Ranbir Singh vs Govt. of NCT of Delhi and Others

Anil Kumar, J.

R.A. 268/2011 & CM No. 6381/2011

The Respondents/Govt. of NCT and Ors. have sought review of the order dated 28th January, 2011 on the ground that there is a factual mistake incorporated in the order, pursuant to the statement of the counsel for the Petitioner that the Petitioner, Sh. Ranbir Singh, has already reached the age of superannuation whereas, in fact, the Petitioner will attain the age of superannuation on 28th February, 2022. The applicants have also filed an application for condonation of delay in filing the review application. The applicants have contended that the departmental inquiry was ordered against the Petitioner for misconduct of taking a govt. vehicle and demanding money from a truck driver for entry in the market, after which he was placed under suspension and the Disciplinary Authority had awarded the punishment of withholding one annual increment on temporary basis.

Against the order of punishment of withholding one annual increment, an appeal was preferred by the Petitioner, however, the Appellate Authority, relying on Rule 25 (b) (iii) of the Delhi Police (Punishment and Appeal) Rules, 1994, had issued a show cause notice for the enhancement of the punishment already awarded, and, after considering the matter, passed the order of removal of the Petitioner from service. The order of removal was challenged by the Petitioner, however, the Central Administrative Tribunal dismissed his petition.

The Petitioner, thereafter, filed a writ petition, being WP(C) No. 1508/1997, against the order of the Disciplinary Authority, the Appellate Authority and the Tribunal. During the pendency of the writ petition, in another petition, Rule 25 (b) (iii) of the Delhi Police (Punishment and Appeal) Rules, 1994 was held to be ultra virus. In the circumstances, counsel for the Petitioner, on 28th January, 2010, gave a statement, on receiving instructions from the Petitioner, that in case his petition shall be allowed and the order of removal would be set aside, the Petitioner shall not claim back wages from the date of his removal, however, Petitioner shall be entitled for continuity of service and other benefits as per rules. The Petitioner had also given up his challenge to the punishment awarded by the Disciplinary Authority of withholding one annual increment on temporary basis and the period of suspension, w.e.f. 26th August, 1993 to 28th April, 1995, being treated as "not spent on duty".

Consequent to the statement made by the counsel for the Petitioner and the decision of the Court in another petition holding Rule 25(b) (iii) of the Delhi Police (Punishment and Appeal) Rules, 1994 as ultra vires, the writ petition was disposed of by order dated 28th January, 2011. However, during the arguments, the learned Counsel for the Petitioner had contended that the Petitioner has attained the age of superannuation and consequently, in the said order in paragraph-12, it was so recorded and in paragraph-20 of the writ petition, it was held that the Petitioner shall be entitled for all the increments and promotions in accordance with law till the date of superannuation. Para-12 and Para-20 of the order dated 28th January, 2011 are as under:

Since the order of removal dated 06th February, 1996 is liable to be set aside, the Petitioner will be entitled for re-instatement and all the increments and promotions in accordance with the law till the date of his as, the learned Counsel for the Petitioner has pointed out that the Petitioner has already reached the age of superannuation.

For the foregoing reasons, the impugned order dated 06th February, 1996 passed by the Appellate Authority removing the Petitioner from the service is set aside and the Petitioner is re-instated in service from 06th February, 1996. The Petitioner shall be entitled for all the increments and promotions in accordance with the law till date of his superannuation. However, the Petitioner shall not be entitled for any back wages as have been given up by the learned Counsel for the Petitioner on instruction from the Petitioner. The Petitioner shall also be entitled for all his pensionary and retiral benefits due to the Petitioner which be computed forthwith and the pension and other retiral benefits be paid to the Petitioner within three months. With these directions, the writ petition is allowed. The parties are, however, left to bear their own costs.

The applicants have contended that there is a factual mistake in the order, which has occurred on account of the statement made by the counsel for the Petitioner that the Petitioner has already attained the age of superannuation as he was enlisted in Delhi Police on 16th September, 1982 and his date of birth is 8th February, 1962 as per his service record. Therefore, in terms of order passed by this Court dated 28th January, 2011, after his reinstatement in service, the Petitioner shall attain the age of superannuation on 28th February, 2022 and, therefore, his retiral benefits can be calculated only after 28th February, 2022. In the circumstances, the Respondents have sought review of the order dated 28th January, 2011 and direction for reinstatement of the Petitioner and to grant him pensionary benefits only after he attains the age of superannuation. The Respondents/applicants have also sought condonation of 39 days delay in filing the review application on the ground that the matter was referred by the department to the Legal Advisory and, thereafter, to the Commissioner of Police on 7th March, 2011 who opined on 23rd March, 2011 that an application for review of the order dated 28th January, 2011 should be filed.

In reply to the application filed by the Respondent, the Petitioner has filed a reply dated 13th May, 2011 admitting that a mistake was committed by the counsel for the Petitioner in intimating the Court that the Petitioner stood superannuated. The Petitioner/non-applicant, in the circumstances, has contended that the review application be allowed and delay be condoned in filing the review application and para 12 of the order be modified so as to incorporate that the Petitioner be re-instated in service and on his attaining the age of superannuation, he would be entitled for all the retirement and pensionary benefits. The Petitioner also admitted that he shall superannuate on 28th February, 2022.

Considering the averments made by the parties, it is apparent that there is sufficient cause for condoning the delay in filing the review application, therefore CM No. 6381/2011 is allowed and the delay in filing the review application is condoned.

On the pleas and contentions of the parties, as it is not disputed that there is an error apparent on the face of the record as the Petitioner has not attained the age of superannuation and he would attain the age of superannuation only on 28th February, 2022, however, it has been incorporated that the Petitioner has superannuated, therefore, this error is liable to be rectified. Consequently, para 12 of the order is modified so as to read as under:

Since the order of removal dated 06th February, 1996 is liable to be set aside, the Petitioner will be entitled for re-instatement with all the increments and promotions in accordance with law till the date of his reinstatement. The Petitioner shall also be entitled for consideration of all the increments and promotion during this period after his superannuation for the purpose of consideration of his retirement and pensionary benefits.

In view of the modification of para-12 and as the Petitioner is to be reinstated, para-20 of the order dated 28th January, 2011 is also liable to be modified. After modification of para-20 of the order dated 28th January, 2011, the same shall read as under:

For the foregoing reasons, the impugned order dated 06th February, 1996 passed by the Appellate Authority removing the Petitioner from the service is set aside and the Petitioner is liable to be re-instated in service from 06th February, 1996. The Petitioner shall be entitled for all the increments and promotions from 6th February, 1996 till the date he is reinstated. However, in terms of the statement of the counsel for the Petitioner dated 28th January, 2011, he shall not be entitled to back wages from the date of removal till the date of his reinstatement. This period from 6th February, 1996 till the date of his reinstatement shall however, be counted for the purpose of computation of pensionary and retirement benefits, on Petitioner attaining the age of superannuation. The Petitioner, in the circumstances, be reinstated forth with.

With these directions the writ petition is allowed. The parties are, however, left to bear their own costs.

Consequently, the order dated 28th January, 2011 passed in WP(C) No. 1508/1997 is reviewed in order to rectify the factual mistake regarding the fact that the Petitioner has not superannuated but will superannuate on 28th February, 2022.

In the circumstances, para-12 & para-20 of the said order is modified as detailed hereinabove and the Petitioner be reinstated forthwith.

With these directions the applications are disposed of.