Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary To ... on 13 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH CHANDIGARH O.A. NO.567/CH/2012 Orders reserved on: 13.08.2013 Pronounced on: 20.08.2013 Coram: Honble Mr. Ranbir Singh, Member (A) Honble Mr. Sanjeev Kaushik, Member (J) Jagdish Chander Ex-Head constable No. 1536/CP, son of Shri Swarn Chand, resident of House No. 408, Type I, NPL, Sector 26, Chandigarh.
.Applicant Versus
1.Union of India through the Secretary to Government of India, Ministry of Home Affairs, New Delhi.
2.Chandigarh Administration Chandigarh through Home Secretary, Union Territory, Chandigarh.
3.Inspector General of Police, Union Territory Police, U.T. Chandigarh.
4.Senior Superintendent of Police, Union Territory, Chandigarh.
..Respondents Present: Mr. Rohit Sharma, counsel for the applicant None for the respondents Order BY HONBLE MR. SANJEEV KAUSHIK, MEMBER(J)
1. The applicant has assailed (i) the order 10.12.2009 passed by the Disciplinary Authority whereby the punishment of dismissal from service was imposed upon him on account of his conviction by the Criminal Court; (ii) the order dated 25.08.2010 whereby his statutory appeal has been dismissed (iii) the order dated 29.11.2010 endorsed with order dated 10.12.2010 whereby his Revision Petition has been dismissed.
2. The facts, in brief, are as under.
3. The applicant joined the respondent department as Constable on 23.01.1981 and was promoted as Head Constable. On 14.12.2005, an FIR No. 271 under Section 406 and 498-A IPC was lodged against the applicant by his daughter-in-law. Applicant was convicted by the Court of Chief Judicial Magistrate 1st Class, vide its order dated 17.01.2009 (Annexure A-4). He was awarded rigorous imprisonment for one year and imposed a fine of Rs.2000/-. The said order was challenged by the applicant in appeal before the Additional sessions Judge, Nawanshahar who, vide its judgment dated 22.09.2011(Annexure A-5) modified the order of the Trial Court and the applicant was awarded probation for one year.
4. The Senior Superintendent of Police, UT, Chandigarh by the impugned order dated 10.12.009 (Annexure A-1) dismissed the applicant from service in public interest on his conviction in criminal case. An appeal filed against the said order before the Director General of Police, UT Chandigarh, was also rejected vide order dated 24.08.2010(Annexure A-2).
5. Pursuant to notice, the respondents resisted the claim of the applicant by filing a detailed written statement.
6. The respondents have not denied the averment made in the O.A. that the Court of Additional Sessions Judge have granted probation of one year to the applicant. The respondents have submitted that conviction of the applicant under Section 406, 498-A IPC has rendered him not fit to continue in service and, therefore, the Appointing Authority, while exercising his powers conferred upon it, dismissed the applicant from service, in public interest.
7. The applicant has filed rejoinder contradicting the averments made in the written statement.
8. We have heard Mr. Rohit Sharma, learned counsel for the applicant. None appeared on behalf of the respondents.
9. Learned counsel for the applicant vehemently argued that the impugned order dated 10.12.2009 passed by the Sr. Supdt. Of Police, UT, Chandigarh is totally illegal, shows non-application of mind and has been passed only on his conviction in the criminal case which is not permissible as per the settled law. To support his arguments, he placed reliance upon a judgment of the Honble Supreme Court reported as 1976(3) SCC 190 and the orders dated 03.12.2010 passed by this Tribunal in O.A. No. 255/CH/2010 and the judgment dated 08.02.2013 of the Jurisdictional High Court in CWP NO. 19146/2011 titled Rajinder Singh and Another Vs, U.T. Chandigarh and Others.
10. In furtherance thereof, learned counsel submitted that while passing the impugned order, the conduct of a person which led to his conviction on a criminal charge has to be considered and merely the fact that the applicant has been convicted by the Court of law does not constitute that he is not fit to be retained in service. Before passing the impugned order of dismissal, the Appointing Authority has to consider the past conduct of the applicant.
11. We have considered the submissions made by the learned counsel for the applicant and perused the material available on record and the case-law relied upon in support thereof.
12. Undisputedly, the applicant was convicted by the Chief Judicial Magistrate, 1st Class under Section 406 and 498-A IPC and was imposed punishment of rigorous imprisonment for one year and fine of Rs.2000/-. The appellate Court modified the order of Trial Court and granted probation of one year to the applicant. Consequently, he was ordered to be released on probation on furnishing of probation bond for one year. A perusal of the impugned order dated 10.12.009 does not suggest that while passing this order, the Appointing Authority has considered the conduct of the applicant which led to his conviction in a criminal case. It also does not reflect that the Appointing Authority have also considered the fact that the applicant has already been released on probation. The orders only suggest that the Sr. Superintendent of Police, UT, Chandigarh, on conviction of the applicant in criminal case, passed the order of his dismissal from service which is not sustainable in view of the settled law laid down by the Highest Court of law. A constitution Bench of seven Honble Judges of the Supreme Court in the case of The Divisional Personnel Officer Southern Railway and Another Vs. T.R. Chellappan, 1976(3) SCC 190 has observed as under:-
In the instant case neither Article 311(2) proviso (a) nor Rule 14(i) of the Rules of 1968 contain any express provision that the moment a person is found guilty of a misconduct on a criminal charge he will have to be automatically dismissed from service. Article 311(2) proviso (a) is an enabling provision which merely dispenses with the various stages of the departmental inquiry and the show-cause notice. Rule 14 despite incorporating the principles of proviso (a) to Article 311(2) enjoins on the disciplinary authority to consider the circumstances of the case before passing any order. Thus, in our opinion, it is a fallacy to presume that the conviction of a delinquent employee simpliciter without anything more will result in his automatic dismissal or removal from service."
13. The judgment in case of T.R.Chellappan has been considered by the Constitution Bench of the Supreme Court in Union of India vs Tulsiram Patel reported in (1985) 3 SCC 398, analysed the scope of Article 311(2)(a) of the Constitution of India and held as follows :
114. So far as Challappans case is concerned, it is not possible to find any fault either with the view that neither clause (a) of the second proviso to Article 311(2) nor clause (i) of Rule 14 of the Railway Servants Rules is mandatory or with the considerations which have been set out in the judgment as being the considerations to be taken into account by the disciplinary authority before imposing a penalty upon a delinquent government servant. Where a situation envisaged in one of the three clauses of the second proviso to Article 311(2) or of an analogous service rule arises, it is not mandatory that the major penalty of dismissal, removal or reduction in rank should be imposed upon the concerned government servant. The penalty which can be imposed may be some other major penalty or even a minor penalty depending upon the facts and circumstances of the case. In order to arrive at a decision as to which penalty should be imposed, the disciplinary authority will have to take into consideration the various factors set out in Challappan case. It is, however, not possible to agree with the approach adopted in Challappan case in considering Rule 14 of the Railway Servants Rules in isolation and apart from the second proviso to Article 311(2), nor with the interpretation placed by it upon the word consider in the last part of Rule 14. Neither Rule 14 of the Railway Servants Rules nor a similar rule in other service rules can be looked at apart from the second proviso to Article 311(2). The authority of a particular officer to act as a disciplinary authority and to impose a penalty upon a government servant is derived from rules made under the proviso to Article 309 or under an Act referable to that article. As pointed out earlier, these rules cannot impinge upon the pleasure of the President or the Governor of a State, as the case may be, because they are subject to Article 310(1). Equally, they cannot restrict the safeguards provided by clauses (1) and (2) of Article 311 as such a restriction would be in violation of the provisions of those clauses. In the same way, they cannot restrict the exclusionary impact of the second proviso to Article 311(2) because that would be to impose a restriction upon the exercise of pleasure under Article 310(1) which has become free of the restrictions placed upon it by clause (2) of Article 311 by reason of the operation of the second proviso to that clause. The only cases in which a government servant can be dismissed, removed or reduced in rank by way of punishment without holding an inquiry contemplated by clause (2) of Article 311 are the three cases mentioned in the second proviso to that clause. A rule which provides for any other case in which any of these three penalties can be imposed would be unconstitutional. Service rules may reproduce the provisions of the second proviso authorizing the disciplinary authority to dispense with the inquiry contemplated by clause (2) of Article 311 in the three cases mentioned in the second proviso to that clause or any one or more of them. Such a rule, however, cannot be valid and constitutional without reference to the second proviso to Article 311 (2) and cannot be read apart from it. Thus, while the source of authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules, the source of his power to dispense with the inquiry is derived from the second proviso to Article 311(2) and not from any service rules. There is a well-established distinction between the source of authority to exercise a power and the source of such power. The Court in Challappan case was, therefore, in error in interpreting Rule 14 of the Railway Servants Rules by itself and not in conjunction with the second proviso (at that time the only proviso) to Article 311(2). It appears that in Challappan case the Court felt that the addition of the words consider , the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit; warranted an interpretation of Rule 14 different from that to be placed upon the second proviso. This is also not correct. It is true that the second proviso does not contain these words but from this it does not follow that when acting under the second proviso, the disciplinary authority should not consider the facts and circumstances of the case or make an order not warranted by them. It is also not possible to accept the interpretation placed upon the word consider in Challappan case. According to the view taken in that case, a consideration of the circumstances of the case cannot be unilateral but must be after hearing the delinquent government servant. If such were the correct meaning of the word consider, it would render this part of Rule 14 unconstitutional as restricting the full exclusionary operation of the second proviso. The word consider, however, does not bear the meaning placed upon it in Challappan case. The word consider is used in Rule 14 as a transitive verb. The meaning of the word consider; as so used is given in the Oxford English Dictionary as To contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of. The relevant definition of the word consider given in Webster's Third New International Dictionary is to reflect on and think about with a degree of care or caution. Below this definition are given the synonyms of the word consider. These synonyms being contemplate, study, weigh, revolve, excogitate. While explaining the exact different shades of meaning in this group of words, Webster's Dictionary proceeds to state as under with respect to the word 'consider'. 'Consider' often indicates little more than think about. It may occasionally suggest somewhat more conscious direction of thought, somewhat greater depth and scope, and somewhat greater purposefulness.
It is thus obvious that the word consider in its ordinary and natural sense is not capable of the meaning assigned to it in Challappan case. The consideration under Rule 14 of what penalty should be imposed upon a delinquent railway servant must, therefore, be ex parte and where the disciplinary authority comes to the conclusion that the penalty which the facts and circumstances of the case warrant is either of dismissal or removal or reduction in rank, no opportunity of showing cause against such penalty proposed to be imposed upon him can be afforded to the delinquent government servant. Undoubtedly, the disciplinary authority must have regard to all the facts and circumstances of the case as set out in Challappan case1. As pointed out earlier, considerations of fair play and justice requiring a hearing to be given to a government servant with respect to the penalty proposed to be imposed upon him do not enter into the picture when the second proviso to Article 311(2) comes into play and the same would be the position in the case of a service rule reproducing the second proviso in whole or in part and whether the language used is identical with that used in the second proviso or not. There are a number of orders which are of necessity passed without hearing the party who may be affected by them. For instance, courts of law can and often do pass ex parte ad interim orders on the application of a plaintiff, petitioner or appellant without issuing any notice to the other side or hearing him. Can it, therefore, be contended that the judge or judges, as the case may be, did not apply his or their mind while passing such an order?
115. The decision in Challappan case1 is, therefore, not correct with respect to the interpretation placed by it upon Rule 14 of the Railway Servants Rules and particularly upon the word consider occurring in the last part of that rule and in interpreting Rule 14 by itself and not in conjunction with the second proviso to Article 311(2). Before parting with Challappan case, we may, also point out that that case never held the field. The judgment in that case was delivered on September 15, 1975, and it was reported in (1976) 1 SCR at pages 783. Hardly was that case reported then in the next group of appeals in which the same question was raised, namely, the three civil appeals mentioned earlier, an order of reference to a larger Bench was made on November 18, 1976. The correctness of Challappan case was, therefore, doubted from the very beginning.
127. Not much remains to be said about clause (a) of the second proviso to Article 311(2). To recapitulate briefly, where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan case. This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, 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 government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India464 this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case.
147. In all matters before us the challenge to the validity of the impugned orders was confined only to legal grounds, the main ground being based upon what was held in Challappan case1 and the application of principles of natural justice. The contentions with respect to these grounds have been considered by us in the preceding part of this Judgment and have been negatived. In most of the matters the writ petitions contain no detailed facts. Several of the petitioners have gone in departmental appeal but that fact is not mentioned in the writ petitions nor the order of the appellate authority challenged where the appeals have been dismissed. Many government servants have combined together to file one writ petition and in the case of such of them whose departmental appeals have been allowed and they reinstated in service, the petitions have not been amended so as to delete their names and they have continued to remain on the record as petitioners. Several petitions are in identical terms, if not, almost exact copies of other petitions. No attempt has been made in such matters to distinguish the case of one petitioner from the other. Apart from contesting the legal validity of the impugned orders, hardly anyone has even stated in his petition that he was not involved in the situation which has led to clause (b) or clause (c) of the second proviso to Article 311 being applied in his case. There is no allegation of mala fides against the authority passing the impugned orders except at times a mere bare allegation that the order was passed mala fide. No particulars whatever of such alleged mala fides have been given. Such a bare averment cannot amount to a plea of mala fides and requires to be ignored. In this unsatisfactory state of affairs so far as facts are concerned, the only course which this Court can adopt is to consider whether the relevant clause of the second proviso to Article 311(2) or of an analogous service rule has been properly applied or not. If this Court finds that such provision has not been properly applied, the appellant or the petitioner, as the case may be, is entitled to succeed. If, however, we find that it has been properly applied, the appeal or petition would be liable to be dismissed, because there are no proper materials before the Court to investigate and ascertain whether any particular government servant was, in fact, guilty of the charges made against him or not. It is also not the function of this Court to do so because it would involve an inquiry into disputed questions of facts and this Court will not, except in a rare case, embark upon such an inquiry. For these reasons and in view of the directions we propose to give while disposing of these matters, we will while dealing with facts refrain from touching any aspect except whether the particular clause of the second proviso to Article 311(2) or an analogous service rule was properly applied or not.
15. However, the Constitution Bench has made it clear that while invoking the constitutional provision, the entire conduct of the delinquent employee, the gravity of misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features will have to be considered by the disciplinary authority. In other words, the disciplinary authority is bound to consider the impugned conduct of the incumbent so as to take a decision as to whether such conduct deserves the punishment of dismissal/removal from service. The Constitution Bench made it clear that "the disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned Government servant". The Apex Court also made it clear that it was also open to the incumbent concerned even to invoke the power of judicial review apart from the statutory remedy
16. Even recently the Jurisdictional High Court in the case of Rajinder Singh & Another Vs. U.T. Chandigarh and Others(supra) has dealt with the similar controversy and held as under:-
In our considered view, the matter requires re-consideration, especially on the quantum of punishment by the Competent Authority/Revisional Authority as the case may be at least for the following two reasons:-
(i)It is well established that an order of dismissal from service under Clause (a) of Proviso to Article 311(2) of the Constitution cannot be passed only on the basis of conviction, rather the conduct of the person which led to his conviction on a criminal charge will have to be kept in view.
(ii)Section 12 of the Probation of Offenders Act, 1958, starts with a non-obstante clause and it says that notwithstanding anything contained in any other law, a person found guilty of any offence and dealt with under the provisions of Section 3 or section 4 shall not sufer disqualification if any, attaching to a conviction of offence under such law.
The length of service and previous service record can also be kept in view while determining the nature of punishment.
Since the aforesaid aspects were apparently not considered while dismissing the petitioners from service especially Section 12 of the Probation of Offenders Act, 1958, let the matter be placed before the Inspector General of Police, U.T. Chandigarh for an appropriate reconsideration within a period of three months from the date of receipt of certified copy of this order. The same view has been reiterated by the Honble High Court in the case of Kaur Singh Vs. Punjab State Electricity Board 2007(4) SCT 426.
17. Considering the above, we are of the view that the impugned order cannot sustain and accordingly, the same is quashed and set aside. The matter is remitted back to the respondents to re-consider the same in the light of what we have observed above. The respondents shall pass order in this behalf within a period of three months from today.
18. In view of the foregoing discussion, the OA is disposed of. No costs.
(SANJEEV KAUSHIK) MEMBER (J) (RANBIR SINGH) MEMBER (A) PLACE: Chandigarh Dated: 20.08.2013 mw