LAWS(DLH)-2011-2-337

SULTAN SINGH Vs. ADMINISTRATOR NCT OF DELHI

Decided On February 24, 2011
SULTAN SINGH Appellant
V/S
ADMINISTRATOR, NCT OF DELHI Respondents

JUDGEMENT

(1.) THE petitioner was working as a head clerk in Lions Vidya Mandir Secondary School, Kashmir House, New Delhi(hereinafter to be referred to as ,,the School) where he had joined as a UDC on 16th May, 1967. Sometime in the year 1994 a criminal case under Sections 420/467/468/471/409 of the Indian Penal Code was registered against the petitioner at Chanakya Puri Police Station vide FIR No. 263/1994 on the complaint of the then acting Vice-Principal of the School. THE main allegation against him was that he had withdrawn a sum of about ' 50,000/- from the GPF accounts of some of the teachers of the School by forging documents. As a result of registration of that criminal case against the petitioner he was suspended from service on 17th September, 1994 and during the period of his suspension he was paid subsistence allowance as per rules. He was tried by the Court of concerned Metropolitan Magistrate and finally he was held guilty also for the commission of the offences punishable under Sections 463/465 and 471 IPC vide judgment dated 31st October, 2002 by the Court of Shri L.K. Gaur, Metropolitan Magistrate, New Delhi. However, he was not awarded any punishment and instead he was released on probation vide order dated 11th December, 2002. THE petitioner did not challenge his conviction by filing appeal against the judgment of the convicting Court.

(2.) ON successful completion of the probation period of one year the petitioner was re-instated by the management of the School w.e.f. 29th January, 2003 but the management did not take any decision regarding the payment of his salary and other allowances etc. for the period he had remained under suspension i.e. from 17th September, 1994 to 28th January, 2003 despite the petitioner having made representations to the management of the School as well as to the Director of Education (respondent no. 2 herein). After waiting for positive response from the respondents regarding his request for payment of full salary and other service benefits for the period of his suspension for over one year he filed a writ petition in this Court (being W.P. (C) No. 12477/2004) in which a prayer was made for issuance of writ of mandamus directing the respondents to give him all the consequential benefits of full pay and allowances, annual increments, benefits of continuity of service, revised pay-scale etc. treating the period of his suspension as period spent on duty. It appears that after the filing of the writ petition the management of the school informed the Director of Education that the period of suspension of the petitioner not to be treated as period spent on duty and it be treated as Dies-Non and payment of pay etc. be restricted to subsistence allowance already paid to him. However, before that writ could be heard and disposed of the petitioner withdrew the same on 1st May, 2006 as he was expecting some amicable settlement with the respondents in that writ petition who are the respondents in the present writ petitions also. After withdrawing that writ petition the management of the School recommended to the Director of Education vide letter dated 16th May, 2006 that the period of suspension of the petitioner be treated as period spent on duty and he should be given all the consequential benefits of pay and allowances etc. as per Rules and also for inclusion of that period for the purposes of giving him pensionary benefits. However, the respondents no. 1 and 2 did not accept that recommendation and vide letter dated 2nd August, 2007 the management of the School was informed that the request for regularization of the period of suspension of the petitioner as proposed by it had been rejected and the pensionary benefits had been approved after excluding the period of suspension. Feeling aggrieved, the petitioner once again approached this Court by filing the present writ petition under Article 226 of the Constitution of India for issuance of an appropriate writ directing the respondents no. 1 and 2 to pay to the petitioner all the arrears to pay his salary and pensionary benefits for the period of his suspension treating the same as period spent on duty.

(3.) IN Iqbal Singhs case (supra) the employee concerned was suspended because of his involvement in some criminal case. After trial he was convicted but was released on probation. Despite his release on probation that employee was dismissed from service because of his having been held guilty in the criminal case. That employee invoked Section 12 of the Probation of Offenders Act while challenging his dismissal from service by filing a writ petition. While allowing that writ petition the Division bench of this Court had observed that once an accused is released on probation after conviction there was express immunity from any kind of departmental proceedings against him provided by Section 12 of the Probation of Offenders Act and the conviction was unactionable. As noticed already, this judgment stands overruled by a Full Bench of this Court and therefore, the petitioner cannot derive any benefit from the judgment of the Division Bench.