Sudhir Kumar vs Government Of Nct Of Delhi & Anr
2017 Latest Caselaw 1892 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                   Decided on: 19.04.2017

+      W.P.(C) 1316/2017
       SUDHIR KUMAR                                        ..... Petitioner

                          Through:    Mr. Asish Nischal and Mr. Arun
                                      Nischal, Advocates

                          versus

       GOVERNMENT OF NCT OF DELHI & ANR                  ..... Respondents

Through: Mr. Siddharth Dutta and Mr. Mukul Lather, Advocates CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MS. JUSTICE DEEPA SHARMA

HON'BLE MS. JUSTICE DEEPA SHARMA (ORAL)

1. Vide this writ petition, the petitioner has challenged the order of

Central Administrative Tribunal (CAT) dated 19.08.2016, whereby while he

was ordered to be reinstated, the backwages were denied to him.

2. The brief facts of the case are that the petitioner was employed in the

office of Labour Commissioner as LDC. He was charged with demand of

Rs.1000/- as bribe money from Ajay Kumar Gupta, S/o Suraj Bhan for

issuing a recovery certificate to him. Since he was found to have committed

grave misconduct during his employment, a Departmental Enquiry ensued

WP(C) No.1316/2017 Page 1 under CCS (Classification, Control & Appeal) Rules, 1965 (hereinafter

referred to as "the CCS (CCA) Rules"). A chargesheet containing the

following charges was served upon him:-

"On 09/12/2003, Sh. Sudhir Kumar S/o Sh. Katar Singh R/o, V&PO Kasim Pur Kheri, Thana Ramala, Distt. Baghpat, U.P., while working as LDC in Labour Commissioner Office (sic) at 5- Sham Nath Marg, Delhi demanded Rs.1000/- as bribe from one Sh. Ajay Kumar Gupta S/o Sh. Suraj Bhan Gupta, R/o 62, Krishna Kunj colony, Delhi for issuing him recovery certificate who was ex-employee in Delhi Automobiles, Jhandewalan Delhi and after his removal from service had won his case from labour court.

Sh. Sudhir Kumar indulged himself in corrupt practices and abused his official position.

Therefore, the above act committed by Sh. Sudhir Kumar, S/o Sh. Katar Singh, R/o V&PO Kasim Pur, Kheri, Thana, Ramala, Distt. Bhagpat (UP) in the capacity of government servant working as UDC at Labour Commissioner Office at 5, Sham Nath Marg, Delhi amount to gross misconduct lack of integrity and conducted himself in such a manner which is unbecoming of a Government Servant while discharging of his official duties which renders him liable for departmental action in violating the provision of Rule 3(1)(ii)(iii) of CCS (Conduct) Rules, 1964."

3. An FIR No.61/2003 was also registered against the petitioner and his

co-accused Dinesh Chand Gupta for the offences punishable under Section

7/13 of the Prevention of Corruption Act, 1988 and Section 120-B of the IPC

by Anti-Corruption Branch, Delhi. After completion of the investigation into

the FIR, the trial in the case begun. The Enquiry Officer, after recording and

WP(C) No.1316/2017 Page 2 appreciating the evidence, submitted his Enquiry Report dated 18.03.2013 in

the regular Departmental Enquiry (DE). Since the petitioner and his other co-

accused were convicted and sentenced to undergo RI for a period of two years

along with a fine of Rs.10,000/- each vide judgment of conviction and order

of sentence dated 11.05.2011 by the Special Judge, the DE was kept in

abeyance, however, a penalty of removal from service was imposed on the

petitioner vide order dated 3/4th October, 2012 by the Disciplinary Authority

in exercise of powers conferred under Rule 19(1) of CCS (CCA) Rules. The

petitioner had appealed against this order and his appeal was also dismissed

vide order dated 13.03.2013 by the Appellate Authority. Thereafter, the

petitioner filed the OA before the Central Administrative Tribunal,

challenging the order of dismissal on several grounds. The respondents

contested the matter before the CAT and vide impugned order dated

19.08.2016, the dismissal order of the petitioner was set aside and the

disciplinary authorities were given liberty to conclude the already initiated

regular Departmental Enquiry. While all the other consequential benefits

were awarded to the petitioner on setting aside the dismissal order, he was

denied the backwages on the principle of no work no pay, relying on the

findings in the case of Vijay Singh vs. Union of India, AIR 2007 SC 1384.

WP(C) No.1316/2017 Page 3 The petitioner has assailed the said denial of the backwages for the period of

his unemployment alleging that it was due to the act of the respondent that he

remained out of the service and since that act of the respondent was found

illegal, incorrect and was set aside, he ought to have been reinstated into the

service along with the full backwages. It is urged that it was not his fault that

he had remained unemployed. It is also urged that the findings in the case of

Vijay Singh (supra) are not applicable on the facts of this case. It has been

prayed by the petitioner that he be granted arrears of backwages and the

impugned order be modified to this effect.

4. In the present case, notice was issued to the respondents. Arguments

have been heard in the matter. During the course of arguments, the petitioner

has relied in support of his contention on the judgment of the Supreme Court

in Jasbir Singh vs. Punjab and Sind Ban and Ors. (2007) 1 SCC 566 and

Sanjay Kumar vs. Union of India and Ors. W.P.(C) No. 14126/2004,

decided on 23.04.2014 and argued that in these cases also the appellant was

involved in the criminal cases and on his acquittal when he was ordered to be

reinstated, he was denied the backwages.

5. Learned counsel for the respondent has submitted that both these cases

are distinguishable on the facts.

WP(C) No.1316/2017 Page 4

6. We have given our thoughtful consideration to the arguments of the

parties. The short issue involved in the present case is whether the petitioner

is entitled to the backwages on his reinstatement in the facts and

circumstances of this case. The Supreme Court has held in various

pronouncements, while considering the entitlement for backwages, that even

after punishment imposed on the employee is quashed by the Court or the

Tribunal, grant of backwages still remains discretionary. The entitlement for

the backwages on reinstatement, therefore, is not granted automatically and

depends on the facts and circumstances of each case and the Court has to

exercise its power to grant backwages keeping in view the facts of the case in

their entirety, and no straightjacket formula can be evolved for universal

application. Reliance is placed on P.G.I. of Medical Education and

Research, Chandigarh vs. Raj Kumar 2000 (8) SCALE 469 and Chairman-

cum-Managing Director, Coal India Ltd. & Ors. vs. Ananta Saha & Ors.

(2011) 5 SCC 142.

7. The short question for consideration, therefore, is whether the Tribunal

has exercised its discretion properly and judicially while refusing to grant

backwages while ordering the petitioners reinstatement. As discussed above,

the petitioner was involved in a bribery case and was convicted by the Trial

WP(C) No.1316/2017 Page 5 Court. On the basis of this conviction, although the departmental enquiry was

pending, the same was kept in abeyance and in exercise of powers conferred

under Rule 19(1) of CCS (CCA) Rules, the respondents terminated his

services. His services were ordered to be reinstated on the plea of the

petitioner before the Tribunal that his dismissal under Rule 19(1) of CCS

(CCA) Rules does not survive, in view of the fact that he had been acquitted

of the charges by the High Court vide its order dated 23.05.2016 in Crl.

A.No.656/2011 Taking note of this acquittal, the Tribunal passed the

impugned order. It was in these circumstances of the case that the Tribunal

denied the backwages to the petitioner, applying the principle of no work no

pay, as enunciated by the High Court in Vijay Singh (supra). The petitioner

has relied on Jasbir Singh (supra) in support of his claim for backwages.

The facts of Jasbir Singh (supra) are that Jasbir Singh was found to have

forged the signature of a depositor Rattan Singh and fraudulently

withdrawing a sum of Rs.25,000/-from the account of Rattan Singh. A

criminal case under Section 409/201 IPC was registered against him and he

was acquitted in the criminal case and his confession was also found to be

under coercion. The bank had also filed a suit for recovery of Rs.25,000/- in

the Civil Court and the Civil Court, after noticing the evidences brought on

WP(C) No.1316/2017 Page 6 record, held that the bank had failed to prove that the appellant had

withdrawn a sum of Rs.25,000/-. Allegations of embezzlement of the said

sum against the delinquent were not proved and, therefore, the bank was not

entitled to recover the said amount. The correctness of the said judgment was

not questioned by the bank, and the judgment attained finality. In the light of

the fact that the Civil Court found exonerated Jasbir Singh completely of the

commission of the offences of embezzlement, the Court found it fit to grant

him backwages. In the present case, the petitioner was convicted by the Trial

Court for the offences under Section 7/13 of the Prevention of Corruption

Act, 1988 and Section 120-B of the IPC and was only acquitted by the High

Court.

8. In Sanjay Kumar (supra), the backwages were given to the petitioner

in the facts and circumstances of that case. In that case, Sanjay Kumar was

dismissed on account of overstay of his leave which he was able to explain

reasonably. The Court while reinstating him found that he sufficiently

explained reasons of his overstay of leave. The backwages in this case were

given on entirely different set of facts and circumstances.

9. The case of the petitioner is, however, squarely covered by the facts in

the case of Ranchhodji Chaturji Thakore vs. Superintendent Engineer,

WP(C) No.1316/2017 Page 7 Gujarat Electricity Board, Himmatnagar, (Gujarat) and another (1996) 11

SCC 603. The facts of Ranchhodji Chaturji Thakore (supra) are akin to the

facts of this case in the sense that in Ranchhodji Chaturji Thakore (supra),

the petitioner was charged of a criminal case of a serious nature. He was

convicted by the Sessions Judge. After his conviction, his employer dismissed

him from service on the basis of the said conviction. He challenged the said

dismissal order by way of Special Leave Application filed under Article 226

of the Constitution. Subsequently, the petitioner was acquitted by the order of

the High Court and the learned Single Judge directed the respondent to

reinstate him into service with continuity of the service, but denied the

backwages. The petitioner challenged the denial of the backwages and took

the same plea which the petitioner before us has taken. The relevant

paragraph of the said judgment is reproduced as under:-

"3. The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is: whether he is entitled to back wages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basic of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes

WP(C) No.1316/2017 Page 8 relevant. Each case requires to be considered in its own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned single judge and the Division Bench have not committed any error of law warranting interference."

10. The registration of the case against the petitioner under Section 7/13

of Prevention of Corruption Act and Section 120 B of the IPC was not

baseless. In fact, he was not only charge sheeted, but also convicted by the

Trial Court. Thus, the dismissal of the petitioner from service was justified

under Rule 19(1) of the CCS (CCA) Rules when it was taken.

11. From the above discussion, it is apparent that the Tribunal has

exercised its discretion judicially while denying the backwages to the

petitioner. The order needs no interference.

The writ petition has no merit and the same is dismissed.

DEEPA SHARMA (JUDGE)

VIPIN SANGHI (JUDGE)

APRIL 19, 2017 BG

WP(C) No.1316/2017 Page 9