R.N. Singh, Member (J)
1. By filing the instant OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-
“i. Allow the present Original Application;
ii. Quash the impugned order dated 12.10.2017 passed by the respondent; and
iii. Pass such other order or orders as are deemed fit and proper in the facts and circumstance of the case.”
2. We have heard learned counsel for the parties and perused the pleadings as well as the judgment(s) relied upon by the learned counsels for the parties.
3. Pursuant to notice, the respondent has filed reply opposing the claim of the applicant. The applicant has filed rejoinder wherein besides reiterating the claim as made in the OA has refuted the averments made by the respondent in the counter reply.
4. Brief facts of the case are that the applicant was working as Assistant Engineer (Civil) (in short ‘AE (C)’) in the New Delhi Municipal Council (hereinafter referred to as ‘NDMC’) in the year 1981. On 16.12.2003, the Anti Corruption Branch raided the office of the respondent in view of an alleged frivolous complaint of demanding and accepting a bribe of Rs.2000/- to release the security deposit of the complainant, namely, Mr. Surender Bharghaw and an FIR No.71/03 dated 16.12.2003 under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 was registered and the applicant was arrested and kept in police custody. Thereafter vide order dated 31.12.2003, the respondent placed the applicant under deemed suspension w.e.f. 16.12.2003. Subsequently, vide order dated 11.10.2005, the respondent accorded sanction for prosecuting the applicant under Section 19(1)(c) of the Prevention of Corruption Act, 1988. Thereafter, vide office order dated 2.5.2006, according to the applicant, he was reinstated in service without prejudice to the final outcome of the court case pending against him. The applicant was issued a charge sheet vide Office Memorandum dated 13.3.2008 for major penalty proceedings for demanding and accepting bribe of Rs.2000/- from the complainant in consideration to return his security deposited with the NDMC. On 30.6.2009, the applicant retired from services after attaining the age of superannuation. Vide letter dated 2.6.2010, the Addl. Commissioner of Police, Anti-Corruption Branch, Delhi informed that the applicant has been convicted by the learned Special Judge, Delhi in CC No.15/06 vide judgment dated 7.5.2010 and the following sentence has been awarded to the applicant:-
“to undergo RI for a period of three years and a fine of Rs.30,000/- (Rs. Thirty thousand Only) u/s 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of six months. Convict is further sentences to undergo RI for a period of three years and a fine of Rs.30,000/- (Rs. Thirty thousand) u/s 13(2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo SI for a period of six months. Both the sentences shall run concurrently and the convict shall be entitled to benefit under Section 428 Cr. P.C.”
4.1 The applicant has submitted his representation dated 28.7.2010 (Annexure A4) to the respondents stating that his appeal (Crl. APP. 604/2010 and Crl. M.B. 708/2010) against the aforesaid conviction order has been admitted by the Hon’ble Delhi High Court and his conviction has been suspended vide order dated 3.6.2010 and vide interim order dated 22.7.2010, the Hon’ble Delhi High Court directed that interim order dated 3.6.2010 (for suspension of conviction) will continue till final disposal of the said appeal. The disciplinary authority vide impugned order dated 12.10.2017 (Annexure A1) rejected the aforesaid representation of the applicant and imposed a penalty to withdraw the two-third of the pension as well as gratuity permanently upon the applicant. Aggrieved by the aforesaid impugned order, the applicant has filed the present OA for redressal of his grievances.
5. During the course of hearing, the learned counsel for the applicant has argued that the impugned order dated 12.10.2017 is arbitrary and untenable in law as the same has been passed by the respondent in a mechanical manner and without application of mind. He has further submitted that prima facie the impugned order is bad in law as the same has been passed without taking into consideration the fact that criminal appeal against the aforesaid conviction order preferred before the Hon’ble Delhi High Court (supra) has been admitted and that the aforesaid sentence of conviction has been suspended till the final disposal of the said appeal and the Hon’ble High Court has found prima facie merit in the said criminal case and the applicant is likely to succeed in the same. However, the respondent sent a show cause notice and later vide impugned order dated 12.10.2017 withdrew the two-third of pension as well as gratuity permanently of the applicant without considering the fact that the aforesaid criminal appeal is pending adjudication before the Hon’ble High Court and therefore, the aforesaid action of the respondent is arbitrary, illegal and premature. Learned counsel has further argued that in the representation dated 28.7.2010, the applicant has stated that the Hon’ble High Court was pleased to suspend the sentence of conviction in terms of Section 389 of Cr.P.C. and the respondent has wrongly interpreted that the applicant has stated that conviction has been suspended by the Hon’ble High Court as the applicant has specifically mentioned that ‘sentence of conviction’ has been suspended till the final disposal of the appeal. Learned counsel has further added that the impugned order has been passed by the respondent without any authority in law since the same talks about withdrawal of pension, which can only be done under the orders of the President of India. In support of the claim of the applicant, learned counsel for the applicant has placed reliance on the common Order/Judgment of this Tribunal in OA Nos.2110/2017 and 2137/2017, titled Subhash Chandra Aggarwal vs. Chairman, New Delhi Municipal Council and another, and connected case.
6. On the other hand, the learned counsel for the respondents by referring to the submissions made in the counter reply, has opposed the claim of the applicant by submitting that it is not disputed that the applicant has been convicted and awarded sentence by the learned trial court in the aforesaid case FIR vide order/judgment dated 10.5.2010 (Annexure A-2), however, in the representation dated 28.7.2010, the applicant has averred that the Hon’ble High Court has suspended the sentence of conviction vide interim order dated 3.6.2010, however, vide interim order dated 3.6.2010, the following order was passed by the Hon’ble High Court:-
“....Till the next date of hearing the sentence of the applicant is suspended subject to his furnishing a personal bond in the sum of Rs.25,000/- with two sureties of the like amount subject to the satisfaction of the trial court. It is stated by the learned counsel for the Appellant that the fine has already been paid.”
6.1 Learned counsel for the respondents has argued that from the aforesaid, it is evident that only sentence has been stayed by the Hon’ble High Court, not his conviction. Learned counsel for the applicant has further submitted that there is a difference between the suspension of sentence and the suspension of conviction and that merely filing and admission of an appeal or even grant of bail/suspension of sentence does not obliterate the judgment of conviction as an order granting stay of conviction has a different connotation and meaning, which the applicant understands very clearly as he being a man of prudence and still intimated through his representation dated 28.7.2010 that there was suspension of the conviction. He has further added that without giving much weightage to how, it has been intimated about his conviction, sentence, etc. In his representation and how the same is referred to in the impugned order, fact remains that his conviction is not stayed by the learned Appellate Court. to how it has been Learned counsel has also submitted that in a number of cases, the Hon’ble Supreme Court has drawn this distinction between an order suspending the sentence and an order staying the conviction of an accused. Learned counsel has also submitted that an order suspending the sentence does not affect the order of conviction and the conviction does not cease to be operative. It only has the effect of releasing the appellant accused on bail. However, stay of conviction, which is rare and an exception, has the effect of staying the conviction itself, i.e., the conviction will not be operative though this by itself does not render the conviction or the judgment non-existent. In the instant case, the applicant while intimating the respondent – NDMC vide his representation dated 28.7.2010 (Annexure A4) intimated the fact of his conviction, sentence in vague manner for the reasons known to him. The said para of his such representation is reproduced below:-
“Hon’ble High Court on 22nd July, 2010, while hearing the admissibility of my appeal have ordered its admission and have further ordered that the interim Order of June 3, 2010 (i.e., Suspension of Conviction) will continue till the disposal of the Appeal.”
6.2 Learned counsel for the respondents has further submitted that the impugned penalty order was passed by the respondent inter alia as per the provisions of Rule 9 of the CCS (Pension) Rules, 1972 and Rule 19 (i) of CCS (CCA) Rules, 1965 and thus in view of the aforesaid provisions of the Rules ibid, the action of the respondents imposing the aforementioned penalty upon the applicant vide the impugned order is justified, as the powers of the Hon’ble President of India with respect to Rule 9 of the CCS (Pension) Rules, 1972 has been delegated to the Chairman, NDMC vide notification of New Delhi Municipal Council (Conditions of Service of Municipal Officers) Regulations, 2016 (Annexure R/1) notified on 7.4.2016 by the Govt. of NCT of Delhi after approval of the New Delhi Municipal Council and the Ministry of Home Affairs, Government of India. In support of his contention, he has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Union of India and others vs. Ramesh Kumar, reported in (1997) 7 SCC 514, and also on the Order/Judgment dated 13.9.2013 of this Tribunal in OA No.1175/2012, titled P.C. Misra vs. Union of India and others. So far as reliance placed by the learned counsel for the applicant in the case of Subhash Chandra Aggarwal (supra) is concerned, learned counsel for the respondents has produced a copy of Order dated 28.5.2019 in W.P. (C) N0.6089/2019, preferred by the respondents before the Hon’ble Delhi High Court to challenge the common Order/Judgment dated 25.1.2019 in the case of Subhash Chandra Aggarwal (supra), vide which the Hon’ble High Court stayed the operation of the aforesaid common order/judgment dated 25.1.2009 passed in Subhash Chandra Aggarwal’s case (supra).
7. Having heard the learned counsels for the parties and perusing the records of the case as well as aforesaid judgments, it is observed that it is undisputed that the applicant is held to be involved in the case FIR No.71/03 filed under Section 7/13 of the Prevention of Corruption Act, 1988, and the learned Special Judge, Delhi vide Order/Judgment dated 7.5.2010 has held the applicant guilty and convicted him for committing offences under Sections 7 and 13 (1)(d) punishable under Section 13 (2) of the Prevention of Corruption Act, 1988 and thereafter vide Order dated 10.5.2010 in the said case FIR, the learned Special Judge, Delhi awarded the sentence, the same is reproduced hereinbelow:-
“5 Keeping in view the facts and circumstance of this Case, I sentence convict A. K. Bajai s/o Sh, B. D. Bajaj to undergo RI for a period of three years and a fine of Rs. 30,000/- (RS. thirty thousand) u/s 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of six months. Convict is further sentenced to undergo RI for a period of three years and a fine of Rs. 30,000/- (Rs. thirty thousand) u/s 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo SI for a period of six months. Both the sentences shall run concurrently and the convict shall be entitled to benefit under section 428 Cr. P.C.”
8. Now the issue which arises for our consideration is whether on suspension of sentence awarded in the criminal trial by the learned Appellate Court, the order of penalty based on conviction stands obliterated or not.
9. Such issue is no more res integra in view of the judgment of the Hon’ble Supreme Court in the case of Ramesh Kumar (supra) in which the Hon’ble Supreme Court has ruled as under:-
“6. A bare reading of Rule 19 shows that the disciplinary authority is empowered to take action against a government servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentence by the appellate court the order of dismissal based on conviction stands obliterated and the dismissed government servant has to be treated under suspension till disposal of appeal by the appellate court. The rules also do not provide the disciplinary authority to await disposal of the appeal by the appellate court filed by a government servant for taking action against him on the ground of misconduct which has led to his conviction by a competent court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a competent court of law has not lost its sting merely because a criminal appeal was filed by the respondent against his conviction and the appellate court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angle. Under Section 389 of the Code of Criminal Procedure, the appellate court has power to suspend the execution of sentence and to release an accused on bail. When the appellate court suspends the execution of sentence, and grants bail to an accused the effect of the order is that the sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under Section 389 CrPC an accused avoids undergoing sentence pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a government servant on a misconduct which led to his conviction by the court of law does not lose its efficacy merely because the appellate court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell into error in holding that by suspension of execution of sentence by the appellate court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of criminal appeal by the High Court.”
10. Further this Tribunal in the case of P.C. Misra (supra) has held as under:-
“29.....If we accept the plea of the applicant that the suspension of criminal sentence would indefinitely remain in limbo and all the rights existing prior to the criminal sentence are suo motu to be continued, then this would not only put fetters on the provision of Rule 9(1) of the Pension Rules, 1972 but also by and large render the provisions of Rule 41 meaningless. This is not the spirit of the legislature. A punishment is always expected to have a deterrent effect. A point of equilibrium has to be arrived at between the individual justice and deterrent punishment. If it is overweighed on the side of individual justice, the cause of the Government and that of ordinance happen to be undermined.
30. In view of our above discussion, we are very clear in our opinion that Rule 41 and Rule 9 are two different rules. We are also of the view that the applicant has not been able to establish his case for grant of continued provisional pension for the reasons that we have discussed above. Original Application thus stands dismissed leaving the parties to bear their own costs. We leave it open, at the same time, to the applicant to apply for compensate allowance u/r 41 of the CCS (Pension) Rules, 1972 which the respondent authorities may consider on its merits.”
11. So far as reliance placed by the learned counsel for the applicant on the decision of this Tribunal in the case of Subhash Chandra Aggarwal’s case (supra) is concerned, as noted above, learned counsel has placed on record a copy of Order dated 28.5.2019 of the Hon’ble Delhi High Court in W.P.(C) No.6089/2019, titled New Delhi Municipal Council and another vs. Subhash Chandra Aggarwal, vide which the Hon’ble High Court of Delhi has stayed the operation of the order/judgment of this Tribunal dated 25.1.2019 passed in the aforesaid case of Subhash Chandra Aggarwal (supra). Moreover, in the present case, there is no challenge to any Rule. Moreover, this Tribunal in the said case set aside the Clause (2) (b) of Regulation 5 of the New Delhi Municipal Council (Conditions of Service of Municipal Officers) Regulations 2016, insofar as it confers the powers upon the Chairperson of the second respondent therein, the power exercisable by the President under Rule 9 of the CCS (Pension) Rules, 1972, which has admittedly been stayed by the Hon’ble Delhi High Court vide order dated 28.5.2019 (supra). Thus the order/judgment of this Tribunal in the case of Subhash Chandra Aggarwal (supra) does not help the applicant.
12. In view of the facts and circumstances of the case and keeping in view the law laid down by the Hon’ble Supreme Court in the case of Ramesh Kumar (supra) and also the order/judgment of a co-ordinate Bench in the case of P.C. Misra (supra), we are of the considered view that the present OA lacks merit and deserves to be dismissed. We order accordingly. We leave the parties to bear their respective costs.
13. Before parting. we may, however, add that in the eventuality of the applicant’s criminal appeal succeeding, his claim for pension and other retiral dues, which have been denied to him by virtue of the order dated 12.10.2017, would need reconsideration in the light of the aforesaid.
