Union Of India & Ors. vs Shri Amrik Chand
2008 Latest Caselaw 1485 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+R.A. No.42/2008 & C.M. 1298/2008 in W.P.(C) No.5299/1997

%                 Judgment reserved on : 23.05.2008

                  Judgment delivered on : 29.08.2008


UNION OF INDIA & ORS.                               ..... Petitioner
                   Through:               Mr. Raman Oberoi, Adv.

                      Versus

SHRI AMRIK CHAND                                   ...... Respondent
                             Through:     Mr.Pradeep Kumar, Adv.


CORAM:
HON'BLE MR. JUSTICE MANMOHAN SARIN
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers
   may be allowed to see the judgment?

2. To be referred to Reporter or not?                       No

3. Whether the judgment should be                           No
   reported in the Digest?



VIPIN SANGHI, J.

C.M. No.1298/2008

The delay in filing the review application is condoned for the

reasons stated in the application.

R.A. No.42/08 in W.P.(C)5299/1997

1. This application has been filed by the respondent to seek a

review of our judgment dated January 12, 2007 whereby we have

upheld the decision of the Tribunal that the finding of misconduct of

misappropriation against the respondent was based upon surmise and

conjecture and that it was a case of "no evidence" against the

respondent. However, we have interfered with the decision of the

Tribunal in so far as the grant of relief of 50% back wages is

concerned. Our observations from para 26 to 30 are relevant for the

purpose of consideration of the review application and therefore we

reproduce the same herein below:-

"26. We find merit in the contention of the respondent that he could not be deemed to have been under suspension from 21.12.1979. The suspension upon reinstatement could only have been prospective since he had not been dismissed or removed from service after holding an inquiry under CCS (CCA) Rules, 1965. Rule 10(4) of the CCS (CCA) Rules, 1965 reads as follows:-

"Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:

Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the court has passed an order purely on technical grounds without going into the merits of the case. "

27. The Supreme Court in Mahender Singh (Supra) had dealt with a similar situation and concluded that since the original order of termination was not passed against the appellant as a measure of punishment and it was "simplicitor termination" under Rule 5(1) of the CCS (Temporary Service) Rules, 1965 which had been set aside by the Tribunal, Rule 10(4) had no application to the case.

28. We find some merit in the submission of the learned counsel for the petitioner that, in any event, this was not a fit case where the Tribunal should have directed the

grant of 50% arrears of back wages to the respondent upon his being reinstated in service for the entire period. We cannot lose sight of the fact that admittedly the respondent was responsible for the loss of Rs. 10,000/- from out of the money entrusted to him, way back in 1976. This was not a small amount in those days. It is not that the respondent was arbitrarily framed or was a victim of any mala fides. The respondent is, therefore, equally responsible for the state of affairs in which he finds himself. The respondent would have received the suspension allowance during the period of his suspension. We may only refer to a recent decisions of the Hon'ble Supreme Court on this aspect viz Allahabad Jal Sansthan vs. Daya Shankar Rai and Another (2005) 5 SCC 124.

29. On the other hand, it is noticed that the respondent was initially suspended on 10.2.1976 in contemplation of disciplinary proceedings. Soon thereafter, an FIR was lodged under Section 409 of IPC. The services of the respondent were thereafter terminated in 1979 under Rule 5(1) of CCS Temporary Service Rules. The respondent was finally acquitted by the Additional Sessions Judge, Mathura on 17.7.1985. In our view, upon acquittal, the petitioner had no justification to deprive the respondent of his right to resume his duties and to continue his suspension till his removal from service on 31.8.1990.

30. In the facts of this case, we feel the direction for payment of 50% back wages for the period upto to 17.7.1995 was not justified and to that extent we set aside the order of the Tribunal. He would be entitled to payment of 50% back wages for the period after 17.7.1995, subject to adjustment of the subsistence allowance received by him for that period. However, we make it clear that the respondent would be treated to have been in continuous service for purposes of pay fixation and computation of his retiral benefits."

2. The respondent submits that there is a typographical error

in the date as mentioned in para 30 of the aforesaid judgment. We

had observed that the direction for payment of 50% backwages for the

period "upto 17.7.1995" was not justified, and to that extent we had

set aside the order of the Tribunal. We had also observed that the

respondent would be entitled to payment of 50% of backwages for the

period "after 17.7.1995", subject to adjustment of subsistence

allowance received by him for that period. The submission of the

learned counsel for the respondent is that the date typed as

17.7.1995 is incorrect since no incident had taken place on 17.7.1995.

In fact the respondent was acquitted in the criminal case on

"17.7.1985" and the Court had observed in para 29 that upon the

acquittal of the respondent, the petitioner had no justification to

deprive the respondent of his right to resume his duties and to

continue his suspension till his removal from service on 31.8.1990. It

is also contended by the respondent/applicant that the respondent

ought to be granted full wages for the period after 17.7.1985 when he

was acquitted by the appellate court. His further submission is that

there is no specific direction issued regarding pay and allowances for

the period from the date the Tribunal passed the order dated

21.7.1997 upto the date the respondent was reinstated in service, i.e.

vide order dated 15.5.2007.

3. The petitioner has filed its reply. It is contended that

there is no error apparent on the face of the record. The petitioner

has implemented the judgment by making payment of arrears as per

the statement contained in Annexure R-1 to the reply.

4. From a perusal of paras 29 and 30 of the impugned

judgment it is evident that the date twice noted as 17.7.1995 in

paragraph 30 ought to have been noted as 17.7.1985, on which date

the respondent was acquitted by the Additional Sessions Judge,

Mathura. So far as the other grounds made out by the respondent to

seek a review of the impugned judgment i.e. pertaining to the denial

of full wages to the respondent for the period after 17.7.1985 and for

the period from the date of decision of the Tribunal dated 21.7.1997

upto the date of his reinstatement vide order dated 15.5.2007 are

concerned, the same do not fall for our consideration in our

jurisdiction to review own judgment, since the same cannot be said to

be an error apparent on the face of the record. In case the

respondent is aggrieved, he has the remedy to approach the Supreme

Court. We had consciously restricted the grant of back wages to the

respondent considering the fact that he had not actually served the

petitioner and he was also responsible for the situation in which he

found himself. We have given our reasons for the limitation of relief

of back wages in this case in para 28 of the impugned judgment.

5. While hearing this review application it has come to our

notice that in fact the Tribunal did not grant 50% arrears for the

entire period as understood by us while passing the impugned

judgment. In fact what the Tribunal directed was as follows; "The

applicant will get 50% of arrears since he has not actually worked

during the pendency of this OA, though not for his fault."

(emphasis supplied). The crucial words "during the pendency of

this OA" unfortunately appear to have escaped our attention at the

time of passing of the impugned judgment. The original application

was filed by the respondent before the Tribunal on or about

20.11.1991. Pertinently, the respondent did not challenge the

impugned order of the Tribunal dated 21.7.1997 and has accepted the

grant of arrears as directed by the Tribunal. It is clear from the

impugned judgment passed by us that we never intended to grant to

the respondent a larger relief than what had been granted by the

Tribunal. In fact, on the assumption that the Tribunal had granted

arrears of wages to the extent of 50% for the entire period, we had

sought to curtail that period. Therefore, while correcting the date in

paragraph 30 of the impugned judgment to read as 17.7.1985, we

direct that the respondent would be entitled to 50% arrears of wages

with effect from 20.11.1991 i.e date of the Original Application before

the Tribunal.

6. There is one other aspect that we need to address. When

the first original application filed by the respondent being O.A.

No.325/1986 was decided by the Tribunal on 31.8.1989, the Tribunal

had itself passed directions that the respondent would be deemed to

have continued under suspension which was in existence on the date

of his termination under Rule 5 of the CCS (Temporary Service)

Rules. The Tribunal had also observed that the competent authority

would be entitled to take a decision on the continuance or otherwise

of the suspension. The competent authority was also entitled to

continue the suspension of the respondent if it decided to initiate

disciplinary proceedings against him based on his conduct which led

to his prosecution before the criminal court. Pertinently, this order of

the Tribunal was accepted by the respondent. He did not challenge

that order of the Tribunal whereby the Tribunal directed that the

respondent would be deemed to have continued under suspension. In

terms of the said order of the Tribunal, the petitioner had passed the

order on 18.10.1989 whereby his order of termination was set aside;

further enquiry was directed to be held under the CCS (CCA) Rules

1965; he was deemed to have been placed under suspension with

effect from 21.12.1979, and was to continue to remain under

suspension until further orders.

7. The aforesaid aspect, viz., that the Tribunal had in the

order dated 31.8.1989 directed that the respondent shall be deemed

to have continued under suspension with effect from 21.12.1979 and

that this order was accepted by all concerned, including the

respondent, escaped our attention when we observed in para 29 of

the impugned judgment "In our view, upon acquittal, the petitioner

had no justification to deprive the respondent of his right to resume

his duties and to continue his suspension till his removal from service

on 31.8.1990 (sic) 30.8.1990." It also escaped our attention that

continuance of suspension vide order dated 18.10.1989 was not on

account of the criminal charge against the respondent, but on

account of the fact that the petitioner had decided to initiate

disciplinary proceedings against the respondent and the Tribunal in

its order dated 31.8.1989 had itself permitted the petitioner to

continue the applicant/respondent herein on suspension if it decides

to initiate disciplinary proceedings against him, based on his conduct

which led to his prosecution before the criminal court.

8. The respondent has disclosed in his review application

that he was drawing 75% of the basic pay and usual allowances

towards subsistence allowance with effect from 10.8.1976 and upto

the date of his removal i.e. 30.8.1990. Consequently, we are of the

view that the aforesaid observation, as quoted in the preceding

paragraph ought to be deleted. The respondent had already received

the subsistence allowance, as aforesaid, for the period upto 30.8.1990

is not entitled to any other payments for that period, and upto

20.11.1991.

9. Accordingly we dispose of this review application with the

following directions:

(i) The date 17.07.1995 occurring in para 30 of the impugned

judgment be corrected and the same be read as 17.07.1985.

(ii) The respondent is entitled to 50% arrears of wages w.e.f.

20.11.1991 i.e. the date of the original application before the

before the Tribunal.

(iii) We delete the following observation made in para 29 of the

impugned judgment:

"In our view, upon acquittal, the petitioner had no justification to deprive the respondent of his right to resume his duties and to continue his suspension till his removal from service on 31.8.1990."

Parties are left to bear their respective costs.

(VIPIN SANGHI) JUDGE

(MANMOHAN SARIN) JUDGE August 29, 2008 aj