Central Administrative Tribunal - Bangalore
D. Mariswamy Gowda vs Regional Provident Fund Commissioner ... on 28 March, 2003
Equivalent citations: 2004(3)SLJ88(CAT)
ORDER Mukesh Kumar Gupta, Member (J)
1. The applicant, UDC in the office of first respondent, has filed the present application under Section 19 of the Administrative Tribunals Act, 1985, and seeks quashing of orders dated 30.3.2001 (Annexure A-2) passed by first respondent, which on an appeal has been upheld vide order dated 18.1.2002 (Annexure A-4) passed by second respondent. He has prayed for the following reliefs :
"(a) call for the records relating to the issue of the order bearing (i) No. KN/ BN/PF/VIG/915/2001 dated 30.3.2001 passed by the Regional Provident Fund Commissioner-I Employees Provident Fund Organisation, Regional Office--Karnataka (Annexure A2) and (ii) No. HRM-III/20(1)02/KN/ 17328 dated 18.1.2002 passed by the Additional Provident Fund Commissioner (HR) and Appellate Authority, Employees Provident Fund Organisation (Annexure A4), peruse the same,
(b) grant opportunity of hearing and quash/set aside the orders at Annexures A2 and A4;
(c) consequently direct the respondents to reinstate the applicant to duty and extend all consequential benefits, including arrears of salary and other benefits from the date of dismissal till the date of reinstatement; and
(d). issue such other orders, directions as deemed fit under the circumstances of the case in the ends of justice, including awarding of costs."
2. Admitted facts of the case are that on a complaint lodged by Smt. Saraswathi a criminal case toeing Grime No. 304/93 was registered against the applicant in Madiwala Police Station, Bangalore, for an offence punishable under Sections 376 and 506 of Indian Penal Code. Learned Addl. City Civil and Sessions Judge, Bangalore, vide order dated 30.9.2000 in Criminal Case No. 258/94 convicted the applicant and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000 in default suffer simple imprisonment for six months. The applicant filed a criminal appeal No. 1208/00 before High Court of Karnataka which vide order dated 18.10.2000 suspended the sentence imposed upon the applicant and ordered to release him on bail. The first respondent taking into account the gravity of the criminal charges and conviction imposed, issued a show cause notice dated 18.12.2000 under the provisions of Rule 15 of Employees Provident Fund Staff (Classification, Control and Appeal) Rules, 1971 and proposed to impose a penalty of dismissal from service. The applicant submitted his reply dated 4.1.2001 and contended that since the High Court has stayed the sentence imposed upon him, no action can be taken against him pending criminal appeal before the High Court. After considering the order passed by the learned Additional City Civil and Sessions Judge, Bangalore, dated 30.9.2000, show cause notice dated 18.12.2000 as well as the applicant's reply dated 4.1.2001, the first respondent passed an order dated 30.3.2001 and imposed the penalty of dismissal from service. The applicant thereafter filed a statutory appeal dated 16.7.2001 (Annexure A-3) before the second respondent, who after considering the matter in detail rejected the said appeal and confirmed the penalty vide order dated 18.1.2002 (Annexure A-4). It would be relevant at this stage to reproduce the order dated 30.9.2000 passed by learned Additional City Civil and Sessions Judge, Bangalore, which reads as follows:
"The accused is convicted of the offence punishable under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ten thousand rupees, in default to suffer simple imprisonment for six months.
Out of the fine amount of Rs. 10,000 paid by the accused, the sum of Rs. 8,000 shall be paid to the complainant as compensation.
The accused is convicted of the offence punishable under Section 506 of the Indian Penal Code and he is sentenced to undergo Rigorous Imprisonment for one year.
The substantive sentences of imprisonment shall run concurrently."
The order passed by the High Court in the aforementioned criminal appeal dated 18.10.2000 reads as under:
"Heard. Admit. The sentence imposed on the appellant shall stand suspended and the appellant is directed to be released on bail on his executing a self-bond for Rs. 25,000 with the surety for the like sum to the satisfaction of the learned Trial Judge."
The Appellate Authority i.e. second respondent herein considered the applicant's appeal in detail and observed as under:
"6. The Hon'ble High Court has only suspended the sentence and not stayed conviction as claimed by the petitioner. This only indicates that conviction stands but sentence is suspended. In terms of Department of Personnel O.M. No. 371/23/92-AVD.III, dated 4.3.1994 it was clarified that unless the order of conviction is set aside or reversed by the Competent Court, conviction shall remain in force and departmental action could be taken against based on the charges established. In the case of Om Prakash Narayan v. Union of India and Ors. 1990(12) ATC 365 Full Bench of CAT held that during pendency of appeal in a criminal case only a sentence is suspended and not the conviction itself. In the case of Dy. Director of Collegiate Education Admn. v. S. Nagur Meera, AIR 1995 SC 1364 it was held that departmental action to wait till the appeal revision and other remedies are over would not be advisable since it would mean continuity in service of a person who has been convicted of a serious offence by the Criminal Court. Offence Committee by the petitioner in this case is of grave in nature. In this case it is seen that conviction has not been stayed but the Hon'ble High Court has only suspended the sentence, hence there is nothing wrong in initiating disciplinary action. The Disciplinary Authority has already issued a show cause notice to the petitioner to have his say in the matter. Imposition of a penalty after considering the representation dated 16.7.2001 is in order. The contention of the petitioner that conviction is stayed, is not correct. Offence relates to the offence of rape, which is surely a heinous crime, and punishment awarded is in commensurate wit the conviction upheld.
7. In view of the above, there is no merit in the appeal, as such there is no justification in interfering with the orders of the Disciplinary Authority."
3. In the present O.A. filed by the applicant, the applicant is seeking quashing of the orders dated 30.3.2001 and 18.1.2002 on the ground that the impugned penalty is arbitrary, whimsical and shockingly disproportionate to the charges. It is contended that once an appeal against the sentence passed by the learned Addl. City Civil and Sessions Judge, Bangalore, is pending before the High Court, whereby the sentence so imposed upon the applicant is stayed, the impugned penalty of dismissal is unwarranted and is violative of Articles 14 and 21 of the Constitution. The applicant has also alleged that he had not been provided any opportunity of hearing before passing the said orders. It is further contended that once the High Court of Karnataka in the Criminal Appeal No. 1208/2000 has stayed the sentence so imposed by the learned Additional City Civil and Sessions Judge, the respondents have no authority to impose major punishment of dismissal from service for the alleged misconduct without conducting the enquiry.
4. We have considered the contention raised by the applicant carefully and perused the pleadings. Rule 15 of the Employees Provident Fund Staff (Classification, Control and Appeal) Rules, 1971, is pari materia to Rule 19 of the CCS (Conduct) Rules as well as Rule 14 of the Railway Servants (Discipline and Appeal) Rules. In Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416=1985(2) SLJ 145 (SC), the Hon'ble Supreme Court has held as under:
"117. It will be noticed that the language of Rule 19 of the Civil Services Rules is identical with that of Rule 14 of the Railway Servants Rules and the interpretation of Rule 19 of the Civil Services Rules would be the same as that placed by us upon Rule 14 of the Railway Servants Rules."
Rule 14 of the said Rules reads as under:
"14. Special procedure in certain cases:
Notwithstanding anything contained in Rules 9 to 13:
(i) where any penalty is imposed on a Railway servant on the ground of conduct which had led to his conviction on a criminal charge; or
(ii) where the Disciplinary Authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or
(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules;
The Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit;
Provided that the Railway servant may be given an opportunity of making representation on the penalty proposed to be imposed before only an order is made in a case falling under Clause (i).
Provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule."
(Emphasis supplied) Mere suspension of sentence by the High Court on an appeal does not wipe out the factum of conviction. What has been stayed by the High Court in the present case is the sentence of rigorous imprisonment. In our respectful view the sentence so imposed upon the applicant alone has been suspended and not conviction.
5. The contention raised by the learned Counsel for the applicant that once a sentence is suspended and/or the accused is released on bail, there is no final order of the Criminal Court, does not hold the field for the reason that the Hon'ble Supreme Court in Deputy Director of Collegiate Education (Admn.) Madras v. S. Nagoor Meera, (1995) 3 SCC 377=1995(2) SLJ 89 (SC) in the context of second proviso to Article 311(2) of the Constitution, which is in pari materia with Rule 15 of the EPF Staff (CCA) Rules held that: "this clause, it is relevant to notice, speaks of 'conduct which led to his conviction on a criminal charge'. It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative." (Emphasis supplied). After considering the judgment in the case Rama Narang v. Ramesh Narang, (1995) 2 SCC 513, the Hon'ble Supreme Court held that: "We are, therefore, of the opinion, that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a Government servant who has been convicted by a Criminal Court is not barred merely because the sentence or order is suspended by the Appellate Court or on the ground that the said Government servant accused has been released on bail pending the appeal." (Emphasis supplied).
6. In Paragraphs 9 and 10 the Hon'ble Supreme Court further held as under:
"......It should be remembered that the action under Clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this Court in Shankar Das v. Union of India (1985) 2 SCC 358:
'Clause (a) of the second proviso to Article 311(2) of the Constitution, confers on the Government the power to dismiss a person from service 'on the ground of conduct which has led to his conviction on a criminal charge'. But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution docs not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since Clause (a) of the second proviso to Article 311 (2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly." .
10. What is really relevant thus is the conduct of the Government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a Criminal Court. Until the said conviction is set aside by the appellate or other higher Court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice."
(Emphasis supplied) The aforementioned law so laid down by the Hon'ble Supreme Court squarely applies to the facts of the present case. The contention raised by the applicant are not tenable. The applicant was afforded opportunity of hearing vide show cause notice dated 18.12.2000. There is no illegality or arbitrariness in passing the order of dismissal dated 30.3.2001. The Hon'ble Supreme Court in the aforementioned case of 5. Nagoor Meera has specifically held that if the said conviction is set aside by the appellate or other higher Court, the matter can always be reviewed in such manner that the delinquent official suffers no prejudice. The appellate order dated 18.1.2002, as extracted hereinabove, is a detailed and speaking and well reasoned order. In our considered view having regard to the aforesaid law laid down by the Hon'ble Supreme Court in Tulsiram Patelas well as S. Nagoor Meera (supra) cases there is no illegality, arbitrariness or infirmity in the orders dated 30.3.2001 as well as 18.1.2002.
7. In view of the findings recorded hereinabove the present O.A. is dismissed under the provisions of the Section 19(3) of the A.T. Act at the stage of admission itself. No costs.