Central Administrative Tribunal - Delhi
Shri S B Bhardwaj vs Lt. Governor Through Chief Secretary on 17 November, 2009
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1738/2009 Tuesday, this the 17th day of November 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri S B Bhardwaj s/o Shri Ram Mehar Singh aged about 46 years r/o D-2/2341, Vasant Kunj, New Delhi and working as Assistant Engineer in MCD presently posted under EE (Proj) South Zone ..Applicant (By Advocate: Shri S S Tiwari) Versus 1. Lt. Governor through Chief Secretary Govt. of NCT of Delhi Delhi Sectt., IP Estate, New Delhi 2. Commissioner, MCD Town Hall, Chandani Chowk, Delhi ..Respondents (By Advocate: Shri K M Singh for MCD None for respondent No.1) O R D E R (ORAL)
Shri Shanker Raju:
Heard the learned counsel for the parties.
2. Applicant impugns respondents orders dated 26.6.2008 and 27.10.2008 whereby on appeal quashing of the penalty of dismissal and modifying it by a reduction, has resulted in treating the period as deemed suspension and as not spent on duty. The subsistence allowance already given has been held to be good.
3. For this, Municipal Corporation of Delhi has relied upon Regulation 5 (5) of DMC Services (Control & Appeal) Regulations, 1959 and the learned counsel appearing for MCD has also relied upon the decision of Apex Court in U.P. State Textile Corporation Ltd. v. P.C. Chaturvedi & others, AIR 2006 SC 87 to contend that in the event the dismissal is set aside, it is open for the disciplinary authority to treat the period as not spent on duty, which has been rightly done in the present case in accordance with rules.
4. Learned counsel for applicant, on the other hand, vehemently opposed the contentions and states that the conditions precedent of reinstatement on a judicial order having not been met with, Regulation 5 (5) of Regulations 1959 cannot be invoked.
5. On carefully considering the rival contentions of the parties, we find that here the punishment has been set aside by the appellate authority without ordering further inquiry. In such an event, neither Regulation 5 (4) nor Regulation 5 (5) of Regulations 1959 would have any application. In such view of the matter, when the applicant was never placed under suspension earlier, he cannot be placed under deemed suspension. The case law cited by learned counsel for respondent MCD is distinguishable on the ground that on reinstatement in the case before the Apex Court further inquiry has been ordered, which is not in the instant case.
6. As the penalty has been substituted, the effect of penalty would go back from the date the penalty of dismissal has been substituted, i.e., 20.7.2006 and in such an event, the applicant has a right to be reinstated and the period of his absence from 20.7.2006 till he is reinstated on 26.6.2008 has now to be reconsidered and decided in the light of the order passed by the Lt. Governor where no further inquiry has been ordered.
7. Accordingly, OA is disposed of. Orders passed by the respondents are set aside to the extent that the period from 20.7.2006 has been treated as not spent on duty and deemed suspension. Respondents are directed to decide this period in accordance with rules by passing a speaking order within a period of three months from the date of receipt of a copy of this order. It goes without saying that on a decision to be taken by the respondents, the consequences would ensue upon the applicant in accordance with rules. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/