A government employee cannot be exempted from disciplinary proceedings merely on grounds that he suffers from a disability: High Court of Delhi

14IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 23.07.2021 W.P.(C) 6907 2021 & CM No.21816 17 2021 Through: Mr. Shashank Mangal Adv. ..... Petitioner LALIT KUMAR GUPTA RAJIV SHAKDHER J.CM No.21818 2021 NORTH DELHI MUNICIPAL CORPORATION ..... Respondent Through: Mr. R.V. Sinha with Mr. Amit Sinha HON BLE MR. JUSTICE RAJIV SHAKDHER HON BLE MR. JUSTICE TALWANT SINGH Advs. for NDMC. Court hearing convened via video conferencing on account of COVID 19] Allowed subject to just exceptions. CM No.21817 2021 The prayer made in the captioned application is to grant exemption from filing notarized affidavits. 2.1 The captioned application is disposed with the direction to the applicant petitioner to file duly notarized affidavits within three days of this Court resuming its normal and usual work pattern. W.P.(C) 6907 2021 & CM No.21816 2021Issue notice. Mr. R.V. Sinha accepts notice on behalf of the respondent i.e. North Delhi Municipal Corporation6907 2021 3.1. Mr. Sinha says that in view of the order that we intend to pass he does not wish to file a reply and will argue the matter based on the record available with the Court. Thus with the consent of the counsel for the parties the writ petition is taken up for hearing and final disposal at this stage itself. 4.1. This writ petition is directed against the order dated 12.07.2021 passed by the Central Administrative Tribunal in O.A. No.96 2021. For the purposes of adjudicating upon the writ petition the following broad facts are required to be noticed. 5.1. The petitioner is employed as an Upper Division Clerkin the It appears that an FIR was registered against the petitioner on 03.09.2012. The allegation made against the petitioner was that he had committed offences under Section 7 13 of the Prevention of Corruption Act 5.3. Because of the FIR being registered the petitioner was suspended from service. However on 10.03.2014 the order concerning suspension was withdrawn and the petitioner was reinstated. Insofar as the criminal proceeding was concerned it culminated in the petitioner s acquittal. A judgment to that effect was delivered by the concerned trial court on 15.12.2018. NDMC. 1988. W.P.(C) 6907 2021 5.5. It is thereafter i.e. on 28.10.2020 that a charge memo was served on the petitioner by the disciplinary authority. The allegation levelled against the petitioner was that in 2012 he had received illegal gratification of Rs.50 000 from one Mr. Mirja Tahir for abjuring from sealing his shop. 6. Mr. Shashank Mangal who appears for the petitioner says that the Tribunal has failed to notice that the disciplinary proceedings were initiated against the petitioner after a delay of almost eight and half years. 6.1. Furthermore Mr. Shashank says that the disciplinary authority while issuing the charge memo failed to apply its mind to the fact that the allegation levelled therein against the petitioner was no different from what was stated in the aforementioned FIR. It is Mr. Shashank’s submission that the disciplinary authority before initiating the disciplinary proceedings should have examined as to what had emerged which was not captured in the criminal proceedings launched against the petitioner. 6.2. Mr. Shashank says that the tribunal also failed to notice the provisions of Section 20(4) of the Rights of Persons with Disabilities Act 20166907 2021 7.2. Insofar as the provisions of Section 20(4) of the RPWD Act are concerned Mr. Sinha says that the said provision does not bar initiation of disciplinary proceedings against the petitioner. 8. We have heard the learned counsel for the parties and perused the documents including the impugned order. 8.1. A perusal of the pleadings would show that the petitioner had raised a specific averment before the Tribunal that there was a substantial delay in the initiation of disciplinary proceedings. 8.2. The reply filed by the NDMC did not explain the reasons for the delay. The assertion made by the NDMC was that there is no bar in initiating disciplinary proceedings merely because the petitioner had been acquitted in criminal proceedings. These assertions were made based on the ratio laid down in several judgments which were cited in the reply filed before the Tribunal. 8.3. The Tribunal however in the impugned order did not deal with the aspect of delay which had been raised by the petitioner. This according to us was a matter which should have attracted the attention of the Tribunal. 8.4. The petitioner claims that he is suffering from locomotor disability with a disability factor of 95%. 8.5. The Tribunal in our view should have taken into account the entirety of facts and circumstances obtaining in the matter including the submission of the petitioner that there was delay in the initiation of disciplinary proceedings before concluding as to whether or not NDMC should continue with the same. W.P.(C) 6907 2021 8.6. The explanation given by NDMC qua delay in initiating the disciplinary proceedings in its reply to say the least is bereft of material particulars as to why NDMC waited till October 2020 to serve a charge memo on the petitioner. 8.7. We must however indicate that it is not our view that disciplinary proceedings cannot be commenced if an employee has been acquitted in the criminal proceedings. The standard of proof in criminal proceedings is far higher than that which obtains in the disciplinary proceedings. In the former it is beyond reasonable doubt whereas in the latter it is preponderance of 8.8. That being said the delay in initiating criminal proceedings according to us needs to be explained by the employer. In this case the NDMC has failed to furnish an explanation for the delay in initiating the disciplinary proceedings. Insofar as the submission made by Mr. Shashank with regard to Section 20(4) of the RPWD Act is concerned we are not impressed. The said provision cannot be read in a fashion in which it has been put forth by Mr. Shashank. 9.1. Section 20 of the RPWD Act merely provides that no person with disability will be discriminated in any matter relating to employment. Subsection 4 of Section 20 of the said Act simply states that no Government establishment shall dispense with or reduce in rank an employee who acquires a disability during his or her service. W.P.(C) 6907 2021 9.2. The aforesaid provision does not bar initiation of disciplinary proceedings against a person with disability if a case is made out for triggering such proceedings. Therefore Mr. Shashank’s submission as regards Section 20(4) of the RPWD Act as indicated above is untenable and is accordingly rejected. 10. Thus for the foregoing reasons we are inclined to set aside the impugned order passed by the Tribunal and remand the matter for a de novo hearing. It is ordered accordingly. 10.1. The Tribunal will permit the petitioner inter alia to raise the issue concerning delay in the initiation of disciplinary proceedings. 10.2. The Tribunal will also allow the parties to file additional affidavits if deemed necessary in its wisdom. 11. Given the fact that the petitioner is suffering from a severe disability parties and their counsel are directed to appear before the Tribunal for directions on 09.08.2021. 12. The writ petition is disposed of in the aforesaid terms. Consequently pending application shall stand closed. The case papers shall be consigned to the record. RAJIV SHAKDHER J TALWANT SINGH J JULY 23 2021 rb W.P.(C) 6907 2021 Click here to check corrigendum if any 

Summary: Section 20 of the Rights of Persons with Disabilities Act 2016 protects the rights of a person with disability from being discriminated against while working at a Government establishment.  However, this is not suitable as grounds to exempt such a person from disciplinary proceedings. This was held by a two member bench of the High Court of Delhi consisting of Justice Rajiv Shakdher and Justice Talwant Singh in the case of Lalit Kumar Gupta v North Delhi Municipal Corporation [W.P.(C) 6907/2021 &amp; CM No. 21816-17/2021] on 23rd July 2021. The petitioner, Lalit Kumar Gupta was employed as an Upper Division Clerk in the North Delhi Municipal Corporation. On 3rd September 2012, a First Information Report was registered against him. He was accused of accepting illegal gratification as a motive to favour a person while in his official capacity which is an offence under Section 7/13 of the Prevention of Corruption Act 1988. The criminal proceedings eventually culminated in the petitioner’s acquittal and a judgement to that effect was delivered by the concerned Trial Court on 15th December 2018. However on 28th October 2020, a charge memo was served on the petitioner by the disciplinary authority over allegations that he had received illegal gratification of Rs. 50,000 from a businessman for adjuring from sealing his shop. The petitioner’s counsel submitted that failed to explain why there was a delay of around 8 years for the proceedings to be initiated and how the present allegations were any different from those levelled against the petitioner in the FIR filed against him in 2012. The respondent’s counsel countered that firstly that a delay in commencing disciplinary actions cannot be a reason for quashing the same and furthermore that there exists no bar in disciplinary proceedings against an employee even if he has been acquitted in the criminal proceedings by a trial court. The petitioner’s counsel further contended that the tribunal had failed to notice provisions of Section 20(4) of the Rights of Persons with Disabilities Act 2016 which safeguarded the rights of employees with disabilities from being discriminated or harassed by their employers.