Mahabir Singh vs Chairman-cum-MD And Ors

V. Ajay Kumar, J

The applicant, a retired Driver of the respondent-Delhi Transport Corporation (in short DTC), filed the OA seeking to quash the order dated 28.09.2013 wherein his request for payment of full pay and allowances for the suspension period, i.e., from 28.08.2006 to 29.05.2009 along with increments and consequential benefits.

The applicant, while working as Driver in the respondent-DTC, in view of his involvement in a criminal case filed under Sections 498-A/304-B of IPC and registration of an FIR against him and in view of his detention in the judicial custody, beyond the period of 48 hours, was placed under suspension with effect from 28.08.2006. Thereafter, even during the pendency of the criminal case, however, considering his representation, he was reinstated into service on 30.05.2009. During the pendency of the criminal case, the applicant retired from service on 31.08.2010 on attaining his superannuation. However, the applicant was acquitted from the criminal case by a judgment dated 12.09.2012 of the competent criminal court. As a result, the applicant's service was regularized and all his retirement benefits including pensionary benefits were released by counting his suspension period also. However, insofar as the full salary for the suspension period is concerned, as the reason for his suspension was not due to any action of the respondents and that the same was due to his personal conduct, the payment for the said suspension period was restricted to the subsistence allowance already paid to the applicant for the said period and the respondents passed the impugned order dated 29.08.2013 to this effect. Hence, the OA.

Heard Dr. N. Gautam, the learned counsel for the applicant and Shri Manish Garg, the learned counsel for the respondents and perused the pleadings on record.

Dr. N. Gautam, learned counsel appearing for the applicant submits that in terms of Regulation 15 of DTRA (Conditions, Appointment and Service) Regulations, 1952, he is entitled for full pay and allowances for the suspension period, in view of his acquittal from the criminal case. He placed reliance on the judgment of the Hon'ble Apex Court in Prem Nath Bali Vs. Registrar, High Court of Delhi and Others in Civil Appeal No.958/2010 dated 16.12.2015, in support of his submission.

On the other hand, Shri Manish Garg, the learned counsel appearing for the respondents submits that the arrest and detention of the applicant beyond 48 hours which was the reason for his suspension was due to his personal conduct and not because of any of the action taken by the respondents and hence, the applicant is not entitled for the full pay for the suspension period. The learned counsel placed reliance on the following decisions of the Hon'ble Apex Court in support of his submissions:-

(i) Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Another, AIR 1997 SC 1802.

(ii) Union of India and Others Vs. Jaipal Singh, (2004) 1 SCC 121.

Regulation 15 (4) of The DRTA Regulations, 1952 reads as under:-

"(4) Suspension:- (a) An employee under suspension will be entitled during the first year of suspension to subsistence allowance equal to the leave salary which he would have drawn if he had been on leave on half pay and for any period subsequent thereto at three quarters of such an amount.

Provided that an employee may be granted in addition any compensatory allowance e.g. dearness, house rent etc. of which he was in receipt on the date of suspension to such extent and subject to such conditions as the suspending authority may direct.

Provided further that the amount of dearness allowance should not exceed amount admissible as such on the subsistence allowance paid from time to time.

(b) When the suspension of an employee is held to have been unjustified or when an employee who has been dismissed, removed or suspended is reinstated, the revising or appellate authority may grant to him for the period of his absence from duty.

(i) If he is acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or

(ii) If otherwise, such promotion of such pay and allowances as the revising or appellate authority may prescribe.

In a case falling under clause (i) the period of absence from duty will be treated as period spent on duty. In case falling under clause (ii) it will not be treated as a period spent on duty unless the revising or appellate authority so direct".

A bare perusal of Regulation 15(4) indicates that if any employee who was placed under suspension for a certain period and on his acquittal from the criminal court, is entitled for full pay to which he would have been entitled, if he had not been suspended. But a careful reading of the same also indicates that the suspension of the employee was due to contemplation of any departmental proceedings by the authorities and the treatment of the same is dependent on the final disciplinary/appellate/revisional orders. No specific distinction between the suspension made due to the personal/private conduct of the applicant, without there being any initiation or involvement of the respondents and the suspension made due to his alleged misconduct relating to his official duties, is made though.

In Ranchhodji Chaturji Thakore (supra) wherein the applicant was charged for an offence under Section 302 read with 34 IPC and was acquitted in a criminal appeal, the Hon'ble Supreme Court observed as under:-

"3..... The only question is: whether he is entitled to back wages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant, Each case requires to be considered in his own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned single judge and the Division Bench have not committed any error of law warranting interference.

In Jaipal Singh (supra), after considering Ranchhodji's case (supra), it was held as under:-

"4.....On going through the same, we are in respectful agreement with the view taken in Ranchhodji [1996] 11 SCC 603 (supra). If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and it after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing re-instatement cannot be sustained and the respondent has to be re-instated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court in so far as it directed payment of back wages are liable to be and is hereby set aside".

In Prem Nath Bali (supra), while holding that the respondents-authorities were also responsible for delay in completion of the disciplinary proceedings, held that the appellant therein is entitled for counting of his suspension period for determining his pension and for payment of arrears of difference of pay, which is not the case in the instant OA and hence the said decision has no application.

It is not in dispute that the reason for suspension of the applicant was his own private conduct. Though he was acquitted finally by the criminal court, but the respondents were prevented from availing his services during the suspension period, because of the involvement of the applicant in the offences, alleged against him. Further, the respondents admittedly, counted the suspension period for the purpose of calculating his pensionary and retirement benefits and only restricted the pay for the said period to the subsistence allowance already paid. In view of the decisions in Ranchhodji Chaturji Thakore (supra) and Jaipal Singh (supra), we hold that Regulation 15(4), is not applicable to the situation on hand, and accordingly, we do not find any illegality in the action of the respondents.

In the circumstances and for the aforesaid reasons, the OA is dismissed. No costs.