Central Administrative Tribunal - Delhi
Dilbagh Singh vs Delhi Transport Corporation, Govt. Of ... on 24 August, 2015
OA 1800/15 Dilbagh Singh v. DTC & anr.
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CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.1800 OF 2015
New Delhi, this the 24th day of August,2015
CORAM:
HON'BLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER
&
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
..............
Dilbagh Singh,
Aged 59 years,
Conductor, DTC (Batch No.11092 T.No.16519),
R/o RZ 200, Gopal Nagar, Najafgarh, Delhi,
At present R/o House No.1118,
Village & Post Office Nigana,
Tehsil Kanaur,Distt. Rohtak, Haryana .......... Applicant
(By Advocate: Mr.Satyam Thareja)
Vs.
1. Delhi Transport Corporation,
Through Chairman,
DTC Headquarter, Indraprastha, Delhi
2. Depot Manager,
D.T.C., Hari Nagar Depot-I,
New Delhi 64 .......... Respondents
(By Advocate: Ms.Arati Mahajan)
.......
ORDER
RAJ VIR SHARMA, MEMBER(J):
While the applicant was serving as a Conductor in Delhi Transport Corporation, FIR No.720, dated 24.7.2006, PS Najafgarh, was registered under Sections 498A, 302 and 304A read with Section 34 IPC against him, and his wife and two sons, relating to death of Praveen Kumari, Page 1 of 8 OA 1800/15 Dilbagh Singh v. DTC & anr.
2the daughter-in-law of the applicant. He was placed under suspension with effect from 24.7.2006 till 29.5.2009, and the order of suspension was revoked, vide order dated 29.5.2009. He was dismissed from service with effect from 8.12.2009 under Regulation 15(2)(vii) of the DRTA (Conditions of Appointment & Service) Regulations, 1952, vide order dated 8.12.2009 (Annexure P-1), consequent upon his having been convicted for offence punishable under Section 302 read with Section 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/-, vide judgment of conviction and order of sentence, dated 30.9.2009, passed by Shri N.K.Kaushik, Additional Sessions Judge, Dwarka Courts, Delhi, in Sessions Case No.107/2008, arising out of FIR No.720 dated 24.7.2006, PS Najafgarh, relating to death of Praveen Kumari, the daughter-in-law of the applicant. Criminal Appeal No.833 of 2009 filed by the applicant was allowed, and the trial court's judgment of conviction and order of sentence were set aside by the Hon'ble High Court of Delhi, vide its judgment dated 1.9.2014 (Annexure P-2). The applicant, vide his letter dated 15.9.2014 (Annexure P-3), communicated a certified copy of the said judgment dated 1.9.2014 to the respondents for taking necessary action. There being no response from the respondents, the applicant served a legal notice, dated 4.2.2015 (Annexure P-4), on them to reinstate him in service with all consequential benefits. In reply thereto, respondent no.2, vide his letter dated 19.3.2015 (Annexure P-5), informed the applicant that the matter was under
consideration with the higher authority. In spite of that, the respondents Page 2 of 8 OA 1800/15 Dilbagh Singh v. DTC & anr.3
having failed to take any decision, the applicant filed the present O.A. on 7.5.2015 seeking the following reliefs:
"A. Direct the Respondents to reinstate the Applicant in service of Delhi Transport Corporation with all consequential benefits;
B. Any other order that this Hon'ble Tribunal deems fit."
2. Opposing the O.A., the respondents have filed a counter reply, wherein it is, inter alia, stated that the question regarding reinstatement of the applicant in service is still under consideration with the appropriate authority and, therefore, no cause of action has arisen, and the O.A. being premature is liable to be dismissed. They have also resisted the claim of the applicant for granting him back wages with effect from the date of his dismissal from service.
3. We have heard Mr.Satyam Thareja, learned counsel appearing for the applicant, and Ms.Arati Mahajan, learned counsel appearing for the respondents.
4. In support of the claim of the applicant, Mr. Satyam Thareja, learned counsel appearing for him, placed reliance on the decision of the Hon'ble High Court of Rajasthan in Bijendra Singh v. Administrator, Sikar Kendriya Bank Ltd., MANU/RH/0201/1986; and the decision of the Hon'ble Supreme Court in Union of India and others v. Jaipal Singh, MANU/SC/0883/2003.
4.1 In Bijendra Singh's case (supra), the petitioner was dismissed from service on 21.9.1982 as a consequence of his conviction and sentence under Section 302/149 IPC. He was acquitted by the Division Bench of the Page 3 of 8 OA 1800/15 Dilbagh Singh v. DTC & anr.
4Hon'ble High Court of Rajasthan, vide its judgment dated 13.5.1986. Thereafter, he approached the respondent on 30.5.1986 to reinstate him in service with all consequential benefits. The Hon'ble High Court held that the moment he was acquitted of the charge under Section 302/149 IPC, his conviction and sentence were wiped out retrospectively and therefore, the termination order on the ground of conviction and sentence could not stand. Accordingly, the Hon'ble Court set aside the order of dismissal and directed the respondent to reinstate the petitioner in service with consequential benefits except the salary for the period from 21.9.1982 to 29.5.1986. 4.2 In Jaipal Singh's case (supra), the respondent was involved in a criminal case, and he, along with his brother, was charge-sheeted for offence punishable under Section 302 read with Section 34 of the IPC, and though he was convicted by the learned Additional Sessions Judge, Rewari, for the same, vide judgment dated 5.3.1997, on appeal the Division Bench of the Hon"ble Court returned a verdict of acquittal. As a consequence thereof, since he was not reinstated in service in spite of the judgment of his acquittal, the applicant moved the Hon'ble High Court and obtained orders directing his reinstatement with full back wages and consequential benefits. Allowing the appeal filed by Union of India and others, the Hon'ble Supreme Court held thus:
"..........If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the Page 4 of 8 OA 1800/15 Dilbagh Singh v. DTC & anr.5
department cannot in any manner be found fault with for having kept him out of service, since the law obliges a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing re-instatement cannot be sustained and the respondent has to be re-instated in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court in so far as it directed payment of back wages are liable to be and is hereby set aside.
5. The respondent will be entitled to back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service, without any break. The re- instatement, if not already done, in terms of the order of the High Court will be done within thirty days from today."
5. Ms. Arati Mahajan, learned counsel appearing for the respondents, relied on the decisions of the Hon'ble Supreme Court in Mithilesh Kumar v. Union of India, 2010(13) SCALE 98; and State Bank of India v. Mohammed Abdul Rahim, (2013) 11 SCC 67, to contend that the applicant is not entitled to salary for the period when he was kept out of service.
5.1 In Mithilesh Kumar's case (supra), the appellant, who was removed from service, was reinstated in service without back wages. His plea before the Hon'ble Supreme Court was that along with reinstatement, he should have been given back wages and consequential benefits. Page 5 of 8
OA 1800/15 Dilbagh Singh v. DTC & anr.
6Following its earlier decisions in Ranchhodji Chaturji Thakore v. Superintending Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and another, (1996) 11 SCC 603; Union of India & others v. Jaipal Singh, (2004)1 SCC 121; and Baldev Singh v. Union of India and others, (2005) 8 SCC 747, the Hon'ble Supreme Court reiterated the same principle that merely because there has been acquittal, it does not automatically entitle the employee to get the consequential benefits. Accordingly, the Hon'ble Supreme Court, upholding the judgment of the Hon'ble High Court, dismissed the appeal.
5.2 In Mohammed Abdul Rahim's case (supra), it has been held by the Hon'ble Apex Court that law imposes a clear bar on a Banking company from employing or continuing to employ a person who has been convicted by a criminal court, of an offence involving moral turpitude. The conviction continued to remain on record until it was reversed by the appellate court, and during the period there was, therefore, a prohibition in law on the employer-Bank from employing him. If the employee could not have remained employed with the Bank during the said period on account of the provisions of the Act, it is difficult to visualize as to how he would be entitled to payment of salary during the said period. His subsequent acquittal though obliterates his conviction does not operate to retrospectively wipe out the legal consequences of the conviction under the Act. Therefore, he would not be entitled to payment of salary during that period. Page 6 of 8
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6. Section 20(2)(b) of the Administrative Tribunals Act, 1985, stipulates that a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances, where no final order has been made by the Government or other authority, or officer, or other person, competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. When admittedly the applicant, vide his letter dated 15.9.2014, communicated to respondents a certified copy of the judgment of his acquittal, dated 1.9.2014, passed by the Hon'ble High Court of Delhi, and requested the respondents to take necessary action, and when the respondents failed to take any decision till 7.5.2015, we do not find any substance in the objection raised by the respondents that there arose no cause of action for the applicant to make the present application on 7.5.2015 under Section 19 of the Administrative Tribunals Act, 1985, and that as no decision was taken by the competent authority, the O.A. is premature and liable to be dismissed.
7. After having bestowed our anxious consideration to the facts and circumstances of the case and the rival contentions of the parties in the light of the decisions of the Hon'ble Supreme Court in Jaipal Singh's case (supra), Mithilesh Kumar's case (supra), and Mohammed Abdul Rahim's case (supra), and the decision of the Hon'ble High Court of Rajasthan in Bijendra Singh's case (supra), we have found that the Page 7 of 8 OA 1800/15 Dilbagh Singh v. DTC & anr.
8respondents are not justified in not reinstating the applicant in service as soon as they received from applicant the certified copy of the judgment dated 1.9.2014 passed by the Hon'ble High Court of Delhi setting aside the trial court's judgment of conviction and order of sentence, on account of which the applicant was dismissed from service on 8.12.2009. As per the law laid down by the Hon'ble Apex Court in the aforesaid decisions, the applicant is entitled to be reinstated in service with consequential benefits in accordance with rules, except the salary for the period from 8.12.2009 to 31.8.2014. Accordingly, the respondents are directed to reinstate the applicant in service forthwith, and to grant him consequential benefits in accordance with rules, except the salary for the period from 8.12.2009 to 31.8.2014, within three months from today. The period from 8.12.2009 to 31.8.2014 shall be counted as period of service, without any break.
8. In the result, the O.A. is allowed to the extent indicated above. No costs.
9. The Registry of the Tribunal shall supply copy of this order to the learned counsel for the parties in course of the day.
(RAJ VIR SHARMA) (SUDHIR KUMAR)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
AN
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