Central Administrative Tribunal - Delhi
Sushil Kumar vs New Delhi Municipal Council on 16 October, 2025
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Item No. 76 (C-3) O.A. No. 929/2019
/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 929/2019
/2019
Reserved on: 06
06.10.2025
Pronounced on: 16.10.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
SUSHIL KUMAR (MALI)
S/O Sh. Brahmanand
Emp. Code No. 297011
Horticulture Department
NDMC, 'C'' 55 years,
R/O: 17, Aliganj,
Kotla Mubarakpur,
New Delhi.
...Applicant
(By Advocate: Mr. Rajesh Chauhan)
Chauhan
Versus
1. New Delhi Municipal Council
Through its Director (Horticulture)
Palika Kendra, New Delhi.
2. The Chairman / Appellate Authority
New Delhi Municipal Council
Palika Kendra, New Delhi.
Delhi
3. The Secretary / Disciplinary Authority
New Delhi Municipal Council
Palika Kendra, New Delhi.
Delhi
...Respondents
(By Advocates: Mr. Vaibhav Agnihotri with Mr. Ankit Singh
Singh)
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Item No. 76 (C-3) O.A. No. 929/2019
/2019
ORDER
Hon'ble Mr. Manish Garg, Member (J) :
In the present Original Application, the applicant has prayed for the following reliefs:
"a) To set aside the order bearing
No.127/PB/F.No.174/Vig./Imp/IOVII(s)/2018 dated
05.09.2018 passed by the respondent No.3 (Disciplinary Authority/Secretary, New Delhi Municipal Council, Palika Kendra, New Delhi) whereby the services of the applicant has been removed.
b) To set aside the order bearing No.175/PB/F.No.174/Vig./Imp/I No.175/PB/F.No.174/Vig./Imp/IOVII(s)/2018 dated 26.12.2018 passed by the respondent No.2 (Chairman/Appellate Authority, New Delhi Municipal Council, Palika Kendra, New Delhi) whereby the appeal of the applicant which was filed by him against the order bearing No.127/PB/F.No.174/Vig./I No.127/PB/F.No.174/Vig./Imp/IOV-II(s)/2018 dated 05.09.2018 passed by the respondent No.3 has been dismissed by the respondent No.2.
c) To restore the services of the applicant with all benefits from the date of his removal.
d) Pass any other or further order as this Hon'ble Tribunal may deem fit and proper in the facts and Tribunal circumstances of the said case, in the interest of justice."
2. Learned counsel counsel for the applicant submitted that the present case arises out of an illegal and arbitrary order of removal from service passed against against the applicant despite the conviction order having been suspended by the competent appellate court.
3Item No. 76 (C-3) O.A. No. 929/2019 /2019 2.1. Learned counsel for the applicant submitted that tthe applicant was serving as a Mali (Emp. Code No. 297011) under the Horticulture Department of res respondent No.1 and had an unblemished record throughout his service. However, on 17.08.2016, he was falsely implicated and arrested in FIR No.156/2016 under Sections 354/354A IPC, registered at Police Station Lodhi Colony, New Delhi. Consequent to his arrest, arrest, the applicant was placed under suspension vide order dated 26.09.2016, which was later revoked on 21.12.2017, subject to the outcome of disciplinary proceedings. The applicant was convicted by the Ld. Metropolitan Metropolitan Magistrate, Saket Court Court, New Delhi vide judgment dated 03.01.2017 under Sections 354A/294/509 IPC. The applicant preferred an appeal before the Ld. Additional Additional Sessions Judge, Saket Court Court, New Delhi, wherein vide order dated 18.01.2017, the Hon'ble Court was pleased to suspend the sentence till ffinal disposal of the appeal and released the applicant on bail. 2.2. Learned counsel for the applicant further submitted that despite espite such suspension of sentence, the respondent authorities, without appreciating the true purport of the 4 Item No. 76 (C-3) O.A. No. 929/2019 /2019 said order, erroneously erroneously held that there was no stay on conviction and passed the removal order dated 05.09.2018. The appeal preferred by the applicant was also dismissed by the Appellate Authority vide order dated 26.12.2018 on the same erroneous ground. Hence, the present ap application has been filed seeking quashing of the said orders on the grounds that the impugned orders dated 05.09.2018 and 26.12.2018 are arbitrary, illegal and have resulted in gross miscarriage of justice; that both the disciplinary and appellate authorities authorities failed to appreciate that the order dated 18.01.2017 18.01.2017 of the Ld. ASJ, Saket Court had the effect of suspending the operation of the conviction and sentence till disposal of the appeal; that once the sentence was suspended and the applicant admitted to b bail, the disciplinary authority could not have treated the conviction as final to impose a major penalty of removal from service; and that the authorities have acted mechanically, without proper application of mind and contrary to the settled legal position, n, rendering the impugned orders unsustainable in law.
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3. Learned counsel for the respondents, opposing tthe Original Application, submitted that there exists a clear legal distinction between suspension of sentence and suspension of conviction, conviction, and that the applicant has deliberately misrepresented misrepresented facts before this Tribunal by claiming that both the judgment and sentence were suspended. It is contended that mere suspension of sentence or grant of bail does not render the conviction inoperative unless the conviction itself is stayed by the appellate court.
3.1. Reliance is placed on the judgment of the Hon'ble Delhi High Court in BSES Rajdhani Power Ltd. v. Madan Mohan Ratawal (MANU/DE/1209/2009) and on the Hon'ble Supreme Court's decision in Sushil Kumar Singhal v. Regional Manager, Punjab National Bank Bank, wherein it has been held that conviction of an employee empowers the disciplinary authority to initiate or conclude disciplinary proceedings and impose penalty based on such conviction.
6Item No. 76 (C-3) O.A. No. 929/2019 /2019 3.2. Learned counsel coun further submitted that in the present case, the order dated 18.01.2017 pas passed by the Ld. ASJ, Saket Court, Court, New Delhi, as filed by the applicant himself, shows that only the sentence was suspended till final disposal of the appeal, and there was no stay or suspension of the conviction.. Accordingly, the Disciplinary Authority, after issuing a show cause notice under Rule 19 of the CCS (CCA) Rules, 1965, and after granting due opportunity of hearing, imposed the penalty of removal from service vide order dated dated 05.09.2018, treating the applicant's conviction for offences involving moral turpitude as sufficient ground for removal. The Appellate Authority, upon considering the appeal and granting personal hearing, upheld the said penalty vide order dated 26.12.2018.
.2018. It is further submitted that the action of the respondents is fully justified under Rule 19 of the CCS (CCA) Rules, 1965, and in terms of Government of India MHA O.M. No.F.43/57/64-AVD(III) No.F.43/57/64 AVD(III) dated 29.11.1966 as amended by O.M. dated 19.09.1975, which permits disciplinary authorities to impose penalty on a government servant on the basis of conviction without awaiting the 7 Item No. 76 (C-3) O.A. No. 929/2019 /2019 outcome of the criminal appeal. Hence, learned counsel submitted that the impugned orders have been passed lawfully and the present Original Application is devoid of merit and liable to be dismissed with costs.
4. In rejoinder to the arguments put forth by the learned counsel for the respondents, learned counsel for the applicant submitted that the conviction order passed by the Metropolitan politan Magistrate, Saket Court, Court, had been suspended by the Hon'ble Additional Additional Sessions Judge, Saket Court Court, vide order dated 18.01.2017. Subsequently, the appeal filed by the applicant was allowed by the Hon'ble Court of Shri Sandeep Yadav, Ld. ASJ-02, ASJ South h-East District, Saket Court,, New Delhi, vide judgment dated 29.03.2019, whereby the applicant was acquitted of all charges under Sections 354A/294/509 IPC in FIR No.156/2016, P.S. Lodhi Colony. In view of the acquittal of the appilcant, learned counsel for fo the applicant submitted that the impugned orders of removal dated 05.09.2018 and 26.12.2018 are liable liable to be set aside, and the applicant is entitled to restoration of service with all consequential benefits.
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5. The gist of the written submissions filed on behalf of the respondents is that the applicant was terminated due to conviction under IPC Sections 354A, 294, and 509 for outraging the modesty of a woman, which constitutes moral turpitude. His appeal against the conviction was later allowed only on the benefit of doubt doubt, not on merits, hence not an honourable acquittal.
acquittal Furthermore, at the time of filing the present Original Application, tthe conviction was still valid and no Application Application for additional facts or amended reliefs was made after acquittal. Therefore, the request for reinstatement reinstatement is unjustified. Even after acquittal, disciplinary proceedings can continue, as upheld by multiple rulings of the Hon'ble Supreme Court.
6. Heard learned counsel for the respective parties and perused the pleadings available on record.
7. ANALYSIS :
7.1 In considering the matter under Rule 19 of the CCS CCA Rule 1965, the disciplinary disciplinary authority shall take into 9 Item No. 76 (C-3) O.A. No. 929/2019 /2019 account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely likely to have on the administration and other extenuating circumstances or redeeming features.
7.2 .2 Much reliance has been placed by the respondents purporting that the action has been taken in accordance with Rule 19 of CCS (CCA) Rules. We observe that provisions of the Rule 19 of CCS (CCA CCA) Rules have to be understood in context of Article 311 of the Constitution of India.
7.3 .3 Coming to clause (b) of the second proviso to Article 311 (2), there are two conditions precedent which m must be satisfied before action under this clause is taken against a Government Servant.
Servant. These conditions are ::-
(i) There must exist a situation which makes the holding of an inquiry contemplated by Article 311 (2) not reasonably practicable. What is requ required is that holding of inquiry is not practicable in the opinion of 10 Item No. 76 (C-3) O.A. No. 929/2019 /2019 the reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate all the cases in which it would not be reasonably practicable to hold the inquiry. Illustrative cases would be :-
:
(a) Where a civil servant, through or together with his associates, terrorizes, threatens or intimidates witnesses who are likely to give evidence against him with fear of reprisal in order to prevent them from doing so; or
(b) where the civil servant by himself or with or through others threatens, intimidates and terrorises the officer who is disciplinary authority or members of his family so that the officer is afraid to hold the inquiry or direct it to be held; or
(c) where where an atmosphere of violence or of general indiscipline and insubordination prevails at the time the attempt to hold the inquiry is made. 11
Item No. 76 (C-3) O.A. No. 929/2019 /2019 The disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the civil servant is weak and is, therefore, bound to fail.
(ii) Another important condition precedent to the application of clause (b) of the sec second proviso to Article 311 (2), or rule 19 (ii) of the CCS (CCA) Rules, 1965 or any other similar rule is that the disciplinary authority should record in writing the reason or reasons for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311 (2) or corresponding provisions in the service rules. This is a constitutional obligation and, if the reasons are not recorded in writing, the order dispensing with the inquiry and the order of penalty following it would would both be void and unconstitutional. It should also be kept in mind that the recording in writing of the reasons for dispensing with the inquiry must precede an order imposing the penalty. Legally 12 Item No. 76 (C-3) O.A. No. 929/2019 /2019 speaking, the reasons for dispensing with the inquiry need not find a place in the final order itself, though they should be recorded separately in the relevant file. In spite of this legal position, it would be advantageous to incorporate briefly the reasons that led the disciplinary authority to the conclusion tthat it was not reasonably practicable to hold an inquiry in the order of penalty. While the reasons given may be brief, they should not be vague, nor should they be just a repetition of the language of the relevant rules.
The above two preconditions have a also not been justified in the impugned action. Furthermore, the respondents, while while passing the impugned office orders ignored the fact that there was stay of suspension of conviction and sentence by the Appellate Court. 7.4 On the touchstone of the princip principle governing acquittal by a superior court--whether court whether such acquittal is on account of the benefit of doubt or an honourable acquittal acquittal--the Hon'ble Supreme Court in Ram Lal v. State of Rajasthan & Ors., Civil Appeal No. 7935 of 2023, decided on 4 13 Item No. 76 (C-3) O.A. No. 929/2019 /2019 December 2023, 2023 held that expressions such as "benefit of doubt" or "honourably acquitted" are not to be regarded as mere formalities or empty labels. What is material is the substance of the judgment and the reasoning of the court which led to the acquittal, rather than the terminology employed.
7.5 In Civil Appeal No. 7935 of 2023 (arising out of SLP (C) No. 33423 of 2018), titled Ram Lal v. State of Rajasthan & Ors., decided on 4 December 2023, the Hon'ble Supreme Court observed as under:
"24. What is important to no notice is that the Appellate Judge has clearly recorded that in the document Exh. P-3 - original marksheet of the 8th standard, the date of birth was clearly shown as 21.04.1972 and the other documents produced by the prosecution were either letters or a dup duplicate marksheet. No doubt, the Appellate Judge says that it becomes doubtful whether the date of birth was 21.04.1974 and that the accused was entitled to receive its benefit. However, what we are supposed to see is the substance of the judgment. A readingg of the entire judgment clearly indicates that the appellant was acquitted after full consideration of the prosecution evidence and after noticing that the prosecution has miserably failed to prove the charge [See S. Samuthiram (Supra).]
25. Expressions like "benefit of doubt" and "honorably acquitted", used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Exh Exh. P-3, the 14 Item No. 76 (C-3) O.A. No. 929/2019 /2019 original marksheet carries the date of birth as 21.04.1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The court in judicial review is obliged to examine the substance of the judgment and not go by the fform of expression used.
26. We are satisfied that the findings of the appellate judge in the criminal case clearly indicate that the charge against the appellant was not just, "not proved" - in fact the charge even stood "disproved" by the very prosecutio prosecution evidence. As held by this Court, a fact is said to be "disproved"
when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved" [See Vijayee Singh and Others v. State of U.P. (1990) 3 SCC 190].
27. We are additionally satisfied that in the teeth of the finding of the appellate Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed to stand. The charges were not just similar but identical and the evidence, witnesses and circumstances were all the same. This is a case where in exercise of our discretion, we quash the orders of the disciplinary authority and the appellate authority as allowing them to stand will be unjust, unfair and oppressive. This case is very similar to the situation that arose in G.M G.M. Tank (supra).
28. Apart from the above, one other aspect is to be noted. The Enquiry Officer's report makes a reference to the appellant passing 10th standard, and to a 10th standard marksheet exhibited as Exh. P-4 4 referring to the date of birth as 24.07.1974.
.1974. Jagdish Chandra Chandra-PW1 (in the departmental enquiry) clearly deposed that since 15 Item No. 76 (C-3) O.A. No. 929/2019 /2019 the appellant was regularly absent from Class 10, his name was struck off and he did not even pass 10th standard. The appellant has also come out with this version before tthe disciplinary authority, stating that the 10th class certificate of Ram Lal produced before the Enquiry Officer, is of some other Ram Lal.
29. This issue need not detain us any further because it is not the case of department that the appellant sought employment ployment based on 10th standard marksheet. It is their positive case that the appellant sought employment on the basis of his 8th standard marksheet. Shravan LalLal-PW-4 in the departmental enquiry had also furnished the 10th standard marksheet procured from the Secondary Education Board, Ajmer. In cross cross- examination, on being asked, he admitted that the appellant was recruited on the basis of 8th standard marksheet, and he admitted that there was no alteration in the 8th standard marksheet.
30. In view of the above, we declare that the order of termination dated 31.03.2004; the order of the Appellate Authority dated 08.10.2004; the orders dated 29.03.2008 and 25.06.2008 refusing to reconsider and review the penalty respectively, are all illegal and untenable.
31. Accordingly, we set aside the judgment of the D.B. Special Appeal (Writ) No.484/2011 dated 05.09.2018. We direct that the appellant shall be reinstated with all consequential benefits including seniority, notional promotions, fitment of salary and all other benefits. As far as backwages are concerned, we are inclined to award the appellant 50% of the backwages. The directions be complied with within a period of four weeks from today.
32. The appeal is allowed in the above terms. No order as to costs."
7.5.1 We have also examined in detail the judgment dated 29.03.2019 by the competent Court of jurisdiction in CA No. 34/2017 wherein it is observed as under: 16
Item No. 76 (C-3) O.A. No. 929/2019 /2019 "5. When the depositions of the prosecution witnesses are carefully analyzed, it is noticed that there are various lacunae, shortcomings and inconsistencies in the evidence adduced by the prosecution in its case.
6. PW1 deposed in cross examination that incident took place in the backlane of Market, however, the place of incident is not clearly depic depicted in the site plan Ex.PW4/B. In the site plan two places are indicated with the alphabets 'A' and 'B' and it is mentioned that point 'A' denotes the place where complainant was standing and point 'B' denotes the place where complainant was standing. Therefore, Therefore, site plan is vague and misleading.
Thus, the place of incident as deposed by PWI is not corroborated by the site plan.
7. As per the deposition of PW1, appellant after committing the incident ran away and ran to Burger Point and stopped there. PWI alongwith PW3 also went to Burger Point and started questioning the appellant. The natural questions that arises at this stage is how the complainant and her friend came to know that appellant after committing the crime was standing at Burger Point. In any case, in ordinary course of human nature a person after committing the crime tries to run away from the place of occurrence and is not supposed to be moving around in the vicinity of the spot.
8. As per the deposition of PWI, the site plan was prepared by by the IO at her instance. However, PWI in her cross examination deposed that she has no knowledge of Block No.17 and 14 as shown in the site plan. The Golden Bakery where PW3 met PW1 is also not shown in the site plan. This creates further doubt over the v version given by PW-1.
PW
9. There are contradictions in the deposition of PW1 and PW3 as regards the presence of the public persons when the accused was apprehended. According to PW3 there was a crowd of persons where the appellant was found, however, as per the deposition of PW1 no public person was present there.
10. PWI (complainant) deposed that she saw her friend PW 3 (Devinder) in Khanna Market while PW3 has PW-3 deposed that he was at B.K.Dutt Colony when PWI called him. PW3 Devinder was called from the ho house of his friend where he was present which was 250 250-300 meters away from Khanna Market. Therefore, the place where 17 Item No. 76 (C-3) O.A. No. 929/2019 /2019 PW3 was present when PWI called him is not clear and PW 1 and PW3 contradict each" other on this aspect. PW-1 According to PW3 she gave her complcomplaint in the police station. However, it transpires from the deposition of PWPW- 4 SI Karan Singh who is IO of this case that complaint was given by PWI at the spot and thereafter PW PW-1 prepared the rukka on the basis of the complaint and handed over the same to to Ct. Anoop for registration of FIR
11. As per the deposition of PW PW-4(IO) the motorcycle of the appellant was seized. However, the seizure memo of the motorcycle is not witnessed by PWI (complainant) or PW3 (Devinder) or the owner of the Burger Point
12. Interestingly, if the testimonies of the prosecution witnesses are carefully analyzed, five, places of incident are mentioned i.e. (1) Block No.10, (ii) Golden Bakery, (iii) Back of Khanna Market Lane, (iv) Comer of Block No.17 and (v) Corner of Block No.14.
No.14. Therefore, there is no clarity in the prosecution evidence as regard to the place of occurrence.
13. Moreover, PW1 (complainant) in her cross cross- examination deposed to have reached the spot alongwith her friend Karishma, however, Karishma has not been ex examined by the prosecution.
14. These lacunae and contradictions in the case of the prosecution raises serious doubt over the entire prosecution version. It is settled law that benefit of doubt/must be extended to the accused. Accordingly, the appeal succeeds succeeds and the appellant is acquitted of charge U/s 354A/294/509 IPC."
A bare perusal of the above indicates that the case against the applicant pertains to an alleged act which has not been conclusively proven.
proven The learned court clearly observed that "there e are various lacunae, shortcomings, and inconsistencies in the evidence adduced by the prosecution." Therefore, the rejection of the applicant's case solely on the 18 Item No. 76 (C-3) O.A. No. 929/2019 /2019 ground that the appeal was allowed on the benefit of doubt does not hold merit.
merit 7.6. In the present factual scenario, there is nothing on record to indicate that the alleged "misconduct" had any direct nexus with the applicant's duties or was of such a nature as to be detrimental to the interests of the organization. Misconduct must have a ra rational connection with the employee's present employment and render him unfit or unsuitable to continue in service. The applicant has been acquitted by the competent court of jurisdiction vide judgment and order dated 29.03.2019 for the offence under Sections Sections 354A/294/509 IPC, PS Lodhi Colony, FIR No.156/2016. Even if it is argued that the applicant was involved in an offence of moral turpitude, that alone cannot justify disciplinary action in the absence of a proper departmental inquiry.
inquiry
8. CONCLUSION :
8.1.
1. In view of the foregoing, we hereby quash and set aside the order of removal of the applicant from service. The applicant shall be reinstated with all consequential 19 Item No. 76 (C-3) O.A. No. 929/2019 /2019 benefits, including seniority, notional promotions, fitment of salary, and all other entitlements.
ent 8.2. We are not inclined to grant any back wages, as the applicant has been acquitted in the Criminal Appeal. 8.3. The aforesaid directions shall be complied with within two months from the date of receipt of the c certified copy of this order.
8.4. The O.A. is allowed in the aforesaid terms. Pending M.A.s, shall stand disposed of. No costs.
(Rajinder Kashyap) (Manish Garg) Member (A) Member (J) /as/