Delhi High Court
Jagdish Chander vs Government Of Nct Of Delhi And Ors. on 17 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 17.09.2014
% W.P.(C.) No. 3288/2014
JAGDISH CHANDER
..... Petitioner
Through: Mr. Shekhar Kumar, Advocates.
versus
GOVERNMENT OF NCT OF DELHI AND ORS
..... Respondents
Through: Mr. Amiet Andlay, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The petitioner has preferred the present writ petition under Article 226
of the Constitution of India to assail the order dated 16.01.2014 passed by
the Central Administrative Tribunal (CAT/Tribunal) in O.A. No.1228/2013,
whereby the said application was dismissed by the Tribunal. The issue that
arose for consideration before the Tribunal was whether the respondent was
justified in treating the period during which the petitioner/applicant
remained under suspension, i.e. between 12.10.1999 to 15.05.2000, as "not
spent on duty". The case of the petitioner was that the said period could not
be treated as "not spent on duty", as sought to be done by the respondent.
2. Briefly, the facts are that the petitioner - while posted as a Clearing
Officer in the Immigration Department at Indira Gandhi Airport was alleged
to have misbehaved with a senior lady officer on 11/12.10.1999.
Accordingly, he was immediately placed under suspension on 12.10.1999.
On the very next day, i.e. 13.10.1999, a regular departmental enquiry was
initiated against the petitioner. On 15.03.2000, the enquiry officer submitted
his enquiry report. On 15.05.2000, the disciplinary authority, while re-
instating the petitioner into service, inflicted the punishment of
withholding/stoppage of five years increment with cumulative effect. He
also directed that the period of suspension i.e. from 12.10.1999 to
15.05.2000 be treated as "not spent on duty".
3. The petitioner preferred a departmental appeal and the punishment
was reduced to withholding of increments for two years with cumulative
effect. The appellate authority did not interfere with the order of the
disciplinary authority treating the suspension period as "not spent on duty".
4. The petitioner assailed the punishment orders in O.A. No.2632/2001.
The same was disposed of on 22.09.2011, requiring the respondents to
reconsider the quantum of punishment. The respondent no.3, Deputy
Commissioner of Police, passed a fresh order on 16.12.2011, maintaining
the punishment as imposed by the appellate authority earlier. The petitioner
again preferred an appeal against the order dated 16.12.2011. The appellate
authority, on this occasion, passed a fresh order dated 23.04.2012, thereby
reducing the punishment to withholding/stoppage of one increment for a
period of one year with cumulative effect. The period of suspension was
again directed to be treated as "not spent on duty". This led the petitioner to
prefer O.A. No.1228/2013, wherein the petitioner assailed the punishment
orders dated 16.12.2011 and 23.04.2012. As aforesaid, the Tribunal rejected
the original application.
5. From the impugned order, it appears that the petitioner only pressed
the original application to claim that the period of suspension between
12.10.1999 and 15.05.2000 be treated as spent on duty. The petitioner had
sought to place reliance on Rule 27 of the Delhi Police (Punishment &
Appeal) Rules, 1980 to contend that the period of suspension should have
been treated as spent on duty. The said Rule reads as follows:
"27. Suspension in departmental cases - A police officer
whose conduct is under departmental enquiry shall ordinarily
be placed under suspension only:-
(a) When it appears likely that the charge framed will, if
proved, render him liable to dismissal or removal from
service, or
(b) When the nature of accusation against him is such that his
remaining on duty is prejudicial to the public interest or
detrimental to investigation into the accusations. A report
of all suspensions and re-instatements shall be submitted to
the Additional Commissioner of Police and other concerned.
(c) When a punishment of dismissal or removal from service
awarded to a police officer under suspension is set aside, in
appeal under these Rules and the case is remained for
further enquiry or action, or with any other directions, the
order of his suspension shall be deemed to have been
revoked.
(d) When a police officer of subordinate rank, is kept under
suspension for more than 6 months in connection with a
departmental enquiry, the concerned Deputy Commissioner
of Police shall obtain prior approval of the Additional
Commissioner of Police for his continued suspension and
shall simultaneously take step to review the subsistence
allowance as provided in the relevant rules.
(e) Unnecessary suspension shall be avoided as they increase
the number of non affective personnel and also cause
hardship to such employee".
6. The Tribunal rejected the petitioners reliance on the said Rule by,
inter alia, observing:
"In the case of applicant, the penalty imposed upon him is not
minor but major penalty. The legal provision regarding
treatment of suspension period are enumerated in FR 54B. Sub
rule 1 of the said rule provides for making a specific order
regarding the pay and allowance to be paid to the Government
servant for the period of suspension ending with his
reinstatement or the date of retirement (including premature
retirement), as the case may be and also regarding treatment of
suspension period. Sub rule 2 provides for the fate of
suspension period in the event of death of the employee before
conclusion of the disciplinary proceedings. Sub rule 3 and 4 of
said rules, provide for full pay and allowances and treatment of
suspension period as spent on duty in a case where the
authority competent to order reinstatement is of the opinion
that the suspension was fully unjustified. Sub rule 5 contains
the provision regarding the fate of suspension period in the
cases other than those falling under sub rules (2) and (3) (ibid).
The requirement of sub rules (3) and (5) is that the authority
competent to reinstate an employee needs to take the view (i)
whether the suspension period was justified or unjustified and
(ii) to give notice to the Government servant of the quantum of
proposed penalty, invite representation from the concerned
Government employee on the said proposal and to take a
decision. In the present case, the authority competent to
reinstate the applicant was required to take decision under FR
54 (3, 5 and 7). It is not in dispute that the applicant was given
a notice asking him to show cause as to why the suspension
period should not be treated as not spent on duty. It is not clear
whether the applicant could make any specific representation
espousing his stand regarding treatment of intervening period,
before the competent authority. The representation filed by the
applicant on 03.01.2004 is the representation against the order
dated 14.03.2000. In the present case what is under challenge
is not the order dated 14.03.2000 but the orders dated
13.12.2011 and 02.04.2012. Though in the circumstances, we
could have directed the concerned authority to find out whether
the applicant had given any reply to the notice whereby he was
asked to show cause that why the period of suspension should
not be treated as not spent on duty as prescribed under Rule 54
(3, 5 and 7), but we find that in the order dated 15.05.2000, a
decision had been taken to treat the suspension period as not
spent on duty. For easy reference, relevant excerpt of said para
is extracted herein below:-
"I, therefore, order to stop his increment for a
period of 5 years with cumulative effect. He is
also reinstated from suspension with immediate
effect and his suspension period from 12.10.99 to
date is treated as not spent on duty".
The said order was under challenge in OA 2632/2001. The
Tribunal declined to interfere with the same and issued only
limited direction to respondents to reconsider the quantum of
punishment imposed upon the applicant. The said direction
could be carried out at least by the appellate authority in as
much as it reduced the punishment of withholding of increment
for two years with cumulative effect imposed upon the applicant
by the disciplinary authority to that of withholding of increment
for one year with cumulative effect. Though at the outset,
learned counsel for the applicant himself pressed only for
issuance of direction to respondents to treat the suspension
period as spent on duty, but even otherwise also we are of the
view that in OA 2632/2001, this Tribunal had declined to
interfere with the penalty order and dismissed the original
application. In view of the said decision of the Tribunal, it is
not open to us to examine the correctness of the decision
making process followed by respondents in imposing the
penalty upon the applicant and treating the intervening period
of service (suspension) as not spent on duty".
7. The Tribunal also rejected the petitioners contention that the quantum
of punishment was excessive, by holding that it cannot be said that the said
penalty was disproportionate to his misconduct. The petitioner had been
found to have misbehaved with a superior lady officer.
8. By reference to Rule 27, learned counsel for the petitioner submits
that in the light of the charge levelled against the petitioner, it could not be
said that there was likelihood of the petitioner being dismissed or removed
from service. He submits that it was not a case where it could be said that
the accusation against the petitioner was such that the petitioners
continuation on duty could be said to be prejudicial to public interest, or
detrimental to the investigation into accusations. He submits that, therefore,
the initial suspension of the petitioner was bad in law. Consequently, the
period of his suspension had to be treated as spent on duty.
9. Having heard learned counsel for the petitioner and perused the
impugned order, we are of the view that there is no merit in this petition.
Rule 27 deals with circumstances in which a delinquent police officer may
be suspended and the circumstances in which the suspension would stand
revoked. It also deals with the manner in which the continued suspension of
a police officer would be dealt with. It does not, however, deal with a
situation, where the delinquent is suspended in contemplation of a major
penalty enquiry; or where the delinquent is inflicted with a major penalty
though not dismissal, removal or compulsory retirement, and his suspension
revoked.
10. Obviously, the respondent could not have prejudged the issue whether
the petitioner would eventually be found guilty, and if so, the quantum of
penalty that he may be subject to. The charge against the petitioner was of
misbehaviour with a senior woman officer. There is nothing to suggest that
such a charge could not have resulted in the petitioners eventual removal or
dismissal from service. Pertinently, the eventual penalty imposed upon the
petitioner was a major penalty. Rule 27, therefore, had no application in the
facts of the present case. Merely because the penalty may have been
reduced from withholding/stoppage of increment for a period of five years
with cumulative effect - as originally awarded on 15.05.2000, to stoppage of
one increment for a period of one year with cumulative effect - as
eventually awarded on 23.04.2012, it does not follow that the period of
suspension was also liable to be regularised as spent on duty.
11. Learned counsel for the petitioner placed reliance on O.M. dated
03.12.1985 issued by the Department of Personnel and Training, Govt. of
India. The said O.M. entitles the delinquent, who has been placed under
suspension during the pendency of the departmental proceedings, to have the
suspension period treated as spent on duty when the penalty imposed is a
minor penalty. As noticed by the Tribunal, the said O.M. has no application
in the facts of the present case, since penalty imposed upon the petitioner
was a major penalty and not a minor penalty.
12. It is also pertinent to note that - as noticed by the Tribunal as well,
that the issue raised by the petitioner was not open for consideration since
the same has been closed with the dismissal of O.A. No.2632/2001. While
disposing of the said O.A. of the petitioner, the Tribunal had declined to
interfere with that part of the penalty order, whereby it had been directed
that the period of suspension be treated as not spent on duty. The limited
direction issued by the Tribunal was to reconsider the quantum of
punishment imposed upon the petitioner.
13. For the foregoing reasons, we find absolutely no merit in this petition
and dismiss the same.
VIPIN SANGHI, J
S. RAVINDRA BHAT, J
SEPTEMBER 17, 2014
sr
