Dev Dutt Sharma Vs. Municipal Corporation of Delhi Through Its Commissioner, Town Hall and Others - Court Judgment

M.L. Chauhan, Member (J):

This is the second round of litigation. Earlier the applicant had filed Writ Petition No.579/2005 against the order of dismissal dated 15.10.1999. The said Writ Petition was transferred to this Tribunal, which was registered as TA No.1223/2009. This Tribunal vide order dated 15.12.2009 directed the Commissioner, MCD to treat the said TA as supplementary revision of applicant and dispose of the same by a reasoned order to be passed within a period of 03 months from the date of receipt of a copy of that order. Pursuant to the direction given by this Tribunal the respondents have again passed the order dated 07.06.2010, thereby enclosing a detailed speaking order, upholding the order of the disciplinary authority dated 15.10.1999, inflicting the penalty of dismissal from service with a modification to the extent that penalty of dismissal from service shall not be a disqualification for future employment. It is this order, which is under challenge in this OA and the applicant has sought the following reliefs:

“a)  Quash the order dated 2.6.2010 passed by respondent no.1 vide which the applicant has been ordered for removal from service which was intimated to the applicant vide letter dated 7.6.2010 and to direct the respondents to reinstate the applicant on his post of teacher from retrospective effect and to grant him all service and retire mental benefits.

b) To pass such order or orders as the Hon’ble Tribunal deem fit and proper to meet the ends of justice.

c) Award cost of proceedings and

d) Pass any order/direction which this Hon’ble Tribunal deem fit and proper in favour of the applicant and against the respondents in circumstances of the case.”

2. In order to decide the matter in controversy, few facts may be noticed. Applicant while working as an Assistant Teacher in MCD was placed under deemed suspension w.e.f. 31.12.1994 due to his arrest/detention in judicial custody under Section 325/323/34 IPC. He was reinstated in service without prejudice to the final outcome of the court case vide office order dated 05.08.1997. However, the applicant was convicted in the said criminal case by the Trial Court and was sentenced to undergo RI for one year with a fine of Rs.3000/- under section 325/323/148/149 IPC. The disciplinary authority (DA) after considering the facts of the case came to the conclusion that the conduct and heinous act of applicant which led to his conviction holds him ineligible for municipal service and accordingly proposed the penalty of dismissal from service which shall ordinarily be disqualification for future employment by invoking Regulation 9 (1) of the DMC Service (Control and Appeal) Regulations 1959 readwith Section 95 of the DMC Act. Accordingly, a show cause notice was issued to applicant to which applicant filed an reply in which the stand taken by the applicant was that the Additional Session Judge, Faridabad has admitted his appeal and suspended the sentence order. As such the decision in the matter may be taken in the light of the aforesaid facts and keeping in view the principles of natural justice. However, as already stated above, the DA after considering the reply of the applicant proposed the penalty of dismissal from service, which ordinarily shall be a disqualification for future employment vide order dated 15.10.1999, which was issued and notified vide office order dated 24.11.1999. However, the applicant slept over the matter and it is only after a lapse of about six years the applicant has filed the Writ Petition before the High Court, which was registered as Writ Petition (Civil) No.579/2005 and was subsequently transferred to this Tribunal. It is on the basis of these facts the matter is required to be considered as to whether the impugned order passed by the respondents is required to be interfered with and whether the applicant is entitled to be reinstated in service with retrospective effect, i.e., w.e.f. 15.10.1999.

3. Admittedly, the applicant has been convicted by the Trial Court for the offences under Section 323/325/148/149 IPC. The judgment of the Trial Court has been affirmed by the Appellate Court. Further the judgments of the Trial Court as well as the Appellate Court have been upheld by the High Court while dismissing the Revision Petition filed by the applicant. The judgment of the High Court passed in Criminal Revision filed by the applicant has been placed on record as Annexure A-10. As can be seen from this judgment the Honble Judge has categorically held that the testimony of the witnesses stands supported by the medical evidence. Thus, the finding recorded by both the Courts below regarding guilt of the petitioners cannot be disturbed on the ground of minor discrepancies in their statements. Now coming to the nature of injuries on the person of Parmod Kishen, the injuries on the 3rd and 4th fingers were found grievous whereas the medical condjle of humorous of Mahesh Dutt was found fractured. However, the learned Single Judge taking into consideration that the petitioner has suffered a lot due to the pendency of the proceedings for the last 16 years, while dismissing the Petition modified the sentence to the extent that the petitioners are extended the benefit of probation on furnishing a bond in the sum of Rs.5,000/- with one surety in the like amount directing that the petitioner would remain of good conduct and maintain peace during the aforesaid period, failing which he would pay a sum of Rs.6000/-. Thus the fact remains that the conviction of the applicant for the aforesaid offence has been upheld upto High Court and the applicant has been found guilty of causing grievous injuries to the complainant/injured. Thus, it cannot be said that the conviction of the applicant by the Court was on a technical or on trivial nature. Further, the fact that the applicant has been convicted by the Trial Court is sufficient proof of misconduct on his part.

4. It is true that the conviction itself is not sufficient to inflict a major punishment upon applicant, in terms of the provisions contained in Regulation 9 (1) of the DMC Service (Control and Appeal) Regulations 1959 readwith Section 95 of the DMC Act, which is in pari meteria with the CCS (CCA) Rules, 1965. The disciplinary authority, after coming to know that the government servant has been convicted on criminal charge, has to consider whether his conduct, which has led to his conviction, was such as warrants imposition of penalty and if so what penalty could be imposed. For that purpose, it will be relevant to peruse the judgment of the criminal court and consider all the facts and circumstances of the case. It is also settled law that merely because the sentence is suspended and accused is released on bail, the conviction dose not cease to be operative and also that the action should be deferred till the appeal, if any, filed by the person is not decided. Further, in case the person has been released on probation that fact itself does not obliterate the conviction of a person.

5. Now, let us consider the impugned order, which has been passed by the DA pursuant to the directions given by this Tribunal, in the light of the above legal position. The competent authority has given the following reasons in order to justify their action for imposition of penalty of dismissal, which will not be a disqualification for future employment and read thus:

“I have gone through the relevant records of the case placed before the undersigned alongwith the contentions of Shri Dev Dutt Sharma. After considering all facts and circumstances of the case in their entirety I am of the view that no lenient view can be taken in the case of Shri Dev Dutt Sharma. Since Shri Dev Dutt Sharma was in a noble profession of teaching it was not expected from him to indulge in such criminal act which led to his conviction u/s 325/323/148/149 of IPC. The penalty of dismissal from service which shall be a disqualification for future employment was inflicted upon Shri Dev Dutt Sharma by the Disciplinary Authority by invoking Regulation 9 (1) of the DMC Service (Control and Appeal) Regulations 1959 r/w Section 95 of the DMC Act. As per these provisions issuance of a show-cause notice to the convicted official is not mandatory even though a show-cause notice was issued to Shri Dev Dutt Sharma. The Hon’ble Division Bench of the High Court of Delhi in CWP No.8948/2009 titled as Manish Grover V/s MCD held that the issue of show-cause notice is not required before inflicting penalty in the case of convicted employees. The Hon’ble Court further held that it will not amount to discrimination even if a show-cause notice is issued in such similar cases. Further the conviction of Shri Dev Dutt Sharma has not been set aside by the Hon’ble High Court of Punjab and Haryana. The Hon’ble High Court dismissed the Criminal Revision Petition with a modification in the sentence to the extent that the petitioners are extended benefit of probation on furnishing a bond in the sum of Rs.5,000/- with one surety in the like amount on the ground that the occurrence in this case took place sixteen years back, the sword of sentence remained hanging over their heads since then and they are ready to compensate the injured. A perusal of the records further reveals that Shri Dev Dutt Sharma would have retired on 31/05/2008 had he not been dismissed from service.

Considering all facts and circumstances of the case in their entirety and the conduct of Shri Dev Dutt Sharma which led to his conviction I hereby uphold the orders passed by the Disciplinary Authority dated 15/10/1999 inflicting the penalty of dismissal from service with modification to the extent that the penalty of dismissal from service shall not be a disqualification for future employment.

CVO may take further necessary action in the matter.”

6. Besides quoting the aforesaid reasoning the competent authority has also relied upon the finding of the Session Court, Faridabad, whereby while upholding the conviction order passed by the Trial Court the Session Court observed that:

“The accused appellants behaved liked hardened criminals. Merely because no previous conviction against them is alleged or proved, it does not mean that they automatically became entitled to benefit of probation.”

Thus, on the basis of the reasoning given by the competent authority, we are of the view that it is not permissible for us to interfere in the matter while exercising the power of judicial review. In this case applicant has been dismissed from service w.e.f. 15.10.1999 and he would have been retired on superannuation on 31.05.2008 in case he would not have been dismissed from service. The applicant challenged the order of dismissal from service by filing a Writ Petition in the year 2005, i.e., after a lapse of about 06 years. Thus, the applicant himself is also guilty of not agitating the matter immediately after his dismissal in case the applicant was aggrieved with the punishment imposed upon him by the DA is excessive and not commensurate with the gravity of the offence committed by him. Thus, at this stage the relief of reinstatement of applicant from back date, i.e., w.e.f. 15.10.1999 cannot be granted.

7. Learned counsel of applicant has placed reliance upon the judgment of the Apex Court in the case of State of M.P. v. Hazari Lal, 2008 (3) SCC (LandS) 273. That was a case where the respondent before the Apex Court, who was a peon in the middle school, was convicted under Section 323 of the IPC. The Tribunal held that the penalty of removal from service is grossly excessive because the offence committed was under Section 323 IPC. The judgment of the Tribunal was upheld by the Apex Court. We fail to understand as to how applicant can take any assistance from this judgment. Here the applicant has been held guilty of causing grievous injuries to the complainant. It is not a case of simple injury. Thus, applicant cannot take any assistance from this judgment. Further contention raised by the learned counsel for the applicant that the applicant has not committed the offence involving moral turpitude, as such could not have been imposed penalty of dismissal from service and the provision of Regulation 9 (1) are not attracted, cannot be accepted. Simply because applicant has not been convicted for any act involving moral turpitude and as such the provisions of Regulation 9 (1) of the 1959 Regulations readwith Section 95 of the DMC Act, corresponding to Rule 19 (1) of the CCS (CCA) Rules, 1965 are not attracted will amount to reading something which is not there in the said rule. As already stated above, it is the conduct which has led to the conviction of a person which has to be taken into consideration for imposition of penalty and not the conviction based on moral turpitude. As already stated above, the offence committed by the applicant, for which he has been convicted, cannot be said to be a technical or a trivial nature. Thus, we see no infirmity in the action of the respondents while imposing the punishment. Simply because applicant has been extended the benefit of probation will not obliterate the conviction and it is permissible for the competent authority to dismiss/remove or reduce in rank a person on the ground of conduct, which had led to his conviction on a criminal charge. The law on this point is no longer res integra. The Apex Court in the case of Union of India v. Bakshi Ram, 1990 SCC (LandS) 288 while considering the effect of applicability of Section 3 of the Probation of Offenders Act and referring to the decision of the Apex Court in the case of Division Personnel Officer, Southern Railway v. T.R. Chellappan, 1976 (3) SCC 190 in paras 10 and 11 has held as under:

“10. In criminal trial the conviction is one thing and sentence is another. The departmental punishment for misconduct is yet a third one. The court while invoking the provisions of Section 3 or 4 of the Act does not deal with the conviction; it only deals with the sentence which the offender has to undergo. Instead of sentencing the offender, the court releases him on probation of good conduct. The conviction however, remains untouched and the stigma of conviction is not obliterated. In the departmental proceedings the delinquent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge [See Article 311(2)(b) of the Constitution and Tulsiram Patel case.

11. Section 12 of the Act does not preclude the department from taking action for misconduct leading to the offence or to his conviction thereon as per law. The section was not intended to exonerate the person from departmental punishment. The question of reinstatement into service from which he was removed in view of his conviction does not therefore, arise. That seems obvious from the terminology of Section 12. On this aspect, the High Courts speaks with one voice.”

It was further observed:

“13. Section 12 is thus clear and it only directs that the offender shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. Such law in the context is other law providing for disqualification on account of conviction. For instance, if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of Section 12 stands removed. That in effect is the scope and effect of Section 12 of the Act. But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstatement upon getting the benefit of probation of good conduct. Apparently, such a view has no support by the terms of Section 12 and the order of the High Court cannot, therefore, be sustained.”

8. The view taken by the Apex Court in the case of Bakshi Ram (supra) was further reiterated in the case of Hari Chand v. Director of School Education, (1998) 2 SCC 383, whereby in para-7 the Apex Court has held as under:

“7. In our view, Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under the law which provides for the offence and its punishment. That is the plain meaning of the words disqualification, if any, attaching to a conviction of an offence under such law therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not, by reason of Section 12, suffer the disqualification. It cannot be held that, by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service.”

9. Thus, if the matter is viewed in the light of the law laid down by the Apex Court we are of the view that simply because applicant has been granted the benefit under the Probation of Offenders Act, the competent authority in departmental proceedings can dismiss or remove or reduce in rank the delinquent official on the ground of conduct, which has led to his conviction on a criminal charge.

10. In the result, for the foregoing reasons, we are of the view that the applicant has not made out any case for grant of relief. Accordingly, the OA is dismissed, without, however, any order as to costs.