Central Administrative Tribunal - Allahabad
Amrendra Kumar Singh vs General Manager, N E Rly on 21 January, 2022
1
Reserved on 04.01.2022
Pronounced on 21.01.2022
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Original Application No.330/244/2013
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Ms. Pratima K Gupta, Member(J)
Amrendra Kumar Singh, S/o Late Ramjeet Singh,
R/o Q.No.120-A, Jatepur Railway Colony,
Gorakhpur.
. . .Applicant
By Adv : Shri S.K. Om
VERSUS
1. Union of India through General Manager, N.E. Railway, Gorakhpur.
2. Chief Workshop Manager, Mechanical Workshop, N.E. Railway, Gorakhpur.
3. Dy. Chief Mechanical Engineer, Mechanical Workshop, N.E. Railway,
Gorakhpur.
. . .Respondents
By Adv: Ms. Shruti Malviya
ORDER
By Hon'ble Ms. Patima K Gupta, Member (Judicial) We have joined this Division Bench online through Video Conferencing.
1. Shri S.K. Om, learned counsel for the applicant and Ms. Shruti Malviya, learned counsel for the respondents are present.
2
2. The present original application has been filed by the applicant against the show cause notice dated 14.11.2013 whereby the respondent no.3 has proposed to impose the penalty of removal from service on the ground of alleged conviction of the applicant by Additional Chief Judicial Magistrate (in short ACJM) (Railways) vide its order dated 12.07.2011. The applicant has sought for the following reliefs:-
"A. To issue a writ order or direction in the nature of certiorari quashing the order dated 14.2.2013 passed by Respondent no.3 (Annexure-1 to the O.A).
B. To issue a further writ order or direction in the nature of mandamus commanding the respondents not to remove the applicant from service.
C. To grant all the consequential reliefs for which the applicant is entitled for.
D. To pass any other suitable order or direction which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case.
E. To award the cost of the present O.A. in favour of the applicant."
3. The undisputed facts arising in this original application are that while woking as Senior clerk the applicant on 18.04.2001 an F.I.R under Section 3 of Railway Property (unlawful possession) Act was registered against him. After the trial the ACJM (Railway) vide order dated 12.07.2011 convicted the applicant for simple imprisonment for a period of two years along with a fine of Rs.1000/- or further imprisonment of 15 days in lieu of fine. The relevant portion of the order dated 12.07.2011 reads as under:-
vfHk;qDr vejsUnz dqekj flag dks vUrxZr /kkjk 3 vkj-ih- ;w-ih- ,DV ds rgr nks'k fl} fd;k tkrk gS mDr vfHk;qDr dks mDr vijk/k ds rgr nks lky dk lk/kkj.k dkjkokl vkSj eqvkotk :- 1000%00 vFkZnM ls nf.Mr fd;k tkrk gSA vFkZn.M vnk u djus ij 15 fnu dk vfrfjDr dkjkokl Hkqx ruk gksxkA fu.kZ; dh ,d izfr vfHk;qDr dks fu"kqYd iznku dh tk;sA okn fe;kn vihy cjken"kqnk jsy lEifRr jsy iz"kklu ds i{k esa fu;ekuqlkj okil fd;k tk;A ,-lh-ts-,e-jsyos Xkksj[kiqj fnukad 12-07-2011 3
4. The applicant has preferred an appeal against the said conviction order before the Sessions Judge Gorakhpur on 12.08.2011. The Additional Session Judge, Gorakhpur vide order dated 12.08.2011 stayed the order dated 12.07.2011.
The relevant portion of the order dated 12.08.2011 reads as under:-. 12-08-11 3 d vk/kkj vihy 4 [k udy vkns"k 5 [k odkyrukek 6 [k LFkxu izk0 i= nkf[ky gksdj eqlfje vk[;k ds lkFk is"k gqvkA vkns"k lqukA vaxhd`r ,oa iathd`r gksA iz"uxr fu.kZ; o vkns"k dk izHkko vihy ds fuLrkj.k rd LFkfxr fd;k tkrk gSA vfHk;qDr@vihykFkhZ dh vksj ls tekur gsrq izkFkZuk i= izLrqr fd;k x;k gS tks Lohd`r fd;k tkr gS vfHk;qDr }kjk 20000@& :- dh ih0ch0 ,oa mlh /kujkf"k dh nks tekur izLrqr djus ij vihy ds fuLrkj.k rd tekur ij jgsxkA foi{kh dks uksfVl tkjh gksA lquokbZ gsrq fnukad 16-09-2011 dks is"k gksA izHkkjh l= U;k;k/kh"k
5. The applicant represented to the respondents on 16.08.2011 informing the respondent no.3 about the order dated 12.08.2011. Nevertheless the applicant was served with the impugned show cause notice dated 14.02.2013. The same is reproduced here as under :-
Memorandum
1. Sri AMRENDRA KUMAR SINGH S/O LATE RANJIT SINGH Designation OS/Production, Office under Mechanical Workshop, N.E. Railway, Gorakhpur is informed that on a careful consideration of the circumstance of the crime no.1/2002 under 3 RP (U.P.) Act, Case No.2345/01 in which he was convicted on 12.07.2011 by ACJM(Railway) Gorakhpur on a criminal charge, the undersigned considers that his conduct which has led to his conviction is such as to render his further retention in public service, undesirable. The undersigned has, therefore, provisionally come to the conclusion that;
Sri, AMRENDRA KUMAR SINGH is not a fit person to be retained in service and so the undersigned, in exercise of power conferred by Rule 14(i) of the Railway Servants (Discipline and Appeal) Rule, 1968, propose to impose on him the penalty of removal from service. 4
2. Sri, AMRENDRA KUMAR SINGH is hereby given opportunity of making representation on the proposed penalty. Any representation which he may wish to make on the penalty proposed will be considered by the undersigned before passed final orders. Such representation, if any, should be made in writing and submitted so as to reach the undersigned not later than 15 days from the date of receipt of this memorandum by Sri AMRENDRA KUMAR SINGH. If no representation is received from him within the stipulated time, it will be presumed that he has no representation to make and final orders will be liable to be passed against him ex-parte.
The receipt of this memorandum should be acknowledged by Sri AMRENDRA KUMAR SINGH."
The Applicant preferred the present original application against the impugned show cause notice. On 07.03.2013 this Tribunal restrained the respondents to give effect to the show cause notice dated 14.02.2013. Meanwhile, the applicant superannuated on May, 2021. The appeal filed before the Additional Session Judge, Gorakhpur was disposed of on 12.11.2014. From the order passed by the Ld ASJ, it is seen that the applicant has been given the benefit under the Probation Offenders Act 1958. The operative portion of the order passed by the Ld ASJ dated 12.11 2014 is reproduced below:-
vkns"k nkf.Md vihy la0&99@11 va"kr% Lohdkj djrs gq, vknsf"kr fd;k tkrk gS fd eq0v0la0&1@2001 vUrZxr /kkjk 3 vkj0ih0¼;w0ih0½ ,DV] Fkkuk vkj0ih0,Q0 iksLV ;kaf=d dkj[kkuk] lEcfU/kr vkijkf/kd xzgdj.k la0&2345@01 esa v/khuLFk U;k;ky;@,0lh0ts0;e0 jsyos xksj[kiqj ds fu.kZ; ,oa vkns"k fnukafdr 12&7&11 ds n.M ds va"k dks la"kksf/kr djrs gq, nks'k fl) vfHk;qDr vejsUnz dqekj flag dks izFke vijk/kh gksus dk ykHk nsdj ,d o'kZ ds fy;s lnkpj.k ij jgus ds fy, eqDr fd;k tkrk gSA vfHk;qDr bl lUnHkZ dh chl gtkj :0 dh nks tekurs rFkk mlh /kujkf"k ds O;fDrxr cU/k i= v/khuLFk U;k;ky; dh lUrqf'V ij fu'ikfnr djsxk vkSj ifjoh{kk vf/kdkjh ds funsZ"k ij lnkpj.k ij jgsx k A ifjoh{kk dky esa vijk/k dh iqujko`fRr djus ij v/khuLFk U;k;ky; dk fu.kZ; o vkns"k fnukad 12&7&11 fu'iknu ;ksX; gks tk;sxk A rnuqlkj ;g vihy fuLrkfjr dh tkrh gSA
6. The applicant has filed their written submissions along with the relied upon judgments. The applicant has placed reliance on the order passed by the learned sessions judge who had released the applicant by giving him the benefit of Probation of Offenders Act 1958 with an observation that the applicant will remain on probation 5 for a period of one year wherein his conduct would be watched and if remained in order he would be released. The applicant has further stated that on completion of the period of one year, the applicant was issued a certificate on 05.05.2011 wherein the District Probation Officer, Gorakhpur has certified that there has been no complain against the applicant during the period of probation. He has further submitted that since the applicant has retired on May, 2021 after rendering 39 years of dedicated service, the applicant is required to settle himself and his family. It would be harsh to punish him by stopping his terminal benefits that too when he has been exonerated by the criminal court under the Probation of Offenders Act, 1958.
The applicant further submits that in view of the order passed by the Learned Session Judge, the conviction of the applicant stands reversed and, therefore, this original application should be allowed and the show cause notice dated 12.02.2013 be quashed according he be granted all consequential benefits and thereby the respondents are directed to release all the entire terminal benefits of the applicant including the pension. Along with the written submissions the applicant has filed the relied upon judgments which are as under:-
(i) Rama Narang Vs. Ramesh Narang and Others, (1995) 2 SCC 513
(ii) Chief of the Army Staff and Others Vs. Major Dharam Pal Kukrety on 21 March, 1985 equivalent to 1985 AIR 703, 1985 SCR(3) 415.
(iii) Rajbir Vs. State of Haryana on 01 May, 1985 equivalent to AIR 1985 SC 1278, 1985 CrilJ 1495, 1985(2) SCALE 1288, 1985 Supp(1) SCC 272, 1985 (17) UJ 808 SC.
(iv) Nagaraju Vs State of Karantaka on 8 February, 2017 passed by Hon'ble High Court of Karantaka At Bengaluru.6
(v) Mustaq Ahmad Khan Vs. Union of India and Others, [2019(7) ADJ 321(DB)] passed by Hon'ble High Court of Allahabad.
7. Learned counsel for the respondents has relied on the counter affidavit wherein it is mentioned that before issuing the memorandum dated 14.02.2013, Dy. CME/Works has carefully considered the circumstances of the crime case no.1/2001 under section 3 of Railway Property (unlawful possession) Act in which the applicant was convicted by the ACJM (Railway), Gorakhpur on a criminal charge and thereafter the order was passed by Additional Session Judge, Gorakhpur on 12.08.2011 in appeal No.99/2011. Thus, after careful consideration of the both of the Hon'ble Court's orders as stated above, Dy. CME/Works (D.A.) decided to issue the memorandum dated 14.02.2013 in the light of Railway Boards letter No. E(D&A)93 RG6-65 dated 06.06.1994, (Annexure CR-4 to the counter reply) in which it is mentioned that when a person is convicted by a criminal court, the same shall remain intact until and unless it is reversed or set aside by the competent court in appeal. The mere filing of an appeal and/or stay of the execution of the sentence do not take away the effect of conviction unless the appeal is allowed and the conviction is set aside by the appellate Court. It is also stated that in the light of above, Dy. CME/Works (Disciplinary Authority) was of the opinion, that his conduct which has led to his conviction is such to render his further retention in public service, undesirable and as such Disciplinary Authority provisionally retained in service and so, Disciplinary Authority in exercise of power conferred under Rule-14(i) of the Railway Servants (D&A) Rules,1968 proposed to impose upon him the penalty of removal from service and accordingly, the applicant was given opportunity of making representation on the proposed penalty. It is further submitted by learned counsel 7 for the respondents that considering and taking cognizance of the order dated
12..08.2011 passed by Addl. Session Judge, Gorakhpur, Dy. CME/Works (Disciplinary Authority) rightly arrived to a conclusion regarding removal of the applicant as he was convicted on 12.07.2011 by ACJM (Rly.) Gorakhpur in case No.1/2001 under section 3 of Railway Property (unlawful possession) Act. Learned counsel for the respondents submits that the implication of the order passed by Learned Session Judge is that the conviction against the applicant has not being overturned while the applicant has been allowed to undergo the period of Probation of one year and be released for the good conduct. She has relied on the order passed by the Learned Sessions Judge wherein it is categorically stated that the conviction passed by the ACJM (Railway) has not been reversed. The learned counsel for the respondents has filed the written submissions alongwith the relied upon judgments which are as under:-
i) Chief of the Army Staff and Others Vs. Major Dharam Pal Kukrety on 21 March, 1985 equivalent to 1985 AIR 703, 1985 SCR(3) 415.
ii) The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another on 9 January, 2004.
iii) The Secretary, Min. Of Defence & Ors Vs. Prabhash Chandra Mirdha on 30 April, 2007 in Civil Appeal No.2333 of 2007.
iv) M. Sankara Subramanian Vs. The Director General of Police on 8 March, 2016.
8. The facts of this case need to be examined in light of law laid down by the Hon'ble Apex Court in the case Union of India v. Bakshi Ram (1990) 2 SCC 426 was an appeal from a decision of the Rajasthan High Court, wherein the Rajasthan High Court, relying upon Section 12 of the Act had held that release on probation was the 8 effect of removing the disqualification attaching to the employees conviction under Section 10(n) of CRPF Act. The Hon'ble Supreme Court reversed the said decision of the High Court. Paragraph 8 of the said decision being relevant is being produced herein below:
"8. It will be clear from these provisions that the release of the offender on probation does not obliterate the stigma of conviction. Dealing with the scope of Sections 3, 4 and 9 of the Probation of Offenders Act, Fazal Ali, J., in The Divisional Personnel Officer, Southern Railway and Anr. Etc. V. T.R.Challappan etc., [1975] 2 SLR 587 at 596 speaking for the Court observed:
These provisions would clearly show that an order of release on probation comes into existence only after the accused is found guilty and is convicted of the offence. Thus the conviction of the accused or the finding of the Court that he is guilty cannot be washed out at all because that is the sine qua non for the order or release on probation of the offender. The order of release on probation is merely in substitution of the sentence to be imposed by the Court. This has been made permissible by the Statute with a humanist point of view in order to reform youthful offenders and to prevent them from becoming hardened criminals. The provisions of Section 9(3) of the Act extracted above would clearly show that the control of the offender is W P (C) 2372/2010 4 of 12 retained by the criminal court and where it is satisfied that the conditions of the bond have been broken by the offender who has been released on probation, the Court can sentence the offender for the original offence. This clearly shows that the factum of guilt on the criminal charge is not swept away merely by passing the order releasing the offender on probation. Under Sections 3,4, or 6 of the Act, the stigma continues and the finding of the misconduct resulting in conviction must be treated to be a conclusive proof. In these circumstances, 9 therefore, we are unable to accept the argument of the respondents that the order of the Magistrate releasing the offender on probation obliterates the stigma of conviction."
In Divisional Personnel Officer, Southern Railway and Anr. v. T.R. Chellappan, AIR 1975 SC 2216, Apex Court observed that the conviction of an accused, or the finding of the Court that he is guilty, does not stand washed away because that is the sine- qua-non for the order of release on probation. The order of release on probation is merely in substitution of the sentence to be imposed by the Court. Thus, the factum of guilt on the criminal charge is not swept away merely by passing the order under the Act, 1958.
9. The law laid down by the Apex court in the judgments (Supra) it is clear that the benefit under the Probation of offenders Act,1958 and under section 360 of Criminal Procedure Code do not reverse the conviction but it is merely a substitution of sentence awarded . In view of the present facts of the case, on plain reading of the order passed by the Learned Additional Session Judge it is clear that the applicant was granted the benefit of Probation of Offenders Act while the Conviction was not interfered with. This is also examined in the light of the law laid down by the Hon'ble Apex court in the case of Life Insurance Corporation of India Vs. Mukesh PoonamChand Shah in SLP No.5142 of 2020 dated 25 February, 2020. The relevant portion of the order reads as under:-
13. Regulation 39(1) of the 1960 Regulations deals with the penalties which can be imposed upon an employee who is found guilty of misconduct. Regulation 39(2) mandates compliance with the principles of natural justice in terms of providing a reasonable opportunity to the employee to defend the charges. Regulation 39(4) operates with a non-
obstante clause. In terms of Regulation 39(4)(i), "where a penalty is imposed on an employee on the grounds of conduct which had led to a conviction on a criminal charge", the appellant is independently entitled to take steps against the employee. It is in pursuance of the above provision 10 that a notice to show cause was issued to the respondent. The penalty which was imposed on the disciplinary enquiry was for an act of misconduct. The notice which has been issued under Regulation 39(4) is for the conviction on a criminal charge. The former does not foreclose the latter.
10. From the above judgement, it is clear that the respondents were well within their right to issue the show cause notice in view of the conviction passed by the ACJM (Railway). The short controversy involved in the matter is that by way of an order passed by the Additional Session Judge, the conviction of the applicant passed by the Learned Session Judge has been reversed. This controversy is no more res- integra in light of the law cited above in para 9 of this order. On hearing the rival contentions and on perusal of the record, and view of the law mentioned above, it is clear that this original application has been preferred against a show cause notice only. There is no final order under challenge. The judgments referred by the learned counsel for the parties do not come to rescue the Applicant in view of the order passed by the Learned Additional Session Judge, Gorakhpur. As we have no doubt that with the release of the applicant, he has been granted benefit of probation of offenders Act, 1958, it is only the sentence of the applicant that has been is substituted, while the Applicant stands convicted. There is no reason to interfere in the remedies against the show cause notice, it is only in an extraordinary circumstances in which the courts may interfere in an interlocutory order. We, therefore, do not find any merit in the original application and the same accordingly dismissed. No order as to costs.
(Pratima K Gupta) (Tarun Shridhar)
Member(J) Member (A)
/Neelam/