Central Administrative Tribunal - Jabalpur
Pawan Kumar Shrivastava vs Union Of India (Uoi) And Ors. on 20 September, 2002
Equivalent citations: 2003(2)SLJ293(CAT)
JUDGMENT R.K. Upadhyaya, Member (A)
1. The applicant is aggrieved by order dated 19.12.2000 (Annexure-A-6). By this impugned order, the appellate authority has reduced the penalty from removal from service to that of stoppage of annual increments for a period of six year from the date the applicant is reinstated as Upper Division Clerk. This impugned order further states that the absence from 24.7.1992 to the date of reinstatement will be treated as dies-non. The applicant is further aggrieved by order dated 4.1.2001 (Annexure-A-9) whereby the respondents have rejected the applicant's request dated 3.1.2001 (Annexure-A-8). By this impugned order (Annexure-A-9) the applicant has been informed that the competent authority had never permitted him to enrol/register with the Bar Association as an Advocate. Therefore, the applicant could not be permitted to join duty without cancellation of enrolment/registration as an Advocate.
2. The applicant while posted as Upper Division Clerk in the office of Director, Regional Medical Research Centre (for short 'RMRC'), Jabalpur was charge-sheeted as per memorandum dated 10.4.1991 (Annexure-A-1). In pursuance to the charge-sheet, the disciplinary authority by order dated 24.7.1992 imposed the penalty of removal from service under Rule 11 (viii) of Central Civil Services (Classification, Control & Appeal) Rules, 1965. The appellate authority by an order dated 5.5.1993 (Annexure-A-4) confirmed the penalty of removal from service. The applicant preferred a Misc. Petition No. 2536 of 1992 in the Hon'ble High Court of Madhya Pradesh which was subsequently transferred to this Tribunal and was registered as TA 3 of 2000. This petition was disposed of by an order dated 11.10.2000 in TA 3 of 2000 (Annexure-A-5). This Tribunal remanded the matter to the appellate authority with a direction to reconsider the applicant's appeal and pass appropriate order regarding quantum of punishment keeping in view the observations and findings given in the order, The impugned order dated 19..12.2000 (Annexure-A-6) has been passed in pursuance to the order of this Tribunal in TA 3/2000.
3. Before considering further argument of the applicant on the merits against the impugned order dated 19.12.2000 (Annexure-A-6) and another order dated 4.1.2001 (Annexure-A-9), it will be relevant to refer to the preliminary objections raised by the learned Counsel of the respondents. The learned Counsel of the respondents stated that the present application is hit by the provisions of Rule 10 of Central Administrative Tribunal (Procedure) Rules, 1987 prohibiting seeking plural remedies. According to the learned Counsel of the respondents both the impugned order are separate which are not consequential to each other. Therefore, the application in the present form deserves to be dismissed in limine. The learned Counsel further invited attention to the fact that the revision-petition dated 8.1.2001 (Annexure-A-7) against the appellate order is still pending. Therefore, the application deserves to be dismissed being premature.
4. After considering the argument of both the parties, we are of the opinion that the matter should be finally disposed of instead of lingering it on technical grounds and preliminary objections. Even otherwise, we find that, the applicant had made a request regarding permission for joining as per his letter dated 3.1.2001. This act of joining was consequential to the order of reinstatement passed by the appellate authority on 19.12.2000 (Anncxure-A-6). Therefore, in our opinion the reliefs claimed cannot be said to be not interconnected or consequential to each other. Therefore, this preliminary objection is rejected. So far as the plea of the respondents regarding the application being premature on account of pendency of revision-petition dated 8.1.2001 (Annexure-A-7), the respondents themselves have stated that this revision-petition is not maintainable in view of the fact that no revision-petition lies to the executive committee of the respondents under Rule 29 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965. The respondents have further stated that even if a revision was permissible, the revisional authority could not sit over the decision of this Tribunal as the appellate authority has passed the impugned order dated 19.12.2000 in compliance of the order of this Tribunal. There is another reason for not treating the present O.A. as premature. The revision-petition was submitted on 8.1.2001 (Annexure-A-7) which is stated to be not yet disposed of. The charge-sheet pertains to the misconduct of the applicant committed in the year 1990 and it will serve no purpose if the decision of the so-called revisional authority is still awaited and on that account the matter is allowed to linger on. Therefore, we have decided to this application on merits. This will also be in consonance with the view expressed by the Hon'ble High Court in their judgment dated 26.6.2002 in W.P. No. 5714 of 2001.
5. The applicant states that he applied for registration as an Advocate after he was no longer in service. He submits that there is no provision for cancellation of registration as an Advocate on joining a Government service. In support of his contention, he has filed a letter dated 24.12.2001 (Annexure-A-12) issued by the Secretary, M.P. State Bar Council which states that "it an advocate joins employment or any other business, it is necessary for him to suspend his Sanad to practise as an Advocate and cancellation of Registration is not required as per the rules".
5.1 Regarding impugned order dated 19.12.2000 (Annexure-A-6), it is stated by the applicant that no show cause notice was given to him before passing of the impugned order.
6. The learned Counsel of the respondents has placed reliance on the provisions of Central Civil Services (Conduct) Rules, 1964 as well as on the provisions of Rules 143 & 144 of the State Bar Concil Rules of Madhya Pradesh. In their reply, the respondents have stated that as per the provisions Rule 15(1) of the CCS (Conduct) Rules, 1964 no Government servant shall engage directly or indirectly in any trade or business without previous sanction of the Government. Further, in terms of Rule 15(4) of the said Rules, no Government servant may accept any fee for any work done by him for any private or public body or any private person without the sanction of the prescribed authority, Government of India's decision No. 12 reproduced below Rule 15 of the CCS (Conduct) Rules, 1964 Swamy's Compilation Thirty-First Edition-1998 refers to Government of India, Department of Personnel & Administrative Reforms U.O. No. D.207/74-Estt. (A) dated the 15th January, 1974 which states that "It is clarified that the Government servant can be permitted to enrol himself as an advocate, but should not engage himself in the legal profession either independently or otherwise for so long as he continues in Government service". The learned Counsel of the respondents stated that if the applicant is allowed to join service and given benefit of continuation in service as claimed by him, it will be against these provisions as he had never taken prior permission before enrolment as an Advocate. Referring to Rule 143 of the State Bar Council Rules of Madhya Pradesh, the learned Counsel stated that a person who is otherwise qualified to be admitted as an Advocate but is either in full-time or part-time service or employment or is engaged in any trade, business or profession shall not be admitted as an Advocate. There are certain excepting to this and admittedly the case of the applicant does not fall in any of the five exceptions mentioned in Rule 143, ibid. He invited attention to Rule 144 of the said Bar Council Rules where conditions for enrolment as an Advocate are stated. This Rule requires that if an Advocate already enrolled as an Advocate accepts full or part-time service or employment or engage in any trade, business or profession, disqualifying him for admission an envisaged in Rule 144 (I), he shall forthwith inform the State Bar Council and shall cease to practise as an Advocate. Rule 146 of the said Rules provides that breach of any rules or any undertaking given shall amount to professional misconduct and Rule 147 (h) of the said Rules provide that the application for enrolment shall be accompanied by a declaration that the applicant is not in full or part-time employment. In view of these provisions of State Bar Council Rules of Madhya Pradesh, it was urged by the learned Counsel of the respondents that the impugned order dated 4.1.2001 (Annexure-A-9) is in accordance with the provisions of relevant rules. Therefore, before the applicant can be allowed to join he must get his enrolment as an Advocate cancelled.
7. Heard the applicant and learned Counsel of the respondents. We have also carefully perused the material available on record.
8. The applicant was working as UDC in the RMRC when the charge-sheet was issued to him. Pursuant to the issue of charge-sheet, the applicant was removed from service. It is claimed that the applicant got himself enrolled after removal from service, though no evidence has been produced as to when he applied for enrolment and the date of actual enrolment. It is also claimed on behalf of the respondents that the applicant has also worked as a professional lawyer in some of the case during the period of his removal till date. The respondents have not given the details whether the applicant accepted fees as a professional lawyer from certain clients. In spite of these factual details, we are of the view that the applicant could not have been enrolled as an Advocate if he was in Government service in view of the provisions contained in CCS (Conduct) Rules and State Bar Council Rules of Madhya Pradesh, referred to above. This is an admitted fact that the applicant never applied for any permission to get himself enrolled as an Advocate.
8.1 In pursuance to the order of appellate authority dated 19.12.2000 (Annexure-A-6) the applicant has been awarded the penalty of stoppage of annual increments in lieu of removal from service. In pursuance of this order, the applicant should have joined his duties. But, before joining duty the applicant has to get his sanad from M.P. State Bar Council suspended. Therefore, we direct the respondents to allow the applicant to join his duties on production of a certificate from the State Bar Council that his sanad will stand suspended from the date of his joining duties. The respondents may not insist on getting his registration cancelled in terms of their order dated 4.1.2001 (Annexure-A-9). The applicant has to decide himself whether he wants to continue his practice as an Advocate or whether he wants to work as a Government servant. If he decides to join duties, he must obtain a certificate of suspension of his sanad from M.P. State Bar Council within one month from the date of receipt of a copy of this order, and report for duty within the same period. If he does not do so, it may be presumed that he is not interested in joining Government service.
8.2 So far as the applicant's grievance regarding treatment of his absence from the date of removal from service on 24.7.1992 till date of joining is concerned, we direct the applicant to submit his details to Respondent No. 4 regarding his activities from the date of removal from service to the date of reinstatement so that the same can be regularised in accordance with the rules. The Respondent No. 4 may decide the nature of treatment of this period after the applicant's claim and after allowing him an opportunity of being heard.
8.3 The applicant may not postage his decision for joining the duties on one pretext or other like prior decision in respect of regularisation of his absence from the date of removal to the date of reinstatement in view of our direction in the preceding sub-paragraphs.
8.4 Regarding quantum of penalty now imposed vide order dated 19.12.2000 (Annexure-A-6), in pursuance of the direction of this Tribunal in TA 3/2000, the applicant has not brought to our notice as to any violation of rules in imposition of penalty. The Hon'ble Supreme Court in the case of B.C. Chaturvedi v. Union of India and Ors., JT 1995(8) SC 65, have held that the "disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/ Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty", unless the punishment imposed by the disciplinary authority or the appellate authority socks the conscience of the High Court/ Tribunal. Considering the facts of this case, we do not find any justification to interfere with the quantum of punishment ultimately imposed by the appellate authority vide order dated 19.12.2000 (Annexure-A-6).
9. In the result, this application is partly allowed with the directions contained in the preceding paragraph. In the circumstances of the case, the parties are left to bear their own costs.