Hukum Singh & Ors. vs Central Public Works Department & ...
2012 Latest Caselaw 651 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   WP(C) No.137/2012 & CM No.270/2012

%                       Date of Decision: 31.01.2012

Hukum Singh & Ors.                                        .... Petitioners

                     Through   Mr.A.K.Bajpayee, Mr.G.K.Chauhan          &
                               Mr.M.F.Khan, Advocates

                                Versus

Central Public Works Department & Anr.                 .... Respondents

                     Through Mr.R.N.Singh & Mr.A.S.Singh,
                             Advocates.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA

ANIL KUMAR, J.

*

1. The petitioners have challenged the order dated 22nd September,

2011 passed by the Central Administrative Tribunal, Principal Bench,

New Delhi in OA No.1328/2010, titled as „Hukum Singh & Ors. v.

Central Public Works Department & Anr.‟ declining to grant them back

wages while setting aside their suspension order dated 4th October,

1986, as the order was challenged by the petitioners after a lapse of

about 25 years without disclosing any reason. However the Tribunal did

direct the respondents to treat the period of suspension as period spent

on duty for the purpose of pensionary benefits but not for any other

purpose.

2. Brief facts to comprehend the controversies raised by the

petitioners are that they were working as gardeners with the

Horticulture Department of Respondent no.1, when at the relevant time

since they were members of a Union which was on strike, according to

the petitioners, the Management had falsely alleged that the petitioners

had beaten up their superior which had led to the filing of an FIR

against them. Petitioners further disclosed that in the said criminal

case against them, the Metropolitan Magistrate by order dated 26th

March, 1988 sentenced the petitioners to undergo imprisonment for

three months for the offences punishable under Sections 186 & 335 of

Indian Penal Code and four months for the offence punishable under

Section 332 of the Indian Penal Code. The petitioners thereafter, also

preferred an appeal against their conviction by order dated 26th March,

1988 being Criminal Appeal No.70/1985 which was partly allowed and

the sentence of four months under Section 332 of the Indian Penal code

was modified to imprisonment for three months. However, the sentence

of three months for the offences punishable under Sections 186 & 335

of the Indian Penal code was maintained.

3. Pursuant to their conviction, the petitioners were dismissed from

the service by order dated 24th March, 1986 w.e.f. 15th March, 1986.

The order of dismissal was, however, superseded by another order

dated 4th October, 1986, on account of a settlement arrived at between

the Union and the respondents, whereby instead of dismissal from

service, the petitioners were deemed to have been placed under

suspension w.e.f. 15th March, 1986 till further orders.

4. Meanwhile the petitioners had also filed a revision petition being

Criminal Revision No.76/1986 on 17th March, 1988 against the order

passed in the criminal appeal No.70/1985 modifying their sentence to

three months for all the offences under Sections 332, 335 & 186 of the

Indian Penal Code had. In the said criminal revision petition, the

sentence was suspended by order dated 1st April, 1986 though the

criminal revision petition remained pending in the High Court. The

criminal revision petition was finally decided on 29th May, 2007 holding

that it would be appropriate to explore the possibility of placing the

petitioners on probation. Consequently, the notices were issued to the

probationer officers. Considering the various relevant factors, the Court

had granted the benefit of probation to the petitioners under the

provisions of the Probations of Offenders Act, 1958 and the petitioners

were released on probation for a period of six months by order dated

29th May, 2007.

5. On being granted probation the petitioner filed their

representations before the Deputy Director, Horticulture requesting for

their reinstatement in their services with full back wages. The

petitioners even followed up their representations with legal notices to

the respondent no.1 on 9th March, 2009, who thereafter received a reply

dated 17th April, 2009 from the respondents stating that their

reinstatement would not be possible.

6. Since the suspension of the petitioners had continued for a long

time, they challenged their continued suspension by filing an original

application being OA No.1328 of 2010, titled as „Hukum Singh v.

Central Public Works Department‟, contending inter-alia that since they

had been released on probation, they should be reinstated in service

instead of still continuing under suspension and receiving subsistence

allowances. It was further contended that even though the respondents

had withdrawn their dismissal, however, even after a lapse of 27 years,

they were neither being reinstated in the service nor were any

departmental proceedings initiated against them, without any justifiable

reason.

7. Before the Tribunal, the application was contested by the

respondents on the ground that the application is barred by limitation

besides other pleas that the application was not in accordance with the

rules and that the Central Public Works Department could not be sued

through the Deputy Director, Horticulture.

8. The respondents had also disclosed that the petitioners are still

under suspension and that they are in the habit of breaking the

conduct rules and Govt. directions. It was also pointed out that one of

the petitioners had even contested the Lok Sabha Election as a

candidate of a political party and consequently had violated the

provisions of the CCS(Conduct) Rules, 1964. The respondents further

disclosed that the Deputy Director, Horticulture had already

recommended the dismissal of the petitioners by letter bearing

No.10(15)/86/HSD/EWC/126 dated 2nd August, 2000.

9. The Tribunal while considering the pleas and contentions of the

parties noted that the order of dismissal was changed to that of deemed

suspension w.e.f. 15th March, 1986 as per an agreement arrived

between the Central P.W.D., Mazdoor Union and the Director and

Directorate General of Works, Central P.W.D., New Delhi. The order

dated 4th October, 1986 reads as under:-

"In supersession to this office order No. 10(15)/86/HSD/1468-74 dated 24.3.86, Shri Karan Singh, S/o Shri Lal Singh, Mali deem to have suspended from the date of his dismissal from service i.e. 15.3.86 and will be remain under suspension till further order.

These orders are issued as per agreement arrived between Central P.W.D., Mazdoor Union and Director and Directorate General of Works, Central P.W.D., New Delhi. Communicated to this office vide his officer Memorandum No.9/10/85-EC-V dated 12.9.86."

10. The Tribunal also noticed that after the suspension order dated

4th October, 1986, no disciplinary proceedings were initiated against the

petitioner. Rather the subsistence allowances had been paid to the

petitioners for a period of 25 years without taking any work from them.

The Tribunal also observed that despite the recommendation by the

Deputy Director, Horticulture on 2nd August, 2000 recommending the

dismissal of the petitioners, some of the officers of the department had

extended undue favor/benefit to the petitioners and connived with them

whereby their suspension had been continued and the subsistence

allowance was also paid to them continuously.

11. In the circumstances, in view of Sub Rule (vii) of Rule 10 of the

CCS (CCA) Rules, 1965, the suspension of the petitioners for indefinite

period was set aside by the Tribunal. However, as the petitioners had

not challenged their suspension for about 25 years, nor had they

disclosed any grounds or sufficient cause for not challenging their

suspension for 25 years even in their original application and also

noticing the fact that they continued getting the subsistence allowances

for their entire period of suspension, it was directed by the Tribunal

that the petitioners be reinstated. However, the back wages were

declined to them, but the benefit of computing the suspension period as

the period spent on duty for the purpose of pensionary benefit was

given to the petitioners.

12. The Tribunal has also directed the Secretary, Ministry of Urban

Development to probe into the matter and fix the responsibility upon

the officers who were responsible for the payment of the subsistence

allowance to the petitioners for the period of about 25 years without

taking any work from them.

13. The petitioners have challenged the non-payment of the entire

back wages to them by the impugned order of the Tribunal in the

present writ petition on the ground that there was no fault on their part

and that it was the duty of the respondents to have revoked their

suspension. Though in the writ petition, the petitioners did not plead

specifically that they were entitled for full back wages under

Fundamental Rule 54-B, however, the learned counsel for the

petitioners has contended the same during the course of the arguments.

Learned counsel for the petitioners, Mr.A.K.Bajpayee, also relied on a

decision of this Court in the matter of Hira Lal v. DDA & Ors., 1995 (2)

AD (Del) 466.Reliance has also been placed on Jaipur Vidyut Vitran

Nigam Ltd. & Ors. v. Nathu Ram, 2010 (1) SCC 428.

14. Fundamental Rule 54-B contemplates that when a Govt. servant

is reinstated then the competent authority who ordered the said

reinstatement shall consider and make a specific order regarding the

pay and allowance to be paid to the Govt. servant for the period of

suspension ending with the reinstatement and also determine whether

or not such period should be treated as spent on duty. Sub Rule (3) of

the said Rule contemplates that when the competent authority who

ordered the reinstatement is of the opinion that suspension was wholly

unjustified, subject to sub Rule (8), such an employee may be paid the

full pay and allowance to which he would have been entitled had he not

been suspended. The said rules also contemplates that if the reinstating

authority is of the opinion that if the proceedings had been delayed due

to reasons directly attributable to the Govt. servant, it may after giving

an opportunity to such an employee and after considering his

representation, pass such order for such amount, not being the whole

amount as it may determine.

15. Rule 54-B of the Fundamental Rules is as under:

"F.R. 54-B. (1) When a Government servant who has been suspended is re-instated or would have been so re-instated but for his retirement on superannuation while under suspension, the authority competent to order re- instatement shall consider and make specific order-

(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with re-instatement or the date of his retirement on superannuation, as the case may be, and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Notwithstanding anything contained in rule 53, where a Government servant under suspension dies before the disciplinary or court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.

(3) Where the authority competent to order re-instatement is of the opinion that the suspension was wholly unjustified, the Government servant shall subject to the

provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled had he not been suspended:

Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reason directly attributable to the Government servant it may, after giving him an opportunity to make his representation[within 60 days from the date on which the communication in this regard is served in him] and after considering the representation, if any, submitted by him direct, for reasons to be recorded in writing that the Government servant shall be paid for the period of such delay only such [amount (not being the whole)] of such pay and allowances as it may determine.

(4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.

(5) In cases other than those falling under sub-rules (2) and (3) the Government servant shall subject to the provisions of sub-rules (8) and (9) be paid such [amount (not being the whole) of the full pay and allowances] to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period [which in no case shall exceed sixty days from the date on which the notice has been served as may be specified in the notice.

(6) Where suspension is revoked pending finalisation of the disciplinary or court proceedings, any order passed under sub -rule (1) before the conclusion of the proceedings, against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5) as the case may be.

(7) In a case falling under sub-rule (5) the period of suspension shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose:

Provided that if the Government servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.

Note.- The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of-

(a) extraordinary leave in excess of three months in the case of temporary Government servants; and

(b) leave of any kind in excess of five years in the case of permanent or quasi-permanent Government servant.

(8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.

(9) The amount determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under rule 53."

16. Perusal of the above mentioned rule reflects that the Govt.

servant whose suspension is revoked is not entitled to get full back

wages on reinstatement under the said rule as an absolute right. The

rule contemplates giving a notice to the Govt. employee and considering

his representation regarding the claim for full back wages and

thereafter, the competent officer to pass an order in writing giving

reasons as to why such amount is payable to the Govt. servant, if not

the whole amount, as may be deemed fit and proper in the facts and

circumstances.

17. The Tribunal has considered the case of the petitioners and has

also considered the fact that the petitioners have not disclosed any

cogent reasons as to why they did not challenge their suspension for

almost 25 years and continued to get subsistence allowance without

doing any work and without any whisper or protest regarding the

violation of any right. Rather one of the petitioners even contested the

Elections to the Lok Sabha. Though the respondents have contended

that contesting the Election by one of the petitioners, was in violation of

the provisions of CCS(Conduct) Rules, 1964, however, this Court does

not have to adjudicate whether or not contesting the Lok Sabha

Elections by one of the petitioner when under suspension was in

violation of CCS(Conduct) Rules, 1964 or not, since in the present writ

petition none of the parties have canvassed this point before this Court

during the arguments.

18. Considering the facts and circumstances, this cannot be disputed

that in restricting the claim for back wages what is contemplated is the

consideration of the representation of the suspended employee and an

order in writing giving reasons for not allowing the full back wages if

that is the case. The Tribunal has held that the petitioners have not

disclosed any cogent reasons for not challenging their continued

suspension, while they recovered their subsistence allowance for 25

years. Neither in the petition, nor before this Court during the

arguments, has the learned counsel disclosed any grounds for not

challenging the suspension order for such a long period. Therefore the

only possible inference is that the petitioners were satisfied with the

subsistence allowance that they received for not doing any work. In the

circumstances, apparently, the petitioners are not entitled for full back

wages in accordance with the mandate and requirement of Rule 54-B of

the Fundamental Rules, nor have any such grounds been show by the

petitioners which would show any illegality, irregularity or perversity in

the order of the Tribunal declining them full back wages.

19. The precedents relied on by the petitioners are also

distinguishable and do not support the pleas and contentions of the

petitioners. In Jaipur Vidyut Vitran Nigam Ltd. (supra), the Supreme

Court dealt with Regulation 41 of the Rajasthan State Electricity Board

holding that when an employee who has been dismissed and thereafter

reinstated, the competent authority who made the order of

reinstatement shall consider the pay and allowances to be paid to the

employee for the period of his absence from duty. In the first instance,

the said Regulation 41 of Rajasthan State Electricity Board is not

applicable to the petitioners. In any case, the case of the petitioners for

the grant of full back wages has been considered by the Central

Administrative Tribunal in detail and a reasoned order has been passed

for denying the same. Consequently, on the basis of the ratio of the

Jaipur Vidyut Vitran Nigam Ltd. (supra), the petitioners are not entitled

to claim that they should be given full back wages.

20. Similarly, the decision of this Court in the case of Hira Lal (supra)

is also distinguishable and does not entitle the petitioner for full back

wages. In the instant case, the employee had sought quashing of order

dated 26th February, 1991 whereby the Delhi Development Authority

had declined to treat the period of suspension as period spent on duty

and also declined to give anything over and above the subsistence

allowance. In the instant case, the suspension of the employee was

revoked and he was reinstated on 25th July, 1989 without prejudice to

the contemplated disciplinary inquiry against him, however, no order

with regard to the payment of pay and allowance for the period of his

suspension was passed until February, 1991 when the representation

of payment of full pay and allowance was rejected. It was held that

Fundamental Rule 54-B does not permit a long and inordinate delay in

passing the order relating to the payment of pay and allowance to the

Govt. servant who is reinstated on revocation of his suspension. In the

case of the petitioners in the present writ petition their suspension was

revoked by the Tribunal by order dated 22nd September, 2011 and by

the same order their entitlement under Rule 54-B of the Fundamental

Rules has also been adjudicated. In the circumstances, it cannot be

held that there is any unreasonable delay in deciding whether the

period of their suspension until their reinstatement was to be treated as

period spent on duty. It has also been held that the petitioners are not

entitled for full back wages under Rule 54-B of Fundamental Rule. The

Division Bench in Hira Lal (supra) had rather clarified that it should not

be understood as holding that in every case where an order for payment

of pay and allowance is not passed as soon as an order of reinstatement

is made, the employee would be entitled to full pay and allowance

during the period of suspension. It was held that each case depends

upon its own facts and circumstances. In para 7 of the said judgment

the Court had held as under:-

"7. .............................I should, however, not be understood as holding that in every case when an order for payment of pay and allowances is not passed as soon as the order of reinstatement is made, the employee would be entitled to full pay and allowances during the period of suspension. Each case must depend upon its own facts and circumstances. I would also like to clarify that I am taking this view having regard to the peculiar facts and circumstances of the instant case namely that before his reinstatement, the petitioner remained suspended for more than six years without disciplinary proceedings having been commenced against him. The provisional decision to deny him the salary during the period of his suspension was taken after eighteen months of the order of reinstatement. Therefore, the competent authority acted illegally in directing that the petitioner will not be paid full pay and allowances for the period of suspension till the disciplinary proceedings are finalized. In view of the aforesaid discussion, the writ petition succeeds and the rule is made absolute. The respondents are directed to make full payment of pay and allowances to the petitioner to which he would have been entitled for the period between September 1, 1984 to July 25, 1989, had he not been suspended, after deducting the subsistence allowance received by him during the period of suspension. The payment to the petitioner will, however, be without prejudice to the disciplinary enquiry which has been initiated against him."

21 For the foregoing reasons and in the totality of the facts and

circumstances of the case, the petitioners have not been able to show

any illegality, irregularity or perversity in the order of the Central

Administrative Tribunal dated 22nd September, 2011 declining the full

back wages to the petitioners except the subsistence allowance already

paid to them and holding that the period of suspension shall be treated

as the period spent on duty, which requires any interference by this

Court in exercise of its jurisdiction under Article 226 of the Constitution

of India. The writ petition is without any merit and therefore, it is

dismissed.

ANIL KUMAR, J.

J.R.MIDHA, J.

January 31, 2012 vk