Municipal Corporation Of Delhi vs Sh.B.L.Sharma
2010 Latest Caselaw 2003 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.2523/2010

%
                        Date of Decision: 19.04.2010


Municipal Corporation of Delhi                        .... Petitioner
                   Through Ms.Shobha Gupta, Advocate.


                                   Versus


Sh.B.L.Sharma                                              .... Respondent
                     Through    Mr.S.S.Tiwari, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

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                NO
     in 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.1299 of 2009, titled as „Sh.B.L.Sharma 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 three properties in Malka Ganj under his

charge and an enquiry reported dated 25th 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 the order dated 14th May,

2008 setting aside the penalty of dismissal from service and imposed

the penalty of "Reduction of the time scale of pay by two stages" within

two years with cumulative effect.

According to the respondent, the Disciplinary Authority by its

order dated 23rd May 2008 modified the Appellate Order dated 14th May,

2008 which the disciplinary authority was not entitled to do. By the

order dated 23rd May, 2008 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 and the payment to the

respondent was restricted to subsistence allowance allegedly already

drawn.

After the order dated 23rd May, 2008, the respondent also issued

posting order. The respondent joined his posting pursuant to order

dated 9th July, 2008. 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 of 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 on duty, 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 has not been

exonerated by the petitioner, and the major penalty has 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 respondent 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 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 cannot 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 two stages 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 contemplates that where a penalty of dismissal is set aside

and it is decided to hold a further enquiry against him 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 had been set aside,

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

further enquiry against the respondent on the allegations on which

penalty of 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 drawn 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‟