A convicted employee is not entitled to back wages or duty benefits for the intervening period.

The applicant joined the Delhi Development Authority (“DDA”) as a Lower Division Clerk on 14 February 1980 and was eventually promoted as Assistant Accounts Officer. A criminal case was registered against him under Section 120-B of the Indian Penal Code and Sections 7, 12, 13 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. He was convicted by the Special Judge, Delhi, on 26 March 2011; although he appealed to the Delhi High Court, only his sentence was suspended and the conviction remained operative.

Following the conviction, the Finance Member, DDA imposed compulsory retirement on 2 April 2012. On appeal, the matter was remitted for reconsideration, following which an order of removal from service was issued. In O.A. No. 644/2014, the Tribunal held that the removal could not operate retrospectively and directed that the applicant be treated as in service from 2 April 2012 until 4 November 2013, with pay and allowances for that period. The DDA implemented that order.

In 2017, the applicant challenged the competence of the Finance Member to issue the removal order, contending that the Vice-Chairman, being his appointing authority, alone possessed the relevant jurisdiction under Article 311(1) of the Constitution. The Vice-Chairman thereafter issued a fresh removal order dated 1 October 2018, initially with retrospective effect from 4 November 2013. On appeal, the Lieutenant Governor directed that the removal operate prospectively from 1 October 2018 and that the intervening period be separately regularised.

The competent authority initially treated the period from 4 November 2013 to 30 September 2018 as unauthorised absence under Fundamental Rule 17(1). On further appeal, the direction of unauthorised absence was expunged, and the period from 5 November 2013 to 30 September 2018 was directed to be treated as notionally spent in service, without pay or allowances. The applicant challenged that decision, seeking treatment of the entire intervening period as duty, payment of salary and consequential benefits, regularisation of earlier suspension periods, and release of increments.

1. Whether the applicant was entitled to have the intervening period between the earlier removal order and the prospective removal order treated as duty or deemed service with full pay, allowances and consequential benefits?

2. Whether the applicant, whose conviction remained operative and whose sentence alone had been suspended, could claim reinstatement, joining duty, or back wages for the intervening period?

3. Whether the applicant could rely upon the alleged incompetence of the Finance Member after failing to raise that objection in the earlier proceedings challenging the original penalty orders?

The Tribunal applied Article 311(1) of the Constitution, under which a civil servant cannot be removed or dismissed by an authority subordinate to that by which he was appointed.

It also considered Regulation 30 of the DDA (Conduct, Disciplinary and Appeal) Regulations, 1999, concerning disciplinary action following conviction, and the applicable proviso to Regulation 23 regarding the penalty imposed after conviction.

Fundamental Rule 17(1), concerning the consequences of unauthorised absence, was also relevant, although the appellate authority ultimately substituted the unauthorised-absence treatment with notional service without pay.

The Tribunal relied on Chairman-cum-Managing Director, Coal India Ltd. v. Ananta Saha, (2011) 5 SCC 142, for the principle that back wages do not automatically follow reinstatement or quashing of a penalty and remain discretionary, depending on the facts and principles of justice, equity and good conscience.

It also referred to M.D. Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale, (2009) 2 SCC 288, and the principles stated in U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey and Kendriya Vidyalaya Sangathan v. S.C. Sharma, that the employee bears the initial burden of showing that he was not gainfully employed when claiming back wages.

The Tribunal further proceeded on the principle that a conviction remains operative unless stayed or set aside; suspension of sentence does not suspend the conviction.

The Tribunal noted that the applicant’s conviction for corruption offences had never been stayed or set aside; only the sentence imposed by the criminal court had been suspended.

Consequently, his status as a convicted person remained unchanged throughout the relevant period, and he could not claim to have been entitled to join or be reinstated in service during that period.

Although the applicant relied on the alleged lack of competence of the Finance Member under Article 311(1), the Tribunal emphasised that he had not raised that objection when the original compulsory-retirement and removal orders were challenged. He raised it only in 2017, despite the original order having been passed in 2012 and the subsequent removal order having been litigated earlier.

The Tribunal therefore declined to grant the applicant the financial consequences claimed on the basis of that technical objection. Applying the principle that back wages are discretionary and do not automatically follow from correction of a disciplinary order, the Tribunal accepted the treatment of the intervening period as notional service without pay or allowances.

His conviction remained operative, and he could not claim reinstatement or wages for a period during which he could not lawfully be permitted to join duty. The challenge based on the alleged incompetence of the Finance Member was also rejected, particularly because it had not been raised in the earlier proceedings.

All pending miscellaneous applications, if any, were disposed of, with no order as to costs.