Central Administrative Tribunal - Chandigarh
Basant Singh S/O Shri Bachhiter Singh vs Bharat Sanchar Nigam Limited Through ... on 2 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO.145/PB of 2010
Chandigarh, this the 2nd day of December, 2010
CORAM: HONBLE MR. JUSTICE S.D.ANAND, MEMBER (J)
HONBLE SHRI KHUSHI RAM, MEMBER (A)
Basant Singh S/o Shri Bachhiter Singh, TTA (G)
Kotakpura
R/o Village Dhilawan Kalan,
Tehsil & District, Faridkot.
APPLICANT
BY ADVOCATE: MS. ALKA CHATRATH
VERSUS
1. Bharat Sanchar Nigam Limited through its Managing Director, WS & I Section, B-40, B Wing. Statesman House,
Barakhamba Road.
New Delhi.
2. Chief General Manager,
Punjab Telecom Circle
BSNL Office, Sector-34, Chandigarh.
3. General Manager (Telecom)
BSNL, Ferozpur.
RESPONDENTS
BY ADVOCATE: SHRI D.R.SHARMA
ORDER
HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
The core point for controversy, as is apparent from the conjunctive pleadings raised by the parties and also culled out from the presentation before this Bench, is as under.
2. The applicant herein (initially employed in the Department of Telecom (DOT) since 9.4.1984 and absorbed thereafter in the B.S.N.L. on 1.11.2004, was convicted in case FIR No.76, dated 13.9.2000 for an offence under Sections 148, 323, 324, 325 and 452, read with Section 149 IPC. He was ordered to be released on probation of good conduct, for a period of two years. The applicant did not appeal against it. The State also did not file an appeal against it. However, the complainant therein filed an appeal for enhancement of sentence. The learned Court of Sessions, vide order dated 1.8.2007, treated that appeal as a Revision and reversed the findings of acquittal (for offence U/s 148 IPC), convicted the applicant (and others too) for those offences as well and sentenced the applicant (and others too) to undergo rigorous imprisonment for a period of two years.
3. The applicant filed a representation against the order aforementioned, granted by the Court of Sessions, Faridkot. On 15.10.2007, the petition was admitted to hearing. The applicant, in apprehension of departmental action, pursuant to the filing of the objections, filed Criminal Misc. No.93603 of 2007 (in Criminal Revision No.1298 of 2007) to obtain stay on the operation of conviction. The learned Single Judge of the Punjab & Haryana High Court granted the following order thereon:-
The order of probation passed qua the petitioner vide judgment dated 7.7.2006 has been impugned in an appeal filed by the complainant (later on converted into revision). Vide order dated 1.8.2007, the petitioner has been sentenced by the Learned Additional Sessions Judge, Faridkot to undergo RI for two years under Section 325 read with Section 149 IPC and other offences. The petitioner is working as TTA (Telecom Technical Assistant), Kotkapura in BSNL and steps are being taken to penalize the petitioner on the basis of conviction vide Annexures A-1 and A-2. Orders passed by the General Manager, Telecom, Ferozepur have been placed on record.
In the peculiar circumstances of this case, no ground is made out to stay the sentence. The interim order is passed that conviction of the petitioner shall remain in operative during pendency of this petition.
4. On account of a typographical error in that order, the applicant filed another Criminal Misc. No.100962 of 2007, which was allowed by that very Bench on 19.12.2007 by grant of the following order:-
Heard.
Word no mentioned in the first line of second paragraph of order dated 11.12.2007 deserves to be deleted on account of the typographical error and the word stay in the second line of paragraph is ordered to be corrected as suspension of sentence. The second paragraph would now read as in the peculiar circumstances of this case, ground is made out for suspension of sentence. The interim order is passed that conviction shall remain inoperative during pendency of this petition.
5. The applicant herein made a representation to the department with the request that no departmental action may be taken against him in view of the fact that the finding of conviction recorded against him by the Court of Sessions, Faridkot had been stayed by the High Court. However, the Competent Authority (Respondent No.3 herein) proceeded to impose the penalty of removal from service upon the applicant. No enquiry preceded the impugned order.
6. The applicant impugns the validity of the order aforementioned.
7. The respondents asserted the correctness of the impugned imposition by averring that no inquiry is required to be held when punishment is based on the basis of conviction. Qua the averment made by the applicant herein that the points raised by him in the course of the representation had not been considered by the Competent Authority, it was averred by the respondents that all factors mentioned in the representation made by the applicant have been considered by the competent authority and it was found after due diligence that the applicant is not entitled to any relief.
8. The learned counsel appearing on behalf of the applicant argued at the very outset that the impugned order suffers from the patent vice of non-application of mind by the Competent Authority to the averments made by the applicant in the course of the representation (Annexure A-5). In support of the averment advocated, the learned counsel relied upon the decision in the case of KAUR SINGH & ANOTHER VS. PUNJAB STATE ELECTRICITY BOARD & OTHERS, reported as 2007(4) SCT 426.
9. The learned counsel, appearing on behalf of the respondents, resisted the plea aforementioned and argued that there is a precise observation made by the Competent Authority in the course of the impugned order that the representation made by the applicant had been considered.
10. The fate of the contrary stances aforementioned shall, thus, turn upon the finding about whether the Competent Authority had, in granting the impugned order, duly considered the points raised by the applicant in the course of the representation or not.
11. For enabling proper appreciation of the controversy, we would like to reproduce hereunder the contents of the order, Annexure A-10.
Whereas, Shri Basan Singh TTA (G) Kotakpur under DET Kotakpura has been convicted on criminal charges under section 148,452,325/149,324/149 I.P.C. vide judgment of Honble Additional Session Judge, Faridkot dated 01/08/2007 & awarded sentence as under:
To undergo Rigorous imprisonment & Fine. Both the substantive sentences of imprisonment are ordered to run concurrently, as per details below:
Name of Convict/S Offence Sentence Fine In default Basant Singh 148 IPC RI for 6 Months
-
-
Basant Singh 452 IPC RI for 2 years Rs.500/-
RI for one Month Basant Singh 325/149 IPC RI for 2 years Rs.500/-
RI for one Month Basant Singh 324/149 IPC RI for 6 Months
-
Basant Singh 323/149 IPC RI for 3 Months
-
And whereas the undersigned proposes to award as appropriate penalty under rule-40 of BSNL CDA Rules-2006 on ground of conduct which has led to his conviction on account of gravity of criminal charges.
AND WHEREAS it is considered that the conduct of the said Shri Basant Singh, TTA (G) Kotakpura which was led to this conviction is such as to render his further retention in public service undesirable in view of the gravity of charges.
AND WHEREAS Shri Basant Singh TTA (G) Kotakpura was given an opportunity to explain the circumstances why penal action should not be taken against him in pursuance of provisions of Rule-40 of BSNL (CDA) Rules-2006 vide memo No.Con/Disc/Basant Singh/TTA/05 dated 07/09/2007 & the same was delivered to Shri Basant Singh, TTA on dated 12/09/2007.
AND WHEREAS Shri Basant Singh, TTA (G) Kotakpura has submitted his representation though DET KKP on dated 12/11/2007 against the aforesaid show cause notice, which has been considered by the undersigned.
This case has been ratified by the Ministry of Communication & IT, Department of Telecommunication, New Delhi vide no.01-09/09-Vig.III dated 04/05/2009.
Now, Therefore, in exercise of the powers conferred upon the by Rule-40 of BSNL (CDA) Rules-2006. I.G.S. Gill, GMT Ferozepur hereby impose penalty of Removal from Service with immediate effect on Shri Basant Singh, TTA (G) Kotakpura.
The receipt of this order shall be acknowledged by Shri Basant Singh, TTA (G) Kotakpura.
12. The exact connotation of consideration came up before the Constitution Bench of seven Honble Judges of the Apex Court in the case titled: THE DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY AND ANOTHER VS. T.R. CHELLAPPAN, (1976) 3 SCC 190. The relevant observations made by the Bench, in the course thereof, are reproduced hereunder:-
4 Proviso (a) to Article 311 (2), however, completely dispenses with all the three stages of departmental enquiry when an employee is convicted on a criminal charge. The reason for the proviso is that in a criminal trial the employee has already had a full and complete opportunity to contest the allegations against him and to make out his defence . The word consider has been used in contradiction to the word determine. The rule making authority deliberately used the word consider and not determine because the word determine has a much wider scope. The word consider merely connotes that there should be active application of the mind by the disciplinary authority after consider the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employees on his conviction on a criminal charge. This matter can be objectively determined only if the delinquent employee is head and is given a chance to satisfy the authority regarding the final orders that may be passed by the said authority. In other words, the term consider postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person. Such an inquiry would be a summary inquiry to be held by the disciplinary authority after hearing the delinquent employee. It is not at all necessary for the disciplinary authority to order a fresh departmental inquiry which is dispensed with under Rule 14 of the Rules of 1968 which incorporates the principle contained in Article 311 (2) proviso (a) The provision confers power on the disciplinary authority to decide whether in the facts and circumstances of a particular case what penalty, if at all, should be imposed on the delinquent employee. It is obvious that in considering this matter the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features if any present in the case and so on and so forth. It may be that the conviction of an accused may be for a trivial offence as in the case of the respondent T.R. Chellappan in Civil Appeal No. 1664 of 1974 where a stern warning or a fine would have been sufficient to meet the exigencies of service. It is possible that the delinquent employee may be found guilty of some technical offence, for instance, violation of the transport rules or the rules under the Motor Vehicles Act and so on, where no major penalty may be attracted. It is difficult to lay down any hard and fast rules as to the factors which the disciplinary authority would have to consider, but have mentioned some of those factors by way of instances which are merely illustrative and not exhaustive. In other words, the position is that the conviction of the delinquent employee would be taken as sufficient proof of misconduct and then the authority will have to embark upon a summary inquiry as to the nature and extent of the penalty to be imposed on the delinquent employee and in the course of the inquiry if the authority is of the opinion that the offence is too trivial or of a technical nature it may refuse to impose any penalty in spite of the conviction.
13. The above view of the Apex Court was followed by the Punjab & Haryana High Court in the case of KULWANT SINGH VS. THE DEPUTY DISTRICT PRIMARY EDUCATION OFFICER, GURDASPUR: 1997(1) SCT 282 and KAUR SINGHs case (supra). In Kaur Singhs case, the Division Bench of Punjab & Haryana High Court made the following observations:
3. A perusal of the impugned order does not reveal that the conduct of the petitioner, which has led to his conviction has been considered and is found to be of such a serious magnitude it warrants his dismissal from service. It is well settled that conviction alone cannot constitute the basis of a dismissal order of an employee unless the competent authority has considered the conduct of the employee, which has led to his conviction. In this regard, reliance may be placed on Constitutional Bench Judgment of Honble the Supreme Court in the case of Union of India v. Tulsi Ram Patel, 1985(2) SLR 576. The observations made in paragraph 127 of the judgment, which are relevant to the issue reads as under:
To recapitulate briefly, where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of penalty and, if so, what the penalty should be. For the purpose it will have to peruse the judgment of the Criminal Court and consider all the facts and circumstances of the case and the various factors set out in Challapans case. This, however, has to be done by it ex-parte and by itself. Once the disciplinary authority reaches the conclusion that the government servants conduct was such as to require his dismissal or removal from service or reduction in rank, he must decide whish of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of concerned government servant.
14. Annexure A-5 is a copy of the representation, which the applicant had filed before the Competent Authority. He had averred in the course thereof that he may not be proceeded against departmentally in view of the fact that the finding of conviction itself had been suspended by the Punjab & Haryana High Court. He also raised a point therein that the Competent Authority may take note of the fact that he had been convicted in terms of the provisions of Section 149 IPC only for the vicarious liability.
15. The learned counsel for the applicant stated at the bar that the only role attributed to the applicant herein by the prosecution (in the aforementioned case) was that he had raised a lalkara. Otherwise, it is apparent from a perusal of Annexure A-1, a copy of judgment dated 7.7.2006 recorded by the learned Judicial Magistrate Ist Class, Faridkot that it was only Tarsem Singh who was convicted for the offence under Section 324 IPC; while the applicant herein and some others were convicted for that offence with the aid of Section 149 IPC. The applicant was convicted for the substantive offence under Section 323 IPC. The learned counsel for the applicant is, thus, correct to the extent that the applicant herein had been convicted for the substantive offence under Section 323 IPC and for the offence under Section 324 IPC, he was convicted by resort to the principle of vicarious liability. All these points were not noticed by the Competent Authority while granting the impugned order.
16. It is neither here nor there that the learned counsel for respondents argued that the Competent Authority, by noticing the fact of representation, would be deemed to have considered whatever had been averred in the course thereof.
17. There is plethora of law on the point that an administrative order of this category must announce the reasons which persuaded the Competent Authority to grant the impugned order. The order must announce the proposed action, the nature of resistance offered to the grant thereof and the order of the Competent Authority. In other words the order must announce to the employee what exactly weighed with the Competent Authority which (competent authority) must notice the plea (good, bad or indifferent) raised in the course of the representation and, then, say whether it agrees therewith or not. Merely quoting the fact of representation and grant of an opportunity of hearing would not be in accord with the law laid down by the Apex Court in interpreting the connotation of consideration by the Apex Court in the case of THE DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY AND ANOTHER VS. T.R. CHELLAPPAN (supra).
18. We, thus, have no reservation in holding that the impugned order deserves to be invalidated and we order accordingly.
19. To be fair to the learned counsel for the parties, we may indicate that the learned counsel cited a number of judicial pronouncements for and against, about the circumstances and the stage at which the Disciplinary Authority can resort to the provisions of Article 311 of the Constitution of India. However, in view of the fact that we find that the impugned order deserves to be invalidated in view of the law laid down by the Apex Court in T.R. CHELLAPPANs case, we do not propose to deal with those judicial pronouncements.
20. The O.A. shall stand allowed accordingly. The impugned order shall stand quashed and set aside. The Competent Authority shall, however, be entitled to proceed afresh in the matter and grant an order in accord with the law laid down by the Apex Court in T.R. CHELLAPPANs case and also the observations made by this Tribunal in the course of this order. The exercise be completed within one month from today. However, in view of the fact that consideration of the matter afresh has been granted by us on a legal point and it has been made by a time-bound affair, it is ordered that the applicant need not be reinstated till the conclusion of the exercise.
21. There shall be no order as to the costs of the cause in the facts and circumstances of this case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: December 2 , 2010 `bss 13 (O.A. No.145/PB/2010)