Central Administrative Tribunal - Delhi
Manohar Lal S/O Khayali Ram vs Union Of India (Uoi) Through General ... on 1 September, 2006
ORDER
V.K. Majotra, Vice-Chairman (A)
1. Applicant, who had been working as Technician Grade-I in the Railways was subjected to disciplinary proceedings under Railway Servants (Discipline & Appeal) rules, 1968 and removed from service vide Annexure P-1 dated 2.2.2005 as he had been convicted by a court of law (Trial court, Mathura) under Sections 304B, 201 and 498 IPC vide judgment dated 27.4.2004. Appeal against the penalty of removal from service imposed upon him by the disciplinary authority was rejected vide Annexure P-2 dated 13.5.2005. Applicant has come up assailing Annexures P-1 and P-2.
2. It has been stated that applicant had preferred an appeal against the order of conviction before the Allahabad High Court through Appeal No. 2384/2004. He was released on bail while the appeal is still pending with the High court.
3. The learned Counsel of applicant maintained that the Hon'ble High Court vide order dated 30.4.2005 stayed the execution of the sentence of applicant in the criminal case, thus, he could not have been removed from service. The learned Counsel stated, according to the principle of law, a government servant should not be thrown out of job after conviction when the appeal filed by the applicant is already admitted, till such time his first appeal is decided.
4. The learned Counsel further stated that a disproportionate punishment of removal from service has been imposed upon applicant.
5. The learned Counsel maintained that in the facts and circumstances of the case not only that punishment orders against applicant should be quashed and set aside, he should also be held entitled to consequential benefits.
6. Respondents on the other hand have pointed out that the High court had only stayed the execution of the sentence and released applicant on bail. This does not amount to acquittal. As such, applicant is guilty of having acted in a manner unbecoming of a railway servant when he remained absent without due permission of the employer till the release of the employee on bail. The learned Counsel relied on B.R. Kapur v. State of Tamil Nadu, stating that if an accused is released on bail by the High Court/appellate court after admitting the appeal against the order of conviction and sentence awarded by the trial court and if the sentence is stayed while releasing the accused on bail, it does not mean that the conviction of the accused or holding guilty by the trial court is stayed; conviction continues till the same is set aside by the appellate court or finally by the Apex Court. Thus, applicant is not entitled to have any relief claimed in the present OA.
7. We have gone through the pleadings of the parties, material on record, contentions raised before us as also the case law cited before us.
8. It is clear from orders dated 30.4.2005 of the Hon'ble High Court of Allahabad in petition No. 2384 of 2004 that applicant along with two others had been convicted for offences under Sections 304B, 201 and 498 IPC. Applicant and other accused were released on bail subject to furnishing of personal bond and two sureties. The execution of the sentence was also stayed. The disciplinary authority issued a show cause notice to applicant on 22.9.2004. It did not find the representation of applicant in response to the show cause notice as satisfactory. Observing that the High court had only stayed the execution of sentence and released the employee on bail which does not amount to acquittal, applicant was held guilty of the charge, namely, remaining on unauthorised absence from duty from 18.3.1995 to 29.6.1995 and convicted in a criminal case and punished for offences under Sections 304B, 201 and 498 IPC levelled against him and as such, was imposed the penalty of removal from service. The appellate authority also maintained that applicant still remained a convict and considering this, his appeal against the punishment of removal from service cannot be favourably considered unless he is acquitted by the High court.
9. It has been contended on behalf of applicant that according to principle of law a Government servant should not be thrown out of job after conviction when the appeal filed by the applicant is already admitted, till such time the first appeal is decided. The learned Counsel of applicant did not adduce any case law in support of this plea.
10. In B. R. Kapur (supra) referred to on behalf of respondents for drawing support in the present case, Ms. J. Jayalalitha, a non-legislator, was found to be disqualified for membership of the Legislature under Section 8(3) of the Representation of the People Act. Her appointment as Chief Minister of Tamil Nadu was quashed. Plea to wait for the expiry of six months period under Article 164(4) of the Constitution of India was rejected. Even if a person is elected as the leader by the elected members of the Legislative Assembly, commanding a majority of seats in the Assembly and such person either does not possess the qualification enumerated under Article 173 or incurs disqualification for being chosen as, or for being a member of the Legislative Assembly, enumerated under Article 191, then the Governor would not be bound to respect that will of the elected members of the political party, commanding the majority in the House, so as to appoint that person as the Chief Minister under Article 164 (1) of the Constitution. In our view, this case has no bearing on the facts of the present case. That case was related to disqualification of a person for membership of the Legislature and had nothing to do with disciplinary proceedings for a misconduct against a Government servant as also provisions of Article 311(2) of the Constitution.
11. As a matter of fact, Deputy Director of Collegiate Education (Administration) Madras v. S. Nagoor Meera, has a direct bearing on the present case. It was held in that case that suspension of sentence or release on bail by the appellate court does not render the second proviso to Article 311(2) of the Constitution as inoperative. Action has to be taken under this provision just after conviction without waiting for conclusion of appeal/revision or other remedies regarding conviction. Paragraph 9 of the judgment reads as follows:
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.
12. Authorities have removed applicant from service on the ground of conduct which led to applicants conviction on a criminal charge. In our view, this punishment is not excessive or disproportionate. Respondents have in the facts and circumstances of the case and on conviction of applicant under Sections 304B, 201 and 498 IPC imposed upon applicant the punishment of removal from service in terms of rule 14(1) of Railway Servants Conduct Rules, 1968, and the impugned orders are quite in consonance with the provisions of Article 311 (2) (a) of the Constitution. Accordingly, the OA is dismissed being devoid of merit.