Central Administrative Tribunal - Delhi
Ravinder Kumar Mirg vs Union Of India Through on 22 September, 2011
Central Administrative Tribunal Principal Bench OA No.1303/2011 New Delhi this the 22nd day of September, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam Member (A) Ravinder Kumar Mirg, S/o Shri Madan Lal Mirg, 131, Punjabi Colony, Narela Delhi-40. -Applicant (By Advocate Shri Rajender Nischal) -Versus- 1. Union of India through The Secretary, Department of Revenue, Ministry of Finance, Govt. of India, North Block, New Delhi-1. 2. The Commissioner of Income Tax, Delhi-IX, Vikas Bhawan, Indraprastha Estate, New Delhi. 2. The Chief Commissioner of Income Tax, Delhi-IX, Vikas Bhawan, Indraprastha Estate, New Delhi. -Respondents (By Advocate Shri R.N. Singh) O R D E R Mr. M.L. Chauhan, Member (J):
Applicant has filed this OA, thereby praying for the following reliefs:
A. Set aside the impugned order No.CIT-IX/VIG./2008-09/1049 dated 31-07-09 imposing penalty of dismissal which shall ordinarily be a qualification for future employment under the government on the undersigned appellant as also the impugned appellate order F.No.DP/2009-10/CCIT-IX/11 dated 07-04-2010 dismissing the appeal of the applicant against the order of dismissal, supra;
B. Allow the Applicant all the consequential benefits; and C. Pass any other order as deemed fit by this Honble Tribunal in the facts and circumstances of the case.
2. Briefly stated, facts of the case are that the applicant, who joined the Income Tax Department at New Delhi as an Inspector in 1989, was subsequently prosecuted by the CBI for having committed offences punishable under Section 120-B of the I.P.C. read with Section 7 of the Prevention of Corruption Act, 1980, Section 7 and 13 (2) read with Section 13 (1)(d) of the Prevention of Corruption Act, 1988. A criminal case was instituted on the basis of a written complaint filed by one Shri Chhabil Das, Shri Shib Lal, Additional CIT and applicant were trapped red-handed by the CBI while accepting a bribe of Rs.1 lakh on 7.9.1994. The Special Judge, Delhi held both the accused guilty and vide order dated 25.03.2004 sentenced them to (i) rigorous imprisonment for two years and to pay a fine of Rs.10,000/- for the offence punishable under Section 120-B of IPC read with Section 7 of the Prevention of Corruption Act, (ii) rigorous imprisonment for 2 years and to pay a fine of Rs.10,000/- for the offence punishable under section 7 of the Prevention of Corruption Act, 1988 and (iii) rigorous imprisonment for three years and to pay a fine of Rs.30,000/- for the offence punishable under Section 13 (2) read with Section 13 (1)(d) of the Prevention of Corruption Act, with the stipulation that all the substantive sentences shall run concurrently. Applicant filed a Criminal Appeal before the High Court of Delhi on 31.08.2004, which is stated to have been admitted and the sentence was suspended. Thereafter, respondents issued a show cause notice to the applicant on 23.12.2004 under Rule 19 of the CCS (CCA) Rules, 1965. A copy of the said show cause notice has been placed on record by the applicant at page 30 of the paper-book. At this stage, it will be relevant to quote the show cause notice in extenso, which thus reads:
SHOW CAUSE NOTICE FOR IMPOSING PENALTY ON THE GOVERNMENT SERVANT ON HIS CONVICTION [Rule 19 of CCS (CCA) Rules, 1965] Office of the Commissioner of Income-tax-Delhi-IX, F-109, Vikas Bhawan, New Delhi.
Dated: 23.12.2004 MEMORANDUM WHEREAS Sh. RAVINDER KUMAR MIRG, Inspector of Income Tax, has been convicted on a criminal charge of demanding and accepting illegal gratification of Rs.1 lakh, vide the Special Judge Delhis Order dated 25.3.04 in RC No.62(A)/94, CCNo.75/99, and has been sentenced to (i) rigorous imprisonment for two years and to pay a fine of Rs.10,000/- for the offence punishable u/s 120-B of the IPC r/w Section 7 of the Prevention of Corruption Act, 1988, (ii) rigorous imprisonment for two years and to pay a fine of Rs.10,000/- for the offence punishable u/s 7 of the Prevention of Corruption Act, 1988 and (iii) rigorous imprisonment for three years and to pay a fine of Rs.30,000/- for the offence punishable u/s 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, with the stipulation that all the substantive sentences shall run concurrently.
AND WHEREAS the undersigned propose to award an appropriate penalty under Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, taking into account the gravity of the criminal charges;
AND WHEREAS on a careful consideration the undersigned has provisionally come to the conclusion that Shri RAVINDER KUMAR MIRG is not a fit person to be retained in service/the gravity of the charge is such as to warrant the imposition of a major penalty and accordingly proposes to impose on him the penalty of Dismissal from Government Service.
NOW, THEREFORE, Shri RAVINDER KUMAR MIRG Inspector of Income Tax, is hereby given an opportunity of making representation on the penalty proposed above. Any representation which he may wish to make against the penalty proposed will be considered by the Undersigned. Such a representation, if any, should be made in writing and submitted so as to reach the undersigned not later than fifteen days from the date of receipt of this memorandum by Sh. RAVINDER KUMAR MIRG.
The receipt of this Memorandum should be acknowledged.
Sd/-
(USHA GUPTA) COMMISSIONER OF INCOME TAX DELHI-IX, NEW DELHI.
3. Thus, as can be seen from the show cause notice the competent authority after narration of the facts as well as sentence awarded by the Special Judge, Delhi and invoking power under Rule 19 of the CCS (CCA) Rules, 1965 had categorically recorded a finding that the undersigned has provisionally come to the conclusion that applicant is not a fit person to be retained in service, the gravity of the charge is such as to warrant the imposition of a major penalty and accordingly a penalty of dismissal from Government service was imposed and the applicant was given time to file a representation within 15 days. The applicant filed his detailed representation on 24.01.2005, which was followed by supplementary submissions on 28.07.2009 and ultimately the competent authority vide order dated 31.07.2009 imposed the penalty of dismissal from service upon applicant. Applicant also preferred an appeal against the said order. The appellate authority also dismissed the appeal vide its order dated 07.04.2010. Now the applicant has filed the present OA thereby challenging the aforesaid orders. The challenge has been made by the applicant on the following grounds:
i) That the show cause notice dated 24.12.2004 under Rule 19 of the CCS (CCA) Rules, 1965 has contained a provisional conclusion to impose a penalty of dismissal from service upon applicant, whereas the penalty imposed by the disciplinary authority further states that the penalty of dismissal shall ordinarily be a disqualification for future employment under the Government, which is graver than the penalty of dismissal.
ii) That the impugned dismissal is void ab initio and illegal since it imposed the penalty on the applicant under Rule 15 of the CCS (CCA) Rules, 1965.
iii) That Rule 19 (1) of the CCS (CCA) Rules mandates that the penalty may be imposed on the Government servant on the basis of conduct, which led to his conviction, whereas the authority concerned has taken into consideration the conviction and also that in the case of two persons, namely, Shri Har Govind Arora, IRS, and Shri Gunjeet Singh, IRS the disciplinary proceedings have been kept in abeyance by the respondents till the disposal of the Criminal Appeal before the High Court, whereas in the case of applicant respondents have imposed the penalty.
iv) That the impugned order has been passed on the basis of the advice rendered by the Union Public Service Commission (UPSC) in the case of the co-accused Shib Lal.
4. Notice of this application was given to the respondents, who have filed their reply, opposing the claim of the applicant on the basis of the reasoning given in the impugned orders and on the basis of the conviction of the applicant in the criminal case. It is further stated that the applicant has not been dismissed solely on the basis of the judgment of the Trial Court but the order was passed on the basis of the conduct of the applicant, leading to his conviction.
5. We have heard the learned counsel of the parties and gone through the material placed on record.
6. Based upon the contentions raised by the applicant in the OA learned counsel of applicant argued that the orders passed by the authorities show non-application of mind and also that the applicant has been discriminated inasmuch as in the case of other two persons disciplinary authority has kept the matter in abeyance consequent upon suspension of sentence by the High Court in criminal appeal, whereas in the case of applicant respondents have passed the impugned orders.
7. We have given due consideration to the submission made by the learned counsel of applicant. We are of the view that the applicant is not entitled to any relief. It is not in dispute that the applicant was issued a show cause notice based upon the sentence imposed by the Trial Court and after noticing the facts and also invoking the power under Section 19 of the CCS (CCA) Rules, 1965, whereby the authority concerned has come to the tentative conclusion that the penalty of dismissal is to be awarded, it is only thereafter that the disciplinary authority has passed the detailed order, taking into consideration the advice rendered by the UPSC in the case of co-accused, Shri Shib Lal, who was convicted by the Trial Court on the same offences. Thus, the contention raised by the learned counsel of applicant that the order of the punishment has been passed by the disciplinary authority without application of mind, deserves outright rejection. Simply because a mention of Rule 15 of the CCS (CCA) Rules, 1965 has been made at one or two occasions in the impugned orders because of the typographical errors, it cannot be said that the impugned orders have been passed under Rule 15 and not under Rule 19 of the CCS (CCA) Rules, 1965 and the order is required to be quashed and set aside on that count alone. As already stated above, in the show cause notice as well as in the operative portion of the order the disciplinary authority has categorically stated that the power under Rule 19 of the Rules is being invoked in order to impose punishment of dismissal from service on account of the conduct, which has led to the conviction of the applicant, makes it clear that the respondents have passed the impugned orders in the light of the provisions contained in Rule 19 and referral of Rule 15 at one or two occasions does not invalidate the orders passed by the disciplinary authority and appellate authority. The fact remains that the disciplinary as well as appellate authorities have categorically held that the applicant is being dismissed from service under Rule 19 of the Rules. Further, the submission made by the learned counsel of applicant that applicant has been imposed punishment on the basis of his conviction and not on the basis of his conduct, which has led to his conviction, cannot be accepted. Admittedly, the applicant has been convicted by the Trial Court for offences punishable under Prevention of Corruption Act. Thus, it cannot be stated that the conviction of the applicant by the trial court was of a technical or on trivial nature. The fact that the applicant has been convicted by the trial court is a sufficient proof of misconduct on his part.
8. It is true that the conviction itself is not sufficient to inflict major punishment to the applicant in terms of the provisions contained in Rule 19 of CCS (CCA) Rules. The disciplinary authority, after coming to know that the government servant has been convicted on criminal charge, has to consider whether his conduct, which has led to his conviction, was such as warrants imposition of penalty and if so what that penalty could be. For that purpose, it will be relevant to peruse the judgment of the criminal court and consider all the facts and circumstances of the case. It is also settled law that merely because the sentence is suspended and accused is released on bail, the conviction does not cease to be operative and also that the action should be deferred till the appeal, if any, filed by the person is not decided.
9. The Apex Court in the case of Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera, (1995) 3 SCC 377 has held that in such circumstances where appeal is pending and conviction has been stayed, taking proceedings for and passing of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred, as what is relevant for clause (a) of the second proviso to Article 311 (2) is the conduct which has led to his conviction ion a criminal charge and there can be no question of suspending the conduct. Rule 19 of CCS (CCA) Rules also stipulates the said condition. The Apex Court in the said case has also held that the more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311 (2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to, had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal Court.
10. If the matter is viewed in view of the settled principles laid down by the Apex Court in the said case, we are of the firm view that the applicant has not made out any case for our interference. In this case, the action has been taken by the competent authority after issuing a show cause notice to the applicant and after taking into consideration the finding recorded in the judgment and has thus imposed the appropriate punishment after considering the representation of the applicant. Thus, according to us, the requirement of law to be followed in such cases has been complied with.
11. Now, let us deal with another contention of the learned counsel of applicant that applicant has been discriminated inasmuch as in the case of two persons where the sentence was suspended by the High Court the respondents have not taken any action, which has been kept in abeyance till the disposal of the Criminal Appeal, whereas in the case of applicant respondents have invoked the provisions of Rule 19 (1) of the CCS (CCA) Rules, 1965 and as such, such action is arbitrary, suffice it to say that Article 14 of the Constitution of India cannot be enforced in a negative way. In case respondents have not taken any action against the similarly situated persons who are also involved in offences involving moral turpitude, applicant cannot be granted any relief on that account and the illegality committed by the respondents cannot be allowed to be perpetuated. According to us, applicant has also not made out any case for grant of relief based upon the plea of discrimination.
12. In the result, for the foregoing reasons, OA is found devoid of merit, which is accordingly dismissed, without any order as to costs.
(Manjulika Gautam) ( M.L.Chauhan )
Member (A) Member (J)
San.