Central Administrative Tribunal - Delhi
Om Prakash vs Chief Secretary on 23 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI OA No.3855 of 2012 Orders reserved on : 17.05.2013 Orders pronounced on : 23.05.2013 Honble Dr. Dharam Paul Sharma, Member (J) Honble Shri Sudhir Kumar, Member (A) Om Prakash, Ex. Safai Karamchari, 529 Type-1, Delhi Admn. Flat Gulabi Bagh, New Delhi-110 007. ..Applicant (By Advocate : Shri P.C. Misra) versus 1. Chief Secretary, Govt. of NCT Delhi, 5th Level, Delhi Secretariat, I.P. Estate, New Delhi. 2. Director, Agricultural Marketing Govt. of NCT of Delhi, 49, Shyam Nath Marg, Old Secretariat, Delhi-110 054. 3. Joint Director, Agricultural Marketing, Govt. of NCT of Delhi, 49, Shyam Nath Marg, Old Secretariat, Delhi-110 054. Respondents (By Advocate : Mrs. Sumedha Sharma) O R D E R Dr. Dharam Paul Sharma, Member (J) :
This Application is directed against the order No.F.5 (3)87/DAM/Estt/10740 dated 22.11.2011 passed by the Joint Director (AM), Directorate of Agricultural Marketing, Govt. of NCT of Delhi, dismissing the applicant under Rule 19 (1) of CCS (CCA) Rules, 1965, a copy of which is annexed as Annexure-1. The Application is also directed against the order No.F.5(3)/87/DAM/Estt/4050 dated 30.10.2012 passed by the Director/Appellate Authority, rejecting the appeal of the applicant dated 10.7.2012, a copy of this order is annexed as Annexure-2. The applicant prays for setting aside of these orders with consequential benefits.
2. The applicant was working as a Safai Karamchari in the Directorate of Agricultural Marketing, Govt. of NCT of Delhi. He was convicted on a criminal charge under Section 364 IPC by learned Additional Session Judge, Court No.3, Meerut, U.P. and was awarded sentence of seven years rigorous imprisonment with a fine of Rs.5,000/- (Rupees Five Thousand only) vide judgment dated 30.6.2011. In the said judgment, he along with his co-accused was held guilty of kidnapping Shri Naresh Kumar on 13.12.1997 from Village Julhaira, Police Station Sardhana, District Meerut with the intention to commit his murder. In exercise of power under Rule 19 (1) of CCS (CCA) Rules, 1965, the disciplinary authority issued a show cause notice No.F.5(3)87/DAM/Estt/10325 dated 10.10.2011 calling upon the applicant to show cause as to why penalty proposed thereunder be not imposed on him. The show cause notice proceeded on the premises that gravity of misconduct, which led to his conviction on a criminal charge under Section 364 IPC, warranted a major penalty of dismissal from service as the disciplinary authority provisionally came to the conclusion that the applicant was not a fit person to be retained in service. A copy of the said show cause notice has been filed by the applicant with his rejoinder as Annexure R-1. The applicant has, however, not annexed a copy of the reply submitted by the applicant to the said show cause notice. However, it is gathered from the order of the disciplinary authority that explanation furnished by the applicant was to the fact that he was falsely implicated in the criminal case due to enmity and he has filed an appeal against the judgment of learned Additional Session Judge in which he had been granted bail by the Honble High Court of Allahabad.
3. At the hearing, the applicants counsel confirmed the explanation so furnished by the applicant. The applicant was afforded a personal hearing by the disciplinary authority which he did not avail. Upon due consideration of the judgment dated 30.6.2011 as well as explanation/ representation dated 8.112011 submitted by the applicant to the show-cause notice dated 10.10.2011, the disciplinary authority imposed the penalty of dismissal from service on the applicant, which would be a disqualification for his future employment under the Government under Rule 19 (1) of CCS (CCA) Rules, 1965. Feeling aggrieved, the applicant preferred an appeal dated 10.7.2012 against the order of the disciplinary authority. The grounds of appeal are the same as are taken as the grounds in this Application for the relief prayed for. Thus, it has been submitted that his conviction was a result of malicious prosecution. In his criminal appeal, the Honble High Court has suspended the conviction. The criminal appeal will take 10 to 15 years for finalization. He does not have any criminal background. The conviction is not on a corruption charge. The victim did not return to Delhi due to unknown circumstances, which are beyond comprehension of the applicant. Unless the applicant is found guilty of grave criminal misconduct, being a Safai Karamchari, he could be allowed to continue to do his job. The delay in filing the appeal was condoned by the appellate authority on the request of the applicant. The appeal, however, did not find favour with the appellate authority which did not find any valid reasons to interfere with the order of the disciplinary authority. The appeal was accordingly dismissed vide order dated 30.10.2012. Both the orders of the disciplinary authority as well as the appellate authority are being challenged in this Application by the applicant on the grounds mentioned in Para 5 of the Application. It has thus been submitted by the applicant that he is a group D employee doing safai Karamchari work since January 1987 to the satisfaction of all concerned. His conviction was a result of malicious prosecution. Since the sentence awarded to the applicant has been suspended by the High Court, he is available to do his job. He does not have a criminal background. His conviction is not on a corruption charge. The penalty of dismissal is grossly excessive. The applicant did not know the reason as to why Naresh Kumar did not return to Delhi. The retention of the applicant in service due to the nature of his duty as a Safai Karamchari is not undesirable and, therefore, Rule 19 (1) of the CCS (CCA) Rules is not applicable. The applicant has 26 years of service in the department and his service could not be terminated simply because of his conviction, which has not attained finality in view of his pending appeal in the High Court. The order of the disciplinary authority is in violation of principles of natural justice, as he was not given any oral hearing before issuance of show cause notice proposing to award penalty of dismissal to the applicant. The appellate authority has failed to apply his mind to the facts and circumstances of the case as well as the contentions raised by the applicant.
4. In their reply, the respondents have opposed the Application claiming that both the disciplinary authority as well as the appellate authority carefully considered all the grounds raised by the applicant as well as the facts and circumstances of the case and after giving due opportunity to the applicant as per the law, the impugned orders have been passed.
5. The applicant has filed his rejoinder to the counter reply of the respondents along with which he has annexed a copy of the show cause notice, a copy of the judgment of the Trial Court, a copy of judgment of Honble Supreme Court in the case of Union of India vs. Parma Nanda, (1989) 2 SCC 177 as at Annexures R-1 to R-3 respectively. Vide its judgment, the trial court held that the prosecution has proved the fact beyond any doubt that on 13.12.1997, the accused persons, namely Rajendra, Om Prakash (Applicant herein), Ompal and Arvind Kumar under the limits of Village Julhaira, Police Station Sardhana, District Meerut, to fulfill their common object, made abduction of Naresh Kumar, son of complainant Rattan Lal with the purpose to commit his murder. One Aurangzed, a co-accused, was, however, acquitted by giving him benefit of doubt. In the case of Union of India vs. Parma Nanda (supra), Honble Supreme Court has, inter alia, held that Administrative Tribunal has ordinarily no power to interfere with punishment awarded by competent authority in departmental proceedings on ground of the penalty being excessive or disproportionate to the misconduct proved, if the punishment is based on evidence and is not arbitrary, malafide or perverse but Tribunal can interfere with the apparently unreasonable punishment where it is imposed on the basis of conviction by criminal court dispensing with departmental enquiry under second proviso (a) to Article 311 (2) of the Constitution of India.
6. At the hearing, learned counsel for the applicant strongly emphasized the fact that the applicant is a Safai Karamchari and is available for doing his duties, as his sentence has been suspended by the High Court of Allahabad. Since his appeal is pending, the conviction has not yet attained finality. The learned counsel for the applicant, therefore, pleaded that the applicant should have been allowed to work by the respondents, especially in view of the fact that his conviction is not on any charge of corruption. It has further been contended by the learned counsel for the applicant that the applicant has indeed been dismissed from service by the respondents on the basis of his conviction in the criminal case rather than on the basis of his conduct which led to his conviction. The impugned orders have also been assailed as non-speaking for these do not reflect due application of mind to the facts and circumstances of the case and the contentions raised by the applicant. Lastly, it has been submitted by the applicants counsel that penalty of dismissal awarded to the applicant is grossly excessive keeping in view the fact that he is a lowly paid Safai Karamchari.
7. The learned counsel for the respondents reiterated the averments made in the counter reply filed by the respondents. It was strongly contended by the respondents counsel that the applicant has been convicted on a grave criminal charge, namely, kidnapping of a person with intention to commit his murder. There is nothing wrong for the disciplinary authority to hold the view that such a person is not fit for retention in the service of the respondents and, therefore, deserves to be dismissed. It has further been submitted that under the rules, it is not incumbent upon the respondents to wait for the outcome of pending criminal appeal. The rule position in the matter is quite clear that in case the applicant is successful in his appeal and is ultimately acquitted from the criminal charge, he may seek review of the impugned orders in the light of the judgment of the High Court. Till then conviction of the applicant by the trial court holds the field and the impugned orders have been rightly passed by the respondents in accordance with law after due compliance with the related procedures. The applicant is thus not entitled for the relief prayed for. As a matter of fact, the Application is bit pre-mature. The applicant should have awaited the outcome of his criminal appeal pending in the High Court.
8. We have given our careful consideration to the respective submissions made by both the parties. We have also carefully perused the records of the case.
9. Rule 19 of the CCS (CCA) Rules, provides for certain special procedures in certain cases. One such case is where any penalty is imposed on a Government servant on the ground of conduct, which has led to his conviction on a criminal charge, the rule, inter alia, provides that the disciplinary authority in such a case has to make such order as it deem fit upon due consideration of the circumstances of the case, notwithstanding anything contained in Rules 14 to 18 providing for procedures for imposing penalty thereunder. The rule provides for giving an opportunity to the Government servant concerned for making representation on the penalty proposed to be imposed before any order is made. While exercising the power under Rule 19 (i), it is not incumbent upon the disciplinary authority to wait for the expiry of the period for filing the appeal or if an appeal has been filed, to wait for the decision of the appellate court. It is for the disciplinary authority to decide upon the nature of punishment on the basis of merit of each case. Thus, when a Government servant is convicted on a criminal charge, the disciplinary authority is required to consider whether his conduct, which led to his conviction, was such as warrants the imposition of any penalty and if so, what that penalty should be. For this purpose, the disciplinary authority has to carefully examine the judgment of the criminal court and consider all the facts and circumstances of the case. While exercising the powers under Rule 19 (1) (i), the disciplinary authority should take into account the entire conduct 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. Once the disciplinary authority reaches the conclusion that the Government servants conduct was blameworthy and punishable, it should then decide the penalty that should be imposed on the Government servant. Needless to say that the penalty so imposed should not be grossly excessive or out of all proportion to the offence committed. We may now examine the case of the applicant in the light of the aforesaid principles. The applicant has been convicted on the charge of kidnapping a person with a intention to commit his murder. This was done along with other co-accused in furtherance of their common object. The evidence brought on record during the course of trial proved the applicant guilty of the charge beyond any reasonable doubt. There is nothing to suggest at this stage on the basis of available material that his conviction was the result of a malicious prosecution. Even if the applicant does not have a criminal background, nevertheless, it is open to the respondents authority to pass impugned orders having regard to the facts and circumstances of the case, especially the gravity of the charge for which he is convicted. There is no warrant in law to say that the applicant could have been dismissed only in a case of his conviction on a corruption charge. Where a person is held guilty on a charge of corruption invariably the order of dismissal would be passed. But that by itself does not mean that in no other case order of dismissal can be passed, howsoever, the serious charge may be. Pendency of criminal appeal filed by the applicant against his conviction would not make any material difference as the applicable rule does not enjoying upon the disciplinary authority to wait for the decision on the appellate court before passing any order under Rule 19 (i) of the CCS (CCA) Rules. The applicant has been duly given show cause notice before passing order under Rule 19 (i). He was also afforded a personal hearing which he failed to avail on his own volition. The rule does not provide for any hearing before issuance of show cause notice. The rule expressly provides that the applicant should only given an opportunity of making representation on the penalty proposed to be imposed before making any order under Rule 19 (i). The requirement of the first proviso to Rule 19 has been duly complied with in the present case. Insofar as the penalty awarded to the applicant by the respondents in the case, we do not find this apparently unreasonable having regard to the facts and circumstances of the case, in particular, the gravity of the offence for which he is convicted. When we examine the adequacy of penalty imposed in the light of conviction as well as the sentence inflicted on the applicant, we do not find that the penalty is grossly excessive and out of all proportion in the facts and circumstances of the case.
10. In the facts and circumstances of the case and for the reasons stated above, we do not find any merit in the present Application. The same is accordingly dismissed. No order as to costs.
(Sudhir Kumar) (Dr. Dharam Paul Sharma) Member (A) Member (J) /ravi/