Delhi High Court Municipal Corporation Of Delhi vs Malti Devi & Ors. on 2 December, 2011Author: Rajiv Sahai Endlaw

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 2nd December, 2011.

+ W.P.(C) 3664/2011

% MUNICIPAL CORPORATION OF DELHI …….Petitioner Through: Mr. Gaurang Kanth, Advocate.

Versus

MALTI DEVI & ORS. ….. Respondents Through: Counsel for the respondents (appearance not given).

CORAM :-

HON’BLE THE ACTING CHIEF JUSTICE

HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. Sh. Vijay Pal Singh Sahu, being the husband and father respectively of the respondents herein, was employed with the petitioner MCD, initially in the year 1974 as a Warden and subsequently in June, 1981 promoted as Pharmacist; he was along with certain other persons accused in an FIR under Sections 498A/406/34 IPC; vide judgment dated 7th April, 1993 in the said prosecution, though he was acquitted of offence under Section 498A IPC but convicted under Sections 406 to undergo rigorous imprisonment of six months and payment of fine for possessing dowry items which were recovered from his residence; an appeal was preferred against the said

W.P.(C) No.3664/2011 Page 1 of 5 judgment and he was released on bail.

2. The petitioner MCD, on account of conviction of the said Sh. Vijay Pal Singh Sahu, vide order dated 7th October, 1999 removed him from service by invoking Regulation 9(1) of the DMC Service (Control & Appeal) Regulations, 1959.

3. A writ petition being CWP No.6927/1999 was preferred by the said Sh. Vijay Pal Singh Sahu against the order of his removal from service. The said writ petition was disposed of vide order dated 16 th October, 2000 directing the said Sh. Vijay Pal Singh Sahu to avail the remedy of departmental appeal. The said appeal was also dismissed by the Lt. Governor, Delhi vide order dated 2nd May, 2001. The said order records that the FIR aforesaid was at the instance of the wife of the nephew of Sh. Vijay Pal Singh Sahu and also that the department was not bound to wait for the result of the appeal against the conviction preferred by the said Sh. Vijay Pal Singh Sahu especially when the offence of which he has been convicted was grave misconduct against the weaker sex and which was unbecoming of a responsible government servant and rendering him unfit to continue in service. The said Sh. Vijay Pal Singh Sahu thereafter applied for and got revived CWP No.6927/1999.

4. During the pendency of the said writ petition and the appeal against the conviction order, Sh. Vijay Pal Singh Sahu died on 31 st July, 2006. While his legal heirs were substituted in the writ petition, the appeal against the conviction was disposed of as abated. Upon notification under Section

W.P.(C) No.3664/2011 Page 2 of 5 14 of the Administrative Tribunals Act, 1985 being issued with respect to MCD, the writ petition was transferred to the Tribunal and registered as T.A.No.1127/2009.

5. The Tribunal has vide order dated 15th July, 2010 impugned in this petition held, that the conduct of Sh. Vijay Pal Singh Sahu leading to conviction was very petty, of retaining few utensils of dowry of his nephew’s wife; that there were extenuating circumstances of his wife being a T.B. patient; that the disciplinary authority as well as the appellate authority had not considered the said aspects and had not considered that Sh. Vijay Pal Singh Sahu had been acquitted of the charge under Section 498A IPC; that every conviction may not be a moral turpitude, that role of Sh. Vijay Pal Singh Sahu was not the main role as he was merely an uncle; that there had been non-application of mind by the disciplinary authority and the appellate authority. Accordingly, Sh. Vijay Pal Singh Sahu was deemed to have been reinstated in service with effect form 7th October, 1999 and deemed to have been in service till his demise and which period was directed to be computed for determining his qualifying service for the purpose of retiral dues. Direction was issued for release of the retiral dues to the legal heirs.

6. While issuing notice of the petition, the operation of the order of the Tribunal was stayed and subsequently the said order was made absolute.

7. Rule. We have, with consent, heard the counsels finally.

8. We are unable to agree with the order of the Tribunal. The Tribunal has lost sight of the conviction of Sh. Vijay Pal Singh Sahu under Section

W.P.(C) No.3664/2011 Page 3 of 5 406 IPC. We are unable to comprehend as to how the Tribunal has observed that the conviction for the said offence could not be said to be amounting to moral turpitude. Moreover, the said conviction was allowed to attain finality by allowing the appeal thereagainst to abate. The ground on which Sh. Vijay Pal Singh Sahu was removed from service was also not such which required any elaborate inquiry inasmuch as the departmental authorities have acted merely on the judgment convicting Sh. Vijay Pal Singh Sahu. We do not find any error in the order of the disciplinary authority or of the appellate authority in directing removal of Sh. Vijay Pal Singh Sahu from service.

9. The counsel for the petitioner in the petition itself has referred to Govt. of NCT of Delhi Vs. Robin Singh 171 (2010) DLT 705 holding the offence under Section 406 IPC to be grave, serious and involving moral turpitude and to Ram Narain Sharma Vs. Canara Bank MANU/DE/1592/2010 also holding the offence of criminal breach of trust and misappropriation of property involves moral turpitude and no detailed departmental inquiry is required.

10. However, the fact remains that the employee is now no more. He had before his dismissal rendered 25 years of service. Setting aside of the order of the Tribunal and upholding the order of the disciplinary authority and the appellate authority will impact not the delinquent employee who is now no more but his widow and children by depriving them of pension. It has already been noted by the Tribunal and not disputed before us that his widow is suffering from ailments.

W.P.(C) No.3664/2011 Page 4 of 5

11. We therefore are of the opinion that ends of justice will be served if the punishment meted out to the deceased employee, is modified from that of removal from service to that of compulsory retirement from service. The same would at least entitle the legal heirs of the deceased delinquent employee to the financial benefits flowing therefrom. We, accordingly, direct the disciplinary authority to consider the aforesaid aspect and pass necessary orders within one month.

Petition is disposed of in the aforesaid terms.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

DECEMBER 02, 2011

Bs..

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