Suspension of a conviction does not render it final; removal based on such misinterpretation violates legal principles governing disciplinary actions.

ORDER

Hon’ble Mr. Manish Garg, Member (J) :

In the present Original Application, the applicant has prayed for the following reliefs:

“a) To set aside the order bearing No.127/PB/F.No.174/Vig./Imp/IOVII(s)/2018 dated 05.09.2018 passed by the respondent No.3 (Disciplinary Authority/Secretary, New Delhi Municipal Council, Palika Kendra, New Delhi) whereby the services of the applicant has been removed.

b) To set aside the order bearing No.175/PB/F.No.174/Vig./Imp/IOVII(s)/2018 dated 26.12.2018 passed by the respondent No.2 (Chairman/Appellate Authority, New Delhi Municipal Council, Palika Kendra, New Delhi) whereby the appeal of the applicant which was filed by him against the order bearing No.127/PB/F.No.174/Vig./Imp/IOV-II(s)/2018 dated 05.09.2018 passed by the respondent No.3 has been dismissed by the respondent No.2.

c) To restore the services of the applicant with all benefits from the date of his removal.

d) Pass any other or further order as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the said case, in the interest of justice.”

2. Learned counsel for the applicant submitted that the present case arises out of an illegal and arbitrary order of removal from service passed against the applicant despite the conviction order having been suspended by the competent appellate court.

2.1. Learned counsel for the applicant submitted that the applicant was serving as a Mali (Emp. Code No. 297011) under the Horticulture Department of respondent No.1 and had an unblemished record throughout his service. However, on 17.08.2016, he was falsely implicated and arrested in FIR No.156/2016 under Sections 354/354A IPC, registered at Police Station Lodhi Colony, New Delhi. Consequent to his arrest, the applicant was placed under suspension vide order dated 26.09.2016, which was later revoked on 21.12.2017, subject to the outcome of disciplinary proceedings. The applicant was convicted by the Ld. Metropolitan Magistrate, Saket Court, New Delhi vide judgment dated 03.01.2017 under Sections 354A/294/509 IPC. The applicant preferred an appeal before the Ld. Additional Sessions Judge, Saket Court, New Delhi, wherein vide order dated 18.01.2017, the Hon’ble Court was pleased to suspend the sentence till final disposal of the appeal and released the applicant on bail.

2.2. Learned counsel for the applicant further submitted that despite such suspension of sentence, the respondent authorities, without appreciating the true purport of the said order, erroneously held that there was no stay on conviction and passed the removal order dated 05.09.2018. The appeal preferred by the applicant was also dismissed by the Appellate Authority vide order dated 26.12.2018 on the same erroneous ground. Hence, the present application has been filed seeking quashing of the said orders on the grounds that the impugned orders dated 05.09.2018 and 26.12.2018 are arbitrary, illegal and have resulted in gross miscarriage of justice; that both the disciplinary and appellate authorities failed to appreciate that the order dated 18.01.2017 of the Ld. ASJ, Saket Court had the effect of suspending the operation of the conviction and sentence till disposal of the appeal; that once the sentence was suspended and the applicant admitted to bail, the disciplinary authority could not have treated the conviction as final to impose a major penalty of removal from service; and that the authorities have acted mechanically, without proper application of mind and contrary to the settled legal position, rendering the impugned orders unsustainable in law.

3. Learned counsel for the respondents, opposing the Original Application, submitt