Central Administrative Tribunal - Ernakulam
George I S vs D/O Revenue on 23 August, 2023
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Central Administrative Tribunal
Ernakulam Bench
O.A No.180/00548/2017
Wednesday, this the 23rd day of August, 2023
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr.K.V.Eapen, Administrative Member
I.S. George, aged 62 years,
S/o Sandhyavu, Residing at
Irumpanath House, Ochanthuruthu P.O.
Pin:682 508
(Retired Havildar of Central Excise Customs
and Service Tax Department, Ernakulam II Division) - Applicant
(By Advocate: Mr. Babu Cherukara)
Versus
1. Union of India,
Represented by the Secretary,
Central Board of Excise and Customs,
Department of Revenue,
Ministry of Finance,
New Delhi- Pin-110 010
2. Commissioner,
Central Excise, Customs & Service Tax,
I.S. Press Road,
Cochin-682 018.
3. Joint Commissioner,
Central Excise, Customs & Service Tax,
I.S. Press Road,
Cochin-682 018.
4. Additional Commissioner,
Central Excise, Customs & Service Tax,
I.S. Press Road,
Cochin-682 018 - Respondents
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(By Advocate : Mr. K.C. Muraleedharan, ACGSC)
The O.A having been heard on 23rd August, 2023, this Tribunal on the
same day passed the following :
O R D E R (ORAL)
Justice Sunil Thomas, Judicial Member The applicant while working as Havildar in the Central Excise Customs and Service Tax Department at Cochin was placed under suspension on 19.11.2004, consequent to his involvement in a Criminal Case No. 779/2002 of the First Class magistrate Court-I Kochi for offences punishable under Sections 323, 448, 427 and 506(1) read with Section 34 of the Indian Penal Code, 1860. The appeal challenging the conviction was allowed in part by affirming the conviction, but setting aside the sentence imposed on the petitioners and the co- accused and directed them to be released under Section 3 of the Probation of Offenders Act, after due admonition under Section 5 of the said Act. One of the co-accused was his brother.
2. While so, the applicant retired on 30.9.2014. It emerges that the applicant had approached this Tribunal by filing O.A No.636/2015 and 909/2014 seeking to treat the period of suspension as duty and also seeking pensionary benefits. By a common order in the above, which is produced as Annexure R-1, it was noted that a Revision was pending before the Hon'ble High Court as Criminal 3 Revision Petition No.665/05, at the instance of the applicant and the co- accused. It was observed in Annexure R1 that in the event of the applicant obtaining a favourable order from the High Court, he will be at liberty to approach this Tribunal again seeking the relief, if so advised. It seems that however without waiting for the appropriate orders being passed in the Revision, the applicant has approached this Tribunal seeking the same relief as sought in the earlier Original Application by filing this Original Application.
3. Though we are in agreement with the contention of the learned ACGSC that the instant O.A was hit by res-judicata at the time of inception, we are not inclined to reject the Original Application on that premise, in the light of the order of High Court in Criminal Revision Petition No.665/05 passed pending this O.A, on 9th August 2023. The second revision petitioner is stated to be applicant herein, though referred by his another name. By the above order, the High Court has taken note of removal of disqualification consequent to conviction, on invoking Section 3 of the Probation of Offenders Act. The High Court has also observed that by virtue of Section 12 of the Probation of Offenders Act, 1958, disqualification attached to a conviction in a criminal case is removed, on release of accused invoking the provision of Probation of Offenders Act.
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4. It is also seen that when the applicant had approached the Competent Authority seeking the relief sought, by Annexure A-1 order dated 6.2.2017, it was informed that since the Criminal Revision Petition No.665/05 was pending before the High Court and no final order has been passed, his request cannot be considered at that stage. He was directed to intimate further progress made in the Criminal Revision Petition No.665/05 with a copy of the final judgment for record.
5. Having taken note of the observation of this Tribunal in Annexure R-1 while disposing the Original Applications as well as the direction contained in Annexure A-1, we feel that the option available to us is to direct the competent authority among respondents to consider the request made by the applicant in the light of the order in Criminal Revision Petition No.665/05, specifically the observation contained therein with reference to Section 12 of the Probation of Offenders Act, as to the removal of disqualification attached to a conviction and that stigma attached to the conviction stands removed by virtue of invoking of Section 12 of the Probation of Offenders Act, 1958 and the identical observation made by this Tribunal in Annexure A-13 Order, in an identical O.A filed by the brother of the applicant, who was a co-accused. Appropriate orders shall be passed in the light of the observations made above, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this order. 5
6. The Original Application is disposed of as above. No costs.
(Dated this the 23rd day of August, 2023)
K.V. Eapen Justice Sunil Thomas
Administrative Member Judicial Member
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List of Annexures
Annexure A1- True copy of the order C.No.II/10B/02/2004
Vig.C.X.Chn./191/17 dated 06.02.2017
Annexure A2- True copy of the judgement in Crl. Appeal No.1093/2004 of
the Addl.Sessions Judge (Adhoc-I) Ernakulam on 28.02.2005 Annexure A3- True copy of the order O.A.No.694/2010 of this Tribunal dated 18.11.2010 Annexure A4- True copy of the order C.No.II/10B/2/2004 Vig.Cx/68/11 dated 27.01.2011 by the 4th Respondent Annexure A5- True copy of the order No.43/2011 dated 28.04.2011 passed by the 3rd respondent Annexure A6- True copy of the order C.No.II/10A/02/2014 Vig.Cx.Chn.
dated 30.09.2014 Annexure A7- True copy of the explanation dated 06.10.2014 by the applicant to the 2nd respondent Annexure A8- True copy of the order in O.A. No.909 of 2014 of this Tribunal dated 29.06.2015 Annexure A9- True copy of the order C.No.11/10B/2/2004 Vig.Cx/1472/15 dated 23.07.2015 Annexure A10- True copy of the common order in O.A.No.636/2015 & O.A.No.909/2014 dated 28.12.2015 of this Tribunal Annexure A11- True copy of the order in Crl.M.A.No.3405/2005 in Crl.R.P.No.665/2005 of the Hon'ble High Court of Kerala dated 14.03.2005 Annexure A12- True copy of the order in M.A.No.870/2016 dated 5.08.2016 of this Tribunal Annexure A13- True copy of the order in R.P.No.26/2016 in O.A.No.636/2015 dated 25.08.2016 of this Tribunal Annexure A14- True copy of the representation dated 03.09.2016 by the applicant to the Commissioner & Addl. Commissioner *** Annexure R1: True copy of the judgement dated 28.12.2015 passed by the CAT, EKM Bench in OA No.180/00636/2015 & 180/00909/2014 ****