Central Administrative Tribunal - Lucknow
Shiv Kumar Dubey vs Union Of India on 11 February, 2025
CAT,Lucknow Bench OA No. 332/00301 of 2014 Shiv Kumar Dubey Vs. U.O.I. &Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.332/00301/2014
Dated, this 11th day of February, 2025
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Shiv Kumar Dubey, aged about 55 years, S/o late Rama Shanker
Dubey, R/o Village and Post Rasoolabad, District Faizabad.
.....Applicant
By Advocate: Shri Dharmendra Awasthi
VERSUS
1. Union of India through the Secretary, Ministry of Communication,
Department of Posts, Government of India, DakBhawan, New Delhi.
2. The Chief Postmaster General, U.P. Circle, Lucknow.
3. The Director, Postal Services, O/o Chief Post Master General, U.P.
Circle, Lucknow.
4. Senior Superintendent of Post Offices, Faizabad Division, Faizabad.
.....Respondents
By Advocate: Shri Mithilesh Kumar
ORDER (ORAL)
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case relating to punishment, the applicant has sought the following reliefs:
"a) Issue order/direction/in the nature of certiorari quashing the order dated 31.03.2014/6.05.2014 passed by respondent No. 3, whereby the appeal of the applicant has been dismissed by affirming the order passed by the disciplinary authority and order dated 30.08.2013 passed by respondent No. 4 whereby the applicant has been compulsory retired from service with immediate effect as contained in Annexure Nos. 1 and 2 respectively with all benefits of service (Compilation No. 1).
b) Issue an order, direction and command to the respondents not to give effect the impugned orders contained in Annexure Nos. 1 and 2 respectively and to reinstate the applicant in service forthwith without reference to the orders, impugned in the Application with all benefits of service.Page 1 of 6
CAT,Lucknow Bench OA No. 332/00301 of 2014 Shiv Kumar Dubey Vs. U.O.I. &Ors.
c) Issue such other order/direction which may be deemed just and proper in the circumstances of the case.
d) Allow the Original Application with cost against the respondents in view of the facts and circumstances, legal provisions and grounds raised in the application."
2.1 The facts of the case are that the applicant, while working under the respondents, was implicated in criminal case involving dispute over private property resulting in his conviction vide judgment and order dated 11.04.2013 in Session Trial No. 57 of 2011 and sentence of 6 months' rigorous imprisonment under sections 323 and 334 of IPC, 5 years' rigorous imprisonment and fine of Rs. 3,000/- under section 506(2) of IPC and 5 years' rigorous imprisonment and fine of Rs. 3,000/- under sections 308 and 334 of IPC. The applicant filed Criminal Appeal No. 576 of 2013 before Hon'ble High Court whereupon, vide interim order dated 17.04.2013, the conviction and execution of sentence were suspended.
2.2 The respondents issued a show cause notice to the applicant under rule 19 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 [CCS (CCA) Rules, hereafter],and after considering his reply dated 19.06.2013, imposed the major penalty of compulsory retirement on the applicant, vide order dated 30.08.2013. The applicant preferred appeal dated 11.10.2013 to the respondents and when it was not decided, he approached Hon'ble High Court in Writ Petition No. 2173 (MB) of 2014, whereupon Hon'ble High Court, vide judgment and order dated 13.03.2014, directed the respondents to pass appropriate orders on the applicant's appeal. The respondents rejected the applicant's appeal vide order dated 06.05.2014. Aggrieved, the applicant has preferred this OA.
3. The applicant contends that as his conviction and sentence have been stayed by Hon'ble High Court and he has been enlarged on bail, Page 2 of 6 CAT,Lucknow Bench OA No. 332/00301 of 2014 Shiv Kumar Dubey Vs. U.O.I. &Ors. the departmental proceedings under rule 19 of CCS (CCA) Rules are not permissible and he is entitled to be reinstated in service. It is further contended by the applicant that a similar controversy came up for adjudication before Hon'ble High Court in Prakash Chand Mishra vs State of UP & Ors in Writ Petition No. 10371 of 2022 wherein Hon'ble High Court, after referring to the judgment rendered in the case of Tulsi Ram Patel 1985 AIR 1416, quashed the termination order based on the conviction, vide judgment and order dated 22.12.2023.
4. Per contra, the respondents state that as the applicant was convicted by a competent court of law and his retention in service was not desirable, the penalty of compulsory retirement was imposed upon him. It is contended that in the Criminal Appeal No. 578 of 2013, Hon'ble High Court has stayed only half of the fine and only suspended the conviction and execution of sentence till the disposal of appeal.
5. We have heard both the parties.
6.1 It is not in dispute that the applicant has been convicted under sections 308, 323, 334 and 506(2) of IPC and sentenced to fine aggregating Rs. 6,000/- and sentences of 6 months and 5 years each to run concurrently vide order dated 11.04.2013 of the Additional Sessions Judge. The conviction and execution of sentence were suspended till the disposal of appeal by Hon'ble High Court vide order dated 05.10.2013. It is noted that the conviction and execution of sentence have not been set aside by Hon'ble High Court. 6.2 A perusal of order dated 30.08.2013 imposing the punishment of compulsory retirement on the applicant shows that it has been made after issuing show cause notice to the applicant under rule 19 of the CCS (CCA) Rules and considering his representation. The order dated 30.08.2013 mentions the sections of IPC under which the applicant was Page 3 of 6 CAT,Lucknow Bench OA No. 332/00301 of 2014 Shiv Kumar Dubey Vs. U.O.I. &Ors. convicted, the quantum of sentence, and that retention of the applicant in service is not desirable. A perusal of the order dated 06.05.2014 rejecting the applicant's appeal shows that it lists various pleas taken by the applicant and the appellate authority's views thereon. 6.3 Learned counsel for the applicant has averred that the conduct of the applicant in the criminal case has not been discussed in detail as required as per law laid down by Hon'ble Supreme Court in Tulsi Ram Patel (supra) and as observed by Hon'ble High Court in Prakash Chandra Mishra (supra). We can do no better than to refer to the following observations made by Hon'ble Supreme Court in Tulsi Ram Patel (supra):
"The respondent, Tulsiram Patel, was a permanent auditor in the Regional Audit Officer, M.E.S., Jabalpur. It appears that orders were issued by Headquarters, C.D.A. C.C., Meerut, stopping the increment of the Respondent for one year. One Raj Kumar Jairath was at the relevant time the Regional Audit Officer, M.E.S., Jabalpur. On July 27,1976, the Respondent went to Raj Kumar's office and demanded an explanation from him as to why he had stopped his increment whereupon Raj Kumar replied that he was nobody to stop his increment. The Respondent then struck Raj Kumar on the head with an iron rod. Raj Kumar fell down, his head bleeding. The Respondent was tried and convicted under section 332 of the Indian Penal Code by the First Class Judicial Magistrate, Jabalpur. The Magistrate instead of sentencing the Respondent to imprisonment applied to him the provisions of section 4 of the Probation of Offenders Act, 1958, and released him on his executing a bond of good behaviour for a period of one year. The Respondent's appeal against his conviction was dismissed by the Sessions Judge, Jabalpur. The Controller General of Defence Accounts, who was the disciplinary authority in the case, imposed upon the Respondent the penalty of compulsory retirement under clause (i) of Rule 19 of the Civil Services Rules. The said order was in the following terms:
"WHEREAS Shri T.R. Patel, Pt. Auditor (Account No.8295888) has been convicted on a criminal charge, towit, under Section 332 of I.P.C., WHEREAS it is considered that the conduct of the said Shri T.R.Patel, Pt.Auditor,(Account No. 8295888) which has led to his conviction, is such as to render his further retention in the public service undesirable, Now, therefore, in exercise of the powers conferred by Rule 19(i) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the undersigned hereby direct that the said Shri T.R. Patel, Pt. Auditor, (Account No.8295888) shall be compulsorily retired from service with effect from 25.11.1980."
The Respondent thereupon filed a departmental appeal which was dismissed.
Page 4 of 6 CAT,Lucknow Bench OA No. 332/00301 of 2014 Shiv Kumar Dubey Vs. U.O.I. &Ors. Thereafter the Respondent filed in the Madhya Pradesh High Court a writ petition under Articles 226 and 227 of the Constitution. Relying upon Challappan's Case the High Court held that no opportunity had been afforded to the Respondent before imposing the penalty of compulsory retirement on him. It further held that the impugned order was defective inasmuch as it did not indicate the circumstances which were considered by the disciplinary authority except the fact of conviction of the Respondent.
We are unable to agree with either of the two reasons given by the High Court for setting aside the order of compulsory retirement. So far as the first ground upon which the High Court proceeded is concerned, as already pointed out that part of the judgment in Challapan's case is not correct and it was, therefore, not necessary to give to the Respondent any opportunity of hearing before imposing the penalty of compulsory retirement on him.
It was, however, argued that the penalty imposed upon the Respondent was not of dismissal or removal from service but of compulsory retirement and, therefore, clause (a) of Article 311(2) did not apply. The argument cannot be accepted. The compulsory retirement of the Respondent was not by reason of his reaching the age of superannuation or under other rules which provide for compulsorily retiring a government servant on his completing the qualifying period of service. The order of compulsory retirement in this case was under clause(i) of Rule 19 of the Civil Services Rules and was by way of imposing upon him one of the major penalties provided for in Rule 11. It is now well settled by decisions of this Court that where an order of compulsory retirement is imposed by way of penalty, it amounts to removal from service and the provisions of Article 311 are attracted. (See State of U.P. v. Shyam Lal Sharma, [1972] 1 S.C.R. 184,189 and the cases referred to therein).
The second ground upon which the High Court rested its decision is equally unsustainable. The circumstances which were taken into consideration by the disciplinary authority have been sufficiently set out in the order of compulsory retirement, they being that the Respondent's conviction under section 332 of the Indian Penal Code and the nature of the offence committed which led the disciplinary authority to the conclusion that the further retention of the Respondent in the public service was undesirable. The mention of section 332 of the Indian Penal Code in the said order itself shows that Respondent was himself a public servant and had voluntarily caused hurt to another public servant in the discharge of his duty as such public servant or in consequence of an act done by that person in the lawful discharge of his duty. The facts here are eloquent and speak for themselves. The Respondent had gone to the office of his superior officer and had hit him on the head with an iron rod. It was fortunate that the skull of Raj Kumar was not fractured otherwise the offence committed would have been the more serious one under section 333. The Respondent was lucky in being dealt with leniently by the Magistrate but these facts clearly show that his retention in public service was undesirable. In fact, the conduct of the Respondent was such that he merited the penalty of dismissal from government service and it is clear that by imposing upon him only the penalty of compulsory retirement, the disciplinary authority had in his mind the fact that the Magistrate had released him on Page 5 of 6 CAT,Lucknow Bench OA No. 332/00301 of 2014 Shiv Kumar Dubey Vs. U.O.I. &Ors. probation. We accordingly hold that clause (i) of Rule 19 of the Civil Services Rules was rightly applied to the case of the Respondent. This Appeal, therefore, requires to be allowed and the writ petition filed by the Respondent in the Madhya Pradesh High Court deserves to be dismissed."
(emphasis supplied) As in Tulsi Ram Patel (supra) quoted above, we find that the essential ingredients of the offence have been covered in the impugned orders citing the sections of IPC under which the applicant was convicted and which have led the respondents to conclude that the applicant's retention in service was not desirable. The sections of IPC under which the applicant has been convicted entailing the attempt to commit culpable homicide, voluntarily causing hurt and criminal intimidation, we have no quibble with the impugned orders passed by the respondents.
7.1 In view of the foregoing, this OA lacks merit and is dismissed accordingly.
7.2 Pending MAs, if any, are also disposed of.
7.3 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
Vidya Ben Digitally signed by Vidya Ben Waghela
Waghela
Date: 2025.02.12 17:17:43 +05'30'
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