Delhi District Court
Sh. Sh. Santosh Kumar vs M/S. Delhi Jal Board (Djb) on 25 August, 2017
IN THE COURT OF SHRI UMED SINGH GREWAL, PILOT
COURT/POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LIR No.515/17
IN THE MATTER OF:
Sh. Sh. Santosh Kumar, Age 50 years
S/o Sh. Hoshiyar Singh
R/o H.No. 221, TehsilSikandrabad,
DistrictBulandshahar, Village Nithari,
UP203203.
..............Workman
Versus
M/s. Delhi Jal Board (DJB)
through its Chief Executive Officer,
Varunalaya Building, PhaseII,
Karol Bagh, New Delhi110005.
............. Management
DATE OF INSTITUTION : 23.02.2017.
DATE ON WHICH AWARD RESERVED : 10.08.2017.
DATE ON WHICH AWARD PASSED : 25.08.2017.
A W A R D :
1.Vide Order No.F.24(42)/17/Ref./CD/Lab/182 dated 30.01.2017, issued by Government of NCT of Delhi, a reference was sent to this Court with the following terms: "Whether the services of workman Sh.
Santosh Kumar S/o Sh. Hoshiyar Singh have been terminated illegally and/or unjustifiably by management; and if so, to what relief is he entitled and what directions are necessary LIR No.515/17 1/15 in this respect?"
2. Claimant's case is that he had joined the management as Assistant Pump Driver (APD) on muster roll basis in 1987. He was offered that post on ad hoc basis on 21.05.1992 for a period of six months and after elapse of six months, he was regularized. A false FIR No.51/10 under Section 363/366/368/376 IPC was registered against him in PS Kotwali Dehat, Bulandshahar, UP in 2010 in which he was convicted under those very Sections on 05.12.2011 by the court of Sh. Mahesh Nautiyal, Ld. Additional District and Session Judge. He was suspended w.e.f. 22.09.2010 i.e. from the date of arrest, vide order dated 09.02.2011. The management had issued him a showcause notice dated 12.06.2013 why punishment of removal be not imposed upon him. He had replied the show cause notice but despite it, he was relieved from service vide office order dated 02.08.2013 and was released from service vide order dated 20.06.2014 w.e.f. 02.08.2013 i.e. from the date of imposition of the penalty. As he was convicted in a false case, he had assailed the judgment of Ld. Additional District & Sessions Judge by filing an appeal in the Hon'ble High Court of Allahabad, UP. The Hon'ble High court released him on bail by staying the sentence vide order dated 18.02.2013. He is unemployed since the date of removal. All family members are dependent upon him and they have reached on the verge of starvation. His case is on strong footing and there is LIR No.515/17 2/15 every chance that he would be acquitted by the Hon'ble High Court and if that happens, removal from service would amount to jeopardy which would be against the principles of natural justice. Hence, he had sent a legal demand notice through his advocate to the management on 09.06.2016 which went unreplied. The action of the management for removing him from job is arbitrary, discriminatory, unconstitutional, punitive and amounts to victimization and is in violation to Section 25N of the I.D. Act, 1947. He was removed from service because of unfair labour.
3. Written statement is to the effect that claimant remained behind bars from 22.09.2010 to 11.12.2010 in FIR No.51/10 PS Kotwali Dehat, District Bulandshahar, UP and hence, he was placed under suspension w.e.f. 22.09.2010 vide order dated 09.02.2011. On 08.02.2013, one Sh. Anuj Kumar, claiming himself to be nephew of claimant, informed vigilance office of the management that the claimant was in jail from 01.12.2011 as he had been convicted. Sh. Anuj Kumar had produced copy of judgment dated 01.12.2011 passed by Ld. Additional District & Sessions Judge Sh. Mahesh Nautiyal, Bulandshahar vide which claimant was convicted and sentenced as under: "363 IPC, Seven years' rigorous imprisonment with fine of Rs.5,000/, in default of payment of fine additional imprisonment for one year.LIR No.515/17 3/15
368 IPC: Seven years' rigorous imprisonment with fine of Rs.5,000/ in default of payment of fine additional imprisonment for one year.
366 IPC: 10 years' rigorous imprisonment with fine of Rs.10,000/, in default of payment of fine additional imprisonment for two years.
376 IPC: Life imprisonment with fine of Rs.10,000/, in default of payment of fine of the additional simple imprisonment for two years.
All the sentences shall run concurrently"
On the basis of conviction and sentence, a show cause notice dated 12.06.2013 was issued to the claimant by disciplinary authority under Rule 19 of CCS (CCA) Rules, 1965 proposing to impose penalty of removal from service which shall not be a disqualification for future employment under the Government. The claimant filed reply to the show cause notice stating that he had already filed an appeal before the Hon'ble High Court of Allahabad against the conviction and sentence order and that he had been admitted to bail on 18.02.2013 by suspending the sentence till further orders. Vide order dated 02.08.2013, the disciplinary authority imposed penalty of removal from service. In that order, the management had considered explanation given by claimant and had observed from the bail order that the claimant had been released only on bail during the pendency of appeal. The LIR No.515/17 4/15 management was perfectly justified under Rule 19 of CCS (CCA) Rules, 1965 in removing claimant from service without waiting the outcome of the appeal.
Claimant's case is premature and is liable to be dismissed as he has failed to exhaust other remedies. As per Rule 23 of CCS (CCA) Rules, 1965, a government servant may prefer an appeal against an order imposing any of the penalties. But he did not file any appeal and directly approached the Labour Commissioner and this court.
This court does not have jurisdiction to try and entertain the case because as per notification dated 01.12.2008 issued by Ministry of Personnel, Public Grievances & Pension, (Department of Personnel and Training), Delhi Jal Board has been brought under the jurisdiction of Central Administrative Tribunal. Subsequently, the Director (A&P), Delhi Jal Board issued a circular dated 01.05.2009 that the jurisdiction of Administrative Tribunal had been extended to Delhi Jal Board so far as the service matters were concerned. Ld. Additional District Judge5 (Central) Tis Hazari Court, Delhi Sh. Rajesh Kumar Singh, while dealing with a similar case titled as Ram Sarup Vs. Delhi Jal Board, RCA No.1/14, remanded back the case to Trial Court vide order dated 18.04.2015 with the direction to transfer the matter to CAT (Principal Bench), LIR No.515/17 5/15 Delhi. That order shows that service matters of Delhi Jal Board employees are to be entertained only and only by Central Administrative Tribunal.
4. Following issues were framed on 25.04.2017:
1. Whether this Court has jurisdiction over the subject matter? OPP
2. As per terms of reference.
3. Relief.
5. In order to substantiate the case, the claimant tendered his affidavit in evidence as Ex.WW1/A mentioning all the facts stated in statement of claim. He relied upon following documents: I. Ex.WW1/1 is legal notice dated 09.06.16 alongwith postal receipt.
II. Mark W1 is copy of voter I. card of the claimant. III.Mark W2 is memorandum dated 21.05.92 issued by MCD, Delhi.
IV. Mark W3 is copy of order dated 09.02.11 issued by management.
V. Mark W4 is showcause notice dated 12.06.13. VI. Mark W5 is representation sent by claimant to management to the showcause notice dated 12.06.13.
VII. Mark W6 is office order dated 20.06.14 issued by management.
VIII. Mark W7 is order dated 18.02.13 passed by Hon'ble High LIR No.515/17 6/15 Court of Allahabad.
IX. Mark W8 is order dated 30.01.17 passed by Sh. K.M. Singh, ALC.
6. The management examined its Deputy Director (Vigilance) Sh. Surender Kumar Sharma as MW1 who repeated the contents of written statement. Additionally, he deposed that penalty imposed upon claimant is prescribed in CCS (CCA) Rules, 1965 applicable to Delhi Jal Board employees on the ground of conviction and sentence awarded against him from the competent court of law. Under Rule 19 of the rules, the disciplinary authority can impose a penalty without following the prescribed detailed procedure under Rules 14, 15 & 16. He relied upon following documents: I. Ex.MW1/1 is Rule 23 of CCS (CCA) Rules, 1965.
II. Ex.MW1/2 is showcause notice dated 12.06.13.
III. Ex.MW1/3 is penalty order dated 02.08.13.
IV. Ex.MW1/4 is Rule 19 of CCS (CCA) Rules, 1965.
V. Mark M1 is photocopy of circular dated 02.09.16.
VI. Mark M2 is photocopy of conviction order dated 01.12.11 and order on sentence dated 05.12.11.
VII. Mark M3 is photocopy of office memo dated 21.07.16.
Issue No. 1:
7. Ld. ARM argued that as per notification dated 01.12.2008 issued by Ministry of Personnel, Public Grievances and LIR No.515/17 7/15 Pensions (Department of Personnel and Training), the name of the management has been placed at serial No.180. Consequent to that notification, the management issued a circular dated 01.05.2009 vide which the jurisdiction of Central Administrative Tribunal has been extended to Delhi Jal Board as far as the service matters are concerned. He further argued that consequent to notification and circular, all service matters are to be entertained only and only by Central Administrative Tribunal and not by any subordinate court.
On the other hand, ld. ARW admitted that the notification and circular have been issued by Department of Personnel and Training and by management but there is Section 28 of the Administrative Tribunals Act, 1985 in which it is crystal clearly mentioned that the jurisdiction of labour court has not been excluded.
8. Perusal of heading of Section 28 of the Act shows that it pertains to exclusion of jurisdiction of some courts. It is mentioned in the body of the Section that from the appointed date, in relation to recruitment and matter concerned to recruit any service order passed, the jurisdiction of all courts has been excluded except the Supreme Court and Industrial Tribunal, labour court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being enforced. Further LIR No.515/17 8/15 perusal of Section 28 of the Act shows that it outs the jurisdiction of Civil Courts in service matters and only due to that reason, thethen Ld. Additional District Judge Sh. Rajesh Kumar Singh, Tis Hazari Courts, Delhi vide order dated 18.04.2015, came to the conclusion that in view of Section 29(2) of the Administrative Tribunals Act, 1985, the Trial Court should not have decided the matter and it should have been transferred to C.A.T. (Principal Bench), Delhi. Now the position is crystal clear that the said Act does not bar Labour Court from trying the industrial dispute for which the reference dated 30.01.2017 was sent to this court by the appropriate Government. This issue is decided in favour of claimant and against management.
Issue No.2:
9. Ld. ARW argued that order dated 02.08.2013 vide which claimant was removed from service, is bad because the management did not consider the reply of the claimant that he had been released on bail by the Hon'ble High Court of Allahabad by suspending the sentence and by staying the sentence of fine. He relied upon Sada Nand Misra Vs. State of U.P. and another Writ Petition No.4985(S/S) of 1994 decided by Hon'ble High Court of Allahabad on 23.09.1999 to argue that it was necessary for the management to write in the impugned order that due to conduct of LIR No.515/17 9/15 the claimant which had led to his conviction that his further retention in public service was undesirable. He submitted that perusal of the removal order shows that it was passed only upon the conviction of claimant and not upon his misconduct. The third argument of ld. ARW is that the claimant has already been released on bail by the High Court because his appeal is likely to be succeeded and hence, the removal order be reversed.
On the other hand, ld. ARM admitted that the claimant had given reply to the showcause notice. He submitted that the reply of the claimant was considered in removal order Ex.MW1/3 but filing of an appeal in the High Court against conviction judgment, was not watering down the gravity of misconduct. He next argued that it is very much mentioned in the impugned order dated 02.08.2013 that his removal was on the ground of misconduct. He relied upon Union of India and other Vs. Ramesh Kum Civil Appeal No.1323/1991 decided by the Apex Court on 02.09.1997 and Deputy Director of Collegiate Education p (Administration), Madras Vs. S. Nagoor Meera AIR 1995 SC 1364 to argue that conviction by a competent court of law does not lose its string merely because a criminal appeal was filed by accused against his conviction and that the appellate court had suspended execution of sentence and released him on bail.
LIR No.515/17 10/1510. Perusal of showcause notice Mark W4 dated 12.06.2013 shows that the management had considered the facts carefully and also the ground of conduct of the claimant which had led to his conviction on the criminal charge and that is why, the disciplinary authority came to the conclusion that the claimant was not a fit person to be retained in service and accordingly proposed to impose upon him the penalty of removal from service. Following contents of para No.2 of impugned removal order Ex.MW1/3 dated 02.08.2013 are relevant for this issue: "AND WHEREAS on a careful consideration of the facts of the case and ground of conduct which has led to his conviction on a criminal charge, it is considered that the conduct of the said Sh. Santosh Kumar, APD S/o Sh. Hoshiyar Singh is such as his further retention in public service is undesirable;"
Showcause notice and removal order prove to the hilt that the disciplinary authority had considered not only the facts of the case but also the conduct of the claimant which led to his conviction in a criminal case. Due to his misconduct, the management came to the conclusion that his further retention in public service was undesirable. So, ld. ARW is totally wrong to say that the management did not mention in removal order that it had considered the misconduct of the claimant. He went through only paragraph No.1 of the impugned order. His arguments have been cut to size by para No.2 of the impugned order.LIR No.515/17 11/15
11. It is mentioned in para Nos. 4 & 5 of impugned order dated 02.08.2013 Ex.MW1/3 that pursuant to showcause notice, the claimant had submitted a representation dated 27.06.2013 containing that he had filed an appeal against the conviction order before the Hon'ble High Court and the appeal had been admitted by the Hon'ble High Court of Allahabad on 18.02.2013. His sentence had been stayed till further orders and he had been released on bail. It is further mentioned that the explanation submitted by the claimant had considered by the management. The management had also gone through the order dated 18.02.2013 passed by the Hon'ble Allahabad High Court in criminal appeal No.116/12 vide which he was released on bail during the pendency of the appeal. It is further mentioned in the impugned order that in regard to question of pendency of appeal, the rule position was very clear that the disciplinary authority can take action under Rule 19 of CCS (CCA) Rules without waiting for the outcome of the appeal filed against conviction.
Contents of para Nos. 4 & 5 show that the management had considered the effect of order of Hon'ble High Court of Allahabad vide which the claimant had been released on bail pending appeal by staying the execution of the fine. Release of claimant on bail during pendency of appeal did not lower down the LIR No.515/17 12/15 gravity of the offence of rape. It was held in Union of India and others Vs. Ramesh Kum (Supra) and Deputy Director of Collegiate Education p (Administration), Madras Vs. S. Nagoor Meera (Supra) that by suspension of execution of sentence under Section 389 Cr.PC an accused avoids undergoing sentence pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a government servant on a misconduct which led to his conviction by the court of law does not lose its efficacy merely because the appellate court had suspended the execution of sentence. In Sanjay Prasad Vs. Union of India WPC No.3667/2011 decided by Hon'ble High Court of Delhi on 19.09.2011, the claimant was convicted under Section 420/511 and 467/120B IPC and 471/120B IPC. The Hon'ble High Court of Delhi held that the case of the claimant was within the concept of moral turpitude. In J. Jai Shankar Vs. Govt.
of India and Anr. 1996 SCC (L & S) 1372, the appellant was convicted for an office under Section 509 IPC and was sentenced to pay fine of Rs.1,000/. The Apex Court held that conviction under Section 509 IPC undoubtedly involved moral turpitude as it was impermissible for an employee to continue in service. The Apex Court further held that if a government servant was dismissed from service on conviction by criminal case involving moral turpitude, it automatically leads removal from service without further enquiry.
LIR No.515/17 13/15In Sadanand Vs. District Judge WritANo.12954/2003, decided by the Hon'ble High Court of Allahabad on 05.03.2013, the appellant was convicted under Section 366 and 376 IPC. The Hon'ble High Court of Allahabad held that he was guilty of moral turpitude until the order of conviction was set aside in pending appeal or other proceedings. Till the decision of pending appeal, the effect and impact of conviction cannot be completely wiped off or ceased to operate merely because of execution of sentence or order passed against him was suspended or stayed and the petitioner was released on bail during the pendency of said appeal. The High Court further held that if petitioner's appeal is allowed and he is exonerated from the criminal charge or is acquitted in appeal or other proceedings, it will always be open for him to approach the Ld. District Judge of Allahabad, who in turn will pass appropriate order. But till that stage, it was very difficult for the High Court to interfere in the impugned order of termination of service to petitioner.
12. In the case in hand, it is the admitted position of both parties that the claimant has been convicted under Section 363/366/368/376 IPC. Under Section 363 and 368 IPC, he has been handed down punishment of 7 years each. Under Section 366 IPC, the punishment is 10 years rigorous imprisonment. Under Section 376 IPC, the punishment is life imprisonment. The solace for him is LIR No.515/17 14/15 that all sentences are to run concurrently. Management's case is squarely covered by above citations. So, this issue is decided in favour of management and against claimant.
Issue No.3:
13. Consequent to decision on issue No.2, it is held that claimant is not entitled to any relief. Statement of claim is dismissed. Parties to bear their own costs. Reference is answered accordingly. Award is passed accordingly.
14. The requisite number of copies of the award be sent to the Govt of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 25.08.2017. PILOT COURT/POLCXVII KKD COURT, DELHI.
UMED Digitally signed by
UMED SINGH
GREWAL
SINGH Location: Delhi
Date: 2017.08.25
GREWAL 16:58:00 +0530
LIR No.515/17 15/15