Central Administrative Tribunal - Delhi
Sh. Yash Pal Saini vs Union Of India on 13 April, 2010
Central Administrative Tribunal Principal Bench OA No.1123/2010 New Delhi, this the 13th day of April, 2010 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Sh. Yash Pal Saini S/o Sh. Rati Ram R/o E-70 A, LIG Flat, GTB Enclave, New Delhi 110 093. Applicant. (By Advocate : Sh. D. S. Choudhary) Versus Union of India Through the Secretary, Ministry of Telecommunications & I.T- cum-Chairman of Telecommunications Commission, Department of Telecommunications, Sanchar Bhawan, 20, Ashoka Road, New Delhi 110 001. Respondents. : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Yash Pal Saini, the Applicant herein, has challenged the order dated 01.01.2010 (Annexure A1) relating to his dismissal from service passed by the Disciplinary Authority under Rule 19 of CCS (CCA) Rules, 1965 and has approached the Tribunal to quash and set aside the said order with another prayer to reinstate him into service.
2. We may briefly state the facts of the case leading to the Applicants dismissal from service. The Applicant joined Mahanagar Telecommunication Nigam Limited (MTNL) as Technician on 3.4.1987 and he was promoted to the post of Telecom Technical Assistant on 1.2.1994. He was arrested by CBI on 1.1.1998 on the allegation of demand and acceptance of Rs.600/- as bribe. He was charge sheeted and convicted by the learned Special Judge, Tis Hazari vide the order dated 23.4.2009 (Annexure-A2) under Section 7 and 13 (1) (d) of Prevention of Corruption Act, 1988. The Trial court sentenced him on 25.4.2009 to undergo rigorous imprisonment for 2 years and imposed a fine of Rs.6000/-. The Applicant moved the Honourable High Court of Delhi against the said orders of conviction and sentence. On admission of the appeal in CRL.A.334/2009, the High Court in its order dated 4.5.2009 (Annexure-A3) suspended the sentence during the pendency of the appeal subject to the Applicant furnishing a personal bond in the sum of Rs.20000 with one surety in the like amount to the satisfaction of the Trial Court. In the meantime, a Show Cause Notice dated 16.11.2009 (Annexure-A/4) under Rule 19 of CCS (CCA) Rules, 1965 was issued to the Applicant. In the said notice, the reference was made to his conviction and sentence and the suspension of sentence by Honble High Court and it was proposed to award him an appropriate penalty under Rule 19 (1) of the said Rules taking into account the gravity of the criminal charges. Further, in the notice, it was also stated that the Disciplinary Authority had provisionally come to the conclusion that the Applicant was not a fit person to be retained in service and tentatively it was proposed to impose on him the penalty of dismissal from service and the representation against the same was sought from the Applicant. The Applicant submitted his representation dated 9.12.2009 (Annexure A5) stating that the criminal case was false and fabricated and the Honble High Court of Delhi having stayed the sentence in the criminal case, he was protected against any disciplinary proceeding till the outcome of the appeal pending before the High Court. He prayed to withdraw the said show cause notice. The Disciplinary Authority after considering the above and noting that pendency of an appeal in a higher court against the conviction order of the Trial Court cannot be a ground to keep in abeyance the disciplinary proceedings initiated against the Applicant under Rule 19 unless the conviction is set aside by the Appellate Court, and ultimately imposed the penalty of dismissal from service on him vide order dated 1.1.2010 (Annexure-A1). He appealed against the said order vide his representation dated 22.2.2010 (Anneuxre-A6) which was considered in detail by the Appellate Authority and vide order dated 25.3.2010 (Annexure-A7) the appeal was rejected. Being aggrieved by the said orders, the Applicant is before this Tribunal in this OA.
3. At the admission stage itself, without issuing the notice to the Respondents, we heard Shri D. S. Choudhary, learned Counsel for the Applicant in an extensive and comprehensive manner. We perused the pleadings as well.
4. Rule 19 of CCS (CCA) Rules envisages the special procedure in certain cases and covers the conducts which have led to the conviction of the employee on a criminal charge. The Rule 19 reads as follows :-
19. Special procedure in certain cases Notwithstanding anything contained in Rule 14 to Rule 18-
where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or 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 where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any 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 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 resulted, where such consultation is necessary, before any orders are made in any case under this rule.
5. The Government of India has also issued instructions on the speedy follow up action to be taken in the cases coming under Rule 19. The concerned administrative authority should become aware of orders of conviction of any employee under his administrative control without any delay and it has been classified that it shall be the duty of the Government servant concerned who may be convicted in a Criminal Court to inform his superior of the fact of his conviction and the circumstances connected therewith. The following principles and procedures have been prescribed by the Government through executive instructions:
(i) In a case where a Government servant has been convicted in a Court of Law of an offence which is such as to render further retention in public service of a Government servant prima facie undesirable, the Disciplinary Authority may, if it comes to the conclusion that an order with a view to imposing a penalty on the Government servant on the ground of conduct which had led to his conviction on a criminal charge should be issued, issue such an order without waiting for the period of filing an appeal, or, if an appeal has been filed, without waiting for the decision in the first Court of appeal. Before such an order is passed, the Union Public Service Commission should be consulted where such consultation is necessary.
(ii) As soon as a Government servant is convicted on a criminal charge, he may, in appropriate case, be placed under suspension, if not already suspended.
(iii) In a case where the conviction is not for an offence of the type referred to in sub-paragrah (i) above, the Disciplinary Authority should call for and examine a copy of the judgment with a view to decide on taking such further departmental action, as might be deemed appropriate.
6. The above statutory Rule and the executive guidelines issued for the cases falling under Rule 19 (i) and Clause (a) of the second proviso to Article 311(2) of the Constitution of India, the first prerequisite is that, the Disciplinary Authority should be aware of the conviction of a Government servant on a criminal charge and the said awareness alone would not suffice. The Disciplinary Authority must consider whether his conduct, which had led to his conviction, was such as warrants the imposition of a penalty, and if so, what that penalty should be, for which the Disciplinary Authority would not only peruse the judgment of the Criminal Court but also take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct would have on the organization. It is to be noted that all these are to be done by the Disciplinary Authority himself and thereafter he would reach the conclusion whether the Government servants conduct was blameworthy and punishable. The Disciplinary Authority must provisionally decide the penalty that should be imposed on the Government servant, which should not be excessive or disproportionate to the offence committed. The Disciplinary Authority would call for representation from delinquent through a show cause notice. On receipt of the reply, he would pass final order on the same. If the Government servant is aggrieved by the final order of the Disciplinary Authority, he can agitate in appeal 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 person who was, in fact, convicted, he can also agitate this question in appeal.
7. If the convicted Government servant fails in all the departmental remedies available to him and still wants to pursue the matter, he can seek judicial review. The Tribunal having the powers of a Court, we have to go into the question whether the impugned order is arbitrary or grossly excessive or out of all proportionate to the offence committed, or not warranted by the facts and circumstances of the case or the requirements of the particular service to which the Government servant belongs. In the present OA, the Disciplinary Authority has considered the facts that led to the conviction of the Applicant. Demand and acceptance of bribe is the proved offence in the criminal case for which the Applicant was convicted. It is settled law that simply because sentence is kept in abeyance or bail is granted it doesnt obliterate the conviction. Conviction still continues, therefore, dismissal due to conviction doesnt lose its effect. Reliance is placed on the judgment of the Honble Supreme Court in the case of Union of India Vs. Ramesh Kumar [1997 (7) SCC 514]. Therefore, his order of dismissal cant be quashed simply on the ground that he has challenged his conviction and sentence is stayed by the Honble High Court. From the proportionality angle, we find that dismissal from service for the charges of corruption is not disproportionate. The orders passed by the Disciplinary and Appellate Authorities are not arbitrary and those are procedurally correct and legally sustainable.
8. Considering the above facts and circumstances of the case and finding that the issues involved are Rule based, we thought it proper not to issue notice to the Respondents and from our above analysis, we come to the considered conclusion that there is no merit in the Applicants case. In the result, the Original Application is dismissed in limine. There is no order as to costs.
(Dr. Ramesh Chandra Panda) (Mrs. Meera Chhibber)
Member (A) Member (J)
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