Central Administrative Tribunal - Delhi
Sunil Kumar Jha S/O Sh. G.K. Jha vs Union Of India Through Secretary To ... on 11 November, 2011
Central Administrative Tribunal Principal Bench OA No. 3966/2011 New Delhi, this the 11th day of November, 2011 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. R.C. Panda, Member (A) Sunil Kumar Jha s/o Sh. G.K. Jha R/o D-57, Chandra Nagar, Ghaziabad (UP) Last employed on the post of Dy. Director In the office of Director General Doordarshan, Mandi House, New Delhi 1. Applicant (By Advocate: Dr. Sumant Bhardwaj) Versus 1. Union of India through Secretary to Govt. of India, Ministry of Information and Broadcasting, A Wing, Shastri Bhawan, New Delhi. 2. Director General, Prasar Bharti, (Broadcasting Corporation of India), Doordarshan, Doordarshan Bhawan, Copernicus Marg, New Delhi-110 001. 3. Union Public Service Commission (UPSC), Dholpur House Shahjahan Road, Pandara Road,New Delhi110 003. Respondents O R D E R Justice V.K. Bali, Chairman:
Sunil Kumar Jha, Station Engineer, vide Presidential Order dated 14.09.2010, has been dismissed from service following his conviction and sentence in a criminal case. This is the order that has been challenged by the applicant in this Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985.
2. The facts in brevity in the context of the contention raised by learned counsel for the applicant in support thereof would reveal that the applicant was jointly tried alongwith Anand Kumar Choora, Dhan Singh Deora, Rajesh Pawar, Shashikant Agnihotri, Rakesh Pawar, Charan Singh Pawar, Shri Ram Chaudhary and Rajender Kumar Jangid, under Section 120-B read with Sections 468, 471, 477A, 381 of IPC as also Section 13(1)(D) read with Section 13(2) of Prevention of Corruption Act. Applicant alongwith Anand Kumar Choora, Dhan Singh Deora, Rakesh Pawar and Rajesh Pawar were found guilty of the charges framed against them under Section 120-B read with Sections 465, 471, 477A and Section 381 of IPC, as also Sections 7, 13(1)(D) read with Section 13(2) of Prevention of Corruption Act, 1988 by the Special Judge, CBI, Jodhpur. The applicant along with persons named above had been convicted and sentenced with two years rigorous imprisonment under Section 120-B read with Section 465 IPC; two years rigorous imprisonment under Section 471 IPC; five years rigorous imprisonment under Section 477-A; 5 years rigorous imprisonment and fine of Rs.5,000/- under Section 13(1)(D) read with Section 13(2) of Prevention of Corruption Act, 1988. In default of payment of fine, they were to further undergo simple imprisonment for a period of three months. They had also been convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.5000/- under Section 120-B read with Section 381 IPC, and in default of payment of fine, they were to further undergo simple imprisonment for a period of three months. Against the orders of conviction and sentence, as mentioned above, the applicant filed an Appeal before the High Court of Rajasthan at Jodhpur, where his sentence has been suspended and the appeal is pending adjudication.
3. As per Rule 19 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as Rules of 1965), a show cause came to be issued to the applicant on 08.09.2009 giving him opportunity to make representation on the penalty proposed therein. The applicant instead filed Original Application bearing OA No. 209/2009 in Jodhpur Bench of the Tribunal, which was held to be premature, vide orders dated 25.02.2010 and directed the applicant to submit his reply to the show cause notice. Pursuant thereto, the applicant made representation on 22.03.2010 but, as mentioned above, vide impugned order dated 14.09.2010, he has been dismissed from service.
4. We have heard Mr. Bhardwaj, counsel representing the applicant, and with his assistance examined the records of the case. All that has been urged in support of the Original Application is that in view of Explanatory Note No.2 to Rule 19(1) of the Rules of 1965, a copy of skeleton inquiry report held in the matter, should be furnished alongwith the show cause notice referring only to the extenuating circumstances to the individual concerned, and inasmuch as, alongwith the show cause notice the said skeleton inquiry report was not sent to the applicant, the impugned order is vitiated and, therefore, needs to be set aside. An averment in that regard has been made in paragraph no.11 of the Original Application and the Explanatory Note said to have come into being by Notification dated 11th March, 1987 has been reproduced. The same reads thus:-
Explanatory Note xxx.
By Notification, dated the 11th March, 1987, the first proviso to Rule 19 has been substituted providing for giving the Government servant an opportunity of making representation on the penalty proposed to be imposed before any order is made inc ase under clause (1). According to this, the disciplinary authority should itself in the first instance hold an inquiry, in which the Government servant concerned should be given a chance to explain and defend the case. No charge sheet is required to be served the charges have already been established in the court. A copy of the skeleton inquiry report held should be furnished along with the show cause notice referring only to the extenuating circumstances, if any, brought forward by the convicted official and the gravity of the criminal charge, for provisionally deciding the quantum of penalty which may be finalized after taking into consideration the reply submitted by him in response to the show-cause notice served.
5. During the course of arguments, we checked up the existence of explanatory note under Rule 19 from Swamys Compilation of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (Edition of 2006 i.e. far later 1987), but we did not find any such explanatory note appended to Rule 19(1) of the Rules of 1965. Even the counsel for the applicant was unable to clarify as to from where the explanatory note, reproduced in the Original Application, has been picked up. Notification dated 11th March, 1987 has also not been produced on records. The applicant, it may be recalled, had filed Original Application bearing OA No. 209/2009 in Jodhpur Bench of the Tribunal when, after his conviction and sentence by the concerned criminal court, he was issued a notice calling upon him to show cause as to why he should not be dismissed from service. The applicant has not chosen to place on record a copy of the order passed by Jodhpur Bench of this Tribunal in the OA filed by him. His not filing the order of the Tribunal, which itself shows that the Original Application was premature, would lead us to believe that subject point was not raised at that stage. Surely, if skeleton inquiry report said to be mentioned in the explanatory note appended to Rule 19 (1) of Rules of 1965 may be a necessary requirement and the same having not been sent to the applicant alongwith the show cause notice, Original Application would not have been held premature. In his representation too, which the applicant filed after decision of the OA aforesaid by Jodhpur Bench, does not appear to have raised this point. In Ground (D) of the representation, it has, however, been mentioned that the subject notice has been issued to the applicant without analyzing the judgment, and other circumstances of the case as per Govt. of Indias decision 4(b), DGP&T Order No.2 below rule 19 of Rules of 1965 and the conduct which led to conviction were also not taken into consideration. There is no reference to the explanatory note that may have come into existence by virtue of notification dated 11.03.1987.
6. We may mention that in the impugned decision dismissing the applicant from service all the pleas raised by him in his representation have been mentioned in the left hand columns with comments on the same in the right hand columns. There is no mention of this point in the impugned order dated 14.09.2010. Even when counsel for the applicant was specifically asked as to from where the explanatory note reproduced in the Original Application has been picked up, no reply was forthcoming. Learned counsel, during the course of arguments, was even handed over Swamys Compilation of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (2006 Edition) and asked to point out as to where the same is mentioned therein, and obviously, when the same is not there, nothing as such could be explained.
7. Be that as it may, once Rule 19 by its first proviso requires an opportunity to be given to Government servant to make representation on the penalty proposed to be imposed before any order is made, it was for the applicant to give extenuating circumstances, if any, that may entail an order lesser than the proposed. Rule 19 deals with circumstances where no enquiry is required to be held before visiting a Government employee with punishment. Rule 19 with its two proviso, that it contains, reads as follows:-
19. Special Procedure in certain cases.
Notwithstanding anything contained in Rule 14 to Rule 18
(i) 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
(ii) 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
(iii) 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 consulted, where such consultation is necessary, before any orders are made in any case under this rule.
8. In view of Rule 19(i) where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge he is to be given an opportunity to make representation on the penalty proposed to be imposed. It is the ground of conduct which has led to conviction of an employee on a criminal charge that entails an opportunity to be given to him to file representation. The notice itself contains the ground of conduct. Assuming, a copy of the skeleton enquiry report is required to be furnished to the employee alongwith the show cause notice, it is the employee who would have to come forward for giving extenuating circumstances, which opportunity the applicant indeed had when notice was issued to him. In these circumstances, in our view, no prejudice in any case has been caused to the applicant.
9. The allegations against the applicant were serious resulting in conviction and sentence on various charges upto 5 years, as mentioned above. The applicant has also mentioned that it is not only the conduct of an employee which led to his conviction on a criminal charge was relevant, but his overall conduct during the span of service was required to be considered. The language employed in the Rule may not support the aforesaid plea of the applicant. Rule 19(i) clearly states that the penalty is imposed on the ground of conduct of an employee which led to his conviction on a criminal charge, and that being so the conduct of an employee leading to conviction on a criminal charge only needs to be examined.
10. Before we may part with this order, we may mention that learned counsel for the applicant has raised no other issue whatsoever. Indeed, in the Original Application a number of grounds have been raised, but courts and tribunals are not required to refer to such grounds even though taken in the OA on which no arguments may have been addressed. The experience of the Tribunal shows that in some cases, after loosing the case in the Tribunal, a plea is raised in the High Court that there were certain points taken in the OA, which were canvassed during the course of arguments but the Tribunal did not advert to the same resulting in either giving the applicant permission to seek review or some time even in setting aside of that order and remitting the matter back to the Tribunal. The Higher Judicial Fora where such a plea is raised are sometimes inclined to go into the arguments like that the points were raised in the Tribunal but not discussed, and, therefore, we reiterate that we have specifically mentioned that no other point was raised.
11. Finding no merit in this Original Application, the same is dismissed.
(Dr. R.C. Panda) (V.K. Bali) Member (A) Chairman /naresh/