Mahabir Singh vs Government Of NCT Of Delhi And Ors

Pradeep Kumar, Member (A)

Heard Sh. Harish Chandra Yati, learned counsel for applicant and Ms. Harvinder Oberoi, learned counsel for respondents.

The applicant in the instant OA was working as Inspector in Delhi Police. He was suspended on 30.05.2007 and the charge sheet was issued on 08.05.2008. Since the charge sheet did not progress, the applicant approached the Tribunal vide OA No.2454/2008. It was decided on 12.11.2008 with the following orders:

"3. The facts as stated above would reveal that after appointment of enquiry officer; there is no progress in the enquiry. We direct the respondents to complete the enquiry as expeditiously as possible and preferably within a period of six months. The aforesaid directions are subject to the applicant cooperating in the enquiry. If for some reasons the respondents are unable to complete the enquiry in six months, they may seek extension of time."

Thereafter, the DAR procedure was completed on 06.07.2009 with a major penalty of forfeiture of five years of approved service. The applicant preferred an appeal which was decided on 27.01.2010 with the orders that prescribed procedure was not followed and due opportunity was not given to the applicants to defend himself and in view of this the appellate authority had remitted the departmental enquiry back to the enquiry officer to be conducted after the stage of handing over of the summary of allegations and list of defence witnesses, list of documents etc. to be relied upon. The appellate authority further directed that since the officer is going to retire on 31.05.2010 the proceedings must be completed expeditiously. The enquiry proceedings, however, could not be completed and the applicant retired on superannuation on 31.05.2010. He was granted provisional pension but other retiral dues were not paid.

The applicant preferred an OA No.2032/2010 in the Tribunal which was decided on 15.11.2010 with the following orders:

"In the totality of the facts and circumstances of this case, we direct the respondents to complete the enquiry within a period of two months from today, which, if not completed shall be deemed to have been abated. We are sanguine that the applicant would cooperate. However, if there be non-cooperation on the part of the applicant, it would be permissible for the respondents to seek extension of time."

However, the proceedings could not be completed within the time allowed and the respondents sought extension vide MA No.161/2011 which was decided on 11.10.2011 with the following orders:

"7. We, therefore, direct the Disciplinary Authority to get the Inquiry Officer‟s report within a period of two months from the date of receipt of a copy of this order and finalize the disciplinary case one month thereafter as per the prescribed procedure. Thus, the Inquiry Officer and the Disciplinary Authority together are granted three months time to complete the entire disciplinary case against the applicant. It must be noted by the respondents that no further extension of time would be granted to them in the case. In case the Disciplinary Authority does not finalize the inquiry within the said stipulated period of three months, the entire disciplinary case would abate."

However, the enquiry could still not been completed and the respondents sought further extension of time vide MA No.175/2012 which was decided on 31.01.2012 with the following orders:

"6. We are not convinced of the grounds on which the respondents are seeking further extension of time. On a query from the Bench, the learned counsel for the respondents could not clarify what steps have been taken by the I.O. and Disciplinary Authority. In the last extension granted in our order dated 11.10.2011, it has been inter alia mentioned that in case the disciplinary case is not finalized within the said stipulated period of time, the entire disciplinary case would abate. Keeping the above directions in the background and taking into account the status of inquiry, we do not see any visible time horizon for completion of the disciplinary case. For the reasons stated above, we do not find any merit in the MA to consider the respondents‟ claim for further extension of time. Accordingly, the request for extension of time is rejected."

Thereafter the applicant made a representation dated 13.02.2012 to the respondents for releasing his retiral dues. This was, however, not decided and, therefore, applicant filed another OA No.1265/2012 which was decided vide orders dated 27.08.2012. The respondents pleaded as under:

"Now, the departmental enquiry initiated against Inspr. Exe. Mahabir Singh, No.D-1/1066 (now Retd.) vide order No.2016-40/P.Cell/P-VII/Vig. Dated 10.03.2010 has been withdrawn an administrative grounds vide order No.7136-70/P. Cell Vig. (P-VII) dated 13.07.2012 (copy enclosed). On receipt of above DE withdrawal order, the regular pension case will be prepared accordingly and sent shortly to PAO-IV, Tis Hazari, Delhi to decide the pension and issue the PPO. Authority of DCRG & Communication Pension in respect of (Retd.) Inspr. Mahabir Singh No.D-I/1066."

7.1 The applicants quoted the decision of Hon‟ble High Court of Delhi in WP (C) no.493/2012 decided in a similar case on 12.09.2006. Hon‟ble High Court had observed as under:

"Considering that the department itself in its wisdom, has decided to close the departmental enquiry, the same has to be treated as a case of exoneration. In these circumstances, we direct payment of interest @ 8.5% on the amount of Rs.1 lac from 1.3.2001 to 19.9.2003 when the amount was remitted. However, we reject the claim for payment of interest on other amounts at a rate higher than 12%."

7.2 This OA was subsequently decided on 27.08.2012 with the following orders:

"4. In view of the stand taken by the respondents in the matter the OA is disposed of with the direction to the respondents to settle and release the terminal benefits of the applicant within six weeks with interest as per rules.

No costs."

The Tribunal‟s orders were, however, still not complied with and thus applicant preferred a CP No.127/2013 in OA No.1265/2012. It was decided on 31.01.2014 with the following orders:

"Heard the learned counsel for the petitioner and the learned proxy counsel for the arguing counsel for the respondents. It appears that the orders passed in the OA have been substantially complied with. Learned counsel for the petitioner submits that some minor dues still pending to be decided by the respondents, and his prayer for one month‟s salary, interest, and the calculation and computation of the amount paid to the petitioner, have yet to be provided by the respondents. In this regard, he has made a prayer, which is under consideration with the respondents. We are satisfied that the orders, as passed by the Tribunal in the OA, have been substantially complied with. The petitioner may obtain at least one month‟s salary from the respondents as per submission, and he may make a representation to this effect to the respondents. The respondents shall expeditiously dispose of his representation.

With these observations, the CP does not survive, and the same is closed. Notice issued to the alleged contemnor is discharged."

Thereafter the applicant made another representation dated 03.03.2014 praying for certain reliefs. This was, however, rejected vide respondents letter dated 01.04.2014, which is the cause of grievance in the present OA. The applicant has pleaded for the following three reliefs:

"(a) Extra pay for the period during which the applicant was under suspension.

(b) Correct amount of salary after rectifying the calculation mistakes in the salary slips pertaining to years 2007-2008, 2008-2009 and 2009-2010.

(c) Payment of interest on all delayed payments."

The applicant brought out a decision by Hon‟ble High Court of Delhi dated 13.03.2012 WP (C) No.1227/2012 titled Delhi Police vs. Balwant Singh wherein interest was allowed on delayed payment of leave encashment. Another decision by Tribunal delivered on 08.04.2015 (OA No.4010 of 2014) was cited, wherein payment of certain allowances even during suspension period, as well as one month extra pay, which were denied earlier on account of the employee being under suspension, were allowed by Tribunal.

The respondents pleaded that the applicant was under suspension from 30.05.2007 to 06.07.2009. Even though this period was treated as "spent on duty" vide orders dated 21.08.2012, the fact remains that during this period applicant did not perform any actual field work. The one month extra salary every year is granted to the field staff, who many times have to forego their weekly holidays and have to work long hours. In the instant case, the applicant was under suspension and thus there was no occasion to work long hours or forego weekly rest etc. and thus he is not entitled for one month extra pay during the time he was under suspension. In this regard, the respondents brought out certain notifications by Government of India as well as by Government of NCT of Delhi as under:

"In this regard, this office had already intimated to the Hon‟ble Tribunal vide Para 6 of CP No.127/2013, that since, you are not entitled for extra pay as you were remained under suspension during the period from 30.05.2007 to 06.07.2009. the GOI letter No.F.14021/1/78/UTP, MHA dated 10.12.19079 clearly indicate that "(a) Except in cases where any reduction to be made, the payment will be equal to the basic pay, dearness allowance and additional dearness allowance for 30 days in respect of service in a calendar year and such payment shall be made after the close of the concerned calendar year. For this purpose the expression „SERVICE‟ shall exclude periods during which the employee was under suspension or was an extraordinary leave and accordingly, the compensatory pay shall be reduced on a prorate basis for such period". Besides in the case of const. Lakhi Ram, No.1502/C, the GNCT, Delhi‟s letter No. F.3/23/91-Home Police/Estt, dated 15.10.1991 clearly indicated that "an individual is not entitled for the grant of compensatory pay for the period of his suspension as the Rules regulating the grant of these benefit do not permit the payment to the individual as he physically did not perform the official duties for which these allowance are paid."

In respect of interest for the delayed payment, respondents brought out that only DCRG qualify for payment of interest which has since been paid. Leave encashment at the time of retirement is not a pensionary benefit, and therefore, not qualified for payment of interest. In respect of the difference of pay amounting to Rs.1,27,553/-, the respondents brought out that this amount is worked out by the applicant based upon certain annual statement which was submitted by the respondents as part of the counter. However, this statement was erroneous and if the payments as were due (full salary for the period under suspension as this period was subsequently treated as on duty) vis-a-vis what was actually paid at the relevant point of time (50% of basic pay for initial period of suspension and 75% of basic pay thereafter), it becomes clear that all difference of pay on this account has since been paid and as such nothing is due. The correct monthly payments are already enclosed by Respondents in additional affidavit.

The matter was heard at length. It is seen that a major penalty charge sheet was issued to the applicant on 08.05.2008 for an incident that took place on 03.04.2002. This was finalised on 27.04.2009, which resulted into major penalty of forfeiture of five years of approved service. It was only at appeal stage that it was ordered that enquiry is to be held de novo after the stage of issuing the charge sheet. The procedure to complete the enquiry and to complete the DAR process at appeal stage could not be completed within the time granted by the Tribunal despite several extensions and hence it was closed as per the orders of this Tribunal. In view of this sequence, it cannot be said that the dropping of charge in the instant case can be treated to be dropping of charges on merit altogether, i.e. exoneration. However, since, there had been substantial delay in payment of retiral dues and leave encashment with effect from the date of his superannuation till the actual date of payment, the applicant was denied use of this money all this while. The same needs to be compensated to the applicant. Such delays will, therefore, qualify for payment of interest at GPF rate, for all retiral dues as well as for leave encashment. This shall be paid within a time period of eight weeks of receipt of these orders.

In respect of extra one month pay for the period during which the applicant was under suspension, the pleading of applicant by drawing a parallel with OA-4010 of 2014 (para 9.0 supra) have been scrutinised. It is seen that this judgment had in turn relied upon another judgment (OA-2342 of 2004 decided on 11.8.2005). In this case, the petitioner was embroiled in a criminal case and thus suspension period got extended and delays took place in payment of retiral dues. This criminal case ended in acquittal and, thereafter, period of suspension was treated as on duty. The concerned staff represented for one month extra pay, which was granted by Tribunal.

The distinctive feature of above case relied upon by applicant is "criminal case - suspension - acquittal - dropping of charges" as against - "suspension - DAR - Major penalty by DA - Ordering of enquiry by AA - Dropping of charges on account of delay in holding record enquiry at the instance of Tribunal". Thus, dropping of charges in instant case cannot be treated as his acquittal or being found innocent. Moreover, the reasoning behind payment of this extra one month pay as brought out by the respondents, in para 10 supra, stands to reason and since the applicant did not actually perform the hard field work and did not have to forego his weekly holidays and did not have to work long hours as a person on active field duty would have been subjected to, this claim does not hold good and the same is rejected.

In respect of the difference of pay amounting to Rs.1,27,553/-as is being claimed by the applicant, since this calculation appears to be based upon erroneous annual statement by the respondents and the error has since been admitted by the respondents, the applicant may re-work the calculation with respect to what was actually due to him and what was actually paid as per the correct monthly statement submitted by the respondents as part of additional affidavit.

A detailed calculation sheet for the same may therefore be submitted to the respondents by the applicant and thereafter respondents are directed to give a speaking order on the same within a period of three months of receipt of such a statement from the applicant.

In view of the above directions, OA is partly allowed.

Pending MA No.3116/2018, filed for early hearing of OA, also stands disposed off.

No order as to costs.