Central Administrative Tribunal - Madras
S. Kannan, Assistant Commissioner, ... vs Union Of India (Uoi) And Ors. on 10 February, 1999
JUDGMENT
K. S. Bakthavatsalam, Vice-Chairman
1. The applicant who is presently working as the Jonior Departmental Representative in the Central Excise, Gold Control Appellate Tribunal, Chennai Bench.
2. Based on F.I.R. lodged by one lady Advocate at Hyderabad, the applicant was charged with offences under Sections 417, 493 and 376 of the I.P.C. in two cases, Sessions No. 401 of 1992 in respect of offences under Sections 417 and 376 IPC and C.C. No. 251 of 1993 (under Section 493 IPC) in the Court of the V Additional Metropolitan Sessions Judge, Hyderabad.
The case against the applicant in C.C. No. 251 of 1993 ended in acquittal while the second case S.C. No. 401 of 1992 ended in conviction of the applicant by a judgment dated 18.3.1998. Based on the conviction the applicant was also sentenced to pay fine of Rs. 2,000/- for the offence under Sections 417 and R.I. for 7 years in respect of the offence under Section 376. It seems the applicant preferred a Criminal Appeal No. 461 of 1998 against the conviction before the High Court of Andhra Pradesh and filed a Criminal Petition No. 1475 of 1998 under Section 482 of the Cr.P.C. seeking suspension of the operation of the execution of the conviction. The High Court of Andhra Pradesh on 19.3.1998 has passed an interim order to the following effect:
"Interim suspension of the operation of execution of conviction."
Apprehending that the respondents will initiate action under Rule 19 of the C.C.S. (C.C.A.) Rules, 1965, through an advocate the applicant addressed the Chairman, CEGAT bringing to the notice of the Chairman about the orders passed by the High Court of Andhra Pradesh suspending the conviction imposed on the applicant. Subsequently, the applicant has asked for a transfer to Southern Region by his letter dated 20.4.1998. According to the applicant, he has been transferred to Chennai on 12.6.1998. By the impugned show cause notice which has been issued by the first respondent under Rule 19(1) of the C.C.S. (CCA) Rules, 1965, the applicant has been given an opportunity to make his representation with regard to the proposed penalty by the competent authority. Against this show cause notice which has been communicated to the applicant on 29.1.1999, the applicant is before us.
3. We have heard Mr. Ravi Kumar Paul in extenso and gone through the application and the Annexures.
4. The learned Counsel for the applicant strenously contended that in view of the judgments of the Andhra Pradesh High Court in the case of V. Sundararamireddi v. State (1990 Crl.L.J.167) and also the Supreme Court which has been reported in 1995 (1) L.W.(Crl.) 86 in the case of Rama Narang v. Ramaesh Narang and Ors., that the respondents ought not to have issued the show cause notice at this stage. The learned Counsel also pointed out that when the conviction has been kept under suspension, show cause notice under Rule 19 of the CCS (CCA) Rules cannot be issued and as such, it is contended that the respondents have not applied their mind to the circumstances of the case. According to the learned Counsel, once the operation of the conviction is suspended, there is no basis for action under Rule 19(1) of CCS (CCA) Rules, 1965. As such, the show cause notice is arbitrary and suffers from non-application of mind.
5. We have considered the arguments of the learned Counsel for the applicant.
6. Rule 19 of the CCS (CCA) Rules, 1965, so far as it is necessary for the purpose of this case reads as follows :
"19. Special Procedure in Certain Cases :
Notwithstanding anything contained in Rule 14 to Rule 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, or"
This Rule obviously is in tune with Article 311 (2) of the Constitution of India which reads as follows:
"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges.
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply-
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or"
7. We do not find any reason to interfere with the show cause notice at this stage. It is open to the applicant to raise all the contentions before the authorities concerned. The argument of the learned Counsel for the applicant that the applicant has already brought to the notice of the Chairman, CEGAT, through his Counsel about the order of the Andhra Pradesh High Court is not convincing. Obviously, the applicant on an apprehension issued the letter through his Advocate on 22.3.1998 itself giving the intimation regarding the interim order passed by the Andhra Pradesh High Court. We do not think this is a stage at which the applicant has to approach to this Tribunal. It is for the applicant to raise all his objections to the show cause notice and as and when final order is passed, it is always open to the applicant to challenge the same in a manner known to law. We do not want to enter into the merits of the case at this stage.
8. In Raja Seshaiah v. Commissioner of Income Tax, Visakhapatnam (1993 25 ATC 513), the Hyderabad Bench of this Tribunal has considered the scope of first proviso to Rule 19(i) of the CCS (CCA) Rules 1965. While considering so, a Full Bench judgments of this Tribunal in the case of Om Prakash Narang v. Union of India has been referred to. It has been observed by the Full Bench as follows:
"...The fact that the appeal is pending and the sentence has been suspended may be a consideration which may weigh the disciplinary authority in exercising its undoubted power to impose a penalty based on conviction which discloses a conduct that the public servant is not fit to be continued in service. While the power is recognise, the order of dismissal may be bad for other reason viz., that the disciplinary authority has not taken into consideration all relevant facts but that does not militate against the power vested under Rule 19(i) of the CCS (CCA) Rules to impose the penalty based on conviction, merely because an appeal is pending."
Following the observation of the Full Bench, the Hyderabad Bench of this Tribunal has held as follows:
" Hence the contention of the applicant that it is not open to the disciplinary authority to proceed under Rule 19(i) of the CCA Rules when the appeal against the order of conviction and sentence is pending, is not tenable. Of course, it is for the disciplinary authority to take into consideration about the factum of the pendency of the appeal in the High Court in order to decide as to whether final orders can be passed now in pursuance of the impugned show-cause notice or whether the same can be deferred till after the disposal of the criminal appeal No. 1107 of 1992 on the file of the High Court of Andhra Pradesh."
In T.D. Sathyakumar v. Director, Aeronautical Development Establishment, Bangalore and Ors. (1998 (8) ATC 700), the Bangalore Bench of this Tribunal has held that Rule 19 of CCS (CCA) Rules, 1965 does not confer in independent power to dispense with enquiry but incorporates the contents of Article 311 (2) of the Constitution of India.
9. We are of the view that power under Rule 19 to issue a notice can be exercised even though conviction is kept under suspension by a Criminal Court. If the argument of the applicant is to be accepted then there is no meaning for Article 311 (2) of the Constitution of India and also Rule 19 of CCS (CCA) Rules, 1965 which has been framed specifically for this purpose. It cannot be presumed that the Disciplinary Authority may pass an adverse order against the applicant. On the simple ground that this application is pre-mature, it is dismissed. It is open to the applicant to give his representation, in accordance with law, to the concerned authority. We are sure that the respondents shall consider the representation taking into consideration the legal issue raised by the applicant based on the judgments of the Andhra Pradesh High Court and the Supreme Court cited supra, with regard to the powers of the Criminal Court about the suspension of the conviction order, and the effect of it.
10. In view of the above discussion, the O.A. is dismissed at the admission stage.