Central Administrative Tribunal - Allahabad
S S Rathore vs Union Of India on 3 October, 2024
(Reserved on 23.09.2024.)
Central Administrative Tribunal, Allahabad Bench
Allahabad
Original Application No. 1 of 2011
Pronounced on 3rd day of October, 2024.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Sandeep Singh Rathore S/o Shri R.P Singh, R/o House No. 128/407,
H-2 Block,, Kidwai Nagar, Kanpur.
Applicant
By Advocate: Sri Dharmendra Tiwari/Shri Rakesh Verma
Versus
1. Union of India through the Secretary, Ministry of Defence,
North Block, New Delhi.
2. The Chief Engineer, Central Command, Lucknow.
3. The Chief Engineer, Lucknow Zone, Lucknow.
4. The Commander Work Engineer No.1, Wheelers Barracks,
Kanpur Cantt., 208004.
5. The Garrison Engineer (MES), Kanpur Cantt., 208004.
Respondents
By Advocate: Shri Krishna Kumar Ojha
ORDER
Hon'ble Mr. Justice Om Prakash VII, Member (J) By means of present O.A., the applicants has sought the following reliefs:-
"(i) To issue a writ, order or direction in the nature of certiorari quashing the impugned order of dismissal dated 28.07.2004, passed by the respondent No.4 as well as the appellate order dated 03.11.2010, passed by the respondent No.3 (Annexure Nos. A-1 & A-2 respectively to Compilation No. 'I' of this petition)
(ii) To issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 2, 3 & 4 to reinstate the petitioner in service with effect from MANISH KUMAR SRIVASTAVA 2 28.07.2004 with all consequential benefits attached thereto, within a period as may be fixed by this Hon'ble Tribunal.
OR
(iii) To issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 2, 3 & 4 to pay the petitioner subsistence allowance at the appropriate rate from time to time with effect from 30.01.2004 onwards till final disposal of the Criminal Appeal No. 261 of 2004 pending before the Hon'ble High Court at Allahabad and to act only in accordance with the law/rules.
(iv) To issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 2, 3 & 4 to pay the balance salary (full pay and allowances) for the period from 01.01.2004 to 29.01.2004 (Suspension order being passed on 30.01.2004), within a period as may be fixed by this Hon'ble Tribunal.
(v) To issue any other suitable writ, order or direction in the facts and circumstances of the case which this Hon'ble Tribunal may deem fit and proper.
(vi) To award the cost of the petition in favour of the petitioner".
2. The brief facts of the case are that while the applicant was working as Lower Division Clerk with MES No. 471569 and posted with the respondent No. 5, he was placed under suspension under sub Rule (1) (b) of Rule 10 of CCS (CCA) Rules, 1965 by the respondent No. 5 vide order dated 30.1.2004. The applicant was falsely implicated in a murder case in which he was convicted and sentenced with rigorous life imprisonment with a fine of Rs. 10000/- vide judgment and order dated 13.01.2004 passed by the Fast Track Court No.1, Additional District & Sessions Judge, Kanpur Nagar. Applicant filed criminal appeal bearing No. 261 of 2004 before the Hon'ble High Court and Hon'ble High Court vide order dated 15.04.2005 stayed the execution of sentence/conviction till further orders. However, respondent No. 3 vide impugned order dated 28.07.2004 dismissed the applicant from service with retrospective effect from 30.01.2004 revoking the suspension order passed on 30.01.2004. Feeling aggrieved by the dismissal order, the applicant preferred an appeal MANISH KUMAR SRIVASTAVA 3 dated 06.09.2004. When appeal of the applicant had not been decided by the appellate authority, the applicant approached this Tribunal by filing OA No. 696 of 2005. However, the Tribunal vide order dated 03.11.2006 disposed of the OA directing the respondents to decide the appeal of the applicant. It was further observed in the aforesaid order by this Tribunal that the applicant shall prefer a representation for payment of subsistence allowance, which shall also be decided by the respondents. Accordingly, applicant submitted representation for payment of subsistence allowance. Since order of the Tribunal has not been complied with by the respondents, applicant filed contempt petition No. 156 of 2010 and upon receiving the notices in the aforesaid contempt petition, the respondents decided the appeal and representation of the applicant vide impugned order dated 03.11.2010. Being aggrieved against the impugned order dated 03.11.2010, applicant filed present OA.
3. Per contra, learned counsel for the respondents has stated in the counter affidavit that a news article was published in local newspaper in which applicant, who was serving as LDC was sentenced to life imprisonment in a murder case No. 439/91 under section 302/207 IPC. After confirmation from SSP Kanpur city for involvement of applicant in a murder case, he was placed under suspension w.e.f. 30.01.2004. On demand of subsistence allowance, applicant was asked to furnish a certificate for non-engagement/employment vide letter dated 31.1.2004 but he failed to provide the same. Thereafter on conviction in criminal case, disciplinary authority as per Rule 19 (i) of CCS (CCA) Rules, 1965 dismissed the applicant vide order dated 28.07.2004. Applicant submitted his statutory appeal to the Appellate Authority. Applicant filed OA No. 696 of 2005 before this Tribunal against the above penalty order. The Tribunal has disposed of the OA of the applicant vide order dated 03.11.2009 with direction to the respondents to decide the appeal of the applicant. In compliance with the direction of the Tribunal, respondents passed reasoned and speaking orders on the appeal of the applicant.
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4. The applicant has filed Rejoinder Affidavit to the Counter Affidavit as filed by the respondents refuting the contentions made by the respondents in their Counter Affidavit while reiterating the averments made in the O.A. and nothing new has been added.
5. We have heard Shri Dharmendra Tiwari, learned counsel for the applicant and Shri Krishna Kumar Ojha, learned counsel for the respondents.
6. Submission of the learned counsel for the applicant is that although applicant was involved in a criminal case and was convicted by the Trial Court but on appeal he was released on bail. Referring to the Annexure A-5, it was further argued that conviction and sentence imposed upon the applicant by the Trial Court was stayed till further orders in Criminal Appeal No. 261 of 2004 vide order dated 15.04.2005. Referring to the aforesaid fact, it was further argued that while staying the conviction and sentence, Hon'ble High Court has observed that "appellant is a Government servant and he has been granted bail in terms of order dated 16.1.2004 passed by this Court, the execution of the conviction and sentence shall remained stayed till further orders of the Court". It was next argued that earlier when applicant was dismissed from service vide order dated 23.07.2004, applicant preferred an appeal on 6.9.2004, which was not decided within six months, thereafter applicant filed OA No. 696 of 2005, which was disposed of vide order dated 03.11.2009 wherein specific direction had been given to the Appellate Authority to decide the appeal of the applicant first within a period of three months. It is also argued that in compliance of the direction given in the aforesaid OA, appeal of the applicant was decided but order dated 15.04.2005 passed in the Criminal Appeal No. 261 of 2004 by the Hon'ble High Court regarding stay of the execution of conviction and sentence has not been taken into consideration. It is next argued that stay of the execution of the conviction and sentence will indicate that there was no hurdle in continuation of the service of the applicant in the department concerned, thus, appellate authority has committed MANISH KUMAR SRIVASTAVA 5 illegality. Learned counsel for the applicant has also referred to the OM dated 21.07.2016 issued by the Government of India, Ministry of Personnel, Public Grievance and Pension, Department of Personnel and Training Establishment A-III desk and further argued that in view of the aforesaid OM also there was no occasion to dismiss the services of the applicant, thus, disciplinary authority as well as appellate authority both have committed illegality because criminal appeal is still pending and stay of the conviction and sentence has been granted. Learned counsel for the applicant also argued that in CCS (CCA) Rules, 1968 itself has provided that before passing any order after conviction in a criminal case on the basis of conduct of the applicant, opportunity for filing the representation shall be given to the employee concerned. Since this procedure has also not been followed, thus, on this count also impugned orders are liable to be set aside. Thus, in the entire facts and circumstances of the case, prayer was made to allow the OA and set aside the impugned orders directing the respondents to reinstate the applicant in service. Learned counsel for the applicant has placed on record the case of Upendra Kumar Singh Vs. Union of India and others decided on 20.09.2024 in OA No. 16 of 2023 by this Tribunal.
7. Learned counsel for the respondents refuting the arguments advanced by the learned counsel for the applicant, argued that it is not mandatory to always provide opportunity to file the representation when the employee concerned is being dismissed from service on the basis of conviction held in a criminal case. To support his argument, learned counsel for the respondents relied upon para 150 of the judgment in Union of India and others Vs. Tulsiram Patel reported in AIR 1985 Supreme Court 1416, which has been decided with a bunch of cases. Learned counsel for the respondents further argued that in the appeal, no averment regarding the stay of conviction and sentence has been taken by the applicant. Since the criminal appeal is still pending, applicant has been convicted and sentenced for life imprisonment, thus, no illegality or perversity can be seen in the impugned orders, thus, argued to dismiss the OA.
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8. We have considered the rival submissions of the parties and have gone through the entire record.
9. In Upendra Kumar Singh (supra) case, OA was allowed taking into consideration the law laid down in the case of Brahma Dev Vs. Life Insurance Corporation of India Ltd. reported in 2006 (3) ALJ 710, Vishwanath Vishwakarma Vs. State of U.P through Prin. Secy. Deptt., of Revenue Lko and others in Writ A No. 4420 of 2015 decided on 18.09.2023 by Hon'ble HIgh Court, Allahabad and Manoj Kumar Katiyar Vs. State of U.P and others in Writ A No. 11761 of 2023 decided on 16.8.2023 by Hon'ble High Court, Allahabad because while passing the order of dismissal/removal, conduct of the applicant led to conviction has not been considered.
10. In Tulsiram Patel (supra) case, similar situation has occasioned before the Constitution Bench of the Hon'ble Supreme Court wherein also the respondents Tulsiram Patel who was an employee was convicted and sentenced for the offense under section 332 IPC and was removed from service on the basis of conviction held in Trial. Hon'ble Supreme Court considering the scope of Article 311 (2) of the Constitution of India in para 150 has held as under:-
"150. We are unable to agree with either of the two reasons given by the High Court for setting aside the order of compulsory retirement. So far as the first ground upon which the High Court proceeded is concerned, as already pointed out that part of the judgment in Challapan's case (AIR 1975 SC 2216) is not correct and it was, therefore, not necessary to give to the Respondent any opportunity of hearing before imposing the penalty of compulsory retirement on him".
11. In the instant matter initially when the applicant filed OA, which was disposed of directing the Appellate Authority to decide the appeal, it is also evident that appeal had been decided by the order dated 03.11.2010 but what would be the consequence of order dated 15.04.2005 passed in criminal appeal No. 261 of 2004 filed against the conviction of the applicant wherein conviction and sentence has been stayed has not been considered. Appeal has been decided in the year 2010, conviction and sentence has been stayed in the year 2005 itself, MANISH KUMAR SRIVASTAVA 7 thus, we are of the view that OA may be disposed of at this stage itself setting aside the order passed by the appellate authority directing it to decide the appeal afresh taking into consideration the order dated 15.4.2005 passed in criminal appeal No. 261 of 2004. Applicant may also be directed to file fresh comprehensive memo of appeal within a period of two months from today and after receiving the same, the appellate authority will decide the appeal within four months thereafter in the light of settled legal principle of law and taking into consideration the order dated 15.4.2005 passed in the aforesaid criminal appeal.
12. In view of the above, the OA is disposed of. Impugned appellate order dated 03.11.2010 is hereby quashed. Appellate Authority is directed to decide the appeal afresh taking into consideration the order dated 15.4.2005 passed in the criminal appeal No. 261 of 2004. Applicant is also directed to file a fresh comprehensive memo of appeal within a period of two months from today and after receiving the same, the appellate authority shall decide the appeal within four months thereafter in the light of settled legal preposition of law and taking into consideration the order dated 15.4.2004 passed in the aforesaid criminal appeal. No order as to costs. All pending MAs are disposed of.
(Mohan Pyare) (Justice Om Prakash-VII)
Member (A) Member (J)
Manish/-
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