Central Administrative Tribunal - Lucknow
Sarvesh Kumar Singh vs Union Of India on 4 December, 2024
CAT, Lucknow Bench OA No. 332/00260 of 2014 Sarvesh Kumar Singh Vs. U.O.I.& Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.332/00260/2014
Dated this,4th day of December, 2014
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Sarvesh Kumar Singh, aged about 50 years, S/o Sri Vijay Bahadur
Singh, R/o Village & Post Naipur, District Gonda.
.....Applicant
By Advocate: Shri Sarvesh Tiwari
VERSUS
1. Union of India, Ministry of Communication and Information
Technology of Telecommunication, Sanchar Bhawan, New Delhi
through its Secretary.
2. Bharat Sanchar Nigam Limited through its Chairman-cum-
Managing Director, BSNL Corporate Office, Ground Floor, Eastern
Court, Janpath, New Delhi.
3. The Senior General Manager (MWO-CFA) U.P. (E) Telecom Circle,
Lucknow.
4. Telecom District Manager, Gonda.
.
.....Respondents
By Advocate: Shri Balendu Bhushan Tripathi
ORDER (ORAL)
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case relating to removal from service, the applicant has sought the following reliefs:
"(a) Issue an order or direction quashing the order dated 29.8.2013, contained in Annexure No. 1 passed by the appellate authority rejecting the appeal of the applicant, order dated 29.09.2012, contained in Annexure No. 2, passed by the Telecom District Manage, Gonda removal of the applicant from service, order dated 3.8.2012, contained in Annexure No.3, issued Government of India with reference to letter of opposite party No. 2, order dated 14.08.2012, contained in Annexure Page 1 of 7 CAT, Lucknow Bench OA No. 332/00260 of 2014 Sarvesh Kumar Singh Vs. U.O.I.& Ors.
No. 4, passed by Chief Vigilance Officer and order dated 27.08.2012, contained in Annexure No. 5, passed by Vigilance Officer with all benefits of service.
(b) Issue an order or direction commanding the respondents to reinstate the applicant in service with all service benefits without reference to the orders, impugned in the Application.
(c) Issue such other order/direction which may be deemed just and proper in the circumstances of the case.
(d) Allow the Original Application with exemplary cost against the respondents in view of the facts and circumstances, legal provisions and grounds raised in the Application."
2.1 The facts of the case are that the applicant, while working under the respondents, was arrested on 20.10.2009 in connection with crime case no. 85 of 1990 under sections 304-B and 498-A of IPC and was placed under suspension. He was convicted by the trial court (Additional Sessions Judge, Gonda) and sentenced to 2 years rigorous imprisonment under section 498-A and 10 years rigorous imprisonment under section 304-B to run concurrently vide judgment and order dated 20.10.2009 in Sessions Trial Case No. 406 of 1990. The applicant filed criminal appeal no. 2991 of 2009 before Hon'ble High Court and was granted bail vide order dated 31.05.2011.
2.2 Following the applicant's conviction, he was proceeded against by the respondents under rule 40(a) read with rule 59 of the Bharat Sanchar Nigam Limited (Conduct, Discipline & Appeal) Rules, 2006 (the Rules, hereafter) and removed from service with effect from 20.10.2009 vide order dated 29.09.2012. In the meantime, the applicant approached this Tribunal in OA No. 309 of 2012 against his suspension and the penalty proposed to be imposed on him by the respondents which was disposed of finally directing the respondents to ensure compliance of interim order dated 14.08.2012 for payment of subsistence allowance to the applicant. Following his removal from service vide order dated 29.09.2012, the applicant again approached this Tribunal in OA No. 33 of 2013 which was permitted to be withdrawn with liberty to the applicant to appeal against the impugned order to the appellate Page 2 of 7 CAT, Lucknow Bench OA No. 332/00260 of 2014 Sarvesh Kumar Singh Vs. U.O.I.& Ors. authority. The applicant's appeal dated 05.02.2013 was decided vide order dated 29.08.2013 modifying the date of removal from 20.10.2009 to 29.09.2012. Aggrieved, the applicant has preferred this OA.
3. The applicant contends that the disciplinary authority and the appellate authority have not considered the role and conduct of the applicant which led to his conviction and that he was not afforded the opportunity of personal hearing.
4. The respondents, on the other hand, state that the action taken against the applicant is as per rules and the impugned orders have been passed after due application of mind.
5. We have heard both the parties. In the written submission dated 23.04.2024, learned counsel for the applicant relied on Jaswant Singh vs State of Punjab (1991) 1 SCC 362, Reena Rani vs State of Haryana (2012) 10 SCC 215, Risal Singh vs State of Haryana (2014) 13 SCC 244 et al. 6.1 We begin with rule 40(a) and rule 59 of the extant Rules under which the applicant has been penalized by the respondents. These rules read as follows:
"Rule 40. SPECIAL PROCEDURE IN CERTAIN CASES Notwithstanding anything contained in Rule 35 or 36 or 37, the Disciplinary Authority may impose any of the penalties specified in Rule 33 in any of the following circumstances:
(a) the employee has been convicted on a criminal charge or on the strength of facts or conclusions arrived by a judicial trial ; or....
.....
Rule 59. INTERPRETATION In case of any doubt in application of BSNL CDA Rules 2006, the relevant G.O.I. Decisions / Instructions in Model CDA guidelines issued by the DPE, Fundamental Rules / Supplementary Rules, Central Civil Service (Conduct) Rules 1964, and Central Civil Services (Classified, Control and Appeal) Rules, 1965 as amended/modified from time to time shall be referred to, so long as these are not in contradiction with BSNL CDA Rules 2006 as amended time to time. If any question arises Page 3 of 7 CAT, Lucknow Bench OA No. 332/00260 of 2014 Sarvesh Kumar Singh Vs. U.O.I.& Ors. relating to the Interpretation of BSNL CDA rules, it shall be referred to the BSNL Board whose decision thereon shall be final."
(emphasis supplied) The implication of rule 40(a) is that following conviction in a crime or on the strength of facts and conclusion arrived at in a judicial trial, BSNL's employee can be punished with any of the penalties specified in rule 33 without following the procedure for imposing minor penalty (rule 35) and major penalty (rule 36), including the enquiry (rule 37). 6.2 We are conscious of the fact that the Government, as a matter of policy, takes a very serious view of offences against women, including the conduct of Government servants involved in a case of "dowry death" as defined in section 304-B of IPC [DoPT OM No. 11012/8/87-Ests.(A) dated 22.06.1987]. It is noted that rule 13-A has been inserted in the Central Civil Services (Conduct) Rules, 1964 which reads as follows:
"13-A Dowry No Government servant shall -
(i) give or take or abet the giving or taking of dowry; or
(ii) demand directly or indirectly, from the parent or guardian of a bride or bridegroom, as the case may be, any dowry.
Explanation:- For the purposes of this rule, 'dowry' has the same meaning as in the Dowry Prohibition Act, 1961 (28 of 1961)."
(emphasis supplied) The CCS (Conduct) Rules, 1964 and CCS (CCA) Rules, 1965 have been taken cognizance of in rule 59 of the BSNL (CDA) Rules quoted in paragraph 6.1 above.
6.3 Turning to the case law cited by learned counsel for the applicant, it is observed that Jaswant Singh (supra), Reena Rani (supra), and Risal Singh (supra) were cases which were not based on conviction for a crime and which dealt with the validity of dispensing with the departmental enquiry against the appellants therein under clause (b) of the proviso to Article 311(2) of the Constitution. These cases are distinguishable from the case at hand which is based on the Page 4 of 7 CAT, Lucknow Bench OA No. 332/00260 of 2014 Sarvesh Kumar Singh Vs. U.O.I.& Ors. procedure to be followed in case of conviction in a criminal case. The relevant case, to our understanding, is Union of India & Anr vs Tulsi Ram Patel & Ors 1985 AIR 1416 which dealt with the issue of punishment following conviction under clause (a) of the proviso to Article 311(2) in the following terms:
"The Second Proviso - Clause (a) Not much remains to be said about clause (a) of the second proviso to Article 311(2). 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 a penalty and, if so, what that penalty should be. For that 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 Challappan's case. This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which 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 the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India and another, [1985] 2 S.C.C. 358, this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the Court should always order reinstatement. The Court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case."
(emphasis supplied) 6.4 Reverting to the case at hand, it is noted that the disciplinary authority, vide memorandum dated 28.11.2011, afforded an opportunity Page 5 of 7 CAT, Lucknow Bench OA No. 332/00260 of 2014 Sarvesh Kumar Singh Vs. U.O.I.& Ors. to the applicant to submit his written explanation, and imposed the penalty of removal from service vide order dated 29.09.2012 after considering the applicant's written explanation dated 26.12.2012. It is further noted that in his appeal dated 05.02.2013, the applicant prayed that order dated 29.09.2012 removing him from service may be kept in abeyance till the decision in the Criminal Appeal No. 2991/2009 pending before Hon'ble High Court, but he made no request for a personal hearing in his appeal dated 05.02.2013. The appellate authority, observing that the disciplinary authority had passed the order for applicant's removal of service with retrospective effect (i.e. from 20.10.2009), modified the effective date from of penalty as 29.09.2012 (i.e. date of imposition of penalty by the disciplinary authority). It is observed that in the orders passed by the disciplinary authority and the appellate authority mention is made of the applicant's conviction under section 498-A and 304-B of IPC with the observation that the conduct of the applicant which led to his conviction was such as to render his further continuation in the public service undesirable. 6.5 A perusal of the judgment and order dated 20.10.2009 passed by the Trial Court shows that the applicant was convicted for the death of his wife due to burn injuries under section 304-B (dowry death). He was also convicted under section 498-A (inter alia subjecting wife to cruelty) with the finding that he had demanded motorcycle and VCR from his in- laws. Three other members of his family were also convicted. 6.6 Keeping in view the relevant rules, the legal position and the facts and circumstances of the applicant's casediscussed above, we are of the opinion that this is not a case deserving interference by this Tribunal. 7.1 In view of the foregoing, the applicant is not entitled to the reliefs prayed for. This OA is dismissed, accordingly.
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CAT, Lucknow Bench OA No. 332/00260 of 2014 Sarvesh Kumar Singh Vs. U.O.I.& Ors. 7.2 Pending MAs, if any, are also disposed of.
7.3 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
Vidya Ben Digitally signed by
Vidya Ben Waghela
Waghela Date: 2024.12.09
12:23:32 +05'30'
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