Karnataka High Court
Sri. K Sampath Kumar vs Union Of India on 17 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 2978
Bench: L.Narayana Swamy, R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF SEPTEMBER, 2019
PRESENT
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE R DEVDAS
WRIT PETITION No.7266/2017 (S-CAT)
BETWEEN:
SRI K. SAMPATH KUMAR
57 YEARS, S/O LATE SRI. K. BASAPPA
OCC: GENERALMANAGER (ERP & IT)
OFFICE OF CHIEF GENERAL MANAGER
KARNATAKA TELECOM CIRCLE, BSNL
BENGALURU 560 008,
(UNDER ORDERS OF SUSPENSION)
RESIDING AT No:3-14,
WMS TELECOM QUARTERS
47TH CROSS, 9TH MAIN
JAYANAGAR 5TH BLOCK
BENGALURU 560 041 ... PETITIONER
(BY SRI: P A KULKARNI, ADVOCATE)
AND:
1.UNION OF INDIA
REPRESENTED BY ITS SECRETARY
TO THE MINISTRY OF COMMUNICATIONS & IT
20 ASHOKA ROAD
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NEW DELHI 110 001
2. DEPARTMENT OF TELECOMMUNICATIONS
(VIGILANCE-I SECTION)
TO BE REPRESENTED BY ITS SECRETARY
919, SANCHAR BHAVAN
20, ASHOKA ROAD
NEW DELHI 110 001
3. BHARAT SANCHAR NIGAM LIMITED
BY ITS CHAIRMAN AND MANAGING DIRECTOR
CORPORATE OFFICE (PERSONNEL II SECTION)
BHARAT SANCHAR BHAWAN
HARISH CHANDRA MATHUR LANE,
4TH FLOOR, JANAPATH
NEW DELHI 110 001
4.CHIEF GENERAL MANAGER TELECOM
KARNATAKA TELECOM CIRCLE, BSNL
NO.1, S.V. ROAD, HALASURU
BENGALURU 560 008 ... RESPONDENTS
(BY SRI: RAJESH RAI CGC FOR R1 & R2
SRI VISHNU BHAT ADVOCATE FOR R3 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD.25.1.2017 IN
OA.NO.170/828/2016, ANNEX-A PASSED BY CAT
BENGALURU BENCH, BENGALURU AND ALLOW
O.A.NO.170/828/2016 FILED BY THE PETITIONER
BEFORE CAT BENGALURU BENCH, BENGALURU BY
QUASHING THE SUSPENSION ORDER WITH A DIRECTION
TO THE RESPONDENTS TO CAUSE PETITIONER'S
REINSTATEMENT FORTHWITH WITH CONTINUITY OF
SERVICE ALONG WITH FULL PAY AND ALLOWANCES IN
RESPECT OF THE PERIOD IN QUESTION AND ETC.,
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP' THIS DAY, NARAYANA SWAMY J.,
MADE THE FOLLOWING:
ORDER
The petitioner was tried for the offences punishable under Sections 420, 120-B of I.P.C. and 13(2) r/w 13(1) (d) of P.C. Act, 1988 in RC No.29(A)/2003-Hyd. The charge is that, he has abused his official position in the matter of clearing the fake bills, submitted by private firm, pertaining to dismantling and erection of UHF/MARR towers in Nalgonda SSA.
2. He had been convicted for the said offences and he is sentenced to undergo Rigorous Imprisonment for 3 years and to pay fine of Rs.10,000/- under Section 120-B, in default, Simple imprisonment for 15 days. Further, he is sentenced to undergo Rigorous Imprisonment for 3 years and to pay fine of Rs.10,000/- under Section 420 of I.P.C., in default, to suffer simple 4 imprisonment for 15 days, to undergo rigorous imprisonment for 3 years and to pay fine of Rs.25,000/- under section 468 I.P.C, in default, Simple imprisonment for one month. Further, sentenced him to undergo rigorous imprisonment for 3 years and to pay fine of Rs.10,000/- under section 471 I.P.C, in default, simple imprisonment for 15 days, sentenced to undergo rigorous imprisonment for 3 years and to pay fine of Rs.10,000/- under section 13(2) r/w 13(1) (d) of PC Act 1988, in default, simple imprisonment for 15 days.
3. Against this order of conviction, he preferred an appeal in Criminal Appeal No.461/2016, on the file of the High Court of Judicature at Hyderabad. The High Court of Judicature at Hyderabad passed an order dated 03.03.2016, suspending the sentence of imprisonment imposed by the court below and directed to release this petitioner on regular bail during 5 pendency of the criminal appeal as per the same terms and conditions that were imposed by the court below while suspending the sentence.
4. On suspending the sentence, again the respondent exercised its power under Rule 10(2) (b) of the CCS (CCA) Rules, 1965 and kept the petitioner under suspension by its order dated 29.06.2016 (Annexure-A1). Again this order was challenged before the Central Administrative Tribunal, Bangalore Bench, in O.A.170/850/2016 and the Central Administrative Tribunal by its order dated 25.01.2017 dismissed the application filed by the petitioner-herein.
5. Being aggrieved by the same, he has preferred this petition. He has taken ground that the impugned order is contrary to the provisions of Rule 10(2) (b) of CCS (CCA) Rules 1965. Deemed suspension arises only when accused is sentenced to imprisonment 6 from the date of sentence. This provision can take place, if and only when one is said to be undergoing a sentence passed against him in criminal case from such time when his imprisonment actually commences after the conviction, and from such commencement if the imprisonment exceeds 48 hours, then he is deemed to have been placed under suspension by an express order of appointing authority. He further contends that there is no scope for the appointing authority to place the petitioner under deemed suspension by invoking the provision of Rule 10(2)(b) of CCS (CCA) Rules 1965. Explanation of Rule 10(2) (b) of CCS (CCA) Rules 1965 is very clear for the purpose of sentence and this has not been carefully considered by the Tribunal. Hence he submits that the Tribunal has committed an error in not allowing the application.
6. On the other hand, learned counsel for the respondents supports the order and submits that now 7 Rule 10(2)(b) for deemed provision is available to the respondent to exercise the same and applicant has been kept under suspension and now he has been retired on superannuation, question of challenging the same does not arise and hence he submitted to dismiss the petition.
7. We have heard the learned counsel for the respective parties.
8. It is undisputed that the petitioner was convicted for the above referred offences to undergo Rigorous Imprisonment for 3 years and to pay fine and in default he has to undergo Simple Imprisonment for 15 days and similarly for various provisions referred to above. He had to undergo for three years imprisonment, if it had not been stayed by the High Court of Judicature at Hyderabad. From the date of commencement of sentence period for the purpose of deemed suspension, has to be counted. 8
9. Sub-Rule 2 of Rule 10 of CCS (CCA) Rules 1965 is very clear for the said purpose and for convenient it is extracted as under:
10 (2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority-
(a).........
(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction".
10. A deemed suspension comes into operation as per Sub Rule 2 (b) in the case of sentence exceeding 48 hours from the date, when his imprisonment is actually commenced after the conviction. Then petitioner is deemed to have been placed under suspension by an express order of the appointing authority. Now the suspension is stayed that means his imprisonment is stayed by the High Court of Judicature 9 at Hyderabad and hence question of deemed suspension of the applicant does not arise.
11. Respondents have the power to keep a person under suspension even after conviction is stayed by the Appellate Court, provided suspension order is passed under 10(1) of CCS (CCA) Rules. But here the respondents have passed order dated 29.06.2016 under Rule 10(2) (b) of CCS (CCA) Rules 1965, that should not have been passed by the respondents in view of the explanation available under the provisions of Rule 10(2)(b). There is no scope for the appointing authority to place the applicant under deemed suspension by invoking the provisions of Rule 10(2)(b) of CCS (CCA) Rules 1965.
12. Under these circumstances, we are of the opinion that Tribunal has committed an error in rejecting the application and again respondents have committed error in exercising power to pass an order to 10 keep the petitioner under suspension. The respondents as well as the Tribunal have mis-read the provisions and suspension order has been passed which is contrary to Rule 10(2) (b) of CCS (CCA) Rules 1965.
Accordingly, writ petition succeeds. The writ petition is allowed.
The suspension order stands quashed. Petitioner is entitled to all consequential benefits.
SD/-
JUDGE SD/-
JUDGE HR