Central Administrative Tribunal - Lucknow
Babadin vs Union Of India on 15 December, 2023
CAT, Lucknow OA 332/00255 of 2009 Babadin Vs. U.O.I.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.332/00255/2009
Order Reserved On: 05.12.2023
Order Pronounced On: 15.12.2023
Hon'bleMr.Justice Anil Kumar Ojha, Member-Judicial
Hon'bleMr.Pankaj Kumar, Member-Administrative
Babadin, aged about 53 years, Son of Sri Baleshwar,
Resident of Ram Vihar Colony,
Para Road, Rajajipuram,
District Lucknow.
.....Applicant
By Advocate : Shri Praveen Kumar
Versus
1. Union of India through Secretary, Telecom,
Government of India,
New Delhi.
2. Chief General Manager Telecom,
U.P.(East)Circle, 3rd Floor, Door Sanchar Sadan,
Lapalace, Rana Pratap Marg, Lucknow.
3. Divisional Engineer (Store), C.T.S.D.,
Door Sanchar Nigam Limited,
Talkatora, Lucknow.
....Respondents
By Advocate: Shri Gyanendra Singh Sikarwar
ORDER
Per Hon'bleMr.Pankaj Kumar, Member-A This is a case where a convicted employee (the applicant), who was removed from service and whose sentence was suspended on appeal, has sought the following reliefs in this OA:
(i) That this Hon'ble Tribunal may be pleased to direct the opposite parties to reinstate the applicant in service by allowing him to work on the post of R.M/H.R. /198409638 in Circle Telecom Store Depot, Talkatora Road, Lucknow and pay him salary with all consequential benefits.Page 1 of 7
CAT, Lucknow OA 332/00255 of 2009 Babadin Vs. U.O.I.
(ii) That this Hon'ble Tribunal may be pleased to direct the opposite parties to make the payment of arrears with 24% interest of full salary from the date of his suspension/termination to the applicant forthwith.
(iii) That any other order or direction which this Hon'ble Tribunal may deem just and proper under the circumstances of the case be also passed.
(iv) Allow this application with costs.
2.1 The facts of the case are that the applicant was appointed by the respondents in 1984. He was convicted in a criminal case (187A/1997) in the Court of the Additional Sessions Judge, Gonda and sentenced to rigorous imprisonment for life and a fine of Rs. 10,000/-. The applicant appealed in the Hon'ble High Court (Criminal Appeal No. 2040 of 2007) and was released on bail on payment of Rs. 2,000/- as fine vide order dated 02.11.2007 (Annexure 3 to the OA). Subsequently, the applicant's sentence was suspended vide order dated 09.04.2008 (Annexure 4 to the OA).
2.2 The applicant was suspended with effect from 24.07.2007, i.e., his date of detention in the criminal case,vide order dated 12.11.2008and he was removed from serviceby the respondents vide order dated 26.06.2008 (Annexure 5 to the OA).His appeal against removal from service was also rejected vide order dated 05.02.2009 (Annexure 1 to the OA).
3.1 It is the contention of the applicant that he is entitled to be reinstated on the ground of stay in punishment in the criminal case as per the pronouncements made by Hon'ble High Court as well as Hon'ble Supreme Court in various cases. In support, the applicant has cited Union of India vs Ramesh Kumar and Vijay Pal Singh vs State of U.P. &Ors.
3.2 Reliance has also been placed on Union of India vs V K Bhaskar (1997) 11 SCC 383stating that it has been provided in paragraphs 7 &8 that the conduct which led to conviction has to be deliberated and that Page 2 of 7 CAT, Lucknow OA 332/00255 of 2009 Babadin Vs. U.O.I. failure to do so shall render the exercise illegal. A similar situation has been considered in Tulsi Ram Patel by Hon'ble Supreme Court. It is further stated that a similar view has been taken by this Tribunal in OA No. 64 of 2006 Ravindra Kumar vs Union of India &Ors. It is argued that perusal of impugned orders Annexure No. A-1 and A-5 would reveal that the respondents have simply referred the word 'above conduct' but nowhere the conduct which led to conviction has been dealt with or considered in such situation.
4.1 The respondents, on the other hand, contend that the applicant was removed from service keeping in view the conduct which led to his conviction in a serious offence. The appeal preferred by the applicant was also rejected by way of a speaking and reasoned order. Both the impugned orders were passed after giving reasonable opportunity to the applicant. As such, there is no illegality in the impugned orders and they do not deserve interference by this Tribunal.
4.2 It is stated by the respondents that the applicant had challenged his suspension in W. P. No. 2272/08(S/S) whereby Hon'ble High Court, vide order dated 02.05.2008, directed the disciplinary authority to take appropriate decision on the applicant's representation. In compliance, the disciplinary authority considered and rejected the representation vide letter dated 26.06.2008. The applicant was served a show cause notice dated 06.06.2008 keeping in view the conduct which led to his conviction through judgment order dated 25.07.2007. The applicant challenged the notice as well as letter dated 26.06.2008 in W. P. No. 3279/S/S of 2008. No interim order was passed by Hon'ble High Court. No representation against the show cause notice was given by the applicant. The disciplinary authority removed him from service vide order dated 26.06.2008 keeping in view the conduct which led to his conviction through judgment order dated 25.07.2007.
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CAT, Lucknow OA 332/00255 of 2009 Babadin Vs. U.O.I. 4.3 It is further stated by the respondents that once a BSNL employee is convicted of a criminal charge, the disciplinary authority should not wait for decision in appeal and the decision should be taken keeping in view the conviction. If the applicant is acquitted on appeal, the order of removal from service can be reviewed by the competent authority. Based on an objective assessment of the facts and circumstances of the case in its entirety, the competent appellate authority rejected the appeal under BSNL CDA Rules.
5. We have heard both the parties.
6.1 In the judgment dated 02.09.1997 in Ramesh Kumar (supra), cited by the applicant, Hon'ble Supreme Court held that suspension of execution of sentence does not obliterate the conviction and the action taken against the govt. servant does not lose its efficacy:
"A bare reading of Rule 19 shows that the Disciplinary Authority is empowered to take action against a Govt. servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentences by the Appellate Court the order of dismissal based on conviction stands obliterated and dismissed Govt. servant has to be treated under suspension till disposal of the appeal by the Appellate Court filed by Govt. servant for taking action against him on the ground of misconduct which has led to his conviction by competent Court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a competent Court of law has not lost its sting merely because a criminal appeal was filled by the respondent against his conviction and the Appellant Court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angle. Under s of the code of Criminal Procedure, the appellant Court has power to suspend the sentence and to release an accused on bail. When the appellant Court suspends the execution of sentences, and grants bail to an accused the effect of the order is that sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under section 389 Cr.P.C. an accused avoids undergoing sentences pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a Govt. servant on a misconduct which led to his conviction by the Court of law does not lose its efficacy merely because Appellant Court has suspended the execution of sentence.Such being the position of law, the Administrative Tribunal fell in error in holding that by suspension of execution of sentence by the appellate Court, the order of dismissal passed against the respondent was liable to be quashed and the Page 4 of 7 CAT, Lucknow OA 332/00255 of 2009 Babadin Vs. U.O.I. respondent is to be treated under suspension till the disposal of Criminal Appeal by the High Court."
(emphasis supplied) 6.2 In V S Bhaskar (supra), Hon'ble Supreme Court observed: "7. We do not find any merit in this submission. The order of dismissal has to be read as a whole. If it is thus read, it would be found that in the first paragraph of the order the authority has referred to the fact of the respondent having been convicted on a criminal charge under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 409, 477A and 120B I.P.C. and his having been awarded the penalty of rigorous imprisonment for one year and a fine of Rs. 500 by the Special Judge, Jalandhar, on 17.5.1985. In the second paragraph of the said order the disciplinary authority has stated:
It is considered that the conduct of ShriVinod Kumar Bhaskar which led to his conviction is such as to tender his further retention in the public service undesirable/the gravity of the charge is such as to warrant the imposition of major penalty of misappropriation of a sum of Rs 300 (approx.) along with other accused Man Singh, Jawala Das and KewalChander Kumar.
8. The said statement in the order of dismissal indicates that the disciplinary authority has applied its mind and after considering the conduct of the respondent which has led to his conviction on a criminal charge, has arrived at the conclusion that the said conduct was such as to render the further retention of the respondent in the public service undesirable. It cannot, therefore, be said that the order of dismissal was passed without the disciplinary authority applying its mind to the nature of the conduct of the respondent which led to his conviction on a criminal charge and which has rendered him undesirable to be retained in service."
(emphasis supplied) 6.3 In the context of the judgments quoted above, a perusal of the order dated 26.06.2008 of disciplinary authority shows that in the beginning,the fact of the applicant having been convicted under sections 147/148/307/149/302, 323/140 and 506 of I.P.C. and rigorous imprisonment for 2 years under section 147, rigorous imprisonment for one year each under sections 323/149, rigorous imprisonment for life under sections 307/149, rigorous imprisonment for life under sections 302/149 and fine of Rs. 5,000/- and seven years rigorous imprisonment under section 506 has been mentioned. It has been further stated that after careful consideration it is found that the 'above conduct' of applicant for which he was convicted is very serious and deserves heavy punishment. It has been mentioned that the applicant was afforded the opportunity to make a written representation within 15 days vide show Page 5 of 7 CAT, Lucknow OA 332/00255 of 2009 Babadin Vs. U.O.I. cause notice dated 06.06.2008, but no representation was submitted by the applicant. It has been further stated that the applicant's case was considered carefully. The applicant was released on bail vide interim order dated 02.11.2007 after deposit of Rs. 2,000/-fine. The sentence was suspended by interim order dated 09.04.2008 of Hon'ble High Court. The applicant's conviction was not annulled and fine of Rs. 2,000/- was effective. Therefore, under rule 40(A) of the BSNL Conduct, Discipline & Appeal Rules, 2006, the penalty of removal from service is imposed with immediate effect.
The above narration reveals that the disciplinary authority has mentioned the sections of I.P.C. under which the applicant was convicted with the accompanying punishment, arrived at a finding that the conduct of applicant for which he has been convicted is serious warranting major punishment. We are, therefore, unable to conclude that the disciplinary authority has not applied its mind. 6.4 A similar position obtains when we peruse the appellate authority's order dated 05.02.2009 where the sections of I.P.C. and punishment on conviction are mentioned along with the fact of suspension of sentence, but not of the conviction. The applicant's writ petition (No. 3279/S/S) in Hon'ble High Court and the fact that Hon' ble High Court has not passed any interim order have been mentioned. It is stated that 'A perusal of appeal dated 14.07.2008 reveals that no factual or legal change exists as stated herein above.' It is further stated that 'The conviction Shri Babadin through judgment by order dated 25.07.2007 yet exists resulting which the conduct which led to conviction in a serious offence remains unaltered.' Here again we find that the description of 'conviction in a serious offence' is available and it cannot be concluded that the appellate authority did not apply its mind.
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CAT, Lucknow OA 332/00255 of 2009 Babadin Vs. U.O.I. 7.1 In view of the facts and circumstances above, no relief can be granted to the applicant. Accordingly, this OA is dismissed. 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
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