Central Administrative Tribunal - Delhi
Prabha Joshi vs Govt. Of Nctd on 2 December, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3428/2012 O.A.No.3430/2012 O.A.No.3770/2012 Monday, this the 2nd day of December 2013 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. P.K. Basu, Member (A) O.A.No.3428/2012 Prabha Joshi, age 61 years w/o late Mr. B D Joshi R/o BH-16, West Shalimar Bagh Delhi ..Applicant (By Advocate: Mr. Sachin Chauhan) Versus 1. Govt. of NCTD, through Chief Secretary Delhi Secretariat, IP Estate, New Delhi 2. The Commissioner (VAT) Deptt. Of Trade & Taxes Vyapar Bhawan, IP Estate New Delhi 3. The Secretary (Services) Govt. of NCT of Delhi Delhi Secretariat Players Building, IP Estate New Delhi-2 ..Respondents (By Advocate: Mr. Vijay Pandita) O.A.No.3430/2012 Swaran Gujral, age 57 years ASTO, w/o Mr. S Samphuran Singh R/o B-12, Tagore Garden Extn. New Delhi-27 ..Applicant (By Advocate: Mr. Sachin Chauhan) Versus 1. Govt. of NCTD, through Chief Secretary Delhi Secretariat, IP Estate, New Delhi 2. The Commissioner (VAT) Deptt. Of Trade & Taxes Vyapar Bhawan, IP Estate New Delhi 3. The Secretary (Services) Govt. of NCT of Delhi Delhi Secretariat Players Building, IP Estate New Delhi-2 ..Respondents (By Advocate: Mr. Vijay Pandita) O.A.No.3770/2012 Shashi Singh, age 40 years ASTO w/o Dr Devender Singh B-I-360, Madangir, New Dehhi-62 ..Applicant (By Advocate: Mr. Sachin Chauhan) Versus 1. Govt. of NCTD, through Chief Secretary Delhi Secretariat, IP Estate, New Delhi 2. The Commissioner (VAT) Deptt. Of Trade & Taxes Vyapar Bhawan, IP Estate New Delhi 3. The Secretary (Services) Govt. of NCT of Delhi Delhi Secretariat Players Building, IP Estate New Delhi-2 ..Respondents (By Advocate: Mr. Vijay Pandita) O R D E R (ORAL)
Mr. A.K. Bhardwaj:
These three Original Applications (O.A.Nos.3428, 3430 and 3770 of 2012) raise common question of law and facts, thus are taken up for disposal in terms of the single order.
2. The applicants in the aforementioned Original Applications, who were working as Assistant Sales Tax Officer (ASTO) in the Office of the Commissioner (VAT), Department of Trade & Taxes, New Delhi on crucial date, i.e., 9.3.2005 were placed under suspension as disciplinary proceedings were initiated against them in connection with an alleged incident of being involved in accepting illegal gratification by them, which was aired by a leading news channel Aaj Tak on 8.3.2005. Subsequently, they were dismissed from service in terms of the orders dated 8.9.2006. The dismissal orders passed under Article 311 (2) (b) of the Constitution of India were assailed before this Tribunal by filing O.A.No.2506/2006 [Shashi Singh], O.A.No.2554/2006 [Prabha Joshi] and O.A.No.2567/2006 [Swaran Gujral] and in terms of the Order dated 31.8.2009 the Full Bench of this Tribunal quashed the dismissal of the applicants. The Order of the Full Bench was assailed before the Honble High Court of Delhi by filing W.P. (C) No.87/2010 [Shashi Singh], W.P. (C) No.112/2010 [Prabha Joshi] and W.P. (C) No.130/2010 [Swaran Gujral], which were dismissed in terms of the Order dated 6.8.2010. The Orders of the Honble High Court was further challenged before the Honble Supreme Court and finally the Honble Apex Court upheld the Order of the Honble High Court. Since the Tribunal had given liberty to the respondents to keep the applicants under deemed suspension and initiate regular disciplinary proceedings against them, the respondents acted accordingly.
3. The short controversy raised in the present Original Applications is when the initial suspension of the applicants ordered on 9.3.2005 was not reviewed within 90 days, i.e., by 8.6.2005 and could be reviewed only on 24.8.2005 whether by operation of Rule 10 (6) & (7) of CCS (CCA) Rules they should be deemed reinstated in service and granted consequential benefits.
4. Mr. Sachin Chauhan, learned counsel for applicants relied upon the Order of this Tribunal in D.J. Gupta v. Lt. Governor & others (O.A.No.2014/2012) decided on 5.10.2012, who was also involved in the same incident of accepting illegal gratification in which the present applicants were involved. In the said case, relying upon the judgment of Honble Supreme Court in Union of India v. Dipal Mali, (2010) 2 SCC 222, this Tribunal issued directions to the respondents to treat the applicants deemed reinstated in service w.e.f. 7.6.2005 till the date of retirement and give them up-to-date arrears.
5. On the other hand, Mr. Vijay Pandita, learned counsel for respondents submitted that the Honble Supreme Court in Sulochana Chandrakant Golande v. Pune Municipal Transport (2010) 8 SCC 467 has held that if some person has taken a relief from the court by filing a writ petition immediately after the cause of action had arisen, the petitioners cannot take the benefit thereof resorting to legal proceedings belatedly.
6. In response to this, Mr. Sachin Chauhan, learned counsel for applicants submitted that in a number of cases, namely, Ms. Bimla Sehgal, UDC, Mr. Ram Bhajan, Peon and Mr. Amar Singh, Peon, the respondents revoked the suspension of the affected employees on their own. The copies of the orders issued in respect of the said employees are placed on record as Annexure A-12 (collectively) to the Original Applications. He also submitted that even Mr. D.J. Gupta had also filed the Original Application only in the year 2012 and this Tribunal directed for giving him full benefits from the date of expiry of 90 days after the order of suspension, i.e., 7.6.2005.
7. We heard the learned counsels for the parties and perused the records.
8. As far as the plea of limitation raised by the respondents is concerned, we find that in the case of D.J. Gupta (supra) no such plea was raised, thus the Order would be considered as sub siltentio on the issue. However, in paragraph 30 of the judgment of Honble Supreme Court in Sulochana Chandrakant Galandes case (supra), it could be viewed that when certain petitioners could approach the court immediately, the petitioners, who approached after long delay, could not take the benefit of the judgment passed in the case of those who were prompt in availing their remedy. In the present case, it is not so that D.J. Gupta (ibid) had approached the court promptly. He filed the Original Application in the year 2012 and the present applicants also filed these Original Applications in the year 2012 itself. It is also not in dispute that the Orders passed by this Tribunal have been implemented by the respondents. Thus we are not inclined to accept the plea of delay raised by the learned counsel for respondents.
9. As has been held by the Honble Supreme Court in Sub Inspector Rooplal & another v. Lt. Governor through Chief Secretary, Delhi & others, (2000) 1 SCC 644, unless we are inclined to take a view different from one taken by the coordinate Bench and refer the matter to Larger Bench, it is not permissible for us to ignore the judgment of the coordinate Bench of this Tribunal. Relevant portion of the said judgment reads as under:-
12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same tribunal. This is oppposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate Court is bound by the enunciation of law made by the superior Courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhuivandas Purshottamdas Thakur v. Ratilal Motilal Patel, (1968) 1 SCR 455 : (AIR 1968 SC 372) while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same Court observed thus (para 11 of AIR) :-
"The judgment of the Full Bench of the Gujarat High Court was bidning upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J. in Pinjare Karimbhai's case (1962 (3) Guj LR 529) and of Macleod, C.J., in Haridas's case (AIR 1922 Bom 149) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C. J. observed in Lala Bhagwan v. Ram Chand, (AIR 1965 SC 1767).
"It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."
13. We are indeed sorry to note the attitude of the tribunal in this case which, after noticing the earlier judgment of a coordinate Bench and after noticing the judgment of this Court, has still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment thereby creating a judicial uncertainty in regard to the declaration of law involved in this case. Because of this approach of the latter Bench of the tribunal in this case, a lot of valuable time of the Court is wasted and the parties to this case have been put to considerable hardship.
10. On merits, we find that the view taken by this Tribunal in the case of D.J. Gupta (supra) squarely covers the issue raised in the present Original Applications on law as also on facts. For easy reference, the relevant excerpt of the said Order is extracted hereinbelow:
4. In support of his contention that unless the suspension was reviewed within 90 days, it gets automatically revoked, he has relied upon the judgment of the Apex Court in Union of India v. Dipak Mali, (2010) 2 SCC 222 and orders of the Bombay Bench of this Tribunal in A.K. Jain v. Union of India (OA No.482/2007) decided on 19.02.2010, Devendra Chaturvedi v. Union of India decided on 08.09.2010 and that of the Principal Bench of this Tribunal in Ravindra Mohan Dayal v. Union of India & another (OA-2971/2009) decided on 17.03.2010.
5. The relevant part of the judgment in Union of India v. Dipak Mali is as under:-
10. Having carefully considered the submissions made on behalf of the parties and having also considered the relevant dated relating to suspension of the Respondent and when the Petitioners case came up for review on 20th October, 2004, we are inclined to agree with the views expressed by the Central Administrative Tribunal, as confirmed by the High Court, that having regard to the amended provisions of Sub-rules (6) and (7) of Rule 10, the review for modification or revocation of the order of suspension was required to be done before the expiry of 90 days from the date of order of suspension and as categorically provided under Sub-rule (7), the order of suspension made or deemed would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days.
11. The case sought to be made out on behalf of the petitioner, Union of India as to the cause of delay in reviewing the Respondents case, is not very convincing. Section 19(4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted. In this case, what is important is that by operation of Sub-rule (6) of Rule 10 of the 1965 Rules, the order of suspension would not survive after the period of 90 days unless it was extended after review. Since admittedly the review had not been conducted within 90 days from the date of suspension, it became invalid after 90 days, since neither was there any review nor extension within the said period of 90 days. Subsequent review and extension, in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension.
12. For the said reasons, we are not inclined to interfere with the impugned order of the High Court and the Special Leave Petition is, accordingly, dismissed.
13. There will, however, be no order as to costs. xx xx xx xx xx xx
11. We, therefore, allow this OA and direct the respondents to give full pay and allowances to the applicant w.e.f. 07.06.2005 to the date of his retirement on 30.06.2011. As regards the scale of pay of Rs.8000-13500 is concerned, the applicant shall be given the same in terms of the respondents order dated 10.10.2007 with up-to-date arrears subject to the decision of the respondents regarding withdrawal of the same, as ordered by the Ministry of Home Affairs, vide their order dated 09.04.2010. As the respondents have not actually withdrawn the aforesaid benefits granted to his similarly placed persons and as admitted by them in their reply that they have only constituted a Committee to into all the aspects of the matter, the applicant shall be paid the aforesaid scale with up-to-date arrears after obtaining an undertaking from him that he will refund the excess amount drawn by him if the final decision of the respondents is to withdraw the said scale and the amount which was paid to other similarly placed persons is also directed to be recovered. In his failure to comply with his aforesaid undertaking, the respondents can recover the excess payment paid to him from the D.C.R.G. which has not been released to the Applicant so far. The respondents shall also release the withheld amount on account of leave encashment to the applicant immediately after re-fixing his pay and pensionery benefits as aforestated. As regards the delay in payments, the applicant will be entitled for the interest at the prevailing rate applicable to GPF from the due date(s) to the actual date of payment(s). The aforesaid directions shall be complied with at the earliest but in any case within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
11. We find no reason to take a view different from one taken by the Division Bench of this Tribunal in the case of D.J. Gupta (supra), which was filed in the same year in which the present Original Applications were instituted, thus we dispose of the present Original Applications directing the respondents to deem the applicants in service w.e.f. 7.6.2005 till the date of their dismissal from service, i.e., 8.9.2006 with consequential benefits.
12. Before parting with, we observe that the disregard shown by the officers sitting on the helm of affairs in the Department to the procedure for reviewing of suspension spoiled the discipline in the Department having far reaching ramifications and also led to avoidable litigation. In the circumstances, we observe that the Chief Secretary, Government of NCT of Delhi would examine that for whose lapse the first review of the suspension could not be carried in time. The action taken report would be filed before this Tribunal within six months from the date of receipt of a copy of this order.
13. The Original Applications disposed of accordingly. No costs.
Let a copy of this order be placed in the respective files.
( P.K. Basu ) ( A.K. Bhardwaj ) Member (A) Member (J) December 2, 2013 /sunil/