R.P. Sharma vs Municipal Corporation Of Delhi
2000 Latest Caselaw 531 Del

ORDER

A.K. Sikri, J.

1. Petitioner in this case was working as Sanitary Inspector/Health Inspector with the respondent- Municipal Corporation of Delhi (hereinafter referred to as MCD, for short) On 17th November, 1992 he was placed under suspension as he was arrested for allegedly committing an offence u/Ss. 7 and 13(2) of the Prevention of Corruption Act (hereinafter referred to as the Act, for short). Chargesheet was filed in the Court and trial took place which resulted in order/judgment dated 30th October, 1995 delivered by Special Judge u/Ss.7 and 13(2) of the Act. Vide order dated 1st November, 1995 Special Judge sentenced the petitioner to two years rigorous imprisonment and Rs.15,000/- as fine u/Ss.7 and 3 of the Act plus half year rigorous imprisonment and Rs.2000/- as fine u/S. 13(2) of the Act. Petitioner filed appeal against the conviction and sentence to this Court vide Criminal Appeal No. 207 of 1995 which was admitted on 28th November, 1995 and order of conviction and sentence was suspended. Petitioner was admitted on bail on furnishing personal bail bond with one surety to the tune of Rs.5000/-.

2. On the basis of conviction and sentence passed by Special Judge, show cause notice dated 3rd April, 1996 was served upon the petitioner asking him to show cause as to why punishment of dismissal be not imposed upon him. Petitioner submitted his reply dated 25th April, 1996. He also filed writ petition being Civil Writ Petition No. 1685 of 1996 in this Court challenging the issuance of such show cause notice, inter alia, on the ground that the conviction of sentence passed by Special Judge was suspended by the High Court in appeal and therefore, MCD had no right to take action at that stage and till the said conviction becomes final. The writ petition was dismissed by this Court vide order dated 30th April, 1996 observing as under:-

"In view of the decision in Deputy Director of Collegiate Education Vs. S. Nagoor Meera: , the learned counsel for the petitioner does not press this petition, which is accordingly dismissed as such."

Thereafter representation of the petitioner was considered and impunged order dated 28th October, 1996 was passed dismissing the petitioner from service.

3. Petitioner in this writ petition states that after the passing of the aforesaid order he paid several visits to the respondent-MCD authorities to withdraw the order but when no heed was paid on the requests of the petitioner. He made a representation dated 1st December, 1998 requesting that the order be modified and petitioner be atleast given pension and gratuity. As no response was received, present petition was filed on 27th February, 1999.

It may be stated that petitioner in the writ petition did not disclose that he had earlier filed Civil Writ Petition No. 1685 of 1996. Infact at page 20 the writ petition, petitioner, in cleverly worded language, as mentioned :-

"That no other appeal or writ is pending in this hon'ble Court or any other Court against the withholding of the pension, gratuity, leave salary etc., of the petitioner by the respondent."

4. It is only in the counter affidavit filed by the respondent that it is disclosed that the petitioner had earlier filed the writ petition which was dismissed by order dated 30th April, 1996 and a copy of the said order is annexed as Annexure A - E to the writ petition on the basis of which the respondent have taken the plea that the present writ petition is an abuse of the process of law, misconceived hence not maintainable.

5. Although in para 20 of the writ petition the petitioner has alleged that no writ petition is pending against withholding pension, gratuity, etc, the claim to the relief prayed for in this petition is on the ground that dismissal order is bad in law and therefore in the prayer clause of the writ petition, petitioner has prayed for quashing of the impugned order of dismissal also. In these circumstances, in all fairness, petitioner should have disclosed the factum of filing earlier petition which was directly on the point and was dismissed by this Court following the judgment of Supreme Court as is referred to in the order dated 30th April, 1996. Petitioner is therefore guilty of "suppression veri" and "suggestion falsi" and has not come to this Court with clean hands. Suppressing of the aforesaid material facts itself disentitles the petitioner to get any relief.

6. Petition is also barred by principles of res judicator/constructive res judicata. No doubt the petitioner had approached this Court earlier at a stage when show cause notice was issued and the present petition is filed after dismissal order is passed, however his earlier petition was not dismissed on the ground that it is premature having been filed at show cause stage when no final order is passed. It was dismissed on merits following the judgment of Supreme Court in Deputy Director of Collegiate Education Vs. S. Nagoor Meera .

7. The contention of the petitioner was that since the conviction and sentence passed by Special Judge was suspended by this Court in appeal preferred by the petitioner, action could not have been taken on the basis of said conviction and sentence and show cause notice was bad in law. This very contention is specifically answered in the aforesaid judgment rendered by the Supreme Court holding that departmental/disciplinary action can be taken and the services of the concerned employee can be terminated by way of dismissal etc. on the basis of conviction order passed by criminal court even if such conviction order is suspended in appeal filed by the convicted employee. This is what the Court observed in the said case:-

"We need not, concerns ourselves any more with the power sof the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311(2) is the "conduct which has led to his conviction on a criminal charge" and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal.

x x x x x x

What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated, above, if he succeeds in appeal or other proceedings, the matter can always be reviewed in such a manner that he suffers no prejudice

8. Thus, the writ petition was dismissed vide order dated 30th April, 1996 on the basis of aforesaid pronouncement of the apex Court holding that respondent could take disciplinary action and issue show cause notice on the basis of conviction and sentence passed by Special Judge, notwithstanding the fact that in appeal, the said conviction and sentence was suspended. Therefore, filing the present writ petition, may be after the order of dismissal which was not passed at that time when the order dated 30th April, 1996 was passed in the earlier writ petition, on the same ground and also challenge to the dismissal order on the same ground on which show cause notice was challenged and failed, is clearly barred by principles of res judicator/constructive res judicata.

Even when the matter is considered on merits, position in law remains the same. In view of the aforesaid judgment of the Supreme Court holding that departmental action is permissible in such circumstances, petitioners' challenge to the imposition of dismissal on the basis of conviction and sentence is clearly misconceived. It is the contention of the petitioner that he has challenged the dismissal order in the present petition as because of dismissal order petitioner is denied pension and gratuity, etc. He further contends that the punishment of dismissal was disproportionate to the charge levelled against him and because of this severe punishment petitioner was denied pension, gratuity, etc. It was submitted that the respondent could have imposed lesser punishment like reduction in rank or removal to enable him to get some terminal dues. In support of his submission, petitioner has relied upon the following judgments:-

i. Rameshwar Dutt Sharma Vs. Lt. Governor, Delhi and another reported in ATR 1992 (1) CAT 460.

ii. P.S. Gunasekaran (Dr.) Vs. Union of India and others reported in ATR 1992 (1) CAT 464.

iii. State Bank of India Vs. A.N. Gupta reported in 1997 VIII AD S.C. 141.

9. I am not convinced with this argument of the petitoner. The charge against the petitioner for which he is convicted and sentenced is a serious charge namely that of demanding and accepting bribe. Perusal of the judgment of Shri V.B. Gupta, Special Judge shows that charge proved against him was that he came to Shri Lekh Raj and demanded Rs.200 to be paid to him every month as bribe as otherwise he would cease his "rehri". Trap was laid and petitioner was caught red handed while accepting Rs.200/- from Shri Lekh Raj. This charge is proved before the criminal Court for which he is given the punishment as aforesaid. The charge is of a very serious nature and it cannot be said that the punishment of dismissal is such that it would shock the conscience of the Court and justify interference while exercising extraordinary jurisdiction under Article 226 of Constitution of India. Infact going by the gravity of offence committed by the petitioner the punishment given to the petitioner is reasonable and warranted in the circumstances of the case.

The judgment cited by the petitioner are not applicable in the present case. In the case of Rameshwar Dutt Sharma (supra) order of dismissal from service based on conviction, was non-speaking order passed in a mechanical way and it was held that such an order was not sustainable. Still considering the sentence of life imprisonment imposed upon the petitioner, Central Administrative Tribunal held that impugned order could not be set aside or quashed. Liberty was granted to him to make detailed representation bringing out the extenuating circumstances if any and his grievance about the quantum of punishment and on making such representation respondents were directed to consider the same and pass speaking order on this representation. As far as payment of G.P.F. amount payable to the said petitioner was concerned it was held that since charge was not in any way connected with his official conduct the claim of petitioner for GPF and leave encashment was tenable in law. In the present case speaking order has been passed after due application of mind. Moreover, the offence is connected with the official conduct of the petitioner. Therefore, this judgment is of no help to the petitioner.

In the case of Jesuralnam versus Union of India and others (supra) Supreme Court was concerned with a situation where there was no legal provision empowering the authority to forfeit the gratuity payable to employee and it was held that order passed by the government forfeiting the gratuity payable to the appellant was bad in law. No such case is made out in the instant petition.

The case of State Bank of India Vs. A.N. Gupta (supra) relied by the petitioner, deals with altogether different situation. That was a case where pension was withheld even after after superannuation and interpreting rule 11 of the Pension Rules of the bank it was held that in such circumstances pension could not be withheld. The Court held that it was rule 10 of the Pension Rules which provided for forfeiture of all claims of pension if the employee is dismissed from service of the bank for wilfull negligence or fraud and when rule 10 specifically provides for forfeiture of pension it could not be said that under Rule 11 again the pension of an employee could be withheld on this or similar grounds. Thus in that case also if an employee is dismissed from service for wilfull negligence or fraud, pension could be forfeited under Rule 10. However, on the facts it was found that it was not a case under Rule 10 but a case under Rule 11 as the concerned employee had retired on reaching the age of superannuation. In the instant case, petitioner is dismissed from service and it is not a case of retirement of superannuatiuon.

Accordingly, this writ petition is hereby dismissed. Rule stands discharged.

10. There shall be no order as to costs.