Central Administrative Tribunal - Delhi
Om Prakash vs Delhi Development Authority Delhi on 3 November, 2022
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Item No. 06 O.A. No. 1494/2019
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 1494/2019
M.A. No. 2280/2022
This the 03rd day of November, 2022
Hon'ble Mr. Manish Garg, Member (J)
Om Prakash, Age 62 years, Group "C"
S/o Sh. Suijan Singh A
R/o House No. 46, V& PO Singhu
PS Alipur, Delhi - 110040
Retd. Regular Khallasi
DDA, IM North Zone
...Applicant
(By Advocate: Mr. Yogesh Kumar Mahur with
Mr. Harkesh Parashar &
Mr. Bharpur Singh)
Versus
1. The Chairman,
Delhi Development Authority,
Raj Niwas, Rajpur Road, Delhi
2. The Vice Chairman
DDA,
Vikas Sadan, New Delhi
3. The Commissioner (Personnel)
Office of the Chief Vigilance Officer,
DDA, New Delhi
4. The Director (Pers)-I
Vigilance Branch
DDA, New Delhi
...Respondents
(By Advocate: Mr. Arun Birbal)
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Item No. 06 O.A. No. 1494/2019
ORDER (ORAL)
In the present matter, MA No. 2280/2022 has been filed seeking interim direction.
2. With the consent of the parties, the OA as well as MA has been taken for final disposal today.
3. This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
"(i) Quash and set aside the Impugned Order dated 25.5.2018 passed by Director (Personnel)-II, DDA and the Impugned Order dated 23.1.2019 passed by Commissioner (P) DDA rejecting the appeal of the applicant and not interfering in the order of the Director (Personnel) II DDA.
(ii) And Direct the Respondents to pass fresh order by the competent Authority while granting of all pay and allowances by treating as period from 13.4.1988 to 20.03.1996 and from 27.8.2002 to 03.07.2014 spend on duty with full pay and allowances for all purposes with all consequential benefit including the Pension and Medical facility, as the applicant has been exonerated by the Hon'ble High court as well as the Hon'ble Supreme court of India.
(iii) Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the applicant.
(iv) Cost of the proceedings be awarded in favour of the applicant and against the respondents."
4. The applicant is aggrieved by the impugned order dated 25.05.2018 passed by Director (Personnel)-II, DDA, wherein it has been stated that " NOW, THEREFORE, in view of the totality of facts and circumstances of the case, the undersigned is of considered view that there is no reason to 3 Item No. 06 O.A. No. 1494/2019 review the proposal conveyed vide notice dated 06/02/2018 and, hence, confirmed his decision and ordered that whole period of suspension from 13/04/1988 to 20/3/1996 and from 27/08/2002 to 03/07/2014 be regularized as leave kind of due and admissible to Shri Om Prakash, Khallasi, if he desires so. No pay and Allowance for the period of suspension in addition to subsistence allowance, which has already been paid to him, will be paid. If Shri Om Prakash, Khallasi does not apply leave for the period of suspension, the whole suspension period shall be treated as 'dies-non'. However, suspension shall be counted for calculating qualifying service for the purpose of pension only." He has also impugned the appellate order dated 23.1.2019, wherein it has been stated that " AND WHEREAS, the undersigned being the Appellate Authority has carefully perused the facts on record and submissions made by the appellant in is appeal and observed that Shri Om Praksh, Khallasi [retire] has not brought any new facts in the appeal. Hence, the suspension period cannot be treated as duty and the orders passed by Director [Personnel]-II vide No. 62/Vig./2018/3749 to 3155 dated 25/5/2018 are held and need no review.
NOW THEREFORE, the undersigned in exercise of the powers conferred upon him under schedule to Regulation 3 4 Item No. 06 O.A. No. 1494/2019
(d) of DDA [Conduct, Disciplinary & Appeal] Regulations 1999 hereby orders that there are no reasons to interfere in the order passed by the Disciplinary Authority i.e. Director [Personnel]-II, DDA. Thus the appeal file by Shri Om Prakash, Khallasi [retired] is rejected."
5. The sum and substance of the arguments of the applicant is that the impugned order has not been passed by the Competent Authority as the Appointing Authority in the present matter in so far as the applicant was concerned was the Vice Chairman, DDA. However, the order was initially passed by the Director (Pers)-I, DDA on 24.02.2016. The relevant paragraphs of the same reads as under:-
"AND WHEREAS, the disciplinary authority after considering all the facts of the case vide his order dated 28.12.2015 come to the conclusion that the period of suspension from 27.08.2002 to 19.12.2007 can not be treated as fully unjustified and, therefore, such period can not be treated as period spent of duty, however, under FR 54-B if the officials so desires he may get the period of suspension converted into leave of kind due. In case of the official Shri Om Prakash does not represent for conversion of the said period into leave of kind due the period shall be treated as dies-non. However regarding the period from 19.12.2007 to 03.7.2014 it is observed that the matter has been decided on merit by Hon'ble High Court of Delhi while setting aside the orders of removal dated 04.10.2007. Therefore the suspension period from 04.10.2002 to 03.07.2014 shall be treated as period spent on duty with full pay and allowances.5 Item No. 06 O.A. No. 1494/2019
NOW THEREFORE Sh. Om Prakash, Khallasi is given an opportunity for giving his consent against the said proposal if he so desires. Such representation should be made in writing and should reach the undersigned within 15 days from the date of receipt of this memorandum, failing which the matter will be decided as per rules."
Further, a Corrigendum dated 06.05.2016 has been issued, which reads as under:-
Attention is invited to this office order No. 42/Vig./14/1772 to 1777 dated 14.02.2016. This order was issued inadvertently instead of notice. Therefore, the order dated 24.02.2016 may be treated as notie.
In the said notice the suspension period from 04.10.02 to 03.07.14 has been mentioned as inadvertently "shall be treated as spent on duty with full pay and allowances". The period may be read as follows.
(i) This suspension period from 27.08.02 to 19.12.07 cannot be treated as fully unjustified and therefore the said period cannot be treated as period spent on duty. However if the officer desires the said period may be converted into leave of kind due. In case Sh. Om Prakash does not opt to convert the period into leave of kind due the period shall be treated as dies non.
(ii) The period from 20.12.07 to 03.07.14 observed that the matter has been decided on merit by Hon'ble High Court of Delhi while setting aside the orders of removal dated 04.10.07, therefore the said period shall be treated as period spent on duty with full pay and allowances.
Pursuant to the corrigendum, an appeal was also preferred.
6Item No. 06 O.A. No. 1494/2019
6. It is the contention of the applicant is that once the Director (Personnel) II, DDA, has become functus officio, therefore, he cannot review his own order. Even if the Corrigendum dated 06.05.2016 passed by the Competent Authority is correct and cannot be sustained in view of the lack of power of review. He preferred an appeal Annexure A- 13, where he has taken the present ground, which reads as following:-
"C. Because the Disciplinary Authority or any authority after passing any order automatically has become functus officio. However, the Disciplinary Authority has wrongly but cleverly named the order dated 06.05.2016 as 'corrigendum' whereas the corrigendum world could be used by an authority to correct the factual position and not to change the entirety and totality of earlier order."
7. Learned counsel for the applicant further draws attention to the Schedule of Disciplinary Authorities- Schedule to Regulation 3 (d) of DDA (Conduct, Discipline & Appeal) Regulations, 1998, the relevant column reads as under:
Sl.No. Title of Appointing Authority Penalties Appellate service or Authority empowered to Authority post impose penalty and place the employees under suspension Group 'D'
5. A post carrying Director Director (Pers.) All penalties Commissioner a pay or scale (Pers.) (P) of pay with a max. of which is Rs. 4000/-
or less 7 Item No. 06 O.A. No. 1494/2019
8. In the meantime, the applicant superannuated on 30.06.2016 from the post of Khallasi. Learned counsel for the applicant further relies on representation dated 26.02.2008 (Annexure A-16). It has been highlighted by the learned counsel of the applicant that vide representation dated 26.02.2018 following submission has been made:-
"6. In the back drop of the foregoing facts and ratio of the case, it is earnestly requested that the appellant needs to regularized entire suspension/ dismissal/ removal from the service period as a spent on duty for all purposes because no on penalty has been imposed on me"
9. Attention has also been drawn a notice dated 06.02.2018, the relevant part of the same reads as under:-
"AND WHEREAS after considering all facts on record and the representation of Shri Om Prakash dated 09/03/2016, the disciplinary authority has further observed that the acquittal of the official Shri Om Prakash, Khallasi is not on merit but was acquitted by the Hon'ble Court by extending benefit of doubt. Therefore, the disciplinary is of the considered view that the whole period of suspension fromm 13/04/1988 to 20/03/1996 and from 27/08/2002 to 03/07/2014 be regularized as leave kind of due and admissible to Shri Om Prakash, Khallasi, if he desires so. No pay and allowance for the period of suspension in addition subsistence allowance, which has already been paid to him, will be paid. If Shri Om Prkash,, Khallasi does not apply leave for the period of suspension, the whole suspension period shall be treated as 'dies-non'. However, suspension period shall be counted for calculating qualifying service for the purpose of pension only.8 Item No. 06 O.A. No. 1494/2019
NOW THEREFORE, Shri Om Prakash, Khallasi is again given an opportunity for giving hiss consent against the said proposal. Such representation should be made in writing and should reach the undersigned within 15 days from the date of receipt of this memorandum failing which the matter will be decided as per rules."
10. In the High Court of Delhi in CRL.A. 765/2001 titled as OM Parkash Vs. State NCT of Delhi with another case was decided on 06.11.2013, following directions were issued:
"4. In the light of conflicting versions and suspicious features on crucial aspects, complainant's version does not appear to be wholly reliable. Neither thee demand nor the acceptance alone is sufficient to establish the offence. Mere recovery of tainted money divorced from the circumstances under which it was paid is not sufficient to convict thee accused. Thee complainant's testimony is lacking to prove that A-1 accepted the bribe amount with the tacit approval of A-2. No other independent public witness was associated in the investigation from the office of the accused where the alleged transaction took place. The prosecution was unable to establish that both A-1 and A-2 shared common intention to demand and accept thee bribe amount of the complainant Conviction of the appellants cannot be founded on the basis of inference.
5. In the light of the above discussion, the impugned judgment cannot be sustained and is set aside. The appeals are allowed. Benefit of doubt is given to the appellants and they are acquitted in this case."9 Item No. 06 O.A. No. 1494/2019
11. Against the aforesaid order, a SLP was preferred by the State which was dismissed in limine vide order dated 07.07.2014 by the Hon'ble Apex Court.
12. Per contra, learned counsel for the respondents submits that the treatment of period of suspension is not a punishment, it has been dealt with in accordance to the Rule position. He relies upon Regulation 22 of DDA (Conduct, Discipline and Appeal) Regulations. It is contended by learned counsel for the respondents that the issue of Disciplinary Authority being below the Appointing Authority will come into place only in the case of dismissal, removal and reversion and not in the present case, as the present case is not a case of punishment but of suspension only inasmuch as the applicant was already reinstated in the service by the respondent department.
13. Attention has also been drawn to order passed in LPA No. 1964/2006 titled as DDA Vs. Om Prakash against the order dated 29.09.2004, the same reads as under:-
"ORDER 04.10.2006 CM No. 13536/2006 (delay) in LPA No. 1964/2006 and CM No. 13535/2006 This LPA is challenging the order dated 29.9.2004 There is delay of about 656 days. The explanation for delay, the usual bureaucratic transmission of file from one 10 Item No. 06 O.A. No. 1494/2019 department to other, is wholly unsatisfactory. The application for condonation of delay is dismissed. Consequently, the LPA is also dismissed. However, it is made clear that the issues involved in the present appeal are kept open for decision in appropriate case as the learned counsel for the appellant has vehemently contended that the decision of Single Judge in this case, if followed, may effect several other similar cases."
14. It has been vehemently argued by learned counsel for the respondents that merely because the Vice Chairman being the highest authority to take decision on the policy regarding regularization of several thousand employees including the applicant, therefore, he cannot be said to be Disciplinary Authority/ Competent Authority in present facts and circumstances of the case.
15. It is also contended that vide corrigendum dated 06.05.2016, the mistake was rectified and the previous order be treated as "notice".
16. It is also contended by learned counsel for the respondents, noticing the technical error, a fresh show cause notice as already highlighted above vide office order dated 06.02.2018, the relevant para reads as under:-
"AND WHEREAS Sh. Om Prakash, Khallasi was given an opportunity vide notice dated 24.02.2016 for giving his consent against the said proposal. Such representation should be made in writing and should reach the undersigned within 15 days from the date 11 Item No. 06 O.A. No. 1494/2019 of receipt of this memorandum, failing which the matter will be decided as per rules.
17. The applicant filed a reply pursuant to the show cause notice, thereafter the Impugned Order as well as Appellate order has been passed. Attention has also been drawn by learned counsel for the respondents to decision rendered by the Hon'ble High Court in W.P.(C) 3197/2018 & CM APPL. 12704-12705/2018 titled as Delhi Development Authority Vs. Ram Kumar Sharma & Anr. He places reliance on Regulation 22 of Delhi Development Authority (Conduct, Discipline and Appeal), Regulation, 1999 ('Regulation'), the same reads as under:
"1. When the employee under suspension is reinstated the competent authority may grant him the following pay and allowances for the period of suspension.
(a) If the employee is exonerated and not awarded any of thee penalties mentioned in Regulation 23, the full pay and allowances which he would have been entitled to if he had not been suspended, less the subsistence allowance already paid to him, and
(b) If otherwise, such proportion of pay and allowance as the competent authority may prescribe.
2. In a case falling under sub-clause(a) the period of absence from duty will be treated as period spend on duty unless thee competent authority so directs."
18. It is further submitted by the learned counsel for the respondents that it is admitted that the Vice Chairman, DDA was the Appointing Authority in the case of the applicant as 12 Item No. 06 O.A. No. 1494/2019 he was regularised. However, the Disciplinary Authority as per schedule to DDA (Conduct, Disciplinary and Appeal) Regulation, 1999 is the Director (Personnel) DDA and the Appellate Authority is Commissioner (Personnel), DDA.
19. It is an admitted position that in the present OA, the applicant challenges the impugned orders dated 25.05.2018 and 23.01.2019, there is no challenge to the earlier orders dated 19.02.2016 and 06.05.2016. It is also an admitted position that the Hon'ble High Court while passing an order on acquittal was pleased to set aside the impugned order of conviction and appeal was allowed by giving a benefit of doubt to the appellant. The Hon'ble High Court as already noted above in W.P.(C) 3197/2018 & CM APPL. 12704- 12705/2018 titled as Delhi Development Authority Vs. Ram Kumar Sharma & Anr. has held as under:-
"17. We have examined the decision rendered by the learned Special Judge in the aforesaid criminal case. A Perusal of the judgment leaves no manner of doubt that the acquittal of the respondents was premised on grant of benefit of doubt to him. Since the petitioner has chosen to reinstate the respondents and has not proceeded in departmental proceeding against him, we refrain from making any observations with regard to the involvement of the respondent in the said criminal case. We may only observe that the submissions of Mr. Birbal taken note of hereinabove are weighty.
18. However, we cannot accept the petitioner's submission that in all such cases, the Tribunal cannot interfere with the decision 13 Item No. 06 O.A. No. 1494/2019 that the petitioner may take. In each case, the matter would require consideration in the light of the facts of that case, particularly, since the examination of judicial decision exonerating thee employee would be best undertaken by a Judicial Forum.
19. Consequently, we allowed the petition and the impugned order is accordingly, set aside. Pending applications also stand disposed of."
20. There appears to be a fallacy in the argument of learned counsel for the applicant that the period of suspension order is a penalty order for a class IV employee and therefore it has to be dealt with by the Competent Authority. It cannot be said that above impugned order(s) have not been passed by the Competent Authority/ Appellate Authority. Be that as it may be, in the recently the Hon'ble Apex Court in the decision in Civil Appeal No. 5930 of 2022 titled as the State of Rajasthan Vs. Phool Singh decided on 02.09.2022 has held as under:-
"12. Thus, in the present case, the learned Single Judge as well as the Division Bench of Rajasthan High Court were clearly wrong in interfering with the order of the Disciplinary Authority of the Rajasthan Police and placing their reliance on Capt. M. Paul Anthony. It is the Disciplinary Authority which is best equipped to reach a finding whether a "misconduct" has been committed. The prime concern of a Judge should be whether such a finding has been arrived after following a fair procedure, following the principles of natural justice and fairness. This aspect has been underlined in a recent judgment of this Court (State of Rajasthan v. Heem Singh). The relevant para is reproduced as hereunder:-14 Item No. 06 O.A. No. 1494/2019
"39. In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy - deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the 15 Item No. 06 O.A. No. 1494/2019 penalty are disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands- off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re- appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges' craft is in vain."
It is true that this Court, apart from the case of Capt. M. Paul Anthony, has in a few cases not interfered with the reinstatement of an employee who was dismissed as a result of disciplinary proceedings, and was only reinstated in service because of his acquittal in criminal proceedings, but again the reasons which weighed with the Court in such cases were that in almost in all such cases, the acquittal was an honourable acquittal and not an acquittal on a technicality, or on acquittal given because of "benefit of doubt".
13. In the case at hand, respondent was convicted by the Trial Court and in appeal the Appellate Court only acquitted him by giving him a "benefit of doubt". The operative part of order dated 26.11.1994 of the Appellate Authority reads as under: -
"Hence, on the basis of aforesaid analysis the present appeal on behalf of the 16 Item No. 06 O.A. No. 1494/2019 appellant accused against the respondent/ prosecution is allowed and the judgment and sentence dated 21.3.94 passed by the Subordinate Court of Munsif & Judicial Magistrate Dholpur is hereby quashed and the above appellant/accused Phool Singh is acquitted for the charge u/s 392 IPC & u/s 3/25 of Arms Act by giving benefit of doubt."
14. Therefore, in the present case the acquittal of the respondent is not an honourable acquittal, but an acquittal given due to a "benefit of doubt". Under these circumstances and in view of the position of law as stated above, this appeal is allowed and the order dated 29.01.2014 of the learned Single Judge and the order dated 09.09.2020 of the Division Bench of Rajasthan High Court, Jaipur Bench are hereby set aside."
21. In the facts and circumstance of the case, as far as the impugned order regarding the suspension period being counted for calculation qualifying service for the purpose of pension only is fully justified. Therefore, the Competent Authority is directed to pass an appropriate PPO with regard to the applicant and further all retiral benefits be paid to the applicant within a period of 45 days from the date of receipt of a certified copy of this order. Since it is a matter of record that the Appellate Authority has not dealt with the submission "whether the Director (Personnel) was a Competent Authority to pass a suspension period order", the Appellate Authority could have taken into consideration and pass an appropriate order taking note of submission. 17 Item No. 06 O.A. No. 1494/2019
22. In view of the aforesaid position, the order dated 25.05.2018 and Appellate order dated 23.01.2019 insofar as the issue with regard to "whether the Director (Personnel) was a Competent authority to pass an order of suspension", which has not been dealt with in the present facts and circumstances is set aside. The Appellate Authority shall deal with the issue in accordance with the DDA Regulation insofar as treating the period of suspension is concerned within 45 days from the date of receipt of a certified copy of this order.
23. The OA is disposed of in the aforesaid terms.
There shall be no order as to costs.
(Manish Garg) Member (J) /sm/