Central Administrative Tribunal - Ernakulam
I.S.Antony Cleetus vs Union Of India Represented By The ... on 18 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.694/10
Thursday this the 18th day of November 2010
C O R A M :
HON'BLE Mr.JUSTICE K.THANKAPPAN, JUDICIAL MEMBER
HON'BLE Mr.K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
I.S.Antony Cleetus,
S/o.Sandhyavu,
Tax Assistant,
Rtd. from Central Excise & Customs & Service Tax Department.
Residing at Irumpanath House,
Ochanthuruth, Cochin - 682 508. ...Applicant
(By Advocate Mr.Babu Cherukara)
V e r s u s
1. Union of India represented by the Secretary,
Central Board of Excise & Customs,
Department of Revenue, Ministry of Finance,
New Delhi.
2. The Chief Commissioner,
Central Excise, Customs & Service Tax,
Central Revenue Building, IS Press Road,
Cochin - 18.
3. The Additional Commissioner of Central Excise (P&V),
Central Revenue Building, IS Press Road,
Cochin - 18. ...Respondents
(By Advocate Mr.Sunil Jacob Jose,SCGSC)
This application having been heard on 18th November 2010 the
Tribunal on the same day delivered the following :-
O R D E R
HON'BLE Mr.JUSTICE K.THANKAPPAN, JUDICIAL MEMBER The applicant filed this Original Application with the following prayers :-
1. Order to set aside Annexure A-1.
2. Order to grant due promotions to the applicant as a Deputy Office Superintendent in the Central Excise, Customs and Service Tax Department as that his junior Smt.Asha Vijayakumar with all consequential service benefits.
3. Any other orders as this Hon'ble Court deems fit and proper in the facts and circumstances in the case and also those are prayed for during the pendency of the O.A.
4. Order from the entire costs.
2. The applicant approaches this Tribunal for the second time for getting his promotion which was denied to him on the reason of a conviction rendered by a Criminal Court on him. Earlier, the applicant filed O.A.No.378/10. The said O.A has been disposed of by this Tribunal directing the respondents to consider the representation (marked as Annexure A-7 therein) of the applicant within a reasonable time. Subsequent to the above order passed by this Tribunal, the respondents considered his representation and by an order dated 2.8.2010 (a copy of which is marked as Annexure A-1 in this O.A) the respondents have rejected the representation taking the stand that as per the conduct rules once an employee has been convicted by a Criminal Court in a criminal case he is not entitled for promotion. Aggrieved by the said order, the present O.A has been filed.
3. When the application came up for admission we have issued notices to the respondents returnable within a stipulated time. In pursuance to the notices received from this Tribunal a reply statement has been filed on behalf of the respondents. In the reply statement in support of the order impugned it is stated that as per Rule 19(1) of the CCS (CCA) Rules, 1965, proceeding has been initiated against the applicant under the criminal law and by an order dated 30.12.2004 the applicant has been found guilty of offences punishable under section 323, 448, 427 and 506(1) read with section 34 of IPC and the applicant was ordered to pay a fine of Rs.1000/- to be given as a compensation to the complainant in the criminal case and Rs.300/- as a compensation to the prosecution witness No.2. On an appeal, the Appellate Court maintaining the conviction rendered by the Trial Court released the applicant under section 4 and 5 of the Probation of Offenders Act, 1958. Hence, maintaining the conviction would show that the applicant is found guilty in a criminal case by a Criminal Court and on this ground alone the applicant is not entitled for promotion and his promotion has not been considered by the respondents. Further, it is stated in the reply statement that as per Rule 3 of the CCS (Conduct) Rules, 1964 the applicant is not free from vigilance angle and the conviction by a Criminal Court still subsists.
4. After the filing of the reply statement the applicant has filed a rejoinder reiterating the grounds urged in the O.A and further stated that there are judgments of the Hon'ble High Court of Kerala holding that a conviction rendered by a Criminal Court in a domestic affair and not connected with the service or in the course of the employment is not a ground for denying the promotion or removal from service. A copy of the judgment of the Hon'ble High Court of Kerala reported in 1975 KHC 42 in Krishnankutty Vs. Senior Superintendent of Post Offices, Ernakulam has also been produced by the counsel for the applicant.
5. We have heard the counsel appearing for the applicant, Mr.Babu Cherukara who contends that though the applicant was convicted by the Trial Court which sentenced him to undergo simple imprisonment and fine, the Appellate Court maintaining the conviction admonished him under section 4 and 5 (it may be only under section 3 and 4 and the procedure adopted under section 5 of the Probation of Offenders Act, 1958). If any admonition is given to a convict under the Probation of Offenders Act as per section 12 of the said Act that stigma attached to the conviction is no more in existence and in all purpose the release under the Probation of Offenders Act can be considered as a clean acquittal. Secondly, the counsel submits that though this Tribunal has not specifically directed the respondents to consider the case canvassed in the earlier O.A for considering his promotion in the light of the Probation of Offenders Act, this Tribunal directed to consider the representation in the light of the provisions contained in the order passed by this Tribunal and that is now not considered properly by the respondents. The counsel further submits that the judgment of the Hon'ble High Court of Kerala in Krishnankutty's case is also applicable in the case of the applicant.
6. To the above arguments the counsel appearing for the respondents, Mr.Sunil Jacob Jose,SCGSC submits that Rule 3 of the CCS (Conduct) Rules, 1964 provides that a Government servant shall not do anything which is unbecoming of a Government servant. This provision can be attracted in the case of the applicant and this fact, according to the counsel for the respondents, that the applicant was found guilty of criminal charges by a Criminal Court and convicted by a Criminal Court and though the applicant filed an appeal against the conviction the Appellate Court only released the applicant under the provision of the Probation of Offenders Act maintaining the conviction. If so, if any Government employee is convicted by a Criminal Court is not entitled for consideration of any service benefits including that of promotion. If so, the impugned order is to be sustained and this Tribunal may not interfere in the order passed by the respondents.
7. In the light of the arguments of the counsel appearing for the parties and the relevant rules regarding the service rules as well as the provision of the Probation of Offenders Act, the question to be considered is that whether the applicant is entitled for his promotion as he claimed in the O.A or not. It is an admitted fact before us that the applicant was tried for the offences punishable under section 323, 448, 427 and 506 (1) read with section 34 of IPC. The Trial Court found the applicant along with other accused guilty of the charges and sentenced him to undergo simple imprisonment for a period of six months and a fine of Rs.1000/-. On the sentence ordered by the Trial Court the applicant has filed Criminal Appeal No.1093/04 before the Sessions Court and the Appellate Court on hearing the appeal maintained the conviction rendered by the lower Court under Section 323, 448 and 427 read with section 34 of IPC. The applicant was admonished under section 3 of the Probation of Offenders Act and also under section 5 of the Probation of Offenders Act. Further, the Appellate Court ordered to pay an amount of Rs.1000/- as compensation to the complainant, namely, PW 1 and Rs.300/- to PW 2, prosecution witness No.2 as compensation under section 5 of the Probation of Offenders Act. With regard to the conviction under section 506(1) of IPC the Appellate Court set aside and acquitted the applicant. It is also noted by us that against the order passed by the Appellate Court a Criminal Revision is now pending before the Hon'ble High Court of Kerala as Criminal Revision Petition No.665/05. With regard to the factual position of the criminal case it is found by the Appellate Court that it is a criminal case filed by the defacto complainant alleging criminal action done by the applicant along with other accused in the case as a domestic quarrel and not connected with any of the service of the applicant. It is also the case of the applicant that as the Appellate Court found the applicant though guilty under the provisions of section 323, 448 and 427 the applicant was released under section 3 of the Probation of Offenders Act. It is at this juncture this Tribunal has to find out whether such admonition ordered by the Appellate Court will cause any stigma or it could be treated as a bar for any service benefits of the applicant or not. In this context we have seen that as per section 12 of the Probation of Offenders Act any disqualification attaching to any conviction and on release of an offender under the provision of section 3 and 4 of the Act shall not suffer any disqualification attached to such conviction of offences under such laws which means that release or admonition under section 3 and 4 of the Probation of Offenders Act is to be considered as an acquittal. The relevant section of the Probation of Offenders Act reads as follows :-
12. Removal of disqualification attaching to conviction -
Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law .
8. A reading of the above section would reveal that any person convicted in a criminal case can be released under the provisions of section 3 and 4 of the Probation of Offenders Act and if such release is ordered by a Criminal Court there shall not be any disqualification attached to such conviction which means that the stigma attached to such conviction shall not by any more as far as such convictees are concerned. If so, such release can be considered as applicable to the case of the applicant for his service benefits in the light of Rule 3 of the CCS (Conduct) Rules, 1964. Rule 3 of the CCS (Conduct) Rules, 1964 reads as follows :-
3. General (1) Every Government servant shall at all times--
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant.
9. Sub Section 3 of Rule 3 states that every Government servant shall at all times "do nothing which is unbecoming of a Government servant"
which means, according to us is, that no Government servant shall do nothing which make him unbecoming of such Government servant. It further means that if there is any conviction by a Criminal Court in connection with the service of the Government employee can be considered as a stigma for debarring or denying the service benefits to such Government servants. In this context the observation of the Hon'ble High Court of Kerala in Krishnankutty's case that "a domestic quarrel which has nothing to do with the employment of the Government servant cannot be a misconduct. Moreover, if the same occurs at a place far away from the place of employment, that cannot in any way be made the subject matter of a disciplinary action against the Government servant. In this case, a scuffle between the petitioner - Government servant and his step brother at the place where they live resulted in the criminal charge and the conviction thereon. If the conduct of the petitioner cannot be the subject matter for taking disciplinary action against him under R.14 to 18 of the Rules, the mere fact that he was convicted on a criminal charge on the ground of that conduct cannot be a reason for invoking R.19(i) of the Rules. Hence, Ext.P1 order of the 1st respondent removing the petitioner from service is without jurisdiction. Quash Ext.P1. If Ext.P1 is an order without jurisdiction the fact that the petitioner did not file an appeal from it in time is immaterial. An order without jurisdiction is an order ab initio void and hence it is not necessary that the petitioner should appeal against that order. I therefore quash Ext.P4 order also. The petitioner is entitled to continue in service without any interruption. The petitioner is to get all benefits of service including payment of arrears of salary from 1.5.1971 onwards."
10. A reading of the above would show that if any incident took place which was the basis for a criminal case and any conviction rendered by a Criminal Court cannot be considered as a bar for getting the service benefits provided that incident is not in connection with any of the service of the applicant and it is not a bar under the Conduct Rules to claim the service benefits of such persons. We are impressed by the above observation given by the Hon'ble High Court of Kerala in the above case and we are now looking into the provisions of section 12 of the Probation of Offenders Act. Section 12 of the Probation of Offenders Act very clearly states that disqualification attached to the conviction is no more there to a person who was released by a Criminal Court under section 3 and 4 of the Probation of Offenders Act. If so, the disqualification attached to any incident which is not connected with the service of the applicant for which any disciplinary proceedings would have been initiated, may not be a ground for denying the service benefits of such employees.
11. Even under the provisions contained in section 360 of the Criminal Procedure Code, 1973 there is a provision for release of convictees who are convicted under certain provisions of IPC and sub section 8 of section 360 provides that such releasing also can be considered as an acquittal in all senses and the analogous position is that section 12 is taken into consideration by the law makers.
12. In the above circumstances, we feel that the Annexure A-1 order now passed by the respondents is not in the light of the observations given by this Tribunal in the earlier O.A. In this context, we further order that as the provisions of Probation of Offender Act, is being a special law, it should be applicable to the persons who are released under section 3 and 4 of Probation of Offenders Act and there shall not be any stigma attached to conviction rendered by a Criminal Court if such convictees are released under section 3 and 4 of the Probation of Offenders Act. If so, the respondents have to re-consider the case of the applicant and pass appropriate orders within a period of 45 days from the date of receipt of a copy of this order. Accordingly, this O.A is allowed and Annexure A-1 order is set aside. No order as to costs.
(Dated this the 18th day of November 2010)
K.GEORGE JOSEPH JUSTICE K.THANKAPPAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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