Central Administrative Tribunal - Allahabad
Chandra Kumar vs Union Of India on 30 October, 2017
Reserved (On 10.10.2017) CENTRAL ADMINISTRATIVE TRIBUNAL. ALLAHABAD BENCH ALLAHABAD Dated: This the 20 «= day of_Oct» bec, 2017 Original Application No 330/00182 of 2011 Hon'ble Dr. Murtaza Ali, Member -- J Hon'ble Mr. Gokul Chandra Pati, Member -- A Chandra Kumar, Son of Pattu Ram, Resident of Village Pinna, Post Khas, District Muzaffar -- Nagar. _. Applicant By Adv: Shri A.K. Gupta & Shri Saurabh VERSUS 1. Union of India, through General Manager, Northern Railway, Baroda House, New Delhi. 2. Divisional Railway Manager, Northern Railway, New Delhi. 3. Senior Operating Manager, Northern Railway, New Delhi. 4. Assistant Operating Manager, Northern Railway, New Delhi. _.. Respondents By Adv: Shri Anil Kumar ORDER
By Hon'ble Mr. Gokul Chandra Pati, Member --A This O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 4985 with the following reliefs:-
"2. Issue an appropriate writ order or direction in the nature of Certiorari to quashing the impugned order of removal from service dated 30,08.2010 passed by the respondent No. 3 & 4 (Annexed as annexure No, 1 to the first compilation). ii. Issue an appropriate writ order or direction in the nature of Mandamus direct the respondents to reinstate the applicant on his original post and give the duty of Shuating Porter to the applicant with continuity of service and pay the current salary applicable to the applicant with all consequential henefits like residence etc. as he was enjoying when he was in service.
Hl. issue any other writ order of direction which this Hon'ble Tribunal may deem fit and proper in the circumstance of the case." | \v dé. The frgerd fe 0} f ates LIS working in the post of 01 ina crmninal case unde:
POWMAR E4GTS false and baseless. The ag Liggs Legeg ge ne cere Ha Hoes Additional Sessions Judgs, Thereafter, the applicant preferred a Caminal 4 oe See ey SA Rg oF Peedi hefors Hon'ble High Court of Allanacad.
arder dated 22.01.2010 suspended the co passed by Additional Sessions Judge (Annexure fioh High Court also granté ed ball to the applicant vide orcs rm poreter ehoteesd '3 CUTER ESS £ * § 95s
3. in the meantime the Respondent Ho. 4 in @ sper 20,08,.2010 / 06.09.2010 (Annezure No.4 ty the O.Aj toon of the conviction of the applicant for offence under Section S92 © aiso the order dated 29.01.2010 of Hon'ble High Court and § consideration the circumstances of the case as fepres applicant, an order was passed fo remove the applicant from (hey soe with immediate effect under Rule 14 G) of the Railway Servants (Osa al) Rules, 4968 (in shart Rules).
pursuance [0 the order dated 19.04.2010 of this Jribunal in the O.A. No. seed 38 and Appe This order was pases sfieant where the representation Ga dated 10.03.2010 of 525/10 filed by the app the applicant was to ba disposed of by {he raspondents by passing a .No, 6 to the O.A.).
reasoned and speaking order (Annexure 3 Po apipaed UP Se ne eh ee : ~ Ps nas Sas ge " Sagem oman ? &. Bains UNS arecr af reenoval from SEVIER dated 3SOO8.20°8 3 pags wee INAS CArrew Bie OK ' BN oe he e & ers ae Soe SQ oG 2010 annexure Ho. 1 fo the OA) ihe applicant has feo me te ene ming eryeritted ¢ 2 ceaemiaton cat . af ; _ fie hag also submiiicd @ rapresentauon dated 16.04.2078 fhe resuondents (Annexure No. 7 fo the O.A} to consider fis case of s bean taken by the respondents.
% is the Courter Reply. ihe respondents have submitted ihat Hon bie High Coust yide orders dated 64.12.2009 and 29 04.2010 granted bal {s te applicant and suspended fhe sentence. The respondents have started te suspension of the sentence implies that the conviction has not ide and stayed by the Hon'ble High Court. Hence ihe (AS pONndEMs Ble not able to consider the representation of the applicant fo seinstate the applicant in service after modifying the impugned order. iis also eubmitted by the respondents that the applicant has not availed the attematve remedy of appeal before filing this O.A., hence the present OA. is not maintainable. lt was also submitted by the respondents that since the Hon'ble High Court has not set aside the conviction of the applicant in the trial court, the order of removal from service imposed oF the applicant under Rule 14 () cannot be withdrawn.
§. in the Rejoinder Affidavit, the applicant stated that he was not afforded the opporunily to give reply to shaw cause natice dated of 07.2010 issued te him by respondents before passing the impugned ofder and he was fateely implicated in the criminal case question, The Hon'ble High Court after axamining the Lower Court's record and after peing satisfied has granted bail to the applicant vide order dated wa she eye Nt OA oe y i jet Hie Sesnilentigise af the apaieant datait 1 SOO ? Ih was faithes auhiiitied fa tie Rajpainiten Affitawii that in ghiilad AEH STAACGR Piiaipad Dench ai this Tabrinal has aflowad the OLA. Na.
SANE af FO08 s Shei Sui Weishaa Vs, Union of india ani anoihar and Whe applica Wn that GLA Wiis rainaistedd in gevics, (WINS anbiniied that Sines (he sentaie has been auspanded the inipagned order at reammeval fran eervien is not (uatitied Hadar LW.
8. Wa have heart the learnarl Gourmet Tet thre peabierss. Applicants eounsel submitted the grounds mantianed in the OLA, andl sintedl that the applioanl has ahaut abe montha radia. The respandents are rat rainsiafing the applieantih spite af suspension at the santance by Hanes High Gour HW was submited that thes applicants case 1S similar to the applicant in the QA. No. 2080 af 2008 batore GALT, (Principal Bane) whieh fhe applicant was rainstaied in sarvics. H was alsa: sulamitied that judgement of Hen.ble Allahatsad High Gour, Lucknaw Bench in Sade 2000 (1) AALS, Nand Misra va. State at U.P. and anather raparted in 2 qa0 (LB) is also applicable in his 2Age, a, Learned counsal far the raspondants submited that the santonce of the appliaant has been anapended, but Iba nanviction has nether hoon wer aside nar slayad by Homble High Gaur, hance the arder at removed fram service against the apnicant imposed under Rule JAY an the applicant ean nok be withdraws. The leamed counsel for tre respondents also submitted 6 capy of ihe judgment of Aflababad High Goad i) Mohan bal ed in 2018 Cr) ADA 203 LEP support ab hts eontentian. \ vs, State of UP. aad Others repart . OY?
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22. appticant wit be alibi: for reinsfaiesiend oy a Los Seysee SA EN STR seis BYa ce pede reves es ene pe mgetey Rae Vase oc atern sy es. tt We hav consaterest the subonasiona miacin fy Hast SAMaSES TS sph en eucnke ert Mors reeantarnais mueaiiakio ¢ 3 SF * x also poruged the mvfenals available on raga) Phe sgue rch hes absent:
ie dhe Heft af abave. the facts are nol disputed, rosy anglican was inivally charged af a grave offence ur RrSrSeS 2 Qs.a He for causing death of Sushila on abatenios and afse for Aarassing fer in die matter af dovery. Tre Judge fe the tial as rediectad in ihe order passed by tre Hi iPets suspondad the sentence clearly rujed out gay uncatal abstement of suicide af behest of wie aoplicant by ofses tire death Aad been caused due to siiment. However, the afong with others have been found quifgy of Section 438 o:
which thay have Seen asked to undergo rigorous imprisonment gwo years with a fine of Rs, 2000.
Mere comlction for an offence under Section $8848 of the f would mot fe a conviction in a crime of a sensitive nature. it fs omy when the abatement of suicide is established, tre aforessid woaitd have been an apt finding. it appears that while going thraug judgment of the Trial Court the discipfinary authority has in Oobvion ignored the findings of the Session Judge as to the rofe played by + the applicant in the crime committed aflegediy an which he was punished.
Applying its ratio deci dendi which is point of law decided Bin alse the facts and circumstances in issue are aiso relevant to be goa into. in Bhaskar''s case, a person convicted of corruption has beet found to be totally unfit for service as per his conduct which fod fo the conviction. However, the present case if viewed from this angie, it is only a conviction though absolving the applicant fran? the charge of abatement of suicide on harassment for dowry against which the appeal preferred and sentence has been suspended. The appellate court clearly ruled that in the light of appiicast ag railway servant and may not entail dismissal from service whse quoting the session judge from the trial judgment that fie ony conviction now being assailed is on account of Section 4334 wes suspended, Aforesaid facts has not at all been taker ito consideration, oven the circunrstances leading t Uhe conduct have not feen properly approciated by the disciplinary authonty ja tre present case and mere an bald statement that the act had made applicant unfit for service is an order whith has nat bear passed in gecordance with rule, man: particularly rule 14 of the Rules and & aiso shows con consideration of the cantentions pur forth by the applicant, :
vs As regards order passed by the disciplinary authority is cancers, the Apex Court fram time to time reiterated as a tite sw that disciplinary authority is bound ta pass a reasoned order and nan speaking order cannot ba sustained in the law as ruled in Narpat Singh ys. Rajasthan Financial Carporation 2007 (11) SCALE 458.
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'ee . he PRONE, the order Passad by the a ty te horse the instructions, FuTeS ISL BS sustainag inlaw.
$e Useiplinary Ang Taw an thie SY, for the SUed orders ar MiStale the ay Xt foregoing reasons « the Oa © Set aside. Respondents ay ; Spicant back in Servic SSery fo pass a fresh or "Gard {6 the :
wie O is lower, a dhectad forthwith ®, howavar, if so ae der in ivised, 8ecordance with rules and wi H eo Te Fan Sg with Henne ations made by us in the body of the order. Srregnum would be operated as Per rules and instructions NSEQUENCRS to fallow. No costs,"
¢ weed x % 3 re % . & wil be relevant to tefer to the Rute 14 of the (Discipline and Appeal} Rules, 1886 whict Bee: 33 ere ~ 1 States as 8h gy Yes x "44, Special procedure in certain cases - Notwithstanding 0.
anything contained in Rules 9 to 13 ~ a ise ro) where any penalty is imposed on a Railway servant on the on ground of conduct which has led to his conviction on a . criminal charge; or ae {iF} where the disciplinary authority is satisfied, for reasons io # be recorded by it in writing, that it is not reasonably M practicable to hold an inquiry in the manner proviced in these rules; or (8 where the President is satisfied that in the interest of the security of the State, it is not expedient to hold an 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 Railway servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case falling under clause {i} above:
Provided further that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule."
AZ From above, it is clear that the conduct which has led to conviction of a railway servant needs to be examined by the disciplinary and appellate authority while considering action under Rule 14 (1) against the railway servant, who has been convicted by the trial court. For this, the gravity of offence committed and the nature of relief for the railway servant in criminal appeal would also be taken into account by the authorities acting under the Rules 14 (i). Learned counsel for the applicant has cited Lire? reg te foe Ee ts SP ay Lane ox Ng ae High Court o: Sade Hand Mishra vs. State af UP fs * zarigd ee a ge YES mipais nice OF $ Loe Epaes applicant 3 POSS npopurisien$ 4 cee ae teeh BS Sec Berea - eget ~ conduct af the applicant @ 3 observed by the iat court of the Bpeesie eee. ar igs ye ledvryt ~ ws 2 gered <> 4 Ss court would Ot jUSt ify ine punishment of dismissal under mane 4) Te Ra hy hese aged wietes & x.
yary Auihonty Which was Sef ASIGE HS order passed by the Disciplin erecta 1 ta ' reading to the conduct ot ine 9989/08 did not consider the circurmsiances applicant in that O.A. which is not the case here. Hence, we are of ie yiew that the facts and clroumstances in the present O.A. are different from the O.A. No. 2089 of 2008, hence the ratio of the judg gemem ASE No, 2089 of 2008 yall not be applicable | in this case in the case of Sada Nand Mishra vs. State of UP (supra). Hor bie
13.
Single Judge had held that the petitioner who was convicted of prude, was entitled for reinstatement in service taking inte account the order passed on the conviction and punishment py the Hor ble High Gaur on criminal appeal. it is noticed that this judgement dated 33.08.1989 has pean set aside by the judgement of the Division Bench ot Hen'ble High Court of Allahabad in the case of State of U.P. thraugh Secretary Education, Govt of UP. and another vs Sr Sada Nand Mishra reported In 2001 (4) ESC [Ail] 4732 with the following observations which are refevant-
wean cette OHHH: ARLE "2. White alfwing fhe sald wrif perifon, fias Han bs anned that i was necessary fs pro vinke fee the aeipereynee to the conduct af the petitioner which Nac feed to further refention in the Putdic Sarvice was un sf :
af such indication and dus to merely mentioning conviction, for passisg the impugned order of rentaeat & of removal is bad in law. The arder of removal free :
sustained particularly when the erder of convicts appealed against was stayed oy conferred under sochorr 3 a conviction order ceuld mot have existence of the aforesaid stay arder and hen appeal is alsa ilegal.
3 Against the order dated 23-9-7999 passed hy ihe Han Big Juiige, the State Government has preferred the Presayit Soe 4, Hon'ble Supremes Court in Union of india v. Rastesh Kumar, SCC 514, observed that the respondent was arrested on that he accepted iNegal gratification. He was plisced urider si ep AQ OS a nies. 1955 without holding detailed diseiphsary inguiry. Court admitted the respondent's appeal against Aig cores passed the following interim order > "Pending Searing oF ihe 2 the execution of the sentence shall remain suspended and he released on furnishing a personal bond in the sum of Rs. 58 the like amount..." After four years af ais oi one surety in a8 respondent fied an application in ihe Central Sdminiswauve Trikers tatement in service. The Tribunal atoveed Int seeking fis rains application. Reversing the order of the Tribunal, Held "Linder rule 19 of the e.c.s. (C.6.a} rules 19635, the Ofscinhisry Authority is empowered to take action against a Goverrenen servant on the ground of misconduct which Aas ied te iss conviction on a criminal charge. The rules, hawever, oh provide that 6a suspension of execution of sentence appellate Caurt, Rots the order of dismissal based an COYNTCESS stands obliterated and the dismissed Government Servary AIS to be treated under suspension tH disposal of appeal by 8 appellate Court. The rules also da not provide ret OMSscHyens Authority to await disposal of the appeal dy Ie appesats Court for taking action against him oon the groued of misconduct which has fed to his conviction dy a corgsfant Court of law. Having cagard to the provisions af the sees order dismissing respondent fram service oa fre gecuiesn? misconduct leading to his conviction by a camperent Cows law has not fost its sting merely because a creases was filed by the respondent agains? bis comics 3 appellate Court has suspended the eseculan Of SEEESEES arnt antarged the respondent an bail. Under sectian 289 of the cn Re. the appellate Couwst Aas power {a suspend the execution of satence aint fo PANS the accuserf OF bail, When the apperlans CANHE SUSEENTES gxecution of the sentence » 3s and grant ball lo aff accuse i ihe affect of the order is that the seitenca based on mieten is far the finie being postponed, oF Aap? in abeyance duAg the pandency of the appeal in other winds, Oy Sasha iae ef axecution of santeace inter secten: GY afas po an accused avolds undergoing sentence pending eriminal appeal. However, the Conwichon CGBUAUSS and is mat abiieried and if the conviction is not abliterated, any acon taken agaist a Government servant on 8 piseanaduet witch fed to ius conviction by the court of bw does not fase as efficacy om 4, © Do edent ihe Nae"
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Ben mM S ben a 3 wD im is} va) a fe k passed the a under the Rule 14 ¢). in junds and ent gr fick failed to furnish su Z B = as Ee D 2 a 743 Ss ea bed &S 2 oO .S;
$a therefore no ment and 1 aaecd axed $3 aa td & 6 on * wa t.
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