Central Administrative Tribunal - Delhi
Satpal Singh vs Govt. Of Nct Of Delhi on 2 December, 2011
Central Administrative Tribunal
Principal Bench
OA NO. 2040/2010
New Delhi this the 2nd day of December, 2011
Honble Mr. G.George Paracken, Member(J)
Honble Dr. A.K.Mishra, Member (A)
Satpal Singh
S/o Late Sh. Chetan Singh
R/o WZ-213/B, Gali No.22
Sant Garh PO Tilak Nagar,
New Delhi-110018.
. Applicant
(By Advocate: Sh. Ajesh Luthra)
Versus
Govt. of NCT of Delhi
Through the Chief Secretary,
5th Floor Delhi Sachivalaya, New Delhi.
2. The Chief Engineer (Zone-I)
Irrigation & Flood Control Department,
IVth Floor, ISBT, Delhi.
3. The Executive Engineer
Civil Division VI,
Irrigation & Flood Control Department,
Bharat Nagar, Delhi.
.. Respondents
(By Advocate: Ms. Sumedha Sharma)
O R D E R
Honble Shri George Paracken:
The question for consideration in this OA is whether the applicant on acquittal in the criminal case initiated against him and exoneration in the departmental proceedings held against him on the same set of charges is entitled for pay and allowances of the promoted post from the date of his actual promotion or from the date of notional promotion i.e. the date on which his immediate junior has been promoted.
2. The brief facts necessary for disposal of this case are delineated hereunder. While the applicant was working as a Lower Division Clerk (LDC, for short) he was detained in Criminal Case No. 10/1999 arising from FIR No.36/93 dated 26.7.93 u/s 7 and 13 Prevention of Corruption Act. Consequently, he was placed under deemed suspension with effect from the same date vide order dated 16.8.1993. Thereafter, the responders have themselves revoked his suspension with immediate effect vide order dated 31.10.1995 without prejudice to the findings. Later on, vide judgment dated 29.7.2005 he was acquitted in the aforesaid criminal case. The relevant part of the said judgment reads as under:
15. After carefully examining the prosecution evidence regarding the recovery of money from the possession of the accused I find that it does not stand proved beyond reasonable doubt. As far as the star prosecution witness Kuldeep Kumar, the compalainant, is concerned he has not supported the prosecution on this aspect. The only independent witness Narinder Kumar (panch) has also not claimed that any money was recovered from the accused. Now, as far as the evidence of the raid officer is concerned the same is also not free from doubt. According to him the accused was apprehended in the stairs while going down from first floor. He has not claimed that after the apprehension of the accused he was brought inside his room no.138 on the first floor. PW 11 Inspector S.P.Singh, who was also a member of the raid team and was taken to take over further investigation from raid officer Inspector Ramesh Singh, if raid was successful, has however deposed that when they reached Tis Hazari he had remained sitting in the vehicle in which they had come there while other members had gone inside for trap and at about 6 p.m. he was called by Inspector Ramesh Singh. He further deposed that he then went to room No.138 on first floor where he found raid team members and the accused. This statement of PW1 shows that raid took place inside room No.138. Otherwise all raid team members would have been found outside that room. As noted above, raid officer has not claimed that after the apprehension of the accused all of them had gone inside that room for conducting post raid proceedings. In these circumstances evidence of the raid officer cannot be said to be free from doubt. So, recovery of bribe money from the possession of the accused is doubtful. Nothing then remains in support of prosecution case.
16. No other point was urged by the learned public prosecutor nor evidence of other witnesses, which was of formal nature, was even referred to and so I also need not narrate the same.
17. From the foregoing discussion the conclusion is that the prosecution cannot be said to have proved its case beyond reasonable doubt and so the accused has become entitled to be acquitted by giving him the benefit of doubt.
18. In the result, I hereby acquit accused Satpal Singh s/o Chettan Singh and as a result of his acquittal his bail bonds stand discharged.
3. However, not satisfied with the verdict of acquittal rendered by the criminal court in his case, he was proceeded against departmentally for the same set of charges as were in the criminal case under Rule 14 of CCS (CCA) Rules, 1965, vide Annexure A-6 memorandum dated 10.8.2006. The enquiry officer submitted his finding holding that the charges against the applicant have not been proved. Consequently, the applicant was exonerated of the charges levelled against him, vide order dated 27.12.2007. Thereafter, vide Annexure A-7 order dated 17.6.2008, the respondents, in terms of FR 54B treated the period of suspension of the applicant w.e.f. 26.7.1993 to 2.11.1995 as period spent on duty for all purposes. Meanwhile the junior of the applicant was promoted as UDC (DASS Grade III) by a duly considered DPC w.e.f. 27.5.1998. As the applicant was exonerated in the departmental enquiry initiated against him, as stated above, vide order dated 27.12.2007, the DPC has considered his case and he was granted notional promotion w.e.f. 27.5.98 vide order dated 9.2.2009.
4. The contention of the applicant is that when he was acquitted in the criminal case and he was also exonerated in the departmental proceedings on the same set of charges, the respondents should not have denied him monetary benefits from 27.5.1998. He submitted the Annexure-A representation dated 29.4.2009 in this regard. However, the respondents rejected the same, vide impugned order dated 10.3.2010, stating that he was entitled to draw his pay and allowances in the promoted post only w.e.f. the date of his actual joining. Hence the Applicant has filed this OA seeking the following reliefs:
(a) quash and set aside the impugned order at annexure A/1 and
(b) direct the respondents to grant all monetary benefits to the applicant arising out of his promotion to the post of UDC/DASS (Gr.III) w.e.f. 27.5.1998 with interest @ 18% p.a.
(c) award costs of the proceedings and
(d) pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
5. In support of his aforesaid reliefs, the Ld. counsel for applicant Shri Ajesh Luthra has submitted that principle of no work no pay as stated in FR 54-B (1) cannot be made applicable in this case. His further contention is that respondents should have examined the order in the criminal case before denying him the pay and allowances for the period of suspension. He has specially invited our attention to the concluding paras of the aforesaid judgment, which have been extracted earlier. His contention is that just because the Ld. Judge, has stated in the judgment that he was acquitted on benefit of doubt, the said acquittal was honourable acquittal for all purposes.
6. The learned counsel for applicant has also relied upon the order of the Coordinate Bench of this Tribunal in OA-1706/2004 R.K.Gupta Vs. Union of India and others. The relevant part of the said judgment reads as under:
21. From the perusal of the decision of the Metropolitan Magistrate, we are of the considered view that applicant ws acquitted as sufficient evidence has not been put-forth to establish the offence. Accordingly, applicant was acquitted from the charges. This, in our considered view, is an acquittal on merit. The benefit of doubt is also an acquittal on merit. What is to be seen is that if the evidence has not come-forth to establish the ingredients of offences a person is deemed to be acquitted on merit, as if not involved in the allegation of criminal offence alleged against him. This, to our considered view, is nothing but an acquittal on merit.
22. FR 54-B (3) obligates the authority to record a finding that the suspension was wholly unjustified or not? From the perusal of the orders passed on show cause notice we find that the only consideration is that applicant is acquitted for lack of sufficient evidence and has been treated not to be an exoneration. This finding goes contrary to the ratio laid down by the High Court of Delhi, Punjab and Haryana as well as the Apex Court and on the face of it is not well founded and misconceived.
23. We also find that instead of applying FR 54-B(3) a resort has been made by the respondents to FR 54(4), which is misconceived in the present case, shows lack of application of mind by the respondents.
7. He has also relied upon the judgment of the Punjab and Haryana High Court in Bhag Singh Vs. Punjab & Sind Bank, 2006 (1) SCT 175. The relevant part of the said judgment reads as under:
9. A Division Bench of this Court, of which one of us (S.S. Nijjar, J.) was a member, has earlier considered the term of "benefit of doubt" in the case of Shashi Kumar v. Uttri Haryana Bijli Vitran Nigam through its Managing Director, Panchkula and Anr., 2005(1) S.L.R. 659. It has been held as under:-
"A perusal of the order passed by the respondents removing the petitioner from service shows that the respondents had passed the same basing it purely on the conviction of the petitioner. The order states that in view of the conviction, the petitioner is removed from service on account of conduct which led to his conviction. Excepting for the aforesaid sentence, the order does not elude to any circumstances which could be related to the conduct of the petitioner leading to the conviction. Therefore, in our opinion, the impugned order is liable to be quashed on this short ground as it has been passed, without taking into consideration the relevant material. In any event, the petitioner having been acquitted in appeal, the justification of the order of removal no longer existed. The High Court has ordered the acquittal of the petitioner after threadbare examination of the evidence. It has been noticed that the complainant, Puran Singh PW-8 was the owner of 8-1/2 killas of land situated in village Jundla. He further stated that about two years prior to the recording of the statement in Court on 5.8.1997, he had gone to the office of Vigilance Department and reported against Haryana State Electricity Board Officer Natha Ram for demanding Rs. 7500/-. This amount had been demanded for installation of new transformer as old transformer was overloaded and his tubewell meter was not functioning properly. He also stated that he had earlier paid Rs. 3200/- to Natha Ram.' He further stated that Junior Engineer of his feeder was Sukhbir Singh Malik. He then categorically stated that he did not know Shashi Kumar, the petitioner. It was also stated by him that the petitioner never remained Junior Engineer of his feeder. He never demanded any amount from him nor he paid any amount to him. This witness was declared hostile, but nothing useful emerged from his cross-examination. In fact in the cross-examination, he further admitted that there was a scuffle among HSEB employees and the police employees. He reiterated that he did not pay any amount to the petitioner. Therefore, the High Court concluded that according to the statement of the complainant, the petitioner did not know the complainant nor did the petitioner demand any amount from him. Even the trap witness PW2 in the cross-examination admitted that he was an employee of the Vigilance Department, Karnal. He had remained posted as a Peon for the last 10 to 15 years at Karnal. He further admitted that he had joined 3-4 raids with the Vigilance Officer. Therefore, the High Court came to the conclusion that PW was not an independent witness as he was under the control of DSP (Vigilance). The High Court relied on a judgment of the Supreme Court in the case of State of Madhya Pradesh v. J.B.Singh, 2000 Crl.L.J. 4591 wherein it has been held that an offence under the Prevention of Corruption Act would not be established unless there is evidence to prove the act of demand of illegal gratification. Relying on the aforesaid ratio of law, the petitioner has been acquitted. In such circumstances, it can hardly be said that the acquittal of the petitioner is not honourable". (Emphasis supplied)
10. The expression "honourable acquittal" has been considered by a Division Bench of the Madras High Court in the case of Union of India v. Jayaram, . In that case, Rajamannar, C.J. delivering the judgment observed as under:-
"There is no conception like "honourable acquittal" in Criminal P.C. The onus of establishing the guilt of accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is entitled to be acquitted.
Clause (b) of Article 193 of the Civil Service Regulations which says that when a Government servant who was under suspension is honourably acquitted, he may be given the full salary to which he would have been entitled if he had not been suspended applies only to the case of departmental inquiry.
Where the servant was suspended because there was a criminal prosecution against him, and he was acquitted therein, and reinstated he is entitled under the general law, to the full pay during the period of his suspension. To such a case Article 193(b) does not apply."
8. Respondents in their reply have submitted that each and every case has to be decided on their own merits. According to them, the applicant has not been acquitted honourably by the criminal court. They have also submitted that it has been specifically mentioned in the judgment in the criminal case that the applicant was acquitted granting the benefit of doubt. Therefore, he was not entitled for any monetary benefits from the date his juniors have been promoted. Rather, he is entitled for monetary benefits only from the date he has actually joined the duty.
9. We have heard the learned counsel for the parties. FR 54-B (3) reads as under:
(3) Where the authority competent to order re-instatement is of the opinion that the suspension was wholly unjustified, the Government servant shall subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled had he not been suspended:
Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reason directly attributable to the Government servant it may, after giving him an opportunity to make his representation within 60 days from the date on which the communication in this regard is served in him] and after considering the representation, if any, submitted by him direct, for reasons to be recorded in writing that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.
10. In this case the competent authority, in exercise of the powers conferred upon it under the aforesaid rules treated the entire period of his suspension as period spent on duty for all purposes. Under the said rules, such a decision can be taken by the competent authority only if he was of the opinion that the suspension was wholly unjustified. The aforesaid decision of the competent authority has also been proved correct when the criminal court acquitted the applicant of all the charges leveled against him vide judgment dated 29.7.2005. The learned Special Judge has clearly stated in the said judgment that the charge of recovery of money from the applicant was not proved beyond reasonable doubt. Of course, while acquitting the applicant, the learned Special Judge has stated in his order that he has become entitled to be acquitted by giving him the benefit of doubt. In Bhag Singhs case (supra), the Punjab and Haryana High Court has considered the concept of acquittal on benefit of doubt and honourable acquittal. This Tribunal has also considered the same issue in P.K.Guptas case (supra). It is not necessary for us to go into that aspect in this case. Admittedly, the respondents have held an enquiry against the applicant on the same set of charges as those in the criminal case under Rule 14 of the case CCS (CCA) Rules, 1965. The Enquiry Officer in his report held that those charges were not proved and the matter came to its finality. Once the disciplinary authority has treated the period of suspension as duty for all purposes and it was followed by his acquittal in the criminal case coupled with his exoneration in the departmental proceedings both on the same set of charges, the applicant cannot be put to any loss including his promotion from the due date. We, therefore, quash and set aside the Annexure A-1 Memorandum dated 12.3.2010 and allow this OA and hold that the applicant is entitled for the payment of salary and allowances attached to the promoted post of UDC/DASS (Gr.III w.e.f. 27.5.1998 i.e. the date from which his immediate junior has been promoted. In the above facts and circumstances of the case, he shall also be entitled for the payment of cost of Rs.5000/- (Rupees five thousand only). The aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of this order.
( Dr. A.K. Mishra ) ( George Paracken )
Member (A) Member (J)
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