Municipal Corporation Of Delhi vs Sh. Dinesh Nagar
2010 Latest Caselaw 2012 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.2534/2010

%                       Date of Decision: 19.04.2010

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

                                   Versus

Sh. Dinesh Nagar                                            .... 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.Dinesh Nagar 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 said period.

The respondent was working as Assistant Engineer (B) Rohini

Zone . The charges were framed against the respondent for allowing the

owner of the building to carry out unauthorized construction in seven

properties in Rohini Zone under his charge and an enquiry report dated

3rd April, 2006 was submitted to the Disciplinary Authority. After

considering the enquiry report, the disciplinary authority imposed the

penalty of dismissal from service 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 9th June,

2008 setting aside the penalty of dismissal from service and imposed

the penalty of "Reduction of the time scale of pay by one stage" for one

year with cumulative effect.

According to the respondent, the Disciplinary Authority by its

order dated 16th July, 2008 modified the Appellate Order dated 9th

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

order dated 16th July, 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 by the respondent.

The order dated 16th july,2008 was challenged by the respondent

under which he was put under 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 cannot 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 was 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 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 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(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, 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 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 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‟