Central Administrative Tribunal - Delhi
Sh. Manoj Kumar vs Union Of India on 25 November, 2011
Central Administrative Tribunal
Principal Bench
OA NO. 4258/2010
New Delhi this the 25th day of November, 2011
Honble Mr.G.George Paracken, Member(J)
Honble Dr. A.K.Mishra, Member(A)
Sh. Manoj Kumar
S/o Sh. Tek chand
R/o Vill. Kanganheri, Najafgarh,
Delhi.
. Applicant
(By Advocate: Sh. S.N.Sharma)
Versus
1. Union of India
Through Secretary,
Ministry of Defence,
Govt. of India,
South Block,
New Delhi-110001.
2. Chief Engineer
MES Head Quarters,
Delhi, Delhi Cantt-10.
3. Commandant Works Engineer,
MES Head Quarters,
Delhi, Delhi Cantt-10.
4. Sh. Anil Dutt,
S/o sh. Munshi Ram
R/o Village Kanganheri, Najafgarh
Delhi and presently posted as
Mazdoor (MES-374631) under
CWE, MES Head Quarters,
Delhi, Delhi Cantt-10.
5. Sh. Bishamber Dayal,
S/o sh. Maharchand
R/o Village Kanganheri, Najafgarh
Delhi and presently posted as
Mazdoor (MES-373199) under
CWE, MES Head Quarters,
Delhi, Delhi Cantt-10.
.. Respondents
(By Advocate: Sh. D.S.Mahendru)
O R D E R (ORAL)
Honble Shri George Paracken:
Applicant is challenging the impugned order dated 22.6.2010. Disciplinary proceedings were initiated against the applicant under Rule 19 of CCS (CCA) Rules, 1965 and a charge memo was issued to him on 19.12.2003 stating that he was earlier convicted in a criminal case u/s 147/148/323/328/425 of IPC and awarded the following sentence by the learned Additional Sessions Judge Delhi, vide his judgment dated 30.1.2001:
(a) Pay fine of Rs.2000/- under section 147 IPC failing to pay fine to undergo SI for three months.
Pay fine of Rs.1000/- under section 323/149 IPC failing which to undergo SI for one month.
RI for two years and six months and to pay fine of Rs.1000/- under Section 308/149 IPC.
RI for two years and six months and to pay fine of Rs.1000/- under Section 325/149 IPC or in default of payment of fine to undergo SI for one month. All these sentences shall run concurrently. According to the said order, the applicant failed to inform his superiors of the fact of his being in the police custody, conviction and the circumstances connected with them and it was considered as a suppression of material information amounting to misconduct under Rule 3 (i) of CCS (Conduct) Rules, 1964. He was, therefore, given an opportunity under Rule 19 of CCS (CCA) Rules, 1965, vide their letter dated 19.12.2003, to make a representation on the proposed penalty to be imposed upon him based on the conviction in criminal case as it was not reasonably practical to hold an enquiry since the charges in criminal case were proved by the Addl. Sessions Judge, New Delhi. After considering his representation and the judgment of Addl. Sessions Judge, New Delhi dated 30.1.2001, the disciplinary authority imposed upon him the penalty of dismissal from service vide order dated 15.3.2004. Meanwhile, aggrieved by the judgment and sentence of the Additional Sessions Judge dated 30.1.2001, applicant has filed criminal MC No. 2115/2009 before the Honble High Court of Delhi for quashing the FIR No.103/194 under which he was held guilty and subsequently sentenced. The High Court vide its order dated 23.7.2009, in the aforesaid petition quashed the said FIR and the proceedings emanating therefrom qua the petitioner on the ground of amicable settlement among the parties. Thereafter, based on the aforesaid judgment of the High Court of Delhi, the applicant made an appeal dated 23.7.2009 against the penalty of dismissal imposed upon him. The disciplinary authority reviewed the aforesaid punishment imposed upon him under Section 19 of CCS (CCA) Rules, 1965 and set aside the order of dismissal from service, vide the impugned order dated 22.6.2010. However, in terms of the provisions contained in FR 54 A (1) and 54 A (2), the disciplinary authority proposed as under:
(a) Not to pay any amount from 15th March 2004 to the date of joining the service i.e. the period from date of dismissal from the service, and the period shall not be treated as a period spent on duty (period of previous conviction). The said period i.e. 15th March 2004 to the date of joining the service shall be considered as EOL (Extra Ordinary Leave) without pay & allowances and without break in service. The applicant was also given an opportunity to make representation in terms of the provisions contained in FR 54 A (2). He was also informed that in case no representation was received from him within the stipulated time of 60 days, the aforesaid decision will be treated as final and implemented.
2. The applicant challenged the aforesaid order in this OA to the extent that it does not allow him pay and allowances for the period from 15.3.2004, i.e., the date of dismissal to the date of joining, i.e. August 2010 on the ground that it has been passed with a pre-determined mind, without considering the submissions made by him in the representation dated 26.2.2010 and by not extending the same benefit of reinstatement in service done in the case of respondent No.4, namely, Sh. Anil Dutt and respondent No.5, namely, Sh. Bishamber Dayal, who were also dismissed from service under Rule 19 (1) of CCS (CCA) Rules, 1965 under the similar and identical facts and circumstances. Applicant has, therefore, submitted that the respondents have treated him in a different manner prejudicial to him which is wholly arbitrary, irrational, illegal and discriminatory under Article 14 & 16 of the Constitution of India.
3. In the reply, the respondents have submitted that after passing the impugned order dated 22.6.2010, applicant was granted a period of 60 days to make his representation under FR 54 (A) (2) (i) but he failed to do so and by efflux of time, the proposed penalty has become final and binding on him.
4. We have heard the learned counsel for the parties. It is an undisputed fact that the applicant, respondent No.4 and respondent No.5 were identically placed. The criminal case filed against them was the same. They have also been given the same punishment by the criminal court and they have been exonerated by the High Court. However, in the case of respondent No.4 & 5, the respondents have not passed any adverse orders. In such circumstances, the impugned order passed in the case of the applicant is absolutely arbitrary and illegal and violative of Article 14 & 16 of the Constitution of India. We, therefore, direct the respondents to treat the applicant in the same way as they have treated respondent No.4 & 5 in this application. Consequently, the impugned order dated 26.2.2010 is quashed and set aside. The respondents shall pass appropriate orders within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Dr. A.K. Mishra ) ( George Paracken )
Member (A) Member (J)
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