Central Administrative Tribunal - Chandigarh
Labh Singh Son Of Shri Bakhtawar Singh vs State Of Punjab on 5 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.963-PB-2011 Pronounced on: 05.08.13 Reserved on: 29.07.2013 CORAM: HONBLE MR. RANBIR SINGH, MEMBER (A) & HONBLE MR. SANJEEV KAUSHIK, MEMBER (A) Labh Singh son of Shri Bakhtawar Singh, aged 51 years, resident of Village & Post Office Rajgarh Via Pakhowal, Tehsil Rajkot, District Ludhiana. Applicant By : Mr. V.K. Sharma, Advocate. 1.Union of India through the Secretary to Government of India, Ministry of External Affairs, CPV Division (Cadre Cell), Patiala House Annexe, Tilak Marg, New Delhi-110001. 2.Joint Secretary (PSP) & Chief Passport Officer, Government of India, Ministry of External Affairs, CPV Division (Cadre Cell), Patiala House Annexe, Tilak Marg, New Delhi-110001. Respondents By : Mr. Sanjay Goyal, Advocate. O R D E R
HONBLE RANBIR SINGH , MEMBER (A) The applicant, while working as UDC, was convicted by the Special Judge, Chandigarh vide judgment dated 3.2.2010 for offences under Section and Section 13 (1)(d) punishable under Section 13 (2) of the Prevention of Corruption Act for demanding and accepting bribe and was awarded sentence of two years of rigorous imprisonment and pay a fine of Rs.5,000/-, in default to undergo further imprisonment for six months. On the basis of this conviction, the disciplinary authority vide order dated 3.6.2011 (Annexure A-1) imposed the penalty upon the applicant of removal from service in exercise of powers conferred by Rule 19 (i) of the Central Civil Services (CCA) Rules, 1965. The order states that it was considered that the conduct of applicant, which has led to his conviction, is such as to render his further retention in the public service undesirable.
2. The applicant has sought the following relief : -
(i) Quash the order dated 3.6.2011 (Annexure A-1), vide which the respondent no. 2 has imposed the penalty of removal from service on account of conviction by court of criminal jurisdiction and his act leading to his conviction has not at all been considered as to whether penalty of removal from service was warranted and due to this major flaw in the decision making process, the impugned order are liable to be quashed and set aside being illegal, arbitrary, against the rules, law, discriminatory, harsh and in violation of CCS (CCA) Rules, 1965.
(2) Issue direction to the respondents to re-consider the issue once again and reinstate the applicant in service as the act and conduct of the applicant who has been falsely implicated in a criminal case and he be ordered to be reinstated in service with effect from due date with all the consequential benefits of pay and allowances and other connected benefits, including arrears with interest @18% per annum from the date the amount became due to the actual date of payment more so when the sentence has been suspended and appeal is pending in the Honble High Court.
3. The applicant states that he has been falsely implicated in this case. After judgment of the court of criminal jurisdiction the respondents issued a memorandum dated 30.7.2010 (Annexure A-3) asking the applicant to explain as to why penal action be not taken against him in view of provisions of Rule 19 of CCS (CCA) Rules, 1965, consequent upon his conviction. The applicant filed Criminal Misc. No. 355-SB of 2010 and a Cr. M. No. 6831 of 2010 for stay. The stay application was decided on 17.2.2010 by Honble High Court holding that remaining substantive sentence of applicant shall remain suspended during pendency of appeal. The appeal is still pending. The applicant submitted a reply dated 19.10.2010 (A-5) explaining that the charge levelled against him was false as Ms. Kiranjit Kaur d/o Sh. Gurdeep Singh did not appear in the court for evidence and could not explain relationship with complainant. Sher Singh admitted in his statement that the alleged recovery was not effected in his presence. He also failed to identify applicant in the court as an accused. He admitted that all the memorandums were blank when he was made to sign the same; hand of applicant was not washed in his presence by the Investigating Officer, thus, there was no evidence against the applicant and trial court convicted him without any basis and wrongly. The applicant states that the Inquiry Officer and Court failed to prove relation between the complainant Sher Singh and applicant of passport Kiranjit Kaur and how learned Special Judge accepted Kiranjit Kaur cousin sister of Sher Singh. He has already filed a criminal appeal and his sentence stands suspended. He is innocent and no punishment should be imposed upon him.
4. The applicant also placed reliance on decision of Honble Punjab and Haryana High Court in Jagtar Singh Vs. State of Punjab, 1989 (5)SLR, Page e109, in which it was held that when there is conviction under Prevention of Corruption Act and appeal against conviction is pending in the High Court, where the sentence was suspended and petitioner was enlarged on bail, dismissal from service on the basis of said conviction is wrong as there is no hurry to dismiss the petitioner, when conviction was not final as the appeal against the conviction is pending and the order of dismissal was quashed. It has been held by the Honble Rajasthan High Court in Dr. Tarlochan Singh Vs. State of Rajasthan, 1983 (1) SLR, 456, that the removal on the basis of conviction by the Criminal Court is wrong when the appeal against the conviction is pending. The employee cannot be removed from the service on the basis of his conduct which led to his conviction so long as his appeal against conviction is pending. The Honble Rajasthan High Court in Purshottam Singh Vs. Union of India, 1981 LAB IC 302, has held that removal from service on the basis of conviction when the appeal is pending, the order of removal cannot be sustained. He has long years of service of about 25 years and his ACR through were quite good and he was never conveyed any adverse ACR in his long years of service. He was never issued any show cause notice or charge sheet. He was not involved in any other criminal case and he is also likely to be acquitted in the case. He is the only earning member of the family and family consists of his wife, three growing children and old age mother who are dependent upon him.
5. The applicant was again served with a memorandum dated 6.4.2011 (Annexure A-6) indicating that after considering the oral and written submission of applicant, and the judgment dated 3.2.2010, the disciplinary authority has provisionally come to the conclusion that he is not a fit person to be retained in service as he has been convicted for the grave charge of accepting bribe and penalty of removal from service was proposed and applicant was asked to submit his reply. The applicant submitted a detailed reply dated 20.5.2011 (Annexure A-7) explaining that he has been falsely implicated and there is no case made out against him and he is the only bread earner in the family and penalty will destroy his family. However, the disciplinary authority has ultimately passed order, Annexure A-1 imposing penalty of removal from service.
6. The grounds with legal provisions in support of the relief are as under :-
(i)The applicant was falsely implicated in a criminal case and on the basis of conviction only and the penalty of removal from service was imposed upon him without following the provisions of Rule 19 of the CCS (CCA) Rules, 1965.
(ii)The personal satisfaction has to be of the competent authority to arrive at a conclusion for dispensing with the inquiry as held in Constitution Bench judgment of the Honble Supreme Court in 1985 (3) SCC 398, Union of India v. Tulsiram Patel that Clause (b) of the second proviso to Article 311 makes it clear that when the power to dispense with an inquiry is conferred by it upon the authority empowered to dismiss, remove or reduce in rank a Government servant, the satisfaction to be arrived at is on the advice of the Council of Ministers and not a personal satisfaction of the President.
(iii)Regarding the scope of judicial review of the decision to dispense with the holding of the enquiry by the President, reliance is placed by applicant upon on S.R.Bommai Vs Union of India, (1994) 3 SCC 1; A.K.Kaul Vs UOI, (1995) 4 SCC 73 and UOI & Anr v. Balbir Sigh & Anr, (1975) 5 SCC 216 in which it has been held that judicial review is of the decision making process and not of the decision itself. Therefore, , the enquiry should have been conducted before imposition the penalty and in any case issuance of prior notice is compulsory before imposing a penalty even on the basis of a conviction in a criminal case and the act relating to conviction of the applicant is also to be considered by the competent authority.
(iv)The enquiry is to be dispensed with on the satisfaction arrived at that it is not expedient to hold an enquiry based on circumstances and the material before the concerned authorities and not on the basis of availability of sufficient time.
(v)In Shankar Dass v. Union of India and Anr., 1985(2) SLJ 454 (SC) Pawan Kumar v. State of Haryana and Anr., 1996(2) SLJ 9 (SC), M/s. Glaxo Laboratories (I) Ltd, v. Presiding Officer, Meerut, AIR 1984 SC 505(SC) and K.L. Kalra v. The Project and Equipment Corporation of India Ltd., AIR 1984 SC 1361, it has been clearly held that mere conviction of the applicant in the criminal offence does not necessarily disclose any moral turpitude, which warrants the type of action that the respondents have taken.
(vi)The impugned order under challenge would disclose that competent authority has only mentioned about conviction of applicant and nothing more as to whether his conduct is such that it would require his retention in service nor proper. Thus, the authorities have mechanically followed the format laid down under the relevant instructions and the department had imposed the penalty of removal from service. There is nothing to show in the impugned order that there has been due application of mind on the part of the Disciplinary Authority as the facts of the case have not been discussed. There has to be a nexus in the conduct of the official duty and the charge in which a government servant is convicted.
(vii)Even as per the Government instructions vide circular dated 3.8.77 where it is mentioned that Rule 19 cannot be interpreted in such a way that the penalty such as dismissal / removal/ compulsory retirement is to be imposed in such cases as a matter of course and the facts in each case have to be considered. In this case, there is nothing to show that this has been done by the authority and the Disciplinary Authority had not applied its mind and mechanically passed the order of removal from service and this does not conform to the requirements as laid down in Rule 19.
(viii)The impugned order of penalty has not been passed as per the rules and law on the subject and is illegal, arbitrary, discriminatory, against the rules and law.
(ix)The impugned order of removal from service is not based on conduct which had led to the conviction of the applicant but merely on conviction of the applicant.
(x)As per provisions of Rule 19, the competent authority is duty bound to form the requisite opinion in respect of not the conviction but in respect of the conduct which has led to said conviction and is expected to exercise its powers with due caution and considerable application of mind. In this case, the requisite opinion by the competent authority has not been formed and the decision impugned is based on collateral grounds and extraneous consideration.
(xi)Under the rules and law conviction alone is not sufficient to invoke the penalty in question as the disciplinary authority is bound to consider the conduct leading to conviction and also the said conduct was such as warrants the imposition of penalty and if so, what that penalty should be. For that purpose, the disciplinary authority is bound to peruse the complete judgment of the criminal court and consider all the facts and circumstances of the case and taken into account the entire conduct of the delinquent employee, the gravity of the misconduct committed, the impact which his misconduct is likely to have on the administration and other extenuating circumstances and redeeming features. It is after the considerable application of mind and reaching the conclusion that the Government servants conduct was blame-worthy and punishable that the disciplinary authority is to embark upon the decision and consider the penalty that should be imposed on the Government servant by keeping in mind that the penalty imposed shall not be grossly excessive or out of all proportion to the offence committed or one not warranted by the facts and circumstances of the case.
(xii)It has been held by the Honble Rajasthan High Court in Dr. Tarlochan Singh Vs. State of Rajasthan, 1983 (1) SLR, 456, that the removal on the basis of conviction by the Criminal Court is wrong when the appeal against the conviction is pending.
(xiii)Honble Rajasthan High Court in Purshottam Singh Vs. Union of India, 1981 LAB IC 302, has held that removal from service on the basis of conviction when the appeal is pending, the said order of removal cannot be sustained.
(xiv)The impugned order is not sustainable in view of law laid down in Smt. Akhtari Bi Vs. State of M.P. JT 2001 (4) SC 40. The order is non speaking and being in violation of law laid down by Apex Court in the case of Akhtri Bi is liable to be quashed and set aside.
7. The respondents have filed a reply statement. They place reliance on Rule 19 (i) of CCS (CCA) Rules, 1965, to contend that if a penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit. The Disciplinary Authority in the Ministry vide memorandum dated 30.7.2010 gave an opportunity of personal hearing to the applicant and he was also asked to bring a written representation at personal hearing as to why penal action be not taken against him. A personal hearing was given to him on 16.11.2010 by the Disciplinary Authority himself. The respondents have mentioned pleas taken by applicant in his representation as mentioned above. The D.A. considered the submission of applicant and judgment dated 3.2.2010 and noted that the Court had convicted applicant for accepting a bribe of Rs.3500/-. The Honble Court had convicted applicant for accepting a bribe of Rs.3500/-. It has been observed that the disease of corruption is disastrous and it has spread like a fire. It has become impossible for a common man to get his work done without bribe and he convicted applicant for worst kin of a misconduct i.e. bribery. The applicant was given full opportunity to defend himself. The D .A. has care fully gone through rule 11 of CCS (CCA) Rules, 1965 and DoPT Office Memorandum Number 371/23/92-AVD.III dated 4.3.1994 (Annexure R-1) and the judge men of Apex Court in Ramesh Kumar Vs. Union of India (Annexure R-2). As per these documents, the Department may take penal action against the convicted Government servant unless the conviction is obliterated by higher court. The conviction continues even if the sentence is suspended. In this case the sentence has only been suspended. After considering all these facts, the D.A. came to a provisional conclusion that applicant is not a fit person to be retained in government service and imposition of removal from service would meet ends of justice. After affording applicant an opportunity of presenting his side of the case and considering his defence, punity was imposed upon him. The D.A. has duly noticed that applicant did not bring any new facts in his representation. He got full opportunity to defend himself. The judgment convicted him after hearing arguments of prosecution and defence. The standard off proof in a court of law is Beyond reasonable doubt and he was convicted for worst kin of misconduct of a government viz. bribery. Thus, D.A. did not find any reason to deviate from the proposed penalty of removal from service. Thu, he was removed from service vide order dated 3.6.2011. The applicant filed an appeal which was rejected vide a detailed order dated 16.8.2011.
8. We have heard learned counsel for the parties and perused the pleadings.
9. The procedure for proceeding against the Government servants who are convicted in a criminal case is provided in Rule 19 of CCS (CCA) Rules, 1965, which is reproduced as under :-
Notwithstanding anything contained in Rule 14 to Rule 18:- (i) Where any penalty is imposed on a Govt. servant on the ground or conduct which has led to his conviction on a criminal charge, or
(ii)Where the disciplinary authority is satisfied for reasons to be recorded 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 security of the State, it is not expedient to hold any enquiry 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 Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (i);
Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.
Rules 15.2 and 15.3 as occurring in Chapter-VII of the Vigilance Manual are extracted below:-
Chapter-VII of Vigilance Manual(para 15.2 & 15.3) 15.2 accused public servant.
15.3. If the Disciplinary Authority comes to the conclusion that the offence for which the public servant has been convicted was such as to retention the public service prima facie undesirable, it can impose upon him under Rule 19(1) of CCS(CCA) Rules, 1965, the penalty of dismissal or removal compulsory retirement from service as may be considered appropriate, with reference to the gravity of offence, without holding any enquiry or giving him a show cause notice as provided in proviso to Article 311(2) of the Constitution.
F.R.54 (1) of the FRSR is reproduced as under
(a) Regarding the pay and allowance to be paid to the Govt. servant for the period of his absence from duty including the period of his suspension proceeding his dismissal, removal or compulsory retirement as the case may be; and (b) Whether or not the said period shall be treated as period spent on duty."
10. On the basis of above provisions the learned counsel for the applicant submits that no doubt Rule 19 empowers Disciplinary Authority to take action against a Govt. servant on the ground of misconduct which has led to his conviction on a criminal charge but he states that this action has to be taken with due application of mind and not in a mechanical manner.
11. We have perused the decisions of Honble Supreme Court of India in Union of India Vs. Tulsiram Patel (supra) in which it was held that decision to dispense with enquiry should not be upon personal satisfaction of the President but on the council of Ministers. In S.R. Bommai (supra), A.K. Kaul (supra) and Balbir Singh (supra) cited in para 5 (B) of the grounds, it has been held that judicial review is of decision making process and not of decision itself. Learned counsel for applicant vehemently relied upon decision of Honble Punjab and Haryana in the case of Jagtar Singh (supra) in which it was held that if sentence in a criminal case is suspended in appeal, dismissal on such conviction is not warranted. Same view was taken by Honble Rajasthan High Court in the case of Dr. Tarlochan Singh (supra) and Purshottam Singh (supra) and Akhtari Bi (supra). All these decisions lose relevance in view of the fact that Honble Apex Court in Union of India Vs. Ramesh Kumar (1997) 7 SC 514 has taken a contrary view. The relevant portion of the decision is reproduced as under :-
A bare reading of Rule 19 shows that the Disciplinary Authority is empowered to take action against a Govt. servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentences by the Appellate Court the order of dismissal based on conviction stands obliterated and dismissed Govt. servant has to be treated under suspension till disposal of the appeal by the Appellate Court filed by Govt. servant for talking action against him on the ground of misconduct which has led to his conviction by competent Court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a component Court of law has not lost its string merely. Because a criminal appeal was filled by the respondent against his conviction and the Appellant Court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angles. Under Section 389 of the code of Criminal Procedure, the appellant Court has power to suspend the of sentence and to release an accused on bail. When the appellant Court suspends the execution of sentences, and grants bail to an accused the effect of the order is that sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under section 389 Cr.P.C. an accused avoids undergoing sentences pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a Govt. servant on a misconduct which led to his conviction by the Court of law does not lose its efficacy merely because Appellant Court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell in error in holding that by suspension of execution of sentence by the appellate Court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of Criminal Appeal by the High Court.
12. The learned counsel for the applicant placed reliance on decisions in the cases of Shankar Dass (supra); Pawan Kumar; M/s. Glaxo Laboratories (I) Ltd, v. Presiding Officer, Meerut (supra) and K.L. Kalra (supra) to claim that mere conviction in criminal case is not enough to dismiss an employee as competent authority has to apply its mind to the act leading to conviction of the concerned employee. It is apparent from the impugned order and written statement that due application of mind has taken place before imposing penalty. The D.A. has concluded that applicant is not a fit person to be retained in government service. He was given full opportunity to defend himself. The judgment was also taken note of by observing that applicant was convicted after hearing arguments of prosecution and defence. It has been observed that the standard ff proof in a court of law is Beyond reasonable doubt and he was convicted for worst akin of misconduct of a government viz. bribery. These observations were made in the order / notice in which tentative opinion was formed and ultimately penalty order was passed. After considering reply of the applicant and submission, the Disciplinary Authority mentioned that no new facts were brought to its notice and tentative opinion was confirmed. Thus it cannot be said that there has been no application of mind on the part of the competent authority. Reliance placed upon decision of Basant Singh Vs. BSNL, O.A.No. 145-PB-2010 decided on 2.12.2010 by the applicant is also of no help to him in view of law laid down by Honble Supreme Court in Annexure R-2 which was not considered in the case aforesaid.
13. It is to be emphasized that rule 19 of CCS (CCA) Rules, 1965 provides for special procedure in certain cases. In the instant case the penalty has been imposed on the ground of conduct which has lead to the applicants conviction on a criminal charge. The rule provides that the disciplinary authority may consider the circumstances of the case and make such order thereon as it deemed fit. The proviso provides that the Government servant is to be given opportunity of making the representation only in respect of the penalty proposed to be imposed., We find that in the instant case, Disciplinary Authority issued show cause notice on 30.4.2010 before taking a decision regarding quantum of penalty. Thereafter vide show cause notice dated 6.4.2011 the applicant was given opportunity to make a representation against the proposed penalty i.e. removal from service. Thereafter the penalty order dated 8.6.2011 was passed. The disciplinary authority has considered all the facts and circumstances of the case. He had taken into account the entire conduct of the delinquent and the gravity of the misconduct committed. He had concluded that conduct of the delinquent employee which lead to his conviction is such as would render his further retention in public service undesirable. The applicant had filed an Appeal which was rejected on 16.8.2011. The Appellate Authority in his order had dealt with the three grounds raised in the appeal. No reasonable man similarly placed would find the punishment of removal to be disproportionate in the circumstances of this case. The quantum of penalty does not shock our conscience.
14. Thus finding no merit, this O.A. is dismissed. No costs.
(RANBIR SINGH) MEMBER(A) (SANJEEV KAUSHIK) MEMBER (J) Place: Chandigarh Dated:
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