Central Administrative Tribunal - Delhi
Shri K C Singh vs Govt. Of Nct Of Delhi Through on 17 October, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2143/2012 Wednesday, this the 17th day of October, 2012 Honble Shri G George Paracken, Member (J) Honble Smt. Manjulika Gautam, Member (A) Shri K C Singh, age 54 years s/o Shri L P Singh r/o 75, DDA SFS Flats Pocket 1, Sector 9 Dwarka, New Delhi ..Applicant (By Advocate: Shri Sachin Chauhan) Versus 1. Govt. of NCT of Delhi through the Chief Secretary Education New Sachivalaya, IP Estate New Delhi 2. The Director of Education Directorate of Education Govt. of NCTD, Old Secretariat Delhi 3. The Dy. Director of Education (South West-A) Directorate of Education District South West A C-4 Vasant Vihar, New Delhi 4. The Director of Education Vigilance Branch Directorate of Education Old Sectt. New Delhi 5. The Superintendent (Vigilance) Dte. Of Education, Vigilance Br. (HQ) Old Sectt., Delhi ..Respondents (By Advocate: Shri B N P Pathak) O R D E R (ORAL)
Shri G George Paracken:
The applicant has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 alleging inordinate delay in reinstating him in service even after he was acquitted in a criminal case pending against him, vide judgment dated 10.8.2011 passed in Criminal Case No.976/2010.
2. Facts of the case are that the applicant while working as a Head Clerk in the Govt. of NCT of Delhi was involved in a criminal case RC No.DA1-2001-A-0029/CBI/ACP/New Delhi under Section 7 of Prevention of Corruption Act, 1988 and thereafter he was subjected to trial before the Court of Shri V.K. Maheshwari, Special Judge, Delhi. He was convicted in the said case, vide the judgment dated 24.7.2010. He was also sentenced to undergo three years RI with a fine of Rs.25000/- and in default, he had to undergo three months more simple imprisonment.
3. Thereafter the respondents have placed the applicant under deemed suspension w.e.f. 24.7.2010. He was also served with a notice dated 13.4.2011 under Rule 19 (1) of CCS (CCA) Rules, 1965 (for short Rules 1965) to show cause as to why he should not be dismissed from service on the basis of the aforesaid conviction and sentence in the criminal case. The applicant submitted a reply to the said show cause notice stating that he had already filed an appeal before the Honble High Court of Delhi and it has already been admitted vide Criminal Appeal No.976/2010. He has also submitted that since he has 30 years of unblemished service record and his financial condition is not so good, he should not be dismissed from service till his appeal is decided by the Honble High Court. However, the respondents, exercising its power under Rule 19 (1) of the Rules 1965, dismissed him from service, vide order dated 30.5.2011.
4. Later on, the Honble High Court of Delhi set aside the judgment of the trial court dated 24.7.2010 and acquitted him, vide judgment dated 10.8.2011. Thereafter, the applicant made representations apprising the respondents about his acquittal in the criminal case. He had also furnished a copy of the judgment but still the respondents have not reinstated him in service.
5. The contention of the learned counsel for the applicant is that once the High Court has acquitted him on 10.8.2011, unless an appeal is filed against the same, the respondents ought to have reinstated him in service. He has also stated that the respondents have not responded to his various representations seeking reinstatement in service and apprising them about the outcome of the criminal appeal filed before the Honble High Court as aforestated. The other contention of the applicant is that since he was dismissed from service under Rule 19 (1) of the Rules 1965 only on the sole ground that he was convicted in the criminal case, he should have been reinstated in service once the said judgment of conviction has been set aside by the High Court acquitted him of the charges. However, the respondents have finally informed him by the impugned Annexure A-1 letter dated 8.2.2012 that the CBI had informed them that the matter regarding filing of an SLP in the Honble Supreme Court of India against the judgment of the High Court dated 10.8.2011 is under their consideration and, therefore, his request for reinstatement cannot be acceded to at this stage. The applicant has challenged the aforesaid order of the respondents and stated that they are under an obligation to reinstate him in service subsequent to his acquittal in the criminal case. Once the conviction is set aside and the same was only the reason for his dismissal from service, according to him, the respondents themselves should have suo motu reinstated him in service. Further, he has submitted that the said contemplation on the part of the CBI to file an appeal against the judgment of the High Court before the Apex Court is not a ground to deny reinstatement to him, particularly when the limitation period of filing an appeal has elapsed long back. He has, therefore, filed this OA before this Tribunal seeking the following reliefs:-
(i) To quash and set aside order dated 08.02.2012 and to further direct the respondents to reinstate the applicant in service forth with all consequential benefits including seniority and promotion and pay and allowances.
(ii) That to direct the respondents to issue at least subsistence allowance from the date of dismissal to that of reinstatement with all consequential benefits.
(iii) That heavy cost be imposed upon the respondents in favour of the applicant towards the cost of the litigation and further towards the administrative harassment caused to the applicant.
(iv) Any other relief which this Honble court deems fit and proper may also be awarded to the applicant.
6. The respondents in their reply have not refuted the factual submissions made by the applicant in this OA. However, they have stated that while the Honble High Court acquitting him, vide its order dated 10.8.2011, made the following observations:
9. Since the sanction for prosecution accorded against the appellant is invalid, the cognizance taken by the learned Special judge is bad in law in view of Section 19 of the P.C. Act, therefore, the entire trial stands vitiated for want of a valid sanction. Thus, under the circumstances, I am constrained to accept the appeal and set aside the impugned judgment of learned Special Judge dated 24.07.2010 and consequent order on sentence.
10. The appellant is accordingly acquitted. It is, however, made clear that this order shall not prevent the CBI from filing fresh charge sheet after obtaining valid sanction from the competent authority.
7. Further, according to the respondents, the acquittal of the applicant is on technical ground and not on merit and liberty has been granted to the CBI to file fresh charge sheet against him after obtaining valid prosecution sanction. However, the disciplinary authority has inquired from the CBI/ACB whether they have filed any appeal in the higher court against the order of the High Court dated 10.8.2011. The disciplinary authority has also stated that in case the CBI has not filed/is not filing the appeal, the applicant shall be reinstated in service, as he has already been acquitted by the High Court.
8. We have heard the learned counsel for the applicant, Shri Sachin Chauhan and the learned counsel for the respondents, Shri B N P Pathak. According to Section 19 (1) of the Rules 1965 where any penalty is imposed upon a government servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deemed fit. In the present case, when the applicant was convicted by the trial court, vide its judgment dated 27.7.2010, the respondents have placed the applicant under deemed suspension w.e.f. 24.7.2010, vide order dated 24.2.2012. Thereafter he was served with a show cause notice dated 13.4.2011 proposing to impose appropriate penalty upon him under Rule 19 (1) of the Rules 1965 taking into account the gravity of the criminal case. However, the applicant was given an opportunity to make a representation. The respondents have stated in the said show cause notice that on careful consideration of the judgment/order of the Special Judge, Delhi, it was provisionally come to the conclusion that the applicant is not a fit person to be retained in service and accordingly it proposed to impose upon him a penalty of dismissal from service. However, the applicant was given an opportunity to make a representation against the aforesaid proposed penalty. However, after considering the representation made by the applicant, the applicant was dismissed from service, vide order dated 30.5.2011. But the High Court, vide its judgment dated 10.8.2011 considered the Criminal Appeal No.976/2010 filed by the applicant and acquitted him of the charges giving liberty to the CBI to file fresh charge sheet against him after obtaining valid sanction from the competent authority. After the aforesaid order, it is more than a year now and the CBI had not filed any appeal challenging the aforesaid order before the Apex Court. The applicant has been making representation after representation to reinstate him in service. Finally, the respondents have responded to his representation only vide the impugned letter dated 8.2.2012 stating that the CBI is proposing to file an SLP before the Honble Supreme Court of India to challenge the order of the High Court dated 10.8.2011.
9. Today when the case was taken up for final hearing, another 8 more months have elapsed and still the CBI has not challenged the aforesaid judgment of the High Court. They have also not availed themselves of the liberty granted to them by the High Court to file a fresh charge sheet against the Applicant. Thus as on date there is not even a charge pending against the Applicant.
10. The Govt. of India, M.H.A., O.M. No.F/43/57/64-AVD (III) dated 29.11.1966 has considered the action to be taken when the appeal/revision against conviction succeeds. According to the said OM, if an appeal/revision in higher Court against conviction succeeds and the Government servant is acquitted, the order imposing a penalty on him on the basis of conviction, which no longer stands, becomes liable to be set aside. Further, it is for the Department to decide whether the acquittal should be challenged in a still higher Court or whether, despite the acquittal, the facts and circumstances of the case are such as to call for a departmental inquiry against the Government servant on the basis of the allegations on which he was previously convicted. If it is decided to take the matter to a still higher Court, action to institute proper proceedings should be taken with the least possible delay and the penalty imposed shall not be set aside during the pendency of such proceedings. If, on the other hand, it is decided that a departmental inquiry may be held, a formal order should be made (i) setting aside the order imposing the penalty on the basis of the conviction and (ii) ordering such departmental inquiry.
11. In view of the above instructions issued by the Government themselves, the respondents could not have taken such a long time even to decide whether they want to file an SLP before the Apex Court challenging the order of the High Court dated 10.8.2011. In any case, the respondents have not decided to initiate any disciplinary proceedings against the applicant on the same charges. Further, we have seen that even the High Court has given liberty to the CBI to proceed against the applicant by filing fresh charge sheet after the approval of the competent authority is obtained, but they have not moved in that direction also. In view of the above position, in our considered view, the applicants contention that he should be reinstated in service merits consideration. We, therefore, quash and set aside the impugned order dated 8.2.2012 and direct the respondents to reinstate the applicant in service forthwith, with all consequential benefits. The respondents shall also issue orders granting subsistence allowance to the applicant from the date of his dismissal to the date of reinstatement with all consequential benefits.
12. With the aforesaid directions, this OA is allowed. There shall be no order as to costs.
( Smt. Manjulika Gautam ) ( G George Paracken )
Member (A) Member (J)
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