Central Administrative Tribunal - Allahabad
Arun Kumar Gaba vs Central Excise & Customs on 8 December, 2017
Central Administrative Tribunal, Allahabad
Bench,
Allahabad
Original Application No. 330/00326/2017
Reserved on 06,09.2017
This the S9 day of December, 2017
Hon'ble r. Justice Dinesh Gupta, Member (T)
Hon'ble Mr. Gokul Chandra Pati, Member (A)
Arun kumar Gaba, aged about 55 years,son of Late Mohan
Raj Gaba, resident of A-1211, Ashiana Palm Court, Raj
Nagar
Extension, Ghaziabad-U.P., Presently working on the post of
Superintendent, Central Excise, office of the Commissioner
(Appeals-I), Ghaziabad-U.P.
Applicant
By Advocate: SriShyamal Narain
Versus
1 The Union of India, through the Secretary,
Ministry
of Finance, Department of Revenue, Government of
India, New Delhi.
2. The Conmissioner, Central Excise and Service Tax,
C.G.0. Complex-Ii, Kamla Nehru Nagar, Ghaziabad-U.P.
By Advocate: Sri Vivek Rai Respondents
ORDER
By Hon'ble Mr. Justice Dinesh Gupta, Member (J) The applicant filed the present 0.A. with the following reliefs:
i) That this Hon'ble Tribunal be pleased to quash and set aside the impugned Memorandum dated 2 10.03.2017, initiating penal proceedings against the applicant under Rule 19 () of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, and proposing to take penal action against him (Annexure No. A-1 to Compilation No. II) as also the entire disciplinary/penal proceedings sought to be undertaken against him in pursuance of the said impugned Memorandum.
ii) That this Hon'ble Tribunal be pleased to grant such other relief, as the applicants might be found entitled to in the facts and circumstances of the case.
i) That this Hon'ble Tribunal be pleased to award the costs of this Original Application in favour of the applicant, throughout."
2, The brief facts of the case as stated by the counsel for the applicant are that the applicant had joined service as a directly recruited Inspector in the Central Excise Department on 10.02.1988 and he was promoted as Superintendent on ad hoc basis on 07.07.2005. In the year 1995, the applicant was falsely implicated in a C.B.I. case registered in the year 1995, in relation to an incident of 1995 and following a criminal trial [Criminal Case No. 05/1997, State, through C.B.I. versus R.K. Srivastava and others, R.C. no. 1(A)/95], the applicant was convicted by the learned Special Judge, Anti-Corruption, C.B.I. (West), Lucknow, under section 120-B I.P.C. read with section 7 of the Prevention of Corruption Act, 1988 and sentenced with 3 four years R.I. with fine of Rs. 40.000 and under section 120-B of IP.C. read with sections 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988,and sentenced with five years R.I. with fine of Rs. 50,000/- and the applicant was taken into custody forthwith. In respect of the allegations forming the subject matter of the aforementioned criminal case, the applicant was never subjected to any departmental proceedings i.e., no charge sheet was ever issued to the applicant by the Department in respect of the charges constituting the substance of the criminal proceedings referred to above.
2.1 Thereafter, the applicant preferred a Criminal Appeal from the trial court's judgement dated 26.07.2014 before the Lucknow Bench of the Hon'ble Allahabad High Court (being Criminal Appeal no. 967 of 2014, A.K. Gaba versus State of U.P.) wherein, vide an order dated 31,07.2014 (Annexure No. A-2 to Compilation No. II of the O.A.), the applicant was directed to be released on bail and further it was ordered that the sentence awarded to the applicant as wellas the fine imposed upon him, shallremain suspended and stayed during the pendency of the appeal. Since, the 4 applicant, was to be deemed to have been put under Suspension as a consequence of his being taken into custody for a period exceeding 48 hours, following the trial court's judgement dated 26.07.2014, he after being released from jail on O2.08.2014, on the basis of the High Court's order dated 31,07.2014, promptly moved an application dated 04.08.2014 (Annexure No. A-3 to Compilation No. II), before the Chief Commissioner, Customs and Central Excise, Meerut Zone, Meerut praying for revocation of his deemed suspension. After being apprised of the fact that the applicant has been convicted, detained and released vide the applicants application dated 04.08.2014, the Commissioner, Central Excise, Meerut-I, Meerut, passed an order dated 05.08.2014 (Annexure No. A-4 to Compilation No. II), stating that the applicant was to be deemed to have been suspended w.e.f. the date of his conviction i.e., 26.07.2014 in terms of sub-rule (2) of Rule 10 of the C.C.S. (C.C.A)Rules 1965 and shall remain under suspension till further orders.
When the applicant did not receive any reply on his representation dated 04.08.2014, he preferred another representation dated 02.09.2014 (Annexure No. A-5 to Compilation No. II) before the Commissioner, Central 5 Excise, Meerut-I, Meerut, praying for revocation of his i.e., the suspension. Thereafter, the competent authority order dated Commissioner, Central Excise meerut passed an Compilation No. II) 08.12.2014 (Annexure no. A-5 to and thereafter, the revoking the applicant's suspension applicant joined his duties.
the applicant was served 2.2 Thereafter, all of a sudden, dated 10.03.2017 (Annexure with the impugned memorandum the Respondent no. 2, No. A-1 to Compilation No. I) by Excise and Service Tax, namely the Commissioner, Central Authority, Ghaziabad, in the capacity of Disciplinary against him under purporting to initiate penal proceedings Services (CCA) Rules, 1965, Rule 19 (i) of the Central Civil him, by observing and proposing to take penal action against the circumstances which that he has carefully considered require penal action led to his conviction and which, in turn to be taken against him.
applicant submitted that as
2.3 Learned counsel for the
the CCS (CCA) Rules,
per the provisions of Rule 19 () of
instructions, read
1965 and the Government of India's 6 together, is that any action should have been taken at the earliest and not after the lapse of a long period of time and certainly not after reinstating the Government servant by revoking his suspension, or deemed suspension, following his detention due to conviction., Further, it has been submitted that as such the impugned memorandum dated 1O.03.2017, and also the entire penal proceedings sought to be undertaken in pursuance thereof are wholly without jurisdiction, contrary to rules, in violation of the principles of equity, fair-play and natural justice and is liable to be quashed.
3. Notices were issued to the respondents, who in turn, filed the counter affidavit in which it has been stated that where any penalty is to be imposed ona Government servant on the ground of conduct which has led to his conviction on a criminal charge, Rule 19 (i) of the CCS (CCA) Rules, 1965 read with Article 311 (2) of the Constitution of India, empowers the Disciplinary Authority to consider the circumstances of the case and made such orders thereonas he deems fit. The facts of the case do not change on revocation of the suspension of the applicant. It has been further submitted that the memorandum dated 10.03.2017 has been issued by the Disciplinary Authority in accordance with the proviso to Rule 19 (i) of the Rules and necessarY action under the Rule would be taken after considering the representation, if any,made by the applicant. The applicant vide his letter dated 03.04.2017 had sought some documents month to file his on records and additional time of one 10.03.2017 representation against the memorandum dated which have been given/allowed to him by the Disciplinary Authority vide his office letter dated 11.04.2017. It has been further submitted that the revocation of suspension of the applicant does not imply that power of the Disciplinary Authority to initiate penal proceedings under 19 (i) has been waived off. The Rule 19 () of the CCS (CCA) Rules, 1965 gives discretionary power to the Disciplinary Authority, independent of temporary action such as suspension.
3.1 Further, the respondents have relied on para 11 of the Office Memorandum issued by the DOPT, Ministry of Personnel, Public Grievances and Pensions, Government India vide F. No. 11012/6/2017 - Estt (A-III) dated 21.07.2016, which clearly says as under:
.....
Thus action against aconvicted Government Servant should be taken straight away under Rule 19 (0). An appeal against the conviction or even a stay on the sentence will have no effect unless the conviction itself is stayed..."
3.2 Further, it has been submitted that suspension of the applicant was revoked and no action under Rule 19 () of the Rules was initiated, in view of the order dated 31.07.2014 passed by the Hon'ble High Court, Lucknow Bench, wherein the sentence awarded to the applicant was suspended.
However, in view of the clarifications provided by the aforesaid Office Memorandum dated 21.07.2016 of the DOPT, Which is based on various case laws, action against the applicant is required to be taken under Rule 19 (i) as his conviction has not been stayed by the Hon'ble High Court, Lucknow.
4. Learned counsel for the applicant does not wish to file any rejoinder reply.
had
5. By means of interim relief prayer, the applicant impugned prayed for staying the effect and operation of the Memorandum dated 10.03.2017 and restrain the respondents () from proceeding further in pursuance thereof. This Tribunal after hearing both the parties on interim relief prayer vide order dated 29.03.2017 declined to grant any interim reliet.
It was also observed by the Tribunal that in the last para of the order dated 10.03.2017, the respondents had given opportunity to the applicant for making representation against the proposed penal action and the applicant was directed to use that opportunity to present his case against the penal action.
6. Thereafter, the applicant again filed an interim relief application no. 1111 of 2017 with regard to restraining the respondents from passing any final order in the inquiry proceedings initiatedagainst him pursuant to the aforesaid memorandum. This Tribunal vide order dated 21.06.2017 with the again declined to grant any interim relief observation that the applicant was directed to submit his representation against the impugned memorandum dated 10.03.2017 and the applicant has already made a representation against the same and proceedings have already initiated and at this stage, the respondents cannot the be restrained from passing the final order in 10 proceedings initiated pursuant to the af oresaid against the applicant. It was further memorandum observed that it is always open for the applicant to take appropriate steps in accordance with rules and law on the subject in case the final order to be passed by the respondents Is adverse to hìm,ria
7. Heard the learned counsel for the applicant Shri Shyamal Narain and Shri Vivek Rai, counsel for the respondents.
8. Learned counsel for the applicant reiterated the facts as mentioned by him in the Original Application and submitted that applicant has challenged the memorandum dated 10.03.2017 issued to the applicant on the grounds that the said memorandum is wholly impermissible and illegal and it is almost in the nature of review or amendment of earlier decision taken by the respondents not to proceed against him under Rule 19(i) and instead of that reinstated him in service.
119. Inthe order dated 08.12.2014 which was passed by the Commissioner Central aExcise Meerut and on the basis of the recommendation of High Power Review Committee which i,e.
Comprises of the top bureaucrats of the Department Commissioners and the Chief Commissioner of two the light of the reinstatement of the applicant was also in upon the applicant's Bail order passed by the High Court as well as the fine Application, which suspended sentence trial court. After, more imposed upon the applicant by the respondents, issued this memorandum than two years, the punishment to the applicant dated 10.03.2017 for proposed is CC(A) Rules. This memorandum under Rule 19() of the CCS there is no power given to the also against the rules as their earlier decision.
respondents authorities to review counsel for the applicant submitted that said
10. Further, of after a considerable lapse memorandum has been issued If the respondents want to take any more than two years.
19, it should have be taken immediately action under Rule applicant in a criminal case but in the after the conviction of respondents waited for more than 2 the the present case, memorandum.
1/2 years to issue this and 12 11, Counsel, further, submitted that the impugned memorandum dated 10,03,2017 also suffers from serious flaw that is called upon the applicant to make a representation against the proposed penal action but the memorandum fails to disclose the exact penalty that is proposed to be imposed upon him.
12. Counsel also referred to the decision of the Review Committee on the revocation of the suspension of the applicant and submitted that this Committee comprising of the High Level Authorities clearly took a view that the chances of the success of applicant in the appeal filed against the judgment of the trial court are very high and on the basis of legal opinion obtained by the standing counsel, the Committee took a decision to reinstate the applicant. Thus, after reinstatement, the memorandum dated 10,03.2017 i.e. after lapse of more than 2 and years is nothing but a misuse of the law and the same is wholly without jurisdiction and contrary to the rules.
1313. Counsel for the respondents also reiterated the facts mentioned in the Counter Reply. However, he stated that any ) penalty is to be imposed on a Government Servant on the ground of conduct which had lead to his conviction on the criminal charges Rule 19 (i) of the CCs CC&A Rules read with Article 311 (1) of the Constitution of India has empowered circumstances of the Disciplinary to consider the facts and counsel, the case to make such order as deemed fit. The further, submitted that the grounds on which the applicant's the suspension was revoked or the circumstances on which Review Committee has considered the revocation of the suspension order were totally different from the view taken by the Disciplinary Authority to proceed under the provisions of Rule 19() CCS CC&A Rules 1965. Both are totally independent proceedings and any view or decision taken by the Review Committee for revocation of suspension was totally different and not binding on the Disciplinary Authority to take action under Rule 19(1).
14. Counsel for the applicant, further, submitted that the applicant has also sought time to file representation against the proposed memorandum and tine was granted to him.
14Accordingly, the applicant has already filed a representation against the said memorandum.
15. We are unable to accept the contentions of the applicant's counsel. No doubt, the applicant was initially involved in relation to the incident of 1995 and was implicated in a CBI Case registered in the year 1995 following a criminal trial case (Crime No.5/95 State through CBI VS. R.K. Srivastava & Ors.) and the applicant was convicted by Learned Special Judge anti corruption C.B.I. (West) Lucknow under section 120-B, IPC read with section 7 of the Prevention of Corruption Act, 1988 and sentenced with 04 years R.I. and fine of Rs.40,000/- and under Section 120-B of IP.C. read with section 13(1) (d) and 13(2) of the prevention of corruption Act and sentenced with 05 years RI. and fine of Rs.50,000/-.
16. After, the pronouncement of the aforesaid judgment dated 26.07.2014, the applicant was taken into custody forthwith. Thereafter a criminal appeal was preferred against the trial court's judgment before the Lucknow Bench of Allahabad High Court being Criminal Case No.967 of 2014 15 (A.kK. Gaba vs. State of UP) where, vide order dated 31.07.2014 it was directed to release the and further it was applicant on ba ) ordered that the sentence awarded to the applicant shall remain suspended, But the fact remains that the conviction of the applicant is neither suspended nor put in abeyance, hence the applicant stands convicted.
17. The applicant remained in Jail for more than 48 hours after his conviction and he was placed under deemed suspension. However, after his release from the Jail, applicant applied for revocation of his suspension and a High Power Review Committee considered the case of the applicant for revocation and recommended for revocation of suspension of the applicant. The contention of the applicant that the Review Committee has taken a decision not only for revocation of suspension to reinstate him, but also decided not to take any action against the applicant further, has no force, As the Review Committee was only empowered to consider the suspension of the applicant and the views and observations made in the order only related to the revocation of suspension of the applicant. No doubt, the Review Committee was of the opinion that since the chance 16 of success of the applicant involved in a criminal case fair in the was appeal filed by him, the applicant's suspension was revoked, However, the Committee has no power to take any decision in respect of the proceedings under Rule 19(i) of CCS CC&ARules, 1965 against the applicant.
18. The revocation of suspension on the basis of the opinionand the report of the Review Committee will only give fhe applicant's right to get reinstated in service and the respondent has also reinstated the applicant. Mere revocation of suspension will not snatch away the power of the disciplinary proceedings to proceed under Rule 19() against the applicant. Applicant's contention regarding delayed action taken against the applicant under Rule 19 will not give any relief to the applicant, since there is no limitation for action to be taken under Rule 19() by the disciplinary authority.
19. The respondents have also relied upon the office memorandum issued by the DOP&T, Ministry of Public Grievances and Pension dated 21,07.2016 which clearly provides that an action against the government servant should be taken straight away under Rule 19() and appeal 17 against conviction or stay on the sentence will have no effect unless the conviction itself be stayed. In the present case, it is admitted that the conviction of the applicant has not been stayed by the Appellate Court while considering the appeal filed by the applicant against his conviction.
20. Further, it is not disputed that after getting memorandum, the applicant initially sought time to file representation/reply to the said memorandum and later stage submitted the reply. However, his request for restraining the respondents authorities to take final decision on the memorandum was declined by this Court and we are not aware at this stage whether the Disciplinary Authority has taken any decision on the memorandum or not.
21. Hence, in case the respondents have already taken a decision on memorandum under Rule 19(i) of the CCS CC&A Rules, after considering the applicant's reply, the applicant has ample opportunity to challenge the said order by filing an appeal against the said order before Appellate Authority and before the Appellate Authority he can also challenge the format of memorandurm issued to him under Rule 19() of the CCS (CC&A) Rules. Even in case no order has been passed till 18 today on his memorandum and on reply, the applicant can wait till the decision taken by disciplinary authority on nis representation moved against under Rule 19(1) of CCS CCan Rules and thereafter can avail the remedy available to him in accordance with the Rules and procedure.
of the above.. we find that this 0.A. has C2. In view since the respondents become premature at this stage, with the memorandum authority has already proceeded per applicant's contention dated 10.03.2O17 and as take final order on this disciplinary authority is going to memorandum.
Accordingly, the 0.A. is dismissed at this stage being
23. However, the applicant may challenge any order premature.
Appellate Authority/Disciplinary Authority on passed by the stage as per provisions of law. No this memorandum at later costs.
(GOKUL CHNDRA PATI) DINESH GUPTA) (qusTEMEMBER MEMBER (A) (J) Sushil