Hans Raj vs D.D.A. And Anr.
2006 Latest Caselaw 1317 Del

JUDGMENT

S. Muralidhar, J.

1. This appeal is directed against judgment and order dated 19.4.2004 passed by learned Single Judge dismissing Writ Petition (C) 7522 of 2004 filed by the appellant.

2. The facts in brief are that the appellant joined services of the respondent as Grade D employee on 8.8.1978 and was promoted to the post of lower divisional clerk in December, 1984. The Station House Officer, PS Mangol Puri, by a letter dated 8.2.1986 informed the respondent that the appellant had been arrested in criminal case arising out FIR No. 282 dated 29.11.1985 under Sections 302, 307, 342, 325, 323 read with 34 Indian Penal Code along with five other persons. Subsequently by an vide order dated 14.4.1986, the respondent placed the appellant under suspension. The criminal case went to trial and by judgment dated 1.3.2000 of the Trial Court, the appellant was acquitted. Following this acquittal the appellant was reinstated by the respondent by an order dated 5.2.2001. The period of suspension from 28.11.1985 to 5.2.2001 was regularised by treating it as leave due and admissible. However, on 15.10.2001 the respondent issued a show cause notice to the appellant proposing to treat the period of suspension as period not spent on duty since the appellant had not been exonerated on merits by the criminal court. The appellant replied to this notice on 23.10.2001. After considering the reply of the appellant, the respondent on 27.6.2002 passed the following order:

F. 25(13)86/VIG.

DELHI DEVELOPMENT AUTHORITY 

VIGILANCE BRANCH
 ORDER NO. 249/VIG./2002/5003                                       DATED: 27.6.02.
 

 ORDER
 

WHEREAS Shri Hans Raj, LDC, was placed under suspension vide order No. 48/Vig./86 dated 14.4.86 on the grounds that a case against him was under investigation. 
 

AND WHEREAS Shri Hans Raj, LDC, was reinstated vide order No. 33/Vig./2001/AVO.II dated 5.2.2001.
 

AND WHEREAS after careful consideration of the judgment of the Hon. Court delivered on 1.3.2000 , I Sunil Sharma, Commissioner (P) ,DDA had come to the conclusion that the period of suspension i.e. from 28.11.85 to 5.2.2001 be regularized by grant of leave due and admissible to him. Accordingly, a show cause notice was issued to Shri Hans Raj, LDC on 15.10.2001.

AND WHEREAS Shri Hans Raj, LDC has filed reply on 23.10.2001 of show cause notice issued to him.

AND WHEREAS after careful consideration of the whole case and the reply of the show cause notice, I Sunil Sharma, Commissioner (P), DDA being the disciplinary authority has come to the conclusion that the period of suspension i.e. from 28.11.85 to 5.2.2001 can not be treated as duty as there is nothing to suggest that the suspension period was not justified. Further, Shri Hans Raj, LDC, was not exonerated on merit. However, his period of suspension be counted for the purpose of pensionary benefits and not for leave and increment purpose and the payment for the suspension period be restricted to the subsistence allowance already paid to him.

(Sunil Sharma) Commissioner (Personnel)

3. Aggrieved by the above order the appellant filed Writ Petition (C) No. 5722/04 in this Court on 15.4.2004. By the impugned judgment dated 19.4.2004 , the learned Single Judge dismissed the writ petition after holding that the suspension of the appellant was, in the facts and circumstances of the case, not unjustified. The learned Single Judge followed the judgment of Hon'ble Supreme Court in Union of India v Jaipal Singh (2004) SCC 121 and held that the decision not to grant full back wages and restricting monetary benefits to the subsistence would not be held to be unreasonable .

4. When this appeal was taken up for hearing, there was no appearance on behalf of appellant. We heard the submissions of Mr. Arun Birbal, learned Counsel for the respondent/DDA who in addition to placing of the judgments upon which he was relying , also placed the judgments sought to be relied upon by the appellant herein.

5. The only question arising in the present appeal concerns the validity of the order passed by the Respondent/DDA counting the period of suspension for the purpose of pensionary benefits but treating the said period as 'not on duty' for leave and increment purposes and further restricting payment for the suspension period to the subsistence allowance already paid .

6. The appellant has challenged the impugned judgment dated 19.4.2004 of the learned Single Judge principally on the following grounds:

(a) As per the judgment of the Hon'ble Supreme Court in Brahma Chandra Gupta v Union of India , which was followed by the Full Bench of the Central Administrative Tribunal in S. Samson Martin v. Union of India (1990) (1) ATJ 423, the appellant was fully entitled to back wages and subsequent relief upon his being reinstated consequent upon his acquittal . The judgment of the Hon'ble Supreme Court in UOI v. Jaipal Singh (2004) SCC 121 was contrary to an earlier Supreme Court judgment of a larger bench of three Hon'ble Judges in the case of Brahma Chandra Gupta (supra) which applied in the instant case .

(b) The co-accused of the appellant, one Shri Roop Chand, who also stood acquitted by the Trial Court was reinstated by his employer ,CSIR, was initially denied full back wages for the period of suspension. In his case, the Principal Bench of the Central Administrative Tribunal (CAT) had by its judgment dated 5.11.2003 accepted his plea and held that Roop Chand would be entitled to be treated as having been on duty for all practical purposes and to the consequential benefits.

7. Mr. Arun Birbal, learned Counsel for the respondent, on the other hand has placed reliance upon a judgment dated 6.10.2005 of a Division Bench of this Court in LPA No. 2066/05 (S.P. Thukral v. DDA) where , in similar circumstances, where the acquittal of the employee was not on merits, after noticing the relevant provisions in Regulations 22(b) and 22 (2) of the Delhi Development Authority Conduct, Disciplinary and Appeal Regulations 1999 ('Regulations') the Fundamental Rules (FR) 54-A and 54-B and the Administrative Instructions dated 28.3.1959 issued by the Government of India, the order of the learned Single Judge dismissing the employee's writ petition challenging the denial of full pay, was upheld.

8. Mr. Arun Birbal has also relied upon the judgment of the Hon'ble Supreme Court in Union of India v. Jaipal Singh (supra), Union of India v. K.V. Jankiraman , Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujrat Electricity Board and contended that the impugned judgment of the learned Single Judge was in consonance of the settled law as declared by the Hon'ble Supreme Court in the aforesaid judgments and , therefore, does not call for any interference.

9. At the very outset we may notice that the Regulations 22 and 23 of the DDA Regulations concern the treatment of the period of suspension. The said regulations read as under:

Regulation -22

Treatment of the period of suspension

1. When the employee under suspension is reinstated the competent authority may grant him the following pay and allowances for the period of suspension.

If the employee is exonerated and not awarded any of the penalties mentioned in Regulation 23,the full pay and allowances which he would have been entitled to if he had not been suspended, less the subsistence allowance already paid to him; and.

2. In a case falling under Sub-clause (a) the period of absence from duty will be treated as a period spent on duty. In case falling under Sub-clause (b) it will not treated as period spent on duty unless the competent authority so directs.

Regulation -23.

Penalties

The following penalties may be imposed on an employee, as hereinafter provided for misconduct committed by him or for any other good and sufficient reasons.

Minor Penalties

Censure.

With-holding of increments of pay.

With-holding of promotion.

Recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Authority by negligence or breach of orders.

Reductions to a lower stage in the time scale of pay for period not exceeding 3 years without cumulative effect and not adversely effecting his pension.

Major Penalties

Save as provided for in Clause (e), reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the employee will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay.

Reduction to lower time-scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the employee to the time scale of pay, grade, post or service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the employee was reduced and his seniority and pay on such restoration to that grade, post or service.

Compulsory retirement.

Removal from service which shall not be a disqualification for further employment.

Dismissal from service which shall ordinarily be a disqualification for further employment under the Govt.

Provided that, in every case in which the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in Clause (i) or Clause (j) shall be imposed.

Provided further that in any exceptional case and for special reasons recorded in writing, any other penalty may be imposed.

Explanation

The following shall not amount to a penalty within the meaning of this rule.

With-holding of increment of any employee on account of his work being found unsatisfactory or not being of the required standard , or for failure to pass a prescribed test or examination.

Stoppage of an employee at the efficiency bar in a time scale, on the ground of his unfitness to cross the bar.

Non- promotion , whether in any officiating capacity or otherwise, of an employee, to a higher post for which he may be eligible for consideration but for which he is found unsuitable after consideration of his case.

Reversion to a lower grade or post, of an employee officiating in a higher grade or post on the ground that he is considered, after trial, to be unsuitable for such higher grade or post, or on administrative grounds unconnected with his conduct.

Reversion to his previous grade or post of an employee appointed on probation to another grade or post, during or at the end of the period of probation in accordance with the terms of appointment.

Termination of service:

of an employee appointed on probation, during or at the end of the period of probation, in accordance with the terms of his appointment.

of an employee appointed in a temporary capacity otherwise than under a contract or agreement on the expiration of the period for which he was appointed, or earlier in accordance with the terms of his appointment.

of an employee appointed under a contract or agreement in accordance with the terms of such contract or agreement, and of an employee on reduction of establishment.

Replacement of the service of an employee whose service have been borrowed from the State Govt. or any Authority under the control of State Govt., at the disposal of the State Govt., or the Authority from which the service of such Govt. servant have been borrowed.

Compulsory retirement of an employee in accordance with the provisions relating to his superannuation or retirement.

23(IX)

Where departmental proceedings against a suspended employee finally end with the imposition of minor penalty, or when suspension is revoked without holding any further inquiry or if the employee is exonerated and not awarded any of the penalties mentioned in Regulation 23, the suspension can be said to be wholly unjustified in the terms of F.R. 54 (B) and the employee concerned should , therefore, be paid full pay and allowances for the period of suspension by passing suitable orders under F.R.54(B). The employee shall be paid full pay and allowances to which he would have been entitled, had he not been suspended. ''

10. The respondent in its counter affidavit has contended that the appellant was acquitted in the criminal case by the Additional Sessions Judge on the ground that the prosecution has failed to establish the guilt of the appellant beyond all reasonable doubt. The stand of the respondent is that the acquittal of the appellant was not on merits and, therefore, the disciplinary authority was justified in making order dated 26.7.2002 directing that the period of suspension with effect from 28.11.1985 to 5.2.2001 be treated as not on duty for the purpose of payment of back wages. He also placed reliance upon instructions dated 3.12.1985 issued by the Department of Personnel and Training, Government of India the relevant provisions of which read as under:

(1) Regularizing of suspension during criminal proceedings, arrest or detention.-- The cases of suspension during pendency of criminal proceedings or proceeding for arrest for debt or during detention under a law providing for preventive detention, shall be dealt with in the following manner hereafter:

(a) A Government servant who is detained in custody under any law providing for preventive detention or as a result of a proceeding either on a criminal charge or for his arrest for debt shall, if the period of detention exceeds 48 hours and unless he is already under suspension, be deemed to be under suspension from the date of detention until further orders as contemplated in the Central Civil Services (Classification, Control and Appeal ) Rules. A Government servant who is undergoing a sentence for imprisonment shall also be dealt with in the same manner pending a decision on the disciplinary action to be taken against him.

(d) When a Government servant who is deemed to be under suspension in the circumstances mentioned in Clause (a) or who is suspended in the circumstances mentioned in Clause (b) is reinstated without taking disciplinary proceedings against him, his pay and allowances for the period of suspension will be regulated under FR 54-B, i.e., in the event of his being acquitted of blame or (if the proceeding taken against him was for his arrest for debt) its being proved that his liability arose from circumstances beyond his control or the detention being held by any competent authority to be wholly unjustified, the case may be dealt with under FR 54-B; otherwise it may be dealt with under proviso to FR 54-B.

11. The above provisions necessarily take us to FR 54 B, the relevant portion of which reads as under:

F.R. 54-B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order--

(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement) ,as the case may be; and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) ...

(3) ...

(4) ...

(5) In cases other than those falling under Sub-rules (2) and (3) the Government servant shall, subject to the provisions of Sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served ) as may be specified in the notice.

(6) ...

(7) ...

(8) The payment of allowances under Sub-rule (2), Sub-rule (3) or Sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.

(9) The amount determined under the proviso to Sub-rule (3) or under Sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.

12. On the conspectus of the above rules it appears that question of payment of back wages upon reinstatement following the acquittal of an employee in criminal proceedings is entirely left to the discretion of employer. The facts of the case in Brahma Chandra Gupta (supra) requires to be noticed since the appellant herein has placed considerable reliance upon the said judgment in support of his plea that full back wages ought to have been granted to him upon reinstatement. There the conviction of the appellant in a criminal case led to his dismissal . However, on his subsequent acquittal , he was reinstated in service. The concerned authority divided the period of suspension of the employee in that case in two parts. The first being from May 14, 1962 till October 31, 1964 on which date the appellant was acquitted. The second being from October 31, 1964 to September 1965 when he was reinstated. As regards the latter period, it appears that full wages were granted to the employee. The question then remained with regard to the payment of back wages for the period May 14, 1962 to October 31, 1964 . As regards this period, the authority was of the opinion that since the appellant had not been fully exonerated, the appellant should be given 3/4th of the salary for the period of his suspension. The appellant, then filed a suit for recovery of the 1/4 th salary that was denied to him. This suit got decreed by a Trial Court which led to the Union of India carrying the matter in appeal. What weighed to the Hon'ble Supreme Court in accepting plea of the appellant for full back wages was that the employee had already retired upon superannuation and had never been subjected to any departmental enquiry. It found that in those circumstances, the approach of the Trial Court was unassailable . Accordingly the employee's appeal was allowed and the employee was asked to pay full back wages along with the interest @ 9% p.a.

13. It requires to be noticed that there is no discussion in Brahma Chandra Gupta's case (supra) about any rules similar to the one that we have here in the form of DDA Regulations and Fundamental Rules. There was no occasion therefore to consider whether the discretion of the employer to grant full back wages upon reinstatement of the employee was correctly exercised . Therefore, it appears that the decision in Brahma Chandra Gupta's case (supra) turned on its own facts and, therefore, cannot be applied to the instant case.

14. On the other hand in Union of India v Jaipal Singh (supra) , the Hon'ble Suprme Court, followed an earlier judgment in Ranchhodji Chaturji (supra) and held that employer could not be made liable to pay for the period for which he could not avail of the services of the employee. It was held that the department cannot in any manner be found fault with for having kept the employee out of services since the law obliges a person convicted of an offence to be so kept out and not be retained in services. We also that the judgment of the Tribunal Court dated 5.11.2003 in the case of Shri Roop Chand said to be a co-accused of the appellant herein, does not appear to be correct since it followed the decision in Brahma Chandra Gupta's case (supra) without noticing that the said decision turned on its own facts. Moreover, Roop Chand's services were not with the DDA and, therefore not governed by the present Regulation. The Division Bench of this Court in its order dated 6.10.2005 in Thukral v. DDA (supra) has, in more or less similar facts, held that the discretion conferred on the respondents by Regulations 22(b) and 22(2) to issue an order treating the suspension period as ' not spent on duty ' is not unreasonable. Moreover, it was pointed out that the validity of the said Regulation was not challenged in that case.

15. In the case on hand too, the appellant has not questioned the validity of Regulation 22(b) and 22(2) of the relevant Regulation. These Regulations give a discretion to the Respondent in the matter of treatment of the period of suspension as ' not on duty' . On a conspectus of the facts and circumstances of the present case, we are of the view that impugned order dated 27.6.2002 passed by the DDA cannot be said to suffer from any infirmity either due to non application of mind to relevant materials or failure to consider relevant materials. It cannot be termed as arbitrary or unreasonable. We are further of the view that the judgment of the Hon'ble Supreme Court in Brahma Chandra Gupta's case (supra) turned on its own facts, particularly since there was no occasion to consider either the validity of any similar Regulations as in the present case, and consequently of the exercise of discretionary powers in terms of such a Regulations.

16. For the above reasons, we find that the decision of the learned Single Judge does not call for any interference. Accordingly the appeal is dismissed with no order as to costs.