Central Administrative Tribunal - Lucknow
Manoj Kumar Aged About 39 Years Son Of ... vs Union Of India Through on 11 March, 2015
Central Administrative Tribunal, Lucknow Bench, Lucknow
Original Application No. 94/2012
Reserved on 9.3.2015
Pronounced on 11.3.2015
Honble Sri Navneet Kumar , Member (J)
Honble Ms. Jayati Chandra, Member (A)
Manoj Kumar aged about 39 years son of late Sri Sriram resident of Railway quarter No. II.VG-7B, VG Colony, Alambagh, Lucknow
Applicant
By Advocate: Sri Praveen Kumar
Versus
Union of India through
1. The General Manager, Northern Railway, Baroda House, New Delhi.
2. The Sr.Divisional Mechanical Engineer (Diesel), Northern Railway, Hazratganj, Lucknow.
3. The Divisional Mechanical Engineer (Diesel) , Northern Railway, Hazratganj, Lucknow.
Respondents
By Advocate: Sri D.B.Singh
ORDER
BY HONBLE SRI NAVNEET KUMAR, MEMBER (J) The present O.A. is preferred by the applicant under Section 19 of the AT Act with the following reliefs:-
i. To quash impugned order dated 12.8.2011 contained as Annexure No. A-1 to this O.A. with all consequential benefits.
ii. To reinstate the applicant in service forthwith with all consequential benefits.
iii. Any other relief, which this Honble Tribunal may deem fit just and proper under the circumstances of the case, may also be passed.
iv. Cost of the present case.
2. The facts of the case are that the applicant was initially appointed with the respondents organisation and was implicated in a criminal case u/s 307/34 IPC on 17.11.2006. The applicant remained in jail and while the applicant was in jail, he was suspended. A criminal case was registered and finally the applicant was convicted by the competent court and the applicant has been sentenced 10 years rigorous imprisonment and a fine of Rs. 10,000/-. The applicant preferred appeal before the Honble High Court. Subsequently, the responded issued an order on 12.8.2011 removing the applicant from service. Feeling aggrieved by the said order, the applicant preferred the present O.A.
3. On behalf of the respondents, the reply is filed and through reply, it is indicated by the respondents that the applicant was convicted u/s 307/34 IPC and was awarded imprisonment for 10 years with fine of Rs. 10,000/- The appeal was preferred by the applicant in the Honble High Court but there is no interim order granted. Not only this, it is also indicated by the respondents that a show cause notice was given to the applicant but the same was returned back and on 5.7.2011, another notice was given but the same also could not be served upon the applicant. It is pointed out by the respondents that the wife of the applicant was served with the notice in presence of two witnesses. It is also indicated by the respondents that in terms of Rule 14(1) of Railway Servants (Disciplinary and Appeal) Rules, the applicant was given due opportunity to represent and after due notice, the applicant was removed from service. As such, there is no illegality in the impugned order and the same can be passed. Not only this, the learned counsel for the respondents also relied upon the proviso of Article 311 (2) of Constitution of India and has indicated that an opportunity is not required to be given to a delinquent employee before passing order of removal in the event of a criminal case.
4. On behalf of the applicant Rejoinder Reply is filed and through Rejoinder Reply the averments made in the O.A. are reiterated and contents of counter reply are denied.
5. Heard the learned counsel for parties and perused the records.
6. The applicant was initially appointed in the respondents organization in 1967. An FIR was lodged against the applicant u/s 307/34 IPC on 17.11.2006. He remained in jail and on account of which, the applicant was suspended from service. Finally, by means of conviction in 2010, he was sentenced for rigorous imprisonment of 10 years with fine of Rs. 10,000/-.The applicant preferred the criminal appeal before the Honble High Court but no interim order is granted by the Honble High Court.
7. As per the averments made in counter reply, the applicant was served with the show cause notice on 16.10.2010, 1.11.2010. The first notice could not be served upon the applicant and the second notice was served upon the wife of the applicant in presence of two witnesses and when the respondents failed to receive any reply, they passed an order on 12.8.2011 removing the applicant from service. The learned counsel for the respondents argued that due opportunity was given to the applicant and notice was served upon him and accordingly passing of removal order is after full consideration and there is no lapses in passing such orders.
8. Learned counsel for respondents has also relied upon a decision of Honble Apex Court in the case of The Divisional Personnel Officer Southern Railway and another Vs. T.R. Challappan reported in AIR 1975 Supreme Court, 2216 and has indicated that Honble Apex Court dealt with Rule 14 (1) of Railway Servants (Discipline and Appeal )Rules 1968 and has also observed that the disciplinary authority has the undoubted discrimination to impose any punishment which he deemed fit under the circumstances of each case.
9. Article 311 provides as under:-
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
10. It is also provided in Article 311(1) that a person cannot be dismissed or removed by an authority subordinate to that of which he was appointed. But for ready reference proviso (a) to article 311 of Constitution of India provides as under
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.
(1) (2) Provided further that this clause shall not apply- ]
(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or.
11. Apart from this, it is explicitly clear that the applicant is convicted u/s 307 /34 IPC as such the conduct of the applicant is grave in nature. It is also to be mentioned that the disciplinary authority has to take into account the entire action of the delinquent employee, the gravity of misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features if any present in the case and so on and so forth.
12. It is also to be pointed out that as per Rule 14 (1) of the Railway Servants (Discipline and Appeal ) Rules, the respondents can pass an order of termination. For ready reference, Rule 14(1) of Railway Servants (Discipline and Appeal ) Rules, reads as under:-
14. Special Procedure in certain cases Notwithstanding anything contained in Rule 9 to 13.
(i) Where any penalty is imposed on a Railway Servant on the ground of conduct which has led to his conviction on a criminal charge; or
(ii)
(iii) .
The Disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit.
[Provided that the Railway Servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case falling under Clause (i) Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule]
13. That an employee can be terminated or dismissed on the basis of conviction. The Honble Apex Court in the case of Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera reported in 1995(3) SCC 377 has observed as under:-
It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). .
What is really relevant thus is the conduct of the government servant , which has led to his conviction on a criminal charge.
14. The statutory provisions referred to above merely imports a rule of natural justice in enjoying that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case maybe objectively considered. This is in keeping with the sense of justice and fair play. The disciplinary authority has the undoubted power after hearing the delinquent employees and considering the circumstances of the case to inflict any major penalty on the delinquent employee without any further departmental inquiry if the authority is of the opinion that the employee has been guilty of a serious offence. In the instant case, due opportunity of hearing was given to the applicant by means of show cause notice but the applicant failed to give reply, as such it cannot be said that the applicant was not given due opportunity of hearing.
15. Not only this, the word considered in the last part of Rule 14(1) merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge. In the instant case, due opportunity was given and after considering the conduct of the applicant and after considering the gravity of charges, the disciplinary authority has taken a decision of removal from service.
16. Considering the averments made by the learned counsel for parties and also after perusal of records, we do not find any reason to interfere in the present O.A. Accordingly, the O.A. is dismissed. No order as to costs.
(JAYATI CHANDRA) (NAVNEET KUMAR) MEMBER (A) MEMBER(J) HLS/-