Central Administrative Tribunal - Delhi
S.R. Hassan vs Lt. Governor Of Delhi Through Chief ... on 8 December, 2009
Central Administrative Tribunal Principal Bench OA No.1223/2009 OA No.1224/2009 OA No.1299/2009 OA No.1380/2009 New Delhi this the 8th day of December, 2009. Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) OA No.1223/2009 S.R. Hassan, s.o late Sh. S.A. Hasan, aged about 54 years, R/o H-2, Muradi Road, Batla House, Jamia Nagar, New Delhi. -Applicant (By Advocate Shri S.S. Tiwari) -Versus- 1. Lt. Governor of Delhi through Chief Secretary, Govt. of NCT of Delhi, Delhi Sectt., I.P. Estate, New Delhi. 2. Commissioner, MCD, Town Hall, Chandni Chowk, Delhi. -Respondents (By Advocate Shri Anil Singhal for Ms. P.K. Gupta (R-1) and Ms. Biji Rajesh for Shri Gaurang Kanth (R-2)) OA No.1224/2009 R.S. Mehta, S/o Shri N.S. Mehta, R/o A-19/3, Rana Pratap Bagh, Delhi. -Applicant (By Advocate Shri S.S. Tiwari) -Versus- 1. Lt. Governor of Delhi through Chief Secretary, Govt. of NCT of Delhi, Delhi Sectt., I.P. Estate, New Delhi. 2. Commissioner, MCD, Town Hall, Chandni Chowk, Delhi. -Respondents (By Advocate Ms. Biji Rajesh for Shri Gaurang Kanth Shri Ankit Srivastava for Shri Praveen Swarup) OA No.1299/2009 B.L. Sharma, s/o late Shri Bhikken Lal Sharma, R/o D-16, Mansarovar Park, Delhi. -Applicant (By Advocate Shri S.S. Tiwari) -Versus- 1. Lt. Governor of Delhi through Chief Secretary, Govt. of NCT of Delhi, Delhi Sectt., I.P. Estate, New Delhi. 2. Commissioner, MCD, Town Hall, Chandni Chowk, Delhi. -Respondents ((By Advocate Ms. Biji Rajesh for Shri Gaurang Kanth Shri Ankit Srivastava for Shri Praveen Swarup) OA No.1380/2009 V.K. Jain, s/o late Shri A.P. Jain, R/o B-1, Friends Apartments, 49, I.P. Extn., Patparganj, Delhi. -Applicant (By Advocate Shri S.S. Tiwari) -Versus- 1. Lt. Governor of Delhi through Chief Secretary, Govt. of NCT of Delhi, Delhi Sectt., I.P. Estate, New Delhi. 2. Commissioner, MCD, Town Hall, Chandni Chowk, Delhi. -Respondents ((By Advocate Ms. Biji Rajesh for Shri Gaurang Kanth Shri Ankit Srivastava for Shri Praveen Swarup) O R D E R Honble Mr. Shanker Raju, Member (J):
As these OAs are grounded on same facts with an identical question of law, are being disposed of by this common order.
2. Applicants, who were Assistant Engineers, have impugned office order dated 27.10.2008 in OA-1223/2009, order dated 23.7.2008 in OA-1224/2009, order dated 26.6.2008 in OA-1299/2009 and lastly order dated 27.10.2008 in OA-1380/2009.
3. Applicants, on a chargesheet, have been dismissed from service and on appeal the orders have been toned down to stoppage of pay in the time scale by two stages with cumulative effect. They have been treated to be under deemed suspension and this period has been treated as not spent on duty. This is being assailed by the applicants.
4. A similar controversy has arisen before this Tribunal in S.B. Bhardwaj v. Lt. Governor through Chief Secretary and another (OA No.1738/2009, decided on 17.11.2009, where the following order has been passed:
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.
5. In our considered view, on all fours, after stiff opposition by the learned counsel of respondents, the claim of applicants is covered by the aforesaid ratio, which we respectfully agree and follow. Accordingly, OAs are disposed of by setting aside the impugned orders. 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, consequences in law would ensue upon applicants in accordance with rules. No costs.
Let a copy of this order be placed in each case.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.