Jaibir Singh Sehrawat Alias ... vs Govt. Of Nct Of Delhi & Anr.
2022 Latest Caselaw 3073 Del

                                                                      Citation Number 2022/DHC/005105




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                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                               Date of Decision:- 23.11.2022
                          +    W.P.(C) 12257/2022
                               JAIBIR SINGH SEHRAWAT ALIAS JAIBIR SHERAWAT
                                                                               ..... Petitioner
                                                Through: Mr.Rakesh Dahiya, Adv.

                                                  versus
                               GOVT. OF NCT OF DELHI & ANR.
                                                                                     ..... Respondents

                                                  Through:     Mr.Divyam Nandrajog with
                                                               Mr.Mohd. Shahid Khan, Advs. for R-

                                                               Mr.Parvinder Chauhan and Mr.Sushil
                                                               Dixit, Advs. for R-2/DUSIB
                                                               Mr.Prakash Deep, Legal Asstt.
                                                               DUSIB

                              CORAM:
                              HON'BLE MS. JUSTICE REKHA PALLI
                           REKHA PALLI, J (ORAL)

1. The petitioner, who was employed with the Slum & JJ Department, Municipal Corporation of Delhi (MCD) on the post of Junior Engineer (Civil) since 2000, and was thereafter working on a diverted capacity with the respondent no.2 /Delhi Urban Shelter Improvement Board (DUSIB), has approached this Court seeking the following reliefs:

(a) Issue a writ, order or direction especially in the nature of mandamus directing the Respondent No.2 to reinstate the Petitioner to his service with all consequential benefits; and

(b) Issue such further appropriate writ/order/direction as this Hon'ble Court may be deem fit and proper in facts and circumstances of the case.

Signature Not Verified

By:GARIMA MADAN Signing Date:24.11.2022 18:25:32 Citation Number 2022/DHC/005105

2. The brief factual matrix, as emerging from the record is that while the petitioner was working with the respondent no.2, an FIR under Section 120B/201/218/465 IPC read with Sections 7/8/12/13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (PC Act) was registered against him by the CBI, on 20.05.2009. Upon a charge-sheet having been filed against him on 23.12.2009, the petitioner was under rule 10(1)(b) of the CCS(CCA) Rules, placed under suspension w.e.f. 10.02.2011 by the respondent no.2. On 03.05.2016, the petitioner‟s suspension was considered by the Suspension Review Committee (SRC), who decided that he be re-instated in service, pending the criminal case against him.

3. However, before this order revoking his suspension could be communicated to the petitioner, he alongwith five co-accused, came to be convicted under Sections 120B IPC read with Sections 7/12/13(1)(d) and 13(2) of the PC Act on 07.05.2016, and was thereafter, awarded a sentence of 5 years imprisonment by the learned Special Judge-03, CBI PC Act, New Delhi on 09.05.2016. The petitioner was, consequently, taken into custody on 20.07.2016 and was, therefore, again placed under "deemed suspension".

4. In the light of the petitioner‟s conviction, the matter was once again considered by the SRC of the respondent no.2, who decided to issue a show cause notice to him to seek his explanation as to why, owing to his conviction, he should not be dismissed from service, with a disqualification for future government employment. The petitioner‟s reply being found unsatisfactory, he was, on the basis of his conviction by the learned Trial Court, dismissed from service, vide order dated 12.01.2017 passed by the

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By:GARIMA MADAN Signing Date:24.11.2022 18:25:32 Citation Number 2022/DHC/005105

respondent no.2.

5. The petitioner assailed his conviction by way of a criminal appeal being Crl. A. No. 520/2016 before this Court. On 01.04.2019, this Court allowed the appeal of all the six co-accused, including the petitioner, and accordingly, set aside the conviction and sentence of imprisonment awarded to him by the learned Trial Court. Armed with the said acquittal order, the petitioner preferred a representation on 16.04.2019 to the respondents seeking his reinstatement in service with all consequential benefits, but receiving no response thereto, sent further representations on 03.05.2019, 14.11.2019, 27.01.2021 and 13.06.2022. However, since all his representations remained un-actioned, the petitioner has approached this Court by way of the present petition.

6. On 24.08.2022, when notice was issued in the present petition, learned counsel for respondent no.2, had contended that since the CBI had preferred a SLP against the acquittal order dated 01.04.2019, the petitioner could not be reinstated in service till the matter is finally decided by the Supreme Court.

7. Today, he submits that even if the pendency of the SLP may not be a ground to reject the petitioner‟s prayer, the petitioner‟s acquittal vide order dated 01.04.2019 not being an honourable acquittal, he was not entitled to reinstatement. He submits that it is only when the Court records that the accused had been falsely implicated, and there was absolutely no evidence to connect him to the crime that it can be treated as an honourable or clean acquittal. However, in a case like the present one, where the petitioner has been acquitted for lack of evidence, it is a simpliciter acquittal and not an honourable acquittal, which would entitle him to seek reinstatement in

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By:GARIMA MADAN Signing Date:24.11.2022 18:25:32 Citation Number 2022/DHC/005105

service. In support of his plea, he places reliance on a decision dated 09.03.2022 of the Orissa High Court in SK Akbar Ali vs. State of Orissa and Others, W.P.(C)No.10444/2009.

8. Furthermore, without prejudice to his aforesaid submission that the petitioner having not been honourably acquitted, is not entitled to reinstatement, he contends that, in any event, the petitioner is not entitled to any consequential benefits either for the period during which he was suspended, or from the date of his dismissal. By placing reliance on the decision of the Apex Court in Raj Narain vs. Union of India and Ors., (2019) 5 SCC 809 , he contends that the petitioner be granted consequential benefits only from the date of his acquittal. He further submits that even though no departmental proceedings have been initiated against the petitioner in respect of the incident which led to his conviction, and subsequent acquittal, two departmental charge-sheets had been issued to him while he was in service, on which no action was taken against him on account of his dismissal from service. He therefore prays that in case the petitioners were to be reinstated, the respondents be granted liberty to initiate further action against him on the basis of the aforesaid charge- sheets.

9. On the other hand, learned counsel for the petitioner, by placing reliance on a decision of the Division Bench of this Court in L.P.A. No.174/2022 titled Jahan Singh vs. Tribal Cooperative Marketing Development Federation of India Ltd. (TRIFED), contends that once the petitioner was based on his conviction in criminal proceedings, dismissed from service under rule 19(5) of the CCS (CCA) Rules, 1965, without holding any departmental enquiry, the question as to whether the petitioner‟s acquittal

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By:GARIMA MADAN Signing Date:24.11.2022 18:25:32 Citation Number 2022/DHC/005105

was honourable or not is immaterial. He submits that Rule 19(5), uses the word „acquittal‟ and makes no distinction between an honourable acquittal, or an acquittal on account of benefit of doubt. He submits that once the respondents have decided not to hold a departmental enquiry against him, they cannot be permitted to find faults with the petitioner‟s acquittal, or contend that the acquittal of the petitioner not being honourable, he cannot be reinstated to the service of the respondent no.2. He, however, does not dispute that in the light of the decision in Raj Narain (supra) relied upon by the learned counsel for the respondents, the petitioner can be granted consequential benefits only from the date of acquittal, i.e., 01.04.2019.

10. Having considered the submissions of the learned counsel for the parties and perused the record, I find merit in the petitioner‟s plea that the nature of the acquittal of an employee dismissed from service under rule 19(5) of the CCS(CCA) Rules, 1965, is immaterial as held by the Division Bench in Jahan Singh (Supra). The respondent no.2 having failed to hold a departmental enquiry against the petitioner, cannot be permitted to now urge that since his acquittal vide order dated 01.04.2019 is not honourable, he will not be reinstated in service.

11. Even though, I am of the view that the respondent no.2 cannot be permitted to take the plea that since, it does not perceive the petitioner‟s acquittal to be honourable, there is no obligation on the respondent to reinstate him despite his acquittal, I have examined the order dated 01.04.2019, to consider the respondents‟ plea that the petitioner‟s acquittal was not honourable. Having perused the said decision, I am constrained to note that the respondents‟ plea that the petitioner‟s acquittal was not honourable, is clearly misplaced. In this regard, it may be useful to note the

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By:GARIMA MADAN Signing Date:24.11.2022 18:25:32 Citation Number 2022/DHC/005105

relevant extracts of the decision of this Court in Criminal Appeal No.520/2016/ The same reads as under:

"23. In the face of evidence on record, I find that the conviction of appellants-accused with the aid of Section 120B IPC for the offence in question cannot be sustained. So far as conviction of appellants-accused for the offences under Sections 7 and 13(l)(d) r/w Sec. 13(2) of PC Act is concerned, I find that there was no occasion for appellants-accused to permit unauthorized construction in the property in question, as prosecution's witness- M.K,Verma, Executive Engineer, MCD (PW-2) has clarified in his evidence that he had observed that some additions and alterations were being made on the first floor of the premises in question and this observation was clarified by him to mean that internal walls were being constructed on the first floor. It has also come in the evidence of M.K.Verma, Executive Engineer, MCD (PW-2) that as per area notification, no punitive action could be taken in respect of unauthorized tfi construction which existed prior to 7 February, 2007 and that repairs in terms of Clause-6.4.1 of Building Bye Caws of MCD, 1983 were allowed for the relevant period as per abovesaid Notification. This witness- M.K.Verma, Executive Engineer, MCD (PW-2) contradicts himself to state in cross-examination that at the tirne of inspection, he had found that the work of erection of wooden gypsum and zinc sheets etc. was in progress but he did not file any report after the said inspection.

24. Upon considering the evidence of this witness (PW-2) in its entirety, this Court finds it to be inconsistent and it stands negated from the deposition of independent witnesses PW-9, PW-10, PW-16, PW-18, PW-19, PW-20 and PW-21. From the evidence of afore-referred independent witnesses, it becomes clear that the unauthorized construction existed prior to the date of inspection in the year 2009. Trial Court has erred in discarding the evidence of Mahipal Singh, Junior Engineer, MCD (DW-1), as this witness has deposed that he had not found any unauthorized construction in the property in question and nothing worthwhile has come out in cross-examination of this witness.

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By:GARIMA MADAN Signing Date:24.11.2022 18:25:32 Citation Number 2022/DHC/005105

25. It needs to be clarified that the alteration being made in the property in question, as refeired to by l^.K.Verma, Executive Engineer, MCD (PW-2) in his evidence, were internal partitions, wood work etc., which is permissible under Clause-6.4.1 of Building Bye Laws of MCD. Reliance placed by respondent's counsel'upon decision in M.K. Thakar (Supra), is of no avail as in the instant case, unauthorized Construction already existed prior to 7' February, 2007, Svhereas in the said decision, it was not so. Default in sending riofices to the defaulters cannot be attributed to appellants, as it was diity qf,Pawan Kumar (PW-5) to send them. Scrutiny of prosecution case, reveals,,that it lacks credence and requires corroboration by scientific evidence, which is lacking. In the face of afore-referred infirmities in the prosecution case, this Court finds that the conviction and sentence awarded to appellants deserves to be set aside.

26. Consequentially, the judgment of 7* May, 2018 and order on tin sentence of 9 May, 2019 are accordingly set aside and appellants are hereby acquitted. Fine, if deposited, be refunded forthwith."

12. In the light of the aforesaid, looked at from any angle, I am of the view that the petitioner deserves to be forthwith reinstated to service. Now coming to the petitioner‟s plea for grant of consequential benefits, since both sides are ad-idem that this aspect is covered by the decision of the Apex Court in Raj Narain (supra), I need not delve further, except referring to paras 6 to 8 of this decision. The same read as under:

" 6. The decision of Ranchhodji Chaturji Thakore (supra) was followed by this Court in Union of India and Others v. Jaipal Singh (supra) to refuse back wages to an employee who was initially convicted for an offence under Section 302 read with Section 34 IPC and later acquitted by the High Court in a criminal appeal. While refusing to grant relief to the Petitioner therein, this Court held that subsequent acquittal would not entitle an employee to seek back wages. However, this Court

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By:GARIMA MADAN Signing Date:24.11.2022 18:25:32 Citation Number 2022/DHC/005105

was of the opinion that if the prosecution is launched at the behest of the department and the employee is acquitted, different considerations may arise. The learned counsel for the Appellant endeavored to distinguish the prosecution launched by the police for involvement of an employee in a criminal case and the criminal proceedings initiated at the behest of the employer. The observation made in the judgment in Union of India and Others v. Jaipal Singh (supra) has to be understood in a manner in which the department would become liable for back wages in the event of a finding that the initiation of the criminal proceedings was mala fide or with vexatious intent. In all other cases, we do not see any difference between initiation of the criminal proceedings by the department vis-a-vis a criminal case lodged by the police. For example, if an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employer cannot be mulcted with full back wages on the acquittal of the person by a criminal Court, unless it is found that the prosecution is malicious.

7. The point that remains to be considered is whether the Appellant is entitled to payment of full wages between 1979 and 1987. The Appellant was placed under suspension on 23.10.1979 and his suspension was revoked on 21.10.1987. An interesting development took place during the interregnum by which the disciplinary proceedings were dropped on 21.03.1983. It is clear from the record that the Appellant was the one who was seeking postponement of the departmental inquiry in view of the pendency of criminal case. The order of suspension was in contemplation of disciplinary proceedings. By virtue of the disciplinary proceedings being dropped, the Appellant becomes entitled to claim full salary for the period from the date of his suspension till the date of closure of the departmental inquiry. Thereafter, the Respondents took four years to reinstate him by revoking his suspension. The order of suspension dated 23.10.1979 came to an end on 21.03.1983 which is the date on which disciplinary proceedings were dropped. The Appellant ought to have been reinstated

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By:GARIMA MADAN Signing Date:24.11.2022 18:25:32 Citation Number 2022/DHC/005105

immediately thereafter unless a fresh order was passed, placing him under suspension during the pendency of the criminal trial which did not happen. Ultimately, the Appellant was reinstated by an order dated 21.10.1987 by revocation of the order of suspension. Though, technically, the learned Additional Solicitor General is right in submitting that the impugned judgment does not even refer to the I.A., we are not inclined to remit the matter to the High Court at this stage for fresh consideration of this point. We hold that the Appellant is entitled for full wages from 23.10.1979 to 21.10.1987 after adjustment of the amounts already paid towards subsistence allowance.

8. For the reasons mentioned above, we approve the judgment of the High Court by holding that the Appellant shall be entitled for back wages only from the date of acquittal on 31.08.2001, till the date of his reinstatement on 20.01.2003. Further, the Appellant shall be entitled to full salary from 23.10.1979 to 21.10.1987."

13. In the light of the aforesaid, I have no hesitation in holding that the petitioner is entitled to reinstatement of services of the respondent no.2 with all consequential benefits. The writ petition is, accordingly allowed, by directing the respondents to forthwith reinstate the petitioner in service with all consequential benefits. The petitioner will, however, not be entitled to any further amounts, except for the subsistence allowance for the period during which he remained suspended. Furthermore, the payment of backwages to the petitioner will be made only w.e.f. 01.04.2019, i.e. the date on which the petitioner was acquitted pursuant to orders passed by this Court in Criminal Appeal No.520/2016.

14. Needless to state, this decision will have, no bearing on the respondents‟ right, if any, to take further action in accordance with law qua the two charge-sheets stated to have been already issued to the petitioner.

Signature Not Verified

By:GARIMA MADAN Signing Date:24.11.2022 18:25:32 Citation Number 2022/DHC/005105

15. The writ petition is, accordingly, disposed of in the aforesaid terms.

REKHA PALLI, J NOVEMBER 23, 2022/tp

Signature Not Verified

By:GARIMA MADAN Signing Date:24.11.2022 18:25:32