Badan Singh vs Union Of India & Ors.

Harvinder Kaur Oberoi, Member (J)

By way of the present Original Application, the applicant has challenged his alleged illegal termination from service.

Facts, in brief, are that the applicant was appointed Mali (regular) in Horticulture Division-VI of DDA on 30.01.2020 on compassionate grounds. On 13.02.2020, he was issued an Establishment Order posting him under the Deputy Director (Hort.) Division-6. On 17.02.2020, a complaint was addressed to the Superintendent of Police, CBI, and on 19.02.2020, FIR No.RC-DAI-2020-A-0009 under Section 7 of the Prevention of Corruption Act was registered by the CBI. The CBI filed a charge-sheet/Final report before the Ld. Special Judge, Rouse Avenue District Courts, New Delhi. The closure report was filed as the CBI could not find any fault on the part of the applicant. However, upon registration of the said FIR, the applicant was suspended. His suspension was extended vide order dated 18.05.2020 and again on 06.11.2020. While the applicant was under suspension,on 18.11.2020 his services were terminated. The charge-sheet had been filed by the CBI and upon hearing the prosecution and defence at length and on careful examination of the material on record the learned Special Judge, CBI before framing of charges, discharged the applicant under Section 7A of Prevention of Corruption Act. As such the applicant has got a clean chit from the CBI Special Judge on 25.03.2022.

The applicant approached the respondents with the closure report/discharge order issued by the Special Judge CBI to the respondents seeking reinstatement, however, the representation of the applicant was rejected on 24.06.2022 by the Deputy Director Personnel Branch-4. The applicant filed an appeal. Vide order dated 06.06.2023, the appeal of the applicant was also rejected. Hence aggrieved of the alleged arbitrary and malafide action of the respondents whereby the applicant’s services have been terminated without holding any inquiry or without giving him any opportunity of hearing resulting in not only pecuniary losses but also mental agony to the applicant, he has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-

“a) DIRECT the Respondents to consider and grant the representation dated 10.10.2022 of the applicant for the reinstatement of the services/job for the post of Mali-regular with arrears of salary,

b) DIRECT the respondents to commute the work tenure of the Applicant as well as the conduct of the Applicant when he joined his duty and for which no opportunity has been given to him to be heard,

c) DIRECT the respondents to make good payment to the Applicant for his due salary since 10.02.2021 till today (treated as period spent on duty) for which Applicant had made number of efforts.

d) pass any such further order or direction as may be deem fit, proper and necessary in the interest of justice.”

Respondents have filed their counter-reply and are contesting the OA.

Counsel for the respondents submits that the applicant Shri Badan Singh, S/o Late Ram Rattan was offered the post of Mali (Regular) (Pay band-1 Rs.5200-20200/- with Grade Pay of Rs.1800/-) on compassionate grounds vide appointment letter/Memorandum dated 30.01.2020. The period of probation, as mentioned in the appointment letter, was 2 years. The applicant submitted his joining on 10.02.2020. He was posted in the office of Director (Hort.) South East Zone, on 12.02.2020 from where he was further posted with Dy. Director (Hort. Divn.)VI, DDA on 13.02.2020.

The Dy. Director (Vig.)-I, DDA, vide his letter dated 17.03.2020, conveyed the registration of FIR No.RC-DAI-2020-A-0009, CBI, ACD dated 19.02.2020 U/s 7 of PC Act 1988 against the applicant. In this regard, order regarding the deemed suspension of the applicant Shri Badan Singh w.e.f. 19.02.2020, in accordance with the terms of Regulation 20 (2) of DDA [Conduct, Disciplinary and Appeal] Regulations, 1999, was conveyed to the applicant vide order dated 05.05.2020. This regulation states that "an employee who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours shall be deemed to have been suspended with effect from the date of detention, by an order of appointing authority, and shall remain under suspension until further orders."

Further, the Suspension Review Committee, after considering all the aspects of the case, decided to extend the suspension of Sh. Badan Singh for a period of 180 days i.e. upto 14.11.2020. This was conveyed to the applicant vide order dated 18.05.2020. Again, the Suspension Review Committee considered all the aspects of the case and decided to extend the suspension for a further period of 90 days i.e. from 15.11.2020 to 12.02.2021. The same was conveyed to all concernedvide order dated 06.11.2020.

The Director (P)-II, DDA, being the appointing authority for the post of Mali, vide its Order dated 18.11.2020, terminated the services of the applicant while on probation w.e.f. 18.11.2020. The same was done with the approval of Commissioner(P), DDA, in pursuance of subclause (a) read with subclause (c) of Clause-2 of the appointment order/memorandum dated 30.01.2020, which states that the appointment of Sh. Badan Singh is on compassionate grounds and can be terminated during the period of probation, which is of 02 years, without giving any notice.

The applicant, submitted various representation(s)/ request(s) for reviewing his termination order. In this context, his request(s) were examined and the decision of the Competent Authority for the rejection of requests of Shri Badan Singh, for his reinstatement in the service, was conveyed to him vide this office letter(s) dated 17.08.2021, 24.06.2022 and 06.06.2023.

Counsel for the applicant has argued that the impugned order of termination has its basis in the false allegations on the applicant which resulted in registration of FIR by the CBI. He submitted that the allegations had been thoroughly investigated by the CBI and the applicant was discharged/was not charged therein. It was further argued that although in the impugned order of termination there is no reference to any allegation of irregularities or misconduct on the part of the applicant. But the entire action is based on this one incident alone. Counsel has drawn our attention to the order dated 06.06.2023, passed by the respondents on the representation of the applicant seeking reinstatement of his service upon his discharge. Para 3 of the same reads as under:-

“3. As you are citing your acquittal in criminal case as the main ground in support of your above request, it is intimated that a person who was appointed on compassionate grounds got involved in such as criminal case within just 09 days of his service. Though the Hon’ble Court has acquitted you of the criminal charges but the facts of the case and the observations of the court would show that your conduct was not suitable for your continuation in DDA’s job. May note that DDA has not referred or cited the said case in the orders of termination of service and accordingly such termination orders were simiplicitor and not stigmatic.”

A plain reading of the same would show that the management was fully aware of the circumstances and influenced by the same decided to terminate the services of the applicant. The allegations of misconduct have formed the basis/ foundation for passing the impugned order of termination.

Applicant has placed reliance on the scheme for compassionate appointment under Central Government as updated on 02.08.2022. As per clause 18 which concerns the termination of service, the said Scheme states as under :-

“18. Termination of Service

The compassionate appointments can be terminated on the ground of non-compliance of any condition stated in the offer of appointment after providing an opportunity to the compassionate appointee by way of issue of show cause notice asking him/her to explain why his/her services should not be terminated for non-compliance of the condition (s) in the offer of appointment and it is not necessary to follow the procedure prescribed in the Disciplinary Rules/Temporary Service Rules for his purpose.

In order to check its misuse, it has also been decided that this power of termination of services for non-compliance of the condition(s) in the offer of compassionate appointment should vest only with the Secretary in the concerned administrative Ministry/Department not only in respect of persons working in the Ministry/Department proper but also in respect of Attached/Sub-ordinate offices under that Ministry/Department.

[O.M. No.14014/19/2000-Estt(D) dated 24.11.2000]”

The counsel, based on this clause, argued that since the applicant was a compassionate appointee, he could not have been terminated. His termination should vest only with the Secretary in the concerned administrative Ministry/Department. However, in the present case, the condition prescribed in the Scheme has been violated by the respondents and the applicant has been terminated by the Director (Personnel), in total violation. Counsel for the applicant has also drawn our attention to the order passed by the learned trial court. Relevant paras 35, 36 & 46 are as under:-

“35. Going by the above stated facts the alleged demand through Badan Singh began in November itself but none of his written complainants upto 27.01.2020 shows that Afzal was demanding money through Badan Singh or through Sunil Tyagi. Further, if at all the incident of Badan Singh meeting the complainant at DDA office whenever he visited and the fact of meeting at Zaika Restaurant were true then it should have been mentioned in the civil suit but in the Civil Suit there was no such pleading. Further, as per statement of complainant under Section 161, accused Badan Singh did not ask bribe for Afzal rather he demanded Rs 10 "to solve the matter". Complainant is silent whether he refused to pay in the very first alleged meeting with Badan Singh. If complainant had denied such demand accused Badan Singh would not have followed him. Further, it fails any reasoning why Badan Singh would invite an unwilling person to Zaika Restaurant and why complainant would go to Zaika Restaurant when he knew that he was not interested in solving the matter at cost. In any case at Zaika the demand was made by Sunil Tyagi and not by accused Badan Singh. It further fails any reasoning as to why Badan Singh would double the demand when complainant was not ready even at Rs. 10 lacs. It would have appealed to senses if he had set up case that although at Zaika he had refused to pay but subsequently when he made up his mind and approached Badan Singh then he doubled the demand. So the story being narrated is not going down easily particularly when no such fact had been mentioned in the civil suit.

Charman Singh, the stated owner of the plot, in his statement under Section 161 CrPC stated that when he came to Delhi in December, 2019 he visited the office of Sh. TarunKapur, VC (DDA) at Vikas Sadan Delhi on 03.12.2019 to enquire about the issue of his property and to complaint against JE Afzal, he left a complaint there and was advised to visit after a few days. He again visited the above said VC office sometime probably in the first week of January 2020 and outside his office one Sh Badan Singh who claimed to be the head clerk of the office, came to him and told that he knew about the matter and he would not be able to construct anything on his plot unless he pay bribe to Afzal. He further informed him that one Sh Sunil Tyagi, Inspector Crime Branch Delhi Police, knew Afzal well and he (Sunil) could settle the matter with him. Later in the day, he (Badan) called him on his mobile phone and told him to come at Coffee House near Regal Cinema at Connaught Place to meet Sunil Tyagi. He (Charman) went there and was introduced to a person by Badan Singh whom he told was Inspector Sunil of Crime Branch, Delhi Police and both of them pressurized him either to pay bribe or to sell his plot and under their pressure he consented to their offer of selling the plot. They said they had a party ready for the plot and on the instruction of Sunil Tyagi, Sh Badan Singh asked him to come back to the Coffee House after few days. After few days he again visited the Coffee House on13.01.2020 and met Sunil Tyagi and Badan Singh there and w introduced to Sh. Anuprag Agarwal and Sh. Sandeep Gupta and told that they would purchase his plot. The deal for the sell of plot was finalised at Rs 2.5 Crore. After discussion at Coffee House they took him to Nand Nagari Registrar office where agreement to sell was finalised on 13.01.2020. Shri Gupta and Sh. Agarwal issued him cheques of Rs 7.5 lacs each. Thereafter, Badan Singh asked him to issue a cheque of Rs 2 lacs in his name as commission and he issued him a post dated cheque of Rs. 2 lacs. As both cheques of Rs 7.5 could not be encashed, he first called Sh. Gupta and Sh. Agarwal but they did not pick up the phone thereafter he called Sunil Tyagi and Badan Singh who advised him not to panic and assured him that he would receive the payment of his plot soon. He called them again but they stopped picking up his phones so realising that he would not get any payment he got stopped payment for the cheque issued to Badan Singh. He further stated that there was no dispute with Mr. Agarwal and Mr. Gupta qua the sell of the plot.

In view of the above discussion and reasoning this Court does not find sufficient ground to frame charges against the accused in respect of the offense alleged in the charge-sheet and accordingly, accused "Badan Singh is hereby discharged of all allegation made in the present charge-sheet.”

From the averments made in the counter affidavit also it appears that certain allegations were levelled against the applicant, resulting in his involvement in FIR. It was upon his involvement the applicant was suspended and eventually terminated. The counsel further argued that once the respondents had though it fit to suspend the applicant, they could not have terminated the applicant without a chance to defend himself. He has relied upon the constitution bench judgement in the case of V. P. Gindroniya vs State Of Madhya Pradesh & Ors1970 SCR (3) 418, to say that employer has the right to suspend an employee, pending enquiry even if the power to do so is not part of the service contract. Counsel thus argued that since respondents have exercised their power to suspend the applicant they ought to have afforded him an opportunity specially when the applicant was not even charged by the CBI.

"The general principle is that an employer can suspend an employee pending an enquiry into his misconduct and the only question that can arise in such a suspension will relate to the payment of his wages during the period of such suspension. It is now well settled that the power to suspend, in the sense of a right to forbid an employee to work, is not an implied terms in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such a power either as an express term in the contract or in the rules framed under some statute would mean that an employer would have no power to suspend an employee of his and even if he does so in the sense that he forbids the employee to work, he will have to pay the employee's wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of employment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which, it could be withheld. The distinction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the contract is subsisting is important. The suspension in the latter case is always an implied term in every contract of service. When an employee is suspended in this sense, it means that the employer merely issues a direction to him that he should not do the service required of him during a particular period. In other words the employer is regarded as issuing an order to the employee which because the contract is subsisting, the employee must obey."

Counsel for the respondents have vehemently opposed the aforesaid submission. It was argued that respondents were in their right to suspend the applicant since the applicant was arrested by CBI. The suspension review committee had reviewed the suspension of the applicant and decided to continue it for 90 days. The termination order was issued by the competent authority exercising the powers under the temporary service rules and the respondents are not bound to disclose any reasons for the same.

We have considered the rival contentions and also perused the documents on record.

The undisputed facts are that the applicant was appointed on compassionate grounds and was alleged to be involved in corruption just a few days later. The CBI registered an FIR. The case was thoroughly investigated and the CBI did not deem it fit to charge the applicant even. He was discharged at the charge stage itself. However, the damage to his career had been done. The applicant upon his initial arrest was suspended and continued to remain under suspension for more than six months. The power to suspend an employee is substantive; and it is not a matter of procedure. An authority that has supervisory/ administrative control over an employee, can initiate disciplinary proceedings and pass an order of suspension unless the statutory rules provide to the contrary.

Although the applicant was suspended, yet the competent authority decided to terminate the applicant under the Temporary service rules.

The impugned action of termination is founded upon the involvement of the applicant in the criminal case is evident from the order passed by the respondents rejecting the representation of the applicant seeking reinstatement. That too when he was not even charged in the case.

The respondents thought it fit to suspend the applicant, perhaps to conduct a prima facie/preliminaryinquiry into the allegations. However no Enquiry Officer has been appointed. The applicant was never asked to submit any explanation. Not even a memo was issued. The complaints, if any, received by the respondentsremained unattended by them. Undoubtedly, those allegations have formed the basis/foundation for passing the impugned order of termination of probationof the applicant. Precisely for that reason, the respondents refused to reinstate him when the applicant was discharged. In the circumstances, upon travellingbeyond the impugned order and taking into account the orders of the respondents themselves, we find substance in the submission that the foundationfor passing the impugned order of termination has been the criminal case.The allegations have formed the basis and triggered the action against the applicant for terminating his probation.

Respondents have relied on a decision passed by Hon’ble Supreme Court of India in Civil Appeal No.6327/2024 titled The General Manager Personnel Syndicate Bank &Ors Vs.B.S.N. Prasad. Para 16 of the said judgment reads as under:-

“16. It is well settled that an acquittal in a criminal case is no ground to exonerate a delinquent in disciplinary proceedings as the standard of proof differs in these proceedings. It is well settled that the adequacy of the evidence adduced during disciplinary inquiry cannot be gone into in writ jurisdiction.”

The judgment of the Hon’ble Apex Court, relied upon by the respondents, is not applicable in the present case since in the present case, the applicant has been discharged at the charge stage itself. The case laws relied upon by the respondents are concerning an employee who had been acquitted after facing the trial. Therein, the Apex Court held that the standard of proof required in the criminal case and disciplinary proceeding is different. As such, the respondents can take a decision whether or not to hold any disciplinary inquiry. In the present case, the applicant has been discharged at the charge stage itself, therefore, the same is not applicable.

We are constrained to quash the impugned order as the applicant herein has been dismissed by the lower officer not in terms of the Scheme. Therefore, this case is distinguishable.

Given the above the OA is allowed and the impugned order terminating the services of the applicant is quashed and set aside. Respondents are directed to reinstate the applicant with all consequential benefits, including treatment of the intervening period as duty, seniority, backwages. Further respondents have the liberty to initiate any disciplinary action if the facts so warrant. Let the exercise be done within 12 weeks from the date of receipt of the certified copy of this order.