Central Administrative Tribunal - Delhi
Ghan Shyam Sharma vs Union Of India Through on 1 June, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1918/2011 This the 1st day of June 2011 Honble Shri M.L. Chauhan, Member (J) Honble Shri Shailendra Pandey, Member (A) Ghan Shyam Sharma r/o House No.B-1/73 Yamuna Vihar, Delhi-53 ..Applicant (By Advocate: Shri Arun Bhardwaj) Versus 1. Union of India through Secretary Ministry of Commerce Udyog Bhawan, New Delhi 2. Director General of Foreign Trade Directorate General of Foreign Trade Udyog Bhawan, New Delhi 3. The Zonal Joint Director General of Foreign Trade CLA, A Wing Indraprastha Bhawan, IP Estate New Delhi ..Respondents O R D E R
Shri M.L. Chauhan:
The applicant has filed this OA against the impugned show cause notice for dismissal from government service under Rule 19 (i) of CCS (CCA) Rules, 1965 (for short Rules) and has also prayed that the said show cause notice may be quashed and set aside in view of the law laid down by the Apex Court in Yoginath D. Bagde v. State of Maharashtra & another, AIR 1999 SC 3734. The applicant has further prayed that the respondents may be directed to pay the salary from 1.5.2010 to 21.5.2010 and subsistence allowance from 22.5.2010 to till date, with all consequential benefits.
2. Briefly stated, facts of the case are that the applicant while functioning as Licensing Assistant, EP V Section of the Office of Joint Chief Controller of Imports and Exports, CLA during the period from September 1981 to May 1982 entered into a criminal conspiracy with Shri Subhash Nevtia, Shri Arun Kumar Gupta, Shri Suresh Chand Gautam with the object of obtaining pecuniary advantage for himself and others by abusing his official position as public servant and by corrupt and illegal means. Further allegation against the applicant was that he along with his co-accused floated 14 fictitious firms and obtained a total sum of Rs.34,06,240/- as cash compensatory supports for these 14 fictitious firms by forging various documents, showing false exports of handicrafts items. The criminal case was registered against the applicant and other co-accused persons and he was convicted by the Special Judge for the offence punishable under Section 120 B R/W Sections 420, 468 & 471 of IPC read with Section 5 (1) (d) punishable under Section 5 (2) of PC Act, 1947. He was also awarded sentence of four years RI along with a fine of Rs.20,000/- on account of conviction by the Special Judge. The applicant was issued aforesaid show cause notice and he was given 15 days time to file reply as to why he should not be dismissed from service on account of aforesaid misconduct. It may be stated that consequent upon the conviction by the Special Judge, CBI, the applicant, vide order dated 24.6.2010, was also placed under deemed suspension w.e.f. 22.5.2010, i.e., with effect from the date of his detention till further orders. It is these orders, which are under challenge in this OA.
3. Learned counsel for the applicant while drawing our attention to paragraph 6 of the show cause notice has argued that in this case the respondents have recorded a final finding rather than giving a tentative finding, as such the show cause notice issued by the respondents is bad in law. For that purpose, learned counsel for the applicant has placed reliance on the decision of the Apex Court in Yoginath D. Bagdes case (supra).
4. We have heard learned counsel for the applicant at admission stage and have given due consideration to the law laid down by the Apex Court in the aforesaid case and are of the view that the applicant has not made out any case for grant of aforesaid reliefs. Admittedly, the applicant was convicted by the Special Court. At this stage, we wish to quote the findings recorded by the Special Court regarding the misconduct of the applicant, which finds mention in paragraph 5 of the impugned show cause notice and thus reads:
This Court is of the opinion that prosecution has proved its case beyond reasonable doubts against all the contesting accused now namely Arun Kumar Gupta, Ram Kishan Choudhary, Suresh Chand Gautam and Ghanshyam Sharma and they entered in a criminal conspiracy to cheat the Government by forgery, using forged documents by abusing the official position of a public servant with their other co-accused now deceased, hence all these accused are convicted for the offence punishable U/S 120 B R/W Section 420, 468 & 471of IPC r/w Section 5(1)(d) punishable U/S 5(2) of PC Act, 1947.
5. As can be seen from the portion quoted above, the Special Court has given a categorical finding to the effect that the applicant has entered in a criminal conspiracy to cheat the Government by forgery, using forged documents by abusing the official position of public servant with other co-accused now deceased and all these accused are convicted for the offences. No doubt, it is true that after quoting the findings given by the Special Court and also noticing the sentence, which has been imposed upon the applicant in paragraph 4 of the impugned show cause notice, the appropriate authority has in paragraph 6 recorded that it is of the considered view that the major penalty should be awarded. Thereafter the appropriate authority proceeded to record that in the present case the penalty to be awarded should be that of dismissal from government service but fact remains that the misconduct of the applicant was of very grave and serious nature and the applicant was given opportunity to file representation against the show cause notice within a period of 15 days. The applicant has not placed on record any representation, if any, made pursuant to the show cause notice dated 27.1.2011 within the stipulated period. When the learned counsel was confronted whether the applicant has made any representation, learned counsel submits that the applicant has made a representation dated 3.3.2011 thereby praying that the Department should await for the decision of the High Court on the application filed by him for suspension of conviction before proceeding any further in the matter. Thereafter the applicant submitted another representation dated 22.3.2011 praying that the present proceeding be kept in abeyance till 26.4.2011, on which date his application for suspension of conviction is likely to be considered by the High Court and thereafter followed by another application dated 27.4.2011 to the same effect.
6. The applicant has, however, placed on record a copy of the order dated 8.9.2010 (Annexure A-3) passed by the High Court whereby the impugned sentence of imprisonment is suspended till the disposal of the appeal. Thus, from the facts, as stated above, it is evident that the respondents are not acting in a vindictive manner and have deferred the case of the applicant for consideration on the plea that he has moved the application for suspension of conviction before the High Court, as such the show cause notice may not be given effect to. It may be stated that the applicant has not uttered a single word regarding the misconduct whereby he has been held guilty of cheating and abusing the official position. Thus, according to us, the finding recorded by the authorities in paragraph 6 of the impugned order to the effect that he is of the considered view that major penalty of dismissal should be awarded to the applicant, is of tentative nature and it cannot be said that the appropriate authority has taken a final decision to dismiss the applicant from service. Had that been the intention of the authorities, the applicant could have been dismissed from service after the expiry of 15 days notice computed from 27.1.2011.
7. The reliance placed by the learned counsel upon the decision of the Apex Court in Yoginath D. Bagdes case (supra) is not applicable in the facts and circumstances of this case. That was a case where the Apex Court has held that in case the disciplinary authority wants to disagree with the findings recorded by the inquiry officer, disagreement note should be of tentative nature. According to us, the applicant cannot take any assistance from the said decision, which has been passed in the facts and circumstances of that case. As already stated above, the applicant stands convicted by the Special Court in which full opportunity was given to him to cross-examine the prosecution witnesses. It is only after elaborate trail that the applicant has been finally convicted for serious offences. Rule 19 (1) of the Rules permits the competent authority to impose major penalty in case the conduct of the person is such which warrants imposition of penalty. At the sake of repetition, it may be stated that conviction ipso facto is not relevant to attract the provisions of Rule 19 (i) of the Rules. The essential condition for invoking Rule 19 (1) of the Rules is the misconduct, which has led to the conviction of a person by the Special Court. As already stated above, the applicant is guilty of serious misconduct, as such it cannot be said that the show cause notice issued by the respondents is ex facie illegal.
8. Learned counsel for the applicant has also drawn our attention to another decision of High Court in Commissioner of Police v. Shri Brij Pal Singh (Writ Petition (C) No.1044 of 2008) decided on 4.11.2008 to state that the department should await for the decision in appeal and no final order should be passed till the appeal is decided.
9. As already stated above, the contention raised by the learned counsel for the applicant is wholly misconceived and deserves out right rejection. Simply because the High Court has stayed the execution of the sentence, as such the respondents cannot exercise power under Rule 19 (1) of the Rules and they should await for the decision of the High Court in pending appeal is not a valid ground to defer the matter when viewed in the light of the decision of the Apex Court in Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera (Civil Appeal No.2992 of 1995 (arising out of SLP (C) No.684 of 1995)) wherein it has been held that if a person is convicted, it is not necessary to await for appeal or revision. Person can be dismissed from service on the basis of conviction given by the trial court. To the similar effect is the decision of the Apex Court in Union of India & others v. Ramesh Kumar, AIR 1995 SC 3531, wherein it has been held that Rule 19 (1) of the Rules does not provide that on suspension of execution of sentence, the order of dismissal stands obliterated and that the dismissed government servant has to be treated under suspension. Rule 19 (1) of the Rules also does not provide disciplinary authority to await disposal of appeal. Thus, if one has regard to Rule 19 (1) of the Rules, what is essential is the conduct, which has led to the conviction of the person and merely staying of conviction and sentence is not sufficient.
10. The applicant cannot also take any assistance from the aforesaid decision of the High Court, which was rendered in the facts and circumstances of that case. That was a case pertaining to the police official, who was governed by the Delhi Police (Punishment & Appeal) Rules, 1980. Proviso to Rule 11 (1) of the said Police Rules provides that no punishment order can be passed till such time the result of the first appeal that may have been filed by such police official is known. It was this rule, which was under consideration before the High Court of Delhi in Brij Pal Singhs case (supra). It was under this context the High Court of Delhi held that there was no infirmity and no error had been committed by the Tribunal in taking the view that the Department should await for the decision of the appeal in a criminal case filed by the police official before resorting to imposition of major penalty. In S. Nagoor Meeras case (supra), the Apex Court has observed that what is relevant for clause (a) of second proviso to Article 311 (2) is the conduct which has led to the conviction on a criminal charge. The apex Court has observed that even if an Appellate Court suspended the order there can be no question of suspending the conduct. It has categorically stated that passing such orders under Article 311 (2) (a) are not barred merely because the sentence has been suspended by the Appellate Court and/or the said Government servant/accused has been released on bail.
11. For the foregoing reasons, the OA is found bereft of merit and is accordingly dismissed in limine. However, we wish to observe that expression of the finding recorded by us may not be construed that we have approved the reasoning given by the disciplinary authority for dismissal of the applicant in terms of the show cause notice. Accordingly, it would be open for the disciplinary authority to pass appropriate orders in the matter uninfluenced with the observations made by us hereinabove.
( Shailendra Pandey ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/