Central Administrative Tribunal - Delhi
Smt. Savita Sharma vs Delhi Development Authority on 25 March, 2009
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1469/2008
New Delhi this the 25th day of March, 2009.
Honble Sh. N.D. Dayal, Member(A)
Smt. Savita Sharma,
W/o late sh. Shri Niwas Sharma,
R/o WZ-44A, Possangipur,
Janakpuri, New Delhi. . Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Delhi Development Authority
through its Chairman,
Vikas Bhawan, New Delhi.
2. The Commissioner (Personnel)
Delhi Development Authority,
Vikas Bhawan, New Delhi.
3. The Dy. Director (Vig.)-I,
Delhi Development Authority,
Vikas Bhawan, New Delhi. . Respondents
(through Sh. Rajinder Khatter, proxy for Mrs. Pratima Gupta, Advocate)
O R D E R
The applicant in this O.A. is the widow of late Sh. Shri Niwas Sharma, who was working as Kanoongo in T.N./ Section of the D.D.A. and expired on 18.01.2007 after a long sickness. It is submitted that a false complaint was made against her husband and criminal case was registered by the C.B.I. under P.C. Act, 1988 whereupon he was arrested and consequently placed under suspension from 06.09.1993 and remained under suspension till 23.08.1999 even though in the meanwhile he was released on bail. Learned Special Judge, Delhi passed judgment in the matter on 20.05.2000 whereby it is contended that the applicants husband was acquitted of the charges.
2. As such, after reinstatement many representations are stated to have been made to regularize the period of suspension in view of the acquittal but without any show cause the respondents passed order dated 23.02.2006 (not enclosed with OA) whereby the period of suspension was in fact regularized by grant of different kinds of leave as reflected in Annexure A/2, which is dated 24.12.2007, thus resulting in denial of the benefit of pay and allowances as well as qualifying service which would have become available by regularizing the said period as duty. Upon further representation being made to the Vice-Chairman, DDA, the order at Anneuxre A/1 dated 22.05.2008 has been passed denying the request made by the applicant. It is complained that due to the sanction of due leave, including earned leave, the applicant is also deprived of the benefit of leave encashment even though similarly situated persons who were acquitted on benefit of doubt were regularized with all consequential benefits including pay and allowances (no names of such persons have been mentioned). The applicant has, therefore, sought the following relief:-
(i) That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned orders dated 22.5.08 (Annex.A/1), order dated 24.12.2007 (Annex.A/2) and order dt. 23.2.2006 by which the period of has been decided, declaring to the effect that the same are illegal, arbitrary, against the principle of natural justice and consequently pass an order directing the respondents to treat the suspension period of the husband of the applicant w.e.f. 6.9.93 to 23.8.99 as on duty for all the purposes and therefore the applicant is entitled for all the consequential benefits including the life time arrears of pay and allowances of her husband along with interest.
(ii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation.
3. It is contended by the applicant that under the Cr.PC an acquittal is an acquittal and there is no difference between honourable acquittal and benefit of doubt. As such, the action taken by respondents is bad in law in view of the following judgments:-
Shashi Kumar Vs. Uttari Haryana Bijli Vitran Nigam, 2005(1)ATJ 154 U.O.I. Vs. Jaya Ram, AIR 1960 Mad 325 Jagmohan Lal Vs. State of Punjab, AIR (54) 1967 P&H 422(Punj.) Ramsinhji Viraji Rathod Permanand Society Vs. State of Gujrat, 1971 SLR 743 Andhra Bank Vs. W.T. Seshachalam, 2004(1)SC SLJ 264 Commr. Of Police & Ors. Vs. Om Kumar & ors.,2004(3)AISLJ 272 R.K. Gupta Vs. UOI & Ors., 2005(1)ATJ 587 D.R. Patel Vs. U.O.I & Ors., 2003(2)ATJ 374
4. It has been also contended that the decision of the respondents is illegal as no opportunity was given by issue of show cause notice. Even when there is minor penalty, an employee is entitled to full pay and allowances for the suspension period and the applicants husband having been fully acquitted/exonerated is on a better footing. Besides, he was continued under suspension even after grant of bail without any justification. The applicant has further relied upon decision of a Single Bench of this Tribunal in OA-2337/2007 which is dated 18.03.2008 in the case of Mukesh Kumar Vs. DDA & Ors., copy placed at Annexure A/4 in support of her prayer in this OA.
5. The respondents have opposed the relief sought by the applicant and stated that her husband had demanded Rs.800/- as illegal gratification to allow unauthorized construction because of which a criminal case was registered against him and he was placed under suspension. The prosecution sanction was issued and charge sheet was filed in Court, which acquitted him giving benefit of doubt. As such, he is not entitled to the relief and cannot rely upon the case of others since each case has its own merit. The charges could not be proved in the Court as the shadow witness, who was the sole witness, could not be cross-examined as he had expired during the trial but the Court also noted certain contradictions in the prosecution case. Nevertheless, the suspension was not wholly unjustified, which is why it has been regularized as leave of the kind which was due and admissible. It is asserted that the applicant has concealed the fact that a notice was issued on 17.06.2005, which was also replied on 29.07.2005 whereupon the order of 23.02.2006 was passed. The respondents have enclosed at Annexure R-2 the reply of the applicants husband in response to Memo dated 17.06.2005. The applicants husband had sought therein regularization of suspension in terms of Regulation 22 of DDA Conduct, Disciplinary and Appeal Regulations 1999. He had mentioned the names of 5 UDCs/JEs stating that the Court acquitted them on benefit of doubt and yet their period of suspension was regularized as spent on duty. Therefore, in his case the same benefit be extended. Their names are also seen to have been referred to in the order of the Tribunal passed in OA-2337/2007 mentioned above. The respondents have enclosed at Annexure R-1 a copy of order dated 23.02.2006 by which the request was rejected taking similar grounds. An appeal against this order was also turned down but under the provisions of FR 54(B) period of suspension was allowed to be converted into leave and since available earned leave was also granted, the question of leave encashment did not arise.
6. In his rejoinder, the applicant submits that although the Criminal Court used the words benefit of doubt in the judgment, the body of the same shows that the prosecution failed to establish the charges and as such the applicant should have been treated as acquitted on merits and accordingly granted the relief prayed for.
7. During the hearing of this matter on 13.02.2009, an adjournment was sought on behalf of the respondents stating that a Division Bench had reserved a similar case for judgment and the order was to be pronounced in the near future. However, when the matter was finally heard and reserved on 17.03.2009, no such statement was made even upon a pointed query in that regard. The learned counsel appearing for the respondents has submitted that the judgment of the Tribunal relied upon by the applicant in OA-2337/2007, copy placed at Annexure A/4 has been stayed by the Honble High Court of Delhi, which is not disputed. He further relies upon the order passed by the Tribunal on 05.02.2009 in OA-1746/2008 (copy produced) as well as judgments reported in 1997(1)SC SLJ 147 and 1997(4)JT 322. The learned counsel for the applicant has additionally relied upon judgment of Honble High Court of Delhi in the case of Mohan Lal Vs. UOI in CWP No. 1265/1973 dated 24.07.1981 (copy produced).
8. It is noticed that the applicant has not placed on record any rule or referred to any law requiring termination of suspension upon grant of bail despite continuation of criminal trial on grounds of moral turpitude, nor are any details available to show discrimination viz-a-viz the 5 other persons named in the representation to notice received. The applicant takes support of the guidelines regarding minor penalty but there are no departmental proceedings held in the present case. Also, no appeal has been preferred by respondents against acquittal by Criminal Court. It could, therefore, be inferred that the respondents were convinced that there was no supporting evidence to conclude unbecoming conduct on the part of the applicants husband. In Mohan Lal (supra) the Court was dealing with a claim for full pay and allowances and other service benefits as well as treating of suspension period as duty in a matter where the petitioner had been acquitted in criminal case with benefit of doubt and the petition was allowed. In fact, the various judgments have been relied upon by the applicant to emphasize her claim despite benefit of doubt, and there is no effective rebuttal thereof.
9. The citation 1997(1)SC 147(SLJ) quoted by the respondents without mentioning the title of the case is found to be non-existent. A perusal of the judgment in the case of Smt. K. Ponnamma Vs. The State of Kerala & Ors.JT 1997(4)SC 322, which has also been relied upon shows that it was a matter where Kerala Service Rules with reference to payment of back wages for suspension period were involved and upon acquittal a departmental enquiry was conducted denying payment of salary keeping in view the terms of Rule 56 thereof. The Apex Court having considered the Rules did not interfere. The facts of this case are evidently at variance with the present ones.
10. Further it appears that the period of suspension was to be regularized as leave of the kind due and admissible upon request, as mentioned in order of 23.02.2006 and FR 54(B)(7), but our attention is not drawn to any request on record. Rather, in his representation against the notice, the applicants husband has asked for regularization of suspension period as spent on duty for all purposes. Also the judgments relied upon herein were not noticed in OA-1746/2008. Besides, Regulation 22(a) mentions exoneration without award of any of the penalties given in Regulation 23, which relate to punishments imposed as per disciplinary action by the DDA.
11. A perusal of the judgment passed by the learned Special Judge, Delhi reveals that various aspects of the prosecution case were considered by the Court in the light of the contentions raised on behalf of the accused. It became apparent that the prosecution was unable to establish beyond doubt that the illegal gratification was actually demanded and accepted from the complainant during the trap. A number of discrepancies brought out in the prosecution case and material contradictions in the testimony of prosecution witnesses were also examined and ultimately the following orders were passed in Para-24:-
In view of my discussion above, I am of the opinion that the testimony of star witnesses of the prosecution is highly contradictory on material aspects of the case. Therefore, I do not consider it safe to base the conviction of the accused on aforesaid evidence. Thus, I hold that prosecution has failed to prove the guilt of the accused under Section 7 and 13(2) read with section 13(1)(d) of the P.C. Act, 1988 beyond shadow of reasonable doubt. accordingly acquit the accused Sri Niwas on both the counts giving him benefit of doubt. His Bail cum Surety bond stand cancelled.
12. It is evident that the Court held that the guilt of the accused had not been proved beyond reasonable doubt. However, the expression benefit of doubt has been introduced at the end of the order. The Honble High Court of Punjab and Haryana in the case of Bhag Singh Vs. Punjab & Sind Bank reported in 2006(1)SCT 175 was dealing with a matter where the petitioner who had been arrested in a criminal case was acquitted after trail and reinstated but his representation for payment of full pay and allowances for the period of suspension from 13.12.1988 to 27.09.1999 was rejected. Having examined the case law including the judgments referred to by the applicant at para-3(i), (iii) and (iii) above, the Court ordered release of full pay and allowances for the period of suspension by treating it as spent on duty with consequential benefits, inter alia, on the principle that where the acquittal is for want of evidence to prove the criminal charge, mere mention of benefit of doubt by the Court would not imply that such an acquittal was not an honourable one. The Courts are primarily concerned with finding out whether the charge is proved beyond reasonable doubt, and if it is not the use of the words benefit of doubt does not obliterate the earlier discussion which may show that there is no evidence.
13. In view of the above discussion, the impugned orders are set aside. The respondents are directed to release the full pay and allowances for the period of suspension from 06.09.1993 to 23.08.1999 by treating the period as spent on duty for all purposes. Appropriate consequential orders shall follow. The above exercise be completed within a period of three months from the date of receipt of a certified copy of this order. Since the applicant has not placed before Court the correct facts relating to her husband having received a show cause notice and the Court has been approached only in July 2008, there shall be no order as to interest. No costs.
(N.D. Dayal) Member(A) /vv/