Central Administrative Tribunal - Delhi
Satya Pal Singh Tyagi vs North Delhi Municipal Corporation on 7 December, 2024
(OA No.982/2019)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.982/2019
With
M.A. No.1167/2019
Reserved on :29.11.2024
Pronounced on :07.12.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Satya Pal Singh Tyagi
S/o Gulab Singh Tyagi
R/o H.No.8-T, Gali Khutakar
Auchandi Road, Bawana,
Delhi-110039. ...Applicant
(By Advocate: Shri J.S.Mann)
Vs
1. The Commissioner, (North DMC),
Dr. Shyma Prasad Mukherjee,
Civil Center, Jawaharlal Nehru Marg,
New Delhi-110002.
2. Additional Commissioner, (Education)
(North DMC)
Dr. Shyma Prasad Mukherjee,
Civil Center, Jawaharlal Nehru Marg,
New Delhi-110002. ...Respondents
(By Advocate:Shri D.S.Mahendru)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) :-
"(a) set aside the impugned order of dismissal from service passed by office order No.1255/SIO (P)/Vig./97/D-29 dated 19-03-04 (ANNEXURE-A-1);
and/or (OA No.982/2019) (2)
(b) set aside the impugned appellate order passed by office order No.1255/SIO(P)/Vig./1997/421dated 28.07.2010 may be set aside (ANNEXURE-A-2); and/or
(c) the applicant may be reinstated in service w.e.f. 19.03.2004 till 30.06.2017 the date of superannuation; and/or
(d) Consequential benefits including promotion, privileges, arrears of pay w.e.f. 04.10.1996 (date of suspension) to the date of retirement, and thereafter pension with retirement benefits and arrears of pension may be released within a period of thirty days from the date of receipt of this representation-cum-legal notice.
(e) Pass any other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, in favour of the Applicant and against the Respondents;"
2. The facts of the case, in brief, as indicated in the OA are that the applicant was appointed an Assistant Teacher in MCD on 19.02.1986 and was placed under deemed suspension with effect from 04.10.1996 by the disciplinary authority due to his arrest/involvement in a criminal case FIR No.379/96, P.S. Narela, Delhi Under Sections 147/148/149/452/302/34 IPC. Later on, on 26.09.2002 the applicant was convicted by the Hon'ble Court of Additional Sessions Judge, Delhi and was sentenced to undergo RI and fine of various descriptions for various offences. The applicant filed a Criminal Appeal No.836/2002 which was admitted and sentence was suspended granting bail to him. On the basis of above conviction, on 12.01.2004 the disciplinary authority issued Memo, which was received by (OA No.982/2019) (3) the applicant on 23.02.2004, as to show cause why proposed penalty of dismissal from service be not inflicted upon him. The applicant submitted his representation on 03.03.2004. After that, nothing was heard from the disciplinary authority. The applicant sought information through various applications under RTI Act and ultimately a copy of order dated 19.03.2004 was handed over to him on 24.05.2010 wherein he came to know that he has been dismissed from service with effect from 19.03.2004. The applicant reiterates that the impugned order of dismissal was passed on 19.03.2004 but the same was received only on 24.05.2010. In the meanwhile, his subsistence allowance was also stopped. However, he was able to clear it for the period from 01.10.2002 to 19.03.2004, i.e. from the date of his conviction till he was dismissed based on the order of the Tribunal. He attained the date of superannuation from the service on 30.06.2017. However, final verdict in said criminal appeal case came on 11.04.2018 wherein the applicant was acquitted by the Hon'ble Delhi High Court. After the order of acquittal, the applicant approached the respondents through representation-cum-legal notice dated 27.07.2018 for reinstatement but evoked no response from the respondents. Therefore, the instant OA has been filed.
(OA No.982/2019) (4)
3. In their counter reply, the respondents have admitted that the applicant has been acquitted by the Hon'ble High Court of Delhi vide judgment dated 11.04.2018 and consequently the applicant has requested to reinstate him in service on notional basis with effect from 19.03.2004 till 30.06.2017, i.e. the day of his superannuation by withdrawing the dismissal order dated 19.03.2004.
4. It is contended by the respondents that in Civil Appeal No.3339/2019 [Arising out of SLP (Civil)] No.100/2016 in Raj Narain vs. Union of India & Ors. vide judgment dated 01.04.2019, the Hon'ble Supreme Court has laid down the law that the appellant shall be entitled for back-wages only from the date of his acquittal till the date of his reinstatement. In the case of applicant, he was acquitted by the Hon'ble High Court vide judgment dated 11.04.2018 and he already retired on 30.06.2017. Since the applicant retired before the judgment of acquittal, he is not entitled for any relief.
5. We have heard learned counsels for both the parties and also carefully gone through the pleadings, including the counter reply and the rejoinder.
6. Learned counsel for the applicant has argued that the judgment passed in the case of Raj Narain (supra) should be (OA No.982/2019) (5) looked at holistically which clearly states that if the initiation of criminal proceedings itself was malafide or with vexatious intent, the department is liable to pay back wages. Therefore, learned counsel for the applicant contends that the applicant is entitled for reinstatement in service on notional basis from 19.03.2004 till 30.06.2017 and he is entitled for pensionary benefits, including gratuity, commutation of pension, leave encashment etc.
7. Learned counsel for the respondents, on the other hand, reiterating the claim made in the counter reply, has stated that in view of principle laid down by the Hon'ble Supreme Court in the case of Raj Narain (supra), the applicant is not entitled for any retiral benefits.
8. We have perused the order of the Hon'ble Supreme Court in the case of Raj Narain (supra), more specifically Para-6 which read as follows:
"6. The decision of Ranchhodji Chaturji Thakore (supra) was followed by this Court in Union of India and Others v. Jaipal Singh (supra) to refuse back wages to an employee who was initially convicted for an offence under Section 302 read with Section 34 IPC and later acquitted by the High Court in a criminal appeal. While refusing to grant relief to the Petitioner therein, this Court held that subsequent acquittal would not entitle an employee to seek back wages. However, this Court was of the opinion that if the prosecution is launched at the behest of the department and the employee is acquitted, different considerations may arise. The learned counsel for the Appellant endeavored to distinguish the prosecution launched by the police for (OA No.982/2019) (6) involvement of an employee in a criminal case and the criminal proceedings initiated at the behest of the employer. The observation made in the judgment in Union of India and Others v. Jaipal Singh (supra) has to be understood in a manner in which the department would become liable for back wages in the event of a finding that the initiation of the criminal proceedings was mala fide or with vexatious intent. In all other cases, we do not see any difference between initiation of the criminal proceedings by the department vis-a-vis a criminal case lodged by the police. For example, if an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employer cannot be mulcted with full back wages on the acquittal of the person by a criminal Court, unless it is found that the prosecution is malicious."
9. Reading of the above paras suggest on acquittal that the back wages in the case of dismissal still be claimed in the event of a finding that the initiation of the criminal proceedings was mala fide or with vexatious intent. In the above-stated para, the Hon'ble Supreme Court had also held that in such cases wherein an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employer cannot be mulcted with full back wages on the acquittal of the person by a criminal Court, unless it is found that the prosecution is malicious. Therefore, it is evident that the focus of the aforesaid principle laid down by the Hon'ble Supreme Court was on malice and a clear distinction was made between the criminal proceeding wherein malafide was established and other cases wherein malafide was not established, even if (OA No.982/2019) (7) both resulted in acquittal. The entitlement for back-wages on acquittal was thus provided for as per the above law laid down by the Hon'ble Supreme Court in the case of Raj Narain (supra).
10. We have gone through the order of acquittal passed by the Hon'ble High Court, more specifically Para 33 and Para 78 which read as follows:
"33. This is a case based on direct evidence and, therefore, the version of the eye witnesses becomes critical. As already noticed, the parties are all closely related and have a common ancestor. The complainant party belongs to the Surajmal Branch where as the accused parties belong to both the Ganeshi and Hukmi Branches. Undoubtedly, since the parties are related also and there is a previous enmity, the eye witnesses from the complainant branch have to be treated as interested witnesses.
Lack of 'common object'
*** **** *** ***
78. As far as the other co-accused are concerned, the Court is not satisfied that the prosecution has been able to prove that all of them came together to form an unlawful assembly and further that the said unlawful assembly was with a common object of killing Sunil. With none of the other persons in the victim's family receiving any injury whatsoever and with medical evidence not corroborating the version of the eye witnesses in this regard and given the fact that there being previous enmity between the parties may give rise to a tendency to make embellishments, the Court acquits all of the other accused of the offences with which they were charged."
11. Reading of the above-stated paras, more particularly Para 78, indicates that there was previous enmity between the parties which may give rise to a tendency to make (OA No.982/2019) (8) embellishments, and therefore, the court acquitted all of the other accused of the offences with which they were charged.
12. Learned counsel for the applicant takes us to definition of enmity and its synonymous, as found in English Dictionary and argues that the words 'enmity' and 'malice' are synonymous which describe negative feelings towards someone or something which could be described conflicts or rivalries between individuals or groups and the term 'enmity' used by the Hon'ble Delhi High Court was a clear indication that the criminal proceeding was based on malice. In support of such claim, he has produced the following version of malice as contained in English Dictionary.
"Definition of malice as in venom the desire to cause pain for the satisfaction of doing harm there was no reason other than pure malice to spread such disgusting lies all over campus Synonymous & Similar Words Relevance venom hatred cruelty maliciousness spite hatefulness meanness malevolence hostility malignity spitefulness jealousy contempt viciousness bitterness malignancy disgust spleen hate nastiness malignance despite disdain resentment cattiness animosity enmity antagonism rancor vindictiveness distaste grudge abusiveness loathing antipathy."
(OA No.982/2019) (9)
13. He therefore reiterates that words 'malice and 'enmity' have same connotation and are synonymous. The acquittal order passed by the Hon'ble Delhi High Court clearly mentions that applicant was convicted given the previous enmity between the parties which could have given rise to a tendency to make a story more interesting by adding details that are not always true (embellishment). In the light of such view of the matter, it can be said that the criminal proceedings were based on malice, and therefore, the prosecution was wrong from the beginning. Thus, we see no reason as to why the applicant should suffer after being acquitted. It is also evident that the acquittal from the criminal proceedings was after full consideration of the prosecution evidence and that the prosecution failed to prove the charge. In the case of Ram Lal vs. The State of Rajasthan vide Civil Appeal No.7935 of 2023 decided on 04.12.2023, the Hon'ble Supreme Court had held as follows:
"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. P-3, the original mark-sheet 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 (OA No.982/2019) (10) substance of the judgment and not go by the form of expression used."
14. In view of the above discussions, looking at the acquittal of the applicant by the Hon'ble High Court in totality, and the law laid down by the Hon'ble Supreme Court in the above cited judgment, we are of the view that the applicant is entitled for reinstatement and consequential benefits. The applicant stood acquitted vide order 11.04.2018 of the Hon'ble High Court. No appeal against the same was filed within 3 months. Therefore, the respondents should have passed the order for his reinstatement from the date of dismissal and released the retiral dues to him within three months thereafter. Therefore we pass the following order:
i) The impugned order of dismissal from service dated 19.03.2004 and the impugned appellate order dated 28.07.2010 are set aside.
ii) The applicant may be reinstated in service with effect from 19.03.2004 till 30.06.2017, i.e. the date of superannuation with all consequential benefits, including retiral benefits as per the extant rules.
iii) The applicant shall be entitled for interest on the arrears of his salary and also on the arrears of his retiral dues after six months from the date of his acquittal by the Hon'ble High Court.
(iv) The above exercise will be completed as expeditiously as possible and preferably within a period (OA No.982/2019) (11) of 8 weeks from the date of receipt of a copy of this order.
15. The OA is disposed of accordingly. There shall be no order as to costs.
16. The MA pending, if any, also stands disposed of accordingly.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /kdr/