Central Administrative Tribunal - Mumbai
Sayyed Aslam Ali vs M/O Railways on 24 November, 2017
1 OA No.223/2017
CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI
CIRCUIT SITTING NAGPUR
ORIGINAL APPLICATION No.223 OF 2017
DATED THIS FRIDAY, 24th NOVEMBER, 2017
CORAM :HON'BLE MR. ARVIND J. ROHEE, MEMBER (J)
HON'BLE DR. NANDITA CHATTERJEE, MEMBER (A)
Shri Sayyed Aslam Ali,
Aged about 52 years, Occu - Service,
R/o Tumsar Road (Dewhadi) Tahsil,
Tumser District Bhandara - 441 913. . . . Applicant
(By Advocate Shri P.S.Sahare)
Versus
1) The Union of India,
Through its General Manager,
South East Central Railway,
Bilaspur 495 004.
2) The Divisional Railway Manager,
South East Central Railway,
Nagpur 440 001. . . . Respondents
(By Advocate Shri Alok Upasani)
ORDER (ORAL)
PER : ARVIND J. ROHEE, MEMBER (JUDICIAL) The applicant, who is the former Keyman working with the respondent No.2 has grievance regarding the impugned order dated 15.03.2012 (Annexure A-1) issued by the Senior Divisional Engineer SEC Railway, Nagpur 2 OA No.223/2017 by which he has been removed from service since he face conviction by the Criminal Court and hence, approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs :-
"8(a). be please to issue notice to the respondents.
(b). direct the respondents No.2 to take back the termination order dated 15.03.2017 (ann-a-1) received on 21.03.2017;
(c) stay to the effect, operation and execution of the termination order dated 15.03.2017 (ann-a-1) passed by the respondent no.2;
(d) grant any other relief and issue such other suitable directions as this Hon'ble in the facts and circumstances of the case;
(v) costs of this Original Application be saddled on the respondents."
2. On the complaint lodged by one Shri Rama Dodkuji Madankar with the Anti Corruption Bureau Nagpur on the allegation that the applicant demanded and accepted gratification of Rs.2,500/- from him, for allowing him to graze his buffaloes near Railway Line Sirsi, the applicant was 3 OA No.223/2017 prosecuted before Special Court, Bhandara. He was also suspended and departmental proceeding was also initiated against him. On 31.12.2010, although the complainant did not appear during the enquiry proceeding, the applicant was held guilty and punishment of withholding of four annual increment from July, 2016 was imposed on him vide order dated 15.10.2015. On appeal, the Appellate Authority reduced the punishment by withholding increments for three years vide order dated 14.03.2016. The revision preferred against the said order was decided on 30.04.2016 and the Revisional Authority further reduced the punishment of three years without cumulative effect.
3. In the meantime, the Special Court Bhandara in Special case No.CBI 7/2009 for the offence punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of 4 OA No.223/2017 Corruption Act, 1988 found the applicant guilty and vide order dated 30.08.2016 impose the penalty of rigorous imprisonment for one year and to pay fine of Rs.1,000/- and in default to suffer further imprisonment for one month on each count.
4. On intimation received from the Special Court regarding conviction of the applicant, in exercise of the power conferred by Rule 14(1) of Railway Servants (Discipline and Appeal) Rules, 1968 a show cause notice dated 15.11.2016 was issued to applicant as to why penalty to removal from service should not be imposed in view of his conviction. This was replied by the applicant on 01.01.2017 in which, it is clarified that he has challenged the order of conviction before the Hon'ble High Court of Bombay Bench at Nagpur and the sentence imposed is suspended. After considering it, by the impugned order 5 OA No.223/2017 dated 15.03.2015 (Annexure A-1), the applicant was removed from service with sanction of compassionate allowance of 2/3rd of both pension and gratuity, which would have been admissible to him, if he had retired on compensation pension.
5. The impugned order has been challenged on the following grounds :-
"5.1. Here is a case where admittedly was found not guilty of charges by the Enquiry Officer. The said finding was based on appreciation of evidence by the Enquiry Officer. The same could have been upset by the Disciplinary Authority. However, it was upset in this case at the behest of Deputy Chief Vigilance Officer, who is neither a Disciplinary Authority nor an authority empowered to meddle with the findings recorded by the Enquiry Officer. The order of termination impugned herein is an outcome of the said fact. It is therefore illegal and bad in law and liable to be quashed and set aside as such.
5.2. The conviction of the applicant by the criminal court is a subject matter of an appeal before the Hon'ble High Court in Criminal Appeal No.364/2016. The Hon'ble High Court has stayed the sentence. The appeal is pending final adjudication. The list that the respondents could do was to stay their hands from proceedings further against the applicant during the pendency of this appeal. On this ground also the impugned of termination is illegal and bad in law.6 OA No.223/2017
5.3. Here is a case where an appeal pursuant to a disciplinary enquiry initiated against the applicant is pending adjudication before the Competent Authority. This is in addition to the fact that criminal appeal no.364/2016 is also pending final adjudication before the Hon'ble High Court. No order of termination muchless as one issued against the applicant could have been passed at such a stage. On this ground also the impugned of termination is illegal and bad in law.
5.4. The impugned order dated 15.03.2017 terminating the services of the applicant seems to have been filed in undue hest without due application of mind specifically Railway Board Circulars issued from time to time. The said order is therefore arbitrary. Arbitrariness is opposed to the Rule of Law. It needs to be quashed and set aside on this count also.
5.5. As per Rule 14(i) if an penalty is imposed on a railway servant on the ground of conduct which was lead to his conviction on a criminal charges then the competent authority shall not inflict the penalty on the basis of facts which led his conviction by the trial court, but shall wait for a decision on the first appeal, if preferred or till such time, first appeal becomes time barred. Here is a case were applicant has prepared Criminal Application (APPA) No.624/2016 in Criminal Appeal No.364/2016 against conviction to High Court at Nagpur wherein the Hon'ble Judge of the High Court suspend the conviction sentence and granted bail thus the order of termination issued by the respondent No.2 is bad in law. On this ground alone the impugned order dated 15.03.2017 needs to be quashed and set aside.
5.6. It is case were complainant written statement gave before Enquiry Officer on 22.06.2013 was not considered 7 OA No.223/2017 as he stated that he do not want to say anything about departmental proceedings and he will depose whatever he want in court itself. He further stated that he may not be troubled again by calling him in the aforesaid proceedings. The written statement given by the complainant in presence of the witnesses and the same was also signed by the witnesses in presence of Enquiry Officer. This aspect of the matter not at all considered by the Court. On this ground also the impugned order of termination from services dated 15.03.2017 needs to be quashed and set aside.
5.7. As per Rule 14(i) if any penalty is imposed on a railway servant on the ground of conduct which was lead to his conviction on a criminal charges then the competent authority shall not inflict the penalty on the basis of facts which led his conviction by the trial court, but shall wait for a decision on the first appeal, if preferred or till such time, first appeal becomes time barred. Here is a case were applicant has prepared Criminal Application (APPA) No.624/2016 in Criminal Appeal No.364/2016 against conviction to High Court at Nagpur wherein the Hon'ble Judge of the High Court suspend the conviction sentence and granted bail thus the order of termination issued by the respondent No.2 is bad in law. On this ground along the impugned order dated 15.03.2017 needs to be quashed and set aside.
5.8. Here is the case where new Charge Sheet / Memorandum came to be issued to the applicant on 17.04.2014 without adding new charges in it. Further, no reason what so ever mentioned in the new Charge Sheet / Memorandum thus it is violation of instruction issued by the Railway Board E(D&A)93RG6- 83{RBE171/93) dated 1.12.1993. On this ground also the impugned order of termination from service needs to be 8 OA No.223/2017 quashed and set aside.
5.9. The applicant replied memorandum stating that the case made out against him is out of misconception and he is the only bread earner of the family consisting of wife, daughter, younger brother's widow and his two children. In the event if applicant removed from service, 6 lives would be in dire straits, we will be thrown on the streets through his reply to memorandum was not yet decided or rejected. On this ground also the impugned order dated 15.03.2017 passed by the respondent No.2 needs to be quashed and set aside."
6. In the meantime, the applicant challenged the order of conviction by way of appeal in the Hon'ble High Court of Bombay vide Appeal No.346/2016. The Hon'ble High Court vide order dated 27.09.2016 admitted the appeal and suspended the sentence awarded by Special Court. Bail is also granted to the applicant. In the reply to the representation, the applicant disclosed the fact of Criminal Appeal preferred by him again the order of conviction and the order of suspension of sentence passed by the Hon'ble High Court in it.
7. The respondents appeared and 9 OA No.223/2017 by reply dated 12.06.2017 resisted the OA by denying all the adverse averments, contentions and grounds raised therein. The impugned order is fully supported since the applicant suffered conviction for serious offence and although in a departmental proceeding for the same offence the penalty of stoppage of increments is imposed upon him.
8. In the OA, the applicant prayed for the interim order to stay the effect, implementation and operation of the impugned order dated 15.03.2017. However, the same relief was not granted and the matter was listed was final hearing on completion of pleadings.
9. On 24.11.2017, we have heard Shri P.S.Sahare, learned Advocate for the applicant and the reply arguments of Shri Alok Upasani, learned Advocate for the respondents.
10 OA No.223/2017
10. We have carefully gone through the entire pleadings of the parties and the documents relied upon by the applicant in support of his contentions.
FINDINGS
11. The only controversy involved for resolution of this Tribunal is whether the impugned order of removal from service based on his conviction by competent Criminal Court for the offence of accepting gratification is liable to be set aside on the grounds raised and the applicant is entitled to be reinstated.
12. The impugned order dated (Annexure A-1) is reproduced here for ready reference :-
"S.E.C. Railway Divisional Office Engineering : Department Kingsway, Nagpur 440 001.
No.E/LMC/D&A/Sayyed Aslam Ali/ Keyman/ SSE/PW/BRD/120 Dated : 15.03.2017 To, Shri Sayyed Aslam Ali, 11 OA No.223/2017 Keyman under SSE/PW/BRD.
(Through : ADEN / TMR) Sub :- Termination of service. Ref.- This office memorandum No.-
E/LMC/D&A/ Sayeed Aslam Ali/Keyman/SSE/PW/BRD Dated 15.11.2016 Hon'ble Special Judge (C.B.I.) - Bhandara, Shri H.B. Gaikwad, in the case No.RC12(A)/2009-NGP (Special Case No.7/2009)-CBI V/s Sayyed Aslam Ali has convicted you for the offence punishable under Section 7 of the Prevention of Corruption Act - 1988, vide Section 235/2 of Code of Criminal Procedure and sentenced you to suffer Rigorous Imprisonment (RI) for UT year and to pay a fine of Rs.1000/- (Rs. One Thousand only) vide Judgement dt.30.08.2016.
I considered that your conduct has laid to your conviction & rendered your further retention in the railway service undesirable.
Showcause / Memorandum No.- E/LMC/D&A/ Sayyed Aslam
Ali/Keyman/SSE/PW/BRD Dated : 15.11.2016 was issued to you under Rule 14(i) of the Railway Servant (Disciplinary & Appeal) Rule, 1968 and you were advised to submit written representation within 15 days. You have sought the extension time upto one month due to family problems which was granted to you.
The written representation dated 02.01.2017 against above showcause/memorandum was received in this office on 05.01.2017 through SSE/PW/BRD taking into account all the relevant documents available on record, undersigned concluded that you have exhibited lack of integrity and behaved in a manner which in unbecoming of a railway servant and not a fit person to be retained in railway service.
In exercise of the power conferred by rule 14(i) of the Railway Servant (Disciplinary & Appeal) Rule, 1968 undersigned imposes the 12 OA No.223/2017 penalty on you as under :-
"Removal from railway service with sanction of compassionate allowance of 2/3 of both pension and gratuity, which would have been admissible to him if he had retired on compassionate pension".
Note : Punishment is effective from date of serving of order to the party.
Sd/-
(Atul Kumar Verma) vuq'kklukRed vf?kdkjh & ofj"B eaMy vfHk;ark (e?;) n- iw- e- jsyos] ukxiqj"
13. During the course of the arguments, the learned Advocate for the applicant submitted that on the same charge, the applicant was punished twice viz. in the departmental proceeding and also on criminal prosecution. In other words, according to him, he was subjected to double jeopardy and since the Criminal Appeal is admitted, the applicant should be reinstated forthwith. He, however, placed reliance on the decision rendered by the Hon'ble High Court of Bombay in A.D.Padhay Vs. State Bank of India, Mumbai, 2017 (5) Maharashtra Law Journal 893, Writ Petition No.1883 of 2003 decided on 31.07.2017, in 13 OA No.223/2017 which distinction between criminal proceeding and disciplinary proceeding is elaborately stated. Even the Hon'ble High Court has considered the aspect if the delinquent employee is acquitted by the Criminal Court what will its effect on the punishment imposed in a Disciplinary Proceeding. The following observations are noteworthy, which are reproduced here for ready reference :-
"It is well settled that the proceedings in criminal case and departmental proceedings operate in different fields. The standards of proof and evidence required in two proceedings are also different. The disciplinary proceedings are to weed out persons who are considered unworthy of being a part of the employer organization. The criminal proceedings are with an object to punish the offender. The law is well settled. Acquittal by a Criminal Court would not debar an employer from exercising disciplinary power in accordance with the Rules and Regulations in force. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be 14 OA No.223/2017 convicted by a Court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". Acquittal of the petitioner in the criminal case by the Special Court, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Bank. The charges against the petitioner were not casual in nature but were serious. The Disciplinary Authority has taken all these aspects into consideration and the findings of the Inquiry Officer are based on the evidence on record. The inquiry has been conducted in due observance of the principle of natural justice. In these circumstances, therefore there is no infirmity or perversity with the view taken by the Authorities (Para 16 and
17)."
14. In the present case, it is obvious that the applicant suffered conviction, although the appeal is admitted and the sentence is suspended, it does not mean that finding and order of conviction is stayed by the Hon'ble High Court. In such circumstances of the case, we are of the considered view that simply because the sentence imposed by the Special Court is suspended it only means that the applicant cannot be put behind bars till decision of the appeal. In view of this, it cannot be said that the 15 OA No.223/2017 impugned order is illegal, which has considered all the relevant aspects, while imposing the punishment of removal from service.
15. It is obvious from record that the applicant was well aware about initiation of the Departmental Proceeding against him and Criminal Prosecution too for the same charge of accepting gratification. In such circumstances of the case, he should have made request to the Disciplinary Authority to keep the enquiry in abeyance till decision of the Criminal Court. However, since no such request was made, the enquiry was completed and lesser punishment was imposed only on the ground that the complainant did not appear before the Enquiry Officer to support the charge. However, on the basis of other material produced on record, the applicant was found guilty of the charge and punishment of stoppage of increment was imposed. 16 OA No.223/2017
16. In the present case, since the Hon'ble High Court has simply suspended the sentence, without staying the order and finding of conviction, it is obvious that it is not open for the applicant to claim any relief at this stage. The only legally permissible course for him will be to wait for the decision of the Criminal Appeal and in case, he succeeds in securing acquittal from the charge, then he can again approach the Disciplinary Authority with a request to reinstate him with all benefits. The scope of the OA is limited and at present, no relief can be granted to the applicant.
17. In order to rebut the submission of the applicant that he was subjected to double jeopardy, the learned Advocate for the respondents placed reliance on the decision rendered by the CAT Bangalore Bench in K. Ganesh Vs. Department of Telecom, 2005 (1) SLJ 1 17 OA No.223/2017 CAT decided on 21.01.2004. In the aforesaid case, two interesting questions were raised as mentioned below :-
"1. Two interesting questions raised in the present application are:-
(i) whether the proceeding or action initiated / taken under Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 is in addition to the departmental proceedings for which procedure is prescribed under Rule 14/16 of the said Rules or alternate to it? (ii) Whether the respondents could be restrained from exercising power under Rule 19 of the CCS (CCA) Rules, on the plea that based on same incident the delinquent official had already suffered departmental action earlier in time and as such later conviction and sentence recorded in the criminal proceedings would not clothe the authorities to initiate further action under the aforesaid rule?
18. On scrutiny of records and considering the relevant provisions both the questions were answered against the applicant and the OA was dismissed. The said decision is binding on this Tribunal and no different view can be taken.
19. In the present case, at present, since the sentence imposed by the Special Court is suspended, it 18 OA No.223/2017 cannot strictly be said that the applicant is subjected to double jeopardy and his fate will depend on the decision of the pending Criminal Appeal.
20. Before concluding, it may be mentioned here that during the course of the arguments, the learned Advocate for the applicant submitted that the impugned order is hit by the provisions of Rule 14(i) of Railway Servants (Discipline and Appeal) Rules and the Disciplinary Authority should have desisted from passing the impugned order and in turn he should have waited till outcome of the pending criminal appeal in the Hon'ble High Court against the order of conviction. However, perusal of the said provisions nowhere indicates that when the order of conviction is challenged, the Disciplinary Authority is debarred from passing the order imposing major punishment. The only thing which is 19 OA No.223/2017 required to be observed by the Disciplinary Authority is to consider the nature of the charge for which the applicant is convicted. In present case, as stated earlier, the applicant was prosecuted for serious offence of accepting gratification and was caught red handed and on prosecution, he was convicted on merit by the Competent Criminal Court. This being so, although the Hon'ble High Court has suspended the sentence, we are of the considered view that there is no provision in the rules to indicate that the Disciplinary Authority is debarred from passing any order. The learned Advocate for the applicant failed to point out any decision on this point. We have also not come across any decision directly involving such situation. In such circumstance of the case, it cannot be said that the impugned order is illegal, improper or incorrect and it needs to be judicially reviewed by this Tribunal, so as to set 20 OA No.223/2017 aside the same. Alternate remedy is available to applicant to approach the Disciplinary Authority again on the decision in the pending Criminal Appeal and in case he succeeds in establishing his innocence. At present, no relief can be granted to the applicant.
21. The applicant will be at liberty to approach the Hon'ble High Court with a request for early hearing of his pending appeal so that further steps can be taken by him.
22. In the result, we do not find any merit in the present case. The OA, therefore, stands dismissed, however, without any order as to payment of costs.
(Dr. Nandita Chatterjee) (Arvind J. Rohee) Member (Administrative) Member (Judicial) kmg*