Delhi High Court

Ajay Kumar Bhardwaj vs Dtc And Ors on 3 March, 2015

Author: I. S. Mehta

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                      Judgment delivered on: March 3, 2015

%      W.P.(C) No. 7577/2012


       AJAY KUMAR BHARDWAJ                      ..... Petitioner
                   Through: Dr. L.S. Chaudhary & Ms. Pratibha
                            Gupta, Advs.

                           versus

       DTC AND ORS                                       .....Respondents
                           Through:     Mrs. Avnish Ahlawat, Adv.

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE I.S.MEHTA

                                    JUDGMENT

I. S. MEHTA, J.

1. Aggrieved from the order of the Central Administrative Tribunal,

Principal Bench, New Delhi (hereinafter referred to as „Ld. CAT‟) dated

28.09.2012 in O.A. No. 1167 of 2012, the petitioner has preferred the

present writ petition under Articles 226 and 227 of the Constitution of

India for setting aside the aforesaid order and for issuing necessary

directions to the respondent.

2. The brief facts of the case are that the petitioner Sh. Ajay Kumar

Bhardwaj was appointed at Delhi Transport Corporation (DTC) as

Assistant Fitter on 11.04.1983. During the aforesaid employment of

petitioner with respondent No. 1 i.e. Delhi Transport Corporation, at Hari

Nagar Depot, an FIR No. RC 1(A) /94, PS/CBI/ACB/ND was registered

against the petitioner along-with other co-accused namely Lala Ram,

Suresh Lata, S.P. Grover, Gulshan Rai, Sobhraj Jai Singhani, Amarnath,

R.B. Dubey, Jai Prakash, Susheel Kumar, Sarwan Kumar and R.B.

Chaubey wherein it was alleged that they were involved in a racket of

cheating, and defrauding MTNL to the tune of Rs. 67,20,000/-. After the

investigation, the charge-sheet against the petitioner along with the co-

accused persons were filed before the concerned Court i.e. Court of Sh.

Pradeep Chaddah, Special Judge (CBI-01), Delhi. The aforesaid Court

after following the due process of law, convicted the petitioner and

sentenced him to undergo RI for three years for substantive offence u/s

420 IPC along with a fine of Rs. 20,000/-. In case of default of payment

of fine, he shall to undergo SI for a further period of one year. He was

further sentenced to RI of two years and a fine of Rs. 10,000/- for

substantive offence under section 13(2) r/w 13(1)(d) of the Prevention of

Corruption Act. In case of default of payment of fine, he shall to undergo

SI for a further period of six months. He was also sentenced to RI of two

years and a fine of Rs. 10,000/-. In case of default in payment of fine, he

shall to undergo six-month SI for offence u/s 120-B of the IPC r/w 420

IPC and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.

3. The petitioner aggrieved by the judgment dated 02.08.2010 and

order of sentence dated 04.08.2010 filed a criminal appeal before the

Bench dealing with the Criminal Jurisdiction (Crl. Appeal No. 987/2010)

challenging the conviction which is still pending before the aforesaid

Bench. The aforementioned Bench declined to suspend the sentence of

the petitioner during pendency of the Criminal Appeal. The petitioner

thereafter approached the Hon‟ble Supreme Court for grant of bail and

the Hon‟ble Supreme Court vide order dated 15.11.2010 granted him

interim bail.

4. After securing his interim bail from the Hon‟ble Supreme Court,

the petitioner sought permission from respondents to join his duty which

was not allowed. However, the respondents after issuing a show-cause

notice dated 17.01.2011 dismissed the petitioner from service vide order

dated 11.02.2011 which was passed by Respondent No. 3 (The Depot

Manager, Hari Nagar Depot). The petitioner‟s appeal against his

dismissal order was rejected vide order dated 04.05.2011 passed by

Respondent No. 2 (The Deputy C.G.M. (W), DTC Peera Garhi Depot).

Aggrieved from the same, the petitioner filed an O.A no.

1793/2011 before the learned Central Administrative Tribunal, Principal

Bench, challenging the order of dismissal dated 04.05.2011. The Ld.

CAT vide order dated 3.11.2011 directed the respondents to decide the

petitioner‟s appeal afresh within 3 months by a speaking and reasoned

order taking into account the regulation 10(d)(4) of D.R.T.A. (Conditions

of Appointment & Service) Regulation, 1952. Subsequently, Respondent

No. 2 vide order dated 24.02.2012 again dismissed the petitioner‟s

appeal.

Aggrieved from the same, the petitioner filed a fresh O.A

No.1167/2012 challenging the order dated 24.02.2012. The CAT vide

order dated 28.09.2012 declined to grant him any relief and aggrieved

from the same, the petitioner has filed the present writ-petition.

We have heard the learned counsel of the parties at length.

5. The learned counsel for the petitioner is claiming the parity

between the driver and assistant fitter vide Para 10(d)(4) of the of the

Executive Instructions dated 05.08.1955 (No.ADMI-3(18)/53) issued by

the Delhi Road Transport Authority. The learned counsel of the petitioner

has submitted that the services of the petitioner cannot be terminated by

the respondents as per the existing rules, till the outcome of the Criminal

Appeal No 987/2010 is decided.

6. We are afraid of accepting the contentions put forth by the learned

counsel of the petitioners. The rule relied upon by the petitioners i.e. Para

10(d)(4) of the of the Executive Instructions dated 05.08.1955

(No.ADMI-3(18)/53) is reproduced herein under:

"The provisions of Paras (4) and (5) of the Office Order No. 201 dated the 24th November, 1954 in regard to the procedure for dismissal cases in which the D.T.S. employees are prosecuted while on duty, should be strictly followed. The provisions are reproduced below for ready reference:

4) The question of taking departmental action against an employee convicted by Court, will be taken up only after the employee's appeal has been decided by the Appellate Court. In cases where the employee does not file an appeal, the question of taking departmental question will be considered on the expiry of the period fixed for filing an appeal. If an employee, who has been convicted by a Court, desires to perform duty in this Organisation during the period between the decision of Lower Court and the Appellate Court, he will be put on such duties as might be considered suitably by the General Manager. If during this period he is unable to attend duty on account of lock-up etc., or otherwise desires to take leave he will be granted such leave including leave without pay as may be due to him, in accordance with the provisions of DRTA (Conditions of Appointment & Service) Regulations, 1952.

(5) The serious departmental action of termination of service will not be taken against a driver if he convicted by the Court for an offence which is committed by him for the first time during his service in this Organisation. This conviction will, however, be taken into action while deciding the nature of departmental action to be taken against him for a subsequent offence. No departmental action will be taken against a driver, who is convicted in an offence which is due to some defect or lack of some equipments in a bus."

Further the Executive Order 201 (No. ADMI-8/(1)54 dated

24.11.1954 is also reproduced hereinunder:

DELHI ROAD TRANSPORT AUTHORITY SCINDIA HOUSE, NEW DELHI ANNEXURE P-3

No. ADMI-8 (1)/54 Dated the 24th November,

Sub:- Procedure for disposal of cases in which D.T.S employees are prescribed while on duty. (Underlining Supplied)

The following instructions are issued for the information and guidance of staff:-

(1) Legal defence will continue to be provided by the Management in all cases up to the Lower Court in accordance with the practice as at present.

(2) In cases where drivers are challaned on account of some defects or absence of some equipments in buses, legal defence will be provided upto and including the appeal stage. Where a driver is merely fined in such cases, it will be within the discretion of the management to allow the employee to go to the Higher Court or not.

(3) Fines imposed upon drivers in challan cases on account of some defects or lack of some equipments in buses, will be paid on the spot by the Management through the Traffic Superintendent or Traffic Inspectors.

(4) The question of taking departmental action against an employee convicted by Court, will be taken up only after the employee's appeal has been decided by the Appellate Court. In cases where the employee does not file an appeal, the question of taking departmental question will be considered on the expiry of the period fixed for filing an appeal. If an employee, who has been convicted by a Court, desires to perform duty in this Organisation during the period between the decision of Lower Court and the Appellate Court, he will

be put on such duties as might be considered suitably by the General Manager. If during this period he is unable to attend duty on account of lock-up etc., or otherwise desires to take leave he will be granted such leave including leave without pay as may be due to him, in accordance with the provisions of DRTA (Conditions of Appointment & Service) Regulations, 1952. (Emphasis Supplied) (5) The serious departmental action of termination of service will not be taken against a driver if he convicted by the Court for an offence which is committed by him for the first time during his service in this Organisation. This conviction will, however, be taken into action while deciding the nature of departmental action to be taken against him for a subsequent offence. No departmental action will be taken against a driver, who is convicted in an offence which is due to some defect or lack of some equipments in a bus."

Sd/-

B.K. LALL GENERAL MANAGER

7. The above Para 10(d)(4) of the aforesaid Executive Instructions

have been incorporated verbatim from Para 4 of the Office Order No. 201

(No. ADMI-8(1)/54) dated 24.11.1954 issued by the Delhi Road

Transport Authority. The aforesaid provisions deal with the acts of

employee "while on duty". The question that arises in the present case is

what the phrase - "while on duty" denotes. "While on duty" means an

employee who is discharging his official duty as per permissible rules by

which he is regulated under the employment of the respondents.

Therefore, the whole dispute in the present case hinges around,

whether the act of the petitioner for the conviction under u/s 120-B r/w

420 of the Indian Penal Code, 1861, section 13(2) r/w 13(1)(d) of the

Prevention of Corruption Act, 1988 was committed "while on duty".

8. The Office Order 201 (No. ADMI-8 (1)/54) dated 24.11.1954

dealing with situations where the D.T.S employees are prosecuted "while

on duty" is further clarified by the subsequent Office Order (No. ADMI-3

(18)/53) dated 05.08.1955. The Office Order 201 and the subsequent

Office Order dated 05.08.1955 are not distinct rather, both the provisions

are interlinked and applicable in cases where a DTS employee is

convicted by the Lower Court "while on duty".

The bare perusal of Office Order 201 dated 24.11.1954 makes it

clear that it lays down procedure to be followed in dealing with situations

where drivers met with an accident during discharge of his/their duties.

The aforesaid Office Order does not relate to a situation where an

employee is on official duty and doing criminal acts which is without the

preview of its official duty.

While taking a glance of the aforesaid Office Orders, it is crystal

clear that the orders were framed for dealing with the employees who

were prosecuted while on duty and it has nothing to do with any kind of

the criminal acts which may be undertaken by the employees beyond the

scope of their official duties. Admittedly, the present petitioner is not a

driver/employee and acts committed by him which led to his conviction

were neither connected with his official business nor were his acts arising

out of his official discharge of duties.

The allegation, though not attained finality between the parties

against the petitioner is that he entered into conspiracy with other co-

accused persons and succeeded in committing cheating thereby

defrauding MTNL. This criminal act has nothing to do with his official

duty therefore it cannot be said that his said criminal act was arising out

of his official duty.

Reliance in this regard may be placed on the decision of the Privy

Council in the case of H.H.B. Gill and Anr. v. The King, AIR 1948 PC

128. The relevant part of the Para 30 is reproduced below:

"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office."

9. The petitioner was convicted on 02.08.2010 and sentenced vide

order dated 04.08.2010 to undergo RI for three years for substantive

offence u/s 420 IPC along with a fine of Rs. 20,000/-. In case of default of

payment of fine, he shall undergo SI for a further period of one year. He

was further sentenced to RI of two years and a fine of Rs. 10,000/- for

substantive offence under section 13(2) r/w 13(1)(d) of the Prevention of

Corruption Act. In case of default of payment of fine, he shall undergo SI

for a further period of six months. He was also sentenced to RI of two

years and a fine of Rs. 10,000/-. In case of default in payment of fine, he

shall undergo six-month SI for offence u/s 120 -B of the IPC r/w 420 IPC

and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. The

petitioner was admitted to interim bail by the Lower Court to enable him

the file an appeal before the Bench dealing with criminal jurisdiction

within one month from the date of passing of the order. The petitioner

preferred an appeal being Criminal Appeal No. 987/2010 before this

Court‟s Bench dealing with Criminal Jurisdiction and the aforementioned

Bench declined to suspend the sentence of the petitioner during pendency

of the aforesaid criminal appeal and the petitioner was sent to receive the

sentence for the above-mentioned offence. As per the petitioner, he was

subsequently released on interim bail by the Hon‟ble Supreme Court of

India which does not ipso facto give him any right to claim his innocence.

Here, we are of the considered view that the conviction of the

petitioner‟s sentence shall not be obliterated irrespective of whether the

Appellate Court grants him interim bail. The order of conviction shall

continue unless it is set aside by the Appellate Court. Any action taken

against the government servant for misconduct which led to his conviction

does not cease to be effective on granting of interim bail.

Reliance may be placed on judgment in the case titled as Union of

India v. Ramesh Kumar, AIR 1997 SC 3531. It is not out of place to

mention here that the conviction and order on sentence has not obliterated

by mere granting of the bail by the Hon‟ble Supreme Court unless his

conviction is set aside. Therefore, it does not give the petitioner any right

to resume his duties as he wishes.

10. Instance is the case of petitioner/convict where the petitioner is

trying to seek the benefit of the aforementioned Office Order 201 (ADMI-

8 (1)/54) dated 24.11.1954 and Office Order dated 05.08.1955 ignoring

the Article 311 (2) of the Constitution of India which definitely would not

be help to the petitioner/convict. Article 311 (2) of the Constitution of

India is reproduced hereinunder:

"Article 311- Dismissal, removal, or reduction in rank of persons employed in civil capacities under the Union of a State.-

"...(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

[Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: