Central Administrative Tribunal - Delhi
Ravi Kant Sharma vs East Delhi Municipal Corporation ... on 6 January, 2022
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Item No. 12 O.A. No. 2279/2016
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2279/2016
This the 6th day of January, 2022
(Through Video Conferencing)
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd.Jamshed, Member (A)
Ravi Kant Sharma
S/o Sh. Suraj Mal Sharma
R/o 6H/34, Sector 5, Rajender Nagar,
Shahibabad, Uttar Pradesh
Aged about 53 years
(Presently working as Assistant Engineer,
East Delhi Municipal Corporation)
...Applicant
(By Advocate : Mr. Ajesh Luthra)
Versus
East Delhi Municipal Corporation
Through its Commissioner
419, IInd Floor, Udyog Sadan,
Industrial area, Patparganj
Delhi - 110092
...Respondent
(By Advocate: Mr. Rajesh Kumar Singh with
Ms. Poonam Singh )
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Item No. 12 O.A. No. 2279/2016
ORDER (ORAL)
Hon'ble Ms. Manjula Das, Chairman:
The applicant is working as Assistant Engineer in East Delhi Municipal Corporation (in short, EDMC). In the year 2008, he was implicated in a case bearing FIR No. 38/2008, PS Anti Corruption Branch under Section 7/13 of Prevention of Corruption Act, 1988 read with Section 120-B of IPC. Vide order dated 23.12.2008, he was placed under deemed suspension w.e.f. 19.11.2008 i.e., the date of his arrest in pursuance of the aforesaid FIR. One Sh. Sunil Kumar Mittal, Executive Engineer, who was co-accused in the said FIR and was also placed under suspension vide the aforesaid order, was reinstated in service with immediate effect, pending final outcome of the aforesaid proceedings against him, vide order dated 23.04.2009; whereas the suspension of the applicant was revoked three years thereafter vide order dated 17.07.2012.
2. The applicant was acquitted by the learned Special Judge (PC Act)-05 (ACB), Tis Hazari Courts, Delhi vide judgement dated 13.04.2015, affording him 'benefit of doubt'. He submitted a representation dated 06.05.2015 to 3 Item No. 12 O.A. No. 2279/2016 the respondent authority to treat his suspension period as 'spent on duty', as he had been acquitted by the competent Court of law. In pursuance to the aforesaid representation, the respondent sought information from the Directorate of Prosecution whether any appeal against the acquittal had been preferred. Vide letter dated 30.11.2015, it was informed that no appeal had been preferred against the judgment of acquittal, and that it was not a fit case for appeal. Since the applicant did not get any response to his earlier representation, he submitted another representation on 28.12.2015. In response thereto, the respondent authority issued the impugned order dated 05.05.2016, denying the benefits to the applicant on the ground that the acquittal is due to 'benefit of doubt'. Hence, he filed the present O.A.
3. Mr. Ajesh Luthra, learned counsel for the applicant submitted that the impugned order passed by the respondent is illegal, arbitrary and unjustified. The prosecution/State led its evidence in its entirety and has not been able to prove its case against the applicant and being inadmissible, the evidence led by the prosecution was discarded by the competent Court of law. The demand of 4 Item No. 12 O.A. No. 2279/2016 bribe as well as the hand-wash proceeding had been disbelieved during the trial. In such circumstances, the acquittal of the applicant is an honourable acquittal and the word 'benefit of doubt' is superfluous and, therefore, the suspension period of the applicant is required to be treated as 'spent on duty' for all intents and purposes and he is entitled to full pay and allowances from the date of suspension till the date of his reinstatement.
4. Learned counsel for the applicant relied upon the judgment of this Hon'ble Tribunal in the case of R.K. Gupta vs. Union of India & Ors., 2005 (3) AISLJ 390, wherein it has been held that where in a criminal trial, an accused is acquitted for want of evidence; it would be an honourable acquittal. He also relied upon the judgment of the Punjab & Haryana High Court in the case of Bhag Singh vs. Punjab & Sind Bank, 2006 (1) SCT 175, wherein it has held that where acquittal is for want for evidence to prove the criminal charge, such an acquittal is an honourable acquittal and the words 'benefit of doubt' are superfluous. Similar view has been taken by the Hon'ble Court in Shashi Kumar vs. Uttri Haryana Bijli 5 Item No. 12 O.A. No. 2279/2016 Vitran Nigam, 2005 (1) ATJ 154. He further submitted that the said judgments of acquittal have attained finality.
5. Learned counsel for the applicant further submitted that the applicant is facing anxiety and agony since 2008 due to continuance of criminal proceedings; and in view of the settled principle of law, the impugned order needs to be quashed and set aside and his suspension period should be treated as 'spent on duty' with full pay and allowances.
6. Per contra, Mr. Rajesh Kumar Singh, learned counsel appearing for the respondents submitted that the impugned order was passed by the competent authority, after affording personal hearing to the applicant as well as going through the judgment of the Hon'ble Court and after going through the entire record of the case. He further submitted that the Tribunal has no jurisdiction to interfere with the adequacy/quantum of the penalty imposed, unless it is mala fide, in view of the judgment of the Hon'ble Supreme Court in Parma Nand vs. State of Haryana & Ors., 1989 (2) SCC 177.
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7. We heard Mr. Ajesh Luthra, learned counsel for the applicant and Mr. Rajesh Kumar Singh, learned counsel for the respondent, at length, and perused the pleadings and material placed before us.
8. This Tribunal in O.A. No. 1706/2004, titled R.K. Gupta vs. Union of India & Ors., while allowing the O.A. vide order dated 11.02.2005, passed the following order:
"21. From the perusal of the decision of the Metropolitan Magistrate, we are of the considered view that the applicant was 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 lf the evidence has not come forth to establish the ingredients of offence 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), 7 Item No. 12 O.A. No. 2279/2016 which is misconceived in the present case, shows lack of application of mind by the respondents.
24. In the result, for the foregoing reasons, O.A. is allowed, Impugned order dated 28.5.2004 is set aside. Respondents are directed to treat the suspension period from 26.7.85 to 5.5.88 as duty for all purposes and in that event applicant would be entitled to all consequential benefits, including retiral benefits. This shall be disbursed to applicant, within a period of two months from the date of receipt of a copy of this order. No costs."
9. Further, the Hon'ble High Court of Punjab and Haryana in Bhag Singh's case (supra) has made the following observations:
"24........A perusal of the same would show the use of the expression by the learned trial court that the prosecution has failed to bring home the charge to the accused beyond any reasonable doubt, would not obliterate the earlier discussion of the trial Court which clearly established that there was no evidence against the petitioner which would tend to show that the petitioner was involved in any. undesirable activities. Therefore, the observations made by the Division Bench in the case of Kerala State Handloom Development Corporation Ltd, (supra), would not be applicable to the facts and circumstances of the present case.
25. This apart, as noticed earlier, the respondents had opted to proceed against the petitioner under the Bipartite Settlement. Once the Enquiry Officer has given the Enquiry Report, no further reliance could have been placed on the judgment of the Criminal Court in support of the plea that the petitioner has been acquitted by the trial court by giving benefit of doubt. The false implication of the petitioner having been fully established before the Enquiry Officer, the respondents acted wholly without jurisdiction in not granting him all the consequential benefits from the 8 Item No. 12 O.A. No. 2279/2016 date he was illegally suspended till he was re- instated.
26. In view of the above, the writ petition is allowed. Orders (Annexures P-6, P-7 and P-9) are quashed. Furthermore, a writ in the nature of Mandamus is issued directing the respondents to release the full pay and allowances to the petitioner for the period of suspension from 13.12.1988 to 27.9.1999 by treating the period to be spent on duty. The petitioner shall also be entitled to all other consequential benefits such as promotions, increments and seniority etc. No costs."
10. Similarly, the Hon'ble Supreme Court recently in Union of India and Others vs. Methu Meda, in Civil Appeal No.6238 of 2021, dated 06.10.2021, considered the issue of acquittal on technical grounds, and observed as under:
"13. In view of the above, if the acquittal is directed by the court on consideration of facts and material evidence on record with the finding of false implication or the finding that the guilt had not been proved, accepting the explanation of accused as just, it be treated as honourable acquittal' In other words, if prosecution could not prove the guilt for other reasons and not 'honourably' acquitted by the Court, it be treated other than 'honourable', and proceedings may follow."
11. Taking into account the entire conspectus of the case law and the ratio laid down by the Hon'ble Supreme Court as well as this Tribunal, we dispose of the OA with a direction to the respondent to treat the suspension period of 9 Item No. 12 O.A. No. 2279/2016 the applicant as 'spent on duty' and to extend all the consequential benefits to the applicant. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
There shall be no order as to costs.
(Mohd. Jamshed) (Manjula Das)
Member (A) Chairman
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