Municipal Corporation Of Delhi vs R. S. Mehta
2009 Latest Caselaw 1469 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               WP(C) 2532 of 2010

%                          Date of Decision: 19.04.2009

Municipal Corporation of Delhi                                 .... Petitioner

                           Through Ms.Shobha Gupta, Advocate.

                                    Versus

R. S. Mehta                                                   .... Respondent

                           Through Mr.S.S.Tiwari, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.    Whether reporters of Local papers may be                   YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                      NO
3.    Whether the judgment should be reported in                  NO
      the Digest?


ANIL KUMAR, J.

*

The petitioner has impugned the order dated 8th December, 2009

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in O.A. No.1224 of 2009, titled as 'Sh.R.S.Mehta v. Lieutenant

Governor of Delhi and another', allowing the Original Application of the

respondent and directing the petitioner to decide the period during his

dismissal by the disciplinary authority and setting aside of the order of

the dismissal by the appellate authority during which the petitioner

considered the respondent to be under deemed suspension and directed

the petitioner to pass a speaking order in respect of the said period.

The respondent joined the petitioner as a Junior Engineer and

was promoted as Assistant Engineer. The charges were framed against

the respondent for allowing the owner of the building to carry out

unauthorized construction in two properties in Karol Bagh under his

charge and an enquiry report dated 31st March, 2006 was submitted to

the Disciplinary Authority. After considering the enquiry report, the

disciplinary authority imposed the penalty of dismissal from services by

the order dated 20th July, 2006.

An appeal was preferred by the respondent. After hearing the

respondent, the Appellate Authority passed an order dated 2nd June,

2008 setting aside the penalty of dismissal from service and imposed

the penalty of "Reduction in the time scale of pay by ten stages' till his

date of superannuation i.e. 31st March 2007.

According to the respondent, the Disciplinary Authority by its

impugned orders modified the Appellate Order dated 2nd June, 2008

which the disciplinary authority was not entitled to do. By impugned

orders passed by the disciplinary authority it was held that the

respondent be treated as under deemed suspension w.e.f. 20th July,

2006 up to the date of his reinstatement and the period of suspension

was held to be not spent on duty by the respondent and the payment to

the respondent was restricted to subsistence allowance allegedly

already drawn.

After the order passed by the disciplinary authority, though the

applicant has been paid his due retiral benefits as well as pension

pursuant to his superannuation w.e.f. 31st March,2007 but it was paid

on the basis of last pay drawn before his dismissal being reduced by ten

stages. He, however, challenged his deemed suspension w.e.f. 20th July,

2006 on the ground that he was never placed under suspension during

enquiry proceedings and he had never drawn any subsistence

allowance, and therefore, there could not be retrospective suspension,

and alleged deemed suspension is bad in law. It was also contended

that FR No.54-B fundamental rules could not be applied in case of the

respondent as he was never placed under suspension, nor he was

drawing any subsistence allowance prior to the order of dismissal

passed by the disciplinary authority. It was also contended that the

Appellate Authority order could not be modified by the Disciplinary

Authority as the Disciplinary Authority had become functous officio.

The respondent challenged the order of the petitioner by filing an

original application under section 19 of the Administrative Tribunal Act,

1985, The Original Application challenging the order of the petitioner

treating the respondent under deemed suspension and the period

during the deemed suspension as not spent, was allowed. The Tribunal

while allowing the original application of the respondent also relied on

another judgment of the Tribunal in the case of "Sh.S.B.Bhardwaj v.

Lieutenant Governor through Chief Secretary and another', being

O.A.No.1738 of 2009, decided on 17th November, 2009 involving the

similar issue and directed the petitioner to decide this period in

accordance with law by passing a speaking order.

The petitioner, Municipal Corporation of Delhi has challenged this

order contending, inter-alia, that the order of deemed suspension was

passed under Rule 54 of the Fundamental Rules. The Learned counsel

for the petitioner has also relied on Regulation 5(5) of DMC Services

(Control & Appeal) Regulations, 1959. According to the learned counsel

by virtue of said Regulation, the Disciplinary Authority is competent to

pass an order for placing the respondent under deemed suspension

during intervening period i.e. from the date of dismissal 20th July, 2006

up to his reinstatement 12th June, 2008 as the respondent had not

been exonerated by the petitioner, and the major penalty had been

inflicted upon him.

The Regulation 5(5) of DMC Services (Control & Appeal)

Regulations, 1959 is as under:-

"Where a penalty of dismissal, removal or compulsory retirement from service imposed upon municipal officer or other municipal employee 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, such officer or employee shall be deemed to have been placed under suspension in accordance with

this Regulation from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders."

This Court has heard the learned counsel for the petitioner. The

Tribunal while setting aside the order of the petitioner which is

challenged before this Court has relied on another judgment being

O.A.No.1738 of 2009, decided on 17th November, 2009 titled as

"Sh.S.B.Bhardwaj v. Lieutenant Governor and Commissioner of MCD',

where in similar circumstances, the Tribunal had held that in case the

Appellate Authority set aside the punishment order without ordering

further enquiry, in such an event Regulation 5(4) or Regulation 5(5) of

DMC Services (Control & Appeal) Regulations, 1959 would not have any

application. It was further held that since the employee was never

placed under suspension, therefore, he could not be placed under

deemed suspension after termination of enquiry proceedings without

directing further enquiry on the same allegations.

Learned counsel for the petitioner has not been able to deny that

the order dated 17th November, 2009 passed by the Tribunal against the

Municipal Corporation of Delhi in similar circumstances in O.A.

No.1738 of 2009 has not been challenged and has become final.

This is not disputed by the petitioner that the respondent was

never placed under suspension. If the respondent was not placed under

suspension and his dismissal order was modified to reduction of the

scale of pay by ten stages till the age of his superannuation by the

Appellate Authority, under Regulation 5(5) of DMC Services (Control &

Appeal) Regulations, 1959, the respondent could not be placed under

deemed suspension. The Regulation 5(5) contemplates that where a

penalty of dismissal is set aside and it is decided to hold a further

enquiry against an employee on the allegations on which the penalty of

the dismissal was originally imposed, such officer or employee shall be

deemed to have been placed under deemed suspension, according to

this Regulation, from the date of the original order of the dismissal.

Admittedly, though the order of dismissal has been set aside,

however, the petitioner, Appellate Authority decided not to hold any

further enquiry against the respondent on the allegations on which

penalty or dismissal was imposed. If that be so there could be no

occasion to place the respondent under deemed suspension under

Regulation 5(5) of DMC Services (Control & Appeal) Regulations, 1959.

In the circumstance, the petitioner cannot impugn the order of the

Tribunal, on the ground that it is in violation of Regulation 5(5) of DMC

Services (Control & Appeal) Regulations, 1959 and the petitioner was

entitled to place the respondent under deemed suspension. The

petitioner cannot justify its order of deemed suspension even on the

basis of FR No.54 of Fundamental Rules. In any case the Appellate

Authority while modifying the order of dismissal imposed by the

Disciplinary Authority has not passed any such order and

consequently, the Disciplinary Authority could not pass the order

placing the respondent under deemed suspension and holding that

during the said period, the respondent shall be entitled only for

suspension allowance already drawn by him though the respondent was

not placed under suspension and had not withdrawn any suspension

allowance.

The Tribunal by its order impugned before us, however, has still

allowed the respondent to decide about this period, from the date of

order of dismissal by the disciplinary authority till the appellate

authority had set aside the order of dismissal and had reinstated the

respondent in accordance with law by passing a speaking order. In the

circumstances, this Court does not find any such illegality or

irregularity or such perversity in the order of the Tribunal which will

necessitate any interference by this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India. The writ petition, in the

facts and circumstances, is without any merit, and it is, therefore,

dismissed.

ANIL KUMAR, J.

APRIL 19, 2010                                    MOOL CHAND GARG,J.
'VK'