Central Administrative Tribunal - Delhi
Sh. K.M. Agrahari vs Chief Secretary on 19 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 4317/2010 NEW DELHI THIS THE 19th DAY OF OCTOBER, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Sh. K.M. Agrahari, S.R.E.O. (Retired), R/o K/P 295, Maurya Enclave, Pitampura, Delhi-110088. Applicant. (By Advocate Shri P.C. Misra) Versus 1. Chief Secretary, Govt. of NCT of Delhi, 5th Wing, Delhi Secretariat, Delhi. 2. Director (Employment), Directorate of Employment Govt. of NCT of Delhi 2-Battery Lane, Delhi. Respondents. (None present) ORDER
Mr. G. George Paracken:
This is the second round of litigation by the applicant claiming reimbursement of legal expenses and travelling allowances in respect of criminal proceedings case No. CC 70/1999 which culminated in his acquittal vide judgment dated 12.04.2004 of the Special Judge, Delhi. He had earlier approached this Tribunal vide OA 1203/2008 and OA 1205/2008 seeking directions to the Respondents to grant him travelling allowance for attending the aforesaid criminal case and to reimburse the legal expenses incurred by him for defending himself in it. This Tribunal dismissed both the aforesaid O.As by a common order dated 12.05.2009 with the following observations:
If the Government is not satisfied from the facts and circumstances of the case that the Government servant was subjected to the strain of the proceedings without justification, it is well within its rights not to grant him of the expenses incurred for his defence. A Government servant cannot claim such expenses as a matter of right, and what is crucial, at the cost of repetition, is `Government Satisfaction which is a decision within the domain of the Government.
2. The applicant filed Review Applications Nos. 108/2009 and 110/2009 against the aforesaid order but they were also dismissed by this Tribunal vide common order dated 15.07.2009 with the following observations:
There is no error of fact or of law necessitating review of our earlier order. All the contentions raised in the review application, are merely an attempt to have the case reheard, which cannot be allowed in view of the well settled principle of law mentioned above. In view of the above, both the RAs are dismissed by circulation.
3. Thereafter, the applicant challenged both the aforesaid orders before the High Court of Delhi in Writ Petition No. 2575/2010 mainly relying upon Para 2 (a) of the instruction issued by the Govt. of India vide Office Memorandum dated 08.01.1959 regarding provision for legal and financial expenses to government servants in legal proceedings which reads as under:
2.(a) Proceedings initiated by Government in respect of matters connected with the official duties or position of the Government servant. Government will not give any assistance to a Government servant for his defence in any proceedings, civil or criminal, instituted against him, by the State in respect of matters arising out of or connected with his official duties or his official position. Should, however, the proceedings conclude in favour of the Government servant, Government may, if they are satisfied from the facts and circumstances of the case that the Government servant was subjected to the strain of the proceedings without proper justification, reimburse the whole or any reasonable proportion of the expenses incurred by the Government servant for his defence. Referring to the aforesaid provision, the High Court held that the issue to be considered was not with reference to the acquittal of the Government servant but with regard to the justification in initiating the proceedings against him. Therefore, the High Court disposed of the writ petition with the direction to the competent authority of the respondents to pass a reasoned and speaking order disposing the claim of the petitioner for reimbursement of the money spent by him in his defence. The High Court has also directed that if the claim is rejected, reason should be given as to why the petitioner cannot be said to have subjected to strain of the proceedings.
4. Pursuant to the aforesaid directions, the respondents have passed the impugned order dated 19.10.2010 wherein they have observed that the Special Judge acquitted him from the criminal case vide judgment dated 12.04.2004 giving him the benefit of doubt but he was held guilty for commission of offences punishable under Section 120-B read with Sections 420/467/468/471 IPC and Section 13 (1)(d) of the Prevention of Corruption Act, 1988. As regards his claim for Rs.34000/- as litigation expenses is concerned, the Secretary (Labour) rejected the same vide order dated 22.04.2008 after consultation with the L&J as well as Finance Department on the ground that his claim that he has undergone any strain was not justified. They have also stated that the OM dated 08.01.1959 read with Rule (C.L.) 313 to GFR issued by the Ministry of Home Affairs, Government of India, prescribes that the Government has to consider as to what extent the Department/Government has strained the government servant when court has dismissed the case or quashed the FIR.
5. The learned counsel for the applicant Shri P.C. Misra has submitted that what was required to be done by the respondents in terms of the OM dated 08.01.1959 referred to above was to satisfy themselves whether the applicant has been subjected to strain of the proceedings without proper justification and if their finding is in the positive, they should reimburse the whole or reasonable proportion of the expenses incurred by him for his defence. However, in the impugned order, there is not even a whisper as to how the competent authority has considered the representation of the applicant wherein he has narrated as to how he has undergone the strain of the proceedings without any justification.
6. We have heard the learned counsel for the applicant Shri P.C. Misra and considered the entire documents available on record. No one was present on behalf of the respondents even on the second call. It is seen from the judgment of the Special Judge, Delhi dated 12.04.2004 in the criminal case initiated against the applicant, that he was given the benefit of doubt and, therefore, he was acquitted. In the representation made by the applicant, he has stated that he was falsely implicated in the criminal case due to mala fide intention of the investigating officer. The competent authority has also issued the sanction to prosecute him under Section 19 1(c) of Prevention of Corruption Act, 1988 without application of mind. Thereafter, the investigating agency has filed the prosecution case in the Court of Special Judge. According to him, the fact that an employee has been falsely implicated in the criminal case/corruption case itself would cause strain on his mind and body and his acquittal was after proper defence by him in the case. He has also submitted that in terms of the aforesaid OM dated 08.01.1959 he was entitled for whole or a reasonable part of the expenses incurred by him for his defence, as the proceeding were concluded in his favour as he was acquitted by the Special Judge vide his order dated 12.04.2004. Therefore, it was incumbent upon the competent authority to evaluate the degree of strain suffered by him during the proceedings so that the authority can decide whether the whole or what reasonable proportion of the expenses incurred by him can be reimbursed to him. He has also placed reliance on the judgment of the Special Judge wherein it has been stated that the prosecution has not been able to establish his involvement in the fraudulent release of salary of accused Banarsi Lal as alleged by the respondents. In other words, since there was a finding of the court that there was no involvement of him in the criminal case, then the prosecution itself has to be termed as malicious. Again, his contention is that the satisfaction to be arrived at by the competent authority in terms of the aforesaid OM dated 08.01.1959 is not a subjective satisfaction but it should be arrived at on the objective assessment of the materials on record and facts and circumstances of the case.
7. In our considered view, there is merit in the contention of the applicant. The respondents cannot evade from their responsibility. The High Court in its judgment has directed the respondents to consider whether there was any justification on their part to initiate the proceedings against the applicant. In the impugned order, the respondents are only explaining the factual position of the criminal case and they were not examining the matter in terms of the OM dated 08.01.1959 and as directed by the High Court. What the said OM says is that when the proceedings are concluded in favour of the government servant, the Government may, if they are satisfied from the facts that the Government servant has been strained without proper justification, reimburse the whole or any reasonable proportion of the expenses incurred by him for his defence. The impugned order passed by the respondents does not contain any such obserations by the competent authority. As submitted by the applicant, undergoing the criminal proceedings is a strain by itself. The aforesaid OM also recognizes that aspect. Therefore, the respondents should have considered whether there was any justification on their part in subjecting him to the strain of the proceedings. In the above facts and circumstances of the case, we remit the case back to the respondents to re-consider the representation of the applicant afresh and to give a clear finding as to whether the strain of the proceedings of the criminal case undergone by him can be justified by them in view of the fact that the proceedings have concluded in his favour. The aforesaid direction shall be complied with, within a period of two months from the date of receipt of a copy of this order, under intimation to the applicant. There shall be no order as to costs.
(Dr. Ramesh Chandra Panda) ( G. George Paracken )
Member (A) Member (J)
SRD