Central Administrative Tribunal - Delhi
Jharkhandey Rai vs Union Of India Through on 17 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 4078/2011 New Delhi, this the 17th day of November, 2011. HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE MR. SHAILENDRA PANDEY, MEMBER (A) Jharkhandey Rai S/o Majian Rai R/o B-320, Dakshin Puri, New Delhi. ..Applicant By Advocate: Shri Anupam Sharma. Versus 1. Union of India Through Secretary, Ministry of Communication & IT, Sanchar Bhawan, 20, Ashoka Road, New Delhi. 2. Mahanagar Telephone Nigam Ltd., Through its Area Manager (Okhla) Okhla Telephone Exchange, New Delhi. 3. The Sub Divisional Officer-II, Mahanagar Telephone Nigam Ltd. Okhla Telephone Exchange, New Delhi. Respondents ORDER (ORAL)
Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 7.3.2011 whereby he has been imposed the punishment of compulsory retirement under Rule 19 (i) of the CCS (CCA) Rules, 1965.
2. It is submitted by the counsel for applicant that though applicant was convicted in the criminal case but he has filed criminal appeal No.139/2010 before the Honble High Court of Delhi and his sentence has been suspended. In any case, the conviction passed against the applicant has many lapses and he has very good ground to succeed in the appeal, the order dated 7.3.2011 is a mechanical order and the same is liable to be quashed.
3. We have heard counsel for the applicant and perused the pleadings.
4. Perusal of judgment dated 30.1.2010 annexed at page 14 shows applicant was convicted under Section 120-B of IPC read with Section 420, IPC and 13 (2) ready with Section 13 (1) (d) of P.C. Act 1988 and Section 25/27 of Indian Telegraph Act, 1855 and was awarded 2 years RI for the substantive offence punishable under Section 13 (2) read with Section 13 (1)(d) of P.C. Act 1988 along with a fine of Rs.20,000/- (Twenty Thousand) I.D. 2 months SI & 2 years RI along with a fine of Rs.20,000/- (Twenty Thousand) ID 2 months SI under Section 25/27 of Indian Telegraph Act, 1855. It was submitted by the counsel for applicant that h has wrongly been convicted by the Sub Judge. In these proceeding, we cannot look into the correctness or otherwise of the order or judgment passed by the Sub Judge as that is not within our domain. Applicant has already filed his appeal and ultimately if his appeal is allowed, he can seek remedy in accordance with law at that stage.
5. As on date the only other contention raised by the counsel for applicant for challenging the order of compulsory retirement is that his sentence has been stayed by the Honble High Court of Delhi vide order dated 15.2.2010, therefore, penalty could not have been imposed on him in these circumstances. Law on this point is already settled by the Honble Supreme Court in the case of Union of India Vs. Ramesh Kumar reported in 1997 (7) SCC 514 wherein it was held as follows:-
Under Rule 19 of the CCS (CCA) Rules, 1965, 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 sentence 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 appeal by the appellate Court. The rules also do not provide the Disciplinary Authority to await disposal of the appeal by the Appellate Court filed by a Govt. servant for taking action against him on the ground of misconduct which has led to his conviction by a 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 filed by the respondent against his conviction and the Appellate Court has suspended the execution of sentence and enlarged the respondent on bail.
6. In 1995 (3) SCC page 377 in the case of Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera also, it was held as under:-
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.
However, clause (a) of the second proviso to Article 311 (2) speaks of the conduct which has led to his conviction on a criminal charge and there can be no question of suspending the conduct. Therefore, taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal.
7. In view of above, simply because the sentence of applicant has been suspended by the Honble High Court of Delhi in the criminal appeal, it is not a ground to quash the order of compulsory retirement passed by the respondents.
8. The impugned order in this case has been passed under Rule 19 (i) of CCS (CCA) Rules, 1965 which for ready reference reads as under:-
19 Special procedure in certain cases Notwithstanding anything contained in Rule 14 to 18
(i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge,
(ii) xxx xxx
(iii) xxx xxx Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (i).
9. In the instant case it is evident from page 81 that Memorandum dated 3.12.2011 was issued to the applicant informing him that in view of the gravity of the criminal charges which led to his conviction, disciplinary authority proposes to award an appropriate penalty on the applicant under Rule 19 (i) of CCS (CCA) Rules, 1965, as he is not a fit person to be retained in service thus giving him an opportunity to give a representation which was admittedly availed by the applicant, therefore, it cannot be stated that principles of natural justice have been violated. Admittedly, applicant gave his representation and the impugned order was passed after going through the judgment and the representation of the applicant. In view of above, the relief, as claimed by the applicant cannot be granted. However, ultimately if applicant is acquitted in the criminal appeal, it would be open to the applicant to make a representation to the authorities for seeking appropriate relief.
10. In view of above, we find no merit in the OA. The same is accordingly dismissed at the admission stage itself. No costs.
(Shailendra Pandey) (Mrs. Meera Chhibber) Member (A) Member (J) Rakesh