Delhi High Court
Smt. Om Wati vs Govt. Of Nct Of Delhi & Anr. on 4 May, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.11936/2009 & CM No. 12090/2009
% Date of Decision: 04.05.2010
Smt. Om Wati .... Petitioner
Through Mr. Anuj Aggarwal, Advocate
Versus
Govt. of NCT of Delhi & Anr. .... Respondent
Through Ms. Zubeda Begum, 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, widow of late Sh. Dharam Singh has challenged
the order dated 17th October, 2008 passed by the Central
Administrative Tribunal, Principal Bench in OA No. 261/2008 titled as
Smt. Om Wati Vs. Govt. of NCT of Delhi and Ors., dismissing her
original Application seeking the arrears of pay and allowances of her
deceased husband for the period from 21st November, 1988 to 31st
January, 1998 in terms of his promotion and his seniority.
The deceased husband of the petitioner was a constable and he
was suspended on 17th December, 1980 on account of his arrest in a
case bearing FIR No. 439 under Section 353/332/186 of IPC. By order
dated 27th August, 1983, the selection grade was granted in the pay
scale of Rs.260-350 w.e.f. 3.5.1982 to similarly placed constables but
the result of late Sh. Dharam Singh, her husband, was held in
abeyance.
The petitioner's husband was acquitted in the criminal case
under Section 332/353 of IPC by order dated 12th February, 1990.
Later on by order dated 15th June, 1990, it was held that suspension
period of the husband of the petitioner from 17th December, 1980 to
23rd March, 1981 be treated as spent on duty for all purposes as no
departmental action appears to be feasible against him and therefore, it
was ordered that he will be entitled for full pay and allowance for the
said period. The Departmental inquiry ordered against him was also
dropped. The petitioner's husband who was placed under suspension
w.e.f. 29th September, 1984 was also reinstated by order dated 10th
September, 1985 and later on, by order dated 8th April, 1988, he was
promoted as head constable.
A show cause notice dated 23rd August, 1988 had also been
issued to the petitioner's husband to revert him to the rank of constable
and he was reverted as constable from head constable by order dated
21st November, 1988 much before his acquittal by order dated 12th
February, 1990. The petitioner's husband was reverted on account of
pendency of the criminal case against him. Against the order of
reversion, an appeal was filed by the husband of the petitioner, which
was also decided and a memo dated 13th January, 1989 was issued
holding that the case of promotion of the petitioner's husband will be
reconsidered on finalization of the criminal case pending against him.
Later on the order of reversion of the petitioner's husband
dated 21st November, 1988 was withdrawn and he was granted
proforma promotion for the period from 21st November, 1988 to the
date of his superannuation on 31st January, 1998. The order
categorically stipulated that while granting proforma promotion, he
would not be entitled to draw any arrears of pay and allowances,
however, the period would be counted towards fixation of pay,
increments and seniority etc. This order granting proforma promotion
for the period 21st November, 1988 to 31st January, 1998 without
entitlement to draw arrears of pay and allowances was not challenged
by the petitioner's husband.
The criminal case against the petitioner's husband was also
disposed of on 17th December, 2004 under Section 498A r/w Section 4
of the Dowry Prohibition Act, holding that in the absence of
corroboration of material particulars, it would be hazardous to convict
the petitioner's husband and so he was acquitted.
The order granting proforma promotion for the period 21st
November, 1988 up to the date of superannuation dated 31st January,
1998 without entitlement of pay and allowances was challenged and
which was contested by the respondents contending, inter alia, that
during the said period, the petitioner's husband had not shouldered
higher responsibility and he was not implicated at the instance of the
Department and in the circumstances, it could not be said that he was
a willing employee and had been kept away from promotion because of
the conduct of the department.
The learned counsel for the petitioner also relied on Union of
India Vs. K.V. Jankiraman & Ors., AIR 1991 SC 2010 and Sh. Satpal
Vs. Chief of Army Staff, 94 (2001) DLT 521, to contend that the
petitioner is entitled for all the arrears of pay and allowance during the
period 21st November, 1988 up to 31st January, 1998.
The Tribunal, after considering the pleas and contentions, has
held that if the benefits had been denied because of pure departmental
action, which if, was found to be not sustainable, ultimately, an
employee may be entitled for claim of arrears of pay notwithstanding
the circumstance that the employee had not discharged duties of a
higher post. The Tribunal also held that since, the husband of the
petitioner was denied work on account of departmental action, but it
was on account of registration of a case under Section 498A and
Section 4 of the Dowry Prohibition Act, from which the husband of the
petitioner was acquitted on account of absence of corroboration of
material particulars, therefore, it could not be held that the petitioner's
husband was willing to discharge his duties attached to the post of
head constable although he was working only as a constable and his
reversion was irregular and consequently denied the relief to the
petitioner.
The learned counsel for the petitioner has very emphatically
contended and relied on Jankiraman (Supra), holding that when an
employee is completely exonerated meaning thereby that he is not
found blameworthy in the least and is not visited with the penalty even
of censure, he has to be given the benefit of the salary of higher post
along with other benefits from the date on which he would have
normally been promoted but for the disciplinary/criminal proceedings.
This Court has heard the learned counsel for the petitioner.
This is not disputed that the order cancelling the reversion of the
husband of the petitioner from head constable to constable was granted
subject to proforma promotion only to her husband for the period 21st
November, 1988 up to the date of his superannuation on 31st January,
1998, which was also passed subject to other condition that her
husband would not be entitled to draw any arrears of pay and
allowances which order was not challenged by him.
If the husband of the petitioner had not challenged the said
order, it will be difficult to sustain the challenge on behalf of the
petitioner, her widow. In any case, in Jankiraman (supra), it was held
that where the proceedings whether disciplinary or criminal are, for
example, delayed at the instance of the employee or the clearance in the
disciplinary proceedings or acquittal in the criminal proceedings is with
any benefit of doubt or on account of non-availability of evidence due to
the acts attributable to the employee etc., in such circumstances, the
concerned authorities must be vested with the power to decide whether
the employee at all deserves any salary for the intervening period and if
he does, the extent to which he deserves it, the order may be passed.
The criminal case against the husband of the petitioner under
Section 498A of the IPC r/w Section 4 of the Dowry Prohibition Act was
disposed of by order dated 17th December, 2004 as there had been
absence of corroboration material particulars and it was held that it
would be hazardous to convict the husband of the petitioner. On
account of such observation, if the order was passed cancelling the
reversion of the husband of the petitioner from head constable to
constable subject to only proforma promotion given to him for the
period 21st November, 1988 up to the date of his superannuation on
31st January, 1988 with further specific stipulation that he would not
be entitled to draw any arrears of pay and allowances, which order had
also not been challenged by the husband of the petitioner, it will not be
appropriate at the instance of the petitioner to hold that the authorities
did not have the power to decide whether the petitioner's husband did
deserved salary for the intervening period and after her life petitioner is
entitled for the salary. In the circumstances, this Court does not find
any fault with the reasoning of the Tribunal upholding the order of the
respondents not granting arrears of pay and allowances for the period
21st November, 1988 to 31st January, 1998 and only approving
proforma promotion to her husband which was also not challenged by
her husband.
For the foregoing reasons, this Court does not find any such
illegality or irregularity or perversity in the order of the Tribunal dated
17th October, 2008 in OA 261/2008 titled as Smt. Om Wati Vs. Govt. of
NCT of Delhi, which will require any interference by this Court.
The writ petition is without any merit and it is, therefore,
dismissed.
ANIL KUMAR, J.
MAY 04, 2010 MOOL CHAND GARG, J.
'rs'
