Jharkhand High Court
Shyam Lal Mahto vs The Union Of India Through The General ... on 5 January, 2022
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 6345 of 2015
Shyam Lal Mahto --- Petitioner
Versus
1. The Union of India through the General Manager, South
East Railway, Garden Reach, Kolkata
2 The Divisional Railway Manager, South East Railway,
Chakradharpur, Singhbhum West (Jharkhand)
3. The Additional Divisional Railway Manager, South East
Railway, Chakradharpur, Singhbhum West
4. The Senior Divisional Signal & Tele Engineering
(Sr. DSTE), South East Railway, Chakradharpur,
Singhbhum West
5. The Additional A.S.T.E cum Disciplinary Authority, South
East Railway, Chakradharpur, Singhbhum West --- Respondents
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mr. Justice Deepak Roshan
Through: Video Conferencing
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For the Petitioner : Mr. Anjani Kumar Verma, Advocate For the Respondent-Railway : Mr. Mahesh Tewari, Advocate
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08/05.01.2022 Heard learned counsel for the parties.
2. This is the fifth round of litigation after dismissal of O.A. No. 90 of 2013 [R] by learned Central Administrative Tribunal, Patna Bench, Patna [Circuit Court at Ranchi] by the impugned order dated 10th October, 2014, wherein the plea of the applicant/petitioner for reinstatement in service and setting aside of orders dated 29th March, 1992, 2nd January, 2009 and 25th March, 2013 were declined.
3. Briefly stated: Petitioner a compassionate appointee was removed from service upon his conviction in a criminal case (in Chakradharpur P.S. Case No. 127/84, G.R. No. 364/84, S.T No. 253/1985 vide judgment dated 22nd April, 1991) by order of removal dated 29th March, 1992. Petitioner was convicted under Section 302 of I.P.C with the aid of Section 149 of I.P.C and was sentenced to undergo imprisonment for life. Petitioner was also convicted along with others under Section 307 of I.P.C. One Yogeshwar Mahto died as a result of assault and some of the persons of the informant party also sustained injuries. By judgment dated 26th April, 2006 passed in Cr. Appeal No. 104 of 1991, the Division Bench of this Court set aside of conviction of the appellant and others under Section 302 read with Section 149 of I.P.C, and instead held them guilty under Section 324 2. read with 34 of I.P.C for causing injury to Yogeshwar Mahto and a fine of Rs. 50,000/- each was imposed. The conviction under Section 307 of I.P.C against the applicant and others was set aside and instead they were held guilty under Section 323 for causing simple injuries to P.Ws. 9 and 10, for which the sentence of imprisonment was reduced to the period, already undergone (Annexure-2). Applicant approached the learned Central Administrative Tribunal in O.A. No. 177 of 2007 after his representation before the competent authority for reinstatement in service upon passing of the judgment by the appellate court in Cr. Appeal No. 101 of 1991, did not find any response. The competent authority was directed by order dated 25th September, 2008 by the learned CAT to take a decision on the representation by passing a speaking order. Upon his representation made thereafter the respondent once again held that the punishment of removal from service imposed upon him held good vide order dated 10th January, 2009. Applicant preferred a revision and thereafter since it remained pending for long time, once again approached learned CAT in O.A. No. 230 of 2010, which was disposed of on 26th November, 2020 by directing the respondent to dispose of the revision petition of the applicant within the specified period. The claim for reinstatement was once again rejected by order dated 9 th February, 2011, which compelled the applicant to approach the learned Central Administrative Tribunal again in O.A No. 36 of 2011(R), which stood disposed of by order dated 28th August, 2012 holding that disciplinary authority did not seem to have applied their mind to the fact that the punishment was modified by Hon'ble High Court. The matter was remitted to Revisional Authority to reconsider in the light of the points raised in O.A. and also observed made in the order by passing a reasoned and speaking order within the stipulated period. Applicant's claim was once again rejected by order dated 25th March, 2013, which was under challenge in the instant O.A No. 90 of 2013(R). Learned Tribunal on this occasion after due consideration of rival stand of the parties held as under:
"5. Heard the parties and considered their submissions / arguments / documents. The facts/views which emerge are as below: -
[a] This is the fourth round of litigation undertaken by the applicant. Thrice earlier, he has approached this Tribunal against orders removing him from service or orders confirming the same, issued pursuant to the directions of this Tribunal in OA No. 177 of 2007 [R] and OA 230 of 2010 [R].
[b] The basic argument of the applicant is that he has been acquitted of the charges in a criminal case under section 302 and 307 of the IPC and, instead, convicted under lesser charges under section 323/34 as also section 323 of the IPC. That being the 3. case, the penalty removing him from service deserves to be reviewed and reconsidered. However, in doing so, despite the directions of this Tribunal in earlier O.A 36 of 2011 [R], the respondents have not adhered to the principles prescribed in the judicial rulings cited in his arguments. As such, the punishment imposed upon him deserves to be set aside.
[C] It is clear from the records that the applicant, along with Frioulo others, was charged with an extremely serious offence under the IPC and initially convicted with imprisonment for life. However, the said conviction was set aside "in the absence of any definite evidence......" as to who caused the actual injuries in a quarrel which led to the death of one person and injuries to others. However, the Hon'ble High Court found the applicant guilty under sections 324/34 as also under section 323 of the IPC and imposed appropriate punishments / fines. That being the case, it cannot be argued that the applicant secured an honourable acquittal. Consequently, his conduct, as confirmed by the judgment of the Hon'ble High Court, remains open for scrutiny by the competent authority in terms of the disciplinary rules applicable.
[d] Reconsideration of the penalty imposed upon the applicant does not, in any way, imply an automatic revision/ reduction in the quantum of punishment initially imposed. If anything, reduction in the quantum of punishment in a criminal proceeding, merely warrants that the penalty be re-examined in the context of the gravity of misconduct subsequently established by the judgment of the Hon'ble High Court.
[e] In this regard, it is noted that the judgment of the Hon'ble High Court resulting in conviction of the applicant under section 324/34 as also section 323 of the IPC are grave by themselves. It cannot be lost sight of that, even if he has escaped a higher punishment in the absence of any definite evidence, the applicant was indeed culpable in an incident which led to the death of one person and injuries to others. In terms of the disciplinary rules applicable to Government servants, such Involvement and conduct per se deserves serious consideration and exemplary punishment lest it has an adverse impact on discipline within the administration. That being the case, the respondents cannot be faulted for viewing the offence, for which the applicant was ultimately convicted, as being grave enough to warrant removal from service. Indeed, the conduct rules provide for exemplary punishment in such matters.
[f] In the above background, it only remains necessary to examine whether the process of reconsideration has been fair and sufficiently transparent. Perusal of the orders, dated 25.03.2013 (Annexure A/9), rejecting the claim of the applicant, does not reveal any infirmity on issues of transparency or logic. The pros and cons of the matter, as also the background appear to have been appropriately considered before arriving at the conclusion that the conviction of the applicant for lesser charges still establishes his conduct as being grave enough to warrant removal from service. In making these observations, this Tribunal does not find any reason to hold that the respondents, while considering the applicant's claims pursuant to the orders of this 4. Tribunal in earlier OA 36 of 2011 [R], have deviated from the principles enshrined in various judicial rulings cited and relied upon by the applicant. This Tribunal is also of the view this is not a case whose substantive merit warrants assumption of the administrative prerogative of the executive [ the respondent authorities determining the quantum of punishment and issuing orders dated 25.03.2013 (Annexure A/9)] and substitution of its decision by this Tribunal's own perceptions. The culpability of the applicant for offences for which he has ultimately been convicted are grave enough to have warranted reconfirmation of the initial penalty of removal from service. The conclusions reached by the respondents suffer from no infirmities. Indeed, administrative discipline will be in peril if laxity is shown in such cases of grave misconduct by Government servants.
6. In view of the above, this Tribunal finds no merit in the submissions of the applicant and denies in full the reliefs prayed for in para 8 of this OA. The applicant has had his days in court on earlier occasions as well and the consideration which he has received from the respondents, in pursuance of the directions of this Tribunal in OA 36 of 2011 [R], do not raise issues of transparency, objectivity or logic. That being the case, there is no basis to interfere with the orders dated 25.03.2013 [Annexure A/9)."
4. Learned counsel for the petitioner has made the following submissions:
(i) That the applicant was a compassionate appointee and the impugned punishment has been imposed without any departmental proceeding on the basis of his conviction alone. This conviction under Sections 302/149 and 307 of IPC has been set aside and reduced to one under Section 324 of I.P.C.
(ii) Relying upon the case of The Divisional Personnel Officer Southern Railway and another Vs. T.R. Challappan reported in AIR 1975 SC 2216, Para-21, it is submitted that under Rule 14 of the Railway Servants (Discipline and Appeals) Rules, 1968 in the case of T.R Challappan as also in the present case, the Apex Curt held that though it is not at all necessary for the disciplinary authority to order a fresh departmental inquiry which is dispensed with under Rule 14 of the Rules of 1968, it incorporates the principle contained in Article 311(2) proviso (a). The instant provision confers power on the disciplinary authority to decide whether in the facts 5. and circumstances of a particular case what penalty, if at all, should be imposed on the delinquent employee. The disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the 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. It is submitted that the conviction of an accused may be for a trivial offence as in the case of the respondent T.R. Chellappan, where a stern warning or a fine would have been sufficient to meet the exigencies of service or it is possible that the delinquent employee may be found guilty of some technical offence, for instance, violation of the transport rules or the rules under the Motor Vehicles Act and so on, where no major penalty is attracted. The disciplinary authority will have to embark upon a summary inquiry as to the nature and extent of the penalty to be imposed on the delinquent employee and in the course of the inquiry if the authority is of the opinion that the offence is too trivial or of a technical nature it may refuse to impose any penalty in spite of the conviction. This is a very salutary provision which has been enshrined in these Rules and one of the purposes for conferring this power is that in cases where the disciplinary authority is satisfied that the delinquent employee is a youthful offender who is not convicted of any serious offence and shows poignant penitence or real repentance he may be dealt with as lightly as possible. The Apex Court further hasten to add that it may not be understood as laying down that the last part of Rule 14 of Rules 1968 contains a licence to employees convicted of serious offences to insist on reinstatement. The statutory provision referred to above merely imports a rule of natural justice in enjoining that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case may be objectively considered. This is in keeping 6. with the sense of justice and fair play. Learned counsel for the petitioner submits that requirement of Rule 14 have not been properly made and there is no fair consideration.
(iii) It is submitted that the offence, if any, under which the applicant was finally held guilty i.e, Section 324 of I.P.C did not involve any moral turpitude. As such, a lenient view ought to have been taken by learned Tribunal and the disciplinary authority in matter of reinstatement of the petitioner after his conviction under Section 302/149 of I.P.C was set aside.
(iv) Petitioner being a sole bread earner of the family upon his appointment on compassionate ground may be put to serious hardship in such circumstances if he is not reinstated in service. If at all, he may be imposed some minor punishment.
5. Learned counsel for the Respondent-Railways has opposed the prayer. It is contended that the petitioner being a member of unlawful assembly was held guilty by learned trial court under Section 302 read with Section 149 of I.P.C and Section 307 of I.P.C along with 11 others. Though the conviction under Section 302/149 of IPC has been set aside as the prosecution was not able to pin point the main assailant, the conviction has been modified to one under Section 324 of I.PC upon the petitioner and others which does not dilute the gravity and seriousness of the offence.
6. It is submitted that the matter has been accorded due consideration twice by the disciplinary authority upon remand by learned Tribunal. However, it did not find any cogent ground to modify the punishment and reinstate the petitioner. The case of the petitioner is not of clean acquittal. Learned counsel for the respondent has relied upon a judgment rendered by this Court, of which one of us (Aparesh Kumar Singh, J) was a member in W.P. (S) No. 5404 of 2014 in the case of Raj Kumar Biswas Vs. Union of India and others dated 13th June, 2018, wherein the decisions rendered by the Apex Court in the case of Deputy Inspector General of Police and another vs. S. Samuthiram reported in (2013) 1 SCC 598 and of S. Bhaskar Reddy and another Vs. Superintendent of Police and another reported in (2015) 2 SCC 365 have also been relied upon. It is submitted that learned Tribunal has considered all relevant aspects of the matter and rightly 7. refused to interfere in the order of disciplinary authority. Learned Tribunal has also held that there was no lack of any transparency or infirmity in the decision making process. Moreover, in terms of the Disciplinary Rules applicable to the Railway Servants such conduct deserve serious consideration and exemplary punishment lest it has an adverse impact on discipline within the administration. The writ petition being devoid of merit therefore deserves to be dismissed.
7. We have considered the submissions of learned counsel for the parties and taken note of the chronology of facts till this date in the litigation journey of the applicant for his reinstatement in service since his removal in the year 1992 upon his conviction in a criminal trial for the offence punishable under Section 302/149 of I.PC and 307 of I.P.C which, of course, was set aside, but reduced to one under Section 324 of I.PC.
8. As the narration of facts and events noted above show, the claim of the petitioner for reinstatement after the judgment passed by criminal appellate court was considered by disciplinary authority twice and the punishment of removal from service was affirmed. The case of the petitioner is not one honourable acquittal or clean acquittal as has been explained in the case of S. Samuthiram (Supra) at paragraph nos. 24 to 26 of the report. It is not a case, where the applicant has been held guilty for any technical offence or the offence was trivial in nature. A person has died and two others were injured. The appellate court after due consideration of the evidence on record, came to an opinion that conviction under major offence of Section 302 read with Section 149 of I.P.C though may not be sustainable, but the deceased had suffered grievous injury at the hands of the applicant and others, for which they were convicted under Section 324 of I.PC.
Rule 14 of the Railway Servants (Discipline and Appeal), Rules, 1968 reads as under:
Rule 14: Special procedure in certain cases - Notwithstanding anything contained in Rules 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) where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or 16
(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules;
the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:
8.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) above:
Provided further that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule.
9. As has been held in the case of T.R. Challappan (Supra) relied upon by learned counsel for the petitioner, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit. If the penalty is imposed on a Railway servant on the ground of conduct which has led to his conviction on a criminal charge, it does not contemplate a full-dress departmental inquiry but a summary inquiry, in which the disciplinary authority will have to 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 if any present in the case. The disciplinary authority may also consider whether the conviction is for an offence which is too trivial or of a technical nature and in that case it may refuse to impose any penalty in spite of the conviction. The Apex Court has however, hastened to add a note of caution that it should not be understood as laying down that in view of the last part of Rule 14 of Rules 1968 an employee convicted of serious offence has a licence to insist on reinstatement.
10. In the gamut of facts noted above and the rule position as well as opinion rendered by the Apex Court in the case of T.R. Challappan (Supra) and S. Samuthiram (Supra) as also in Union of India & others Vs. Sitaram Mishra and another reported in (2019) 20 SCC 588, it cannot be said that the order of disciplinary authority suffered from non-application of mind or that the order dated 25th March, 2013 passed by disciplinary authority upon remand by learned CAT failed to take into consideration the relevant factors germane to consideration on the issue of reinstatement of the petitioner. The disciplinary authority has referred to para-17A of the Railway Board's letter No. E(D&A) 2001 RG 6-3 dated 20th October, 2002 (Master Circular no. 67) laying down the factors to be taken into consideration while considering the representation of an employee for reinstatement. It is trite to observe that the employer has right to see whether retention of such an 9. employee would adversely affect discipline within the administration considering the gravity of the misconduct upon the conviction in a criminal case. Such a view of the disciplinary authority cannot be faulted and this Court under judicial review should not substitute the views of the disciplinary authority in such matters. As has been observed hereinabove, the case of the petitioner has been accorded due consideration and petitioner has not been able to show any prejudice caused to him if an opportunity of hearing was not specifically accorded to. The matter was twice considered by learned CAT and on remand also reconsidered by the disciplinary authority on two occasions taking into account all relevant and germane factors.
11. On overall consideration of the facts and circumstances and the reasons recorded hereinabove, in the light of the settled principles of law laid down by the decisions of the Apex Court referred to hereinabove, we do not find any error in the impugned order passed by learned CAT.
Writ petition is accordingly dismissed.
(Aparesh Kumar Singh, J) (Deepak Roshan,J) jk/