Central Administrative Tribunal - Hyderabad
S.V.K. Mahesh vs Union Of India (Uoi) And Anr. on 29 April, 1999
JUDGMENT
D.H. Nasir, Vice-Chairman
1. The respondents are sought to be directed to re-engage the applicant and to grant him all benefits following such re-engagement. The applicant was appointed on 14.10.1991 for the post of "Greaser" in the office of the Commissionerate of Customs and Central Excise, Visakhapatnam.
2. By an Office Order dated 1.12.1993 some of the casual employees were granted temporary status with effect from 1.9.1993. As regards the applicant before us, upon a complaint lodged by one Ms. Maramma, Visakhapatnam Police apprehended him on 27.8.1992 and remanded him to judicial custody till 4.9.1992. The applicant claims to have brought these facts to the notice of the Department on 8.9.1992. However, on the ground that the applicant was allegedly involved in a criminal case he was disengaged and terminated. The representation submitted by him did not yield any result and the post which fell vacant on removal of the applicant was sought to be filled up by securing candidates from the Employment Exchange. At that stage, the applicant filed a Civil Suit O.S. No. 15/93 on the file of the 1st Additional District Munsif, Visakhapatnam. The same was however dismissed.
3. The applicant thereafter filed OA 80/96 before this Tribunal seeking a declaration that the action of the respondent No. 2 in not considering the case of the applicant for appointment as Greaser though his name was sponsored by the Employment Exchange was arbitrary, unconstitutional, illegal and unsustainable. The respondent No. 2 is sought to be directed to allow the applicant to perform duty in the post of Greaser in the office of the respondent No. 2 forthwith and to direct both the respondents to consider the applicant's case and appoint him in the permanent vacancy in the post of Greaser in the office of respondent No. 2 with all attendant benefits.
4. In the meanwhile, according to the applicant, the metropolitan Sessions Judge. Visakhapatnam acquitted him to the criminal charge by a judgment dated 14.9.1995 in SC No. 139/93. Immediately thereafter, the applicant represented on 11.10.1995 to the respondents seeking re-engagement on the ground that he was acquitted of the charge levelled against him. The Tribunal was pleased to observe, according to the applicant, that the issue relating to re-engagement of this applicant on duty pursuant to his acquittal in the criminal case be re-examined. The Deputy Commissioner (R-2), however, recorded that dis-engage-ment of services of the applicant was within the power of the Department. Further according to the applicant, the respondents proceeded to examine the applicant's case on the basis of the complaint instead of looking into the relevant material which revealed that the complainant herself had been examined who did not support the prosecution case. She also disowned the contents of the complaint and in fact the prosecution itself declared her as hostile.
5. The learned Counsel for the applicant submitted that the applicant in the criminal case was prosecuted for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. But the accused was not found guilty by the trial Court and was acquitted under Section 232 of the Criminal Procedure Code. In our view it is not within the competence and jurisdiction of this Tribunal to examine the correctness or otherwise of the judgment in the Sessions Case. Whether it is a clean acquittal or the accused was given the benefit of doubt is not a matter which can have any bearing on the merits of the O. A. before us. The offences alleged are indeed the acts of moral turpitude but the same are not directly attributable to the duties and functions performed by the applicant in the respondent-department. Since he has been acquitted the element of criminality disappears from the scene. The contention raised by the respondents, therefore, that it was not desirable to have a casual worker with a police record cannot be treated as an aggravating factor. In our opinion, therefore the criminal charge on which the applicant was eventually acquitted can have no bearing on the quantum of punishment in the disciplinary proceedings. The contention raised by the respondents that the applicant was given a benefit if doubt and that the acquittal was not a clean acquittal on merits, in our opinion, is not a correct assessment of the situation. It is true, of course, that the learned Metropolitan Sessions Judge, Visakhapatnam in his judgment in SC No. 139/93 has stated that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. However, the judgment in the criminal case discloses that this was a case of 'no evidence' and therefore, the acquittal has to be treated as a clean acquittal. We are conscious of the fact that it is not within our jurisdiction to examine the veracity of the findings recorded by the learned Metropolitan Sessions Judge and therefore, we are not inclined to enter into any further discussion on that aspect. The following paragraphs of the judgment in the criminal case, however, speak for themselves.
"4. In support of its case the prosecution examined only one witness viz., P.W.1 who is the prosecutrix in this case. The prosecution also marked Exs. P.1 and P.2. The prosecution gave up all the remaining witnesses as P.W.1 herself turned hostile.
5. As there are no incriminating circumstances against the accused the examination Under Section 313 Cr.P.C. is dispensed with."
6. In paragraph-3 of the reply affidavit, the respondents came up with a contention that the applicant was disengaged following his arrest and remand to judicial custody as he had been involved in a criminal case and it was not in the interest of the department to continue the service of such a person. What at best, in our opinion, the department could have done was to suspend the applicant immediately on his arrest and remand to judicial custody in connection with a criminal case but not to instantaneously disengage the applicant merely on the basis of the fact that the applicant was charged with commission of criminal offences. If the applicant had been convicted for the commission of the alleged criminal offences, we would not have hesitated for a moment to uphold the disengagement of the applicant. But in view of the applicant's acquittal, it is not in order to allow the mere fact that he was charged with criminal offences to create any adverse influence on the mind of the concerned authorities of the respondent department and to treat the applicant as an undesirable element so as to justify his disengagement from service. It has not been brought to our knowledge whether the prosecution has preferred an appeal against the judgment and order of the trial Court. If that is so, we would not have refrained from atleast allowing the applicant's suspension to continue till the disposal of the appeal.
7. In spite of all that is stated above, we cannot go to the rescue of the applicant in view of the fact that the applicant was appointed as Greaser merely on casual basis against a temporarily diverted post. We can also not lose sight of the fact that the applicant had filed O.S. No. 1 5/93 in the Court of the 1st Additional District Munsif, Visakhapatnam and sought direction to restrain one Sri Jagannadhan from joining duties as Greaser pending decision in the criminal case and the Court directed the parties to maintain status quo as a result of which Sri Jagannadhan could not join the duties. After acquittal in the criminal case, the applicant submitted a representation on 11.10.1995 for reinstatement. However, due to interim directions in O.S. No. 15/93 as stated above, the applicant's representation could not be considered having regard to the fact that the matter was subjudice and the status quo was directed to be maintained. Thereafter the applicant filed a Memo on 22.1.1996 not pressing the O.S. No. 15/93 and accordingly the suit was dismissed. The applicant thereafter filed O.A. No. 80/96 in this Tribunal for directions not to fill up the post of Greaser until OA was disposed of and to appoint the applicant in the permanent vacancy of Greaser. The Tribunal directed by an order dated 24.3.1998 in the said O.A. that the respondents may re-examine the applicant's case taking into account the facts available on record and to decide the representation dated 11.10.1995 submitted by the applicant. Pursuant to the said directions, the case was re-examined and the representation dated 11.10.1995 was rejected by the appointing authority vide order dated 5.6.1998. Aggrieved by the said decision, the applicant filed a fresh O.A. No. 686/98 in this Tribunal which was disposed of by an order dated 14.9.1998 directing the applicant to submit a detailed appeal against the order dated 5.6.1998 within one month of receipt of the order and that the said appeal to be disposed of by the appellate authority viz., Commissioner of Customs, within three months of its receipt. The applicant, therefore, submitted an appeal dated 14.10.1998 against the order dated 5.6.1998 to the appellate authority. Personal hearing was granted by the appellate authority on 21.12.1998 at the request of the applicant. However, the appeal was rejected by the appellate authority vide the impugned order.
8. Therefore, having regard to the fact that the applicant's initial appointment was on casual basis against a temporarily diverted post, since he had already been disengaged and also keeping in view the aforesaid facts with regard to the various proceedings taken by the applicant before the Court of law, before this Tribunal and before the respondent-authorities and none of them found it fit to grant re-engagement, it would neither be expedient on our part nor would it be lawful for us to say at this stage that the applicant deserves to be reengaged.
9. Similar view was taken by a Bench of this Tribunal in O.A. No. 1003/92 decided on 28.11.1995. Paras-5,6 and 7 of the said judgment which are relevant are reproduced below.
"5. The applicant was a temporary employee by the date he was removed from service by the order dated 27.9.89. R-2 passed that order on being informed about the allegations for which the applicant was in custody for more than 48 hours. It is further stated in the reply statement that as it was not desirable to suspend a temporary employee for long period he was removed from service.
6. In view of the nature of the allegations and the arrest of the applicant, removal of the applicant as per the impugned order dated 27.9.89 cannot be held as illegal.
7. While acquitting the applicant, the learned Sessions Judge observed that there was no strong and believable evidence to prove the guilt of the applicant. Of course, if it is a case where a finding is given to the effect that the applicant was falsely implicated, then it is a relevant material for the concerned authority to determine as to whether, it is a fit case for reappointment of the applicant. But no such finding was given by the learned Sessions Judge".
10. In the result, therefore, the O.A. is dismissed; however, with no order as to costs.