-5319-
22.docx rule 10(2) of the CCS CCA Rules, exercise of discretion was not involved at all. The petitioner was deemed to have been placed under suspension on the expiry of 48 hours since the time he was taken into custody. For a deemed suspension to take effect, even no immediate order in writing is necessary. Such suspension takes effect by operation of law. There can, therefore, be no dispute that in placing the petitioner under suspension, his Disciplinary Authority did not have to exercise discretion in any measure. The suspension of the petitioner, brought about by operation of law, had the effect infusing life into a law and the same can hardly be impeached as unjustified. We, therefore, see no reason to hold that the order of suspension, at the inception, was unjustified on facts and in the circumstances."
In the instant case, the suspension is deemed suspension and hence, the averment by the applicant and his counsel that the initial suspension is illegal on this account is not tenable.
6.4 As regards to the averments by the learned counsel for the applicant that the applicant is entitled for back wages because the suspension was not 14 OA No.2345 of 2015 Court No.6 (item No.49) reviewed by the screening committee before the expiry of 90 days of suspension, the leraned counsel for the applicant refereed to the para 9 of the Gopal ( supra ) judgement of the Nagpur bench of the Bombay High Court wherein it was held:
"9. It is not in dispute that rule 54-B of the Fundamental Rules (hereafter "FR", for short) is one of the relevant rules that applies to the petitioner. Sub-rule (3) of rule 54-B of the FR has been held by the Supreme Court in M. Prabhakar Rao (supra) to vest power on the authority competent to order reinstatement to form an opinion whether the suspension of a Government servant was wholly unjustified and if, in his opinion, the suspension of such a servant is wholly unjustified, to decide on payment of full pay and allowances to which he would have been entitled but for such suspension. According to the Supreme Court, the rationale on which sub-rule (3) of rule 54-B is based is that during the period of suspension an employee does not work and, therefore, he is not entitled to any pay unless after the termination of the disciplinary proceedings or the criminal proceedings the competent authority is of the opinion that the suspension of the employee was wholly unjustified. The Supreme Court was of the further opinion that sub-rule (3) of rule 54-B does not say that in a case of acquittal, the employee would be entitled to his salary and allowances for the period of suspension. Also, such sub-rule (3) vests power on the competent authority to order that the employee will be paid full pay and allowances for the period of suspension if he is of the opinion that the suspension was wholly unjustified;
hence, even where the employee is acquitted of the charges in criminal trial for lack of evidence or otherwise, it is for the 7 wp-5319-22.docx competent authority to form its opinion whether the suspension of the employee was wholly unjustified and so long as such opinion of the competent authority was a possible view in the 15 OA No.2345 of 2015 Court No.6 (item No.49) facts and circumstances of the case and on the materials before him, such opinion of the competent authority would not be interfered with by the Tribunal or the Court."
The learned counsel for the respondent stated that in the instant case, the Competent Authority had not furnished justifiable reason to continue the suspension during the pendency of the criminal proceedings and when the applicant was at large on bail.
7. I have perused the records of the case thoroughly and heard the arguments carefully. I fully agree with the averment of the learned counsel for the respondents that the initial suspension was deemed suspension on account of the fact that the applicant remained under judicial custody from 13.7.2014 to 17.7.2014. Hence, the initial suspension cannot be assailed because of the statutory provisions and settled law. As regards to the competency of the Respondent no.3 to suspend or order revocation of suspension, the learned counsel for the respondents have convincingly demonstrated that Regulation 15 of the DRTA ( conditions of Appointment and Service ) Regulations, 1952 and Order No. Admn.I.-8(55/89) dated 29.6.1989 the DTC has delegated the powers of 16 OA No.2345 of 2015 Court No.6 (item No.49) Appointing Authority in respect of Class III and IV employees to the Depot. Manager. In view this, the Depot Manager, i.e. Respondent no.3 was competent to order suspension and revocation of the suspension of the applicant who was/is a driver in the said depot of DTC.
7.1 This leaves the issue whether the continuation of the suspension of the applicant beyond the initial 90 days was legal or not. Rule 10(6 & 7) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 Sates:-
"6) An order of suspension made or deemed to have been made under this rules shall be reviewed by the authority which is competent to modify or revoke the suspension, before expiry of ninety days from the effective date of suspension, on the recommendations of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension.
Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.
7. An order of suspension made or deemed to have been made under sub-rule (1) or (2) of this rule shall not be valid after a period of ninety days 17 OA No.2345 of 2015 Court No.6 (item No.49) unless it is extended after review, for a further period before the expiry of ninety days.
Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2). If the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority whichever is later:"
7.2 A bare reading of these provisions shows that an order of suspension or suspension shall not be valid after a period of 90 days unless it is extended after review for a further period before the expiry of the 90 days. In the instant case, the respondents have failed to bring any contrary regulatory position prevalent in DTC. In absence of any contrary regulatory provision or prevalence of any specific rules in DTC, the CCS(CCA) Rules are applicable. The respondents have failed to furnish any documentary evidence regarding the proceedings of any Review Committee nor any order extending the suspension beyond the initial period of 90 days. Moreover, in the instant case, the applicant was released on bail on 17.7.2014 after 4 days 18 OA No.2345 of 2015 Court No.6 (item No.49) remaining in the judicial custody. It was the bounden duty of the respondents to take stock of the changed circumstances and take a conscious view whether the suspension of the applicant would have continued.
Because, the applicant was undergoing the criminal investigation, that did not warrant automatic extension of the suspension of the applicant beyond the initial 90 days. I n vie w of this, the continuation of the suspension of the applicant beyond the initial 90 days is invalid. Accordingly, he is entitled to get all benefits treating the period of suspension from the 91st day of suspension till the revocation of the suspension on 30.4.2015. The applicant is entitled to get full salary for the said period as well as all other allowances and service benefits like seniority, promotion, etc., if he is entitled to get such benefits otherwise, as per Rules.
7.3. The OA succeeds in above terms. No order as to costs.
(Dr. Chhabilendra Roul) Member (A) /mk