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Judgment
ORDER
Hon’ble Mr. Rajveer Singh Verma, Member (J) :
The applicant was initially appointed as a Lower Division Clerk (LDC) in the Delhi Development Authority on 14.02.1980, and subsequently earned promotions up to the post of Assistant Accounts Officer. On 16.03.2001, a criminal case was registered against him under Section 120-B of the Indian Penal Code along with Sections 7, 12, 13 to13(1)(d), and 13(2) of the Prevention of Corruption Act, 1988, which eventually led to his conviction by the Special Judge, Delhi, on 26.03.2011. Thereafter the applicant challenged the said judgment before the Hon’ble High Court of Delhi vide Criminal Appeal No.587/2011, wherein the sentence of the applicant was suspended. Following his conviction, the Finance Member of the respondent authority imposed the penalty of compulsory retirement on 02.04.2012. The applicant filed an appeal against this order, and on 23.04.2013, the appellate authority remitted the matter back to the disciplinary authority to re-examine the penalty in light of the applicable regulations. Thereafter, on 04.11.2013, an order was issued imposing the penalty of removal from service. Aggrieved by this, the applicant approached the Tribunal through OA Number 644/2014. The Tribunal, by its order dated 04.12.2014, held that an order of removal cannot operate retrospectively and must take prospective effect. Consequently, the Tribunal directed that the applicant be deemed to have been in service from 02.04.2012, until 04.11.2013, with entitlement to pay and allowances for that period. The respondent authority accepted this Order of the Tribunal and released the corresponding benefits via an order dated 26.05.2015.
In March 2017, the applicant discovered that the removal order dated 04.11.2013, had been issued by an authority subordinate to his appointing authority, violating Article 311(1) of the Constitution of India. Upon his representation dated 24.03.2017, the Vice Chairman of the respondent authority issued a fresh removal order on 01.10.2018, but gave it retrospective effect from 04.11.2013. The applicant appealed against this retrospective application to the Lieutenant Governor of Delhi. On 17.12.2019, the appellate authority modified the removal order to operate prospectively from 01.10.2018, and directed that the treatment of the intervening period be decided separately. However, on 09.04.2021, the respondent authority issued an order treating the intervening period from 04.11.2013, to 30.09.2018, as unauthorized absence under Fundamental Rule 17(1). Following a further appeal, the appellate authority modified this stance on 03.09.2021 (communicated on 27.09.2021), by expunging the direction of unauthorized absence and ordering that the period from 05.11.2013, to 30.09.2018, be treated as notionally in service without any pay or allowances. Hence, the present OA has been filed by the applicant seeking the following relief(s) :-
i.Quash/set aside the Impugned Order bearing No. F 25(14)2001/Vig./ACB/Vol-III/3851 dated 27th September, 2021 (Annexure A-1 ) and / or
ii.Direct the Respondents to issue show cause notice before taking actions against the Applicant, and/or
iii.Direct the Respondents to treat the intervening period starting from 04.11.2013 to be spent on duty, and/or
iv.Direct the Respondents to regularize the suspension period from 16.03.2001 to 21.03.2001 & 12.09.2001 to 12.09.2007 as spent on duty and set aside the order dated 02.09.2019 and 30.12.2014 rejecting to regularize the suspension period, and / or
v.Direct the Respondents to decide the representation dated 30.03.2016 whereby the applicant had requested for release of the increments due during the suspension period, and / or
vi.Award all consequential benefits;
vii.Award cost in favour of the Applicant.
viii.Pass such other and further orders which this Hon'ble Tribunal may deem fit and proper in the interest of justice.”
Learned counsel for the applicant contended that once the initial removal order was declared void for lack of competence, the period until a valid prospective removal order was passed must be treated as period spent on duty or deemed suspension with all consequential pay, increments, and allowances.
To support the contention that retrospective removal is impermissible and that the applicant is entitled to full financial and service benefits, including Central Administrative Tribunalregularization of his past suspension periods, the learned counsel for applicant has relied upon the following judicial pronouncements :-
Decision of Hon’ble Supreme Court in the case of R. Jeevaratnam versus State of Madras AIR 1966 Supreme Court 951 decided on 13.10.1965,
(ii) Decision of Hon’ble High Court of Delhi in DDA versus S.C. Gautam in Writ Petition No.7303/2010 dated 12.03.2013,
Order of the Tribunal in Suraj Prakash versus DDA (OA No.2210/2008) dated 11.08.2009;
Order of the Tribunal in P.C. Mishra versus Union of India (OA No.1056/2008) Synopsis on Behalf of the Respondents
In addition to the above, the learned counsel for the applicant has further relied upon various decisions of Hon’ble Supreme Court and High Courts in support of his claim.
On the other hand, the respondents submitted that the applicant was convicted in pursuance of FIR No.RC-28(A) 2001/DLI dated 16.03.2001, on serious charges of corruption under the Prevention of Central Administrative TribunalCorruption Act, 1988, and Section 120-B of the Indian Penal Code vide judgment dated 26.03.2011, receiving rigorous imprisonment and fines. Under Regulation 30 of the DDA (Conduct, Disciplinary and Appeal) Regulations, 1999, conviction on corruption charges mandates the imposition of major penalties such as removal or dismissal from service, leading to the forfeiture of service benefits. Although a penalty of compulsory retirement was initially passed on 02.04.2012, the matter was remitted to align with the mandatory provisions, culminating in the removal order dated 04.11.2013. Pay and allowances up to 04.11.2013, were duly disbursed pursuant to the directions of the CAT in OA No.644/2014.
The respondents contended that the subsequent issuance of the removal order dated 01.10.2018, by the Vice Chairman was necessitated purely to cure a technical defect regarding the competency of the issuing officer, without any change in the substantive penalty or the underlying facts of conviction. The appellate authority, while taking a fair view, modified the effective date of removal to 01.10.2018, and subsequently expunged the entry of unauthorized absence under Fundamental Rule 17(1), substituting it with a direction to treat the period from 05.11.2013 to 20.09.2018, as notionally in service. It is further submitted that the judgment convicting the applicant has not been stayed by the Hon’ble High Court of Delhi in the Criminal Appeal (Crl.A.587/2011) filed by the applicant but only the sentence for imprisonment has been suspended. Accordingly, the applicant remains under stigma of having been convicted under Prevention of Corruption Act, 1988.
In support of their contentions, the respondents relied upon the decisions of the Hon’ble Supreme Court in Union of India versus Jaipal Singh and the Hon’ble High Court of Madhya Pradesh in Munna Lal Mishra versus Union of India to maintain that an employee convicted of criminal offenses who remains out of service cannot claim back wages or financial allowances for the period he did not render service. Therefore, the order dated 27.09.2021, is lawful, just, and requires no interference.
In response to the submissions of the respondents, the applicant reiterated that the original order of removal dated 04.11.2013, was legally non-existent as it was passed by an incompetent officer in direct violation of Article 311(1) of the Constitution of India. Consequently, the respondents cannot take advantage of their own illegal actions to deprive the applicant of his legitimate service entitlements. The legal principle laid down in DDA versus S.C. Gautam and Suraj Prakash versus DDA (suspra) clearly establishes that when a penalty order is set aside due to lack of jurisdiction, the employee is deemed to continue under suspension or deemed service until a valid order is issued by the competent authority, making the employee eligible for subsistence allowance and pay for that duration.
It is further submitted that the applicant was prevented from rendering service solely due to the illegal and arbitrary removal orders issued by the respondents, and not due to any fault of his own. Furthermore, no show cause notice was served upon the applicant by the Vice Chairman prior to issuing the prospective removal order, violating the principles of natural justice and Article 311(2) of the Constitution. Therefore, the decision to deny pay and allowances and Central Administrative Tribunalto treat the period merely as notionally in service is unsustainable in law, and the applicant remains entitled to full regularization, pay, allowances, and pending increments.
We have heard the learned counsel for the parties and gone through the pleadings available on record.
The admitted facts are that the applicant was convicted and sentenced on 26.03.2011, in Corruption Case CC. No. 188/2007 registered by the C.B.I. vide RC No. 28(A)/2001 dated 16.03.2001. Applicant filed appeal before the Hon'ble High Court of Delhi and the Hon’ble High Court passed an order to stay the sentence but not his conviction. Consequent upon his conviction, Finance Member, DDA, as Disciplinary Authority, in exercise of his powers conferred under Regulation 30 of DDA (Conduct, Disciplinary & Appeal) Regulations, 1999 had imposed penalty of "Compulsory retirement" vide order dated 02.04.2012.
The applicant has not challenged the competency/jurisdiction of FM, DDA and has filed appeal before the Appellate Authority, i.e. V.C. DDA. The VC, DDA vide order dated 16.06.2012 remitted the case to FM, DDA for imposing a penalty in consonance with the proviso under Regulation 23 of the Regulations 1999. The FM, DDA as Disciplinary Authority, on 16.08.2013 decided to impose the penalty of "removal from Service" w.e.f 02.04.2012 i.e. with retrospective effect.
Feeling aggrieved by the penalty order and its retrospective effect, applicant filed OA No. 644/2014 before the CAT (PB) New Delhi and this Tribunal vide order dated 04.12.2014 has upheld the penalty but has ordered that it could only have a prospective effect. In compliance of the said order dated 04.12.2014 of this Tribunal, F.M, DDA vide order dated 26.05.2015, modified the penalty dated 04/8.11.2013 to give the penalty prospective effect with consequential benefit of pay & allowance for the intervening period.
Thereafter, the applicant has represented on 24.03.2017 to the VC, DDA and raised the plea of incompetency in the order dated 04.11.2013 passed by the F.M DDA without having jurisdiction as the Appointing Authority of the applicant is VC, DDA and the authority below than the Appointing Authority could not have jurisdiction to pass such order of removal from service. The VC, DDA vide his order dated 01.10.2018 disposed of the aforesaid representation dated 24.03.2017 by imposing the penalty of "Removal from service" w.e.f. 04.11.2013.
Feeling aggrieved, the applicant challenged order dated 01.10.2018 passed by VC, DDA before the Hon’ble Lt. Governor, Delhi. The Hon'ble Lt. Governor vide order dated 17.12.2019 modified the order dated 01.10.2018 to the extent that it will have prospective effect and directed the competent authority to decide treatment of intervening period as per the extant Rules and Regulations.
The Competent Authority vide order dated 09.04.2021 treated the intervening period from 04.11.2013 to 30.09.2018 as unauthorized absence under FR-17(1) on the ground that order dated 26.03.2011 passed by the Trial Court in corruption case has not been set aside by the Appellate Court and a person with conviction cannot be allowed to join duty. The Appellate Authority affirmed the order dated 09.04.2021 vide its order dated 03.09.2021.
The issue appears to be involved in the case is as to whether the intervening period from 04.11.2013 to 30.09.2018 can be treated as period spent on duty and as to whether the applicant is entitled for any wages for such period.
The Coordinate Bench of this Tribunal appears to have passed its order in view of the fact that the competent authority substituted the original penalty order of compulsory retirement dated 02.04.2012 with the penalty order of removal from service dated 16.08.2013. That notwithstanding, since the order dated 04.12.2024 in OA No. 644/2014 has attained finality, we refrain from commenting upon its propriety.
In the instant case, the applicant has adopted a belligerent attitude and kept the litigation alive for more than one decade merely on technical grounds. Unfortunately, both the parties proceeded with the case without any sense of responsibility. Applicant could have raised the issue of competency of FM, DDA that to pass penalty order dated 04.11.2013 in earlier round of litigation. On the other side, the respondent authority should have been vigilant on the aspect of competency while passing order of removal from service.
In MD Bala Saheb Desai Sahakari S.K. Ltd vs Kashinath Ganapati Kambale (2009) 2 SCC 288, the Hon’ble Supreme Court held that :
It is now well settled by a catena of decisions of this Court that having regard to the principles contained in Section 106 of the Indian Evidence Act the burden of proof to show that the workman was not gainfully employed is not on the employer. In this case, the burden of proof had wrongly been placed upon the appellant.
13.This Court in U.P. State Brassware Corpn. Ltd. vs. Uday Narain Pandey [(2006) 1 SCC 479] held:
61.It is not in dispute that the Respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well-settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Indian Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.
62.In Kendriya Vidyalaya Sangathan v. S.C. Sharma [(2005) 2 SCC 363], this Court held: (SCC p. 366, para 16) "...When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard."
In the case of Chairman cum Managing Director, Coal India Limited vs Ananta Saha (2011) 5 SCC 142, the issue of entitlement of back wages has been considered by the Hon'ble Supreme Court, which, consistently held that even after punishment/penalty imposed upon the employee is quashed by the Court or a Tribunal, the payment of back-wages still remain discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is re-instated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of re-instatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic.
From the above factual and legal background, it is noticed that the status of the applicant remained unchanged and he remained in the category of convicted for the reason that the judgment/order of the Trial Court whereby the applicant was convicted remained unaffected. The convicted person cannot be allowed to join duty or to be reinstated into service. The applicant has adopted a belligerent attitude and has not raised the issue of incompetency of FM DDA at the initial stage i.e. before the Appellate Authority or before this Tribunal. He only raised the issue of incompetency of the FM DDA on 24.03.2017 whereas the original order for compulsory retirement was issued on 02.04.2012 by the same authority.
Keeping in view the fact that the applicant could have raised this issue of incompetency at initial stage on 02.04.2012 or 04.11.2013, and the fact that the status of the applicant remained convicted throughout the period and the law laid down by the Hon’ble Supreme Court in Kashinath Ganapati Kambale (supra) is clear on the subject, we found no merit in the OA and the same deserves to be dismissed and as a result thereof, the OA is dismissed accordingly.
All pending MAs, if any, shall stand disposed of. There shall be no order as to costs.