Central Administrative Tribunal - Delhi
Ved Prakash vs Delhi Development Authority Delhi on 30 November, 2017
Central Administrative Tribunal
Principal Bench
OA No.307/2016
Order reserved on: 15.11.2017
Order pronounced on: 30.11.2017
HON'BLE MRS. JASMINE AHMED, MEMBER (J)
HON'BLE MR. K.N. SHRIVASTAVA, MEMBER (A)
Ved Prakash (Retired UDC/DDA)
S/o Late Shri Vishal Mani
C/O-BD-859
Sarojini Nagar, New Delhi
Aged about 59 years
-Applicant
(By Advocate: Shri Malaya Chand
Versus
Delhi Development Authority Through its Vice Chairman
Vikas Sadan, INA, New Delhi.
-Respondent
(By Advocate: Ms. Sriparna Chatterjee)
ORDER
Shri K.N. Shrivastava:
Through the medium of this O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-
"A) Quash and set aside the impugned order dated 19.11.2015. B) Direct the respondent to pay the arrears as accrued to applicant".2
(OA No.307/2016)
2. The factual matrix of this case, as noticed from the record, is as under:-
2.1 The applicant while working as Upper Division Clerk (UDC) in Delhi Development Authority (DDA)-respondent faced a criminal charge in Criminal Case No. 188/07 which resulted in his conviction by the Special Judge Delhi vide judgment dated 26.03.2011. The details of his conviction and punishments are as under:-
i) Convicted under section 120-B-IPC read with 7 & under section 12 and 13(2) read with 13(1) (d) of Prevention of Corruption Act, 1988 (PC, Act) and sentenced to undergo rigorous imprisonment for two years along with a fine of Rs.20,000/- and in default of payment of fine, to undergo simple imprisonment for one month.
ii) He was sentenced for substantive offence under section-7 of PC Act to undergo rigorous imprisonment for three years and a fine of Rs.40,000/- and in default of payment of fine, to undergo simple imprisonment for three years.
iii) He was further sentenced under section-13 (2) reading 13 (1) (d) of PC Act to undergo rigorous imprisonment for three years. In addition a fine of Rs.40,000/- and in default of payment of fine, to undergo simple imprisonment for three years.3
(OA No.307/2016) 2.2 The applicant filed Criminal Appeal No.540/11 against the judgment and order of sentence dated 11.03.2011 and 26.03.2011 respectively in Hon'ble Delhi High Court. The Hon'ble High Court vide order dated 19.05.2011 ordered suspension of the sentence of the applicant during the pendency of the appeal and enlarged him on bail on furnishing a personal bond for a sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the Trial Court. The conviction of the applicant, however, was not stayed by the Hon'ble High Court.
2.3 Pursuant to his conviction by the Criminal Court, the Commissioner (Personnel), Vigilance Branch, DDA vide his Annexure A-5 order dated 09.11.2011 imposed the punishment of compulsory retirement on the applicant under Regulation 30 of DDA (Conduct, Disciplinary and Appeal) Regulations, 1999 (in short, 1999 Regulations).
2.4 Lt. Governor (LG) of Delhi while considering the appeal case of conviction/dismissal in respect of one Shri Mehroz Khan Ex-JE (C)/DDA ordered that imposition of compulsory retirement in such cases were not justifiable and directed to submit all cases of conviction to him wherein the penalty of compulsory retirement had been imposed on the concerned DDA employees. The case of the applicant was one such case. As per the instruction of the Lt. Governor, a Commissioner (Personnel) Vigilance Branch, DDA 4 (OA No.307/2016) issued Annexure A-2 Show Cause Notice (SCN) dated 29.06.2015 to the applicant indicating therein as to why penalty of removal from service should not be imposed upon him. The applicant was given 15 days time to reply to the SCN. The relevant portion of the said notice is extracted below:-
"AND WHEREAS, Hon'ble LG, Delhi after considering all the facts of the case in r/o Shri Ved Prakash, ex.UDC/DDA, vide his order dated 15.05.2015, as of the view that this is a fit case to suo motu order revision of the penalty imposed by the Disciplinary Authority, invoking the inherent powers conferred upon him under Regulation 32G of DDA Conduct, Disciplinary and Appeal Regulations, 1999, in order to impose appropriate penalty upon Shri Ved Prakash, ex.UDC/DDA in view of the totality of the circumstances of the case, Hon'ble LG, Delhi is of the considered view that ends of justice in this case will be met if the penalty imposed by Disciplinary Authority upon Shri Ved Prakash, ex.UDC/DDA is revised to "Removal" from service, which shall not ordinarily be a disqualification for future employment".
2.5 The applicant replied to Annexure A-2 SCN dated 29.06.2015 vide his Annexure R-3 (colly) reply dated 16.07.2015. During the pendency of the consideration of his reply to the SCN by the Lt. Governor, the applicant approached this Tribunal in OA No.2589/2015 challenging the SCN dated 29.06.2015 issued by Director (Personnel) Vigilance Branch, DDA. The Tribunal dismissed the said OA with the following observation:-
"We are of the opinion that this is a pre-mature application by the applicant because whatever grounds he wishes to raise, should first be raised before the Hon'ble LG in reply to the Show Cause Notice and, if he is still aggrieved by the LG's order, he is always at liberty to approach the appropriate forum".5
(OA No.307/2016) 2.6 After considering the reply of the applicant to the SCN dated 22.06.2015, the Lt. Governor vide his Annexure R-6 order dated 15.10.2015, imposed the penalty of removal from service on the applicant. The operative part of the order reads as under:-
"In view of the totality of facts and circumstances of the case, I am of the considered opinion that the averments made by the petitioner in his petitions are devoid of merit. I see no reason to review the proposal conveyed vide notice F.25(14)01/Vig./ACB/Pt./4718 dated 29.06.2015. I, therefore, confirm the proposed penalty and order imposition of "removal from service which shall not be a disqualification for future employment" upon the petitioner.
The petitioner, Shri Ved Prakash, the then UDC/DDA be accordingly informed".
2.7 The order of the Lt. Governor was communicated to the applicant by the Director (Personnel) Vigilance Branch, DDA vide his impugned Annexure A-1 order dated 19.11.2015.
2.8 Aggrieved by the impugned Annexure A-1 order, the applicant has filed the instant OA praying for the reliefs as indicated in Para-1 (supra).
3. In support of the reliefs claimed, the applicant has pleaded the following important grounds:-
i) The Lt. Governor, who is also Chairman of the DDA is not the revisionary authority of the applicant and has no jurisdiction to revise the order passed by the Disciplinary Authority (DA). The LG has wrongly exercised powers under Regulation-32 G of the 1999 Regulations. Even if it is assumed that LG has revisionary power, such power is to be exercised within a period of six months. In 6 (OA No.307/2016) case of the applicant, the initial penalty of compulsory retirement was imposed by the Commissioner (Personnel), Vigilance Branch, DDA on 09.11.2011 whereas the Lt. Governor has exercised his revisionary power on 15.10.2015, i.e., almost after 4 years, which is not permissible. The Hon'ble High Court of Delhi in the case of Union of India vs. Dharam Pal Gupta [WP (C) No.3622/2013] has held that the revisionary power has to be exercised within the prescribed period of six months and for that has relied upon the judgment of the Hon'ble High Court of Madras in the case of Secretary to Govt. of Pondicherry, Revenue Department & Anr.
Vs. V. Sekar [W.P. (C) No.6839/2002 and 6846/2002] decided on 01.10.2004 wherein it has been held as under:-
"As far as the first contention of the learned counsel for the petitioner the Revision Authority initiated the proceedings on 21.03.2000 or revising the order dated 02.09.1999. On a reading of the Rule 29 along with its proviso, we are of the view that initiation is the point of time which is to be reckoned for finding out the compliance of the said rule for the purpose of limitation. In the case on hand, when the Disciplinary Authority passed orders on 02.09.1999, six months period within which, the Revising Authority will expire by 02.03.2000. The rule does not state that final orders should have been passed within six months time in order to come within the prescribed time limit of Rule 29 of the CCS (CCA) Rules. The Rule only prescribes that the proceedings should be initiated within six months time. Therefore, when the Revising Authority passed orders on 23.02.2000, it will have to be held that the same was initiated well within the prescribed time limit and therefore, the order of the second respondent Tribunal on that score cannot be sustained".
ii) The LG is neither DA nor Appellate Authority (AA) nor Revisionary Authority (RA) for the applicant; hence the proposed 7 (OA No.307/2016) action of LG vide SCN dated 29.06.2015 was without any jurisdiction.
iii) After the penalty of compulsory retirement was imposed upon the applicant by the competent authority on 09.11.2011, the applicant ceased to be an employee of DDA and hence the LG had no power to impose the penalty of removal from service on the applicant.
iv) The SCN dated 29.06.2015 was wrongly issued by the authority concerned under the impression that conviction of the applicant has been affirmed by the Hon'ble High Court of Delhi. The concerned authority failed to notice that the sentence of the applicant has, in fact, been stayed by the Hon'ble High Court of Delhi.
4. Pursuant to the notice issued, the respondent entered appearance and filed its reply in which the following important averments have been made:-
a) The applicant has been convicted by the Criminal Court under section 120 B of IPC read with section 7,12, 13 (2), 13(1) (d) of the PC Act, 1988. He has been sentenced to undergo rigorous imprisonment and has also been imposed pecuniary fine.
b) The Hon'ble Lt. Governor of Delhi taking cognizance of Regulation-32 of the 1999 Regulations felt that in conviction cases involving illegal gratifications, the punishment of compulsory retirement is not justifiable and that in such cases the appropriate 8 (OA No.307/2016) penalty should be removal or dismissal from service. Accordingly, as directed by the LG, SCN dated 19.06.2015 was issued to the applicant to which he had replied. The applicant had sought judicial intervention of the Tribunal against the said SCN by filing OA-2589/2015 but the Hon'ble Tribunal declined to intervene in the matter and accordingly dismissed the OA vide order dated 10.08.2015. The applicant had challenged the ibid order of the Tribunal dated 10.08.2015 before the Hon'ble High Court of Delhi in WP (C) No.8005/2015 which was dismissed by the Hon'ble High Court vide order dated 21.08.2015.
c) The Lt. Governor after considering the reply of the applicant to the SCN, ordered to impose the penalty of removal from service on the applicant vide order dated 15.10.2015 which has been communicated to the applicant vide the impugned Annexure A-1 order dated 19.11.2015.
d) As per Regulation-23 of the 1999 Regulations, in all cases in which charge of acceptance from any person of any gratification, other than the legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty of removal or dismissal from service is required to be imposed. Accordingly, the LG, exercising his revisionary power has imposed the penalty of removal from service on the applicant.
5. The applicant has filed rejoinder to the reply filed on behalf of respondent in which more or less has reiterated his averments in the OA. 9
(OA No.307/2016)
6. On completion of the pleadings the case was taken up for hearing the arguments of the parties on 15.11.2017. Arguments of Shri Malaya Chand, learned counsel for the applicant and that of Ms. Sriparna Chatterjee, learned counsel for the respondent were heard.
7. Learned counsel for the applicant besides highlighting the averments made in the OA, stated that the applicant's DA is Commissioner (Personnel), Vigilance Branch, DDA, his AA is Financial Member, DDA and his RA is Vice-Chairman, DDA. The Lt. Government of Delhi, who is Chairman of DDA, does not have any right in the disciplinary matters of the applicant. Hence, Annexure A-2 SCN dated 29.06.2015 issued on the instruction of the LG is illegal. Placing reliance on the judgment in the case of Dharam Pal Gupta (supra) and the order of this Tribunal in OA No.685/2011 dated 03.01.2014 in Sri Pal Jain vs. Union of India & Ors.., he submitted that after the expiry of the six month period from the date of imposition of the penalty of compulsory retirement vide order dated 09.11.2011 by the DA, the LG had no authority to revise the penalty from compulsory retirement to removal from service.
8. Per contra, Ms. Sriparna Chatterjee, learned counsel for respondent argued that Regulation-23 of the 1999 Regulations makes it clear that in case of conviction for accepting illegal 10 (OA No.307/2016) gratification, the penalty to be imposed is either removal or dismissal from service. Since in the case of applicant, it had not been done and he was only inflicted with the penalty of compulsory retirement from service despite having been convicted by the Criminal Court under the PC Act, the LG exercising his powers under Regulation-32 G of 1999 Regulations ordered for re-opening of his case and cause issuance of the Annexure A-2 SCN dated 29.06.2015 to him. After the receipt of the applicant's reply to the SCN, the LG finally ordered for imposition of the penalty of removal from service on the applicant, which has been duly communicated to him vide impugned Annexure A-1 order dated 19.11.2015. 8.1 Ms. Sriparna Chatterjee vehemently argued that the applicant did not question the authority of the LG under Regulation 32 G of the 1999 Regulations in his WP(C) No.8005/2015, wherein he had challenged the order of the Tribunal dated 10.08.2015, dismissing his OA No.2589/2015.
9. In reply to the argument of Ms. Sriparna Chatterjee, learned counsel for the respondents, Shri Malaya Chand, learned counsel for the applicant submitted that the Hon'ble High Court of Delhi has kept all the grounds raised by the applicant in WP(C) No.8005/2015 open. He further stated that the LG has not considered all the points raised by the applicant in his reply to the SCN dated 16.07.2015.
11
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10. We have considered the arguments of the learned counsel for the parties and have also considered the pleadings and documents annexed thereto. Regulation 23 of the 1999 Regulations reads as under:
"Regulation-23 The following penalties may be imposed on an employee, as herein after provided for misconduct committed by him or for any other good and sufficient reasons Minor Penalties a. ......xxxx.......xxxxx b. xxx.......xxxxx c. xxxx......xxxxx d. xxxx.....xxxx.
e. xxxx...xxxx..
Major Penalties f. xxx......xxx g. xxx......xxxx h. Compulsory retirement i. Removal from service which shall not be a disqualification for further employment.
j. Dismissal from service which shall ordinarily we are disqualification for further employment under the Government. PROVIDED that, in every case in which the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in clauses (i) or clause (j) shall be imposed".
11. A plain reading of the Regulation 23 makes it absolutely clear that in case of the charge of accepting illegal gratification having been proved against a DDA employee, the penalty to be imposed on him should either be removal from service or dismissal from service. In the instant case, the competent authority vide its order dated 12 (OA No.307/2016) 09.11.2011 had imposed the penalty of compulsory retirement on the applicant despite his conviction under the provisions of the PC Act by the criminal court. Hence, we do not find any flaw in the order of the LG to re-open the case of the applicant in the light of the explicit provisions of Regulation 23 of the 1999 Regulations.
12. The next question that arises for our consideration is as to whether the LG indeed has power for re-opening the case of the applicant under Regulation 32G of the 1999 Regulations. The said Regulation is extracted below:
"Regulation 32G: Revision
1. Notwithstanding anything contained in these rules-
(1) the Authority;
(2) the Chairman/Vice Chairman; or
(3) the appellate authority, within six months of the date of the order proposed to be revised; or (4) any other authority specified in this behalf by the Authority by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of an inquiry and revise any order made under these regulations, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or imposed any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstance of the face;
or 13 (OA No.307/2016)
(d) pass such other orders as it may deem fit Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (f) to (j) of regulation 23 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an enquiry under regulation 25 has not already been held in the case no such penalty shall be imposed except after an inquiry in the matter laid down in regulation 25 subject to the provisions of regulation 30:".
13. This Regulation gives power to various authorities to call for records of any enquiry and revise any order made under the 1999 Regulations. The power of revision includes confirmation, modification or setting aside of order as also to enhance the penalty imposed. While there is a period of six months provided for such action in the context of the appellate and other authorities but no such time limit is prescribed for the Chairman and Vice-Chairman of the DDA as well as for the DDA itself. The LG, Delhi is Chairman of the DDA. Hence, we are of the view that there was no limitation of time for the LG to re-open the case of the applicant after having come to know that despite his conviction under the PC Act, he has been let off with a lesser penalty of compulsory retirement. The judgment of the Hon'ble High Court of Delhi in Dharam Pal Gupta (supra) and the order of this Tribunal in Sripal Jain (supra) do not have any implication to this case in view of the fact that no limitation of time has been prescribed for the LG in his capacity of 14 (OA No.307/2016) Chairman, DDA to exercise his authority under Regulation 32 G of the 1999 Regulations.
14. The applicant has also taken the plea that after his compulsory retirement he ceased to be an employee of the DDA and hence the LG could not have exercised his authority under Regulation 32 G of the 1999 Regulations against him. This plea is absolutely flawed and deserves to be rejected outrightly. Admittedly, the disciplinary proceedings had concluded while the applicant was still in service when the penalty of compulsory retirement was imposed on him. The LG, exercising his revisionary authority has only revised the penalty order dated 09.11.2011. The CCS (Pension) Rules, 1972 are applicable to DDA employees. Rule- 9 of the Pension Rules deals with the cases where disciplinary proceedings had not concluded while the Government servant was still in service, which is not the case of the applicant.
15. We would like to further observe that Criminal Appeal No.540/2011 filed by the applicant before the Hon'ble High Court of Delhi is still pending. Only his sentence has been suspended. In case the applicant succeeds in his criminal appeal before the Hon'ble High Court of Delhi, he would definitely be entitled to all the consequential reliefs. As on date, he stands as a convicted person and thus in terms of Regulation 23 of the 1999 Regulations he deserved to be inflicted with the punishment of removal or 15 (OA No.307/2016) dismissal from service. The LG exercising his powers under Regulation 32G of the 1999 Regulations has only implemented the provisions of Regulation 23 of the 1999 Regulations. We do not find any infirmity or illegality in the action of the LG.
16. In the conspectus of the discussions in the foregoing paras, this OA is dismissed being found devoid of any merit.
17. No order as to costs.
(K.N. Shrivastava) (Jasmine Ahmed) Member (A) Member (J) 'San.'