Central Administrative Tribunal - Delhi
Ex. Ct. (Exe.) Shiv Charan vs Govt. Of Nct Of Delhi on 12 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1791/2009 New Delhi, this the 12th day of March, 2010 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N.D. Dayal, Member (A) Ex. Ct. (Exe.) Shiv Charan, (1499/W) posted at PS Tilak Nagar, S/o late Sh. Raghunath R/o Village Bupnia, Distt. Jhajjar, Haryana. Applicant. (By Advocate Mr. Saurabh Ahuja) Versus 1. Govt. of NCT of Delhi through Chief Secretary, Delhi Secretariat, New Delhi. 2. Commissioner of Police (Delhi Police), Police Headquarters, IP Estate, MSO Building, New Delhi. 3. Joint Commissioner of Police, Southern Range, Through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 4. Deputy Commissioner of Police, West Distt, Through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. Respondents. (By Advocate Mr. R.N. Singh) O R D E R
M. Ramachandran, Vice Chairman (J).
Annexure A-3 order passed by the Deputy Commissioner of Police now under challenge is a reasoned order. But learned counsel for applicant submits that the charges in circumstances require that appropriate directions are issued recognizing the lawful claims of the applicant, and the order should not remain a stumbling block for putting up legal claims.
2. A request for reinstatement had been rejected pointing out that since the applicant was undergoing imprisonment, such a prayer could not have been possible to be entertained. But the position has changed. We notice that the present application has been filed on 03.07.2009 and the applicant has also made available a copy of the order passed by the High Court of Delhi in Crl. M.B. No. 604/2009 in Crl. Appeal No. 675/2007 granting bail to the applicant. Counsel submits that applicant will be entitled to claim benefits of the position of law that has been declared by this Tribunal in OA 544/2006 (and connected cases) which have been in due course upheld by the Delhi High Court in WPC 1044/2008 on 04.12.2008. The brief facts of the case are as following.
3. The applicant was working as Constable in Delhi Police and he had been implicated in a criminal case in 2006. He had been convicted on 18.10.2007 by the Addl. Sessions Judge and was to undergo imprisonment for a period of five years. On 30.10.2007, he had filed an appeal (Crl. Appeal No. 675/2007). The appeal is even now pending.
4. A circular issued by the Commissioner of Police in the year 2005 authorized the administration to remove a person from service in case there was conviction on grounds of moral turpitude and in like circumstances. He was under suspension at that time. The applicant was apprehensive that he might be subjected to disability arising out of such orders and had filed OA No. 1996/2007 praying that in view of the pending appeal in Delhi High Court, the applicants services are not to be terminated on the basis of circular. We had disposed of the main matter by observing that the authorities will take notice of the law that had been declared by this Tribunal in the batch of cases cited earlier, and may not act in a hasty manner. But it appears that without duly adverting to the observations made therein, the DCP had on 21.05.2008 dismissed the applicant from service. Appeal filed had been rejected by the Joint Commissioner of Police on 21.11.2008. Applicant by Annexure A-3 on 01.04.2009 has presently been advised that he will not be entitled to the benefits that had been extended to persons, who were situated like him. This was because by the order like cases were expressly excluded.
5. Rule 11 of the Delhi Police (Punishment and Appeal) Rules provides that a person who is acquitted by the criminal court, could be removed from service without holding further inquiries but under clause (1) of Rule 11, there is a restriction that so long as there is an appeal pending against that order, such steps are not to be exercised. On the facts of the case, in plain terms, the applicant will be entitled to the statutory stay that is in operation. The only question is whether since the applicant was undergoing imprisonment, taking into account observation in the judgment that such direction will exclude the cases where persons were undergoing actual imprisonment it may be possible for him to claim relief once he is out of the jail.
6. Normally, a person who is undergoing imprisonment, will not be entitled to get reinstatement, as the two concepts do not go together. But that does not automatically mean that the Deputy Commissioner or Joint Commissioner were within their rights, to pass orders terminating the services of the applicant on the basis of the conviction, when an appeal was pending before the High Court The reinstatement, and/or suspension, as referred to in the judgment of the Tribunal dealt with a situation where there was no actual imprisonment. But the position continues that the orders by which the applicants services have been terminated are ab initio bad. The question is whether he will be entitled to reinstatement as of now.
7. As referred to earlier, although at the time of Annexure A-3, the applicant was incarcerated, since he had been released on bail on 11.08.2009, the difficulty as posed by the respondents may not be there. Annexures A-1 and A-2 are set aside. In the interest of justice, we read down the restrictive provision in Annexure A-3 and direct that the applicant is to be deemed as continuing in service uninterruptedly. But we also direct that he will be deemed as under suspension from 22.05.2008 and will be eligible for subsistence allowance as admissible under law.
8. Liberty is given to the respondents to continue to place the applicant under suspension or alternatively to engage him for any non-sensitive work at their discretion, as the Criminal Appeal, ordinarily will be disposed of only after lapse of years.
9. O.A. is disposed of as above. Consequential orders are to be passed with expedition. No order as to costs.
(N.D. Dayal) (M. Ramachandran) Member (A) Vice Chairman (J) `SRD