Central Administrative Tribunal - Allahabad
Unknown vs Union Of India Through Secretary on 21 February, 2013
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 21st DAY of February, 2013) Honble Mr. Shashi Prakash, Member (A) Original Application No. 246 of 2007 (U/S 19, Administrative Tribunal Act, 1985) Mukhtar Ali, T. No. 349/EM/Wireman (Highly Skilled), S/o Shri Sheikh Shakoor R/o G-II/251, Armapur Estate Kanpur. Applicant Present for Applicant : Shri S. P. Srivastava. Versus 1. Union of India through Secretary, Ministry of Defence, Defence Production and Supply New Delhi. 2. Secretary Ordinance Factory Board 10-A, S.K. Bose Road Kolkatta. 3. Senior General Manager Ordinance Factory, Kanpur. 4. Joint General Manager (Admn) Ordinance Factory, Kanpur. Respondents Present for Respondents : Shri Abhinav Tripathi O R D E R
This O A has been instituted by the applicant for quashing the orders dated 10.01.2007 and 01.02.2007, issued by respondent No. 3. It is seen from the impugned orders that the applicant was implicated in a Criminal Case under Section 342/323 IPC & section 3(1) (X) of SC/ST Act, registered with police station Kalyanpur, Kanpur Nagar, as Case Crime No. 80/1996. The applicant was arrested and detained for more than 48 hours in police custody.
2. As per the respondents according to letter dated 16.06.1997 of the Superintendent of District Jail, Kanpur the applicant was detained in jail custody from 20.01.1997 (17:10 hours) till 22.01.1997 (19.10 Hrs.). Since, the detention period exceeded 48 hours, the applicant was placed under deemed suspension w.e.f. 20.01.1997. Subsequently, the applicant was exonerated in the criminal case by the judgment and order dated 21.08.2006 on the ground that the prosecution had failed to prove the case beyond reasonable doubt. Thereafter, applicant submitted a representation to the respondent No. 3 dated 23.8.2006 annexing a copy of the aforesaid judgment dated 21.8.2006, upon which, respondent No. 3 passed an order dated 26.10.2006 revoking his suspension order with immediate effect. On 08.12.2006, a show cause notice was issued to the applicant on the proposed decision of the department by which he was informing him that while the benefit of pay and allowance during the period of his suspension has been granted but denying the benefit of increment, leave pension and gratuity and treating his suspension period as break in service. The applicant submitted his reply on 23.12.2006 contesting the proposed decision of the respondents and claiming all consequential benefits of allowances of his pay for that period. By orders dated 10.01.2007 and 01.2.2007 the respondents passed an order stating that consequent to the fact of acquittal of the applicant and keeping in view the contents of the representation submitted by the applicant, the department has come to the conclusion that the suspension of the applicant from the period 20.01.1997 to 26.10.2006 was not illegal but it was ordered that the period of his suspension would not be counted as on duty and that he would be entitled for only pay and allowances as admissible to him during that period. The suspension would not be treated as break in service. It was also clarified that the applicant would not be entitled to the benefit of increment, leave pension and gratuity etc.
3. Learned counsel for the applicant argued that the decision of respondent No. 3 communicated by the orders dated 10.01.2007 and 01.02.2007 is patently illegal. Since the applicant was fully acquitted in the criminal case and no punishment had been imposed on him either in a criminal or departmental proceedings, the applicant is entitled to all the consequential benefits. He argued that in OA No. 514/2007, decided on 29.4.2009, involving identical set of facts and similar nature of orders impugned, the Tribunal has set aside the concerned orders and directed to treat the applicant as in service during period of deemed suspension along with all consequential benefits and the deemed suspension period not to be treated adverse to the interest of the applicant for any purpose whatsoever.
4. Keeping in view the facts of the case and foregoing orders of the O.A. it is very clear that the deemed suspension period has to be treated as a duty period and the benefits that would have accrued to the applicant as if he had been on duty during that period should be given. It is not for the respondents to decide as to what benefits are to be given and what benefits are not to be given.
5. In the case of State of Punjab and others vs. Shambhu Nath Singla and Others, (1996) 1 Supreme Court Cases 296, it has been clearly held that once an employee is reinstated after discharging by the criminal court and reinstated he is entitled to full salary and allowances for the period during which he was kept under suspension.
6. In view of this position the impugned orders dated 10.01.2007 and 01.02.2007 are clearly illegal and, therefore, set aside. The applicant shall be provided the benefit of increment, leave and counting of the suspension period for the purpose of calculation of gratuity and pension. The direction of the Tribunal shall be implemented within a period of three months.
7. So far as the second relief which relates to granting of the salary of the post of highly skilled to the applicant is concerned, it is not maintainable on the ground that it is relief which is not in any way connected or consequential to the first relief. It altogether relates to separate cause of action. Hence, it is not maintainable as under Rule 10 of the CAT procedure Rule, 1997 multiple relief(s) cannot be sought in a single OA.
8. With the above observation, O.A. is partly allowed.
Member (A) Shashi This O.A. has been instituted by the applicant mainly seeking following relief :
(i) To quash the impugned orders dated 10.01.2007 and 01.02.2007 passed by the respondents No. 3.
(ii) To direct the respondents concerned to pay salary (pay), increments in pay, leave, pension and gratuity and other allowances which are admissible to be paid to the applicant of the period of suspension from 20.1.1997 to 26.10.2006 along with interest @ 12% per annum.
(iii) To direct the respondents concerned to pay the salary (pay) of the post of Highly Skilled on which the applicant was already promoted on 26.3.2004 along with interest @ 12% per annum and also including to pay all other consequential benefits for which the applicant is entitled form time to time along with interest @ 12% per annum.
2. The facts as per the O.A. are that the applicant, was working as Wireman (Highly Skilled) under the control of respondent no. 3. Act, conduct and behaviour of the applicant are quite satisfactory towards his superior authorities. No complaint whatsoever has ever been made prior to date of suspension and now after revocation of suspension. The complaint letter and cash reward was given to the applicant on 26.01.1987 (Annexure No. 3), 26.01.1996 (Annexure No. 3A) and 06.10.1997(Annexure No. 3B). An F.I.R. was lodged on 28.11.1996 (Annexure No.4) at 12.30 hrs. in respect of the occurrence which was alleged to have taken place on 25.11.1996 at Case Crime No. 80 of 1996 U/s 342/323 I.P.C & 3(1) (X) SC/ST Act, P.S. Kalyanpur, Kanpur Nagar. The applicant was not named in the said F.I.R. while the alleged incident is said to have taken place the applicant was on his duty in the Ordinance Factory itself. The applicant surrendered before the Court concerned and was granted bail by the learned IInd Additional Special Judge, Kanpur Nagar. The applicant had not detained under police custody for 48 hours, as it is evident from the order dated 22.01.1997 by which the applicant was granted bail. The respondent No. 3 has wrongly interpreted the hours of custody of the applicant under the police and the applicant was placed under suspension w.e.f. 20.1.1997 due to aforesaid criminal case for until further orders. Till date there is neither any charge sheet nor any disciplinary proceedings initiated against the applicant in the department and as per as criminal case is concerned. The trial of the aforesaid case was proceeded being Sessions Trial No. 191 of 1997 before the learned Special Judge (SC/ST Act), Kanpur Nagar and the applicant was acquitted by the aforesaid Court. While the learned Trial Court acquitted the applicant has clearly/specifically mentioned that the prosecution has failed to prove his case its beyond reasonable doubt. After passing the acquittal order the applicant made an application to the respondent no. 3 annexing the copy of the aforesaid judgment and order. The suspension order dated 19.7.1997 was revoked by the respondent No. 3. The applicant joined/resumed his duties under the control of the respondent No. 3 and is performing his duties. A show cause notice was issued to the applicant for making representation while allowances would be given to him. The applicant submitted his reply of the said notice. The representation dated 23.12.2006 was rejected by the respondent No. 3. Verbatim order was passed. The aforesaid orders are contrary in terms illegal, unreasonable and are arbitrary as being violation of Articles 14 and 16 of the Constitution of India and the same are not tenable and sustainable in the eye of law and are liable to be quashed by this Honble Court.
Pursuant to the notice respondents filed counter affidavit. Resisting the claim of the applicant the respondents stated that the applicant was placed under suspension w.e.f. 20.01.1997 on having been detained in police custody/jail for a period beyond 48 hours and being involved in a Criminal Case No. 80/96 registered at Police Station, Armapore, Kanpur Nagar under Section 147/342/302/149 of IPC and 3(2) (5) SC/ST Act. Being under trial in the Session Trial No. 191/97 before the Special Judge SC/ST Act, Kanpur Nagar, the applicant remained under suspension during the pendency of the criminal case.
That although the applicant intimated the Factory administration about his detention, he furnished false information that he was released from jail before 48 hours vide his application dated 29.01.1997. The period of his detention was confirmed from the Superintendent, District Jail Kanpur Nagar and the Superintendent, District Jail, Kanpur Nagar vide his letter dated 16.06.1997 intimated that the applicant was detained in Jail custody on 20.01.1997 at 17.10 hours and remained in custody upto 19.10 hours on 22.01.1997, hence the tetention period of the applicant in Jail was more than 48 hours. As per the Government India, M.H.A, O.M. No. 30/59/54-Ests.(A) dated 25.2.1955 It shall be the duty of a Government servant who may be arrested for any reasons to intimate the fact of his arrest and the circumstances connected therewith to his official superior promptly even tough he might have subsequently been released on bail. On receipt of the information from the person concerned or from any other source, the departmental authorities should decide whether the fact and circumstances leading to the arrest of the person call for his suspension. Failure on the part of any Government Servant to so inform his official superiors will be regarded as suppression of material information and will render him liable to disciplinary action on this ground alone, apart from the action that may be called for on the out come of the Police case against him.
That the applicant did not intimate correct information to Factory Administration about his detention in the Police Custody/Jail. For this reason the applicant was served a Charge Sheet under Rule 16 of CCS (CC&A) Rules 1965 vide memorandum dated 03.09.1997 for the following charge:
Shri Mukhtar Ali, T.No. 349/EM is charged with gross misconduct that due to registration of Criminal Case No. 80/96 at Police Station Armapore, Kanpur Nagar under Section 147/342/302/149 of IPC and 3(2) (5) SC/ST Act, he was sent to Jail on 20.01.2997 at 05.10 P.M. after his surrender before the Court of Chief Metropolitan Magistrate, Kanpur Nagar and he was released from Jail after his bail on 22-01-1997 at 7.10 P.M. Shri Mukhtar Ali has concealed the above said fact from the administration of the Factory.
The aforesaid act of Shri Mukhtar Ali, T.No. 349/EM is against CCS (Conduct) Rule 1965.
D. That instead of forwarding appropriate reply of charge sheet dated 03.09.1997, the applicant repeatedly insisted upon vide his representations dated 23.03.1998, 15.06.1998 and 30.10.1998 that he was not detained in Police custody more than 48 hours and therefore deemed suspension should be revoked.
E. That in the meantime the applicant filed an Original Application No. 558/02 before this Honble Tribunal against the suspensiosn order dated 19.07.1997 which was disposed of vide order dated 28.10.2002 wherein the following directions were given :-
(a) to review the case of the applicant by keeping the latest position and criminal cases and instruction, in mind
(b) Whether the suspension should be revoked or be continued.
(c) The reasons for not giving subsistence allowance from 04.05.2000.
(d) The reasons for reducing his subsistence allowance from 50% to 25% w.e.f. 04.05.2000.
F. That in compliance to Honble Tribunals order dated 28.10.2002, a detailed speaking order dated 10.2.2003 was passed by the respondent No. 3 stating that according to the letter dated 16.6.1997 issued by Superintendent of District Jail, Kanpur Nagar, the applicant was detained in Jail custody on 20.01.1997 at 17.10 Hours and remained in custody up to 19.10 Hours on 22.01.1997. Since the detention exceeded more than 48 Hours, he was deemed to have been suspended w.e.f. 20.1.1997 in terms of Sub Rule 10 (2) of CCS (CC&A) Rules 1996 and keeping this view the order dated 19.7.1997 was justified. Since a Criminal case was pending against him, at this stage allowing him to join duty at the vital Defence installation will be prejudicial to the overall interest and morale and discipline of the Defence Unit. Regarding the 3rd point raised by the Honble CAT, Allahabad it was submitted that applicant did not submit the non-employment certificate which is mandatory under Rule 53 (3) FRSR on the part of the suspended Government employee to furnish such certificate for receiving the subsistence allowance and his subsistence allowance was enhanced from 25% to 75% w.e.f. the issue of the order dated 10.02.2003.
G That since the criminal case filed against the applicant was pending before Special Judge SC/ST Act, Kanpur Nagar from a long time, in order to complete the disciplinary proceedings against the applicant the disciplinary authority after considering the representation dated 30.10.1998 submitted by the applicant and other evidence available on record, imposed the penalty of Censure vide order dated 05.06.2006.
H. That in the meantime the S.T. No. 191/97 was decided vide order dated 21.08.2006 acquitting the applicant from the criminal charges leveled against under Section 147/342/302/149 of IPC and 3 (2) (5) SC/St Act because the prosecution failed to prove the charge against him beyond reasonable doubt. The suspension of the applicant was revoked vide order dated 26.10.2006. Since the applicant was acquitted ddue to failure of prosecution, the Disciplinary Authority issued a memorandum dated 08.12.2006 giving an opportunity to the applicant to show cause regarding regularization of suspension period from 20.01.1997 to 26.10.2006 by treating the suspension as not wholly unjustified.
I. That in response to Show Cause Notice dated 08.12.2006, the applicant submitted a representation dated 23.12.2006 stating that he was not detained in Police custody for more that 48 hours.
J. That taking into consideration the representation dated 23.12.2006. submitted by the applicant and Civil Courts judgment dated 21.08.2006, wherein it was mentioned that the prosecution failed to prove charges against Akhtar etc. beyond reasonable doubt and considering the launching of prosecution against the applicant the Disciplinary Authoeity considered the suspension period from 20.01.1997 to 26.10.2006 not wholly justified and regularized the same as period not spent on duty for all purposes but it will not be treated as break in service and further that he will not be entitled for pay and allowances beyond the subsistence allowance he has already drawn during the aforesaid suspension period and passed the order dated 10.01.2007. A Factory order part-II No. 1126 dated 01.02.2007 was also published to this effect. The above action of respondent No. 3 is in conformance with the settled law of No work No wages. The Honble Supreme Courts judgment in the case of Krishnakant Raghunath Bibhavnekar Vs. State of Maharashtra and Other (1997) 3 SCC 636 helf that in the acquittal based on insufficient evidence in a criminal case does not entitle a person to back wages pensionary benefits and other consequential benefits on his reinstatement. Where suspension is pertaining to Criminal case the competent Authority is empowered to treat the suspension period as not spent on duty after following the principles of natural justice.
K. That it will not be out of place to submit here that the Honble Apex Court in the case of Managing Director, ECIL Vs. Karunakar 1993 (SCC) (L&S) has also decided the ratio that for back wages consequent upon reinstatement, the principle of No work no Pay would apply.
L. That the applicant has not exhausted the departmental channels of remedy as provided under Rule 22 to 28 of CCS(CC&A) Rules 1965 for making appeals to the competent authority. The applicant has thus approached this Honble Tribunal prematurely and has also furnished a false statement in Paragraph No.06 of the present original application, that he has availed of all the remedies available to him under the relevant service rules. It is the violation of Section 20 f the Administrative Tribunal lAct 1985, which provides that a Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redress of grievance. As such the present original application is premature and liable to be dismissed on this ground alone.
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