Delhi High Court
S.P. Thukral vs Delhi Development Authority on 11 August, 2005
Equivalent citations: 123(2005)DLT123, 2005(84)DRJ49
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
1. The petitioner is aggrieved by an order dated 13.06.2002 by which respondent (hereafter called DDA) decided that the period of his suspension shall be counted only for pensionary benefits and that the full pay would not be admissible.
2. The petitioner was an employee of the DDA. He was charged with demanding and accepting an amount of Rs. 20,000/- on 28.10.97 as illegal gratification. Criminal proceedings were initiated and the petitioner stood trial for having offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988. The petitioner, at the relevant time was working as Deputy Director in the Housing Department of DDA.
3. The petitioner was placed under suspension on 28.10.97. The criminal trial eventually culminated in acquittal of the petitioner; the Special Judge, by his judgment and order dated 31st day of 2001 noticed that two witnesses, namely, the complainant and the shadow witness, for the prosecution did not support the case of the prosecution and were declared hostile and that the case had not been proved beyond reasonable doubt. He held that the prosecution failed to establish the demand and acceptance of bribe by the accused, [namely, the petitioner] and accordingly concluded that the case was not proved beyond reasonable doubt. The petitioner was, therefore, acquitted by giving the benefit of doubt.
4. The DDA, by an order dated 29th August 2001 revoked the petitioner's suspension. A show cause notice was issued to the petitioner on 03.09.2001, as to why payment for the suspension period in his case be not restricted to the subsistence allowance already disbursed to him. The petitioner replied, contesting the proposal to restrict the amounts payable, to the subsistence allowance received by him during the period of suspension on 16.09.2001. By order dated 12.11.2001, the Vice Chairman DDA confirmed the proposal and in exercise of powers under Regulation 22 of the Delhi Development Authority Conduct, Disciplinary and Appeal Regulations 1999 ('The Regulations') and ordered that the suspension period in question, namely, 28.10.97 to 29.08.2001, would not be treated as period spent on duty on the ground that the acquittal was on account of benefit of doubt granted to the petitioner. An appeal was preferred to the Chairman (Lieutenant Governor), the appellate authority. By order, dated 08.05.2002, the appellate authority rejected the appeal. This was communicated to the petitioner on 13.06.2002. The present appeal impugns this decision.
5. The petitioner's contention is that in terms of Regulation 22, there is no choice for the DDA and that since the petitioner stood exonerated and was reinstated into the service unconditionally, he could not be denied or deprived the benefit of full salary for the period in question.
6. The respondents have taken the stand that payment of salary and allowances on the revocation of suspension or upon the reinstatement of an employee is a matter of discretion and no one has a vested right to claim release of full salary and emoluments. The Regulations empower the authority concerned with discretion to grant or refuse full salary or release only part of the salary for the period of suspension, having regard to the facts of the case. The DDA relied on the very same provision, namely, Regulation 22.
7. During the course of the hearing, the parties reiterated the respective positions taken by them. Mr. D.N. Vohra, learned counsel for the petitioner submitted that the second paragraph of Regulation 22 vested no discretion. If an employee was not imposed any penalty and was reinstated, the DDA could not withhold any part of his salary or allowances. All amounts withheld during the period of suspension have to be released. He relied upon the judgment of the Himachal Pradesh High Court reported as 1985(3) SLR 254 in support of his submissions. He also submitted that the penalties that can be imposed upon an employee have been defined in Regulation 23. Admittedly, the petitioner was not imposed with any of those penalties, in the present case. Hence, the denial of the full salary by the DDA is arbitrary and without authority of law.
8. Mr. Arun Birbal, learned counsel appearing for the respondent, on the other hand submitted that full reading of Regulation 22 would lead to only one conclusion, namely, that the authority in question is invested with the discretion to pass an appropriate order with regard to release of salary for the duration of the period of suspension. He submitted that in the absence of the second paragraph in Regulation 22, the claim for full salary would perhaps have been entertained. However, the intention of the DDA was to confer discretionary power and not create an automatic right to restoration of full salary upon the reinstatement of every delinquent employee. He also sought to submit on the merits of the case, that having regard to the nature of the prosecution and the fact that the petitioner was given benefit of doubt, the respondents thought it appropriate, to restrict the benefit to the subsistence allowance already granted to the petitioner, which were to the tune of about 50%. It was further submitted that in any case, the petitioner's pension and terminal benefits were not curtailed; he is in enjoyment of full pension. Such being the circumstances, it was submitted that the approach of the respondents cannot be termed as arbitrary or illegal.
9. Learned counsel also relied upon the judgment of the Supreme Court reported as Krishan Kant Raghu Nath Biphavna v. State of Maharashtra as also State of Assam v. Raghava Raj Gopalachari 1972 SLR.44, to say that there is a public interest element involved in cases wherever the claim for restoration of full salary is made by reinstated employee, in respect of the period of his suspension.
10. Regulation 22 reads as follows :
"1. When the employee under suspension is reinstated the competent authority may grant him the full pay and allowances for the period of suspension.
If the employee is exonerated and not awarded any of the penalties mentioned in Regulation 23, the full pay and allowances which he would have been entitled to if he had not been suspended, less the subsistence allowance already paid to him and;
In a case falling under sub-clause (a) the period of absence from duty will be treated as a period spent on duty. In cases falling under sub-clause z(b) it will not treated as period spent on duty unless the competent authority so directs.
11. Two issues arise in this case. The first is, whether the DDA is under a positive obligation to release full salary and allowances wherever an employee is reinstated into the services after having been acquitted in a criminal trial. In my considered opinion, the structure of the Regulation does not permit such an interpretation. The first and third paragraph of the Regulation confer discretion upon the authority to grant or withhold pay and allowances for the period of suspension. The exception to this is contained in the second paragraph where an employee is "exonerated" and not awarded any of the penalties listed in Regulation 23. In the present case admittedly, no order of penalty was passed. However, it is equally true that no disciplinary proceeding was ever initiated that could have culminated in an order of penalty under Regulation 23. On the other hand, what happened was that the petitioner was placed under suspension in terms of Regulation 20(2) namely, since the case in respect of a criminal offence was under investigation and trial. This factor is significant since suspension can be on other counts too, including where the disciplinary proceeding against an employee are contemplated or are pending. It is only in cases where disciplinary proceedings are initiated that penalties can be imposed under Regulation 23. Any other interpretation would lead to an anomalous situation. Hence, I am of the view that the petitioner could not claim to automatic restoration of full salary and allowances for the period of his suspension.
12. The second issue is whether the order restricting the entitlement to amounts payable to the subsistence allowance paid to the petitioner during the period of his suspension is reasonable. In this context, the Supreme Court in its judgment reported as Krishan Kant Raghu Nath (supra) had stated that if the conduct alleged is the foundation for prosecution, though it may end in acquittal, on appreciation of lack of sufficient evidence, the fact about the prosecution and the other circumstances would be relevant to a decision on the issue. It was held that an employee cannot claim full salary for the time of suspension as a matter of course and that it would be deleterious to the maintenance of discipline if a person suspended on valid considerations is given full back wages as a matter of course due to his acquittal. In view of these considerations, the Supreme Court had declined to grant of consequential relief of full salary for the period spent under suspension. Similarly, in the judgment reported as State of Assam (supra), the effect and purport of fundamental Rule 54, which deals with an identical situation was explained.
13. In my considered opinion, and having regard to the facts of the case and the ratio of the judgment of the Supreme Court, the denial of full salary and allowances, in the present case, cannot be termed arbitrary or illegal. The petitioner was admittedly paid subsistence allowance for the period of his suspension. He has also not been further penalized; he has retired on full pension. In fact the DDA decided to count the entire period of suspension for pension purposes.
14. In view of the above discussion, I am of the opinion that the petition is lacking in merits. It is accordingly dismissed with no order as to costs.